CONSTITUTIONAL JUSTICE IN AFRICA: An Examination of Constitutional Positivism, Fundamental Law and Rights in Ghana and Nigeria

This work explores the idea of constitutional justice in Africa with a focus on constitutional interpretation in Ghana and Nigeria. The objective is to develop a theory of constitutional interpretation based upon a conception of law that allows the existing constitutions of Ghana and Nigeria to be construed by the courts as law in a manner that best serves the collective wellbeing of the people. The project involves an examination of both legal theory and substantive constitutional law. The theoretical argument will be applied to show how a proper understanding of the ideals of the rule of law and constitutionalism in Ghana and Nigeria necessitate the conclusion that socio-economic rights in those countries are constitutionally protected and judicially enforceable. The thesis argues that this conclusion follows from a general claim that constitutions should represent a ‘fundamental law’ and must be construed as an aspirational moral ideal for the common good of the people. The argument is essentially about the inherent character of ‘legality’ or the ‘rule of law.’ It weaves together ideas developed by Lon Fuller, Ronald Dworkin, T.R.S. Allan and David Dyzenhaus, as well as the strand of common law constitutionalism associated with Sir Edward Coke, to develop a moral sense of ‘law’ that transcends the confines of positive or explicit law while remaining inherently ‘legal’ as opposed to purely moral or political. What emerges is an unwritten fundamental law of reason located between pure morality or natural law on the one hand and strict, explicit, or positive law on the other. It is argued that this fundamental law is, or should be, the basis of constitutional interpretation, especially in transitional democracies like Ghana and Nigeria, and that it grounds constitutional protection for socio-economic rights. Equipped with this theory of law, courts in developing African countries like Ghana and Nigeria will be in a better position to contribute towards developing a real sense of constitutional justice for Africa.

Ukraine: sovereign decentralisation or federalism without sovereignty? OSW Commentary No. 133, 18.04.2014

A key element of Russia’s policy towards the new government of Ukraine concerns demands for a constitutional reform that would transform the country from a unitary into a federal state in a way that would considerably privilege the eastern and southern regions. Such a change to Ukraine’s administrative system would enable Moscow to put pressure on Ukraine’s central government via the regions. In order to achieve its objectives, Russia has been pressuring Kyiv to establish a constitutional assembly in a form that would guarantee the endorsement of solutions dictated by Russia. In other words, Russia has been demanding, in what is practically an ultimatum, that Ukraine give up one of the fundamental sovereign rights of a state, the right to freely determine its system of government. Transforming Ukraine into a federal state is an unacceptable idea, primarily because the intention behind Russia’s demands is to undermine Ukraine’s sovereignty, both through the content of the proposed changes and the way in which they are to be implemented. However, keeping in place the current, centralist model of state governance is not a feasible alternative. Ukraine will have to grant its regions broad self-governance powers, including the power to hold local referendums, and to transfer a considerable portion of the prerogatives currently held by the state to the local self-governments, along with adequate financial resources. That is because decentralisation along these lines is the only way forward towards a modern democracy in Ukraine. Russia’s policy has forced Kyiv to undertake legislative work on constitutional reform as a matter of urgency, rather than waiting until a new parliament is elected in which the new, post-Maidan balance of political power will be reflected, as political logic would require. The first draft of the constitutional amendments (of which no details are known at this stage) is to be presented in mid-May, and is expected to come into force in early autumn. However, whether these plans can be put into practice depends on further developments in the eastern part of Ukraine, because (among other reasons) if a state of emergency is introduced, the constitutional amendment process will have to be suspended.

Fundamental Fairness in Sexual Misconduct Adjudications: Evaluating Private Universities for Due Process Rights in their Policies and Procedures

There is a national debate on how universities should respond to sexual assault, specifically the advantages and shortcomings of the campus adjudication Process. One major critique of university adjudication is that it does not provide the necessary due process rights to the accused and is therefore not fundamentally fair. This study seeks to assess this validity of this critique by seeing if sexual misconduct policies lack due process and if so, to what extent. This investigation is a comparative case study of 14 private higher education institutions, belonging to the Ivy Plus Society, analyzing their policy and procedure documents for indicators of due process. Findings show that schools are complying between 45% and 85% of due process indicators with an average of 65%. Colleges do lack due process rights and need to revise their policies and procedures to clearly present these rights. Key recommendations include guaranteeing a hearing procedure with impartial decision-makers and the opportunity to submit evidence and witnesses.

CONSTITUTIONAL JUSTICE IN AFRICA: An Examination of Constitutional Positivism, Fundamental Law and Rights in Ghana and Nigeria

This work explores the idea of constitutional justice in Africa with a focus on constitutional interpretation in Ghana and Nigeria. The objective is to develop a theory of constitutional interpretation based upon a conception of law that allows the existing constitutions of Ghana and Nigeria to be construed by the courts as law in a manner that best serves the collective wellbeing of the people. The project involves an examination of both legal theory and substantive constitutional law. The theoretical argument will be applied to show how a proper understanding of the ideals of the rule of law and constitutionalism in Ghana and Nigeria necessitate the conclusion that socio-economic rights in those countries are constitutionally protected and judicially enforceable. The thesis argues that this conclusion follows from a general claim that constitutions should represent a ‘fundamental law’ and must be construed as an aspirational moral ideal for the common good of the people. The argument is essentially about the inherent character of ‘legality’ or the ‘rule of law.’ It weaves together ideas developed by Lon Fuller, Ronald Dworkin, T.R.S. Allan and David Dyzenhaus, as well as the strand of common law constitutionalism associated with Sir Edward Coke, to develop a moral sense of ‘law’ that transcends the confines of positive or explicit law while remaining inherently ‘legal’ as opposed to purely moral or political. What emerges is an unwritten fundamental law of reason located between pure morality or natural law on the one hand and strict, explicit, or positive law on the other. It is argued that this fundamental law is, or should be, the basis of constitutional interpretation, especially in transitional democracies like Ghana and Nigeria, and that it grounds constitutional protection for socio-economic rights. Equipped with this theory of law, courts in developing African countries like Ghana and Nigeria will be in a better position to contribute towards developing a real sense of constitutional justice for Africa.

The commodification and exploitation of fresh water: Property, human rights and green criminology

In recent years, both developing and industrialised societies have experienced riots and civil unrest over the corporate exploitation of fresh water. Water conflicts increase as water scarcity rises and the unsustainable use of fresh water will continue to have profound implications for sustainable development and the realisation of human rights. Rather than states adopting more costly water conservation strategies or implementing efficient water technologies, corporations are exploiting natural resources in what has been described as the “privatization of water”. By using legal doctrines, states and corporations construct fresh water sources as something that can be owned or leased. For some regions, the privatization of water has enabled corporations and corrupt states to exploit a fundamental human right. Arguing that such matters are of relevance to criminology, which should be concerned with fundamental environmental and human rights, this article adopts a green criminological perspective and draws upon Treadmill of Production theory.

Moral rights and their application in Australia: a book review

In Moral Rights and Their Application in Australia, Maree Sainsbury offers a summary of the new moral rights regime established in Australia in 2000. It is a decent guide and handbook to moral rights for legal practitioners, the authors of copyright work, and the users of copyright material. As the author notes: "The Australian moral rights legislation impacts on the rights and obligations of many people in diverse circumstances, from the creator of a highly unique work of art to the designer of a web site incorporating factual information or graphics which someone else has created. Any person creating or dealing with copyright material should be aware of the moral rights implications. This book provides a detailed analysis of the moral rights legislation, while stressing the fundamental provisions. It also provides some useful practical guidance for those who are affected, both in general terms and with respect to the more specific situations outlined above." Maree Sainsbury provides an enjoyable account of the history and nature of moral rights. She charts the romantic, Continental origins of moral rights, and explains their translation to countries, such as Australia and the United States.

Uzbekistan Supplementary NGO Report on the Implementation of the Convention on the Rights of the Child in the Republic of Uzbekistan

[Excerpt] The Convention on the Rights of the Child (CRC) was one of the first international instruments to which the Republic of Uzbekistan acceded, and with parliamentary ratification on 9 December 1992, the Republic of Uzbekistan entered into a commitment to observe all the provisions of the CRC and to shoulder its responsibility before the international community. As a result various legislative, administrative and other steps have been taken by the government of the Republic of Uzbekistan with a view to bringing the State policy and legislation on children to be in line with the provisions as enshrined in the Convention on the Rights of the Child. The Constitution incorporates the fundamental provisions of the Universal Declaration of Human Rights. At the current stage in the restructuring of the country’s social and economic development, solid foundations have been laid for the conduct of significant democratic reforms based on a recognition of the innate worth of the individual (including the child) and of the unconditional respect of his or her rights and freedoms. Until recently, the State acted as the main guarantor of the provision of all social services, however the process of the transition (political/economic) to a market economy has entailed the development of new economic relations with a reduction in the allocation of state resources for the provision of social services to children. The efforts of the government made so far to bring the state policy and legislation on the child to be in line with the provisions enshrined in the convention on the rights of the child are commendable; never the less, the implementations of all these policies and laws into practice needs a lot to desire as there are a number of ongoing child rights violations. The National Report has fundamentally overlooked a number of child rights privileges enshrined in the CRC that have not yet been realised, or those rights that have been eroded since the independence. These shortcomings need to be noted for consideration so that the state steps up its efforts to enact new laws and/or to enforce the existing rules and regulations required for the protection and implementation of these child rights, and to improve the overall situation for children in the Republic of Uzbekistan.

What if tax reform was a fundamental human right?

As an election looms in Australia, the tax debate continues unabated. Self-interest abounds. When we remove self-interest, we are often reduced to standard design principles for a taxation system. Lost in this discussion is the fundamental purpose of tax, which is to finance government expenditure. Most would argue that tax revenue should be sufficient to meet basic economic and social needs of the community. But how does a community determine what these basic economic and social needs should be? One way is by using a human rights framework. This can provide guidance for both developing and developed countries considering tax reform.

Exergetic analysis of carbon dioxide vapour compression refrigeration cycle using the new fundamental equation of state

The purpose of this paper is to present exergy charts for carbon dioxide (CO2) based on the new fundamental equation of state and the results of a thermodynamic analysis of conventional and trans-critical vapour compression refrigeration cycles using the data thereof. The calculation scheme is anchored on the Mathematica platform. There exist upper and lower bounds for the high cycle pressure for a given set of evaporating and pre-throttling temperatures. The maximum possible exergetic efficiency for each case was determined. Empirical correlations for exergetic efficiency and COP, valid in the range of temperatures studied here, are obtained. The exergy losses have been quantified. (C) 2003 Elsevier Ltd. All rights reserved.

Admissible fundamental operators(star)

Let F and G be two bounded operators on two Hilbert spaces. Let their numerical radii be no greater than one. This note investigates when there is a Gamma-contraction (S, P) such that F is the fundamental operator of (S, P) and G is the fundamental operator of (S*, P*). Theorem 1 puts a necessary condition on F and G for them to be the fundamental operators of (S, P) and (S*, P*) respectively. Theorem 2 shows that this necessary condition is also sufficient provided we restrict our attention to a certain special case. The general case is investigated in Theorem 3. Some of the results obtained for Gamma-contractions are then applied to tetrablock contractions to figure out when two pairs (F1, F2) and (G(1), G(2)) acting on two Hilbert spaces can be fundamental operators of a tetrablock contraction (A, B, P) and its adjoint (A*, B*, P*) respectively. This is the content of Theorem 3. (C) 2015 Elsevier Inc. All rights reserved.

Entre a tiramnya cruel e a pedra fundamental: a obrigatoriedade do ensino primário como uma técnica de governo de Minas Gerais

Os discursos políticos educacionais acerca da institucionalização da instrução elementar em Minas Gerais atravessaram todo o século XIX, apontando também como uma preocupação republicana, ora pelo discurso de impraticabilidade e ferimento aos direitos civis, ora pela defesa de seu caráter estatal e da argumentação de função civilizatória e disciplinar da população. Nesse sentido, pensar a compulsoriedade do ensino demanda uma compreensão da sua função social, o conhecimento dos agentes envolvidos e de seus interesses sobre tal medida de governo. De acordo com os defensores da obrigatoriedade do ensino no século XIX e início do XX, o intuito da educação seria formar cidadãos civilizados e instruídos. Tal perspectiva estava relacionada a um projeto de sociedade e de nação brasileira, para o qual era imprescindível formar, desde a infância, um povo disciplinado, um povo bem governado. O nosso objetivo foi analisar o tema da obrigatoriedade do ensino a partir do conceito foucaultiano de governamentalidade. Problematizando a ideia de que universalizar o acesso à educação representava apenas uma iniciativa de garantia de direitos, a hipótese que defendemos consiste na ideia de que o ensino obrigatório pode ter sido perspectivado enquanto uma estratégia de governo dos outros, de controle dos sujeitos. Partindo desse pressuposto, como efeito esperado, seria possível obter sujeito com outras atitudes, as atitudes derivadas da coação promovida pela escola. Ao legitimar a escola, o dispositivo da obrigatoriedade funcionaria como estratégia e produziria positividades. Por meio da escola e de seu caráter compulsório, tratava-se de atingir e gerir a população dos pequenos, de modo a equipá-la com os códigos mínimos do mundo civilizado, com os efeitos disciplinares correlatos.Para tanto, analisamos a legislação de Minas Gerais, impressos mineiros (Correio de Minas, Jornal do Commercio, Minas Livre, O Granbery) e a bibliografia acerca da obrigatoriedade da instrução primária, a fim de identificar traços do debate no Império e na passagem para a República, os quais foram problematizados à luz daquele conceito. A partir dessa discussão, concluímos que a obrigatoriedade do ensino é mais bem compreendida se analisada em outro registro que não seja meramente jurídico. Tal inferência aponta para a ampliação do quadro analítico acerca dessa política compulsória e dos interesses de Estado em torno dela.