The purpose of this article is to trace the development of some aspects of the law of Kenya, commencing with the colonial period (Part I) and then considering the reforms in the post-independence era (Part II). Part III deals with the setting up of the Law Reform Commission in 1982 and considers some of the subjects which it might deal with.

The article examines the realization of the right to health through the African concept of ubuntu. It attempts to show that ubuntu plays or ought to play a significant role in the realization of the right to health. This argument is advanced by identifying the attributes of ubuntu relevant to the implementation of the right to health and then applying these attributes to practical scenarios to operationalize the right to health. South Africa is used as a special point of reference because of the jurisprudence on ubuntu that has emerged there since 1994.

The end of almost fourteen years of military government, with the restoration of civilian rule in Nigeria on 1st October, 1979, would inevitably have been a landmark of great significance for Africa and the Commonwealth. What has given it quite exceptional importance is the fact that Nigeria, turning its back on Westminster, has chosen to adopt a new constitutional structure which can aptly be regarded as a version of “the Washington model”. This appears as a striking and innovative departure among Commonwealth constitutions which, despite the proliferation of republican systems, including executive presidencies and, in Africa, the spread of one-party models, generally preserve—in theory at least—certain basic features of “the Westminster model”: hence the preference for a parliamentary executive, in many states combined with presidential rule, however unrealistic in practice the notion of ministerial responsibility to parliament may have become. The new Nigerian Constitution has no place for such terms as “parliament”, “cabinet” or “prime minister”, yet the transition from the Westminster to a Washington model is a logical, predictable one likely to prompt imitation elsewhere: indeed, the new Constitution of Ghana, where military government also came to an end in 1979, has taken the same path.

The quite complex problems of human and group survival in Africa do not easily lend themselves to diagnosis or solutions within the human rights frame of analysis. There are several reasons for this. Some arise from the recent and not–so–recent history of the continent, others are associated with the foundations and formulation of the human rights framework itself, and the rest with the orientation of those governments, individuals, and organizations involved in or entrusted with translating the promises of human rights into human reality. The invidious dichotomies within human rights discourse between civil, political, economic, social, cultural, and collective (solidarity) rights or the so–called “categories” or “generations” of human rights, with the attendant and implicit hierarchy among these categories of rights, fails to resonate with most people around the continent for whom contact with the state is a frightening prospect that defies such convenient intellectual categories.

For sociologists and lawyers Somalia presents a fascinating observation ground.

Most of this long and narrow strip of land straddling the Horn of Africa is a dry savannah punctuated by graceful acacias spreading out their thorny leaves like giant umbrellas. Most of the inhabitants are nomadic herdsmen whose principal measure of wealth is the camel and whose main occupation and preoccupation is combating the ever-recurrent droughts by periodic treks in search of water and grazing.

In almost all the former British African territories the colonial power tried to make use of the traditional dispute settlement agencies which it found on arrival. The history of these efforts is familiar, following a generally similar course in most territories. The arrangements made in the early years were haphazard; a good deal of formalization took place around 1930; more profound changes were initiated in the early 1960's and have continued since. But the familiar legislative history yields little information about what has been happening on the ground. We know very little of the way in which the traditional agencies drawn into the official system actually reacted towards this process of incorporation. Leaving aside what the statute may have said, have they remained the agencies to which Africans actually resorted for the settlement of their disputes? Has the type of business coming before them changed? Similarly we know little about those agencies, typically at the lower levels, which did not undergo incorporation. Have they continued to function, or have they simply died away?

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.

On 18 April, 1991, the Republic of Zimbabwe celebrated its 11th year of independence. Coincidentally, just a few months earlier, the 11th constitutional amendment Act was passed. This flurry of legislative activity was the result of a desire on the part of the government to develop a new constitutional structure rather than to remain with the constitution which was essentially imposed upon it by the British during the 1979 Lancaster House conference which eventually led to independence in 1980. The new constitutional model is of considerable interest as it is based upon those operating in many other African nations but, according to the Minister of Justice, is designed to provide safeguards on the exercise of presidential power and to avoid unnecessary conflict and division between the various branches of government. On several occasions, ministers have stressed the autochthonous nature of the new structure and some have indeed suggested that it might form a model for other African countries.

It is the intention of this article to examine the legitimacy of these assertions by analysing both the new constitutional structure and its operation in practice. In order to assess the significance of these changes, it is first necessary to examine very briefly the Lancaster House constitution and constitutional developments in the early years of independence.

In the Mozambican context of the state amnesty for civil war crimes, war survivors have used their local ethics of reciprocity to create justice. This article analyses how survivors have attempted to persuade judges in traditional courts to adjudicate in serious wartime disputes. These judges, who have no official mandate to redress wartime offences, tried to preserve the conflicting interests of the litigants and the state. This positioning, coupled with the fact that the local ethics of reciprocity are embedded in uneven power and gender relations, resulted in some cases being adjudicated and others not, and in some disputes receiving no gender justice. Nevertheless, some of the interventions indicate that national and international institutions of justice are not the only ones engaged in the struggle against impunity for wartime crimes. In Mozambique, specific attention must be paid to the study of traditional justice mechanisms as fonts of redress for wartime crimes and for the long-term contribution they can make.

Affiliation with a political community or entity has throughout history been important for the purposes of protection and belonging. This article discusses the concept of citizenship in Sudan in light of the Sudanese and Southern Sudanese interim constitutions and relevant laws, taking into consideration the international norms in this regard. It also sheds light on the application of the law and possible scenarios when the South becomes an independent nation. It argues that a set of legal rules that organize nationality issues in Sudan and Southern Sudan are inconsistent with general nationality principles and that, if their provisions remain valid until the fragmentation of Sudan becomes a reality, many post-secession violations will be difficult to avoid. It suggests a series of measures that the main parties to the National Unity Government should take to avert such violations and secure peaceful and neighbourly relations in the years to come.

This article examines the practice of the ECOWAS Community Court of Justice relating to the exhaustion of domestic remedies. It argues that the court is wrong to maintain the view that it is not bound by the doctrine, simply because the court's protocol is silent on the point. The author urges the court to reconsider its view in order to align its practice with prevailing customary international law and treaty trends on the exhaustion of domestic remedies in international suits espoused before international courts by or on behalf of individuals.

The problem of abortion is not primarily a problem of law. The law clearly addresses the social practice of abortion, it influences the means of practice and may, at its best, resolve the social consequences of abortion, but the problem of abortion is located in social experience and prevailing social philosophies, rather than in statute books and judicial decisions. Abortion lies at the heart of a number of concerns of particular sensitivity, but it can also have a severe medical and personal impact.

The Agreement Establishing the African Continental Free Trade Area (AEAfCFTA) is a revolutionary treaty of the African Union (AU) which creates an African single market to guarantee the free movement of persons, capital, goods and services. The AEAfCFTA is geared towards enabling seamless trade among African countries. The single market relies heavily on the processing of the personal data of persons resident within and outside the AU, thereby necessitating an effective data protection regime. However, the data protection regime across Africa is fragmented, with each country either having a distinct data protection framework or none at all. This lack of a uniform continental framework threatens to clog the wheels of the African Continental Free Trade Area (AfCFTA), because by demanding compliance with the various data protection laws across Africa, free trade will be inhibited, the very problem the AEAfCFTA seeks to remediate. These concerns are considered and applicable solutions are proposed to ensure the successful implementation of the AfCFTA.

In 2005 the government of Ethiopia prepared many proclamations, regulations and guidelines dealing with biosafety, traditional knowledge and plant breeders' rights, with a view to implementing the Convention on Biological Diversity (CBD) and the Cartagena Protocol to the CBD on Biosafety (CPB), and to joining the World Trade Organization. In the course of the lengthy negotiations of the Food and Agriculture Organization International Treaty on Plant Genetic Resources for Food and Agriculture, the Ethiopian government decided not to include coffee in the list, annexed to the treaty, of plants covered by the multilateral system of facilitated germplasm flows. The purpose of this paper is to analyse these texts and the potential bargaining power of Ethiopia regarding coffee germplasm transactions, after a rapid description of the general context of seed production and seed markets in Ethiopia. It concludes that policies aimed at improving germplasm and final product quality, and rewarding farmers for their contribution in this process, are paramount.

Albert Hermann Post (1839–95) is an almost forgotten figure in the history of legal anthropology, yet he was the first anthropologist to propose the study of the legal relations of indigenous peoples. His questionnaire is presented here in English for the first time. It was distributed in the 1890s and the answers, from Cameroon, Mali, Western Sudan, Uganda, German East Africa, German South West Africa, Madagascar, and the Solomon and Marshall Islands, were published by Steinmetz in 1903, after Post's death. The questionnaire gives an insight into the state of German anthropology at the time and, however naïve the method, the answers provide in many cases the only written evidence for the period on the societies studied. This article also considers Hildebrandt's reassessment of Post and gives an account of the circumstances leading up to the distribution of Josef Kohler's later questionnaire.

There can be no doubt that British courts have, in general, built up a most impressive record by, and today enjoy a well-deserved reputation for, their sympathetic and intelligent application of those religious or customary laws, evolved by peoples of a culture and background very different from their own, which they have so often been called upon to administer. But there can be no branch of the law in which Muslim peoples who are subject to the jurisdiction of British courts, or courts trained in English traditions, have been made to suffer so many frustrations—by the judicial infusion of alien ideas, by misinterpretation or basic ignorance of the Islamic doctrines, and even by what can only be termed a rigidity of mind which ill-accords with this illustrious tradition—as in the law of waqf.

Geographical indications (GI's) for foods link a quality or characteristic of a product to its locality of origin. GI's usually represent traditional or artisanal knowledge and techniques, yet they are recognized as a form of intellectual property. A GI may propel a food or beverage product from commodity status (blue cheese) into the high value niche or gourmet market (Roquefort cheese) and, consequently, can have a positive social and economic impact on farmers and rural development. African teas, coffees and other special products might benefit from greater international recognition and protection of GI's. Geographical indications are defined in but receive very limited international protection under the WTO Agreement on Trade-Related Aspects of Inellectual Property (TRIPS). Most regulation of GI's in national (e.g., in the Cote d'Ivoire and South Africa) or regional (e.g., the Bangui Agreement and in the E.C.). At the WTO and during the Doha Development Round discussions Kenya, Mauritius, Nigeria and South Africa, among other African countries, have argued for the expansion of the TRIPS rules, as have the E.C. and Switzerland. Ausralia, Japan, and the U.S., several countries in Latin America, and others conside GI's as likely protectionist measures and prefer to rely on trademarks. Each African country must determine whether the potential benefits of GI's—including their positive impact on rural development—sufficiently balance the costs of implementing some form of an international system.

This article provides a detailed analysis of the Insider Trading Act, 1998, of South Africa. While it welcomes those provisions designed to proscribe insider trading by creating offences and introducing severe sanctions, it criticizes the Act for doing little to promote the goals of corporate compensation and market efficiency. The article adopts a comparative approach and draws widely on legislative attempts in other jurisdictions to control insider trading.

The primary function of the Organization for the Harmonization of Business Law in Africa (OHADA) is to modernize and harmonize the business laws of member states. The wider objective of OHADA is to attract foreign investment into the OHADA zone and to achieve economic integration in Africa as whole, as other African countries join OHADA. However, article 42 of the treaty establishing OHADA stipulates that French is the working language of the organization. This paper argues that this provision does not facilitate the goal of economic integration in Africa and that in one member state, Cameroon, article 42 presents serious constitutional and human rights difficulties. The paper suggests that article 42 should be amended in order to make it easier for key OHADA objectives to be attained and in order to remove the serious problems created in Cameroon.

In assessing customary law two quite contradictory tendencies exist. Some approach customary law deferentially, even reverently. This constitutes “our” law. It expresses “our” values. We must nurture it. Others take precisely the opposite perception. Customary law constitutes the law of primitive tribes; we aim to become modern; ergo, we must do away with customary law. How to choose between these quite conflicting perspectives?

We argue that to understand customary law, we must understand its political economy, that is, the function it performs in existing socio-economic and political structures, particularly with respect to the class interests involved. We undertake here to put forward our understanding of the political economy of customary law in the English-speaking countries of Africa. To do that, we describe, first, the difficulties which require explanation and solution, that is, the poverty and vulnerability of the mass of Africa's people; second, for that poverty, we attempt an explanation, which takes the legal order as the manipulable variable; and, finally, we suggest briefly options for reform and change.