ENVIRONMENTAL RIGHTS IN ETHIOPIA: SHIFTING FROM THEORY TO PRACTICAL REALIZATION

Desalegn Amsalu*

ABSTRACT

Influenced by developments in the international environmental rights law, most African countries now incorporate in their Constitutions or other major legal documents environmental rights for their citizens. The 1995 Federal Constitution of Ethiopia, its environmental policy, and all subsequent legislation also incorporate environmental rights that are in the major international environmental law conventions. These rights include the right to a clean and healthy environment, the right to access justice, as well as the right to information and public participation. However, the environmental rights that are included in the country’s Constitution, policies and laws are simply rhetorical. For example, in Addis Ababa, the country’s capital, residents suffer from such horrendous odour oozing out of the putrefaction of the environment. Consequently, children and even adults are affected by various diseases such as respiratory and skin infections. Some residents even abandon their homes, not being able to resist the pollution of their environment. The government’s lack of human resource capacity and appropriate technology to promote a healthy and safe environment; its preference of economic growth over environmental protection; environmental corruption; and poor responsiveness of the public, the policy makers, the executive, as well as the judicial organs such as the police and the court to environmental rights, are among the major causes of poor implementation. The article examines how environmental rights could be given due attention as an extension of basic human rights and as a tool for sustainable economic development.

Keywords: Environmental rights, theory, practice, factors for poor enforcement, Ethiopia.

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.4

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* Desalegn Amsalu LLB (Hons), MA, and PhD (Addis Ababa University), currently legal researcher at Addis Ababa University, Ethiopia. Email: desalegn.amsalu@aau.edu.et. This work is done based on funding from Addis Ababa University under a thematic research award from 2014-2016. Any opinion, finding and conclusion or recommendation expressed in this article is that of the author only

SUSTAINABLE DEVELOPMENT LAWS IN ETHIOPIA: OPPORTUNITIES AND CHALLENGES OF THEIR IMPLEMENTATION

Teferi Bekele Ayana* and Wekgari Dulume Sima**

ABSTRACT

Despite the recognition of sustainable development in different legal documents and laws in Ethiopia, implementation in its fullest sense remains a key challenge. This article examines the place of sustainable development under the Federal Democratic Republic of Ethiopia (FDRE) Constitution and other national environmental laws. It discusses the challenges of promoting sustainable development in Ethiopia by reviewing the existing and relevant literature and assessing legal documents and commitments made by the country. The article recommends the working together of government as well as environmental and investment institutions to make coordinated and coherent efforts to advancing effective implementation of sustainable development and the realization of SDGs in Ethiopia.

Keywords: Sustainable Development, Constitution, Environmental Laws, Challenges

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.3

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* LL.B, LL.M, Editor-in-Chief of Oromia Law Journal, and Senior Legal Researcher at Oromia Justice Sector Professionals Training and Legal Research Institute. Email: bekele.teferi@yahoo.com

** LL.B, LL.M Candidate, Senior Legal Researcher at Oromia Justice Sector Professionals Training and Legal Research Institute. Email: wekgaridulume@yahoo.com.

TURNING FISH SOUP BACK INTO FISH: THE WICKED PROBLEM OF AFRICAN COMMUNITY LAND RIGHTS

Robert Home* and Faith Kabata**

ABSTRACT Africa’s postcolonial disputes over community land rights are a “wicked” problem, not evil, but resistant to resolution. This article investigates three such disputes in Kenya (Endorois, Ogiek and Nubian community) where the African Commission and Court of Human and Peoples’ Rights have determined in the communities’ favour but the implementation is not progressing, both because of opposition by the state and the complex and long-standing nature of the cases. The legal history of colonial trust lands and recent community land legislation is discussed, the three key cases are summarized, and issues of indigenous people’s status, admissibility and respondent government discussed in relation to the UN Declarations on Rights of Indigenous Peoples (1987), Right to Development (1986), and Land Issues (2009). Practical and political aspects of implementing the determinations are examined, and recommendations proposed.

Keywords: Indigenous people’s rights; Endorois; Ogiek; Nubian community; Kibera; land law reform; African Union enforcement.

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.2

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* MA PhD MRTPI Emeritus Professor in Land Management, Anglia Ruskin University (UK). Email Robert.home@anglia.ac.uk.

** LL.B, LL.M LL.D Law Lecturer, Kenyatta University School of Law (Kenya) Email: kabata.faith@ku.ac.ke

MANAGING CONTINGENT LIABILITIES ARISING FROM PUBLIC PRIVATE PARTNERSHIP PROJECTS

George Nwangwu*

ABSTRACT

All public infrastructure projects, irrespective of how they are procured, managed and financed, generate future liabilities. This becomes even more apparent under the Public Private Partnership arrangement. A number of these liabilities are subject to a high degree of uncertainty regarding when they will arise and the financial exposure involved when they do, and are therefore said to be contingent. Contingent liabilities have the potential to undermine national macroeconomic policy and cause significant economic harm when they crystalize. This article examines the legal and institutional mechanisms available in Nigeria to manage these liabilities and suggests ways for designing a PPP delivery process with inbuilt mechanisms for identifying, mitigating, tracking, and managing them.

Keywords: Public Private Partnerships, Contingent Liabilities, Risk Mitigation

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.5

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* MBA (Oxford), PhD in Law (University of Hull), Former PPP Adviser, Federal Ministry of Finance, Government of Nigeria. Email: gnwangwu@gmail.com

THE NIGERIAN OIL AND GAS LOCAL CONTENT REGIME AND ITS (NON-)COMPLIANCE WITH THE TRIMS AGREEMENT

Uchenna Jerome Orji *

ABSTRACT

One major milestone for the Nigerian oil and gas industry was the enactment of the Nigerian Oil and Gas Industry Content Development Act in 2010. The Act establishes a comprehensive local content regime that enshrines legal measures which promote the patronage of Nigerian products and services by operators in the Nigerian oil and gas industry. This article examines the provisions of the Act and Nigeria’s obligations under the WTO’s Trade Related Investment Measures (TRIMS) Agreement with a view to determining whether the provisions of the Act are in violation of Nigeria’s obligations under the TRIMS Agreement. It also examines whether any exemptions can justify the derogation of Nigeria’s obligations under the TRIMS Agreement. The article finds that requirements under the Act constitute trade-related “investment measures” within the meaning of the TRIMS Agreement because such requirements are explicitly meant to apply to “all operations or transactions” connected with the oil and gas industry. This article also finds that some provisions of the Act are not in compliance with Nigeria’s obligations under the TRIMS Agreement. In particular, sections 10 (1), 11(1), and 12 of the Act which favour the use of local products and materials for projects in the oil and gas industry contravene Nigeria’s obligations under the TRIMS Agreement. The article further identifies exemptions which can justify Nigeria’s application of oil and gas industry local content measures that derogate obligations under the TRIMS Agreement. In this regard, the article suggests that the exemptions under Article 4 of the TRIMS Agreement, which permit a WTO member whose economy is in the early stages of development and can only support low standards of living to temporarily apply local content measures, can be applied by Nigeria to justify the oil and gas industry local content measures under the Act for the purpose of promoting economic development and improving living standards in the country.

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* LL.B (Hons.), (University of Nigeria); LL.M (University of Ibadan); PhD (Nnamdi Azikiwe University Nigeria) Barrister and Solicitor of the Supreme Court of Nigeria.

ADDRESSING THE ENERGY CONSUMPTION ECONOMIC GROWTH NEXUS: THE NIGERIAN CASE

Omolola Olarinde* and Abraham Adeniran**

ABSTRACT

Energy is critical to the survival and expansion of any economy. In Nigeria, energy consumption has been skewed towards household use, and below thresholds for sector-driven growth. The article updates, in time and methodology, those studies highlighting the significance of energy use for economic growth, using the Bound test and the Auto Regression Distributed Lag (ARDL) to establish the long- and short-run relationships between disaggregated energy consumption and economic growth in Nigeria from 1990 to 2016. The variables considered are real GDP, energy consumption decomposed into electricity and petroleum consumption, labour and capital. The findings show that, in the short and long run, petroleum consumption and labour have a significant positive relationship with GDP. Furthermore, the causality results show that feedback causation between economic growth and energy consumption as well as labour exists, while one-way causation runs from labour to economic growth. The study recommends diversification of the power-generation portfolio in the country, as this will improve energy consumption. Also, full deregulating policies in the energy sector would encourage industrialization and move energy demand towards increasingly productive uses. Finally, a strong institutional framework is needed to ensure energy policies achieve their objectives and targets.

Keywords: Energy Consumption, Economic Growth, Industrialization, Error Correction.

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.6

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* Lecturer, Department of Economics, Elizade University, Ilara-Mokin, Ondo State & Research Fellow, Institute of Oil Gas, Energy, Environmental and Sustainable Development, Afe Babalola University. Email: omolola.olarinde@elizadeuniversity.edu.ng.

** Associate Research Fellow, Institute of Oil Gas, Energy, Environmental and Sustainable Development, Afe Babalola University

ADVANCING ELECTRONIC VOTING SYSTEMS IN NIGERIA’S ELECTORAL PROCESS: LEGAL CHALLENGES AND FUTURE DIRECTIONS

Obinne Obiefuna-Oguejiofor*

ABSTRACT

This article aims to examine the legal and policy challenges associated with adopting an electronic voting (e-voting) system in Nigeria’s electoral process. Nigeria, Africa’s largest democracy, has for many years been held down by issues of election fraud, thuggery, violence as seen in past manual elections in the country. The article argues that, if properly implemented and financed, e-election offers great promise and potential as the panacea for voter fraud in Nigeria’s electoral system. First, it examines the theoretical, legal and constitutional basis for e-voting. Second, drawing lessons from other jurisdictions, it analyses practical challenges for the implementation and adoption of an e-voting system in Nigeria. These challenges include the possible compromise of e-voting devices, by viruses or other malicious software; manipulation by people with privileged access to the system, either system developers, system administrators or malicious hackers; denial-of-service attacks (attacks that result in the e-voting facility being disabled or otherwise unavailable for voters to use); lack of adequate supervision mechanisms; and the difficulties of proving electronic attacks in courts of law among other things. Many of these problems are beyond the contemplation of and, therefore, are unaddressed by Nigeria’s Electoral Act, making the law currently incapable

OIL PRODUCTION AND HOST COMMUNITY RELATIONS IN NIGERIA: THE LIMITS OF THE UTILITARIAN APPROACH

Lola Ayotunde*

ABSTRACT

While resource extraction generates enormous revenue for resource-rich countries such as Nigeria, it could also engender human rights violations in host communities. This article explores the efficacy of the prevailing utilitarian approach to oil and gas management in Nigeria. The utilitarian calculus is applied to Nigeria’s oil and gas management to demonstrate how the utilitarian theory substantially influences the decisions of the Nigerian government. Although utilitarianism posits that the happiness of the majority is the primary objective of governance, this is arguably not a viable reason to violate the rights of the minority Niger Delta communities for the economic gains of the majority of Nigerians. As an alternative to the ineffective and unsustainable utilitarian resource management approach, this article discusses the importance of the human rights-based approach to resource management.

Keywords: Utilitarianism, Oil and Gas, Niger Delta, Human Rights, Corporate Social Responsibility.

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.8

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* PhD student at the College of Law, University of Saskatchewan, Canada. She holds a master’s (LL.M) degree in Sustainable Development Law from the same University and was called to the Nigerian Bar in 2012. The author is a member of the Law and Society Association and student member of the Saskatchewan Law Society

THE TREASURY SINGLE ACCOUNT AND THE SEARCH FOR EFFECTIVE REVENUE MANAGEMENT IN NIGERIA’S OIL AND GAS SECTOR

Law Amadi* and Peter Chukwuma Obutte**

ABSTRACT

The Treasury Single Account (TSA) policy was designed to block revenue loopholes, promote transparency and accountability, prevent mismanagement of government’s revenue, unify government bank accounts, improve the processing of payments and collections, and reduce borrowing costs. It aims to ensure complete, real-time information on cash resources and improves operational and appropriation’s control. Despite its clear conceptual aims, its practical implementation has been fraught with several legal challenges and questions. This article examines the concept and historical origin of TSA in Nigeria as well as its application in petroleum revenue management with a view of determining its legality and constitutionality. The article further considers whether the application of TSA had occasioned conflict or confusion between the Federation Account and the Consolidated Revenue Fund as provided under the 1999 Constitution of the Federal Republic of Nigeria, as amended in the aftermath of the reform. It argues that TSA is not an account, but a policy nomenclature directed towards the compliance with sections 80 (1) and 162 (1) of the 1999 Constitution as amended. Although it is currently not provided for in any law or the Constitution, the article insists that the constitutionally recognized accounts for the payment of revenue are the Federation Account and the Consolidated Revenue Fund. TSA is a good and effective policy for the management of petroleum revenue. The article recommends a robust legal and institutional reform to secure its legality, continuity and sustainability. It urges the legislature to review some of the laws and amend the Constitution to entrench TSA in the legal regime.

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* LL.B (RSU), BL (Lagos), LL.M (Ibadan), Doctoral candidate, Center for Petroleum, Energy Economics and Law (CPEEL), University of Ibadan, Nigeria.

** LL.B (Ibadan), BL, LL.M (Ife), Cert. Antitrust (Fordham), Sp. LL.M, LL.D (Oslo). Ag Head, Department of Jurisprudence and International Law, Faculty of Law, University of Ibadan

STAY OF PROCEEDINGS PENDING ARBITRATION: PROTECTING THE INTERESTS OF THIRD-PARTIES TO ARBITRATION IN NIGERIA

Taofeeq N. Alatise*

ABSTRACT

Courts have the power to stay proceedings pending arbitration. In Nigeria, the enabling statute regulating commercial arbitration is the Arbitration and Conciliation Act of 1988. Sections 4 and 5 of the Act contain two similar but conflicting provisions regulating the stay of proceedings. These sections of the law are a product of a common ground found in two different legislative texts. While section 4 leveraged on the provision of Uncitral Model Law on Arbitration, section 5 is influenced by Arbitration Act of 1914. This dichotomy between the histories of the two sections partly accounts for the controversies and difficulties in the interpretation and application by courts and scholars. This article examines the scope of sections 4 and 5 of the Act by identifying the real object of the law and the flaws in its current interpretation. The article considers the American experience, especially, the attitude of courts in granting a stay of proceedings and whether a stay can be granted in a suit against a non-party to the arbitration agreement. Unlike arbitration laws in the United States, one key gap in Nigerian arbitration law is its failure to contemplate stay of proceedings in a suit against a non-party to an arbitration agreement. In addition to identifying the need for urgent legal reforms that accommodate third-party stay pending arbitration, this article recommends that Nigerian courts, like their counterparts in developed jurisdictions, should adopt a more proactive approach by evolving innovative ways in deciding suits involving third parties to arbitration agreement and stay proceedings pending arbitration in appropriate cases to prevent parties from avoiding arbitration by suing a third-party, in line with the global best practices.

Keywords: Arbitration, Stay of Proceedings, Third Party.

DOI: https://dx.doi.org/10.4314/jsdlp.v9i2.11

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* LL.M (Ilorin) Legal Practitioner based in Ilorin, Kwara State, Nigeria. Email: alatise.taofeeq@yahoo.com