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South Africa’s Legal and Constitutional ‘Rain’ Showering over the Office of the Public Protector
Nomthandazo Ntlama-Makhanya
Issue:
Volume 5, Issue 4, December 2022
Pages:
342-349
Received:
7 June 2022
Accepted:
18 July 2022
Published:
11 October 2022
DOI:
10.11648/j.ijls.20220504.11
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Abstract: The establishment of the office of the Public Protector alongside other Chapter 9 institutions in the Constitution 1996 in supporting South Africa’s constitutional democracy signaled the needed dramatic change in the promotion of good governance. The Public Protector is a unique institution that was designed as the cornerstone, pillar and foundation that has to ensure adherence to the effective implementation of the principles of the new constitutional dispensation. Its core and broad framework is to promote and rebuild an effective system of regulating public authority in ensuring adherence to the culture of justification on the exercise of such power. However, the office of the current Public Protector: Advocate Busisiwe Mkhwebane has since her appointment seem to be stifled by litigation that is initiated or brought against her office. The conspicuous feature is her description by the courts as incompetent, egregious, carries her duties in a biased way, unfit and a dishonest person that misconstrues the points of law that are foundational to the investigative role of her office. Debates have ensued and calls were made for her removal from office to an extent, an enquiry headed by former Justice Bess Nkabinde was established to investigate her competence and fitness to hold office. The enquiry recommended that she be removed subject to the parliamentary process. The process has already begun and the President has since suspended her from office. With this background, South Africa’s 28 years of democracy come in the wake of the damning court judgments against the current Public Protector: Advocate Busisiwe Mkhwebane. This paper provides an overview of the non-exhaustive list of selected cases of the various divisions of the High Courts including the Constitutional Court that described the Public Protector as unfit and incompetent in holding office. The paper argues that the said description by the courts negates the integrity and status of the office of the Public Protector. The argument and related cases are limited to the term of office of the current incumbent: Advocate Mkhwebane. It is also not the intention of this paper to make a personal description of the current incumbent and analysis of the cases vis-à-vis the process of the removal of the head of the Chapter 9 institutions but uses the language of the courts on their description of her holding office.
Abstract: The establishment of the office of the Public Protector alongside other Chapter 9 institutions in the Constitution 1996 in supporting South Africa’s constitutional democracy signaled the needed dramatic change in the promotion of good governance. The Public Protector is a unique institution that was designed as the cornerstone, pillar and foundatio...
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Accreditation of Law Programmes in Nigeria: A Case for Review
Nasiru Tijani,
Gbemi Odusote
Issue:
Volume 5, Issue 4, December 2022
Pages:
350-358
Received:
27 September 2022
Accepted:
20 October 2022
Published:
28 October 2022
DOI:
10.11648/j.ijls.20220504.12
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Abstract: The number of Law Faculties in Nigeria have increased exponentially since the first four Law Faculties were established in the country in the early sixties. Accreditation is a pre-condition for the take-off of such faculties, and it is undertaken by the Council of Legal Education (CLE) and the National Universities Commission (NUC). The roles of these institutions are complimentary, and one is not superior to the other. It is necessary to interrogate the process of accrediting the Law Faculties to ensure that the desired goals for their establishment are met and sustained. While adopting doctrinal approach, this article discusses the process of accreditation of Law Faculties in Nigeria and argues that while the criteria have been clearly stated, implementing them is fraught with subjectivity and challenges that include unethical behaviour by the Universities and the high cost of undertaking the exercise both on the Universities and the accrediting bodies. This paper recommends that establishment of new Law Faculties should be suspended while the existing ones are strengthened. These call for political will on government and promoters of universities. In addition, consistency in the implementation of the standards may be achieved by departing from ad hoc panels to a permanent body.
Abstract: The number of Law Faculties in Nigeria have increased exponentially since the first four Law Faculties were established in the country in the early sixties. Accreditation is a pre-condition for the take-off of such faculties, and it is undertaken by the Council of Legal Education (CLE) and the National Universities Commission (NUC). The roles of th...
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The Responsibility of the Administrators in the Processes Falencias and in the Preventive Bankruptcy
Issue:
Volume 5, Issue 4, December 2022
Pages:
359-370
Received:
17 July 2022
Accepted:
29 July 2022
Published:
4 November 2022
DOI:
10.11648/j.ijls.20220504.13
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Abstract: The faulty responsibility together with the institutes of the extension of the bankruptcy (art. 160 to 171, LCQ) and the inefficiency bankruptcy (arts. 118 and 119, LCQ), make up the triad of patrimonial integration of the Argentine food law. However, the responsibility of the administrators for their actions in a company whose preventive bankruptcy was opened is an issue not contemplated in national legislation. In view of this problem, the present work addresses the different institutes of both bankruptcy law and general civil liability in order to project possible solutions in an integrating vision of law. For this, a "dialogue of sources" is generated, putting into debate the bankruptcy law, the corporate law and the civil and commercial code. In order to achieve a complete study of the issue, the theory of Corporate Social Responsibility is delved into, analyzing whether in case of violation of the principles that govern it, the administrators may also be held responsible. This investigation concludes that the damage caused by any person must be repaired if it was caused unfairly, and that is a maxim of our societies. To think that this does not apply to the Insolvency and Bankruptcy Law is to classify oneself in a watertight microsystem disconnected from the rest of the system, an issue that doctrine and even legislation have been overcoming for several years. It has been shown that the foundations of the responsibility of corporate administrators in bankruptcy proceedings do not arise from the letter of the food law but from the entire legal system that, in a harmonious interpretation, allow us to attribute responsibility to the one who has caused damage. That he should not do it, that is to say unfairly.
Abstract: The faulty responsibility together with the institutes of the extension of the bankruptcy (art. 160 to 171, LCQ) and the inefficiency bankruptcy (arts. 118 and 119, LCQ), make up the triad of patrimonial integration of the Argentine food law. However, the responsibility of the administrators for their actions in a company whose preventive bankruptc...
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The Relevance of Natural Justice in the Decision-Making Processes of Public Bodies and Officials in Ghana
Issue:
Volume 5, Issue 4, December 2022
Pages:
371-377
Received:
11 October 2022
Accepted:
3 November 2022
Published:
16 November 2022
DOI:
10.11648/j.ijls.20220504.14
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Abstract: As its name implies, Natural Justice is so fundamental that it is equated to being innate, intuitive or instinctive. It is essentially designed to ensure fairness in the application of law. This paper aims to discuss the relevance of natural justice in the decision-making processes of public bodies and officials, taking the 1992 constitution of Ghana in perspective. The principles are so fundamental and universal that they are implied to apply to every situation of the law unless otherwise explicitly stated in statutes. It has even been said that, the Biblical events at the Garden of Eden; specifically, the act of disobedience by Adam and Eve and their subsequent trial by God marked the beginning and development of these principles. This paper studies the twin principles of Natural Justice against the backdrop of the 1992 Constitution of Ghana. According to the study, "natural justice" is based on the two (2) principles that "no man shall be punished without due process of law" and "no man shall be judge in his own cause (with exception)". People have the right to seek redress in front of a court or other authority if they have been mistreated by the implementation of such acts or decisions. The principles of natural justice essentially guarantee justice and fairness therefore, the importance of the exercise of Natural Justice is clearly indicated. It is recommended that Rule of law should be strictly adhered to without prejudice. Also, due process should be followed without any human or institutional interference. Furthermore, the media must apply professional standards in their work delivery in the support of natural justice.
Abstract: As its name implies, Natural Justice is so fundamental that it is equated to being innate, intuitive or instinctive. It is essentially designed to ensure fairness in the application of law. This paper aims to discuss the relevance of natural justice in the decision-making processes of public bodies and officials, taking the 1992 constitution of Gha...
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UNCITRAL Model Law Development of Arbitration Framework for EPC Disclosure of Travaux Preparatoires Using Political Expedience of Tax Planning
Issue:
Volume 5, Issue 4, December 2022
Pages:
378-386
Received:
4 November 2022
Accepted:
17 November 2022
Published:
29 November 2022
DOI:
10.11648/j.ijls.20220504.15
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Abstract: Corporate Governance is a conceptual framework of business designs intended to illustrate the various activities of a company towards fulfilling its profit goals as private stakeholder and contributing to public interests for social obligation of sustainable development. Disclosure of corporate social responsibility is the central mechanism of corporate governance. Based on stakeholder theory, corporate governance strongly influences corporate social responsibility disclosure to enhance the relationship of stakeholders and its business community. Tax aggressiveness is utilized by board director and its members to lessen tax contribution which is contrary to the government sector goals of maximizing tax impositions for public welfare and safety. Unlawful behavior on tax aggressiveness is known as tax evasion while tax avoidance is not a violation and serves as a loophole to the taxation system. UNCITRAL model law is a legal arbitration concept of making “commercial” expand to other comparable jurisdiction of international trade. The European Patent Commission is the legal authority that delineates medical policies from patented products. Travaux preparatoires is a design practice within legal context of restricted jurisdiction for commercial exercise of strict liability. This paper aims to develop arbitration framework based on stakeholder theory of corporate governance to explain the correlation of tax planning with patented products and medical processes involving therapeutic, surgical, and veterinary policies. Therefore, tax evasion is not apparent criminal behavior and tax planning on medical policies and patented drugs must have a separate strategic means of increasing monetary success for tax avoidance to be clearly managed by the company.
Abstract: Corporate Governance is a conceptual framework of business designs intended to illustrate the various activities of a company towards fulfilling its profit goals as private stakeholder and contributing to public interests for social obligation of sustainable development. Disclosure of corporate social responsibility is the central mechanism of corp...
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The Kampala Convention on Internally Displaced Persons in Nigeria: The Need for Its Domestication in Nigeria
Issue:
Volume 5, Issue 4, December 2022
Pages:
387-394
Received:
1 October 2022
Accepted:
7 December 2022
Published:
27 December 2022
DOI:
10.11648/j.ijls.20220504.16
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Abstract: In order to comprehend the challenges at hand, this article explains essential terms and investigates how internal displacement is managed in Nigeria using the Kampala Convention as a reference. The Kampala Convention and supplementary pertinent Nigerian regulations were also discussed in this article, despite the Nigerian government's inability to reduce the expanding figures of internally displaced people residing within its boundaries. This is essential since, as this paper correctly found, despite Nigeria's ratification of the Kampala Convention, it has not been domesticated. The inference of this is that the Convention would not be applicable until it has been domesticated in accordance with the requirements of the Nigerian Constitution, which is aptly represented in section 12. As a result, this study incorporates a critique of the pertinent agencies involved in the management of internal displacement of persons, as well as their associated tasks and difficulties. This essay further argues that pushing the government to domesticate pertinent laws and to afford the necessary funding for pertinent agencies will aid in finding long-lasting solutions to the problem of population relocation. This paper also makes the case for addressing the underlying causes of displacement in Nigeria and calls for challenging government policies that encourage arbitrary internal migration. It comes to the conclusion that reducing internal migration requires cooperation from the government, its agencies, non-governmental organizations, non-state actors, and individuals.
Abstract: In order to comprehend the challenges at hand, this article explains essential terms and investigates how internal displacement is managed in Nigeria using the Kampala Convention as a reference. The Kampala Convention and supplementary pertinent Nigerian regulations were also discussed in this article, despite the Nigerian government's inability to...
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Regulation Paths of Regulatory Sandbox Entry Mechanism in China
Issue:
Volume 5, Issue 4, December 2022
Pages:
395-406
Received:
30 November 2022
Accepted:
14 December 2022
Published:
27 December 2022
DOI:
10.11648/j.ijls.20220504.17
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Abstract: With the rapid development of Fintech, in the end of 2019, China introduced the “regulatory sandbox” mechanism which had developed very fast in recent years. Although some relevant regulations and policies have been issued, there is no mature and applicable regulation relating to the regulatory sandbox in China. Risks in the regulatory sandbox might spread to the whole financial market, therefore it is significant to establish an unambiguous entry standard rule for regulatory sandboxes. In China, there are some problems in the formulation of regulatory sandbox entry standards in projects and applicants reviewing and consumers protection. Through studying the operation of regulatory sandboxes in other countries and regions, it is found that the scope of regulatory sandbox applicants in China is not extensive and diversified enough. Also, there is a high possibility of power rent-seeking in the review of sandbox projects, which would increase the potential risks faced by consumers. Therefore, it is necessary to issue a special regulation regarding the regulatory sandbox clarifying the entry standard in China. This legislation should expand the scope and diversity of sandbox applicants, increase the transparency of projects review process, introduce independent experts to review the innovativeness of projects, and strengthen consumer protection in several aspects.
Abstract: With the rapid development of Fintech, in the end of 2019, China introduced the “regulatory sandbox” mechanism which had developed very fast in recent years. Although some relevant regulations and policies have been issued, there is no mature and applicable regulation relating to the regulatory sandbox in China. Risks in the regulatory sandbox migh...
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