This article examines how the South African government, realizing the country's vulnerability to climate change, deemed it necessary to strengthen adaptation and mitigation measures and put in place legal and institutional frameworks to ensure implementation and compliance. Government must take responsibility for industry's inaction by implementing policies on climate change and, more importantly, through a visible change in government policy to hold industry accountable. The stringent policies and strategies being put in place are reducing vulnerability and also enhancing a broad spectrum of capacity in responding to environmental, climatic, resource and economic perturbations. The article further reviews state of the art methods and tools available to strengthen mitigation and adaptation strategies and measures in the areas of the existing frameworks regarding climate change. It also considers various measures by Eskom in particular, and strategies embarked upon by South Africa's national and local governments to reduce greenhouse gas emissions.

A new opportunity for international human rights litigation in West Africa was presented in 2005 when the Economic Community of West African States adopted a protocol to empower its judicial organ, the ECOWAS Community Court of Justice, to determine cases of human rights violation that occur in ECOWAS member states. Since then, several human rights claims have been brought before the court. However, critical questions concerning the legality of the new mandate and the suitability of the court to exercise a human rights jurisdiction have lingered. Beginning with an inquiry into the foundation within ECOWAS for the exercise of a human rights jurisdiction, this article analyses the legitimacy of the human rights mandate of the ECOWAS court and interrogates crucial issues relevant to the effectiveness of the mandate. The article suggests ways to enhance execution of the mandate and concludes with a call for careful judicial navigation in the exercise of the court's expanded jurisdiction.

Nigeria is on the verge of comprehensively reviewing its oil and gas laws. The review is aimed at, among other things, addressing the conflicts associated with the management of the resources and, especially, the affect on the people of the oil producing region of the country who have been vigorously protesting about their alienation from the resources. Drawing on the international law of public participation in natural resource management, this article seeks to develop a viable legislative framework for public participation in oil and gas decision-making that Nigeria can adopt. A viable legislative framework must take into account the various factors that shape the effectiveness of participation and the elements that promote the objectives of participation. It is premised on the ground that looking to international prescriptions might help to elucidate gaps in domestic laws, as well as alternatives to overcome them.

This article critiques the subject of patent protection of drugs in the light of the threat posed by HIV/AIDS in sub-Saharan Africa. It contends that the basis for sustaining the prevailing international patent system in developing countries is a “myth”: one of deception. This “myth” is validated by highlighting the dysfunctions associated with the prevailing international patent system. The article proposes the adoption of diverse patent systems that would suit the cultural and human development needs of countries in sub-Saharan Africa. Such diversity implies a drug patent model that meets human needs and shows respect for communal interests, a model that permits differences and is amenable to change in the light of socio-economic needs, a model that confronts “unfreedoms” which constrain human development, and a model that ensures respect and protection for the fundamental right to health care.

In the Mozambican context of the state amnesty for civil war crimes, war survivors have used their local ethics of reciprocity to create justice. This article analyses how survivors have attempted to persuade judges in traditional courts to adjudicate in serious wartime disputes. These judges, who have no official mandate to redress wartime offences, tried to preserve the conflicting interests of the litigants and the state. This positioning, coupled with the fact that the local ethics of reciprocity are embedded in uneven power and gender relations, resulted in some cases being adjudicated and others not, and in some disputes receiving no gender justice. Nevertheless, some of the interventions indicate that national and international institutions of justice are not the only ones engaged in the struggle against impunity for wartime crimes. In Mozambique, specific attention must be paid to the study of traditional justice mechanisms as fonts of redress for wartime crimes and for the long-term contribution they can make.

New Economic Partnership Agreements were intended to replace the non-reciprocal EU-African, Caribbean and Pacific trade relationship by 1 January 2008, in a bid to further the development of African, Caribbean and Pacific countries under a WTO-compatible framework. African countries and regions failed to conclude any EPAs by that date due to scepticism about the deeper trade implications of EPAs. However, in a move that has seen the disintegration of Africa's EPA negotiating groups and compromised regional integration across the continent, many African countries broke ranks to initial bilateral goods-only Interim Agreements with the EU as a first step towards concluding full EPAs. Exploring an alternative approach to concluding EPAs, this article underscores the point that the Interim Agreements, although seemingly preserving market access preferences for some African countries, are already having devastating effects on regional integration, the very basis of Africa's development strategy.

This article examines developments in the East African Community from October 2006 to April 2007, against the background of the challenge to the “elections” of members of the East African Legislative Assembly. The article also examines the saga over the Kenyan regional court judges, emanating from the decision to grant an injunction restraining the nine Kenyan nominees to the Assembly from taking office and to dismiss a recusal application brought against the court's Kenyan judges. The article explores the hurried amendments to the Community treaty in a largely political response to the regional court's decisions and the implications for the future of the court and the Community. The haste involved in amending the treaty itself raises concerns over the growing tendency to flout processes and procedures at the national and community levels for the sake of political expedience on the part of the partner states.

This article contends that the severely repressive manner in which Eritrea has been governed in the last ten years violates the right of the Eritrean people to democratic governance. In particular, the refusal of the transitional Government of Eritrea (GoE) to end its transitional tenure in utter defiance of its own promises, transitional laws and the Constitution of Eritrea fits the definition of unconstitutional change of government proscribed by the African Union (AU). This article calls upon the AU's Peace and Security Council to urge the GoE expeditiously to establish democratic governance in accordance with regional, international and Eritrea's own legal standards. Should this demand fall upon deaf ears, this article calls for the AU to impose sanctions on the GoE.

This article analyses the challenges facing those living in poverty in Nigeria in accessing justice for the enforcement of their rights, despite those rights being constitutionally protected and despite the existence of a specific procedure for their enforcement. People living in poverty are generally most likely to see their human rights violated, and least likely to enforce their rights. The article posits that the judiciary in developing countries has a crucial role to play in fighting human rights violations specifically affecting people living in poverty, and notes the great challenge for the Nigerian legislator and judiciary towards making justice accessible in practical terms to the needy in Nigeria. The example of public interest litigation in India can serve as a source of inspiration in this respect.

Between 1999 and 2007, a popular Labour-led movement led a pro-poor struggle to resist the fuel price hike policy of the Nigerian government. Waged in the context of the poverty in which nearly 70 per cent of Nigerians lived, the operation of powerful incentives to raise fuel prices, and Labour's extraordinary socio-political leverage, these struggles triggered much government frustration. One of the strategies adopted by the government to legitimize its attempt to repress the movement was to resort to the courts. This article analyses, from a socio-legal perspective, the key cases relating to the validity of the government's attempts to repress the struggles. The article concludes that, although both pro- and anti-movement trends can be observed in the jurisprudence, the anti-movement tendency having so far prevailed in terms of formal legal precedent, the pro-movement (ie pro-poor) decisions have, as a result of their massive popular legitimacy, actually functioned as the “living law.”

Do the terms of the Nigerian Land Use Act permit the application of equitable principles to transactions under it? More particularly, could equity be used to enforce null and void transactions under the Act? Although the Supreme Court answered these questions in the negative in Ajilo, other decisions of the Supreme Court, as well as some sections of the Act itself, suggest that the Act is not incompatible with equitable principles. Nor is it contrary to public policy to enforce null and void transactions under the Act through the intervention of equity. Two relevant equitable concepts are resulting and constructive trusts. While constructive trusts have found some fertile soil in Nigerian equity jurisprudence (despite the discordant tune in Ajilo), Nigerian courts seem to struggle with the principles of resulting trust. This article suggests that resulting and constructive trusts are proper instruments for the interpretation and application of the Act and that Ajilo should be overruled.

On 27 April 1994 South Africans adopted a new constitution, with founding values of dignity, equality and freedom. Despite the new constitution, the majority of women remain victims within the workplace. They still find themselves a minority within senior management and are often subjected to sexual harassment. Women are either denied work opportunities for refusing to give in to a perpetrator's sexual advances or they are forced to work in an unpleasant environment that severely infringes on their dignity. There are five legal options available to victims of sexual harassment within the South African workplace. These are claims against the employer for: vicarious liability; automatically unfair dismissal; unfair labour practices; failing to create a safe working environment; and violating the Employment Equity Act. This article examines the strengths and weaknesses of these legal actions. It also makes further suggestions aimed at curbing workplace sexual harassment within South Africa.

The Nicholson judgment was clearly a precipitating factor in the resignation of former South African President Thabo Mbeki in 2008. Engaging with the judgment in its own terms, this note first puts forward a best legal interpretation of the judgment, covering the doctrines of prosecutorial independence and legitimate expectations. It then identifies the degree to which the comment in the judgment may be termed politically activist. In the authors' view, Nicholson tackled political issues in his judgment that he need not have: in particular, allegations of executive interference in the independence of the prosecutions authority. Assuming that Nicholson J's text may be read as an attempt to bolster the legitimacy of the judiciary, the note explores whether it succeeds on those terms and concludes that the judgment is ultimately an example of failed dramatic art.

This article reviews the collection of essays edited by Aninka Claassens and Ben Cousins, dealing with South Africa's controversial Communal Land Rights Act (CLRA). It comments on the implications of the CLRA for land law and reform. The background to and policy choices underlying the enactment of this piece of legislation are discussed, and the difficulties with its implementation are highlighted. It is significant that, in the case of Tongoane and Others v Minister of Agriculture and Land Affairs and Others, the constitutionality of the CLRA was challenged even before the CLRA became operative. The article discusses the main arguments raised by the constitutionality challenge, and raises further constitutionality issues. It considers the recommendations of Claassens and Cousins and makes further observations, particularly in light of the Tongoane judgment which was delivered after the book was published in 2008.