What began as an exercise in defining the jurisdiction of the Nigerian Federal High Court over fundamental human rights has now turned into a well established principle that Nigerian courts will not entertain an action for the enforcement of a fundamental human right contained in chapter IV of the 1999 constitution through the Fundamental Human Rights (Enforcement Procedure) Rules unless it is the principal claim. In other words, if the action for the enforcement of a fundamental human right is an accessory or subsidiary claim, the action must be started by a writ of summons. This article demonstrates that this distinction is dubious, irrelevant and impossible to make, and leads to a miscarriage of justice.

Two recent judgments in Northern Nigeria have focussed attention on one of the many essential differences between the type of homicide for which the death penalty can properly be imposed under the Islamic law of the Maliki school and the crime of murder under the Criminal Code, and have thrown into bold relief the conflict of opinion which still prevails in that Region regarding the legislation which was intended to resolve some of these differences. These two judgments are of such intrinsic interest and importance that some discussion of their principles and implications seems appropriate to this Journal.

Although the broader purpose of this paper is to review some of the major aspects of current penal policy in Africa, I wish to emphasize the desirability of seeking new approaches to the perennial problem of how to deal with deviants generally, and criminal offenders in particular. The main thrust of penal policy in Africa today—and, indeed, in the world generally—ought, in my view, to be directed toward developing what I will call “alternatives to imprisonment”. I use “imprisonment” here as a short-hand expression to denote the entire process of criminal justice as it works in most countries, in the majority of cases, i.e., from an arrest to a court sentence to prison. Thus I am putting the question: towards what kind of penal system, in its widest sense, ought we to be working? I will suggest that the answer is: towards new and alternative means of dealing with deviance, i.e., any method of treating a person who engages in deviant behaviour other than by sending him through the complete criminal process into prison. Thus this paper will range over a wide area, including the kinds of deviant behaviour to be dealt with, the nature of the process by which the deviant is dealt with and the nature of the sanctions available to deal with deviancy.

Provocation is dead! It died at the Supreme Court of Nigeria. The funeral oration was read by Kazeem J.S.C., while the funeral dirge was chorused by four other judges of the same court. The case was Ganiyu Olatokunbo Oladiran v. State The facts of the case were as follows. The appellant was a secretary of Design Group Ltd., a firm of chartered architects based in Ibadan. His marriage with the deceased came to be as a result of a pregnancy presented to him by the deceased. Their matrimonial history was one of intermittent quarrels, accusations and counter-accusations of infidelity against the appellant and insubordination against the deceased. The deceased had always accused the appellant of showing interest in their maid, a girl of about 13 or 14 years of age. The appellant had on the other hand accused the deceased of smoking cigarettes which he disliked.

The climax to their matrimonial squabble came, to a head on the 21 September, 1982. On that day, there was as usual a quarrel between the appellant and the deceased. There was an abortive attempt at settlement by the deceased's parents. Later that day the deceased refused to cook for the appellant and told him to ask his “second wife” (the house-maid) to cook for him. She also abused him. Thereafter the appellant got a knife and stabbed the deceased to death. The appellant subsequently made an abortive attempt at committing suicide.

The legal profession occupies a strategic position in Nigerian society. In addition to performing the traditional function of protecting individual rights through litigation, lawyers actively involve themselves in the creation of legal institutions and concepts that promote development. Legal services profoundly affect and shape virtually all social, economic and political arrangements in the country. Nigerian society has become increasingly reliant on lawyers for its smooth functioning. The country anchors its hope for social and economic development on them.

The countries of Southern Africa are organized under the Southern African Development Community (SADC). They share a common social and cultural affinity, a common historical experience of colonization, and common problems and aspirations. One of their shared problems is crime, both within and across their borders. Cross-border crime is facilitated by their common and often long and open borders, the affinity of their peoples, the improved transport systems by road, rail, air and sea, and die concomitant heavy traffic of persons and goods between the common borders. Regarding this traffic, moves are already under way to make it even easier by progressively eliminating all obstacles to movement of persons within the region. It is believed that individuals are both agents and the ultimate beneficiaries of regional co-operation. Said Dr Kaire Mbuende, the Executive Secretary of SADC: “We do not see how else the SADC can come into being unless the people of the region are able to interact freely across national borders, to share their skills, experiences and resources”. This freer movement of persons within the region will also inevitably mean the freer movement of criminals and contraband across the borders.

Dans le cadre d'une étude comparative des différentes rédactions de droits coutumiers, et en vue d'apporter ainsi une contribution à l'étude des problèmes posés par la rédaction des droits coutumiers africains, ce brefessai est consacré à la rédaction des coutumes en France aux XVème et XVIème siècles.

On 4 July, 1989 in Maina Mbacha v. Attorney General the High Court of Kenya appeared to remove itself from its role of enforcing the Bill of Rights of Kenya. The court ruled “inoperative” section 84 of the Constitution of Kenya which grants original jurisdiction to the High Court to enforce Fundamental Rights and Freedoms of the Individual, section 70–83 (inclusive) (Chapter V). The provision was deemed “inoperative” in Kamau Kuria v. Attorney General, and this was upheld shortly thereafter in Maina Mbacha when the High Court found that no rules of procedure had been enacted to enforce the Bill of Rights and dismissed for lack of jurisdiction. Indeed, in the latter case the court dismissed the application for lack of jurisdiction even though the case was before the court by virtue of the constitutional grant of “original unlimited jurisdiction”. As a matter of established law, the court can be approached by any available procedure when ruling to enforce established constitutional rights. Ordinary rights can be defeated for failure to follow procedure, but historically, procedural requirements often defer to constitutionally granted rights. Once the Bill of Rights was enacted in the Constitution, its enforcement became supreme to all other law, including procedural rules, for the supremacy clause of the Kenya Constitution states: “… if any other law became inconsistent with this Constitution, this Constitution shall prevail and the other law shall to the extent of the inconsistency be void”

In the past few years the High Court of Tanzania has produced some bold decisions demonstrating an impressively firm stand by the judiciary in its role of dispensing justice without fear of executive threat or intimidation. Most of these decisions came after the Bill of Rights, enacted into the Constitution in 1984, became justiciable in 1989 and widened the scope of judicial control of executive powers.

Now that it has been in operation for 20 years, it is necessary to reflect on the impact the South African Domestic Violence Act has had on women's lives. This article analyses this key legislation and the police's duty to ensure its proper implementation. It focuses on the reports of the Independent Complaints Directorate and Civilian Secretariat of Police, the bodies responsible for measuring police compliance with the act. The reports identify serious transgressions, highlighting the police's perception that domestic violence is a private affair with which it should not interfere. This perception plays a particularly subtle and destructive role in legitimizing, supporting and permitting violence against women. In focusing on key court decisions in which the state (police) was held financially accountable for the failure to protect women against violence, the author highlights the importance of challenging the social and legal understanding of women's experiences with violence in promoting a system that takes account of those experiences.

Are “traditional” or “indigenous” land rights an obstacle to development? The question seems simple enough. And the liberal economic perspective currently being advanced by free market advocates such as the Bretton Woods institutions answers: yes, to the extent that those traditional relations hinder the free exchange of land, they do slow development. But of course the question is more complex and requires answers to a number of subsidiary and ancillary questions. Some are definitional and empirical: what are these “traditional land rights”? To what extent do they, rather than codified law or administrative practices, define the relationships of social actors and groups to land and to each other through land? Other questions are more hypothetical: what are the alternatives to the current regime, what costs would installing them incur, and what would be their costs and benefits, once in place? Finally, there are ancillary, but still central questions: what other factors, such as ecological conditions, state policies and non-state institutions, may account for development or the lack thereof, apart from land tenure regimes?

The contemporary African international community is afflicted by a linguistic dilemma. On the one hand, the African elites are constrained to accept the imperative of adopting the inherited colonial languages in order to gain easy access to the global international community currently dominated by the linguistic condominium of the erstwhile imperial powers. On the other hand, these African elites, propelled by nationalistic sentiments, express in legal instruments a sanguine hope of promoting their indigenous tongues to the rank of official/working languages, not only on the national, but also on the continental scale. This would appear necessary in order to avoid cultural or linguistic suicide. However, in concept and practice, the whole idea seems to have remained in the realm of myth.

In the period since the Movement for Multi-party Democracy (MMD) was voted into government in 1991 by an overwhelming majority, the Lands Bill, 1994 (hereafter referred to as “the Bill”) easily stands out as the most publicly discussed piece of proposed legislation. When the Bill was introduced to Parliament debate was deferred sine die because most members of Parliament (MPs) demanded more time to examine its provisions and consult over proposed changes. Postponement was followed by a one-day seminar on die Bill organized by the Ministry of Legal Affairs. Thereafter, the government initiated a programme to explain the Bill to the public: on 29 September, 1994, a chiefs' workshop was arranged at Mulungushi International Conference Centre, Lusaka, but this came to nothing because invited chiefs did not attend. Then the government conceived provincial programmes for die public discussion of the Bill, but diese were then postponed indefinitely, as explained below.

It was July 1979 and we were in a small village in northern Mozambique, 1500 km from the capital. In the background I could hear viva's being shouted and drums being beaten but my excitement was of another kind, the cool excitement of an English-trained legal empiricist about to discover facts, in this case, not only facts, but virgin documentary facts. Because right in front of me on the table in the shade of a large cashew tree, lay a big book with heavy binding, and in that book lay the first judgments of one of the first Popular Tribunals to be created in the first revolutionary country in Southern Africa. I had already sat in on the lectures given at the Law Faculty to the young law students who were to constitute small brigades to start what was called the implantation of Popular Justice. I had heard from veterans of the armed struggle for national liberation how the basic principles of this system had evolved in the Liberated Zones even before Independence; how Popular Justice meant justice that was popular in form, in that its language was open and accessible; popular in its functioning, in that its proceedings were based essentially on active community participation; and popular in its substance, in that judges drawn directly from the people were to give judgment in interests of the people.

This article will analyse the legislative provisions relating to financial maintenance for women and children in six countries of southern Africa: Botswana, Lesotho, Mozambique, Swaziland, Zambia and Zimbabwe. These are the six countries involved in the Women and Law in Southern Africa research project, a comparative research project and network of researchers in the region. For the first two-year phase of the project, 1990–1991, the project is studying maintenance laws, their application and administration, and the attitudes, customs and practices which influence maintenance law in the six countries. This article is a background paper for that project, which will by analysing legislative provisions give the researchers in the project an idea of some of the various options for law reform.