On 18 April, 1991, the Republic of Zimbabwe celebrated its 11th year of independence. Coincidentally, just a few months earlier, the 11th constitutional amendment Act was passed. This flurry of legislative activity was the result of a desire on the part of the government to develop a new constitutional structure rather than to remain with the constitution which was essentially imposed upon it by the British during the 1979 Lancaster House conference which eventually led to independence in 1980. The new constitutional model is of considerable interest as it is based upon those operating in many other African nations but, according to the Minister of Justice, is designed to provide safeguards on the exercise of presidential power and to avoid unnecessary conflict and division between the various branches of government. On several occasions, ministers have stressed the autochthonous nature of the new structure and some have indeed suggested that it might form a model for other African countries.

It is the intention of this article to examine the legitimacy of these assertions by analysing both the new constitutional structure and its operation in practice. In order to assess the significance of these changes, it is first necessary to examine very briefly the Lancaster House constitution and constitutional developments in the early years of independence.

The small East-Central African countries of Rwanda and Burundi have been in the news lately because of the extreme violence they have been and are experiencing. While many observers have interpreted these conflicts in strictly ethnic terms, pitting Hutu against Tutsi, they are in fact political: at stake is power, the control over the state as a principal means of accumulation and reproduction of a social class. This struggle in the context of profound destabilization has given rise to extraordinary forms of constitutional engineering, which have attempted to legitimize the assumption of power by small minorities.

This article traces a genealogy of the African Charter on Democracy, Elections and Governance (ACDEG) and examines the charter's overall implementation. While there has always been a struggle between competing views of how to ensure more or less continental accountability for norms related to democratic governance in Africa, enforcement by the African Union (AU) has definitively become more robust since the ACDEG's adoption. The article argues that this development is observable in three trends: continental legalization, technocratization and judicialization of politics. It evaluates the growth of normative commitments in the field of democracy, elections and governance and their increasing consolidation into binding legal treaties; explores the increasing reliance on AU technical assistance in the implementation and interpretation of these instruments; and assesses the expanding role of continental and regional judicial bodies in enforcing commitments to democracy. Building upon a better understanding of these trends, the article identifies key contextual factors that will shape the ACDEG's future implementation.

“Never in my lifetime”: it has always been a risky sentence for political leaders, as the former Rhodesian Prime Minister Ian Smith knows only too well. The astonishingly rapid evolution in Africa today has made the phrase sound almost suicidal. Zaire's President Mobutu, for instance, claimed at the beginning of 1990 that “never in my lifetime will there be multi-partyism in Zaire”; after he was forced to announce the lifting of all restrictions on 9 October of the same year, more than 100 political parties had become active by the beginning of 1991 and Mobutu's own prospects for political survival now seem increasingly slim. He is just one of the many heads of state in French-speaking Africa who have been forced into performing a drastic U-turn during 1990.

Both single party rule and socialism have come under increasing strain over the last year. In Francophone Africa in particular, virtually no country has been untouched by the wave of political reform. A combination of factors accounts for this spectacular evolution.

Affiliation with a political community or entity has throughout history been important for the purposes of protection and belonging. This article discusses the concept of citizenship in Sudan in light of the Sudanese and Southern Sudanese interim constitutions and relevant laws, taking into consideration the international norms in this regard. It also sheds light on the application of the law and possible scenarios when the South becomes an independent nation. It argues that a set of legal rules that organize nationality issues in Sudan and Southern Sudan are inconsistent with general nationality principles and that, if their provisions remain valid until the fragmentation of Sudan becomes a reality, many post-secession violations will be difficult to avoid. It suggests a series of measures that the main parties to the National Unity Government should take to avert such violations and secure peaceful and neighbourly relations in the years to come.

This article examines the practice of the ECOWAS Community Court of Justice relating to the exhaustion of domestic remedies. It argues that the court is wrong to maintain the view that it is not bound by the doctrine, simply because the court's protocol is silent on the point. The author urges the court to reconsider its view in order to align its practice with prevailing customary international law and treaty trends on the exhaustion of domestic remedies in international suits espoused before international courts by or on behalf of individuals.

Albert Hermann Post (1839–95) is an almost forgotten figure in the history of legal anthropology, yet he was the first anthropologist to propose the study of the legal relations of indigenous peoples. His questionnaire is presented here in English for the first time. It was distributed in the 1890s and the answers, from Cameroon, Mali, Western Sudan, Uganda, German East Africa, German South West Africa, Madagascar, and the Solomon and Marshall Islands, were published by Steinmetz in 1903, after Post's death. The questionnaire gives an insight into the state of German anthropology at the time and, however naïve the method, the answers provide in many cases the only written evidence for the period on the societies studied. This article also considers Hildebrandt's reassessment of Post and gives an account of the circumstances leading up to the distribution of Josef Kohler's later questionnaire.

Imagine, as one may well imagine at this time of the day, a chocolate mousse, dark and delectable, or a tempting tiramasu or a perfect pavlova. How are you going to decide which is best? Yes, indeed the actual presentation of the puddings may influence your choice, but to be able to make an informed choice, you would need to taste them. Do you have to make the choice according to your own taste, or do you have to decide which should go best with your menu for your dinner party? If you have to decide which is best, you would have to be able to rank them in relation to other mousses, tiramasus or pavlovas. You need to know the ingredients, and for a professional decision you would need some knowledge of the art of cooking. Proof in the art of cooking, science, and also in law depends on the quantum and quality of evidence or data sufficient to support a conclusion. Loevinger concludes that “[p]roof ultimately depends on the ability of the human mind to make appropriate and useful distinctions and connections among data or items of evidence”.

Geographical indications (GI's) for foods link a quality or characteristic of a product to its locality of origin. GI's usually represent traditional or artisanal knowledge and techniques, yet they are recognized as a form of intellectual property. A GI may propel a food or beverage product from commodity status (blue cheese) into the high value niche or gourmet market (Roquefort cheese) and, consequently, can have a positive social and economic impact on farmers and rural development. African teas, coffees and other special products might benefit from greater international recognition and protection of GI's. Geographical indications are defined in but receive very limited international protection under the WTO Agreement on Trade-Related Aspects of Inellectual Property (TRIPS). Most regulation of GI's in national (e.g., in the Cote d'Ivoire and South Africa) or regional (e.g., the Bangui Agreement and in the E.C.). At the WTO and during the Doha Development Round discussions Kenya, Mauritius, Nigeria and South Africa, among other African countries, have argued for the expansion of the TRIPS rules, as have the E.C. and Switzerland. Ausralia, Japan, and the U.S., several countries in Latin America, and others conside GI's as likely protectionist measures and prefer to rely on trademarks. Each African country must determine whether the potential benefits of GI's—including their positive impact on rural development—sufficiently balance the costs of implementing some form of an international system.

There can be no doubt that British courts have, in general, built up a most impressive record by, and today enjoy a well-deserved reputation for, their sympathetic and intelligent application of those religious or customary laws, evolved by peoples of a culture and background very different from their own, which they have so often been called upon to administer. But there can be no branch of the law in which Muslim peoples who are subject to the jurisdiction of British courts, or courts trained in English traditions, have been made to suffer so many frustrations—by the judicial infusion of alien ideas, by misinterpretation or basic ignorance of the Islamic doctrines, and even by what can only be termed a rigidity of mind which ill-accords with this illustrious tradition—as in the law of waqf.

In 2005 the government of Ethiopia prepared many proclamations, regulations and guidelines dealing with biosafety, traditional knowledge and plant breeders' rights, with a view to implementing the Convention on Biological Diversity (CBD) and the Cartagena Protocol to the CBD on Biosafety (CPB), and to joining the World Trade Organization. In the course of the lengthy negotiations of the Food and Agriculture Organization International Treaty on Plant Genetic Resources for Food and Agriculture, the Ethiopian government decided not to include coffee in the list, annexed to the treaty, of plants covered by the multilateral system of facilitated germplasm flows. The purpose of this paper is to analyse these texts and the potential bargaining power of Ethiopia regarding coffee germplasm transactions, after a rapid description of the general context of seed production and seed markets in Ethiopia. It concludes that policies aimed at improving germplasm and final product quality, and rewarding farmers for their contribution in this process, are paramount.

Expropriation of private land rights involves two contradictory interests: there is a public need for land; and landholders expect security of tenure and protection of their private property rights. A satisfactory expropriation policy must strike a balance between these interests. Legislation must therefore only authorize the government to expropriate land rights for a clear and limited public purpose under the supervision of an independent body. The author argues that Ethiopia's rural land laws have defined the public purpose for the expropriation of rural land rights in different ways depending on the nature of the landholders. For peasants and pastoralists the public purpose requirement is defined vaguely and broadly, whereas for investors the concept is limited to projects implemented by government. The author argues that the protection of private property rights and security of tenure are further undermined by a legislative failure to authorize affected people to appeal to an independent body on the basis that the public purpose requirement has not been satisfied.

Professor Zabel has traced the genesis of the Gold Coast/Lagos Marriage Ordinance of 1884. This article will show the manner in which this Ordinance was to proliferate (subject to modifications in content and application) to all British territories between the Sahara and the Zambesi, with the one exception of the Gambia. The story is a complex one, to which full justice cannot be done in the scope of a single article, and it is also one which throws interesting light on the evolution of colonial legislative policy. It will, for example, be noted that the legislation was not imposed upon the territories as part of any formulated policy for the introduction of English-based marriage law to replace the indigenous customary law, nor was it brought in at the request of the missionaries in their desire to eradicate polygamy; indeed in some territories missionaries were highly critical of its introduction, fearing that it would deter Africans from Christian marriage. In fact, the initial impetus for its introduction came from the administrators in West and East Africa who merely wanted legislation which would get over shortcomings in the received English law, which in particular did not appear to cover marriages between non-Africans who were not British subjects.

This article provides a detailed analysis of the Insider Trading Act, 1998, of South Africa. While it welcomes those provisions designed to proscribe insider trading by creating offences and introducing severe sanctions, it criticizes the Act for doing little to promote the goals of corporate compensation and market efficiency. The article adopts a comparative approach and draws widely on legislative attempts in other jurisdictions to control insider trading.

In assessing customary law two quite contradictory tendencies exist. Some approach customary law deferentially, even reverently. This constitutes “our” law. It expresses “our” values. We must nurture it. Others take precisely the opposite perception. Customary law constitutes the law of primitive tribes; we aim to become modern; ergo, we must do away with customary law. How to choose between these quite conflicting perspectives?

We argue that to understand customary law, we must understand its political economy, that is, the function it performs in existing socio-economic and political structures, particularly with respect to the class interests involved. We undertake here to put forward our understanding of the political economy of customary law in the English-speaking countries of Africa. To do that, we describe, first, the difficulties which require explanation and solution, that is, the poverty and vulnerability of the mass of Africa's people; second, for that poverty, we attempt an explanation, which takes the legal order as the manipulable variable; and, finally, we suggest briefly options for reform and change.

Future developments in the criminal laws of many African countries present a number of problems. The influence of English criminal law throughout the English-speaking areas has been universal: even in southern Africa where the legal systems are founded upon Roman-Dutch law, criminal law is to a great extent English in character.2 It will be seen, however, that English principles when applied south of the Zambezi may undergo metamorphosis as a result of reinterpretation according to fundamental notions of the Roman-Dutch system.

In 1960, the Government made the first modern attempt at a comprehensive and formal statement of Ethiopian private law by promulgating Civil and Commercial Codes.2 An earlier source of private law rules, the Fetha Negast (Law of the Kings) has been part of the Ethiopian legal experience since at least 1686, when it was translated from the Roman-influenced thirteenth century Nomocanon of the Egyptian Coptic Church. There is no evidence that this compilation was ever officially promulgated, and it was often subordinated to “equity” (personal feelings of justice influenced by the need to maintain social harmony) and the territorial application of diverse and unrecorded traditional laws.3

Access to affordable, reliable and sustainable energy is a pre-condition for sustainable economic development. This is the case in South Africa, where the workforce and entrenched fossil fuel industry remain sceptical about a transition to renewable energy. This article explores the complexity of energy regulation in countries with a deep-seated economic dependency on fossil fuels. South Africa presents a good case study of the challenge of balancing the environmental, social and economic imperatives of energy. It unpacks the drivers behind directed regulation towards renewable electricity. A painful, but necessary, “just transition” to a low-carbon economy requires laws to phase-out fossil fuels, without exposing public funds to private profit seekers. The South African experience of renewable electricity demonstrates the challenges of regulatory uncertainty. Careful legal reforms are necessary to rid existing electricity laws of their inertia and achieve a low-carbon economy while ensuring access to affordable, reliable and environmentally sustainable energy.

The South African public procurement system is regulated by a constitutional framework and legislation applicable to all tiers of government. An interesting feature of the system is that suppliers may be excluded from government contracts for breaches of procurement or anti-corruption legislation. This article critically examines corruption-related exclusions. It is suggested that there is likely to be a number of problems with the implementation of these exclusions. First, it is not clear how effective they will be in meeting the government's anti-corruption policy. Secondly, in respect of the exclusions imposed through a non-judicial process, there are no guidelines to ensure procedural safeguards, and furthermore, these exclusions may lead to delays and costs in the procurement process – especially when it comes to deciding whether persons or firms related to an excluded firm ought to be excluded. Thirdly, there are issues regarding proportionality of the measures. Fourthly, it may be difficult to maintain a consistent approach in deciding whether to exclude under the non-judicial exclusions. In view of these, for the regime to be effective, the South African government must be prepared to bear the attendant financial and procedural burden.

The primary function of the Organization for the Harmonization of Business Law in Africa (OHADA) is to modernize and harmonize the business laws of member states. The wider objective of OHADA is to attract foreign investment into the OHADA zone and to achieve economic integration in Africa as whole, as other African countries join OHADA. However, article 42 of the treaty establishing OHADA stipulates that French is the working language of the organization. This paper argues that this provision does not facilitate the goal of economic integration in Africa and that in one member state, Cameroon, article 42 presents serious constitutional and human rights difficulties. The paper suggests that article 42 should be amended in order to make it easier for key OHADA objectives to be attained and in order to remove the serious problems created in Cameroon.