Several post-independence African states have opted for constitutional democracies in response to various governance challenges. Most of these constitutions espouse values of constitutionalism, such as the rule of law, human rights and citizenship. This article interrogates the concept of constitutionalism, examines its pillars and values, and reflects on how Africa's constitutions mirror them. Its thesis is that a constitutional government does not necessarily approximate constitutionalism. The article argues, with evidence, that many states possess constitutions but fall short in practising constitutionalism. It calls on these states to embark on institutional reforms and to pursue good governance that improves the living standards of their citizens.

Far beyond the contributions of African and western thought on the right to freedom of expression, there are now normative developments under international human rights law on how states can protect online expression. However, these developments are not applied in African countries. A reason for this is the extant provisions in various laws that threaten online expression. This article applies postcolonial legal theory to understand why and how these provisions threaten online expression in African countries. It identifies relevant thoughts on the right to freedom of expression, normative developments on the right and a new form of digital colonialism in Africa. It concludes that for African states and other actors to combat this new form of digital colonialism head-on, they must carry out targeted legal reform that repeals and amends these provisions.

One of the major pillars of the African Union is the integration of peoples and the ability for them to move freely from one member country to another, with the right to reside and practise their trade or profession. This aspect of integration found full expression in the Protocol to the Treaty Establishing the African Economic Community Relating to the Free Movement of Persons, Right of Residence and Right of Establishment, adopted in 2018. Upon operationalization, it will remove obstacles to the movement of people, capital and resources in the region and give expression to aspiration 2 of the African Union Agenda 2063. However, significant challenges lie on the path of its implementation. This article doctrinally reviews the protocol, looking at its prospects for promoting African integration and development, and anticipates some of the problems that the protocol will face. It concludes with recommendations for achieving its lofty but desirable ends.

Education is a prerequisite for the attainment of sustainable development, with multiplier effects on society. This study examines the possibility of achieving inclusive and equitable education under the UN Sustainable Development Goal (SDG) 4, AU Agenda 2063 and ECOWAS Vision 2050. Copyright plays an essential role in either encouraging or barring access to educational materials, which are necessary for the attainment of SDG 4. Through a desk study using the laws and policies of English-speaking West African countries (Gambia, Ghana, Liberia, Nigeria and Sierra Leone), the article examines the copyright laws of these jurisdictions in order to determine how they facilitate or stop access to knowledge. It finds that most of the jurisdictions (except Nigeria) have not maximized the flexibilities available for access to knowledge through copyright limitations and exceptions, thereby barring access to educational materials. It recommends a review of national copyright legislations in line with a developmental perspective.

Public procurement is often used to achieve policy goals beyond the purchase of the required goods and services. These goals include the economic advancement of minorities, the promotion of fair labour practices and climate action. In the last two decades, many countries have used public procurement to advance gender equality. This is referred to as gender-responsive procurement and is often implemented through the award of public contracts to women-owned businesses. While many countries have legal provisions designed to increase the award of public contracts to women, gender-responsive procurement is extremely limited and women-owned businesses are not fully integrated into public sector supply chains. This is unfortunate, given that gender-responsive procurement can improve women's economic empowerment, with implications for sustainable development. This article adopts a gender equality and women's economic empowerment lens to examine the legal, policy and cultural barriers to gender-responsive procurement and recommends measures to improve the award of public contracts to women-owned businesses.

This article presents a critical analysis of whether South African courts employ established theoretical concepts to delineate the boundaries between custom and customary law. To facilitate a comprehensive understanding, the article begins by providing an overview of the South African legal system, laying the groundwork for the subsequent discussion. The article then delves into prominent theories that address the differentiation between custom and customary law, providing a succinct summary of each. Finally, the article examines the degree to which these theories have been embraced by the courts. Notably, the article uncovers the courts’ emphasis on factors such as certainty and the protection of human rights when deciding whether to apply customary law, rather than relying solely on the distinction between custom and customary law.

Women experience climate change in different ways to men and are often disproportionately affected, highlighting the need for gender-focused climate initiatives. Strengthening laws and policies to address women's and gender issues is one way forward. Yet, less research attention has been given to women and gender in climate change law than in other issues. This article seeks to advance the field by exploring the relevant law, policy and governance commitments made by all African nations under the Paris Agreement. The findings indicate that most African nations include some gender-related commitments, but only a few include detailed legal initiatives ready for implementation. These more detailed initiatives are synthesized to identify a toolbox of options, which are then applied to Tanzania as a case study. This article contributes to the literature by comprehensively analysing the African climate change commitments and by making tangible recommendations for Tanzania.

The grim realities of the COVID-19 pandemic have resuscitated discussions about the effectiveness of the flexibilities entrenched in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for improving access to medicines. This article revisits this vexed issue by examining whether a regional approach to implementing TRIPS obligations could deliver a better outcome for access, especially in low- and middle-income countries, where manufacturing capacity is almost non-existent. Using the East African Community (EAC) as a case study, the article critiques recommended implementation options under the EAC policy on TRIPS flexibilities, concluding that, if significantly implemented, these recommendations could yield a better outcome for access.

Although legal transplants are a most fertile source of legal development, a failure to adapt their methods to local traditions and cultures before putting them into practice often results in the loss of indigenous legal cultures. This article examines environmental jurisprudence in Nigeria. It aims to determine whether the failure of these laws to curb the trend of unsustainable natural resource use in the country is traceable to the indigenous legal cultures of sustainability that were lost in the process of transplanting colonial ideologies into the Nigerian legal system. The article submits that neglecting the innate standards of sustainability in Nigeria's environmental law-making (a practice adopted since the period of colonization) has made the extant laws on natural resource sustainability largely ineffective. It recommends reworking some of the laws to reflect the lost traditions and notes the cultural imperative for natural resource sustainability.

Article 2 of the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) obligates states to take measures to prevent torture. While many states have provisions that prohibit torture, in most cases these do not align with the jurisprudential anti-torture framework required by UNCAT. Before the advent of the Anti-Torture Act, the Nigerian 1999 Constitution prohibited torture, but it was not a crime per se. Any act or omission that constituted torture usually fell under the heading of a civil claim and could also be prosecuted under the criminal or the penal code. However, most cases were prosecuted as grievous bodily harm, attempted murder, assault or murder. The 1999 Constitution failed to detail what constituted torture; in fact, the use of torture did not diminish under the Constitution. To fully apprehend the present situation in Nigeria, it is important to understand the legislative framework and its compatibility with international standards.

This article examines the interplay between traditional leaders, democratically elected leaders and succession in Makapanstad Village, North West Province, South Africa. The article stems from community-based participatory action research conducted in Makapanstad in 2018. The article uses research data, in the form of community dialogue, together with desktop literature on the same subject. The article analyses the significance and role of traditional leadership in a democratic South Africa. It considers traditional leadership and democratically elected leadership in conjunction with succession and the demarcation of roles and responsibilities. The article analyses participants’ views to explore the form of leadership preferred by the residents of Makapanstad. It argues that, despite the recognition of traditional leadership in South Africa's Constitution, the roles and responsibilities of traditional leaders in local and provincial arms of government are limited, in contrast to those of democratically elected leaders.

Since the mid-1980s, Botswana has relied on community based natural resources management (CBNRM) to incentivize communities to choose environmentally beneficial behaviour to advance conservation efforts. This approach has had some success, although it has not been as successful as had been hoped. Nevertheless, it is well acknowledged that CBNRM can play an important role in advancing conservation efforts. The state is therefore working to revamp the CBNRM framework so that it consistently yields beneficial results for communities and conservation. This article relies on regulatory theory and experience with CBNRM in Botswana to identify what it would take to establish an effective CBNRM regulatory framework there. It establishes that Botswana has failed to secure effective CBNRM consistently, due to the lack of a dedicated CBNRM law and inadequately resourced institutions. It recommends the promulgation of a CBNRM law with a community-centred and / or rights-based approach, and the establishment of an adequately resourced institution, charged with regulating CBNRM in Botswana.

This article explores the remaking of administrative law review in South Africa since the introduction of constitutional democracy in 1994. It characterizes the construction of the constitutional and legislative framework, as well as the courts’ interpretation of that framework, as the first phase of the remaking. The second phase encompasses the courts’ recognition of a constitutional principle of legality based on the rule of law, and their swift development of the content of this principle. This judicial creativity has resulted in an elaborate avenue to review, parallel to the Promotion of Administrative Justice Act 3 of 2000, and has caused problems of rivalry and avoidance. The article identifies and discusses some of the more significant implications of each of these phases of reconstruction. It also proposes corrective measures likely to advance the coherence and effectiveness of judicial review and discourage the adoption of a doctrine of non-justiciability.

To provide protection against harm caused by defective, unsafe products and to promote product safety, the law of product liability has developed as a specialized area of the law of delict (tort). The vexing question is, who should bear such liability? This contribution interrogates the notorious EU development risk defence, which exonerates manufacturers that meet certain stringent requirements for undiscoverable development risks in products that consequently inflict harm on consumers. In particular, it considers the election by South Africa, which recently adopted a “strict” product liability regime with the introduction of the Consumer Protection Act 2008, not to adopt such a defence. The purpose of this contribution is to consider the nature and scope of the development risk defence as contained in article 7(e) of the European Union (EU) Product Liability Directive and to determine whether it was prudent for South Africa to steer clear of incorporating a similar defence in its new statutory product liability regime.

South African municipalities are entrusted to perform various functions, including providing basic services to communities. Recently, the auditor-general has raised concern about municipalities’ overall functionality and ability to fulfil their obligations. Municipalities’ service delivery failures have led to disputes between them and their communities. Moreover, South African courts have drawn attention to the impact of service delivery failures and described their catastrophic and devastating effects on communities and their local economies. In addition, it is said that the consequences of these municipal failures are more severe for the communities than any other stakeholder. For this reason, communities require legal options to resolve such disputes. This article puts forward two legal options (and potentially a third) to which communities can turn. The article examines mediation and structural interdicts and argues why these options are suitable methods for resolving disputes between a community and its municipality.

A “sink or swim” approach has been considered the only way to learn how to conduct empirical research; this should not be the case. Empirical research can be challenging for methodological, practical and ethical reasons; thus there should be detailed and systematic reporting on the methodology adopted. The absence of studies documenting the experiences of researching law implies that important lessons gained by one cohort are not readily accessible in a systematic way for the next. This article presents the methodology of research that was conducted in a conflict area in Nigeria during the pandemic; it aims to provide detailed reporting on the research and highlight the challenges. It offers lessons to future researchers undertaking socio-legal research in a conflict zone, during a pandemic or both. It contributes to the body of knowledge that presents not just what is being done in legal research but how, in order to develop “robust and cumulative scholarly traditions”.

The aim of this article is to use a decolonial approach to interrogate Kenya's laws and policies that compel the admission and treatment of persons with psychosocial disabilities. Against the backdrop of the colonization of Africa, the article appraises the historical development of Kenyan mental health laws. It critically analyses domestic policies, legislation, court decisions and the Constitution as they apply to admission to healthcare facilities of persons with psychosocial disabilities and to the freedom to decide about treatment, in order to reveal the persistence of coloniality. It highlights gaps in the protection of equality, dignity and liberty. It also draws on pertinent provisions of the Convention on the Rights of Persons with Disabilities as a juridical method for translating a decolonial agenda into a normative framework. Ultimately, the article proposes a framework for decolonizing Kenya's mental health laws and policies.

On 25 October 2021, Nigeria became the second country in the world, and the first in Africa, to launch a central bank digital currency. Launched with the tag line “Same Naira. More possibilities”, the Central Bank of Nigeria publicized the eNaira as having the capability to deepen financial inclusion, reduce the cost of financial transactions and support a more efficient payment system. However, more than one year after its launch, its usage is yet to gain a critical mass. This article identifies the significant challenges that make the eNaira unacceptable and potentially ineffective. First, its status as legal tender is questionable; secondly, it undermines privacy, a critical component of physical cash. Thirdly, it is incapable of wide acceptance by individuals and entities across Nigeria. The article explains each of these challenges and proposes a roadmap to the eNaira's acceptance and effectiveness.

Certainty is a cornerstone of every criminal justice system. In instances where controversy arises as to the application of any law, it is essential for it to be addressed promptly. Contrary to this need for certainty, there is judicial ambiguity regarding the mens rea for the offence of attempted murder in Botswana. There are cases which hold that the mens rea required is a specific intention to kill, and that nothing else suffices. However, some cases hold that an intention to cause grievous harm and recklessness are also sufficient. Unfortunately, the Court of Appeal, the apex court in Botswana, has made decisions that support each of these divergent positions. This article addresses the controversy of the mens rea for attempted murder in Botswana and argues that the Court of Appeal should resolve the issue by specifically overruling some of its previous decisions.