CLIA member’s book released in July 2023

Dr Desmond Oriakhogba, a Senior Lecturer in the Department of Private Law, and member of the Centre for Legal Integration in Africa has published a book on The Right to Research in Africa: Exploring the Copyright and Humans Rights Interface (Springer, 2023).

The book probes imbalances in the African copyright system regarding access to information for research and education, which became painfully apparent during the COVID-19 pandemic. African libraries and knowledge curators found themselves ill-equipped to perform their role of enabling access to information. As teaching, learning and research are increasingly done on digital platforms, learners and researchers grapple with the challenges of accessing materials owing largely to the protection of these resources under copyright laws.

The book highlights an urgent need to revise the African copyright system from the perspective of human rights law. It asks whether this can be done by establishing a human right to research. In view of the existing broad freedom of expression, and the right to science and culture, education, and property in global, national and regional human rights regimes, it formulates a human right to research in Africa. Its arguments are based on in-depth examination of international and regional human rights instruments, as well as those relevant to the national contexts of African countries.

The book offers a valuable resource for judges, lawyers, researchers, librarians and law practitioners in the fields of copyright and human rights. The link to the book is accessible here.

CLIA member speaks on protection of indigenous cultural property

Dr DesmonDr Desmond Oriakhogbad Oriakhogba, Senior Lecturer in the Department of Private Law, and member of the Centre for Legal Integration in Africa gave an invited presentation on “The legal regime for the protection of indigenous cultural property in South Africa” on 17 April 2023 in the Equity for Indigenous Research and Innovation (ENRICH) Webinar Series under the theme “3D Replicas and Data Ownership”.

ENRICH is a partnership between New York University, USA and the University of Waikato, New Zealand. Other speakers in the Webinar were drawn from institutions in Canada and the UK. The recording and other information about the event can be accessed here.

CLIA director speaks at Leiden University

The director of the Centre for Legal Integration in Africa, Prof. Anthony Diala gave an invited presentation at the Leiden Law School, The Netherlands on 7 June 2023. The presentation is titled “The concept of living customary law revisited.”

The hybrid event was part of the 2022-2023 Research Meetings of the Van Vollenhoven Institute for Law, Governance and Society. It involved close to a hundred participants, including members of the Commission on Legal Pluralism. It was chaired by Janine Ubink, a professor of law, governance and development at the Van Vollenhoven Institute for Law, Governance and Society and the President of the International Commission on Legal Pluralism.

In his presentation, Prof. Diala explained why he abandoned the terminology of ‘living customary law’ in favour of a dual understanding of African customary law. He presented this new understanding within a tripartite categorisation of legal orders in Africa. The abstract of his presentation appears below:

The Concept of Living Customary Law Revisited
In 2017, I critiqued scholars’ amorphous classification of African customary law into ‘official’ and ‘living’ versions. With emphasis on legal pluralism, I had redefined living customary law as “the law that emerges from people’s adaptation of customs to socio-economic changes.” My view of customary law has since changed to reflect the complex realities of globalisation. I never believed in the label of ‘official customary law.’ Now, I no longer believe in ‘living customary law.’ Informed by multi-country evidence, I conceptualise customary law as the practices observed by people from a sense of obligation. These practices are linked to people’s adaptation of their precolonial behaviour to social and economic changes. Arguably, the intersectional nature of normative adaptations blurs any meaningful differentiation between ‘official’ and ‘living’ customary laws. My conceptualisation implies that precolonial customs, which are still observed in their ancient forms, constitute a different category of law. I classify this category as indigenous laws, highlighting how the radical socioeconomic changes brought by colonialism transform(ed) indigenous laws into customary laws. My re-conceptualisation of African customary law demonstrates the highly adaptive character of norms in societies that emerged from European colonialism in the past century.

Seminar on African customary law and legal pluralism

In furtherance of its academic and community engagement, the Centre for Legal Integration in Africa organised a virtual seminar on 24 May 2023 under the title “African customary law and legal pluralism: within and beyond national legal systems.”

The seminar centred on a lecture by Professor Abdulmumini A. Oba of the University of Ilorin, a specialist in legal pluralism, comparative law, human rights, religious/cultural/civilisational diversities, and law and religion. The lecture focussed on the difficulties of legal harmonisation within the context of transplanted European laws and cultural pluralism. It stressed how African customary law has faced regulatory scrutiny from Eurocentric human rights, which are enforced by judges who operate like their European colonial predecessors.

Prof. Oba concluded that indigenous African laws possess many laudable values that could be ascertained and incorporated into State legal systems in Africa. The recording of his lecture can be accessed here [passcode is P#w456t.] and the summary appears below.

African customary law and legal pluralism: within, and within national legal systems
This lecture looks at African customary law and legal pluralism from the perspectives of legal pluralism within African customary law and the legal pluralism within national legal systems in Africa with particular reference to Nigeria. African customary law consists of the diverse customary laws of the various ethnic groups in Africa. There is also diversity within the customary laws of many ethnic groups. There is another legal pluralism arising from the existence of multiple customary laws in African communities. African communities generally welcome and respect diversity. Strangers could also integrate and adopt the customary law of their host communities. In modern African states, legal pluralism is largely a product of colonialism and Eurocentricism. The colonial authorities only permitted customary law to exist to the extent that pleased them. In many African nations, family law, land law and chieftaincy law are perhaps the only surviving components of customary law. Statutes, jurisdictional issues, and restrictive application of conflict of law rules have further limited the scope of customary law. Customary law has also faced scrutiny from Eurocentric human rights. Nonetheless, the inevitable conclusion is that Africans have a robust civilised approach to legal pluralism, but the colonial approach was that of intolerant imperialism which has also stultified the development of customary law. African customary law presents many laudable features that can be incorporated into the dominant common law or civil law systems in Africa.

CLIA welcomes two research assistants

Two research assistants recently joined the Centre for Legal Integration in Africa on short-term contracts. They are Ms. Precious Mudzwiri Ndivhuwo and Ms. Bongumsa Zweni.

Ms. Ndivhuwo holds a Bachelor of Laws from the University of Limpopo. She recently completed a Master of Laws degree specialising in legal pluralism. Her mini-dissertation, which is titled “Implications of patriarchal customs on the enjoyment of human rights by women and children in South Africa,” was supervised by Prof. Anthony Diala.

As a research assistant in CLIA, Ms. Ndivhuwo hopes to enhance her research and writing skills in preparation for undertaking doctoral studies.

Ms. Zweni holds a Bachelor of Laws degree from the University of Fort Hare. She registered as a Master of Laws student in the Faculty of Law in 2023. Her mini-thesis, which has been submitted for approval to the Higher Degrees Committee of Senate, is titled “Women’s right to abortion versus paternal rights in South Africa. She is supervised by Prof. Anthony Diala.

Ms. Zweni is passionate about human and women's rights. She hopes to use her experience as a research assistant to improve her research skills and prepare for a career in academia. When she graduates, she plans to enrol in doctoral studies.