The Portuguese-speaking countries represent rather varied socio-political realities and are going through very different internal developments. They share, however, some fundamental similarities within the contemporary African context. I will distinguish two characteristics of particular significance for the topic I propose to treat here.

Although the judiciary is the weakest branch of the government and must depend on the executive branch to enforce its judgments, it is not the integrity, or prestige of the judiciary that is at stake when the executive fails to comply, or to comply satisfactorily with court orders and judgments. In such situations, the authority of the state is called into question.

Clearly, where private persons are unable to concretise their remedies by enforcement, the relevance of the whole judicial process is called into question. In this regard one may say that the existing rules of enforcement are sufficiently geared to prevent that anomaly.

In actions involving private parties the judiciary is an impartial arbiter and it is up to the party aggrieved to pursue his claim to the logical conclusion. The Sheriffs and Civil Process Laws are designed to facilitate this. Not only are officers of state placed at his disposal but he has the ultimate weapons, in an action for committal of an irresponsible judgment debtor. Yet, the formalities appurtenant to the issuance and execution of the various writs have appropriately built in devices, that allow the respondent to comply at any stage and thus save himself financial loss, or loss of his liberty.

In the field of enforcement of non-money judgments the ultimate weapon is an action for committal initiated at the suit of the plaintiff. The same safety devices are available. In particular, where possible, the Court will employ another means of enforcing the judgment, or order.

Although, there is provision for the appointment of commissioners (eg. in sequestration proceedings) and referees (in enquiries) there is little resort to these provisions, not only because sequestration proceedings are extremely rare but probably also because there is seldom need for the appointment of referees in our courts.

It is in the enforcement of judgments against the state and government functionaries that rapid changes have occurred. Although, injunctions and mandamus will still not lie against government, it can now be sued and indirectly be made to obey court orders through actions directed against state functionaries. There is increasing willingness on the part of the courts to subject judicial, or quasi-judicial actions of government to judicial review. The problem remains as usual that of giving teeth to such orders since the very executive against which orders are made, is depended on to enforce such orders. Hence the judiciary has developed safety valves in actions for judicial review to prevent collision with the executive. Utmost discretion is exercised by judges in granting orders for review and they will generally do so only as a last resort

The current Ethiopian Constitution suffers from a severe lack of legitimacy. It lacks legitimacy as a result of a constitution-making process that was not inclusive, as well as the subsequent serious lack of integrity and vitality in the constitutional system. Therefore, if the ruling party, which is also the “author” of the constitution, were to lose its hegemonic position, which is predicated on its control of the security and military apparatus, there is a strong likelihood that there would be calls from significant political forces for a new constitution to be adopted. Such calls should not be heeded. Instead of adopting a new constitution, the current constitution's lack of legitimacy should be remedied by comprehensive constitutional reforms that would still maintain the basic architecture and cornerstones of the current constitution.

On 14 June, 1985, the Provisional National Defence Council of Ghana promulgated a series of laws designed to give better security for widows and their children, provide an effective machinery for the registration of customary marriage and divorce and render heads of family statutorily accountable to their members. They are: Intestate Succession Law, Customary Marriage and Divorce Registration Law and Head of Family (Accountability) Law. There is no doubt that the enactment of these laws marks a significant turning point and a new concept of family property law, even though the impact of the laws is yet to permeate into the social fabric of the Ghanaian community as a whole.

The deep seabed beyond national jurisdiction and the seabed's resources have been declared the common heritage of mankind. There are however divergent views on exactly what the common heritage of mankind is. Does it connote joint management or common ownership of this spatial area? This article argues that culture is one of the relevant factors to be considered in understanding the interpretation given to the common heritage of mankind by sub-Saharan African states and that the role of culture cannot be ignored in appreciating how states interpret concepts in international law.

In March 1993 it was reported in a national newspaper in Zimbabwe that four men convicted of murder and under sentence of death were to be executed shortly. They were all sentenced between 1987 and 1988 although in all but one case their appeals were not heard and dismissed by the Supreme Court until 1991. The Catholic Commission for Justice and Peace (CCJP) obtained a provisional order from the Supreme Court interdicting the respondents from carrying out the sentences, pending a decision as to whether to (i) declare that the delay in carrying out the sentences of death constituted a contravention of section 15(1) of the Constitution of Zimbabwe; and (ii) order that such sentences be permanently stayed. Section 15(1) provides that:

In English law, equity is assigned relatively benign and comfortable roles, functioning as a canon of interpretation of the common law; as its versatile and flexible help-mate and mitigator of its formal strictness. More than this, equity claims a moral justice or conscience function that is deeply embedded in legal culture. As a consequence, equity has been extremely successful in lubricating the machinery of English law, providing it with a ready means of change to meet the needs of the dominant actors within society. This justice function is, however, contradicted by equity's history and its practical functioning, particularly, within the British colonial experience. This article examines the effect of the imposition of English equity on the prevailing customary law systems in colonial West Africa. The analysis challenges the fundamental claim of equity to a moral justice function within the colonial regime and argues that equity served the imperial objective as an instrument for fragmenting and dislocating indigenous property systems in order to facilitate the installation of capitalist property forms.

LAND ACQUISITION AMENDMENT ACT, 2000 (ZIMBABWE)

Since Zimbabwe became independent in 1980 the issue of land reform and, in particular, the issue of land acquisition and redistribution has seldom been off the political agenda. For the first ten years of independence there were constitutional constraints on the acquisition of land for resettlement purposes, but the National Land Policy of 1990 set out plans for an accelerated programme of resettlement. In order to achieve its ambitious targets the government of Zimbabwe saw the need to strengthen its powers of compulsory acquisition both by amending section 16 of the Constitution (which provided strong protection against the compulsory acquisition of property) and by enacting the Land Acquisition Act to provide a statutory basis for the new policy. These reforms were extremely controversial both inside and outside the country and a clause excluding the right to fair compensation for expropriated land was dropped partly in response to international pressure.

The contours of human rights, especially labour rights, have undergone significant shifts in the recent past in Southern Africa. Labour law regimes have been overhauled, resulting in large-scale changes, liberalization of controls over trade unions, loosening of strictures relating to the right to strike, freeing collective bargaining from excessive governmental interference and the extension of protective legislation to previously excluded workers. These developments have been a function of dramatic changes throughout die region. The transition in Soudiern Africa has encompassed die political, economic and legal fabrics of most countries. It has been under way since die late 1980s and is being extended daily. In die constitutional zone, diere is a discernible trend towards the constdtutionalization of social rights, thus settling the debate regarding positive and negative rights in favour of the interdependence, indivisibility and interconnectedness of human rights. The transformation in Soudiern Africa is emblematic of three critical developments: democratization, economic liberalization and paradigmatic transitions in law.

Shirley Zabel's account of the genesis of the Gold Coast Marriage Ordinance of 1884, published elsewhere in this Journal, demonstrates how much a legislative history can teach us about the way in which colonial law-makers went about tackling the formidable problems which had to be faced in what were still the early stages of modern British administration in West Africa. It is proposed in this article to turn to colonial Zambia and to look at the very different field of mining legislation, concentrating on the middle and later period of colonial rule before and after the Second World War. Compared with the early days in West Africa, bureaucratic techniques had been refined and communications greatly improved. This did not always lead to speed in the legislative process. Zabel has shown that the Gold Coast Ordinance was six years in the making; the Northern Rhodesia Mining Ordinance had a gestation period, including several miscarriages, of no less than thirty years prior to its enactment in 1958, despite the admitted need in the 1920s to replace obsolete legislation dating from the days of British South Africa Company rule. The span of time involved, however, has advantages for the legal historian—an opportunity to examine in relation to a single ordinance the colonial legislative process and the forces which, over an extended period, affected the shaping of a vital piece of legislation. It is hoped also that the fruits of this examination will serve as a useful background to studies of modern Zambian mining law.

The African continent has struggled to accept its LGBTIQ population and queer individuals continue to struggle in pursuit of their rights. Similar refrains justifying widespread homophobia reverberate throughout the continent. This article analyses two case studies in Africa: Uganda and South Africa. Although each country treats the question of queer rights differently, arguably the treatment of the queer on a day to day basis is not dissimilar in each country. The article considers whether there is a mechanism for realizing queer rights in Africa, by appealing to the values and cultures that exist on the continent.

With the promulgation of the Sudanese Civil Transactions Act, 1984, in February, 1984, the Republic of the Sudan joined several other Arab countries (e.g. Egypt, Jordan, Iraq and Libya) which have codified major areas of their non-criminal law. The Sudan's previous attempt at such codification was short-lived: the Civil Code, 1971 was repealed in 1973. Although many sectors of the Sudanese legal establishment have been critical of the 1984 legislation, because of questions regarding the quality of the draftsmanship and the absence of its circulation for comment prior to promulgation, it remains the most comprehensive single piece of legislation since the 1971 Civil Code, covering such topics as contract, sales, tort, gift, insurance, bailment and property, both real and personal.

This article will survey all current Sudanese legislation affecting real property, including, most importantly, the Civil Transactions Act, 1984. Because there are more than twenty-five separate legislative acts in the Sudan relating to land, comprising more than six hundred relevant sections, the discussion herein must of necessity be to highlight the major divisions of the current land law, pointing out its distinctive features and those areas in which it appears that conflicts exist as between the various pieces of legislation.

The Civil Transactions Act, 1984 (hereinafter sometimes referred to as “C.T.A.”), was promulgated on 14 February, 1984, and took effect on that date. It comprises some 95 chapters with 819 separate sections, more than one-third of which deal with matters relating to land.

This article considers the importance of preventing mother to child transmission of HIV in Africa. It argues, however, that any approach to achieving this aim must be consistent with respect for human rights. In particular, it argues that mandatory HIV testing of pregnant women violates their rights to autonomy, health and reproductive care, and non-discrimination, all guaranteed in the Protocol to the African Charter on the Rights of Women and other international and regional human rights instruments. It concludes by arguing that respect for women's human rights should form the fulcrum for any call for mandatory or routine HIV testing of pregnant women in Africa.

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.

Free movement of persons is one of the core tenets of the East African Community (EAC) common market, making it seem like a purely economic project. However the EAC ultimately aims to constitute itself as a political federation. This article argues that the free movement of persons within the EAC should be interpreted in broad terms with the aim of asserting it as a fundamental right of EAC citizens. Such an interpretation should be championed by the East African Court of Justice, whose mandate is the interpretation and application of community law. The court, however, seems to prefer a narrow, textual and cautious interpretive approach that may not necessarily advance the EAC's broader objectives. A human rights-oriented interpretive approach might just be the key to realizing a progressive transformation in the rationalization of the right to free movement within the EAC.

The African Charter on Democracy, Elections and Governance requires state parties to establish and strengthen democratic institutions, the rule of law, human rights and independent electoral systems. However, the extent to which these provisions can be invoked by individuals and non-governmental organizations before a court of law is uncertain. It is also unclear whether such provisions guarantee “stand-alone” individual rights and as such whether the charter could be considered to be a human rights instrument. This article seeks to analyse whether the charter is a human rights instrument, as well as examining its justiciability in light of the decision of the African Court on Human and Peoples’ Rights in APDH v Côte d'Ivoire. The analysis highlights the court's decision affirming that the charter is a human rights instrument and that individuals and non-governmental organizations can file cases in a court of law seeking its enforcement.

This paper has attempted to bring out the essentials of a larger study of Sudanese homicide. This is the first study of homicide and major crime in the Sudan which embraces the many diverse ethnic groups that constitute the Sudanese population. It is the first time that so many cases have been analysed for the purpose of disclosing sociological patterns of killing and violence in Sudanese society. Such studies are rare for African countries and practically non-existent for the Arab countries. The Sudan's unique position, straddling both the Arab and African worlds, make this study in part both a study of African homicide and of homicide in the Middle East.