Strathmore Law Journal

Foreword

Juan Carlos Riofrio — 2023-10-15

Tom Angier’s Natural Law vs. the Natural Law Formula

Juan Carlos Riofrio — 2023-10-15

This article presents a comprehensive overview and analysis of Tom Angier’s latest book, “Natural Law Theory”, published in 2021 by Cambridge University Press, and also compares its main conclusions with another study that analyses how natural law scholars have argued over the last century. To achieve this goal, the article initially outlines the core ideas of Angier’s book, which seeks to elucidate and assess the most significant theories of natural law throughout history, with an emphasis on the traditional approach rooted in Aristotle and the Stoics. Angier introduces the innovative “via negativa” method for identifying natural law principles within this framework. Following the exposition of the book’s content, the article draws parallels between Angier’s conclusions and the findings of another research project about the “Natural Law Formula” (or methods) currently used by natural law experts in legal literature. Both Angier and this research observe that contemporary authors face challenges in grounding the principles of natural law in the physical and spiritual human nature. Lastly, the article evaluates the “via positiva” and “via negativa” methodologies, highlighting their potential contradictions and concordances, while suggesting avenues for further refining Angier’s arguments.

What Natural Law Is Not: Distinguishing Natural Law from Other, Related Normativities

Santiago Legarre — 2023-10-15

Custodial congestion still persists as one of the biggest challenges to Nigeria’s Criminal Justice System. This is attributed to the operation ineptitudes of the Nigerian police force which employs means such as holding charges. This paper examines the practice of holding charges in Nigeria as a major contributor to the congestion of correctional facilities in Nigeria. This paper contends that the practice of holding charges is unconstitutional; in violation of the principles of fair hearing; and presumption of innocence and merely a means of administrative expediency. This paper concludes that the practice of holding charge in Nigeria undermines the rights of accused persons and calls for urgent reforms to the Nigerian criminal justice system to ensure that the protection of human rights is in tandem with the basic international human rights laws which mandate States to respect and ensure everybody’s right to personal liberty and security, and therefore, proffer some policy recommendations.

Custodial Congestion: An Examination of the Legal Hurdles of Holding Charge Practice in Nigeria

Julius Edobor — 2023-10-15

The ‘But For’ Test in Proving Causation in Insurance Claims in Uganda

Emmanuel Okurut — 2023-10-15

Causation in insurance law refers to the cause-and-effect relationship between an event and the resulting loss or damage. Causation is an important concept because it determines whether an insured party is entitled to coverage under a particular policy. There are several legal principles that are used to evaluate causation in insurance disputes, including the proximate cause rule and the ‘but for’ test. The ‘but for’ test, which inquires whether the loss would not have occurred ‘but for’ the occurrence of the covered event, has been criticized for its oversimplification of the causation analysis and its failure to adequately consider the complex causal chain that often underlies loss. In addition, the ‘but for’ test tends to draw a number of false negatives while taking into account certain irrelevant considerations. In contrast, the proximate cause rule, which requires that the covered event be the primary cause of the loss or damage, offers a more nuanced and comprehensive approach to causation analysis. It considers the full range of factors that may have contributed to the loss or damage and allows for a more flexible and context-specific analysis of causation. This article argued that the ‘but for’ test is an unreliable method for proving causation in insurance law and that the proximate cause rule is more appropriate. This article concluded that the proximate cause rule is a more reliable method for proving causation in insurance law and should be adopted as the standard for determining coverage under an insurance policy.

Indefeasibility of Title and Adverse Possession in Kenya: An Uneasy Relationship?

Sussie Mutahi — 2023-10-15

The doctrine of adverse possession conjures up deep emotional and philosophical arguments, centuries after its inception. While courts have perpetually been called upon to pronounce themselves on the fairness of the doctrine, a new formidable challenge has now been levelled against the principle-that of its relevance to 21^st century land law. The debate rages on in courtrooms and parliamentary floors around the world, calling lawmakers, members of the bar and the bench to contribute to the keep or discard dichotomy. This paper makes an argument for the incompatibility of adverse possession with an era characterized by rigorous registration systems. The analysis begins by tracing the history of adverse possession and then proceeds towards an empirical assessment of the arguments in favour of, and against the doctrine. The discourse then contextualizes the discussion to Kenya’s land law and concludes by making an argument against the retention of the doctrine with respect to registered land.

Family, Property and Inheritance: Institutions for Civilization and their Enemies

Ugo Stornaiolo — 2023-10-15

In the history of ideas, few institutions are as important or are as closely related as Family, Property, and Inheritance, for the establishment and function of an ordered society. About them, many perspectives have been taken by legal and political thinkers and philosophers on both the traditional Catholic and libertarian schools and their contemporary variants, which coincidentally agree that all of them are products of a perennial order, in most cases of a spontaneous origin that manifests itself within Natural Law, and as such, must be protected by positive legislation, although its relation is always understood as one of logic and not one of institutions. On the other hand, an opposing and hostile perspective on Family, Property, and Inheritance is promoted by revolutionary Marxism, revealing that, at least on its negation, there is a universal outlook on the mutual need of these three institutions to subsist as part of the social order, and particularly, as legal institutions, which uses, and formal aspects are protected by legislation to be applied in a particular community. By exploring these stances, as well as the proper definitions of Civilization, and order, one may understand the meaning of family, private property, and inheritance, as well as their legal conceptions in the history of ideas, and the way they are universally opposed by the Marxist schools of thought, based on their own revolutionary ends.

The Nigeria Start-up Act 2022 as a Catalyst for Technological Development and Economic Growth in Nigeria

Yunus Adelodun — 2023-10-15

This century has heralded technological advancement in human history, particularly in Africa. The influx of technological advancement currently in play all over the world and the economic benefits that come with such advancement has necessitated the need for some regulations. Hence, stakeholders particularly, governments all over the world have made efforts to regulate and support investments in technology. These supports include laws, policies and other incentives that promote technology. Recently, the Nigerian National Assembly passed the Nigeria Start-up Act (NSA), 2022 to provide a regulatory framework for the development of start-ups as well as to provide an enabling environment for the establishment, development, growth and operation of start-ups and technology-related talents in Nigeria. The Act also seeks to position Nigeria’s start-ups ecosystem as a leading digital technology centre in Africa in terms of excellent innovators with exportable skills and capacity. It is projected that the NSA will immensely contribute to technological development for Nigerian start-up companies to compete with their counterparts at the regional and international scene. This article examines the nature of start-ups and the Nigeria Start-up Act, 2022. It further analyses the pre-enactment of the Start-up Act era in Nigeria, the emergence of the Start-up Act, the impacts the Start-up Act might have on technological development, the challenges of the Act as well as the general challenges faced by start-ups in Nigeria. The article argues that the NSA is a welcome and commendable effort for technological development and economic growth in Nigeria.

The Relevance of the Doctrines of Natural Law, Human Rights and International Law to the Principle of Self-Determination

Joshua Samson Ayobami — 2023-10-15

In recent times, worldwide, agitations for self-determination, whether internal or external (secession), are becoming common. Also, in Nigeria, the agitation for self-determination has become intense. Historically, multiple independent nationalities were cobbled together by the British to form the nation called “Nigeria” without first seeking and obtaining their consent. Invariably, Nigeria is often under threats of instability due to separatist agitations from her diverse ethnic groups. Although, self-determination is expressed to be a “right’’ in different international legal instruments like the United Nations Charter and the African Charter on Human and Peoples’ Rights (ACHPR) and even the International Court of Justice (ICJ) has declared it to be of erga omnes in nature, the nature of this “right’ is still controversial. For instance, it is argued that the right to self-determination originated from natural law. Separatists in Nigeria, agitating for self-determination anchor their arguments on this contention. This paper examine the agitations for self-determination in Nigeria from the standpoints of natural law, the doctrine of human rights and the principles of international law. The objectives are to know if self-determination originated from natural law, and to see the nexus between self-determination and the doctrine of human rights. Also, to identify the status of self-determination as a right under international law; and how all these apply to the Nigerian situation. The paper adopted doctrinal research methodology, using both primary and secondary sources. The paper concluded that the tripartite doctrines of natural law, human rights and international law apply to the Nigerian situation.

Legal Responses to Domestic Violence in Marriages and Their Implication for Marriage Sustainability in Nigeria

Hameenat Bukola Ojibara — 2023-10-15

Domestic violence is a phenomenon which has caused so much concern in society and generated intense debates among policymakers, civil society activists and scholars. It is, therefore, no surprise that it is attracting so much scholarly attention lately. Despite the wide interest it has generated, an appropriate response grounded in law to tackle the scourge has defied logic. The situation even gets more complicated when other societal values such as marriage are present between the parties. So many (legal) mechanisms have been put in place in response to domestic violence. These responses are primarily grounded in law, mainly involving the criminal justice or legal system. Specifically, the typical response has been the use of the law and criminal justice approach. Despite the many advantages of the common approach, questions arise regarding its suitability for married partners. Indeed, recent concerns have arisen, especially in family law jurisprudence, regarding the need to preserve the institution of marriages, especially for domestic violence cases which are ‘resolvable’. This is because, in many cases, the common approach mainly results in the breakdown of marriages. Thus, the partial decriminalisation approach has begun to gain wide attention, especially in domestic violence cases between married partners. The objective of this paper is to analyse the various responses to domestic violence and their implication for the sustainability of marriages.

Weaponisation of trespass to land and its implications for land justice and enjoyment of property rights in neoliberal Uganda

Rose Nakayi — 2023-10-15

Protection of the right toproperty is among the central concerns of Uganda’s Constitution and laws. The law on civil and criminal trespass aims at facilitating enjoyment of property by prescribing damages for civil trespass and penalty for criminal trespass. Despite this, criminal and civil trespass have been used as weapons by some actors in land conflicts to undermine property rights of weaker parties and escalate land conflicts. The relationship among property, land conflicts and trespass is a theme of empirical significance in Uganda. Yet, weaponisation of trespass and its repercussions on property rights and resolution of land conflicts in Uganda is not significantly studied. This paper fills this gap. It conceptualizes criminal and civil trespass as embedded in the law, and how they have been weaponised. Using qualitative methods (analysis of literature, court decisions, and web based material) the paper finds that criminal trespass has been weaponized to target weaker parties to land conflicts hence impacting on their property rights and delivery of land justice. Using the criminal justice system, they are charged with criminal trespass, incarcerated, and are unable to pursue civil remedies from courts of law, hence protracting the underlying civil/land dispute. Civil trespass has also been misused within Uganda’s escalating land dispute terrain; in pursuit of selfish objectives rather than of justice. Uganda’s neoliberal context is an enabler of all the above. Recalibration of the civil justice system for efficience and amendment to section 302 to offer clarity on the boundaries of its application are recommended.