The prominent place given to decentralization in the design of post-1990 African constitutions has been likened to a silent revolution. This is not surprising, for sharing power has been anathema to post-independence African leaders, who have striven to personalize power and concentrate it within a privileged clique in the capital city. This article assesses the nature and significance of the increasing trend in Africa towards constitutional entrenchment of decentralized forms of government. It examines the concept of decentralization and its manifestations in contemporary African constitutional design. It provides an overview of the extent of the constitutional entrenchment of decentralization in African practice, and then considers the rationale for, and possible implications of, this process. From an analysis and comparison of emerging trends, it argues that only a formally and constitutionally entrenched decentralization framework can ensure that the process is effectively implemented and is not dependent on the goodwill of the central government.

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.

Given the need for legislation to protect internally displaced persons, African Heads of State and Government adopted the Convention on the Protection and Assistance of Internally Displaced Persons in Africa in Kampala in October 2009. The convention, which entered into force on 6 December 2012, is an important binding instrument on internal displacement. Article 10 of the convention requires states to prevent displacement caused by development projects, including climate-based development projects. This article examines the content of this obligation within the context of climate-based development projects.

Kenya's 2010 Constitution marks the first time that treaty law has been constitutionally declared part of Kenya's domestic law. However, the laconic drafting of the relevant provision leaves unanswered questions about the role of treaties. This article seeks to answer some of those questions, addresses conflicts between treaties and other laws, and concludes that treaties can be directly enforceable in domestic law unless they are expressly non-self-executing. Furthermore, domestic courts must apply treaties in accordance with the constitution, although the article also addresses the problems that this causes with article 103 of the UN Charter and the East African Community Treaty. Treaties that are applied directly domestically should be considered at a par with statutes enacted by the national Parliament and prevail over county laws. Human rights treaties should carry greater weight than conflicting statutes. Where a treaty is implemented into domestic legislation, the “parent” treaty should prevail where there is a conflict.

This article examines the themes emerging from the engagement of African states with the Universal Periodic Review (UPR) mechanisms of the UN Human Rights Council. The underlying principles of universality, cooperation and dialogue that guide the review have given African states a renewed sense of engagement with the international human rights institution. Despite the universality of the process, regionalism and cultural relativism are important aspects in the engagement of African states with the UPR mechanism. This article considers the extent to which regionalism and cultural relativism may prevent UPR from acting as an effective mechanism for human rights enforcement. It examines the potential for UPR to complement other national, regional and international human rights mechanisms, and the danger of state ritualism. These have ramifications for the extent to which UPR can achieve its goal of improving the human rights situation on the ground in Africa.

With the growing globalization of financial markets comes the need for regulatory convergence as well as standardization of the enforcement of the regulatory environment. Aligning regulatory approaches is crucial in empowering market players to maximize the regulatory benefits provided by foreign jurisdictions and platforms. Attaining that objective necessitates an understanding of the existing regulatory setting by comparing the approaches adopted by different jurisdictions. This article seeks to understand the strategies and mechanisms adopted by two of the most strategically linked nations within the BRICS bloc, China and South Africa, regarding insider trading regulation and its enforcement. What emerges suggests that, while these jurisdictions recognize the threat that insider trading poses to the integrity of their markets, they face serious resourcing and political challenges that weaken regulatory and enforcement efforts aimed at reducing incidence of the offence.

The South African Constitution recognizes the use of 11 official languages within “provincial” and “national” government on the basis of “parity of esteem”. However, it does not specifically refer to the recognition and use of language in tribunals. Any perceived attribution is couched in generic terms that are open to interpretation, as evidenced in the cases of Matomela, Damoyi and Pienaar. The employment of a single language policy in court proceedings, as advocated in Matomela and Damoyi is probably the most sensible, pragmatic and plausible language policy imaginable. Such a position would be desirable to ensure speedier and simpler proceedings. However, it would, as argued in Pienaar, not only accord primacy and prominence to a single language, but would operate contrary to the spirit of plurality, multilingualism and inclusivity, which forms the bedrock of the current constitutional dispensation. Meanwhile, the dominance of English and (to a lesser extent) Afrikaans continues almost unabated, despite the principles of inclusivity championed by the Constitution.

This article focuses on the appointment of judges in Malawi. It explores the constitutional provisions governing judicial appointments and finds that the system established by Malawi's Constitution has manifest weaknesses. For example, the composition of the Judicial Service Commission (JSC) is narrow and not representative of Malawian society; there are also no procedures for the JSC to follow in its operations. The article argues that the system for appointing judges has a bearing on the eventual character and integrity of the judiciary itself, hence it is important to align it with the constitution's ideals. In conclusion, the article makes recommendations for improving the system, including by broadening the JSC's composition, adopting a law to stipulate clear and transparent procedures for the JSC and also curbing presidential powers in relation to judicial appointments.

Security challenges have continued to trouble governments internationally. From the Islamic State terrorists in the Gulf region, to the murderous activities of Boko Haram and “herdsmen” in Nigeria in recent times, it has become imperative for those entrusted with maintaining security to redefine the conditions of national security. In this context, it is now conventional for various governments in Nigeria to appropriate enormous amounts of money in their budgets for “national security” (“tagged security vote”). This article explores the emergence, configuration, constitutionality and abuses of security votes in Nigeria. It also explores the appropriation and expenditure of security funds in the USA and attempts to draw lessons from this jurisdiction. It argues that there is a robust connection between security votes and corruption and, thus, attempts to identify legal structures for preventing the misspending and embezzlement of public funds (security votes) in the country's monetary appropriation and expenditure.

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.

This article examines a recent decision of the Nigerian Court of Appeal that essentially pronounces that, in respect of oil spill litigation in Nigeria, statutes of limitation are inapplicable to the federal law that creates the basis for oil spill compensation claims. This decision has dire consequences for the Nigerian oil and gas industry. The article finds this decision not only bad for public policy but actually based on very faulty reasoning and contradictory of an earlier decision of the Court of Appeal that was not considered. The article concludes that, despite this decision being the most recent, lower courts in Nigeria are not bound to follow it.

The quality of judicial support and respect for the principle of minimum intervention are crucial factors in assessing whether a jurisdiction is attractive for arbitration. While there have been efforts to present Nigeria as an arbitration-friendly jurisdiction and an attractive arbitration venue, questions remain about the adequacy, effectiveness and certainty of legal rules concerning arbitration in Nigeria. There are also questions about the quality and efficiency of judicial support for arbitration in light of some judicial decisions affecting arbitration that have generated controversy. Through a careful analysis of key statutory provisions and judicial decisions, this article analyses support for arbitration in Nigeria in respect of selected topics, including party autonomy, upholding arbitration agreements (especially concerning the stay of judicial proceedings), the stay of arbitration proceedings and third party intervention. The article identifies scope for improvement in statutory and judicial approaches. It makes suggestions concerning both judicial approaches and reform of the statutory regimes.

Technology-driven payment instruments and services are facilitating the development of e-commerce; however, security concerns beleaguer their implementation, particularly in developing countries. This article considers the limits of private ordering in the regulation of e-payment systems. It uses Nigeria to exemplify a developing country that is increasingly pushing for the adoption of a regulatory framework for e-payment systems based on private ordering. It argues that, although technical standards and self-regulation by the financial industry are important, law is an essential regulatory mechanism that is largely absent. The article proposes that law be used as a mechanism to set and compel compliance with technical and industry standards, thus building trust, catering to public interest concerns and legitimizing the regulatory process.

The wording of article 47 of Kenya's Constitution of 2010 is almost identical to that of the section 33 rights to just administrative action in South Africa's 1996 Constitution. Like section 33, article 47 mandates the enactment of legislation to give effect to these constitutional rights, and Kenya's Fair Administrative Action Act 4 of 2015 was strongly influenced by the equivalent South African legislation, the Promotion of Administrative Justice Act 3 of 2000 (PAJA). South Africa can thus be regarded as a sort of laboratory for Kenyan administrative justice. The aim of this article is to highlight some of the South African experience in relation to section 33 and the PAJA in the hope that Kenya will learn from some of South Africa's mistakes. It argues that the Kenyan courts should avoid following the example of their South African counterparts in allowing their mandated legislation to become almost redundant.

Applicable statutes give Nigerian courts discretion to achieve fairness in marital property readjustment. Ironically, the courts’ approach has often been to adjudicate on the basis of formal title, resulting in a general failure to make any readjustments. This article offers two alternative explanations for this judicial behaviour: absence of a specific statutory marriage-centred definition of matrimonial property; and the courts’ failure to appreciate the implicit matrimonial property regime revealed by a perspicacious interpretation of the statutes. These factors lead the courts to exercise a title-finding jurisdiction instead of an adjustive one. This conservative approach results in the courts exercising an exclusionary prescription of property. These flaws ignore the socio-cultural underpinnings and environment of marriage that support patriarchy in Africa and generally “disable” women in relation to property rights. Sample court cases support this thesis and underscore the need for a statutory definition of matrimonial property, with marriage as its denominator.

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 domestication of child-related treaties is not a straightforward process in Nigeria. Unlike treaties with another thematic focus, the majority of constituent states must give their full consent before any child-related instrument may be domesticated at the federal level and subsequently re-enacted in the domestic states. In many ways, the plural legal orders in the country and the differing perceptions of childhood make consensus difficult to achieve in terms of child rights legislation. In this regard, even though the UN Convention on the Rights of the Child has been domesticated (through a contestable procedure), 11 of Nigeria's 36 constituent states have failed to re-enact the domesticating instrument. This study elaborates on this problem, and then examines some instruments that are not affected by the domestication challenges and may offer useful protection to children with regard to certain sectoral aspects, especially child labour and child trafficking.

Drawing on ethnographic research, this article reflects critically on the current involvement of the Cameroonian state in witchcraft accusations. Unlike other African states where witchcraft is connected to religion and culture and as such is far detached from economics and politics, post-colonial Cameroon associates witchcraft and other occult practices with being a major factor in its slow economic development. The state resorted to criminal law in its attempts to eradicate the practice. Its penal code subjects persons accused of witchcraft to imprisonment for up to ten years. This provision has been subject to great criticism, as its application has led to a high conviction rate of indigenous Cameroonians. The aim of this article is not to determine the appropriateness of this approach, but to raise questions and shed light on the various inconsistencies with criminalizing a practice that arguably constitutes an underlying basis of indigenous Cameroonian cultural heritage.

Widows throughout sub-Saharan Africa may be at risk from dispossession when their husbands pass away. Whereas some scholars view widow dispossession as prevalent and global, others suggest that the issue is less common than claimed. This article contributes to understanding about the frequency of, and reasons for, widow dispossession through an empirical investigation of widowhood in Cameroon. By adopting a comparative method, working with similar groups in both francophone and anglophone regions, it presents preliminary findings. These findings include a higher awareness of widow dispossession in anglophone areas compared to francophone samples. Moreover, notably fewer marriages are legally registered in the anglophone dataset, compared to the francophone group, which may place anglophone widows at greater risk of dispossession. The article then assesses the impact of custom, religion, civil law and common law on the findings. In conclusion, it recommends the need for a holistic consideration of land rights.

The article examines the court judgment in Pather and Another v Financial Services Board and Others [2014] 3 All SA 208 (GP) to explore the Enforcement Committee (EC)’s jurisdiction to settle market abuse cases in South Africa.