It has partly been assumed that the constitutional obligation to pay compensation for expropriations is to blame for the slow pace at which land has been redistributed in South Africa. However, this assumption requires careful analysis and reflection, with reference to the imperfections of the policies and laws that set out to address landlessness, as well as the underlying theoretical approach to economic justice. This article questions the purpose for which land reform beneficiaries acquire land, with reference to the role that property should ideally fulfil for the landless. The article makes a number of observations to cast light on why the redistribution of land has been alarmingly slow, where inconsistencies and loopholes exist in the programme, and whether expropriations for nil compensation will make any difference in remedying existing failures in the redistribution programme.

Parties find it difficult to determine which Nigerian High Court should intervene in the appointment of arbitrators due to conflicting judicial precedents. This perennial challenge has defied any legal solution. Considering relevant case law, this article examines the Arbitration and Conciliation Act (ACA) vis-à-vis the Nigerian Constitution. The main argument is that the Nigerian Constitution read alongside the ACA confers the Federal High Court with additional jurisdiction to appoint arbitrators regardless of which court has jurisdiction concerning the underlying dispute. There are also uncertainties regarding the intervention jurisdiction of Nigeria's National Industrial Court to appoint arbitrators. Currently, no other court can exercise intervention jurisdiction in employment disputes. This article analyses recent decisions of the National Industrial Court and argues that this Court can only intervene to appoint arbitrators where both parties request the appointment in a pending action before the Court. It is also argued that decisions concerning the appointment of arbitrators through judicial intervention can be appealed.

The recent Supreme Court of Appeal (SCA) judgment in Lazarus Mbethe v United Manganese of Kalahari raises jurisprudential questions regarding statutory derivative actions in South Africa. For example, the SCA did not agree with the court a quo's ruling that the discretion to be exercised by the court is limited by provisions of section 165(5). The SCA also questioned whether it is necessary for South African courts to follow the good faith criterion in the Australian case of Swansson v Pratt as adopted into South African law through Mouritzen v Greystones Enterprises (Pty) Ltd & Another. This article contributes to these questions, and proposes possible criteria for other requirements in section 165(5)(b) of the Companies Act 71 of 2008. These other requirements are that the statutory derivative action proceedings must involve “a trial of a serious question of material consequence to a company” and that proceedings be “in the best interests of the company”.

Over the last several decades, states have demonstrated significant political commitment towards advancing protection and assistance for internally displaced persons. A notable form in which this commitment has been reflected is in the emergence of normative standards, with the UN Guiding Principles on Internal Displacement (UNGP) as the guiding text. The fact that the UNGP framework has found expression in the landscape on internal displacement is evidenced at various levels of governance. Within the African context, the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) draws on pertinent normative frameworks, with the UNGP as the leading framework. While this point is often made in general terms, this article focuses on the extent to which the norm on internal displacement has diffused and expanded within the African context.

In 2019, the African Commission on Human and Peoples’ Rights adopted General Comment No 5 on the African Charter on Human and Peoples’ Rights: The Right to Freedom of Movement and Residence (Article 12(1)). In this general comment, the commission elaborated on the right to freedom of movement and residence within state borders. This issue, while explicit in international human rights law, is a challenge within various jurisdictions, including in Africa. This article provides a background to and commentary on General Comment No 5, leveraging on the insight of the authors, who participated in its drafting. Unlike the UN Human Rights Committee's earlier general comment, General Comment No 5 provides detailed guidance on the internal dimension of the right to free movement and residence. As “soft law”, its persuasive force depends on a number of factors, including its use at the domestic level, its visibility and its integration into regional human rights jurisprudence.

This article considers the protection of, and assistance for, internally displaced children (IDCs) in Africa. Internal displacement has become one of Africa's most pressing human rights challenges. Over the last decade, millions of persons have been internally displaced on the continent by conflict, disaster and other causes. Children are one of the most affected categories of persons, given the implications of displacement for them. Article 23(4) of the African Charter on the Rights and Welfare of the Child incorporates specific protection for IDCs. This article examines the protection of IDCs in the context of this regional framework. It argues that, while article 23(4) requires that both refugee children and IDCs should be accorded the same protection from a rights-based perspective, it also requires that the protection of IDCs should be construed with reference to the Kampala Convention, which is the most recent applicable regional regime governing internal displacement.

The protection of refugees languishing in camps in Africa has posed a challenge for the international community for far too long. The OAU Refugee Convention does not reflect refugee rights or provide a durable solution for refugees in host states. Over the last 50 years there have been multiple attempts to resolve what remains one of the greatest challenges facing Africa. Each resolution has clarified the steps required to enhance the situation for those most affected and to provide solutions for refugee-hosting countries in need of strategic policies and funding. This article considers recent developments in refugee law since the adoption of the New York Declaration. It specifically evaluates the benefit of the Global Compact on Refugees (GCR) for African states and the refugees they host. Furthermore, because the OAU convention is the first refugee convention to make international solidarity (ie burden-sharing) a state obligation, the article assesses how the GCR builds on the convention.

This article traces the contributions of African states to the development of international refugee law and explores the role African human rights supervisory bodies have played in the interpretation and application of this field of law. While Africa's contributions to international refugee law are often overlooked, this article sets out to identify Africa's involvement in the drafting process of the UN Refugee Convention and its 1967 Protocol. It also explores the legal framework for refugees in Africa, in particular the OAU Refugee Convention and the Bangkok Principles on Status and Treatment of Refugees, and the extent to which these two instruments have enriched international refugee law. The article argues that some of their provisions may provide evidence of customary rules of international law. Lastly, it examines some of the authoritative pronouncements made by African human rights supervisory bodies, in so far as they adopt a progressive approach to interpreting the rights of refugees and asylum-seekers.

This article argues that xenophobic acts towards black foreigners remain a human rights challenge in South Africa. Foreign nationals, mostly black Africans, continue to experience physical attacks, discrimination and looting of businesses, as well as targeted crime. Prevalent xenophobic attitudes continue to trouble the conscience of all well-meaning South Africans. There is ample evidence that xenophobia has morphed into afro-phobia, the hatred of black foreigners. Xenophobia continues to evolve and attackers are increasingly linking the presence of foreign nationals to socio-economic challenges facing the country. This article argues that, even though South Africa's Constitution does not expressly identify Ubuntu as a national value, it does recognize customary law and many of its provisions are anchored in Ubuntu philosophy. This article proposes Ubuntu, or African “humanness” whose “natural home” should be located in South Africa, as a pragmatic social intervention and a morally sustainable solution to address xenophobia that would be acceptable to both South Africans and foreign nationals.

Arguably the least discussed root cause of internal displacement, harmful practices are a prevalent concern in many African societies. The explicit mention of harmful practices is one of the many innovations of the Kampala Convention and reinforce its forward-looking, context-specific focus on Africa. This article argues that the convention has an absolute prohibition of harmful practices. This is an important starting point from which to discuss the content of states’ obligation to set measures for preventing harmful practices. However, in the event that displacement occurs due to these practices, it is important that protection, humanitarian assistance and durable solutions are provided. This article argues that states must set measures for ensuring that non-state actors are held accountable in the event that they orchestrate harmful practices. In fostering compliance, this article argues that there is an important role for institutions beyond the state, particularly those emphasized under article 14 of the convention.

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.

This article discusses the challenges affecting the achievement of financial inclusion for the poor and low-income earners in South Africa. The concept of financial inclusion could be defined as the provision of affordable financial products and services to all members of the society by the government and/or other relevant role-players such as financial services providers. This article identifies unemployment, poverty, financial illiteracy, over-indebtedness, high bank fees, mistrust of the banking system, lack of relevant national identity documentation and poor legislative framework for financial inclusion as some of the challenges affecting the full attainment of financial inclusion for the poor and low-income earners in South Africa. Given these flaws, the article highlights the need for the government, financial institutions and other relevant stakeholders to adopt legislative and other measures as an antidote to financial exclusion and poverty challenges affecting the poor and low-income earners in South Africa.

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.

The African Charter on Democracy, Elections and Governance requires state parties to establish and strengthen democratic institutions, the rule of law, human rights and independent electoral systems. However, the extent to which these provisions can be invoked by individuals and non-governmental organizations before a court of law is uncertain. It is also unclear whether such provisions guarantee “stand-alone” individual rights and as such whether the charter could be considered to be a human rights instrument. This article seeks to analyse whether the charter is a human rights instrument, as well as examining its justiciability in light of the decision of the African Court on Human and Peoples’ Rights in APDH v Côte d'Ivoire. The analysis highlights the court's decision affirming that the charter is a human rights instrument and that individuals and non-governmental organizations can file cases in a court of law seeking its enforcement.

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.

The adoption of the African Charter on Democracy, Elections and Governance (ACDEG) has been a milestone for the transformation of Africa's political landscape. This instrument seeks to expand on the ideals of liberal democracy enshrined in the Constitutive Act of the African Union and other African fundamental instruments. The ACDEG seems to pave the way for the right to democracy for Africans, which entails, inter alia, political sovereignty of African citizens. The latter have clearly and vigorously exercised their sovereignty through elections when given such an opportunity. However, in some instances, African citizens resorted to popular uprisings in cases of gross violations of their democracy-related rights. With reference to the recent popular uprisings and coups (or attempted coups) in Africa, this article enquires, from a human rights perspective, whether ACDEG or other instruments, enshrine a right to resist gross undemocratic practices underpinning the right to democracy.

According to various provisions of the Protocol Establishing the African Court on Human and Peoples’ Rights, the court has jurisdiction over the interpretation and / or application of human rights instruments ratified by the states concerned. This article considers whether, in terms of those provisions, the African Charter on Democracy, Elections and Governance (ACDEG) is a relevant human rights instrument over which the court can exercise its jurisdiction. It aims to consider the contours of the main question posed and clarify the relevant aspects in light not only of the court's jurisprudence but also of the overall legal framework of the African Union. In this regard, before drawing appropriate conclusions, it addresses three main questions. What is a human rights instrument? Which elements in the ACDEG clearly relate to human rights? And, what is the court's approach on the issue?

A growing number of states have modified constitutionally determined presidential term limits or adopted a flexible interpretation of relevant constitutional provisions to allow incumbent leaders additional terms in the highest office. This article investigates African Union (AU) responses to attempts to overturn or weaken term limits on executive power, one of the most tenacious constitutional trends in Africa. Inspired by the AU's well-established discourse on “unconstitutional changes of government” under the African Charter on Democracy, Elections and Governance, the article frames the manipulation of presidential term limits as “undemocratic changes of the constitution”. From this perspective it argues for a more active role for the AU in monitoring and enforcing constitutionalism and respect for democratic standards by member states when they amend their constitution. It concludes with a tentative set of principles to guide processes of constitutional change in Africa.