Comparative and International Law Journal of Southern Africa

The African Court’s Jurisdiction over the Crime of Unconstitutional Change of Government and the African Union’s Sanctions Regime: A Comparative Analysis

Linda Mushoriwa — 2024-04-16

This paper provides a comparative assessment of the criminalisation of unconstitutional change of government before the proposed African Court of Justice and Human Rights (African Court), and the African Union’s sanctions regime, which is part of its legal and policy framework to respond to unconstitutional change of government. Using Niger and Gabon as case studies, the paper examines the efficacy of the African Union (and the Economic Community of West African States, in the case of Niger) sanctions regime in response to the recent military coups in these selected countries. It is argued that the African Union’s policy and legal framework in response to unconstitutional change of government and the sanctions regime have not been effective in countering the scourge of unconstitutional change of government on the African continent. The paper then examines the potential of Article 28E of the Malabo Protocol, which criminalises unconstitutional change of government, to effectively address the problem of recurring unconstitutional change of government in Africa. It concludes that this Article has the potential to effectively address the problem of unconstitutional change of government when the African Court becomes operational.

A Review of the Decision of the Constitutional Court of South Africa in the Shilubana Case: Lessons for the Development of Customary Law in Ghana

Eugene Ablade Oninku — 2024-04-13

In the case discussed in this article, the Constitutional Court of the Republic of South Africa was confronted with the issue of the customary law rule of male primogeniture and its discriminatory effects on women regarding chieftaincy succession. The court held that, given that the said customary law practice was discriminatory, it needed to be developed to meet the constitutional human rights value of gender equality. The court’s decision is regarded as the basis for new criteria by which living customary law can be developed further. The article seeks to review the decision of the Constitutional Court and its impact on the development of customary law in general. Against this backdrop, the author proceeds to evaluate and offer a comparative analysis of the judicial and legislative efforts by Ghana and South Africa to promote the development of customary law and whether the decision of the Constitutional Court of South Africa (Constitutional Court) could offer lessons for the development of Ghanaian customary law in general. It is contended that the measures put in place under Ghanaian law to promote the development of customary law are inadequate and thus recommendations for the development of Ghanaian customary law drawing on lessons from the decision of the Constitutional Court are made.

Procurement Rules Governing Public–Private Partnerships for Infrastructure in Zimbabwe and South Africa—A Stakeholder Analysis

Takunda Gumbu — 2024-04-22

This study delves into the critical, but often overlooked aspect of stakeholder management within Public–Private Partnerships (PPPs) based infrastructure projects in Zimbabwe and South Africa. It explores the diverse stakeholder interests in PPP projects by comparatively analysing PPP procurement rules in Zimbabwe and South Africa, through the lens of the stakeholder theory. The study reveals a disparity in the role of procurement rules in managing stakeholder interests in both countries. Zimbabwe’s recently enacted PPP procurement rules fall short of PPP stakeholder management standards. However, South Africa’s procurement rules have been improved over two decades to make them more comprehensive and pro-active. The findings show that PPP procurement rules in both countries play a critical role in averting project failure caused by conflicting stakeholder interests. Nonetheless, there is a need for more robust regulatory regimes in both countries that account for conflicting interests to prevent project failure and fulfil the social welfare objectives of PPPs. Overall, effective stakeholder management in PPPs can bridge the infrastructure gap and improve the economic prospects of both countries.

A Critical and Comparative Analysis of the Regulation of the Office of the Chairman in Contemporary South African Companies

Rehana Cassim — 2024-03-28

The role of chairman of the board of directors of a contemporary company has evolved from procedural and ceremonial to complex and demanding. This article examines the appointment, tenure, functions, and liabilities of this position, as regulated by the Companies Act 71 of 2008, the JSE Limited Listings Requirements, and the King IV Report on Corporate Governance for South Africa 2016. The aim is to ascertain whether the guidance provided to chairmen on their appointment, tenure, functions, and liabilities is clear and adequate to guide them on what is expected of them in contemporary companies. Company law in the United Kingdom and Australia is compared because this area of law has been extensively developed in these jurisdictions and may offer guidance on the regulation of the office of the chairman of South African companies. The article contends that the guidance provided to a chairman by South African legal instruments is neither clear nor adequate. It identifies several shortcomings in the regulation of the chairman and makes recommendations to enhance the South African statutory and corporate governance provisions regulating the chairman.

The Missed Opportunity to Africanise the International Criminal Court: An Appraisal of the Case of Prosecutor v Dominic Ongwen

Windell Nortje — 2024-03-28

More than twenty years have passed since the establishment of the International Criminal Court (ICC), by means of the Rome Statute (ICC Statute). Of the 120 states, thirty-three are from the African continent. The ICC is often perceived as being Eurocentric and retributive in nature. This is because it is often insensitive to cases from the African continent. The case of Prosecutor v Dominic Ongwen, which is the focal point of this article, illustrates this point. Ongwen, a former child soldier who became a warlord in the Lord’s Resistance Army committed numerous crimes under international law and was sentenced to twenty-five years imprisonment. His case was complex and required a wider approach than the retributive position adopted by the ICC. African traditional justice mechanisms were generally overlooked. This article resents this approach taken and proposes that the ICC should have taken a more Africanised stance in this case. The article aims to contribute to the field of research on the Africanisation and decolonisation of international criminal law.