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Africa: Legal Challenges and Solutions

This expert panel of the 9th St Petersburg Legal Forum discussed the specifics of African jurisdictions, the challenges that the continent faces as well as their possible solutions both on the national and cross-border level. The 9th Forum was the first to include African law on the agenda.

The session was chaired by Nataliya Zaiser, Chair of the Board of the Africa Business Initiative Union. Participants of the discussion were Sophia Abena Boafoa Akuffo, Chief Justice of the Supreme Court of Ghana, Polina Galperina, Head of International Projects Department at Nordgold Management, Luke Malaba, Chief Justice of Zimbabwe, Irene Chirwa Mambilima, Chief Justice of Zambia, Prince Machaya, Attorney General of Zimbabwe, Frances Kizzita Aku Mensah, Managing Partner of DLA Piper, Yelena Nairne, Senior Counsel EEMA, Middle East, Africa & PMI DF at Philip Morris International, Paulo Trindade Costa, Partner of Vieira de Almeida, Saul de Tarse Taty Bayonne, Attache for reforms at the Ministry of Justice of the Republic of Congo, and Sakeus Edwards Twelityaamena Shanghala, Minister of Justice of Namibia.

Kicking off the discussion, Nataliya Zaiser noted that this is the first ever Forum session dedicated to Russian-African relations. “No businesses will be able to enter the country, no projects or interactions will happen unless we understand the regulatory framework and legal nuances, unless we interact with the state institutions, unless we understand the legal compliance. I think that everyone here understands the main platform upon which all the business and international relations are built,” she said.

The first speaker of the session, Minister of Justice of Namibia Sakeus Edwards Twelityaamena Shanghala, opined that a common cross-border Internet regulation policy is necessary. “No single country can handle this on its own, because the very nature of [digital] devices is cross-border. . . . I would like to urge us to create a common norm across the world . . . for us to know how we want to regulate this activity, how we should regulate it and how we are going to cooperate,” he emphasized.

Sakeus Edwards Twelityaamena Shanghala also mentioned that the Internet is not only a blessing but could become a danger as well, with the rapid increase in cybercrime which threatens our security all over the world. At the same time he said that these regulations must not be excessively strict, as we have to stay balanced and must not go too far when securing the Internet.

While supporting Mr. Edwards Twelityaamena Shanghala’s argument that international cooperation is necessary to regulate the World Wide Web, Sophia Abena Boafoa Akuffo, Chief Justice of the Supreme Court of Ghana, mentioned the colonial past of Africa which has exerted a different influence on the legal systems in different nations. “There are four types of jurisdictions on the African continent: Roman-Dutch law, English common law, Napoleonic code and Sharia law. Regulations differ across these jurisdictions, which may cause problems in cross-border interactions,” she noted.

Speaking about her nation's experience, the Chief Justice of the Supreme Court of Ghana told the audience that court decisions from other jurisdictions are recognized as sources of evidence in Ghana. She also added that Ghana is a member of multiple regional and continental associations and partnerships, most notably the Economic Community of West African States (ECOWAS), which, apart from having an economic and political function, also serves as a court forum and has a jurisdiction over commercial matters.

“Those regional agreements and communities facilitate interstate transactions. We devote a lot of attention to easing cross-border movements of goods and people.  As time goes on it becomes obvious that it’s necessary to set up the required systems that will make meaning of such cross-border activities. They mean greater opportunities for interstate trade. We need to focus more on this,” Sophia Abena Boafoa Akuffo said.

The Chief Justice of Zambia Irene Chirwa Mambilima also noted that courts of her country recognize judgments made by courts abroad. Just like Ghana, Zambia predominantly uses English common law. Ms. Chirwa Mambilima however noted that foreign judgments are only recognized in national courts if the issuing state is on a corresponding list of national jurisdictions. If a state is not listed, the judgment can be enforced by commencing an action founded on the judgment as a cause of action. Zambia is also a member of a subregional community COMESA, the Common Market for Eastern and Southern Africa, which is very similar to ECOWAS in terms of interaction principles.

Luke Malaba, Chief Justice of Zimbabwe, focused on the human rights issues in African countries. “Africa is a part of the human rights process, many countries have constitutions which reproduce word by word the Universal Declaration, all the international conventions on human rights, we have the African Charter on Human Rights. It is not necessarily confined to Africa itself, it's a broad chapter which takes into account Africans as human beings, as part of the Universe, it’s a universal charter. That is critical, because all the laws enacted in African countries must comply with the constitution. Therefore if the constitutions are compliant with international human rights instrument provisions, it means that every African government is under a constitutional obligation to enact laws that are consistent with the international human right conventions. . . . We want to leave you knowing that all the necessary international principles are at our heart and part of our legal framework,” the Chief Justice of Zimbabwe noted.

The Chief Justice of Zimbabwe firmly believes that Africa should now be seen not as a continent lagging behind but rather as an economic hub which is attractive for businesses. “Now it is a central place where many countries look at for their future. . . . Africa is the center of all economic activity, because Africa has the resources and Africa has the future. It is important in this light that we look at Africa today . . . in terms of the relationships with the private sector, open for investment opportunities. All that is available in many countries in Europe in terms of protecting foreign investment, it’s all available in Africa as well,” Mr. Malaba emphasized.

Prince Machaya, Attorney General of Zimbabwe, told the audience how the nation survived under sanctions. He gave an overview of the Zimbabwean colonial history and explained how the nation was subjected to different sanctions of the EU and US after the Zimbabwean government expropriated farms which belonged to European farmers, refusing to compensate them for the land.  The reason behind this was that the government took the viewpoint that the land was taken illegally, meaning that the farmers were not entitled to compensation. Currently, the EU sanctions are almost completely removed, but the US sanctions are still in place. Mr. Machaya, however, emphasized that the viewpoint of the government has since changed and those farmers who went to the international arbitration courts and won their cases will be paid compensations. “The Government of Zimbabwe has now sat down and discussed with their farmers who were dispossessed of the land. At the moment the agreement is about to be reached about compensations. . . . The farmers also expressed the wish to be involved in the agrarian reforms. . . . Our president now openly said that Zimbabwe is open for business. Our government is doing everything in its power to ensure that foreign investors get the type of protection they are entitled to in terms of international laws,” he said.

Saul de Tarse Taty Bayonne, Attache for reforms at the Ministry of Justice of the Republic of Congo, elaborated on how cross-border transactions are handled under the national legal framework. The Republic of Congo is also a member of several subregional unions and has established agreements on mutual recognition of judgments in criminal cases with neighboring countries. However, as the legal regulations vary across countries, not all the judgments can be regarded as enforceable, including those regarding financial matters. Saul de Tarse Taty Bayonne also noted that supranational unions and agreements with neighboring nations help find a middle ground between the different standpoints.

Summarizing the discussion, Nataliya Zaiser thanked the St Petersburg Legal Forum for organizing this session and expressed her hope that this talk will kick off the dialog. “I think we can be positively sure to have laid the foundation of a successful African dialog on legal issues, which has to be continued,” Ms. Zaiser concluded.

St. Petersburg International Legal Forum is held on May 14–18 in the Eastern Wing of the State Hermitage with the support of the President of the Russian Federation and the Ministry of Justice of the Russian Federation.