A COMPARATIVE ANALYSIS OF THE USE OF UNSOLICITED PROPOSAL FOR THE DELIVERY OF PUBLIC-PRIVATE PARTNERSHIP PROJECTS IN AFRICA

George Nwangwu*

ABSTRACT

As countries across Africa continue to look for ways to develop their infrastructure, the use of Unsolicited Proposals (USPs) in the procurement of Public-Private Partnership (PPP) projects have become very popular across the continent. This is despite the widely held view that this procurement model should be used with caution since it stifles competition, is susceptible to abuse and, therefore, likely to lead to the delivery of projects that do not deliver value for money. However, apart from a few studies and despite the very pervasive use of USPs across the continent, there has been very minimal academic inquiry on the use of this procurement approach in Africa. This article, therefore, contributes to this very important area by first distilling a best practice framework as a guide for countries to use in procuring USPs. Secondly, the paper evaluates the experiences of four different African countries in the use of USPs, using the framework as a guide. The lessons learnt are then used to make recommendations for improvement in the procurement of USPs across Africa.

Keywords: Public-Private Partnerships; Unsolicited Proposals; Procurement; Infrastructure; Project Financing; Sustainable Development.

DOI: https://dx.doi.org/10.4314/jsdlp.v10i2.4

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* Dr George Nwangwu, Research Fellow, African Procurement Law Unit, Department of Mercantile Law, Stellenbosch University, South Africa. gnwangwu@gmail.com

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.

INTEGRATION OF ENVIRONMENTAL SAFEGUARDS INTO ETHIOPIAN INVESTMENT AND SECTORAL LAWS

Mohammed Ibrahim Ahmed*

ABSTRACT

The aim of this article is to analyse the nature, scope and extent to which environmental norms and principles are integrated into the Ethiopian investment laws. The integration of an environmental matter into investment laws is very important in that it ensures that investment bodies and institutions do not disregard the environment by focusing only on economic achievement. The legal analysis of Ethiopian investment laws shows that although they contain environmental protection provisions, the language, manner and extent of stipulation adopted differ. The Mining Operation Proclamation No. 678/ 2010, Energy Proclamation No. 810/2013 and Petroleum and Petroleum Products Supply Operation Proclamation No. 838/2014 integrate environmental protection in an unequivocal manner. However, the Investment Proclamation No. 769/2012 and Transaction of Precious Minerals Proclamation No. 651/2009 do not use similar language with proceeding proclamations. This article argues that if environmental protection is integrated both under the Investment Proclamation No. 769/2012 and the Transaction of Precious Minerals Proclamation No.651/2009, the language used in both proclamations should be unequivocal, clear and in good manner similar to those of Mining Operation Proclamation No. 678/2010, Energy Proclamation No. 810/2013 and Petroleum and Petroleum Products Supply Operation Proclamation No. 838/2014.

Keywords: Investment and environment, economy and environment, environmental protection, sustainable development, environmental and investment issues.

DOI: https://dx.doi.org/10.4314/jsdlp.v8i2.6

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* LL.B (ekelle University), LL.M (Jimma University), Lecturer at Law School of Ambo University, Ethiopia. Email:ibshi66@yahoo.com

CONSTITUTIONAL IMMUNITY CLAUSE AND THE FIGHT AGAINST CORRUPTION IN NIGERIA

Sesan Fabamise*

ABSTRACT

One of the most pressing debates in Nigeria today is on the continued retention, or removal, of the immunity clause enshrined in section 308 of the 1999 Constitution of the Federal Republic of Nigeria. Some scholars canvass for the removal of the immunity clause because its retention, they argue, appears ironic in view of the stance of the government to rid governance of corrupt practices, including misappropriation of public funds. Others have called for its retention while another set of scholars further ask that it be extended to the leadership of the National Assembly and the States Houses of Assembly. This latter group has said that the Senate President, the Deputy Senate President, the Speaker of the House of Representatives and the Deputy Speaker as well as the Speakers of the States Houses of Assembly and their Deputies should be granted immunity under the Constitution. This article discusses the immunity clause and its sphere, extent and limits as it relates to the officers protected, the arguments for and against its retention in the Constitution, as well as state practices in other jurisdictions.It concludes that it is expedient to retain the clause, but the call in some quarters to expand it to cover the leadership of the National Assembly and States Houses of Assembly is not viable.

Keywords: Corruption, immunity, Constitution, sustainable development.

DOI: https://dx.doi.org/10.4314/jsdlp.v8i2.8

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* LL.B (Lagos), LL.M (Lagos) Associate Professor and Head of Department, Public and International Law, College of Law, Afe Babalola University Nigeria.

ECONOMIC RELATIONS BETWEEN TURKEY AND AFRICA: CHALLENGES AND PROSPECTS

Elem Eyrice Tepecikliogu*

ABSTRACT

African affairs occupied a secondary status in Turkish foreign policy until very recently. However, following the adoption of the Action Plan for Opening up to Africa in the late 1990s, Turkish politicians started to assign a higher priority to relations with African countries. The incumbent Turkish government now attaches great importance to developing long-term relations with those countries. We can also see that Africa’s image in Turkey is changing with journalists presenting new narratives about the continent and supporting Turkish involvement in African affairs. There is also an increasing interest in African studies in the academia, although scholarly work produced on African issues remains limited. This study explores the evolution of Turkish-African relations and concentrates mostly on Turkey’s economic engagement in African countries. It also seeks to analyse recent Turkish initiatives in Africa’s energy sector. The article argues, among other things, that although the low level of attention paid to African issues has changed, the pace of the development of relations with Africa is still slow and more steps have to be taken to further improve relations with African countries.

Keywords: Turkey, Africa, Sustainable Development

DOI: https://dx.doi.org/10.4314/jsdlp.v8i1.2

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* Department of International Relations, Yasar University, Turkey. E-mail: elem.eyrice@gmail.com

SUSTAINABLE DEVELOPMENT OF NATIONAL ENERGY RESOURCES: WHAT HAS INTERNATIONAL LAW GOT TO DO WITH IT?

Catherine Redgwell*

INTRODUCTION

It is particularly apt to be addressing the sustainable development of energy resources before this august audience. As Professor Omorogbe states in her welcome address, the ILA Nigerian Branch Committee, under the auspices of which this Third Annual Conference is organized, replicates the international committee at national level. Indeed, the topic of “Legal Aspects of Sustainable Development” has been the subject of ILA study since the International Committee on the Legal Aspects of the New International Economic Order reconstituted itself as the International Committee on Legal Aspects of Sustainable Development at the 1992 Cairo ILA Conference.1

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* BA (Hons), LLB, MSc, Chichele Professor of Public International Law, Fellow of All Souls College, and Co-Director of the Oxford Martin Programme on Sustainable Oceans, University of Oxford, United Kingdom.

1 ILA Report of the Sixty-Fifth Conference (Cairo, 1992), Resolution 12. The Committee was headed by Kamal Hossain (Bangladesh) with Nico Schrijver (Netherlands) as General Rapporteur. Illustrating the complexity of the subject, the Committee immediately established three subcommittees on protection of the environment, good governance and the international economic order, respectively: Report of the Sixty-Sixth Conference (Buenos Aires, 1994) p. 135. Sustainable development was also one of the principles examined by the ILA Committee on the Legal Principles Relating to Climate Change.

THE LEGAL STATUS OF SUSTAINABLE DEVELOPMENT IN THE NIGERIAN ENVIRONMENTAL LAW

Emmanuel E. Okon*

ABSTRACT

Sustainable development underpins environmental governance in all jurisdictions, but its legal status is still controversial. The major problem which Nigerian courts and policy-makers will continue to face when implementing and enforcing sustainable development in environmental governance is whether it is a moral or legal concept and, if it is the latter, whether it has metamorphosed into a legal principle or the rule of law having a normative value. This article argues that the legal status of sustainable development in Nigeria depends on which legal instrument it is incorporated and whether it is expressed in a general or specific mandatory language. Also, its legal status depends on the pronouncements of Nigerian courts on it. Methodologically, the qualitative content analysis is used to ascertain the legal status of sustainable development in the statutes and case law examined. In order to enhance the implementation and enforcement of sustainable development in the Nigerian environmental law, the conclusion of this article adopted as recommendations the latter part of its argument that sustainable development should be made an essential part of the right to life, the relevant constitutional provisions on the environmental should be amended to reflect it and, in addition, section 20 of the Constitution of the Federal Republic of Nigeria 1999 should be transferred to Chapter IV of the Constitution, which deals with fundamental human rights.

Keywords: Sustainable development, legal status, implementation, enforcement and qualitative content analysis.

DOI: http://dx.doi.org/10.4314/jsdlp.v7i2.6

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* LL.B (UniUyo); LL.M, MBA (Ife); MILR (Ibadan); PhD (Wales); BL; Senior

Research Fellow and Head, International Law Department, Nigerian Institute of Advanced Legal Studies, University of Lagos Campus, Akoka, Yaba, Lagos, Nigeria. emmyokon@yahoo.com.

THE JUDICIARY AND SUSTAINABLE DEVELOPMENT: PERSPECTIVES OF A BRAZILIAN FEDERAL JUDGE

Gabriel Wedy*

ABSTRACT

The approval of 17 goals and 169 targets for sustainable development by the United Nations Conference on Post-2015 Development Agenda is unquestionably an advancement for humanity. Economic development alone is however unsatisfactory: it must be paired with human development, respect for the environment and sound governance. Drawing from litigation and jurisprudential development from the Brazilian judiciary, this short legal commentary evaluates the role of the judiciary in promoting sustainable development, especially the attainment of the United Nations Sustainable Development Goals (SDGs). Keywords: Brazil, Sustainable Development, Judiciary.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.10

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* Federal Judge in Brazil, an Environmental Law Professor at ESMAFE/RS (the Federal Judiciary Superior School) and a Visiting Scholar at Columbia Law School(Sabin Center for Climate Change Law).

WHEN POLICY IS NOT ENOUGH: PROSPECTS AND CHALLENGES OF ARTISANAL AND SMALL-SCALE MINING IN SOUTH AFRICA

Pontsho Ledwaba* and Kgothatso Nhlengetwa**

ABSTRACT

As in most countries, artisanal and small-scale mining (ASM) activities are recognised in South Africa. ASM activities first became part of the socioeconomic development agenda of the country in 1994 after the change in government. ASM was identified as an important platform where disadvantaged South Africans can participate and benefit from the mining industry. This is because of the potential benefits that government has sought to support the sub-sector. In the past two decades, several programmes and initiatives have been introduced to promote and advance the sub-sector. In the majority of cases, these interventions failed to facilitate the development of the sub-sector and, to a large extent, its contribution to local economies. This is attributed to a myriad of challenges still facing the sub-sector today. The objective of this paper is to map all the critical developments that took place in the sub-sector in an attempt to develop and deploy appropriate assistance to the sub-sector. The paper assesses their impact, if any, on the growth of ASM in South Africa. With the country into its second decade of democracy, it has become crucial to reflect on past experiences and use them as learning curve to create a new thriving economy.

Keywords: artisanal and small scale mining (ASM), timeline, poverty alleviation, sustainable development, South African mining policy.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.2

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* Corresponding author, Pontsho Ledwaba, Research Engineer, Small-Scale Mining and Beneficiation (SSMB) Division, MINTEK, 200 Malibongwe Drive Randburg, 2125, Republic of South Africa, Tel: +27 11 709 4337, email: pontshol@ mintek.co.za.

** Ph.D Candidate, School of Geosciences, University of the Witwatersrand, Johannesburg, Private Bag 3, WITS, 2050, Republic of South Africa, Tel: +27 11 717 6623, E-mail: kgothatso.nhlengetwa@students. wits.ac.za.

PERIODIC REVIEW IN NATURAL RESOURCE CONTRACTS

Jacky Mandelbaum*, Salli Anne Swartz*, and John Hauert***

ABSTRACT

Periodic contract review mechanisms, which are provisions in contracts that formally require parties to meet at particular intervals to review the terms of the contract, are mechanisms that may facilitate the process of negotiating contractual changes to accommodate changing circumstances over the term of extractive industries contracts. Through the review of existing extractive industries agreements, this article considers how such review mechanisms have been incorporated into existing contracts and the use of such mechanisms as a tool for maintaining good relationships between the parties. In addition, the article suggests a new approach to the drafting of these mechanisms by negotiating objective criteria to be incorporated into the contract at the commencement of the contractual relationship in order to facilitate the timing and parameters of contract renegotiation when certain triggers occur.

Keywords: Periodic review, natural resources, extractive industries contracts, renegotiation, sustainable development, long-term contracts; hardship.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i2.6

ACHIEVING SUSTAINABLE DEVELOPMENT THROUGH TAX HARMONIZATION: POTENTIALS, PARADOXES AND POLICY IMPERATIVES

Aniyie Ifeanyichukwu Azuka*

ABSTRACT

Using Nigeria as a case study, this article examines the efficacy of tax harmonization as an option for the achievement of two objectives: the integration of a developing country with other economies, and its sustainable development. It highlights the nexus between tax harmonization – a tax policy option – and sustainable development, as well as the potentials and paradoxes of tax harmonization. The article proceeds on the premise that striking the right balance between the multiplicity of policy options when designing and implementing tax policies is a great challenge for governments; tax harmonization can be adopted for diverse reasons; and the policy of harmonization within the tax sphere impacts on development of the state. The article discusses how practical barriers and challenges associated with implementing tax harmonization may be navigated through empirical information and/or research.

Keywords: Tax, harmonization, sustainable development, Nigeria, economy.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.12

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* MPhil Taxation (Pretoria); LLM (Benin); BL., ACIArb. (UK); ACTI. Associate Research Fellow, Institute for Oil, Gas, Energy, Environment and Sustainable Development, Afe Babalola University, Nigeria.

POWERING NIGERIA THROUGH RENEWABLE ELECTRICITY INVESTMENTS: LEGAL FRAMEWORK FOR PROGRESSIVE REALIZATION

Peter Kayode Oniemola*

ABSTRACT

Renewable energy has a prominent role in promoting energy access and addressing environmental concerns with energy use in Nigeria. However, there are legal barriers that have not allowed renewable energy to be used in the Nigerian electricity sector. The absence of an effective legal framework to encourage and promote investment in renewable energy is a major challenge. This article investigates the barriers to promotion of investment in renewable electricity in the country. These barriers include the lack of unison and clarity of roles for institutions relevant to the promotion of renewables, high cost and lack of funds, inability of consumers to bear the cost of subsidies, lack of priority access and connection to the grid, short licensing duration, and lack of adequate and reliable information, which consumers, investors and the government can rely upon. To address these concerns, and to make investments in the renewable energy sector more favourable, there is the need to develop an effective legal framework that addresses barriers to investment in renewable electricity. This article presents insights on how the law can be used as an instrument for realizing the development of renewable electricity in Nigeria.

Keywords: Renewable, energy, power, electricity, investment, sustainable development.

Doi: http://dx.doi.org/10.4314/jsdlp.v6i1.4

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* LL.B (Ilorin), BL (Nigerian Law School), LL.M (Ibadan), PhD (Aberdeen), Legal Practitioner & Consultant email: petermola@yahoo.com.

THE CHALLENGES OF SUSTAINABLE DEVELOPMENT IN POST-COLONIAL AFRICAN STATES: A REVIEW OF ADAMU USMAN’S SIEGED

Solomon Adedokun Edebor*

ABSTRACT

This paper discusses and contributes to debates on the critical governance challenges faced by post-colonial African states such as bribery and corruption, lack of democratic and participatory governance, insecurity, lack of justice and equality before the law, and illiteracy as some of the impediments to sustainable development in Africa. These issues have been variously discussed by literary scholars with an attempt to portray and expose them. One such excellent attempt is Adamu Usman’s Sieged. This paper analyses some of the fundamental threads in Usman’s submissions on how lack of good governance and purposeful leadership remain the bane of African states. It then takes the analyses further by showing that no meaningful social, economic, political or environmental development can take place in Africa until African masses demand for good governance and engage in ideology-based social revolution in ending the reins of corrupt leadership.

Keywords: post-colonialism, politics, corruption, sustainable development, independence.

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* Solomon Adedokun Edebor is of the Department of English and Literary Studies, Afe Babalola University, Ado-Ekiti, (ABUAD), Ekiti State, Nigeria.

INTERNATIONAL ENVIRONMENTAL GOVERNANCE: LESSONS FROM UNEA AND PERSPECTIVES ON THE POST-2015 ERA

Joseph Nyangon*

ABSTRACT

The inaugural meeting of the United Nations Environment Assembly (UNEA) held in June 2014 in Nairobi, was a culmination of more than four decades of environmental governance since the United Nations Environment Programme (UNEP) was established in 1972 in Stockholm. The meeting addressed weighty and contentious issues including strengthening of UNEP’s role in promoting environmental governance and enhancing science-policy interface. Yet despite the historical significance of the meeting following universalization of the governing body of UNEP and current debates on the post-2015 development agenda, questions persist about the role of UNEP, its establishment, performance, and fragmentation of programmes and secretariats of the multilateral environmental agreements associated with it. This paper reviews the outcome of the inaugural UNEA session, while developing a political economy account of institutional arrangements of international environmental governance to clarify the potential for, and barriers to effective environmental reform. Multilaterally, international environmental governance continues to exhibit elements of complexity, fragmentation, lack of coordination as well as redundancy. In more critical terms, lack of policy integration between environmental regimes is a concern of environmental governance that the new UNEA should address as a matter of priority. Furthermore, incoherent policy objectives in international environmental law often characterised as a governance patchwork have been criticized for their economic orthodoxies that only serve to marginalize and delegitimize alternative modes of environmental governance. In this regard, a core part of UNEA’s institutional legitimacy depends on its success in coevolving to keep up with environmental challenges as they themselves change, as well as enhancing consensus-based stakeholder engagement, perspectives, and participation on environmental governance. This will be its true litmus test on how it responds coherently and effectively to international environmental governance in a post-2015 development world.

Keywords: International environmental governance, institutional arrangements, UNEA, political economy, fragmentation, SDGs, post-2015 goals

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* Joseph Nyangon, Ph.D. Researcher, Center for Energy and Environmental Policy (CEEP), University of Delaware, U.S.A., jnyangon@udel.edu.

WORKABILITY OF THE NORMS OF TRANSPARENCY AND ACCOUNTABILITY AGAINST CORRUPTION IN NIGERIA

Simeon Igbinedion*

ABSTRACT

This paper discusses the workability of the existing norms of transparency and accountability in the battle against corruption in Nigeria. Incontrovertibly, high level corruption pervades every nook and cranny of the country to the detriment of its citizens. Although anti-corruption norms exist in the Nigerian legal order, high profile corruption remains endemic, suggesting that the norms are unworkable. This paper argues that the unworkability of transparency and accountability norms in Nigeria is largely attributable to the contradictions, inconsistencies or deficiencies inherent therein. Consequently, the paper suggests ways of putting the norms to work against corruption in Nigeria.

Keywords: Corruption, Governance, Sustainable Development

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* LL.B, B.L, LL.M, Ph.D: Lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Lagos; E-mail: sigbinedion@unilag.edu.ng. I am grateful to the two anonymous referees who reviewed and offered useful comments on the earlier draft of this article.

ARE WE THERE YET? A LEGAL ASSESSMENT AND REVIEW OF THE CONCEPT OF SUSTAINABLE DEVELOPMENT UNDER INTERNATIONAL LAW

Evgenia Pavlovskaia*

ABSTRACT

Some of the most consistently utilized terms in international environmental law are “sustainable development” and “sustainability”. Sustainable development is mentioned in virtually every domestic, regional and international laws on environment, energy and natural resources. This has led to the contentions by some scholars that the concept of sustainable development has matured into customary international law, or at least has become a general principle of international environmental law. Many researchers, however, argue that the idea of sustainable development is vague, elusive and does not add much to the efficient implementation of international environmental law. This article aims to examine and discuss these views. In this paper, the content of the widely used concepts “sustainability” and “sustainable development” are studied from the perspective of their implementation in different parts of the world. The article examines the status of the concept of sustainable development under international law, its implementation across sectors, its key contributions to international law and how its practical actualization can be further strengthened. The article sets out with a broad inter-disciplinary review of the existing definitions of the concepts “sustainability” and “sustainable development”. The article will then examine examples of how “sustainability” and “sustainable development” are incorporated in contemporary environmental law, in order to highlight its current status under international law and its overall influence on different spheres of our life. Major difficulties and challenges associated with implementing and enforcing sustainability are also examined. It is suggested that market systems should be supplemented by political processes and legal regulations that include special mechanisms and tools to protect and control the health of the environment. Growing awareness of sustainability, primarily environmental, among produces is viewed in the article as a very positive trend. It is welcomed that more and more industries are engaged in sustainable production throughout the entire product life cycle. The use of such tools as sustainability criteria, sustainability standards and eco-labels must also be promoted.

Keywords: sustainability, sustainable development, implementing sustainability, industrial sustainability.

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∗ Evgenia Pavlovskaia, PH.D Student, Law Faculty, Lund University, Sweden, email: evgenia.pavlovskaia@jur.lu.se