No abstract

Abstract:Since 2000, the Zimbabwean government has expropriated a string of white-owned commercial lands. In March 2008, in a consolidated case (Mike Campbell (Pvt) Ltd and Others v Zimbabwe), 79 applicants filed an application with the Southern African Development Community Tribunal (SADC Tribunal) to challenge the legality of the acquisition of certain agricultural lands by the Zimbabwean government. On 28 November 2008, the Tribunal ruled that the expropriations of agricultural lands by the Zimbabwean government were illegal because they were based on racial discrimination and did not compensate the applicants. This paper seeks to understand the contribution that the Campbell case brings to the law on foreign direct investment, especially the principle that expropriations must not be discriminatory. Investment law generally prohibits discriminatory expropriations or nationalizations on the basis of race, with the notable exception of post-colonial expropriations carried out to end the economic domination of the nationals of the former colonial power. By declaring that the expropriations of white-owned agricultural lands in Zimbabwe were illegal because they amounted to racial discrimination, the SADC Tribunal in Campbell appears to develop the investment law jurisprudence on expropriations by creating an exception to the exception. Accordingly, the question that this paper addresses centers on the extent to which a country can expropriate property as part of a general government program to correct present economic inequalities brought about by a colonial past. After an exposition of the applicable laws and an explanation of the contribution of Campbell, the paper discusses whether the SADC Tribunal rightly decided the Campbell case and, if not, how the case could and should have been decided.

This article describes a legal thread running from the commission of massive sexual violence in the eastern provinces of the Congo since 1996 to the enactment of liberal legislation in 2006 to combat sexual violence throughout the country, especially in eastern Congo. In doing so, the article fills a gap in the nascent legal literature on systematic sexual violence. It finds that the new rape law is progressive, liberal, gender-neutral, and in keeping with international law. However, an unfortunate lapse in legislative drafting puts in doubt the authority of the courts to use the new rape law to prosecute systematic sexual violence. Despite this weakness, as well as harsh realities such as resource limitations and institutionalized corruption, the new sexual violence law, "the law of shameful acts," nonetheless provides a framework on the basis of which the state and rape survivors can prosecute perpetrators. It is a necessary step in upholding accountability and preparing for the more daunting task of healing communities affected by a devastating regional war.Resume: Cet article decrit le fil conducteur juridique reliant la perpetration de violences sexuelles massives dans les provinces de Test du Congo depuis 1996, la mise en vigueur de la legislation liberale en 2006, et la confrontation active des problemes de violence sexuelle au niveau national, et en particulier dans les provinces de Test. En offrant ce parcours chronologique, cet article comble un vide dans la litterature juridique naissante sur les problemes de violence sexuelle systematique. Cette recherche montre que la nouvelle loi sur le viol est progressiste, liberale, egalitaire, et similaire a la loi internationale. Cependant, des failles malheureuses dans la formulation de cette loi mettent en doute l'autorite des tribunaux dans son utilisation African Studies Review, Volume 55, Number 2 (September 2012), pp. 37-57 Dunia Prince Zongwe was born and raised in Lubumbashi, Democratic Republic of the Congo (DRC), and currently works in a commercial law firm in Montreal. He publishes in the areas of international human rights and finance and development, with a particular emphasis on Africa.

Article 215 of the Constitution of the Democratic Republic of Congo (DRC) is the entry point for international law into the DRC legal complex. It provides that international treaties and agreements duly ratified by the state predominate over Acts of Parliament. Cases and studies involving the direct effect or self-executing norms of international law in domestic cases are rare in the DRC. The correct ways of applying Article 215 of the Constitution and international law in domestic cases have not yet been authoritatively settled. The basic dilemma is whether courts should read the provisions of relevant international treaties into disputed provisions of DRC laws or read the disputed provisions in the light of the relevant treaty provisions.Using as a case study the emerging practice of DRC military courts of directly applying international criminal law in domestic cases, the article argues that carelessly cutting and pasting formulations found in international treaties into the texts of applicable municipal laws infringes state sovereignty. Instead, the article proposes a strategy that would avoid unpleasant friction between international criminal law and municipal law, while encouraging cultural pluralism and the judicious intervention of international law in municipal law.

No abstract