Although, as the name of the country suggests, Botswana is populated mainly by Tswana-speaking peoples, it is acknowledged that the most indigenous or aboriginal inhabitants of the country are the San or Basarwa, identified and described in some of the literature as Bushmen. Basarwa also have the less admirable distinction of being perceived and depicted as the most marginalized of all the ethnic groups in the country. Concern about the status, and the political and economic position of Basarwa in Botswana has been expressed in numerous reports and writings, official and unofficial, and at various conferences, seminars and gatherings, national or international.

The phenomenon of ethnicity is being declared by many to be the cause of all the problems of Africa, especially those of violent conflict. Some salient examples are Rwanda, Burundi and Kenya. While in many cases ethnicity and ethnic-based antagonisms have indeed been a factor in conflicts and have often been suppressed within the structures of the post-colonial states (with their seemingly sacrosanct boundaries), the political relevance of the phenomenon has varied widely. In the political system and the laws of an African country, however, ethnicity seldom received official recognition.

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.

It is matter for debate whether there has been an evolution of medical malpractice law in South Africa, as the term implies progressive change and many would argue that South African law in this regard has changed very little over a long time. There have been changes in medical law, such as the development of the doctrine of informed consent, where there has been a shift from an overtly paternalistic approach in terms of which the patient was expected to make a choice based on the information (if any) that the doctor chose to reveal, to the current position that the patient is an autonomous subject and therefore is entitled to be fully informed and, on the basis of that information, to make the final choice regarding treatment.

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.

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.

The availability of credit facilities to both companies and individuals wishing to do business is probably one of the most important facets of the modern world. It is needless to emphasize that the need to create an enabling environment conducive to investment and hence employment creation remains an important goal of the modern state. Credit is at the centre of this mission and as the U.K. Review Committee on Insolvency Law and Practice aptly observed, “credit is the lifeblood of the modern industrialised economy” and “… the provision of credit for trade and industry stimulates production and encourages enterprise as well as helping individuals and businesses over difficult economic times”.

“Reservations about any concept do not automatically discredit it but allow for healthy and open debate to take place… the discussions that can arise from any such criticism, constructive or otherwise, can often lead to a greater awareness of the values of the system and ways in which it can be strengthened and made more effective in the interests of the general public.”

This article critically examines the controversies surrounding the law and practice of customary arbitration in Nigeria against the background of the decision of the Nigerian Supreme Court in Agu v. Ikewibe. The case law on customary arbitration is briefly reviewed with a view to demonstrating that prior to the Agu case, there existed a divergence of opinion among judges on some fundamental principles of the law and practice of customary arbitration in Nigeria, particularly with respect to the right of the parties to withdraw at any stage of the arbitration proceedings or even after the award is rendered. The article disagrees with the views of some judges and learned scholars that theres no distinction between customary arbitration and other consensus-oriented dispute resolution methods such as negotiation and conciliation. In disagreeing with these views, it is argued that in distinguishing customary arbitration from negotiation or conciliaion, the nature of the decision-making process should be of paramount consideration. It will further be argued that the binding nature or enforcement of the decisions of a judicial or quasi-judicial body differs from society to society. These enforcement mechanisms should not be divorced from the social relationships existing in a particular society. In conclusion, the article endorces the decision of the Supreme Court in Agu v. Ikewibe as the correct restatement of the law and practice of customary arbitration in Nigeria.

“We have to be realistic and hard-headed about this problem of refugees. We have in particular, to recognise that it is not getting smaller.”

Julius K. Nyerere

Recent constitutional developments in South Africa and political statements by President Robert Mugabe of Zimbabwe have brought to the fore the issue of social tolerance of homosexual conduct. It is a sensitive issue, and is approached in this article from a legal anthropological angle. A distinction is drawn between situational same-sex activity and a gay lifestyle. Although both constitute homosexual conduct, situational same-sex activity need not imply a gay lifestyle, or even a homosexual orientation.

It is well settled that interest is chargeable only where an agreement expressly or impliedly so stipulates, where statute so provides, or where a mercantile custom to that effect exists. Recovery of interest by banks developed from mercantile customs. These were designed in such a way as to avoid the usury laws which initially outlawed usury but then subsequently allowed interest up to a rate of 10 per cent at the most liberal period before the English Usury Laws Repeal Act of 1854 swept away all restrictions on money lending. Lord Macmillan gave the following account of the recovery of compound interest in Paton v. Inland Revenue Commissioners:

In November 1993, in the case of NPP v. Inspector-General of Police, Archer, CJ., in striking down Ghanaian legislation providing for the licensing of peaceful assemblies, stated rhetorically:

“… police permits are colonial relics and have no place in Ghana in the last decade of the twentieth century. …Those who introduced police permits in this country do not require police permits in their own country to hold public meetings and processions. Why should we require them?”

Over the last three years, possible justifications for the retention of laws requiring that a permit be obtained prior to holding a peaceful assembly have been examined and rejected by the courts of Zimbabwe, Tanzania and Zambia as well as Ghana. In all four jurisdictions such laws were struck down as unconstitutional as being contrary to the fundamental right to freedom of assembly and, additionally, in Zimbabwe, Tanzania and Zambia, the right to freedom of expression. This article assesses the interpretation by the courts of the relevant limitation clauses under the respective constitutions and raises the question of why, within the space of 12 months, courts in West, Southern and East Africa, although unaware of each other's decisions, reached the same conclusion on a law which had been present on the statute books since colonial times. It is suggested that these series of cases signify a turning point in the development of constitutional law in Commonwealth Africa with respect to civil rights.

Previous issues of the JAL have chronicled the protracted negotiating process that led to the making of the Interim Constitution in South Africa and the holding of the 1994 elections. The Interim Constitution was expressly intended to provide an “historic bridge” between the past and the future and facilitate the continued governance of South Africa while an elected Constitutional Assembly drew up a final Constitution. This was because the negotiating parties had not felt it proper to make the final document without public endorsement through the electoral system. Thus the national legislature elected by universal adult suffrage in 1994 doubled as the constitution-making body entrusted with die task of drafting a new constitution.

The Legal Aid Act, 1996, greatly improves access to legal aid. It provides that a person is eligible for legal aid in connection with any criminal, civil or other related matter if, in die opinion of the Director of Legal Aid, diat person (i) omerwise has insufficient means to obtain the services of a legal practitioner; (ii) has reasonable grounds for initiating, carrying on, defending or being a party o t the case; and (iii) is in need of and would benefit from such legal assistance. An individual may apply direct to the Director of the Legal Aid Directorate or a judge, magistrate or die Attorney-General may recommend to the Director that a person should be provided with legal aid.

The Ombudsman Amendment Act, 1997, gives die Office of die Ombudsman in Zimbabwe important new powers. In particular it is now empowered to investigate alleged violations of the Declaration of Rights in the Constitution by, amongst others, members of the Defence Forces, Police Force or the Prison Service. An attempt to amend die Bill in Parliament so as to include members of the Central Intelligence Organization was unsuccessful.