Commercial exploration and exploitation of Nigeria's petroleum resources began in 1956 when large deposits of hydrocarbon were discovered at Oloibiri in the present Rivers State of Nigeria. Since the delivery of the first consignment of crude oil to Europe in 1958, activities in Nigeria's oil industry have witnessed a dramatic increase. As the sixth largest producer in OPEC, Nigeria contributes nearly two million barrels of crude petroleum to the global oil market. Petrodollars from the sale of crude oil in the last four decades have brought a phenomenal change in the country's economy. Ironically, the oil industry, which has brought development to many parts of Nigeria, has become a source of misery to the people of oil-producing communities whose existence is now threatened by the scourge of oil pollution.

This article examines the right to self-determination and the various constitutional mechanisms that can be used to accommodate cultural diversity. Using the South African and Ethiopian constitutions as case-studies, it concludes that it is possible to respect the principle of equality and the right to identity of "population groups" in a way which will pre-empt calls for external self-determination, and it suggests that the mechanisms used in these two countries may serve as a model elsewhere in Africa and beyond.

In Botswana, as in several other African countries with a similar historical experience, a dual or plural land tenure system was carried over from the colonial era. The bulk of the land falls within the category of “tribal land”. It is predominantly held and occupied by indigenous peoples under customary notions of land tenure. The State also holds as “State land” a fairly significant proportion which fell under the category of “Crown lands” during the colonial era. A tiny proportion now falls within the category of “freehold land”. This is predominantly held and occupied in conformity with common law notions and conceptions imported into the country with colonial rule. To some extent both State land and freehold land are held under or governed by “received law”, in contradistinction to tribal land which is largely held under customary law.

In 1968, barely two years after independence, the Botswana parliament enacted legislation which attempted to reform customary land tenure by replacing existing customary or tribal institutions of land control and administration with statutory land boards. These started operating in 1970, and it soon became apparent from early assessments that even this limited and cautious programme of reform would not escape some of the problems associated with land transformation exercises elsewhere in Africa.

In this paper I discuss some aspects of the relationship of African customary law to the economy. Such a vast topic potentially embraces at least three different themes: the economic context in which African customary law has developed and operates today; the economic consequences and implications of different African customary laws; and the relationship between customary law and the economic aspect of society. These three themes inevitably overlap, but while recognising their interconnections I shall concentrate primarily on the third. My principal aim is to identify some of the linkages between customary law and economic relations, especially those linkages which become manifest during broad social changes.

An examination of the relationship between customary law and the economy in Africa almost ineluctably requires an historical perspective. This is so, first, because, as I suggest later, customary law is historically specific: it developed in particular historical circumstances and in close conjunction with the formation of the colonial state. Thus, the foundations of customary law in Africa lie partly in the development of capitalism and its expansion from Europe during the colonial era. These interrelated processes have decisively moulded and subtly shaped the law, legal institutions and legal professions of contemporary Africa.

More generally, however, it is essential today to envisage the possibility of new, alternative forms of development and social regulation. The particular forms of legal pluralism which characterise third world countries indicate, in many cases, that the subsumption of African economies within capitalist relations of production and exchange has thus far been merely partial and formal.

Compulsory acquisition of land by the state for public purposes is an entrenched feature of national constitutions. Yet the scope of private property is rarely defined. This is problematic in agrarian economies where millions own land under non-statutory arrangements that were historically excluded from recognition as property. This study examines the case in Africa where more than 650 million people are untitled customary landowners. Despite vibrant constitutional change, protection of these rights remains disappointing, while the grounds for taking land have expanded. However, this article concludes that reining in the scope of public purpose is not the most useful way forward. It would be more productive to persist in bringing constitutional force to bear on the standing of customary rights, along with democratizing procedures towards full community participation in deciding how public purpose acquisitions should proceed. The result would be greater tenure security, good governance and more peaceful relations between the state and people regarding land.

The development of strategies for the conservation and wise use of wetlands in Uganda is significant for what it reveals about how law contributes to the sustainable management of natural resources in poor countries in general. The highly inter-disciplinary and cross-sectoral management requirements of wetlands make this issue one of the most challenging, and wetlands constitute today the single most important environmental issue being addressed by the Ugandan government. As part of this effort, the legal frameworks for property rights and local government are being overhauled so as to provide a sounder basis for environmental management in this field. This article analyses the Ugandan approach to wetlands management and the role of property rights and local government in the environmental policy-making process.

The object of this paper is to show how far the Common Law has in the course of its adoption in Africa lost this distinctive feature, to indicate some of the reasons for this loss, and to describe the institution which has taken its place in criminal trials upon indictment.

In recent times, compensation arising from oil spills has assumed a significant role in the Nigerian oil industry. The significance stems from the fact that, with petroleum operations spillage is inevitable. Oil spills have various effects on the health of the populace as well as the economic and scenic value of the environment. Thus there is the need to minimise the effect of the occurrence of oil spill. One way of achieving this objective is through compensation. The essence of compensation is to make amends for the loss suffered by the victims. In making these amends, the loss experienced by the victim must be recompensed otherwise the compensation cannot be said to be adequate or equivalent to the compulsory sacrifice.

Victims of oil spill have claimed that the compensation paid to them is unreasonable and cannot be said to be recompense for their loss. Oil companies on the other hand claim that the compensation paid to the victims is adequate and that they operate within the parameter approved by the Inspectorate Division of the Nigerian National Petroleum Corporation or the State Ministry of Lands. Apart from this, many claims made by the communities are not honoured by the oil companies on the grounds that they are spurious and speculative. Even when the claims are genuine the oil companies may not pay if the spillage occurred as a result of acts of sabotage.

When the Commission on the Law of Marriage and Divorce in Kenya presented its Report in 1968, the basic scheme of its proposals, and the draft Bill it had prepared for the reform and integration of the laws, were widely welcomed and it has been a disappointment to many—not least, it may be supposed, to the members of the Commission—that four years have passed without those proposals having been translated into statutory form in Kenya. It is a little ironic, though no doubt an interesting example of East African inter-dependence, that the essential basis of those proposals, and indeed in many respects the detailed draft provisions which accompanied them, have now been given their first legislative effect not in Kenya but in Tanzania.

This paper is a critique of the policy-making process and the particular policy choice made by the Central Bank of Nigeria with respect to the recent increase in the minimum share capital requirement for Nigerian banks. The article questions the apparent prioritization by the Central Bank of banking supervision – important though it is – over macro-economic stability. It also draws attention to serious public law issues (breach of monetary law and abuse of power) and the private law implications (conflicts of interests, scheme of arrangement defects, and negligent valuations) of this policy-making episode and policy choice.

Plant variety protection has come to the fore in the wake of the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). TRIPS generally imposes the patentability of inventions, whether products or processes, in all fields of technology and specifically mandates the introduction of a form of legal protection on plant varieties. Article 27.3(b) thus states that member states “shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.”

KUFUOR, KOFI OTENG, The collapse of the Organization of African Unity: Lessons from economics and history, Journal of African Law, 49, 2 (2005): 132–144

This paper argues that the analytical tools of the New Institutional Economics (NIE) School provide fruitful lines of inquiry into the decision to replace the Organization of African Unity with the African Union. The application of two NIE methodologies, economics and history, do explain why the OAU had failed to play a meaningful role in African affairs. Relying on economic tools, the paper explores issues relating to monitoring of the members' commitments, the provision of public goods, decision-making, and membership of the OAU. Historical approaches seek to explain why the OAU remained as Africa's paramount regional organization for four decades despite the obvious flaws in the OAU's design and the consequent inefficiencies these flaws produced.

The African Union Convention on Preventing and Combating Corruption, which was opened for signature in 2003, contains some innovative and valuable provisions, but also several unacceptable provisions that violate the presumption of innocence, make it too easy to disregard data privacy and threaten good-faith whistleblowers, among others. In addition, the translations are unsatisfactory, to the point that the texts in different languages are significantly different in substance and sometimes contradict one another. Parts of the English text are almost unintelligible. The Convention should be revised before it enters into force.

This is the first judgment from the African Commission on Human and Peoples' Rights to address the rights of indigenous peoples and their claims to land and natural resources. It is also the first ruling by an international tribunal which finds a violation of the right to development. The Commission examined the Kenyan government's eviction of the indigenous Endorois community from their ancestral land around Lake Bogoria to establish a game reserve. Finding violations of the rights of the Endorois to religion, culture, property, natural resources and development, the Commission called for the recognition of Endorois ownership of their ancestral land and its restitution to the community. This case note describes the Commission's legal analysis of the Endorois case and explains how the decision establishes an important precedent for ensuring equity and participation in natural resource management and development on indigenous lands.

CHIRWA, DANWOOD MZIKENGE, A full loaf is better than half: the constitutional protection of economic, social and cultural rights in Malawi, Journal of African Law, 49, 2 (2005): 207–241

The last two decades have seen a new wave of constitution-making in Africa as many countries changed from autocracy to democracy. Malawi followed the trend by adopting a new Constitution in 1994 to mark the end of a 30-year, dictatorial one-party regime. This Constitution breaks with traditional constitutions by recognizing economic, social and cultural rights. However, few of these rights are entrenched in the Bill of Rights as justiciable rights. The rest are enshrined as unenforceable principles of national policy. These provisions and the jurisprudence they have generated thus far are discussed critically. It is argued that while the Malawian Constitution deserves acclaim for recognizing these rights, the model adopted for protecting them fails to give full effect to the notion of the indivisibility of all rights and is not good enough for a poor country, which is also in transition to democracy. Not only was Malawi's choice of this model not preceded by a careful and reasoned examination of the existing models and the local circumstances, it was also made without wide public consultations. The ways, based on the existing constitutional provisions, in which the protection of these rights can be improved are explored.

The revised version of the Cotonou Agreement that sanctions relations between the European Community (EC) and African, Caribbean and Pacific States (ACP) has been endorsed for a further five years. The new agreement contains a chronicle of changes that are significant. This research comment identifies a number of issues where novel provisions have been introduced into the text of the first agreement signed on 23 June, 2000. The new text contains innovations that relate to security, political dialogue, transparency, money and social responsibility. The security clauses include an express commitment by the partners to combat terrorism, the proliferation of weapons of mass destruction, as well as mercenary activities. In addition, adherence to the jurisdiction of the International Criminal Court is explicitly encouraged. Changes regarding political dialogue and transparency pertain to the increase in the time allotted for political consultation in the event of a serious case of violation of the articles proscribing political excesses and gross financial impropriety. In terms of development money, the list of potential beneficiaries has been widened. However, the net effect of the preceding statement may be obviated by the extensive oversight the EC Commission now has to control the use of funds. Provisions relating to structural reforms have been tempered to reflect the special needs of post-disaster stricken least developed countries. The latter reforms are equally in consonance with the partners' increasing consciousness of the fact that structural adjustment cannot be decoupled from social responsibility. In general terms, the revised Cotonou Agreement strengthens the power asymmetries in the relations.

The quite complex problems of human and group survival in Africa do not easily lend themselves to diagnosis or solutions within the human rights frame of analysis. There are several reasons for this. Some arise from the recent and not–so–recent history of the continent, others are associated with the foundations and formulation of the human rights framework itself, and the rest with the orientation of those governments, individuals, and organizations involved in or entrusted with translating the promises of human rights into human reality. The invidious dichotomies within human rights discourse between civil, political, economic, social, cultural, and collective (solidarity) rights or the so–called “categories” or “generations” of human rights, with the attendant and implicit hierarchy among these categories of rights, fails to resonate with most people around the continent for whom contact with the state is a frightening prospect that defies such convenient intellectual categories.

There have been notable legislative advancements, as well as improvements in corporate governance codes, aimed at protecting stakeholder rights. However, how much protection have they really afforded stakeholders against socially irresponsible corporate behaviour? This article undertakes a comparative analysis of the legal framework underlying South Africa's stakeholder-inclusive approach and Nigeria's environmental, social and governance or sustainability corporate reporting. It identifies a misplaced philosophical background as well as policy misalignment of corporate governance codes and primary corporate law as critical factors that undermine efforts to embed responsible corporate behaviour in order to safeguard the interests of qualified and legitimate stakeholders. It recommends specific amendments to address the ideological defect and align corporate governance codes with primary corporate legislation in these two countries.

This paper is concerned with the relationship that exists between Customary and Common law in Botswana. Does it promote conflict or concord? This will be explored with reference to the general relationship between the two systems and in the particular context of marriage, divorce and division of property. One may argue for the conflict approach if one views the systems as ppositional or one may argue that there is concord by acquiescence, given the subordinate position occupied by Customary law within the national legal system of Botswana. The aim of this paper is to do neither, but rather, to show that “duality” with its implications of separateness is inappropriate, that the two systems are linked and have a symbiotic relationship, one which involves a process of mutual adaptation. The aim of this paper is to show that any conflict or concord that exists should not be defined in terms of systems viewed as independent isolated units or in terms of labels such as “Common” or “Customary” law but rather in terms of values which relate to mode of life and attach themselves to certain kinds of property. Within the national legal system of Botswana Customary and Common law co-exist. Customary law is defined as being “in relation to any particular tribe or tribal community the customary law of that tribe or tribal community so far s it is not incompatible with the provisions of any written law or contrary tomorality, humanity or natural justice”.

A realistic assessment of the part customary law can be expected to play in the developing legal system of an African state must depend upon the availability of detailed information as to the way in which this body of law is now responding to the problems associated with changing social and economic conditions. Information of this kind can only be obtained through the study of actual disputes and the procedures followed in their settlement. Curiously, lawyers interested in customary law have on the whole neglected such an approach, concentrating their energies upon the discovery and systematic organisation of abstract rules purporting to constitute the legal norms of the society under investigation. Moreover, the method of research followed in most instances has been to question groups of informants assumed, to be knowledgeable about customary law, rather than to search for norms directly in the raw materials provided by the law in action, and this approach has inevitably insulated the investigator still further from actual disputes and the agencies involved in their settlement. Had the only means of finding out how disputes were actually settled been to sit and watch them in progress, lawyers might have been excused for leaving that to the anthropologists. But such information is widely available through other means: informants can be persuaded to reconstruct actual disputes from memory instead of racking their brains for abstract rules, and accounts of such disputes canbe found in the written records kept by many customary courts. This latter source, particularly, seems to merit more serious attention than lawyers have been prepared to give it in the past, and it is with it that this article is concerned. Drawing upon customary court records, it is hoped to illustrate both what this source consists of and the manner in which the customary family law of a single Tswana tribe is developing.