The adoption by some peoples in Africa of the indigenous rights concept has brought about new challenges regarding the application of the concept to these peoples. The indigenous rights concept was shaped by the colonial experiences of indigenous peoples in the Americas and Australasia. The international understanding of the concept pre-supposes the existence of a set of group rights belonging to peoples who are descendants of the earlier inhabitants of the territory on which a state is located, in contrast to other citizens of that state who are considered colonial settlers. The African Commission on Human and Peoples’ Rights has attempted to overcome this challenge by evolving a description of indigenousness for Africa. This article argues that, although the conceptual challenges that flow from the foreign origin of the concept have not been fully overcome, the African Commission's description has successfully located Africa within the global indigenous rights framework.

Modern peacekeeping is increasingly expansive, and much of it occurs in Africa. The African Union's attitude to the challenges of regulating this modern peacekeeping is therefore an important source for the associated legal debates, but one that is often neglected (in part because the sources are limited and often in draft form). This article seeks to articulate and then critique the AU's emerging view on the application of international humanitarian law and international human rights law to peacekeeping activity and the relationship between the two bodies of law in this context. It argues that the AU's emerging position treats international humanitarian law as a narrowed lex specialis, only displacing international human rights law in relation to peacekeepers while they are actively engaged in armed conflict. Even this position, however, underestimates the extent to which the pervasive rights-based concerns in AU sources imply a still more pervasive application of international human rights law to its peacekeeping activities.

The absence of writing in pre-colonial Africa has often befuddled indigenous African jurisprudential thoughts about law and related concepts. This article attempts a reconstruction of indigenous African jurisprudential thoughts on the concept of justice through a prescriptive exploration of Yoruba proverbs. This attempt reveals inter alia the reconciliatory and metaphysical nature and character of justice, as well as the goals of punishment and the character and nature of a desirable judicial system in African thoughts. While noting the artificiality of the categorizations adopted for the reconstruction, the author cautions that, although it may be necessary to compare the indigenous African conceptions of justice with similar postulations in western jurisprudence, the true value of the former lies in their proper understanding and appreciation within the indigenous African setting, as doing otherwise might lead to contradictions and absurdities.

This article reflects on the Transitional Constitution of South Sudan and the political tumult in which it has landed the country. In particular, it looks at the contentious provisions of article 101(r) and (s) of the constitution, which give the president powers to remove an elected state governor and appoint a new governor, upon the occurrence of a crisis whose nature is undefined in the constitution and remains intellectually inconceivable. The article argues that these provisions concentrate political power in the hands of president, to the extent that they undermine the development and maintenance of democracy and the rule of law in the country. In conclusion, it argues for the adoption of a democratic constitution and a federal system of government as the solution to the concentration of political power in Juba.

Federalism presents a dilemma for the implementation of international human rights law in those African states that operate federal constitutions. Central governments in these states enjoy international legal personality, make treaties and represent their states as parties to those treaties, yet internal legislative competence over some issues regulated by treaty is commonly shared between central and regional governments. Consequently, while central governments bear responsibility for transforming international standards into national law, challenges arise in areas such as the protection of children from child marriage, where they lack exclusive national legislative competence. How have these states managed to implement international law without violating their own constitutions? Applying a comparative approach, this article argues that African federal states have employed two main models to overcome the dilemma, neither of which has been totally effective. Drawing lessons from federal states outside Africa, the article suggests other mechanisms to perfect Africa's two main models.

This article discusses certain provisions of the Zimbabwe Constitution Amendment Act 20 of 2013 that deal with the protection of socio-economic and cultural rights in Zimbabwe. The purpose of the article is to investigate the adequacy, flaws, challenges and prospects of these provisions in relation to the protection and affording of basic socio-economic and cultural rights to all citizens of Zimbabwe.

Few mining countries face capacity building challenges comparable to Rwanda's. Worsened by the genocide, a 2009 report put the number of mining scientists in Rwanda at 40, fewer than four below the age of 40. The government has however recognized that local skills development is crucial to the potential of mining to contribute to the country's economic development. This has been demonstrated through a series of reforms, culminating in the mining code of 2014. This article considers two issues critical to capacity building in the mining sector: formalization of artisanal and small-scale mining and the promotion of local content / procurement. Its main thesis is that the code provides limited opportunities for local mining capacity building and its local content provisions are rather nervously worded. This is worsened by the fact that Rwanda has no freestanding local content legislation. The article calls for Rwanda to adopt such legislation, with specific provisions on local skills training.

This article analyses the barriers that expectant mothers face in accessing appropriate, quality medical services in Kenya, and investigates the potential for the regional African human rights adjudicator to use provisional measures (PMs) to protect expectant mothers. The article aims to explore whether PMs adopted by the African Commission on Human and Peoples’ Rights could be an appropriate legal tool to secure protection for expectant mothers who are dealing with obstacles in obtaining the medical services that they need. In that regard, this contribution suggests that the situation of certain expectant mothers in Kenya meets the two necessary conditions to grant PMs under the African Human Rights system: that the situation is urgent and the measures are necessary to prevent irreparable damage. It suggests that, following the tendency of other international human rights bodies, the Commission has the potential to play a relevant role in the context of maternal mortality.

Urban and rural local authorities constitute the lowest tier of Zimbabwe's multilevel system of government. These local governments have a constitutional “right to govern” that must be exercised within the constitutional, legislative and policy framework. Under the old constitutional order, the national government could supervise urban local authorities, for example by issuing policy directives to ensure that these authorities governed in a manner that enabled them to deliver on national and local goals. This article examines this supervisory instrument, the powers it gives the national government, its use in practice and its relevance under the new constitutional order. The main argument is that supervisory instruments, such as the power to issue policy directives to local governments, are necessary in any multilevel system of government. However, such supervisory powers must be balanced with the need for local autonomy, to allow local governments to deliver on their service delivery obligations and development mandate.

As a small island developing state, Mauritius needs to manage its natural assets with a precautionary approach, especially as the tourism industry is one of the main pillars of its economy. While the precautionary principle has no statutory value in Mauritius, it serves as a guiding principle in environmental decision making. Since 1993, the assessment of impact has been mandatory under the Environment Protection Act (EPA) for major development activities, to avoid activities that may have a significant adverse impact on the environment and society. The local impact assessment procedure currently includes two categories of undertakings listed in the EPA, namely the environment impact assessment (EIA) and the preliminary environment report for undertakings with less environmental and socio-economic impact. This article examines the Mauritian EIA regulatory mechanism and seeks to strengthen the EIA process with a precautionary approach, to achieve more effective regulation and implementation.

Major development projects in many African countries are often financed by development partners through development aid procurement. Development partners implement specific procurement policies aimed at promoting development in countries receiving aid. This article examines the policies of development partners applicable to aid funded procurement. It argues that some development partner policies could limit the policy space available to implement prioritized development goals domestically.

Despite a constitutional right to water, challenges remain for access to sufficient water in South Africa. This article considers the degree to which current legal provisions perpetuate approaches that are antithetical to genuinely eco-socio-sustainable water access. Water in South Africa has largely been re-cast as a commodity, exposed to market rules, proving problematic for many and giving rise to various responses, including litigation. In the seminal case of Mazibuko, the Constitutional Court failed to provide robust protection to the right to water, providing impetus for the formation of “commons” strategies for water allocation. Indeed, “commoning” is beginning to represent not only an emerging conceptual strand in urban resource allocation, but also a dynamic, contemporary, eco-sensitive, socio-cultural phenomenon, driving innovative, interactive and inclusive forms of planning and social engagement. Against the backdrop of unequal water access, commoning offers glimpses of an empowering and enfranchising subaltern paradigm.

This article raises concerns about the impact of judicial delimitation on private exploratory rights existing in contested waters. These concerns stem from the tendency of judges to disregard any non-geographic factors during the process of maritime delimitation. This practice allows for the reallocation of the private rights in question and eventually creates tension between public international law and private law. This is discussed in the context of the Somali-Kenyan maritime dispute, which is currently under judicial consideration. The article will demonstrate that, insofar as international judges apply the standard doctrines of delimitation, the prospective judgment may cause the reallocation and, ultimately, the frustration of Kenya's private exploratory contracts in the disputed area. It suggests that a unitization agreement entered after delimitation may reverse this outcome. However, inasmuch as state cooperation lacks the cloak of international custom, the interests of private actors operating in contested waters remain at stake.

The recent global financial crisis has demonstrated the ineffectiveness of traditional regulation in averting financial crime. Consequently the supervision of financial institutions has been increasingly re-evaluated and such endeavours have resulted in the reregulation of the sector in many jurisdictions. This article argues that, much as these strategies can be said to be laudable, until they emphasize engagement with the people who work in those institutions through making it possible for them to report corporate misconduct, these legislative paradigms will not avail much. As such, this article argues for the increased use of insiders through whistleblowing as a mechanism to support the exposure of illegal activities. By comparing the whistleblowing approaches adopted in South Africa and Switzerland, this article attempts to contribute to the standardization of approaches that can be used to enhance global financial sector transparency and minimize financial crime.

Food is essential for human survival. When the right quantity and quality is taken, it ensures growth and an adequate supply of nutrition to the body, which results in basic effectiveness in all spheres of life. Genetically modified crops have the potential to alleviate hunger and provide more food, especially in developing countries that have high levels of hunger, malnutrition and poverty. Although the debates on genetically modified crops generally focus on intellectual property, other issues include health and environmental concerns. This article examines these issues with the aim of providing holistic knowledge of the subject matter, which is important for stakeholders, particularly in developing countries, in deciding to protect plant variety rights. The article concludes that it is essential for developing countries to consider food security issues in fulfilling their obligations under the TRIPS Agreement.

It is usually assumed that there is sufficient legislation to regulate the Nigerian business community and combat corporate irresponsibility and that the challenge lies in lackadaisical enforcement by regulators. This article queries this assumption and analyses the corporate social responsibility (CSR) regulatory landscape in corporate Nigeria. It depicts a bleak picture of weak regulation, faulty legal transplantation of foreign principles, a lackadaisical attitude to enforcement, double operational standards from multinational enterprises, and incoherence and policy disparity between CSR regulatory provisions in primary legislation on the one hand and their subsidiary laws on the other. It argues that the challenge lies in faulty and disjointed legislation grossly undermined by fallacious legal transplantation. The article concludes by offering an agenda for the harmonization of the disjointed CSR framework in highlighted primary and subsidiary legislation, in line with best international standards.

Swaziland's Constitution of 2005 promised that every Swazi child would have the right to free primary school education, within three years of the constitution coming into operation. That date having passed, a civil society group took the matter to court. The case initially fared well, but in a subsequent application for performance on the original order, the court balked at making an immediately enforceable order, citing lack of resources as an obstacle. That approach was upheld by the Supreme Court. This article examines the courts’ pronouncements within the Swazi constitutional context. It discusses judicial deference, avoidance and pragmatism. Swaziland's free primary education judgments are compared with those of courts in South Africa. The remedial orders of those courts demonstrate that, although educational goods and services cannot be delivered overnight, creativity and oversight by the courts can ensure that an immediate start is made towards delivering on the constitutional promise.

The supremacy of the constitution and the rule of law are key features of the post-apartheid legal order in South Africa. For either to have any real value, however, it is necessary that they are interpreted and applied by an independent judiciary that is free from executive influence. This important task has fallen mainly on the Constitutional Court. It has recently been called upon to rule on the lawfulness of the conduct of both the president and the National Assembly and held that both had acted unlawfully and inconsistently with the constitution. In the author's view, this ruling signifies that the maturing court is fully aware of its own constitutional obligations and that, unlike its apartheid era predecessors that were hamstrung by the supremacy of Parliament, it possesses a mandate to check the abuse of power by other branches of government.

The abolition of the mandatory death penalty for murder in Malawi has attracted attention to life imprisonment as a possible punishment for capital crimes. This article considers the human rights challenges that life imprisonment in Malawi raises in view of the Bill of Rights and Malawi's international obligations under the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and other international and regional human rights instruments that prescribe various standards for punishment. The article argues that, in the absence of a clear statutory definition of life imprisonment and an inadequate release system, the application of life imprisonment in Malawi is inconsistent with the Bill of Rights and international standards on punishment.

The general rule in South Africa is that, when an offence is committed, the suspect has to be prosecuted by a public prosecutor. However, there is an exception whereby a victim of crime is permitted to institute a private prosecution if the prosecutor has declined to prosecute. South African law allows natural, but not juristic, persons to institute private prosecutions. In the case examined in this note, the appellant argued that the law prohibiting juristic persons from instituting private prosecutions is discriminatory. The Supreme Court of Appeal held that private prosecutions are only permitted on grounds of direct infringement of human dignity. This note argues that section 7 of the Criminal Procedure Act is unconstitutional for excluding juristic persons from instituting private prosecutions and recommends steps the appellant could take to institute private prosecutions against those who mistreat animals.