Malawi Law Journal - Volume 3, Issue 2, 2009
Volume 3, Issue 2, 2009
Source: Malawi Law Journal 3, pp 157 –181 (2009)More Less
The system of traditional courts in South Africa was regulated by the Black Administration Act of 1927 throughout the apartheid period. This Act was substantially repealed in 2005, leaving only the few provisions that regulate the traditional courts, pending the enactment of legislation by Parliament. The regulation and functioning of these courts through a new law is necessary in light of the post-apartheid Constitution of the Republic of South Africa and its Bill of Rights. The repeal of the 1927 Act led to two legislative processes, one by the South African Law Reform Commission and the other by the Department of Justice, both aimed at addressing the lacuna that had arisen. This paper addresses some of the concerns relating to the process and substance in these legislative developments.
Source: Malawi Law Journal 3, pp 182 –198 (2009)More Less
This paper is set within the context of the ongoing debate on the concept of the public sphere within Africa. It will be argued that the debate about the African public sphere is contingent upon the existence of guaranteed rights and freedoms such as the freedom of assembly and association and the freedom of expression. Such a guarantee provides an enabling environment within which Africa can begin to explore the concept of the public sphere. Though most African states have ratified international instruments that protect human rights, in most instances, the enjoyment of such rights is not guaranteed. The recent political developments in Zimbabwe provide a modern-day prototype of the extent to which the concept of the public sphere can be eroded if rights and freedoms are not guaranteed. It is further argued that when public opinion is eroded, the citizenry is inevitably coerced into submission. The erosion of the public sphere and the silence of the citizens become a fertile ground for the African states to become subjected to dictatorships and other ills which are engulfing the African continent even in the 21st century.
Author Justin KalimaSource: Malawi Law Journal 3, pp 199 –235 (2009)More Less
This article discusses the legal framework for the protection of wildlife in Malawi. It acknowledges the existance of a considerable array of legal mechanisms for the protection of wildlife and highlights some loopholes. At the normative level, these loopholes are manifested in the poor articulation of the relevant statutory provisions; the non-existence of a justiciable, constitutionally protected environmental right; restrictive standing rules in judicial review proceedings; and the inadequate protection of environmental activists against adverse cost orders in environmental litigation. The article recommends that, for the wildlife protection regime to improve, the law must be strengthened as well as the administrative controls, and the Government must show more commitment to supporting wildlife protection endeavours, including through allocating more resources and upgrading policing efforts in the protected areas.
Author Elijah Adewale TaiwoSource: Malawi Law Journal 3, pp 236 –272 (2009)More Less
Nigeria has a presidential system of government with the President and the Vice-President heading the government at the Federal level while Governors and Deputy Governors head their respective States Governments. The 1999 Nigerian Constitution provides that no civil or criminal proceedings may be brought against these chief executives while in office. The only constitutional means through which these executive office holders can be checked, where they are found guilty of gross misconduct, is impeachment. Under the Constitution, the exercise of the power of impeachment is vested in the legislature. Recently, impeachment power has been exercised clandestinely with total disregard of constitutional provisions. Right from the first impeachment proceedings in Balarabe Musa's case in 1981, the attitude of the courts was that of 'non-interference.' The recent decisions of the Supreme Court in the Inakoju and Dariye cases constitute a departure from that attitude. This article reviews those cases and asserts that the National Assembly or a State House of Assembly has no power to impeach the executive other than in strict compliance with the procedure stipulated by the Constitution. The article further posits that impeachment proceedings epitomise the checks and balances among the tripartite organs of government in Nigeria. While the legislative power of impeachment constitutes a check on the executive, judicial review equally constitutes a check on the excesses of the legislature. The article evaluates the new judicial approach giving a holistic interpretation to the constitutional provisions on impeachment.
Source: Malawi Law Journal 3, pp 273 –300 (2009)More Less
The fundamental importance of water to human, animal and plant existence cannot be over-emphasised. However, the depletion of the quantum of potable water due to pollution has been an intractable problem especially for the developing nations of which Nigeria is one. The worst hit in this aspect has been groundwater. Most of the legislation on water protection in Nigeria does not contemplate protection of groundwater. Thus, in Nigeria, there is a dearth of comprehensive, specific statutes on groundwater pollution. This situation becomes ominous considering the fact that water is not regenerative, hence, any environmental damage to it, especially to groundwater, could be devastating and difficult to reverse or repair. Moreover, due to the nature of groundwater, its pollution takes time to discover and may be quite expensive to treat. The authors examine the problems of groundwater resources, its pollution and the state of the law in Nigeria. In conclusion, certain recommendations are proffered.
Author Nomthandazo NtlamaSource: Malawi Law Journal 3, pp 303 –318 (2009)More Less
Interpreting the common law in accordance with the principles and values of the Bill of Rights is fundamental to the achievement of gender equality in South Africa. In particular, the development of sound principles of non-discrimination is crucial for South Africa as it recovers from its history of inequalities and discrimination. This article critiques the majority opinion of the South African Constitutional Court in Masiya. It argues that by confining the common law definition of rape to women, the majority view compromised the right to gender equality and undermined the foundational values and principles of the Constitution. This article also highlights the limits of the differentiation / disadvantage paradigm, which has become the main analytical framework for the right to equality, as a strategy for the advancement of gender equality.