A hostile tender offer is the most dramatic occurrence in corporate life. It pits incumbent management against the insurgent who claims to be getting rid of dead wood. The target shareholders usually incur large losses when management succeeds in defeating the offer and the target remains independent. An array of defensive measures have been used as embattled managers have fought to keep their seats. The validity and effectiveness of these measures depend largely on the regulatory scheme for tender offers in the particular jurisdiction and the legal duties of the directors.

It is a happy coincidence indeed that in the 40th year of publication, the Editors of this Journal have had the privilege of publishing a liber amicorum for Professor James Read. In 1996 he retired from 40 years of teaching in the University of London, since 1974 as Professor of Comparative Public Law with special reference to Africa, a Chair which he retains in an Emeritus capacity. It has been a formidable task to attempt to do justice to the work of this “able, patient, effective and thoughtful scholar” (to adopt the words of two of our contributors) to African legal studies. However, this volume contains essays by colleagues and erstwhile students upon subjects which will at least in part reflect the richness and diversity of James Read’s interests.

The picture of pre-Protectorate and Protectorate land tenure that emerges from the reported judicial resolutions of land disputes in Zanzibar and the legislation introduced is that of overlapping interests in one and same parcel of land (such as planting banana trees on someone else's land), a charitable toleration of land occupation by persons who had little but their labour to subsist by (such as not having to pay rents on the Sultan's lands or waqf properties, or at least very little), mobility by way of settlement on unoccupied lands through negotiation or silent acquiescence without formalistic titles as a prerequisite, and a determination to protect land security for families or for the poor against Government taxes, private debt attachments or fragmentary inheritance rules (such as through waqf, perpetual trust). Alongside these elements were the commercial uses and dispositions of land, including outright sales and conditional sales for debts, and the assignment to trees of an economic value distinct from that of the land. Against this complex background the British Protectorate Government extended and consolidated its public land holdings, specifying how the land was to be used for what may be called the “aggregate economic welfare produced by … unequal distribution of resources”, regularizing the charging of rents, and gradually breaking down the security of waqf immovables. After the First World War, despite political stability, social instability relating to land tenure broke out and plagued the Protectorate to its end. There were major dispossessions from land resulting from the government's policy of protecting the landlord's right to charge rents and of allowing creditors to sell land for the purpose of recovering accumulated debts that could no longer be paid during economic depressions. The loss of access to land led to the loss of identification with the land.

This special number of the Journal of African Law has a dual function. First, commemorates 40 years of continuous production of the only learned journal devoted exclusively to African law. And secondly, it is presented as a tribute to the signal achievement of Professor James Read of the School of Oriental and African Studies in devoting himself to the study and advancement of African law, both at the School and elsewhere. The two successes run in parallel. Often their lines intersect. Jim Read directly and indirectly has made an enormous contribution to the expansion of the notion of African law since those early days, an expansion which has fed back into the concerns and the range of materials which the contents list of the Journal now displays.

The primary purpose of this article is to enrich the understanding of tort law in Ethiopia and Eritrea and how it affects the environment. Its standpoint is both positive and normative. Its secondary goal is to clarify the affinities, often hidden, between the issues raised by tort law in developing countries now and the same issues as they emerged in the Western tradition in the past. Methodologically, the article considers the interplay between two powerful tools of analysis: law and economics, and legal pluralism (as informed by the doctrine of legal stratification).

Twenty-four years ago Henry Morris and Jim Read, in Indirect Rule and the Search for Justice, provided a wealth of illuminating information about the history of the legal systems of the East African colonial states. But an even greater merit of their book than its detailed data is its coherence and depth of analysis. These result from their adherence to a constant reference point, the “search for justice”. This concept may still be useful in the study of law in Africa today.

The struggle of Nigerian civil society for the establishment of a democratic polity, founded on the rule of law and the respect for the human and peoples’ rights of ordinary citizens of Nigeria, has been waged against the military governments that have ruled by force for the better part of its nearly three and a half decades of independent existence. During this struggle, there have been many cases of seizure of the passports of prominent opposition activists by members of the security agencies of the government. Such acts have generated much international condemnation of the government, as well as some judicial disapproval.

Strong criticisms and statements of concern about corruption and governance in Africa are being voiced more and more often. What is highly significant is that increasingly open and fierce criticism is being voiced by commentators in and from Africa itself. It is this fact that emboldens me to offer the following analysis and set of proposals for addressing the issues of good governance and aid in Africa. I shall concentrate principally on Anglophone Africa in which Jim Read did most of his work.

One of the important characteristics of the Constitution of the Republic of Ghana, 1992, is the prominence it gives to the constitutional protection of the rights of men, women and children who live for a larger part of their lives as families. Although there are passing references to the family, that word is not defined by the Constitution, but the absence of a definition need not be regarded as evidence of non-recognition of the concept of family in Ghana society. Few will disagree widi the proposition that the basis of every society from the most primitive to the most complicated is the family. As an institution it is of great antiquity.

In antithesis to legislation on land tenure introduced through the Land Registration Act, 1959, premised on the notion in English common law that the right to allocate land was equivalent to exclusive ownership, “ownership” under customary tenure in Kenya was “essentially heterogeneous and divisible”. People differentiated by age, gender and wealth had bundles of rights defined, in Okoth-Ogendo's words, by “the status differentia which a particular category of membership in a production unit carries”. The complexity and elasticity of customary land law, Okoth-Ogendo demonstrates, derived from its separation of access rights from allocative rights, and the subjection of the latter “to the economic tasks required of the former”. This distinction and the ensuing visibility in legal discourse of both use rights and rights of allocation was critical, as Okoth-Ogendo indicates, in ensuring “the proprietary position” of women, the primary agriculturalists, in societies such as that of the Kikuyu, which are frequently classified as patrilineal.

It gives me great pleasure to contribute to this liber amicorum for my colleague and friend James Read. I wish him a happy retirement though I suspect that his hunger for research and discovery into African law will continue. I met Jim some 36 years ago when I joined the School of Oriental and African Studies as a research officer in African law attached to the Restatement of African Law Project of which Tony Allott was the Director. Like me, Jim was then a young student of African law, being taught and coached by the pioneer of the subject, Tony Allott. Again, like me, Jim also specialized in East Africa and in the early 1960s we exchanged notes and ideas and collaborated on research into the customary and other laws of Uganda, Kenya and Tanzania. Naturally Jim took a special interest in my Restatement of African Law in Kenya and I am forever grateful for his encouragement and enthusiasm during the research and afterwards, when the Kenya Government decided to go further than the Restatement and integrate its marriage, divorce and succession laws. This article tells the story of the establishment of the two Kenya Commissions on the subject and asks whether such unification or integration is possible.

The elections in South Africa are only a start in that nation's task of purging itself of the inheritance of white minority rule. However successfully the democratic process endows organs of state with legitimacy in international forums, by and of itself the fact of black enfranchisement will not change black attitudes to a legal system which for decades willingly implicated itself in the systematic oppression of the non-white majority.

On 17 May, 1995, the Malawi National Assembly adopted a democratic constitution. In terms of Malawi’s post-colonial history, the adoption of the constitution was an unprecedented event. For a period of 30 years, Malawi had been subjected to a one-party dictatorship led by Dr Hastings Banda. Supported over the years by the West because of its anti-communist rhetoric, the Banda regime found itself abandoned with the ending of the Cold War and the collapse of apartheid in South Africa. Pressure from internal and external groups led to a referendum on the oneparty state in June 1993 which the Banda regime lost and to the first multi-party elections in May 1994 which the regime also lost. A day before the 1994 elections, the Malawi National Assembly adopted a Provisional Constitution for a period of 12 months. Pursuant to section 212 of the Provisional Constitution, the National Constitutional Conference was held in February 1995 for the purpose of making recommendations to the National Assembly on a permanent constitution. Rather than replace or repeal the Provisional Constitution, the National Assembly decided in April 1995 to make modest amendments to it in order to address some of the more blatant deficiencies that were identified at the Constitutional Conference. During the coming years, the Law Commission will make a detailed study of the entire document, make recommendations to the Minister of Justice and, it is hoped, address some of the obvious drafting oversights.

The new Constitution of Malawi came into force provisionally on 18 May, 1994. It replaced the Republican Constitution of 1966 which had been amended in 1993 in order to allow for the re-introduction of a multi-party democracy, the reincorporation, as an interim measure, of the Bill of Rights as contained in the Independence Constitution of 1964, and the abolition of the life presidency created under section 10(3) of the 1966 Constitution as amended in 1970 so as to provide that Dr Banda was to be president of the Republic for his lifetime.

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.

In Mauritius, the Abolition of Death Penalty Act, 1995, provides for the total abolition of capital punishment. In its place, courts are now empowered to impose a sentence of penal servitude for life. Mauritius thus joins Namibia, Mozambique, The Gambia and Cape Verde as the only African countries to have abolished capital punishment by statute (although in 1995 the military government in The Gambia reinstated it). As noted in (1995) 39 J.A.L. 192, the Constitutional Court in South Africa has ruled the death sentence unconstitutional in S v. Makwanyane and Mchunu (now reported in 1995 (3) S.A. 391; 1995 (6) B.C.L.R. 665).

In the past few years the High Court of Tanzania has produced some bold decisions demonstrating an impressively firm stand by the judiciary in its role of dispensing justice without fear of executive threat or intimidation. Most of these decisions came after the Bill of Rights, enacted into the Constitution in 1984, became justiciable in 1989 and widened the scope of judicial control of executive powers.