In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.

Just over a decade after the 1994 genocide, over 1,000 accused languish in Rwandan prisons. The International Criminal Tribunal for Rwanda and the nation's domestic courts have struggled to bring them to trial. In response, the Rwandan government has embarked on an experiment in mass justice: the gacaca courts. The new courts are inspired by traditional dispute resolution mechanisms. The judges are elected by popular vote in their cells to hear cases such as murder, assault and property offences. The system permits appeals (except for property crimes), though not to the domestic courts. The setting is less formal than criminal courts and promotes confessions from perpetrators and forgiveness from survivors. Coupled with this process are two related schemes for victim compensation and community service for those convicted. This article examines these courts from the perspectives of retributive and restorative justice, within the Rwandan context. In practice, the gacaca courts embody both principles, as well as their tension. The judges are lay persons, yet are engaged in complex legal adjudication. The accused have no right to legal representation, nor an appeal to the domestic courts. More importantly, survivors are marginalized by the process as the practical and political pressures on the Rwandan government have made them opt for expediency (more and faster trials) over reconciliation (survivor compensation and manifest regret by the perpetrators). The gacaca courts hold out much promise of reconciling a deeply divided society, but redressing the needs of victims must become a priority.

This article examines the requirement of the Nigerian Investment and Securities Act, 1999 (ISA) that securities be registered prior to being offered to the public, with a view to determining the limits (boundaries) of that requirement. It shows that the boundaries can be staked out along three dimensions: items excluded from the registration requirement because they are not caught by the definition of securities under the ISA; items that qualify as securities under the ISA's definition of that term but which are exempt from registration for various policy reasons (exempt securities); and items which are exempt only because of the nature of the transactions involved rather than the nature of the securities themselves (exempt transactions). It shows that while doubts about the limits of the registration requirement exist at some points where the boundaries cannot be readily staked out without interpretive difficulties, such doubts and the points in relation to which they exist are relatively residual, except in areas where the Nigerian Securities and Exchange Commission has in its rule-making manifested a misconception of its powers under the ISA.

This article considers the remedial and transformative potential of litigation based on legally enforceable socio-economic entitlements, such as the justiciable socio-economic rights contained in the 1996 South African Constitution. It focuses on the interpretation and enforcement of South African prisoners' constitutional rights to dignified conditions of detention (including the provision of adequate medical treatment at state expense) and to consult with medical practitioners of their choice. Although these rights have not yet been the subject of a decision by the South African Constitutional Court, they have been central or incidental to a number of High Court decisions. The article discusses these decisions in an attempt to illustrate, first, that courts are institutionally equipped to effectively vindicate socio-economic rights, secondly, that the enforcement of socio-economic rights may result in tangible and affirmative relief for individual beneficiaries, and thirdly, that victories in socio-economic rights matters may cumulatively have significant transformative potential. The article situates prisoners' rights to medical treatment in the South African social, legal and constitutional contexts, discusses the ambit, scope and remedial potential of the rights, and considers the affirmative and transformative effects of the judgments in which they have been enforced. In particular, the article considers the impact of this distinct body of socio-economic rights jurisprudence on overarching social struggles for improved access to health care services (especially antiretroviral treatment) in South African prisons.

In English law, equity is assigned relatively benign and comfortable roles, functioning as a canon of interpretation of the common law; as its versatile and flexible help-mate and mitigator of its formal strictness. More than this, equity claims a moral justice or conscience function that is deeply embedded in legal culture. As a consequence, equity has been extremely successful in lubricating the machinery of English law, providing it with a ready means of change to meet the needs of the dominant actors within society. This justice function is, however, contradicted by equity's history and its practical functioning, particularly, within the British colonial experience. This article examines the effect of the imposition of English equity on the prevailing customary law systems in colonial West Africa. The analysis challenges the fundamental claim of equity to a moral justice function within the colonial regime and argues that equity served the imperial objective as an instrument for fragmenting and dislocating indigenous property systems in order to facilitate the installation of capitalist property forms.

Section 54 of Ghana's Criminal Procedure Code, 1960 (Act 30), gives the Attorney-General discretion to enter a nolle prosequi in the course of a criminal trial. According to the orthodox view, this discretionary power is not subject to judicial review. The orthodox view raises a number of very important questions. First, is it really the case that the power to enter a nolle prosequi is not subject to judicial review? Secondly, if this is the case, how is the Attorney-General accountable for the manner in which he exercises his discretion and how is it possible to ensure that he acts fairly when he enters a nolle prosequi? This article challenges the orthodox theory and advocates a theory based on legal accountability. The proposed theory is founded on the view that accountability and fairness—which are central constituents of good governance—will be enhanced if the discretion to enter a nolle prosequi is subject to legal control. The paper goes on to show that the legal accountability theory is supported by article 296 of the 1992 Ghanaian Constitution and that it also conforms to practices found in other Commonwealth jurisdictions such as England, Canada, Fiji and Australia.

The revised version of the Cotonou Agreement that sanctions relations between the European Community (EC) and African, Caribbean and Pacific States (ACP) has been endorsed for a further five years. The new agreement contains a chronicle of changes that are significant. This research comment identifies a number of issues where novel provisions have been introduced into the text of the first agreement signed on 23 June, 2000. The new text contains innovations that relate to security, political dialogue, transparency, money and social responsibility. The security clauses include an express commitment by the partners to combat terrorism, the proliferation of weapons of mass destruction, as well as mercenary activities. In addition, adherence to the jurisdiction of the International Criminal Court is explicitly encouraged. Changes regarding political dialogue and transparency pertain to the increase in the time allotted for political consultation in the event of a serious case of violation of the articles proscribing political excesses and gross financial impropriety. In terms of development money, the list of potential beneficiaries has been widened. However, the net effect of the preceding statement may be obviated by the extensive oversight the EC Commission now has to control the use of funds. Provisions relating to structural reforms have been tempered to reflect the special needs of post-disaster stricken least developed countries. The latter reforms are equally in consonance with the partners' increasing consciousness of the fact that structural adjustment cannot be decoupled from social responsibility. In general terms, the revised Cotonou Agreement strengthens the power asymmetries in the relations.

Transnational crime is a major problem for African states with corruption, trafficking of persons, drugs trafficking, environmental crime and the like posing a major threat to development and stability. This article examines three challenges that states must tackle in order to combat transnational crime effectively. The first is how to deal with criminals who operate outside the jurisdiction. The second concerns the investigation of crimes with a transnational element. The third challenge involves tracing and then recovering the proceeds of crime that have been moved out of the country where the crime occurred. Here the need for Western states to cooperate with those in Africa is highlighted. Drawing on examples from Lesotho and Nigeria in particular, it is argued that some progress is being made in meeting these challenges. However, the article notes that developing the political will to tackle transnational crime is fundamental to any lasting improvement.

This paper is a critique of the policy-making process and the particular policy choice made by the Central Bank of Nigeria with respect to the recent increase in the minimum share capital requirement for Nigerian banks. The article questions the apparent prioritization by the Central Bank of banking supervision – important though it is – over macro-economic stability. It also draws attention to serious public law issues (breach of monetary law and abuse of power) and the private law implications (conflicts of interests, scheme of arrangement defects, and negligent valuations) of this policy-making episode and policy choice.

The entry into force of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, 2003 on 25 November, 2005, marked the culmination of years of lobbying for a document which would promote and protect the human rights of the continent's women by African women's rights advocates. This commentary provides a brief historical overview of the process leading up to the adoption of the Protocol by the African Union in Maputo in July 2003 before moving on to consider its substantive provisions.

The aim of this article is to draw on contemporary developments relating to the elaboration of a binding legal framework for the treatment of internally displaced persons in Africa. By definition, internally displaced persons are “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of, or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border”.