Legal education in Africa has attracted and will continue to attract the attention of scholars. An important reason is that African countries have enjoyed sovereign statehood for only a comparably short time, during which period transition, experiment, change, and even turmoil, have been the hallmark of society: all factors which must have a profound impact on received law (and, of course, on the primeval law), if this law is to serve effectively as a regulatory and stabilising device. This law, in its received cast, is thrown into a dilemma of turbulence; will it serve in wonted fashion, to give regularity, predictability, and a measure of reason? Or will it readily respond to inevitable change, so as to uphold new institutional positions? As President Kenneth Kaunda of Zambia has observed:

“We live in a changing world, and one in which the pace of change is becoming even greater. Neither the character nor the needs of any given society can remain static, and if the law is to fulfil its proper function it must keep pace with the changes. This is not to say that the law must be a straw in the wind; if law is to be an effective instrument of social order it must be a stabilising influence, but it must be flexible and it must be progressive, else it will hinder society in its progress and development. …”

This article examines a recent attempt to promote sustainable forest management in Ghana through the Timber Resources Management Act, 1997. It places the Act in the context of massive deforestation and analyses its provisions imposing social and environmental conditions on the timber industry and giving a greater role to local communities. It warns that excessive government intervention may undermine the industry and the important part it plays in Ghana's economy.

The Tswana peoples referred to in this paper inhabit the Bechuanaland Protectorate, where they number altogether about 270,000. In pre-European times they derived their subsistence mainly from animal husbandry and the cultivation of crops, each household producing its own food. Today they are still essentially small-scale subsistence farmers. But to satisfy the new wants developed by contact with Western civilisation over the past century, many persons also pursue new occupations, including above all temporary wage-labour for Europeans. In some areas more than half the able-bodied men are away every year working in the Union of South Africa. Their absence, often prolonged, has led to conspicuous changes in traditional customs and beliefs, and, as will be seen from some of the examples given below, has also given rise to new grounds for litigation.

In Botswana, which has one of the fastest growing economies in the world, motor vehicle accidents have become a serious economic and social problem. The waste of human and material resources caused by the resulting deaths, bodily injuries and damage to property has for long been a matter of concern t o the government. This is particularly so because not only are financial resources diverted away from more productive purposes, but members of the public live in fear of being killed, maimed or suffering property damage with no certainty of compensation. Even motor vehicle owners are also adversely affected by the damage to their vehicles and the financially crippling risk of having to pay enormous amounts as damages.

I chose the topic of land and land policy as my contribution to this collection of essays in honour of Tony Allott because it seemed to me that there are certain parallels between the role of land in society and the role of Tony Allott in the development of the study of African Law and indeed of the study of the law of pre-literate societies by lawyers in the United Kingdom. Land is central to the workings of any society, but especially is this so in respect of pre-literate societies and societies subjected to the impact of colonialism. So too has Tony's work been central to the growth of our understanding of the workings of customary law in African society and the manifold problems created by the impact of received law i.e. for the most part Western Europe law brought by the colonial powers, on customary law and society. Those of us who began our careers of law teaching and legal scholarship in Africa owe a great debt to Tony for his pioneering work in the field and for his tireless efforts to promote African legal scholarship. In going beyond Africa as I do in this essay, I am once again following in Tony's path for he long ago realised that law in Africa is a part only of the great family of law in the developing world and one can no more isolate African legal scholarship from that world than one can isolate land from the society of which it is a part. It is to this that I now turn.

In October 1974 I attended a court session in Sandema, capital of the Bulsa District in the Upper Region of Ghana.1 Before the Paramount Chief of the Bulsa, Mr. Azantinlow, had appeared two men from Kanjaga, another Bulsa village. One of them complained that some of his donkeys had gone astray and had been illegally appropriated by his neighbour. The latter denied these charges, stating that the donkeys in his compound were his own and not identical with the lost donkeys of the complainant.

The case had been brought previously before the chief of Kanjaga who had advised them to consult a diviner (baano), who by means of his divining practices should find out to whom the donkeys belonged. The diviner, consulted by the complainant's father, came to a conclusion in his favour, yet the defendant did not believe what the complainant told him about the outcome of the divining, but accused him of telling lies. In addition the defendant asked: “In our land (i.e. according to our customs), if you consult a diviner, don't you also offer sacrifices to a bogluk?”2 This the complainant's father apparently had failed to do.

The case was finally brought before the Paramount Chief in Sandema. He refused to judge the case, but referred it back to the elders of the village: they should “talk the case” (biisi bììka) before it was brought to the Chief again, if necessary.

The power of the High Court to apply customary law in appropriate cases is now to be found in s. 17 of the Western Region High Court Law, 1954, No. 3 of 1955, which in this respect merely repeats in substance the provisions of s. 17 of the old Supreme Court Ordinance (cap. 211). The power to enforce customary law in the Region is, as is usual in other places, made subject to such law not being repugnant to natural justice, equity and good conscience or incompatible with legislative provisions. Also customary law may be applicable between “Nigerians” and “non-Nigerians” where otherwise substantial injustice would be done to either party, and the operation of customary law could be excluded either by the nature of the transaction in question or by the agreement of the parties.

Provision for the redemption of alienated land exists in the customary law of many African tribes. Nor is it confined to Africa. Rattray, in discussing land redemption among the Ashanti, quotes the Levitical law of the Old Testament:

“The land shall not be sold for ever for the land is mine … if thy brother be waxen poor and has sold away some of his possessions and if any of his kin come to redeem then shall he redeem that which his brother sold.”

The Bill of Rights is a novelty in Tanzania. As is well-known, Tanzanian Constitutions from independence to 1984 did not contain a bill of rights. Partly for this reason, legal discourse, whether in teaching or in practice, did not centre on rights issues particularly in the relationship between the state and citizen. At the Faculty of Law, University of Dar es Salaam, there developed an approach to teaching which the university calendar refers to as “the historical, socio-economic” method. The socioeconomic method emerged in contrast to the “law and development” approach which was a manifestation of the modernization theory on the legal plane. Neither of these revolved around the question of rights. Put rhetorically, “law and development” saw law essentially as an instrument of social change while the “socio-economic method” regarded law as an instrument of the ruling class. This may be a little over-simplified, but I believe broadly represents the main points of departure of, and contention between, the two schools—at least at that time at the Dar es Salaam Faculty.

As in other former British territories in Africa, the means of introducing a system of common-law rules into Botswana (then the Bechuanaland Protectorate) was the so-called “reception statute”. This was the device whereby at a particular date the laws of one country (usually England) were “received” wholesale by the colonial territory subject to various conditions contained in the reception statute itself. For Botswana, as for the other former High Commission Territories, Lesotho and Swaziland, it was not the English common law that was introduced but rather the law prevailing in the several parts of what is now South Africa. The General Law Proclamation of 19092 had the effect of introducing the Roman-Dutch law from the Colony of the Cape of Good Hope. Cape statutes promulgated after the date of reception were expressly declared not to be applicable in the territory, whilst amendment of the received law by local statutes was, of course, possible.

This article analyses the interface between political globalization, citizenship and security threats in Africa. Political globalization is assumed to be capable of engendering inclusive citizenship; in the same way, citizenship is considered to be central to the national question in Africa. It is around citizenship that most issues of human rights revolve, both at individual and group levels. The article argues that political globalization in Africa tends to limit the meaning, essence and substance of citizenship, even if the latter is defined from a minimalist perspective of duties-rights relationships. The marginalization and/or exclusionary politics engendered by political globalization, especially for vulnerable groups such as ethnic minorities, women and youth on all fronts - political, economic and socio-cultural, amount to a gross violation of individual and group rights. Consequently, rather than engender inclusive citizenship predicated upon fairness, equality and social justice, the political globalization processes seem to have done otherwise, thereby perverting democratization and citizenship to become sources of security threats in Africa.

The former (and late lamented) Chief Justice of South Africa, Justice Ismail Mohammed, once observed that:

“The constitution of a nation is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed, it is a ‘mirror of the national soul’, the identification of the ideals and aspirations of a nation, the articulation of the values binding its people and disciplining its government.”

Further, as van der Vyer has warned, “. . . a superimposed constitutional formulae or constitutional arrangements that . . . do not address the real causes of discontent, are sure to generate their own legitimacy crisis.” It follows that the development of an appropriate procedure for constitution-making is of the greatest practical importance. This short comment seeks to examine critically the much-publicized efforts in Zimbabwe to develop a new autochthonous constitution and to draw some lessons therefrom.

During the 1980s and 1990s there were two major changes to forest management objectives in Tanzania. Firstly, it was recognized that some of the forests, notably those on mountains in the east of the country and the coastal plain, are exceptionally rich in species of restricted distribution. Recent analysis has even placed these forests amongst the most important biodiversity hotspots world-wide. Secondly, there was a recognition that communities needed to be much more involved in forest management. The Forest Act, 2002, which replaces the 1957 Forest Ordinance, tackles both of these objectives and introduces some new concepts of forest ownership. Moreover it makes arrangements for establishing a fund that promotes protection of biodiversity and sustainable development of forest resources. This note first briefly reviews the history of forest law in Tanzania and then discusses innovations introduced by the 2002 Act.

This article argues that the lockdown imposed in Sudan due to the COVID-19 pandemic has seriously affected the livelihood of vulnerable populations and their right to live a dignified life. It explores how emergency measures were aimed at containing the spread of the pandemic. The article argues that these measures have seriously affected the enjoyment of core economic and social rights, particularly in the context of a weak legislative framework of social protection. It concludes by arguing that Sudan's transitional government is not subject to parliamentary scrutiny and exercises legislative and executive powers that are de facto illegitimate, as they are not subject to review by the courts and because of the current suspension of constitutional organs and governance structures. This incomplete governance structure is concerning from a rule of law perspective and has prevented scrutiny of COVID-19 emergency measures, particularly those affecting the basic rights of vulnerable groups.

The COVID-19 pandemic has continued to exert enormous pressure on public health policies and systems, with far-reaching implications. The race for vaccines has raised important intellectual property rights issues. These are evident in the need to advance the public interest and in the obligation of governments to address the challenge of access to vaccines, especially in sub-Saharan countries like Nigeria with relatively underdeveloped healthcare and innovation ecosystems. While the Nigerian Patents and Designs Act (PDA) establishes a compulsory licence regime that affords access to patented drugs, existing public healthcare is severely challenged in providing access to new medicines. This article examines the framework for patent protection of pharmaceuticals designed to meet public health challenges, such as those presented by the pandemic. It recommends the implementation of a government use provision under the PDA, with a view to addressing the challenge of access to COVID-19 vaccines.

This article highlights that section 76(4)(a) of South Africa's Companies Act, which reflects the business judgment rule (BJR) concept, is a standard of review, providing a means of determining whether a director has met his or her undertakings under section 76(3). The article suggests that section 76 should be titled “Standards of conduct and review” instead of referring only to standards of conduct. It draws a clear distinction between standards of conduct (including the personal financial interests disclosure requirements) on one hand, and a standard of review on the other. After tracing the traditional international requirements of BJR, the article analyses the decision-making requirements under section 76(4)(a). It concludes that, while section 76(4)(a) compares favourably with US and Australian laws, the omission of a good faith requirement is unfortunate since that is a critical component of decision-making. The article proposes that good faith and proper purpose under section 76(3)(a) should form part of the section 76(4)(a) requirements.

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.

At the National Consultative Forum on Transforming the Administration of Justice System in Nigeria, convened by the Federal Minister of Justice and the Federal Attorney-General in November 2001, it was decided to draft a National Action Plan on Justice Sector Reform in Nigeria and to produce a Justice Vision document. The Ministry of Justice and the Attorney-General's office identified the need to examine ways of (a) upholding the Constitution and the rule of law; (b) promoting justice, fairness and human dignity; and (c) incorporating and expanding community participation in the administration of justice. The Legal Aid Council of Nigeria could contribute to this process by establishing a public defender network using law graduates in the National Youth Service Corps (NYSC). It may be possible to use the NYSC scheme to expand dramatically the current level of legal aid in Nigeria by employing the services of NYSC law graduates more extensively as public defenders. In order to consider the feasibility of such a programme the following factors will be considered: (i) the availability of lawyers and law graduates; (ii) the duties imposed by the Nigerian Constitution; (iii) the function of the Legal Aid Council; (iv) the operation of the Legal Aid Council; (v) the provision of legal aid services by the Legal Aid Council; and (vi) the cost of establishing a structured NYSC public defender programme.

Information is essential for the functioning of modern societies. Access to information denotes the right of citizens to obtain information regarding how they are governed. In 2011, Nigeria enacted the Freedom of Information Act, to ensure openness and transparency in public governance. This article evaluates the extent to which the legislation has strengthened the right of access to information in Nigeria. Through analysis of the provisions of the act and some decided cases, the article argues that challenges, both in the act's provisions and in its enforcement by the courts, have resulted in a “blunted” law that lacks the capacity to satisfy the people's expectations on the right of access to public information. Drawing on the experience of other jurisdictions where similar laws are operative (notably South Africa and India), the article suggests ways through which the implementation of the act could be made more effective.