The right to freedom of religion and belief is closely linked with the rights to free expression of opinion, to peaceable assembly and freedom of association. In particular, they share the common purpose of assuring to an individual freedom of choice. Moreover, to be effective, each normally requires the use of one or other of the means of dissemination of knowledge and information, which include newspapers, books, pamphlets, petitions, posters, radio, television and motion pictures. Likewise, to be effective, the rights to freedom of religion and free expression of opinion must be linked to freedom of association in the sense of the right to form and to join organisations for the advancement of particular views and interests. This is particularly true of cities and other densely populated areas. Indeed, the essential similarity between these rights was reflected in their embodiment in a single article in earlier Sudan constitutions. A consequence of these similarities is that the denial or infringement of any one of them has further ramifications on the other rights apparently left intact. Accordingly, the present study, while focusing on freedom of religion, will make brief excursions into the related rights of free expression of opinion, assembly and association. Before considering problems raised by freedom of religion, reference must first be made to its necessity.

The trend of some Nigerian decisions where the defence of honest claim of right is raised is disturbing and shows a lack of proper appreciation of its scope. The defence is contained in section 23 of the Criminal Code which provides as follows:

“A person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud”.

This defence applies to all offences relating to property: stealing, robbery, demanding property with menaces, malicious damage to property etc. But it features more in theft offences than in other offences relating to property.

Expert evidence is an increasingly prominent feature of criminal litigation. Confidence in the reliability of such evidence is therefore vital to the integrity of the justice process. Of late, there have been concerns in most jurisdictions that liberal admissibility standards allow expert evidence of doubtful reliability to be admitted by courts, leading to miscarriages of justice. Consequently, most adversarial common law systems now apply reliability standards to the reception of expert evidence. Malawian law makes provision for the admissibility of expert evidence on mere production if the parties to the case consent. This article critically evaluates this position, arguing that it provides no safeguards for assessing the reliability of expert evidence, thereby making the criminal justice system prone to injustices and challenges related to the use of such evidence. It proceeds to consider how the law and the courts can enhance the reliability of expert evidence in criminal proceedings.

It is a happy coincidence indeed that in the 40th year of publication, the Editors of this Journal have had the privilege of publishing a liber amicorum for Professor James Read. In 1996 he retired from 40 years of teaching in the University of London, since 1974 as Professor of Comparative Public Law with special reference to Africa, a Chair which he retains in an Emeritus capacity. It has been a formidable task to attempt to do justice to the work of this “able, patient, effective and thoughtful scholar” (to adopt the words of two of our contributors) to African legal studies. However, this volume contains essays by colleagues and erstwhile students upon subjects which will at least in part reflect the richness and diversity of James Read’s interests.

This article explores why Botswana's environmental protection regulatory framework is failing to stem environmental deterioration. Based on the observation that such deterioration persists despite the fact that there is a framework in place, the discussion draws from experience with successful environmental protection regulatory frameworks around the world. The discussion establishes that successful environmental protection regulatory frameworks incorporate numerical quality and ecological standards, a command and control approach (with context-sensitive alternatives to account for the approach's limitations), and credible enforcement mechanisms. This article measures the extent to which Botswana's environmental protection regulatory framework incorporates these elements; it identifies that the reason why the framework has failed to stem environmental deterioration is that it does not adequately incorporate these qualities and proposes how this could be addressed going forward.

The division of state inhabitants into communities living under different laws opens up possibilities of conflicts problems on an unprecedented scale. These problems may arise not only when members of different communities enter into legal relationships, but also when the parties, whether members of the same community or not, choose to regulate their legal relations in accordance with another personal law. The occurrence of either of these circumstances poses some problems for which the law is difficult or uncertain. This study attempts to examine with particular reference to the Sudan the problem of choice of law to be administered.

In examining the problem of choice of law I shall attempt to show and compare how different systems of personal laws (i.e., where personal laws are administered in their respective courts of nationality, religion or ethnic community and courts which administer two or more personal laws) try to solve choice of law problems. It is apparent that the existence of the lex fori in the former and its absence in the latter should affect the approach to the problem of choice of law. The contrast between the two approaches is striking. The contention here is that systems of personal laws always apply their lex fori and treat questions of choice of law as mere questions of competence.

The new Constitution of the Federal Republic of Nigeria came into force with effect from 29 May, 1999, the date of the military handover to a democratically elected civilian regime. The document is based on the 1979 presidential constitution with some amendments and provides that Nigeria shall be a Federation made up of 36 States and a federal Capital Territory.

Despite a constitutional right to water, challenges remain for access to sufficient water in South Africa. This article considers the degree to which current legal provisions perpetuate approaches that are antithetical to genuinely eco-socio-sustainable water access. Water in South Africa has largely been re-cast as a commodity, exposed to market rules, proving problematic for many and giving rise to various responses, including litigation. In the seminal case of Mazibuko, the Constitutional Court failed to provide robust protection to the right to water, providing impetus for the formation of “commons” strategies for water allocation. Indeed, “commoning” is beginning to represent not only an emerging conceptual strand in urban resource allocation, but also a dynamic, contemporary, eco-sensitive, socio-cultural phenomenon, driving innovative, interactive and inclusive forms of planning and social engagement. Against the backdrop of unequal water access, commoning offers glimpses of an empowering and enfranchising subaltern paradigm.

This article is concerned with a specialized area of constitutional theory and practice, namely the regulation of the foreign affairs powers. Foreign affairs is a wide term which expresses more than mere relations. “Affairs” include matters and things, as well as relationships and a constitutional grant of legitimate plenary powerr. This entails that foreign affairs are matters relating to foreign countries, i.e. affairs other than domestic and, specifically, matters having to do with the interests of the home country in foreign countries. In this context, foreign affairs may be identified as a function. A function is an activity specially fitted for, appropriate to or expected of some particular type of operation because of its peculiar nature, or qualifications. The foreign affairs function, thus, as Bonfield says, may be in an activity specially fitted for, appropriate to, or expected of international relations—the interests of a state in foreign states—due to the peculiar nature or attributes of such relations. In addition, “power” may be defined as the competence to decide and act that is attached to a specific function. Hence the foreign affairs power is the competenbce to decide and act in matters having to do with the interests of the home state in foreing states. It is made up principally of the following elements: treay making, diplomatic relations, recognition of states and governments, and war and peace. Appropriate regulation of the elements of the foreign affairs power is a vital element of good governance in any particular state.

In 1963 a Minimum Sentences Act2 was passed which restricted discretion previously available to judges and magistrates when sentencing convicted persons. No new substantive offences were created by the Act but minimum sentences of imprisonment and corporal punishment were made mandatory for certain itemized property offences (“scheduled offences”). The Act aroused considerable interest both inside and outside this country and there is a long bibliography of comments on it.3 Much of the controversy concerned the mandatory infliction of corporal punishment, of at least 24 strokes, as part of the minimum sentence.4 Many members of the National Assembly were enthusiastic supporters of the corporal punishment provisions,5 although the Government leaders were more restrained: “They are not policies which we like”, said the Second Vice-President, Mr. Kawawa, “and I am convinced that Prisons Officers do not like them either; to administer corporal punishment is an unpleasant thing for any civilised person to do. But we have to make people recognize that to commit an offence against the nation or any of its citizens, is an evil thing which is a disgrace to the man who does it”.6

This article focuses on the appointment of judges in Malawi. It explores the constitutional provisions governing judicial appointments and finds that the system established by Malawi's Constitution has manifest weaknesses. For example, the composition of the Judicial Service Commission (JSC) is narrow and not representative of Malawian society; there are also no procedures for the JSC to follow in its operations. The article argues that the system for appointing judges has a bearing on the eventual character and integrity of the judiciary itself, hence it is important to align it with the constitution's ideals. In conclusion, the article makes recommendations for improving the system, including by broadening the JSC's composition, adopting a law to stipulate clear and transparent procedures for the JSC and also curbing presidential powers in relation to judicial appointments.

The legal profession, and legal education (which is the subject of an earlier article), in operational terms form one continuum. On the earlier occasion we depicted legal education as, in essence, referring to “experiences and training which help different kinds of people to understand and use law in society”. In more specific terms, legal education is concerned with the formal or approved stages of education and training, in preparation for service in such legal roles as: representing parties in judicial or related proceedings; giving legal advice and preparing legal documents or instruments in non-contentious matters; presiding over or participating in tribunals of a legal or quasi-legal character; representing the state in matters of a legal or quasi-legal nature; etc.

The often large body of professionals, who are the product of such a system of education, invariably necessitates the establishment of governing bodies; the enactment of regulatory legislation; the adoption of controlling practices; the fostering of certain norms and mores of professional culture; etc.

The recent global financial crisis has demonstrated the ineffectiveness of traditional regulation in averting financial crime. Consequently the supervision of financial institutions has been increasingly re-evaluated and such endeavours have resulted in the reregulation of the sector in many jurisdictions. This article argues that, much as these strategies can be said to be laudable, until they emphasize engagement with the people who work in those institutions through making it possible for them to report corporate misconduct, these legislative paradigms will not avail much. As such, this article argues for the increased use of insiders through whistleblowing as a mechanism to support the exposure of illegal activities. By comparing the whistleblowing approaches adopted in South Africa and Switzerland, this article attempts to contribute to the standardization of approaches that can be used to enhance global financial sector transparency and minimize financial crime.

The Kwandu are an agro-pastoral people of about 2,000 persons who inhabit the area of semi-desert around the Serra da Neve near the MoÇamedes Desert. Kwandu law has largely evolved in the context of a particular notion of time held by this people for whom the past is alive in the present and history interacts with events of the moment. Among the Kwandu the past is one of the main subjects of daily conversation, a vital component of their oral traditions as well as an enduring feature of their re-enactment of the lives of ancestors, of religious ritual and of the symbolic and value-systems of the group. This study brings together data collected in 1970 and 1971 when I lived for fourteen months with the Kwandu. During this period I shared their daily lives and spent many hours listening to the telling and re-telling of past events, gaining, in the process, an insight into their way of thinking and feeling, the essential key to an understanding of their history.

The oral history of the Kwandu is permeated by a concept of time which demands the constant revival and re-enactment of the past. Whenever a narrator evokes an ancestor he becomes that ancestor and transposes himself to the time of action to confront and re-live the events of the past. In this way all narratives, including many which go back several centuries to the most remote events in the collective memory, are recounted in detail, in the first person and in the present tense.

While for-profit companies regularly embark on non-profit activities, the converse issue has recently come to attention, namely whether non-profit companies may embark on profit-making activities. This has given rise to a confusing conundrum of practical importance, not only in South Africa but also in other jurisdictions. This article discusses whether non-profit companies, under the South African Companies Act of 2008, may have purely commercial objects. It also addresses the intertwined question of the contours of permissible profit-making activities. Since the non-profit company is the modern successor to the section 21 company under the previous Companies Act of 1973, this article considers the recent case of Cuninghame v First Ready Development 249, in which the Supreme Court of Appeal was faced with the problem of a section 21 company with a commercial object. The article also explores the administration of rental pool agreements by non-profit companies, which arose in the Cuninghame case.

Far from heralding a comprehensive and long-overdue reform of the law relating to marriage and inheritance in Zimbabwe, this White Paper is a modest document, only seven pages long, which largely restricts itself to considering the extent to which the law of intestate succession applicable to a person’s estate should depend on the type of marriage into which the deceased had entered. Even so, the issues raised are controversial and the government clearly wishes to stimulate public debate and to receive suggestions from all quarters before formulating its policy. It appears that the paper has succeeded in generating interest as well as some harsh criticism.