Journal of Comparative Law in Africa

The Journal of Comparative Law in Africa is a peer-reviewed academic legal journal published bi-annually by Juta and the Centre for Comparative Law in Africa, at the University of Cape Town (South Africa). The Journal is bilingual (English and French) and addresses legal issues on the African continent.

Journal of Comparative Law in Africa

Editorial Board



Salvatore Mancuso, Centre for Comparative Law in Africa, University of Cape Town, South Africa




Ada Ordor, Centre for Comparative Law in Africa, University of Cape Town



Managing editor

Anthony Diala, Centre for Comparative Law in Africa, University of Cape Town



Editorial assistant

Phumelele Dhlamini, Centre for Comparative Law in Africa, University of Cape Town



Scientific and Editorial board

Thomas W Bennett – University of Cape Town, South Africa
Danie Visser – University of Cape Town, South Africa
Chuma Himonga – University of Cape Town, South Africa
Mauro Bussani – University of Trieste, Italy
Ignazio Castellucci – University of Teramo and Trento, Italy
Ndiaw Diouf Cheik Anta Diop – University of Dakar, Senegal
Jacques du Plessis – Stellenbosch University, South Africa
Charles M Fombad – University of Pretoria, South Africa
Marcel Fontaine – Emeritus, University of Louvain, Belgium
Marco Guadagni – Emeritus, University of Trieste, Italy
Rajendra Parsad Gunputh – University of Mauritius
Kebreab Habtemichael – University of Asmara, Eritrea
John Kabudi – University of Dar es Salaam, Tanzania
Alain Kenmagne – Simo University of Yaoundé II, Cameroon
Fernando Loureiro Bastos – University of Lisbon, Portugal
Barthélemy Mercadal IDEF – Paris, France
Margaret Munalula – University of Zambia
Muna Ndulo – Cornell University, USA
Etienne Nsie – University Omar Bongo, Gabon
Christian N Okeke – Golden Gate University, San Francisco, USA
Gianluca Parolin – American University of Cairo, Egypt
Christa Rautenbach – North-West University, South Africa
Rodolfo Sacco – Emeritus, University of Turin, Italy
Moussa Samb Cheik Anta Diop – University of Dakar; ERSUMA, Benin
Dário Moura – Vicente University of Lisbon, Portugal





Associate Professor, Stellenbosch University, South Africa
In 2013, the Nigerian Stock Exchange, in partnership with the Convention on Business Integrity, piloted a Corporate Governance Rating System (CGRS) for Nigeria. A corporate governance rating is a means of assessing a company’s corporate governance system by examining and evaluating an entity’s corporate governance procedures and practices. After the pilot’s conclusion, a qualitative evaluation of the pilot was conducted through a survey of the companies that had participated in the pilot as well as other stakeholders. The evaluation was done to determine whether the CGRS as piloted had been useful to improve the corporate governance practices and policies of participating companies and whether the participants and stakeholders in the CGRS believed that the CGRS would in the long term contribute to improving corporate governance in Nigeria. The evaluation also sought to identify the main challenges and drawbacks of the CGRS as piloted. This article presents the findings of this evaluation and the lessons drawn from the pilot, and further considers whether the CGRS will be suitable for other African countries that may want to adopt a corporate governance rating system.

* This work was produced while the author was a research fellow in 2015 at the Centre for Comparative Law in Africa (CCLA) under the Olu Akinkugbe Business Law in Africa Fellowship administered by the CCLA, Faculty of Law, University of Cape Town. The author gratefully acknowledges the Olu Akinkugbe Fellowship and the Centre for Comparative Law in Africa.
† LLB (Lagos), LLM (London School of Economics), PhD (Nottingham). Senior Lecturer in Law, Faculty of Law, University of Lagos, Nigeria; Research Fellow, Stellenbosch University, South Africa. This work was undertaken while the author was a research fellow in November/December 2015 at the Centre for Comparative Law in Africa (CCLA) under the Olu Akinkugbe Business Law in Africa Fellowship administered by the CCLA, Faculty of Law, University of Cape Town. The author gratefully acknowledges the Olu Akinkugbe Fellowship and the Centre for Comparative Law in Africa.

Agrégé des Facultés de droit/UCAD
Le législateur OHADA est entré de plein pied dans la mondialisation. À preuve, la réforme intervenue en droit des sociétés commerciales. L’objectif est de rendre attractif ce droit. C’est pourquoi on a recouru à la flexibilité qui, malgré ses vertus, n’en présente pas moins des inconvénients. Mots clés : OHADA The OHADA legislator has fully committed itself to globalisation. Evidence hereof is the reform undertaken in corporate law. The objective is to make this law attractive. For this, we need greater flexibility, which, despite its virtues, does present some drawbacks.
Key words: OHADA

1 B. Saintourens, Les réformes du droit des sociétés par les lois du 26 juillet 2005 pour la confiance et la modernisation de l’économie et du 2 août 2005 en faveur des petites et moyennes entreprises, Rev. Sociétés 2005. 527.
2 L’utilisation des guillemets se justifie par le fait que nous ne sommes pas convaincus que le droit OHADA soit un droit communautaire. De notre point de vue, parmi les critères du droit communautaire, il y a la consécration des libertés et l’existence d’un marché pertinent. Or, nous n’en sommes pas encore là. Voir. P.G. Pougoué, Y.K. Elongo, Introduction critique au droit OHADA, Presses universitaires d’Afrique, 2008 qui est du même avis.
3 Ce courant de pensée provient des États Unis du fait de la rencontre à l’Université de Chicago des économistes et des juristes. Il a connu un défendeur dans le monde judiciaire en la personne du juge Posner.
4 C. Jamin, Économie et droit, in Dictionnaire de la culture juridique, sous la direction de D. Alland et S. Rials, P.U.F, 2003, P.580.

Department of Jurisprudence and International Law, Faculty of Law, University of Lagos, Nigeria
This article undertakes a socio-legal evaluation of grand corruption, which prevails in most parts of Africa. Grand corruption is the genre of corruption perpetrated by high-profile public officials who are responsible for statecraft. Apart from the usual categorisation as a crime, the nature of this conduct is yet to be adequately explored. This has largely led to the poor appreciation of grand corruption and, ipso facto, of adequate countermeasures against it. This article seeks to fill that void by critically undertaking a socio-legal analysis of the nature of grand corruption. This approach is geared to help African citizens, stakeholders, policy makers and legislatures understand the nature and substance of grand corruption so that they can properly aggregate, articulate and design adequate measures against this menace.
Key words: grand corruption, crime, civil wrong

This article is based on aspects of the author’s unpublished PhD thesis submitted in 2007 to the Faculty of Law, Gakushuin University, Tokyo, Japan. 1 For example, see the African Charter on Human and People’s Rights, art 21(5) in which African countries obligate themselves to eliminate all forms of foreign economic exploitation without the complementary duty to free themselves from internal economic plunder.

Lecturer at the Faculty of Law, University of Lagos, Nigeria
Climate change is considered one of the most serious threats to humanity and sustainable development. In response to this threat it has become necessary to stabilise the emission of greenhouse gases (GHG) by developed countries and promote sustainable development, especially in developing countries to steer them away from the path of unsustainable development travelled by developed countries. Article 12 of the Kyoto Protocol established the Clean Development Mechanism (CDM) to promote sustainable development in developing countries. The current CDM project pipeline indicates that countries in Asia and Latin America, such as China, South Korea, India, Brazil and Mexico, currently dominate the CDM project pipeline. They have been successful in supplying over 80% of global certified emission reduction credits (CERs). However, Africa has not been so successful in attracting CDM projects. For example, Nigeria is currently hosting seven out of the 7 987 registered projects in the CDM project pipeline. Using desk-based research and comparative analysis, this paper seeks to highlight the factors that have contributed to the CDM success of countries such as China. In conclusion, the paper advocates that Nigeria can use the CDM as a tool to institutionalise and achieve sustainable development.
Key words: climate change, Clean Development Mechanism, sustainable development

1 See: K Halsnaes et al. 2007. “Framing issues”. In B Metz et al (eds). Climate Change 2007: Mitigation of Climate Change. Cambridge: Cambridge University Press at 121; J Gupta and N Grijp. 2010. “Climate change, development and development cooperation”. In J Gupta and N Grijp (eds). Mainstreaming Climate Change in Development Cooperation: Theory, Practice and Implications for the European Union. Cambridge: Cambridge University Press at 16.
2 Halsnaes et al 2007 op cit note 1 at 121.
3 R Pachuri & A Reisinger (eds). 2007. Climate Change 2007: Synthetic Report Contributions of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change. Geneva: IPCC at 30.
4 Reprinted in (1992) 31 ILM 849.

University of Namibia, Namibia
There is usually a tension in the law of unjustified enrichment when it comes to sanctioning a defence of passing on. The concept “passing on” in the law of unjustified enrichment essentially entails that the claimant has shifted onto a third party the “financial” burden that is consequent upon the defendant’s unjustified enrichment. Several jurisdictions formulate their enrichment doctrine requiring a “mirror-image loss-gain”, that is to say, the claimant can only recover from the defendant what he has lost to the defendant. If the claimant were allowed to recover more than his loss, the law would be punishing the defendant and enriching the claimant at the defendant’s expense. For this and other reasons some think that there should exist symmetry in the law of unjustified enrichment in that where the defence of change of position (loss of enrichment) is recognised, the passing- on defence should equally be sanctioned as the reverse face of change-of-position defence on the claimant’s side. This paper explores these issues in depth and argues that the need for such symmetry is misconceived. The defence of passing on is, however, sustainable in certain cases and should be recognised not only for policy reasons but also for reasons of principle.
Key Words: passing-on, mirror-image loss-gain, unjust enrichment

* Dr Aimite Jorge is a senior lecturer at the University of Namibia Law School where he teaches Contract Law, Insurance, International Economic Law and Construction Law.