Comparative and International Law Journal of Southern Africa

International Law’s Specialised Regime and Normative Conflict: A Reflection on International Criminal Law

Ahmed Linga — 2023-09-20

In the international legal system, there exist fields of law that are characteristically specialised than the general sphere of international law. The term ‘special’, ‘specialised’ or ‘self-contained’ regime will be revisited in the present article vis-à-vis possible norms that conflict in the international legal arena. International criminal law, a discrete branch of international law will be thoroughly discussed as to reveal its nature as one of international law’s special regimes that may arguably contribute to the issue of normative conflict, and further, a problem of legal fragmentation. The concept of legal fragmentation will thus be highlighted as linked to international law’s normative conflicts. Considering that international criminal law is potentially a special regime of international law, one of its codified rules seems to have led to an emerged normative conflict involving the legal interaction between the Rome Statute of the International Criminal Court 1998’s treaty-based rule, and the international customary law rule. The severity of a legal conflict not only impacts the treaty law and customary law areas of international law but to a greater extent also undermines the coherence of the international legal system as a whole. Therefore, this article aims to analyse and expound on the apparent normative conflict of international law character that needs to be addressed, especially by the International Criminal Court being one of the prominent international judicial organs. Supposedly, when a normative conflict becomes severe, the issue of fragmentation of international law looms out and effective determination of related conflicting norms is indeed appealing.

Evaluating the Individual Criminal Responsibility of Gukurahundi Perpetrators under International Law

Siphosami Malunga — 2023-09-11

The aim of this article is to evaluate whether individual criminal responsibility (ICR) is attributable to perpetrators of the Gukurahundi atrocities committed in Matabeleland and Midlands, Zimbabwe, between 1983 and 1987. The criminal liability of Gukurahundi perpetrators is evaluated against the legal requirements garnered from conventions, jurisprudence of international criminal tribunals and the work of leading scholars. Firstly, the article provides an overview and historical development of the concept of ICR under international law. Second, it examines the theories of criminality under international law. Third, it analyses the forms and modalities of ICR including relevant specific crimes. Fourth, it evaluates the individual and superior responsibility of Gukurahundi perpetrators. A crucial feature of international criminal law is the legal obligation to investigate, prosecute and punish perpetrators of international crimes. The article therefore explores the different ways in which ICR could be attributed to perpetrators of the Gukurahundi international crimes. The author sets out to advance knowledge and understanding of possible mechanisms to hold perpetrators of the Gukurahundi atrocities criminally accountable under international law.

Corporate Social Responsibility as an Enabler of Socio-economic Restoration in Post-COVID-19 Business Environment in South Africa and Nigeria

Kolapo Omidire — 2023-10-24

The emergence of the COVID-19 pandemic early in 2020 has had unexpected consequences on virtually all aspects of human development, particularly businesses. Regrettably, the economies of most African countries are in a fragile state, and that fragility has had an effect on entrepreneurship, and in particular, small businesses that experienced the full brunt of the pandemic. This article seeks to examine the concept of corporate social responsibility (CSR), with a view to re-appraising the role of businesses, and to determine the extent to which CSR could facilitate post-pandemic socio-economic restoration and boost economic growth. To achieve this objective, the author engages in a qualitative study comprising a review of primary and secondary sources relating to CSR and its other variants. The role of CSR and how it can drive productive entrepreneurship, focusing on the two leading economies in Africa, namely South Africa and Nigeria will be examined. This is done with a view to making recommendations on the potential role of CSR in driving post-pandemic productive entrepreneurship, enhance sustainable development in society, and facilitate socio-economic restoration in a post-COVID-19 environment.

A Flexible Approach to Enabling the Free Movement of People in Southern Africa

Victor Amadi — 2023-09-11

To intensify regional integration in the context of a common market, it is fundamental that citizens within a region are allowed to move with little or no restrictions. The Southern African Development Community (SADC) initially adopted a Draft Protocol on the Free Movement of People in 1995, which later failed when South Africa, Botswana and Namibia withdrew from the agreement. The Protocol on Facilitation of Movement of Persons (Facilitation Protocol) was adopted in 2005. The two-thirds majority needed for its enforcement has yet to be reached. Hence it has no legal effect. Several regional arrangements like the European Union (EU) and the East African Community (EAC) within Africa, have utilised an approach of flexible integration with binding legal provisions that facilitated progress in their integration schemes. Considering that little has been achieved towards the movement of people in the SADC, this article explores the feasibility of adopting flexible integration, advanced by African scholars to encourage a response in regulating the movement of people. This paper builds on existing scholarship by arguing for a clear provision defining the approach to flexible integration including the criteria for initiating and utilising flexible integration. This provision will allow member states with similar interests to move beyond the impasse towards the regulation of movement and promote the movement of people in the region or afford member states the choice to opt out of the regional arrangement.

Accommodating New Modes of Work in the Era of the Fourth Industrial Revolution in Ghana: Some Comparative Lessons from the United Kingdom and South Africa

Theophilus Edwin Coleman — 2023-09-18

Over the past decade, Ghana has significantly improved in the digitalisation and transformation agenda. The digitalisation agenda has paved the way for creating an inclusive digital economy. Through this agenda, many Ghanaians now have access to digital platforms, particularly those in the financial and transportation sectors. The quest to digitalise the Ghanaian economy has also created an enabling platform for digital entrepreneurship. The digital economy ecosystem has presented many Ghanaians with economic and employment opportunities that did not exist in the traditional or mainstream economy. While the economic potential of the Ghanaian digital economy cannot be denied, the employment opportunities created by the digital transformation drive present some challenges for the traditional labour market. Moreover, the novel nature of the digital transformation drive poses some difficulties for the existing legal framework of labour laws in Ghana. In addition to examining how Ghana’s labour laws can accommodate gig workers, this article discusses the digital economy’s meaning and significance in Africa, particularly in Ghana. Furthermore, it discusses the new modes of work associated with the digital economy. In addressing the issue of whether the current legal framework in Ghana can accommodate gig workers, the article reflects on the nature of the relationship between gig workers and owners of digital platforms. The article accordingly deals with the issue of whether the Labour Act 651 of 2003 offers guidance in addressing the employment status of gig workers in Ghana. In dealing with whether gig workers are employees of digital platform providers, this article draws some comparative and judicial lessons from the legal position in the United Kingdom (UK) and South Africa. The article concludes with a call for the statutory protection of gig workers in Ghana.

The Competition Laws of China and Cameroon: A Comparative Analysis of their Legislative Systems

Ngalim Elizabeth Yongyeh — 2023-11-21

This study aims to compare the competition laws of Cameroon and China, with a focus on the legislative system of the anti-monopoly law of the People’s Republic of China (PRC) and the competition law of Cameroon. In this context, the study examines various aspects, such as the similarities of Cameroon and China’s competition legislative systems, by using secondary data analysis (secondary research). Research on China and Cameroon is significant in terms of determining where both countries need to develop and enhance their competition laws, economic trade and diplomatic relations. Cameroon’s competition law has not been amended in the recent past, while the anti-monopoly law of the PRC was amended in 2022.