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Africa Month: Continental integration would be an effective means of accelerating economic growth

13 May 2021 | Story Dr Bright Nkrumah | Photo Supplied

DrBrightNkrumah_web read more — Dr Bright Nkrumah, Free State Centre for Human Rights, University of the Free State (UFS)

The year 2021 marks the 58th anniversary of the establishment of the Organisation of African Union (OAU) on 25 May 1963. The month of May is therefore celebrated annually as Africa Month. This piece, in essence, is a craving to respond to an often-articulated question: is Africa Month a moment of celebration or introspection? The former would have been preferred had the various freedoms offered by the organisation been more realistic and dealt with the concrete challenges bedevilling the continent’s population.

At the onset, it ought to be acknowledged that the organisation was not forged with the intent of improving the living conditions of its population but to safeguard the recently won independence and sovereignty of its member states. Against this backdrop, the notion of non-interference in the domestic affairs (Uti Possidetis Juris) of states became its guiding principle, thereby fostering a culture of silence on abuses perpetuate by African rulers against their citizens. Having said that there were notable illustrations of leaders such as Julius Nyerere, Kenneth Kaunda, and Samora Machel, who individually and collectively ‘invoked the notion of humanitarian intervention’ and waged crusades to relieve Ugandans from the jaws of Idi Amin.

Indeed, one of the significant achievements of the OAU during this era was the adoption of the African Charter on Human and Peoples’ Rights (Charter) in 1981. The instrument may be seen as a trumpeting of freedom, as it considers the rights and wellbeing of Africans sacrosanct and uncompromising. It is important and perhaps enthralling that all African states are parties to the Charter. While the large-scale ratification could enhance its moral force, it could also be used as a red herring to cover up various atrocities in hostile countries.

Where are we?

In 2002, African rulers meeting in Durban, South Africa, adopted the Constitutive Act, transforming the OAU into the African Union (AU). The new Act perhaps seems to be breathing fresh air into Africa’s rights struggle. In stark contrast to its forerunner, the Constitutive Act authorises the AU to intervene in a situation where citizens are threatened by grave danger perpetrated by their governments or external forces. Remarkably, article 3(k) calls for raising the ‘living standards of African people’. Going by these aspirations, one might speculate that Africans are in for a cheery and jolly ride.

Remarkably, while the Act addresses several aspects of the continent’s socioeconomic issues its operationalisation remains the captive of competing for national interests of AU states. Four key setbacks merit consideration here.

Instability: The landscape of Africa is punctuated by rulers’ embezzlement of public funds, ethnic privilege, and siphoning resources to one’s home village to the detriment of others. This bias tends to incite discontent and hostilities, even as one of the popular rhetoric of the infamous Boko Haram is to addressing Nigeria’s North-South resource disparity. By the same reckoning, hundreds of women and children have been displaced or killed from avoidable hostilities in geographical enclaves such as Cameroon, DR Congo, Mozambique, and Sudan.

Injustice: State security agencies and specifically the police force have evolved to be intimidators rather than the protective machinery they ought to be. More disturbingly, access to justice seems to be a pipe dream, as legal fees and prolonged trials make it burdensome for victims to seek remedies. As a common practice, many judicial systems across Anglophone, Francophone, and Lusophone countries are still modelled on ancient colonial systems, with lawyers and judges using convoluted legal jargon which frustrates rather than assists victims of abuse.

Poverty: 40% of the continent’s population lives in extreme poverty or on <$1 (approx. R14) per day. Indeed, this figure is sobering. A reader might agree that the New Partnership for Africa’s Development (Nepad) may be seen as the primary document for reversing this trend. The document has, however, been criticised as given superficial treatment to the basic entitlement of vulnerable groups, and without feasible strategies on issues of underdevelopment. It speaks to enhancing greater access to services, but segregates this aspiration from how the impoverished could access these essentials. Without a commitment to enforceable socioeconomic goods, such as health care, education, food, social security, the document may be seen as placing a stamp on the skewed access to resources already pervasive in local communities.

Covid-19: The onset of the pandemic calls for total marshalling of the continent’s fiscal and human resources. Sadly, the virus has claimed the lives of eminent cadres, teachers, and trade unionists who could have played a key role in this regard. South Africa alone has recorded more than 54,620 deaths, leaving behind hundreds of orphans. Still, the ramifications are likely to be more significant, altering the structures of society and putting a strain on the financial resources of weak states.

What ought to be done?

One golden thread running through these challenges is the weakness of the AU to forge effective institutions to restrain the excesses of states, monitor the government’s compliance with human rights obligations, and accountability. If the organisation seeks to improve human rights in Africa, it ought to revive debates towards Pan-Africanism and regional integration. At present, artificial borders erected by colonisers have created states which are simply not viable economic and political units. To this end, continental integration is the effective means of accelerating economic growth, uplifting the least developed countries, and domestically-based transformative development.

Opinion article by Dr Bright Nkrumah, Free State Centre for Human Rights, Faculty of Law, University of the Free State.

News Archive

UFS law experts publish unique translation

2006-06-21

Attending the launch of the publication were from the left: Prof Boelie Wessels (senior lecturer at the UFS Faculty of Law), Prof Frederick Fourie (Rector and Vice-Chancellor of the UFS), Prof Johan Henning (Dean: UFS Faculty of Law) and Adv Jaco de Bruin (senior lecturer at the UFS Faculty of Law). Prof Wessels translated the treatise from corrupted medieval lawyer Latin into English, Prof Henning is the leading author and initiator of the publication and Adv de Bruin assisted with the proofreading and editing. Photo: Stephen Collett

UFS law experts publish unique translation of neglected source of partnership law

The Centre for Business Law at the University of the Free State (UFS) has translated a unique long neglected Roman-Dutch source of the law of partnership law from Latin into English. This source dates back to 1666.

The book, called Tractatus de Societate (A Treatise on the Law of Partnership), by Felicius and Boxelius is published as Volume 40 in the research series Mededelings van die Sentrum vir Ondernemingsreg/Transactions of the Centre for Business Law. It is the first translation of this Roman-Dutch source into English and comprises of a comprehensive discussion of the South African common law of partnerships.

“Apart from various brief provisions dealing on a peace meal and an ad hoc basis with diverse matters such as insolvency, there is no comprehensive Partnership Act in South Africa. The law of partnership in South Africa consists of South African common-law, which is mainly derived from Roman-Dutch law,” said Prof Johan Henning, Dean of the Faculty of Law at the UFS. Prof Henning is also the leading author and initiator of this comprehensive publication.

“Countries such as America, England, Ireland and The Netherlands have drafted or are in the process of establishing new modern partnership laws in line with new international guidelines, practices and commercial usages,” said Prof Henning.

“However, in South Africa the most recent policy document released by the Department of Trade and Industry explicitly excludes partnership law from its present company law reform programme and clearly regards this as an issue for another day,” said Prof Henning.

“Unless there is a political will to allocate the necessary resources to a comprehensive partnership law revision program, it is a practical reality that South Africa will not have a modern Partnership Act in the foreseeable future,” said Prof Henning.

According to Prof Henning South African courts have been using the Roman-Dutch partnership law sources as authority. “The English Partnership Act of 1890 is not binding and the English text books should therefore be approached with caution,” said Prof Henning.

“A treatise on the law of partnership that has been regarded by South African courts as an important common law authority is that of a Frenchman by the name of Pothier. This treatise was translated into English and was regarded as an authority of significance in The Netherlands towards the end of the eighteenth century,” said Prof Henning.

“Pothier’s opinions are however not valid throughout in the Roman-Dutch partnership law as it did not apply to the Dutch province of The Netherlands and it sometimes also rely on local French customs for authority,” said Prof Henning.

For this reason the Centre for Business Law at the UFS decided to focus its attention again on the significance of the comprehensive treatise of Felicius and Boxelius on the Roman-Dutch partnership law. Felicius was an Italian lawyer and Boxelius a Dutch lawyer.

This long neglected source of partnership law was published in 1666 in Gorkum in The Netherlands. "A significant amount of Roman-Dutch sources of authoritive writers trusted this treatise and referred to it,” said Prof Henning.

The translation of the treatise from corrupted medieval lawyer Latin into English was done by Prof Boelie Wessels, a very well-known expert on Roman Law and senior lecturer at the UFS Faculty of Law. Prof Wessels, who has 15 degrees, spent almost ten years translating the treatise. The proofreading and editing of the translation was done by Prof Henning and Adv Jaco de Bruin, a senior lecturer at the UFS Faculty of Law.

“We want the South African courts to use Volume 40 in the research series Mededelings van die Sentrum vir Ondernemingsreg/Transactions of the Centre for Business Law as the primary source of reference when cases where Roman-Dutch Law partnership law principles are involved, are ruled on,” said Prof Henning.

The first part of the publication comprises of selected perspectives on the historical significance of the work as well as a translation of selected passages. “The intention is to follow this up expeditiously with the publication of a very limited edition of a complete translation of the work,” said Prof Henning.

A total of 400 copies of the publication will be distributed to all courts, the Appeal Court and the Supreme Court.

Media release
Issued by: Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
21 June 2006

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