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.

This article discusses the issue of the effectiveness of law in Africa, looking at it from a perspective different from those commonly used in dealing with this theme. It proposes an analysis of the interactions between traditional, religious and official law in the course of the historical development of African law through the lens of the stratigraphic method. The analysis takes into consideration the different legal layers that have been posed upon each other. The work focuses on areas of law that are not commonly considered in this regard; in addition, the discourse is conducted using examples taken from jurisdictions that are not normally present in debates on African law. This implies the use of references that are not commonly encountered in African legal literature, together with some from the most important and renowned authors.

This article describes the politics related to the criminalization of torture in South Africa. It studies the differences between torture as an international crime and as a crime under international human rights law. The South African anti-torture law is analysed and critiqued against the standards and provisions set out in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The article recommends amendments to the South African law, aimed at making the combating of torture more effective.

The origin of the initial African constitutions is easy to establish. While the former British territories “received” their Westminster-type constitutions negotiated during the Lancaster House conferences, the former French territories, except Guinea, became independent under constitutions drawing heavily upon the constitution of the Fifth French Republic, of which they were virtual copies. Among the countries formerly under Belgian rule, the Congo (Zaïre) was the only one attaining independence with a constitution, the Loi fondamentale of 1960 which was an Act of the Belgian Parliament.

Therefore, initially the degree of homogeneity was fairly large; there were basically three types of constitutions and the deviation from these models was limited. Admittedly subject to adaptations all the Westminster constitutions were similar, and in fact to some extent they still are; thus in its essential features the 1980 constitution of Zimbabwe draws from the same stock as its predecessors of the early 1960s. The first constitutions of the former French territories were, likewise, very similar, inspired as they were by the French constitution of 1958. The Loi fondamentale of the Congo was strongly influenced by the Belgian constitution, and so was the autochthonous constitution of Burundi which was promulgated a few months after independence in 1962.

Many constitutions have since succeeded these initial texts: between 1960 and 1985 there have been 43 constitutions in the 18 French-speaking countries under consideration, i.e. an average of 2·4 constitutions per country. This flow has led to a considerable diversification of constitutional types.

South Africa is often characterized as a highly religious country since many South Africans consider their religious beliefs to be central to their lives. Although religion is widely believed to be a “non-issue”, these strong religious identifications might, however, play a role in the apparent ethnic resurgence. Consequently, the religious diversity of South Africa should be appropriately accommodated in the post-apartheid regime so as to prevent religion-based conflict.

Higher education plays a central role in countries’ realization of their socio-economic development and in establishing a competitive, skilled workforce globally. The need for a skilled workforce, combined with scarcity in financial resources pertaining to higher education, has resulted in governments resolving to finance higher education. This article seeks to encourage adequate regulation to realize the sustainability of higher education financing in Lesotho, to achieve greater inclusiveness in institutions of higher learning. Through the National Manpower Power Development Council Act 8 of 1978, the Lesotho government established the National Manpower Development Council, which is aimed at facilitating the granting of loan bursaries from a fund administered by the National Manpower Development Secretariat. However, these efforts have faced challenges due to the increased cost of financing higher education. Poor management of the loan recovery function, increasing default by graduates on their repayment obligations and a lack of concerted efforts between the respective government departments threaten its sustainability.

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.

Section 66 of the 1963 Kenyan Constitution established the Kadhi's courts with the jurisdiction to determine “questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion”. 26 Christians petitioned the High Court and argued that section 66 was unconstitutional because it, inter alia, violated the principle of separation of Church and state. The court found in their favour and held that Kenya is a secular state, that section 66 violated the doctrine of separation of state and Church, and that it was discriminatory and contrary to section 82 of the constitution which prohibits discrimination. This note gives the facts of the case, the issues before the court and the court's decision. It also analyses the court's decision.

In June 2016, the Zimbabwe Constitutional Court held that life imprisonment without the possibility of parole is unconstitutional, finding that it constituted cruel and degrading punishment and a violation of the right to equal protection under the country's new constitution. The court widely cited international and foreign law to assess global trends on life imprisonment, especially the jurisprudence of the European Court of Human Rights. The decision illustrates the benefits for human rights advocates of citing international and foreign law in their pleadings, and is an example of “sharing” constitutional jurisprudence across borders and the diffusion of constitutional norms.

“The land is family land—he may not sell it”; “the land is our family land—it does not belong to the chiefs”. How often such statements are heard in West African courts and how difficult it is to distinguish the rights claimed by the individual, the family and the community. To resolve this difficulty is the task which Dr. G. B. A. Coker has set himself in his recently published book Family Property among the Yorubas.2 In this contribution to the rapidly growing number of books on African law the author writes of a single people—the Yoruba of Western Nigeria, and of a single topic—family property; this is no light task, for the study of the concept of family property is the study of the social and political structure of the people as expressed in their land tenure.

Though there has been intensive legislation in the countries of “black” Africa formerly ruled by France, there have been very few reforms affecting personal status. Despite the necessity for replacing traditional customs with a modern law, in view of the imperatives of social and economic development, the legislator ventures only with difficulty to overthrow the preexisting institutions in this field. Hence the importance attaching to the reforms introduced in the Ivory Coast on October 7, 1964, of which the most important is that dealing with marriage, which is the main plank in the family system. The major innovation of the new law is to put an end to the lineage structure of Ivory Coast society; henceforth the conjugal family based on marriage is the new social group recognized and protected by law.

The customary oath is woven into the fabric of African traditional life. Owing, however, to the world-wide publicity which was generated by the Mau Mau emergency in the nineteen-fifties, and the more recent publicity following allegations of oathing after the assassination of the late T. J. Mboya in Nairobi in July, 1969, oathing and Kenya have become closely associated in the public mind. The present state of the law with regard to oaths and oathing in Kenya is not entirely satisfactory, and in certain instances it must be stated that the law appears to be honoured more in the breach than in the observance.

The concept of “customary law” often is used to refer to a particular kind of legal rule—one that is oral rather than written, for instance. Such a conception contains a kernel of truth—customary rules are distinctive—but the focus is too narrow. In this essay I want to look at the totality of legal phenomena in a society—rules, processes, institutions, personnel, and ideology—exploring how they are interrelated and how they relate to other social phenomena. For this purpose I want to construct four configurations of law in society, none of which can be found in its pure form anywhere. Such an ideal type is a heuristic device that, if successful, reveals the dynamic tendencies of a particular configuration and the connections among its parts.

The first configuration, which I will call custom, is found in the pre-capitalist societies of the third world prior to colonial domination. Obviously we never can know what those societies actually looked like, since oral history inevitably introduces nostalgic distortions, and the earliest European travellers and traders were changing die societies even as they were describing them (and of course expressed their own ethnocentric biases). Furthermore, to employ the category “precapitalist” is to invite a number of analytic difficulties: it defines these societies negatively (they are not yet capitalist); and it lumps together societies that differ greatly in economy (e.g., agricultural and pastoral), polity (e.g., chiefly and chiefless), and social structure (e.g., the presence or absence of corporate lineages).

Indigenous or traditional knowledge (TK) systems are the springboard of authentic African innovation and creativity. However, there has been no adequate attempt to determine whether Africa internalizes its comparative advantage in Indigenous knowledge systems in its continental frameworks for socio-economic and development collaboration and aspirations. Despite TK's presumed significance and Africa's proactive promotion of Indigenous knowledge in international fora, TK is treated marginally in key instruments, perhaps as a legacy of colonially entrenched contempt for Indigenous knowledge systems. For Africa to effectively participate in the science and technology revolution, it is necessary to have an introspective and critical appraisal of the present traction around Indigenous knowledge, which is a logical starting point for effective science, technology and innovation policy-making in furtherance of African socio-economic and development collaboration in the knowledge economy.

This article critically analyses the reparations and asset forfeiture framework at the Extraordinary African Chambers and its application in the case against Hissène Habré. It identifies obstacles to implementing the reparations awarded and calls for states and international organizations to support their realization for the sake of Habré’s victims, without whose efforts the tribunal might not exist. It argues that international(ized) criminal tribunals should more readily utilize fines and forfeiture as penalties to alleviate the pressure on trust funds to implement reparations awards, particularly in cases where convicted persons possess substantial assets. Lastly, in light of the requirement that assets susceptible to forfeiture orders be derived directly or indirectly from the crime(s) of which a person is found guilty, the article questions the failure of the prosecutor to charge Habré with the war crime of pillage, despite its availability in the tribunal's statute and the finding that the suffering of many of Habré’s victims entitled to individual compensation resulted from pillage.

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.

This article explores the responsibility to protect (R2P) as an organizing concept for preventing, addressing and finding durable solutions to internal displacement in Africa. While the most innovative norms for protecting the forcibly displaced have been conceptualized in Africa, they have not durably addressed displacement, due to limitations in implementation. R2P has similarly faced criticisms emanating from a lack of clarity and distrust. Restated norms underlying frameworks for internally displaced persons (IDPs) and R2P complement each other, and can be operationalized simultaneously through a more credible regional approach, to encourage effective protection of IDPs in Africa. The article explores pillar one, pillar two and the non-coercive elements of pillar three of R2P, and its underlying moral principles, using Kenya as a case study of the process of seeking to secure state responsibility for the protection of displaced civilians victimized by mass atrocities.