The Routledge handbook of African law : a historical, political, social, and economic context of law in Africa

__The Routledge Handbook of African Law__ provides a comprehensive, critical overview of the contemporary legal terrain in Africa. The international team of expert contributors adopt an analytical and comparative approach so that readers can see the nexus between different jurisdictions and different legal traditions across the continent. The volume is divided into five parts covering: * Legal Pluralism and African Legal Systems * The State, Institutions, Constitutionalism, and Democratic Governance * Economic Development, Technology, Trade, and Investment * Human Rights, Gender-Based Violence, and Access to Justice * International Law, Institutions, and International Criminal Law Providing important insights into both the specific contexts of African legal systems and the ways in which these legal traditions intersect with the wider world, this handbook will be an essential resource for academics, researchers, lawyers, and graduate and undergraduate students studying this ever-evolving field. Cover Half Title Title Page Copyright Page Table of Contents Acknowledgments Contributors Acronyms and Abbreviations Statutes, Treaties, and Cases Introduction Notes Part I Legal Pluralism and African Legal Systems 1 Legal Pluralism in Africa: Three Levels and Seven Types of Law Introduction The Distinctiveness of African Legal Pluralism The Three Levels of Law in Africa Policy Statutes The Seven Types of Law in Africa Constitutions Acts of Parliament Subordinate Legislation Case Law International Law Customary Law Royal and Fetish Declarations Conclusion Notes References 2 Customary Marriages and the South African Constitution: The Recent Developments Introduction Nonrecognition of Customary Marriages and the Consequences The Advent of Constitutional Democracy The Requirements for the Validity of a Customary Marriage The Recognition of Customary Marriages Act 120 of 1998 The Consent of the Father Or Guardian of the Bride Payment of Lobolo The Handing Over of the Bride Other Specific Cases of Customary Marriage and Unfair Discrimination An Overview Gender and Sex Sexual Orientation Conclusion Notes References 3 Gods at War Religion and Law-Making Introduction The First Epoch: Pre-1895 to 1963 Anglicizing Family Law Subjugating Custom and ATR The Second Epoch: Independence to 2010 The Sultan Retaliates: Kadhis Courts and Islamic Succession Kadhis Courts: Pre-1895–Independence Independence to 2010 Succession Law Custom Fights Back Redeeming the Redeemer: The Rise of African Christianity, Taming the State, and Multiparty Constitutional Reforms The Third Epoch: 2010 and Beyond—the Second Scramble for Partition: The CKRC Process The Return of Customary Law Decolonizing Family Law Freedom of Religion Litigation Conclusion Notes References 4 Pluralism and the Tenor of Bankruptcy Legislation in West African Societies Introduction Recovery of Debt and the Treatment of Insolvency Under Customary Law Recovery of Debt Under Asante Custom Recovery of Debt Under Yoruba Custom Self-help and Creditors’ Collective Action Bankruptcy and Insolvency Law in West Africa Bankruptcy Procedure in the Gold Coast Current Bankruptcy/insolvency Law in Ghana Bankruptcy Procedure in Colonial Nigeria Current Bankruptcy Law in Nigeria Has the Bankruptcy Law Proven to Be a Satisfactory Way of Recovering Debt? Conclusion Notes References 5 Common Law in Kenya Introduction Common Law’s Nature and Practices Development of Common Law in Kenya Common Law After the Constitution of 2010 Organization of Courts Use of Common Law Methods in Constitutional Interpretation and Application Subjection of Common Law and Its Development to the Constitution Use of Other Norms and Methods Concluding Remarks Notes References 6 The Evolution of Property Rights to Land in Postcolonial Buganda Introduction Contextual Background The Origins and Evolution of Property Rights to Land: A Conceptual Framework Definitional Issues What Are Institutions? Informal Institutions and How They Interact With Formal Institutions Why Do Informal Institutions Emerge and Change? Property Rights as an Institution The Function of Property Rights The Institution of Property Rights to Land in Buganda Prior to Independence Why Did Property Rights to Land Change in Postcolonial Buganda? The Period 1962 to 1974 Why Did Property Rights to Land Change Under the 1975 Land Reform Decree? Why Did Property Rights to Land Change During the Museveni Regime (1986–to Date)? Why Did the Informal Property Rights to Land Change in Postcolonial Buganda? Conclusion Notes References Part II The State, Institutions, Constitutionalism, and Democratic Governance 7 One Nation, Multiple Identities Ethnicity, Inclusivity, and Constitution-Making Introduction Ethnic Diversity, Conflict, and Governance Ethnic Diversity The State and Ethnic Diversity in Africa The Management of Diversity Good Governance The Colonial Heritage and Governance in Africa Constitution-making and the Accommodation of Diversity The Electoral System and the Challenge of Diversity Best Practices: Constitution-Making and Diversity African Traditional Authorities and Devolution Conclusion Notes References 8 Democratic Transitions in Africa: The Issue of Civil Resistance and Unconstitutional Change of Government Introduction Normative and Legal Framework On Democratic Transition Civil Resistance and Scenarios in Africa Conceptual Underpinnings of Civil Resistance Scenarios of Civil Resistance in Africa The Jasmine Revolution of Tunisia The Egyptian Revolution of 2011 The 2014 Uprising of Burkina Faso Civil Resistance and Unconstitutional Change of Government Ending Government Through Resistance Reconstituting Government After Overthrowing Government Conclusion and the Way Forward Notes References 9 Freedom of Expression in Zambia Revisited Introduction Freedom of Expression The Law On Freedom of Expression The Importance of Freedom of Expression Regulation of Freedom of Expression International Norms Applicable to the Restriction of Freedom of Expression Regulation of Freedom of Expression in Zambia Defamation Criminal Defamation and Defamation of the President Sedition Power to Ban Publications and Provisions Against “False News” Modern Day Challenges to Freedom of Expression in Zambia Conclusion Notes References 10 Mapping the Legal Contours of Presidential Electoral Law in Kenya: A Case Review of Raila Odinga v. Independent ... Introduction Nullification of Presidential Elections: The 2017 Raila Odinga Decision The Setting of the Kenyan 2017 Election Cycle and the 2017 Raila Decision The Legal Contours of the Presidential Elections Law in Kenya Proof in Presidential Elections Law Constitutional Threshold of Presidential Elections: The Legal Meaning of “Votes” Election Impropriety: Interpreting Section 83 of the Elections Act A Missed Opportunity? Fake News and Undue Influence in Elections “Fake News” Phenomenon in the 2017 Election Cycle “Fake News” in the Kenyan Electoral Law? “Fake News” and Electoral Law in Kenya Undue Influence and Fake News Hate Speech and Fake News Defamation Law and Fake News Best Way Forward? Mapping the Contours of Presidential Elections Law in Kenya: Conclusions Notes References 11 The Unconstitutional Change of Government Normative Framework in Africa Do Elections Matter? Introduction The Problem of Elections in Africa: An Overview The Unconstitutional Change of Government Framework: From the Organisation of African Unity to the African Union The Legacy of the Organisation of African Unity The African Union: A New Dawn? Conclusion Notes References 12 Commissions of Inquiry and the Quest for a Greater Accountability in Health Care Delivery in Africa A Ghanaian Perspective Introduction Burgeoning Incidence of Patient Abuse and Exploitation in Ghana Health Care Accountability—A Regulatory Failure Or Disconnect Between Legislation and Realities of Health Care Assessing the Utility Commissions of Inquiry to Enhance Accountability in Health Care Delivery Conclusion Notes References 13 The Effectiveness and Predictability of Social Security Law Constitutional Perspectives From the Republic of South Africa Introduction Knowledge of Social Security Legislation By the Public Consultation and Public Participation Fragmented Social Security System Duplication of and Overlapping Legislation Accessibility of Legislation Legal Language Impact of Values, Language, and Culture On Social Security Legislation Human, Religious, and Cultural Values Language Law and Culture Consistent Application of Social Security Law Interpretation of Social Security Legislation Stare Decisis Principles Adjudication, Monitoring, and Enforcement of Social Security Rights and Duties Conclusion Notes References 14 Rule of Law With African Characteristics Introduction Different Connotations of the Rule of Law: The Rule of Law With Chinese Characteristics A Rule of Law With African Characteristics? A First Answer (Containing a Hint for the Way Forward) Notes References Part III Economic Development, Technology, Trade, and Investment 15 Law and the Regulation of New Technologies in Africa Introduction The Development and Uses of New Technologies in Africa Drones and Automation Data and Information—Biometrics Social Media and Access to Information Existing Legal and Regulatory Approaches Legal and Other Challenges of New Technologies Challenges Related to Drones and Automation Challenges Related to Data and Information—Biometrics Challenges Related to Social Media and Access to Information Conclusion Notes References 16 The East African Community’s Used Clothing Policy and International Trade Law Introduction The Response of the African Growth and Opportunity Act to the East African Community’s Used Clothing Policy Developmental Perspectives On the East African Community’s Used Clothing Policy The Evolution of International Trade Rules in Textiles and Apparel The WTO Consistency of the East African Community’s Used Clothing Policy The Multi-Level Game: Regionalism, Bilateralism, and Unilateralism as Compliments to Reduced Developing-Country ... Conclusion Notes References 17 Technology, Legal Information, and Access to Justice in Africa Introduction Barriers to Access to Legal Information Emerging Technological Transformations in Africa Technology in the Delivery of Legal Services Opportunities in Artificial Intelligence Technology and Access to Legal Information: Free Access to Law Access to Proprietary Legal Information: the Global Online Access to Legal Information Project (GOALI) Conclusion Notes References 18 Show Me the Money Evaluating the Significance of Traditional Knowledge and Cultural Expressions in the Context of ... Introduction Understanding Key Terms The Role of Traditional Knowledge and Expressions of Culture in Economic Development Should There Be a Tax On Traditional Knowledge and Traditional Cultural Expressions as Income Generators? Conclusion Notes References 19 Labor Law, Labor Market Regulation, and Social Protection in Sub-Saharan Africa Emerging Trends in Comparative Perspective Introduction Overview of the Nature of African Labor Markets: Historical Heritage, Characteristics of Regulation/legislation, and ... ILO and International Labor Standards (ILS): Context and Impact—Core ILS Ratifications, the Decent Work Agenda, Social ... Selected Key Issues in Labor Market Regulation in Sub-Saharan Africa The Definition of Employee in Labor Legislation The Informal Economy Implementation Deficits Summation and Conclusions: Analysis, Assessment, Deduction, and Possible Future Directions Notes References 20 The Pan-African Investment Code and Its Impact On Investments and Resource Extraction in Africa Introduction The Conundrum of Attracting Investments in Africa The Primary Goal of International Investment Law The Code’s Internal Contradictions The Fundamental Contradiction The Legal Nature of the Code Self-defeating Consequences The Philosophies of International Investment Law Brief Historical Background Critique of the Traditional Investment Regime The Sustainable Developmentalism of the Code The Private Sector Mining Investments in Africa Foreign Direct Investments The Continent’s Context The Extractive Sector The Pan-African Investment Code Drafting Overview Innovative Features Critical Provisions Standards of Treatment of Investors and Investments Investors’ Obligations Is the African Negotiator in a Position to Bargain? The Wasteful Incentive of the Code A Better Model Conclusion Notes References Part IV Human Rights, Gender-Based Violence, and Access to Justice 21 The ECOWAS Citizen in a Dilemma The Role of the ECOWAS Court of Justice in the Promotion of Human Rights in West Africa Introduction Historical Background of the Economic Community of West Africa States The Creation of the ECOWAS Court of Justice The Office of Judges of the Court Jurisdiction of the Court Advisory Jurisdiction Contentious Jurisdiction Competence in Matters of Arbitration Human Rights Jurisdiction and Its Impact Failures of the Court Judgments of the ECOWAS Community Court of Justice Conclusion Notes References 22 When Criminal Law Is Not Enough Toward a Holistic Approach to Gender-Based Violence Prevention and Response in Zambia ... Introduction Features and Challenges of the Anti-Gender-Based Violence Act Deference to Existing Criminal Law Focus On Prevention, Protection, and Assistance Community Obligations to Advise and Assist Gender-Based Violence Victims and Survivors Recognition of Alternative Dispute Resolution and Traditional Justice Processes Transnational Insights Conclusion Notes References 23 African Law and the Rights of Sexual Minorities Western Universalism and African Resistance Introduction Notes References 24 Developing Effective Money-Laundering Laws in Africa Dealing With Corrupt, Politically Exposed Persons Introduction The Problem of Money Laundering By Politically Exposed Persons The Role of the Financial Action Task Force and the FATF-Style African Regional Bodies Standard-setting: The FATF Recommendations and the Development of Anti-Money Laundering Laws in African States African States and the Mutual Evaluation Process Implementing the FATF Recommendations in African States: Preventive Measures and Criminalization Politically Exposed Persons and the Anti-Money Laundering Preventive Measures Politically Exposed Persons and Criminalizing Money Laundering Implementing the FATF Recommendations in African States: International Cooperation in Dealing With Politically Exposed ... The Effectiveness of Mutual Legal Assistance in African States Challenges in Making Mutual Legal Assistance Effective Inadequate Mutual Legal Assistance Laws The Political Dimension Limits to the Assistance That Can Be Provided Dual Criminality Differing Legal Systems Keeping Mutual Legal Assistance Laws Arrangements Up to Date Conclusion Notes References 25 Citizenship, Rights, and Political Subjectivity in Eritrea Introduction The Rebel State and Ethos of Egalitarianism The Eritrean State and the Shadow of the Neoliberal World Changing Faces of Polity and of Citizenship: From Transition to Uncertainty Theorizing the Subject: the Citizen as a Subject Legislating Inclusion and Exclusion Land as a Political Object The Dialect of Social Citizenship Social Citizenship—Structural Inquiry The Value Argument Conclusion Notes References Part V International Law, Institutions, and International Criminal Law 26 Addressing Serious Crimes of Global Concern in Africa Dribbling Around the Problem Introduction African States and Human Rights The African Charter On Human and Peoples’ Rights, 1981 The Principle of Universal Jurisdiction The Rome Statute and the International Criminal Court The International Criminal Court and Concentration On Africa Initial Overwhelming Support No to Immunity to State Officials Undue Focus On Africa African Rulers On the Dock The Malabo Protocol, 2014 Contents of the Malabo Protocol International Criminal Jurisdiction for the African Court of Justice and Human Rights Immunity of Rulers in Power On the Continent Increasing the Number of Offenses to Be Handled By the New Court The Legal Status of the Malabo Protocol, 2014 Conclusion Notes References 27 South Africa’s Contribution to International Criminal Justice Introduction South Africa and the Obligation to Prosecute Perpetrators of International Crimes The Institutions Responsible for Prosecution and Investigations of International Crimes The Complementarity Principle and South Africa’s Ability and Willingness to Prosecute Perpetrators of International Crimes The Exercise of Universal Jurisdiction for International Crimes in South Africa The International Crimes Bill, 2017: A Cause for Concern? Conclusion Notes References 28 Stateless and Rightless? An Appraisal of Standards and Practices On Prevention of Statelessness and Protection of ... Introduction The Phenomenon of Statelessness The Global and Regional Picture Norms and Practices On Statelessness in Africa Treaties and Conventions The Jurisprudence of the Regional Human Rights Enforcement Bodies Recent Developments On Statelessness Development of Soft Law On Nationality and Statelessness The Draft Protocol On the Right to a Nationality and Eradication of Statelessness in Africa Developments in Africa’s Subregions National Developments Conclusion Notes References 29 Abducted, Inducted, and Indicted The Case of Dominic Ongwen in the International Criminal Court Introduction The Psychosocial Impact of Child Soldiers Trial Justice Versus Alternative Justice Mechanisms Lubanga and Ntaganda Cases Before the International Criminal Court Alternative Justice Mechanisms Conclusion Notes References 30 From Brussels to Addis Ababa A Contextual and Comparative Analysis of Access to Justice Under Private International ... Introduction Relevant History of the African Union Relevant History and Developments of the European Union The Power to Legislate: Laws With Communal Effects Or Communal Laws? The African Union Versus Regional Economic Communities The Southern African Development Community The Economic Community of West African States Conclusions Notes References 31 An Assessment of the Right of Individuals to Access the Southern African Development Community Tribunal Introduction Individual Complaints in International Law: a Brief Overview Individual Complaints Under the SADC Legal Regime The Old Protocol On the Tribunal Basis and Scope of the Jurisdiction of the Tribunal Exhaustion of Local Remedies The Revised Protocol On the SADC Tribunal A Preliminary Note Jurisdiction of the Tribunal Under the Revised Protocol Conclusion Notes References 32 Beyond Formalism and Uti Possidetis The International Court of Justice and Boundary Disputes in Africa Introduction Theories and Overview Beyond Formalism in International Judicial Interpretation Uti Possidetis: Origins, Distensions, and Dissensions The Nature of Boundary Disputes The Cairo Declaration—First Ordinary Session of the Assembly of Heads of States and Government, July 1964 Crystallization of Norms, Temporality, and Intertemporality in International Law Some Significant African Boundary Decisions Rendered By the International Court of Justice Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986 Frontier Dispute (Benin/Niger), Judgment, ICJ Reports 2005 Frontier Dispute (Burkina Faso/Niger), ICJ Reports 2013 Looking Forward Conclusion Notes References Index "The Routledge Handbook of African Law provides a comprehensive, critical overview of the contemporary legal terrain in Africa. The international team of expert contributors adopt an analytical and comparative approach so that readers can see the nexus between different jurisdictions and different legal traditions across the continent. The volume is divided into five parts covering: Legal Pluralism and African Legal Systems, the State, Institutions, Constitutionalism, and Democratic Governance, Economic Development, Technology, Trade and Investment, Human Rights, Gender-Based Violence, and Access to Justice International Law, Institutions, and International Criminal Law Providing important insights into both the specific contexts of African legal systems and the ways in which these legal traditions intersect with the wider world, this handbook will be an essential resource for academics, researchers, lawyers, graduate and undergraduate students studying this ever-evolving field"-- Provided by publisher "Thia book provides a comprehensive, critical overview of the contemporary legal terrain in Africa. The international team of contributors adopt an analytical and comparative approach so that readers can see the nexus between different jurisdictions and different legal traditions across the continent. The volume is divided into five parts covering: Legal Pluralism and African Legal Systems, the State, Institutions, Constitutionalism, and Democratic Governance, Economic Development, Technology, Trade and Investment, Human Rights, Gender-Based Violence, and Access to Justice International Law, Institutions, and International Criminal Law Providing important insights into both the specific contexts of African legal systems and the ways in which these legal traditions intersect with the wider world"-- Provided by the publisher