2014 University of Botswana Law Review June

UNIVERSITY OF BOTSWANA LAW JOURNAL
VOLUME 16 JUNE 2013
ARTICLES
Judicial review of the exercise of presidential power in Africa .................3

Enyinna Nwauche
Global antitrust and competition law: From a de facto system of ............15

national laws to a de jure network of global competition conventions
Eric Engle
Adoption of children in Botswana in a comparative perspective: ............37

Unpacking two models of adoption
Rowland JV Cole, Jimcall Pfumorodze and Hauwa Nuru
NOTES
Judicial protection of women’s rights in Nigeria: The regrettable ...........59

decision in Mojekwu v Iwuchukwu
I.N. Eme Worugji and R.O. Ugbe
3
ARTICLES
Judicial review of the exercise of presidential power in Africa
Enyinna Nwauche*
ABSTRACT
The principle that all exercise of public power no matter how couched is
limited by certain standards as an incident of the rule of law is not part of the
common law of many commonwealth African countries. It is even less so when
the donee of the power is the president of the republic and the power is to be
exercised entirely at his discretion. In some commonwealth African countries
such as South Africa, Malawi Ghana and Namibia, there has been a paradigm
shift towards the constitutionalisation of a right to administrative justice. In
South Africa there is a consequential jurisprudence that has been articulated
on the rule of law requiring that all exercise of public Power including
presidential power is subject to certain standards. Against this background,
this article examines the recent Zambia Supreme Court decision in Attorney
General v Mutuna and Three Others and its review of the exercise of Zambian
presidential power to suspend judges impugned for impropriety to demonstrate
the inadequacy of the Zambian common law in constraining the exercise of
presidential power. It will be urged, using comparative jurisprudence from
other commonwealth African countries, that the proposed right to
administrative justice in the First Draft amended Zambian Constitution 2012
is a credible means of constraining the exercise of public power especially if it
leads to appropriate jurisprudence that subjects all exercise of power to
certain standards.
1. INTRODUCTION
The judicial review of executive power is an important requirement of

constitutionalism in Africa because of a widespread recognition of a powerful
executive branch in Africa. An unrestrained executive branch would result in
arbitrary exercise of power since courts would defer to their unfettered exercise
of discretion. It is a key feature of the rule of law and constitutionalism that all
exercise of public power must be justified and be traceable to a law.1 If it were
otherwise, many constitutional democracies would become civil dictatorships
*1 Associate Professor of Law University of Botswana nwauche@hotmail.com.

1 See Wade & Forsyth Administrative Law (Tenth Edition 2009) 17; C. Stewart “The Rule of Law and the
Tinkerbell Effect: Theoretical Considerations, Criticisms and Justifications for the Rule of Law” 4 (2004)
Macquarie Law Journal 135.
4 UNIVERSITY OF BOTSWANA LAW JOURNAL JUNE 2013
with the attendant abuse of powers, human rights violations and socio-
economic anomie. Implying certain standards into the exercise of public power
ensures that courts are able to ensure fidelity to these standards and protect
ordinary citizens. While the common law is capable of recognising implied
standards of review of executive power, the common law of many
commonwealth African countries have proved inadequate in this regard,
leading to a preferred mode of constitutionalising a right to administrative
justice. In turn, the recognition of a right to administrative justice does not
guarantee that all executive power will be subject to certain implied standards
because of the ambiguity in the meaning of ‘administrative action’ and whether
presidential power is contemplated thereby.
This article begins with a critical examination of the decision in
Attorney General v Mutuna and 3 others2 and the principles of Zambian
common law concerning the review of the exercise of constitutionally granted
presidential powers. This is followed by a comparative evaluation of the
review of the exercise of public power in a number of African States that have
a constitutional right to administrative justice. Concluding remarks and
recommendations end the article.
2. ATTORNEY GENERAL V MUTUNA AND THREE

OTHERS
This is a decision of the Zambian Supreme Court. President Sata suspended the
three Respondents, who were serving judges in the Zambian judiciary on the
30 May 2012, from performing their duties, pending the proceedings of a
tribunal appointed pursuant to Article 98(3) of the Constitution of the Republic
of Zambia.3 The President gave a press conference in which he indicated that
he had received complaints of corruption against the judges and decided to
suspend them pending the outcome of an investigation against them. In the
press conference, the President made allegations of impropriety, misconduct,
impartiality and incompetence against the three judges related to their conduct
in hearing and delivering opinions, rulings and judgments in a number of cases.
2 Unreported Appeal No. 088/2012 SCZ/8/185/2012. Judgment delivered on 18th September and 9th May
2013. Text of the judgment is available at www.mwebatu.com/201/05/15/full-supreme-court-judgment-
on-judges-musonda-kajimanga-mutuna/ (last visited 12 October 2013). Hereafter Mutuna.
3 Art 98(3) of the Zambian Constitution provides that “If the President considers that the question of
removing a judge of the Supreme Court or of the High Court under this Article ought to be investigated,
then-
(a) he shall appoint a tribunal which shall consist of a Chairman and not less than two other members,
who hold or have held high judicial office; (b) the tribunal shall inquire into the matter and report on the
facts thereof to the President and advise the President whether the judge ought to be removed from office
under this Article for inability as aforesaid or for misbehaviour.” Art 98(5) further provides that “If the
question of removing a judge of the Supreme Court or of the High Court from office has been referred to
a tribunal under clause (3), the President may suspend the judge from performing the functions of his
office, and any such suspension may at any time be revoked by the President and shall in any case cease
to have effect if the tribunal advises the President that the judge ought to be removed from office.”
JUDICIAL REVIEW OF THE EXERCISE OF PRESIDENTIAL POWER 5
It was accepted by all parties that the aggrieved parties in the cases over which
the President had suspended the judges had filed appeals against the judgment
of the three suspended judges. In fact, one of the suspended judges claimed
lack of any knowledge of the conduct of the cases, which were the bases of the
suspension.
The suspended judges sought an order of certiorari to quash the
decision to suspend them and the decision to constitute a tribunal to conduct
an investigation of misbehaviour or incompetence. They contended that the
suspension and creation of a tribunal were not in keeping with the provisions
of Article 91(2) of the Constitution of Zambia,4 as read together with the
provisions of the Judicial (Code of Conduct) Act.5 The grounds on which the
relief was sought were illegality, procedural impropriety, bad faith,
irrationality and reasonableness. The ground of illegality was advanced on the
fact that the President did not seek the advice of the Chief Justice of Zambia
as required by the Judicial Code of Conduct Act. The lack of fair hearing
before suspension was the basis of the ground of procedural impropriety. The
ground of reasonableness was based on the reasons advanced by the President
at the press conference, which in addition to other evidence indicated that the
President was being actuated by political considerations.
The learned trial judge before whom the application was brought
ruled that a prima facie case had been made out as required by the rules for
leave to be granted for full arguments. Dissatisfied, the President sought to
discharge the leave to apply for judicial review. When that failed, the
President appealed to the Supreme Court and argued that the power under
Article 98(3) of the Zambian Constitution is executive in nature and that in
exercising executive powers, the discretion to reach a conclusion is given
without any need of consultation to the President who did not need to act
judiciously by hearing the suspended judges before taking a decision. It was
further argued that the constitution of the tribunal was not irrational because
the decision to establish the tribunal was not outrageous and was within
ordinary logic.
With respect to the ground of procedural impropriety, the Supreme
Court held that where a constitution grants wide discretionary powers to the
President, the powers are executive powers and not quasi-judicial powers.
Accordingly, there is no need to import the requirement to act judiciously by
giving the suspended judges an opportunity to be heard. On the question of
illegality, the Court held that article 98(5) of the Constitution was a stand-
4 Art 91(2) of the Zambian constitution provides that the judges, members, magistrates and justices, as the
case may be, of the courts mentioned in clause (1) shall be independent, impartial and subject only to this
constitution and the law and shall conduct in accordance with a code of conduct promulgated by
parliament.
5 No. 13 of 1999. This Act is made pursuant to Art 91(2) of the Zambian Constitution. The preamble to the
Act states: “An Act to provide for the Code of Conduct for Officers of the Judicature pursuant to article
ninety-one of the Constitution and for matters connected with or incidental to the foregoing.”
alone article which was not linked to article 91(2) of the Constitution and thus
to the requirement of the advice of the Chief Justice in terms of the Judicial
Code of Conduct Act.6 The Court reasoned that the provisions of article 98(5)
of the Constitution were clear and that a literal interpretation of a constitution
allowed no room for extraneous requirements, which in this case would be
reference to the Judicial Code of Conduct Act which mandates the advice of
the Chief Justice before the President could establish a tribunal and suspend
impugned judges. The Court also held that the President did not breach the
irrationality ground referred to as Wednesbury unreasonableness. In the
opinion of the Court:
“We are satisfied that bearing in mind the authoritative position of

His Excellency, it would be illogical and unreasonable to hold that
he did not receive credible information as President for him to act as
he did. He is the overall authority on everything. His sources are
exclusive to the public domain and must be impeccable. Also it was
not established that the President’s decision was outrageous in its
defiance of logic or of accepted moral standards that no reasonable
person in his position could have acted in the way he did.”
We now turn to an evaluation whether the decision of the Supreme

Court conforms to Zambian law. As difficult as it may sound the answer is
that the court was correct based on the existing law on the review of the
exercise of executive power in Zambia. On a general note, it is to be realised
that the judicial review of executive (including administrative) power in
Zambia is based squarely on the Zambian common law, which is itself based
on the English common law. In Chitala v Attorney General,7 the Zambian
Supreme Court adopted three grounds of review- illegality, irrationality and
procedural impropriety- for the review of administrative action in Zambia.
These grounds of review are based on the doctrine of ultra vires which, as the
fulcrum of judicial review, turns on the need to identify the nature of an
endowed power and to strike down the exercise of power outside what
parliament or the legislature had intended. In the development of the grounds
of review the Zambian common law has drawn inspiration from English
common law. It is to be remembered that English administrative law
developed within the context of parliamentary sovereignty, which in its
broadest reading required courts to defer to the will of parliament expressed in
the grant of powers. English courts restrained the exercise of power through a
6 The Judicial Code of Conduct Act creates in section 20 a complaints committee which is endowed by
section 24 of the Act the powers to receive complaints against judicial officers investigate same before
forwarding recommendations to the Chief Justice for onward transmission to the President.
7 [199] ZMSC 32. Available at www.zambialii.org/za/judgment/supreme-court/1995/32 (Accessed 5th Dec
2013). This position was reiterated by the Zambian Supreme Court in Chiluba v Attorney General (2003)
ZR 153
reading of implied conditions as being within the province of what parliament

intended in the grant of powers. These implied conditions have ranged from
unreasonableness, error of law and the requirement of natural justice. An
assessment of each ground of review in Mutuna follows. The first ground is
procedural impropriety. In the development of the requirement of natural
justice, English courts articulated the principles of the classification of
functions. Accordingly, only the endowment of judicial and quasi-judicial
functions required the presence of fair hearing. The grant of executive and
administrative power did not require adherence to fair hearing because
executive power implied the exercise of an unfettered discretion. It is
instructive to note that the classification of functions in English law as a
means of determining the need for fair hearing has been abolished in Ridge v
Baldwin8 and what is now required is a broad duty to act fairly in the exercise
of public power. Lord Hodgson in that case stated that:
“[t]he answer in a given case is not provided by the statement that

the giver of the decisions is acting in an executive or administrative
capacity as if it were the antithesis of a judicial capacity. The cases
seem to me to show that persons acting in a capacity which is not on
the face of it judicial but rather executive or administrative have
been held by the courts to be subject to the principles of natural
justice.”9
It is also instructive to note that many commonwealth legal systems

have done away with the notion of classification of actions just like English
law because it immunises a considerable amount of the exercise of public
power. Since the Zambian common law continues to apply the principle of
classification of functions, the classification of the President’s power as
executive shielded it from judicial review. The requirement of natural justice
would have been implied were Zambian courts to stipulate that a duty to act
fairly should be discharged in the exercise of all public power.
The ground of illegality is the next ground to be considered. In
Chitala v Attorney General,10 the Zambia Supreme Court set out the nature of
illegality as ground of review:
“To succeed under this ground, the appellant has to prove that the
decision of the National Assembly contravened or exceeded the
8 [1964] AC 40
9 See Lord Hodgson at p.130. See also Lord Denning in R v Gaming Board for Great Britain ex p. Benaim
and Khaida [1970] 2 QB 417 at 430. See Lord Diplock in Attorney General v Ryan [1980] AC 718, 730:
[t]he Minister was a person having legal authority to determine a question affecting the rights of
individuals. That being so it is a necessary implication that he is required to observe the principles of
natural justice when exercising that authority; and if he fails to do so, his purported decision is a nullity.
10 Note 7.
terms of the law which authorized the making of that decision or

that the decision pursues an objective other than that for which the
power to make the decision was conferred. By looking at the
wording of the power and the context in which the power is to be
exercised, the court’s ultimate function is to ensure that the exercise
of the power is within or intra-vires the statute.”11
In determining illegality as a ground of reviewing the exercise of

public power, a court could engage in a literal or contextual interpretation of
the enabling provision. A literal interpretation concentrates on the bare text of
the legislation as a means of determining its boundaries while a contextual and
purposive interpretation engages the purpose and means of the grant of power
to substantively determine the meaningful boundaries of the endowed public
power. These two modes of interpreting the nature of an endowed power are
evident in Mutuna in line with the arguments advanced above. The holding of
the Court that the grant of a power to suspend judges in Article 98(5) is a
stand-alone power and is not triggered by the advice of the Chief Justice
acting in terms of Article 91(2) of the Judicial Code of Conduct Act is an
example of a literal interpretation which is a point made strenuously by the
Zambian Supreme Court in Mutuna. The other purposive and contextual
interpretation is one which argues that:
“Article 91 and 98 without doubt are interconnected. Article 91

provides the overall context within which provisions relating to the
judiciary should be interpreted. It underscores judicial
independence. Article 98 cannot be interpreted in such a manner as
to become a conduit of executive influence over the judiciary. The
removal of judges from the bench on spurious grounds is the
greatest threat to judicial independence.”12
It is submitted that the need to preserve judicial independence itself

as a key part of the rule of law is a substantial reason to connect Article 98(5)
and 91(2) of the Zambian constitution in order to map the vires of the power
to suspend judges. Without such reading, the power to suspend judges
contained in Article 98(5) would be an unfettered discretion that threatens
Zambian constitutionalism.
The threshold of the ground of irrationality (Wednesbury
unreasonableness) and its application in Mutuna is an example of a review
that is substantially deferential to the executive. To imagine that the President
11 As above
12 See PM Ndulo “Judicial Independence and the Supreme Court’s Decision in the Matter of the Three
Judges”. Available at http://www.zambiareports.com/2013/07/12/prof-ndulo-disputes-supreme-court-
judgment-on-mutuna.
can do no wrong because he is in charge of everything is to abandon this

ground of review as a means of constraining the exercise of public power in
Zambia.
Our analysis of Mutuna reveals that the decision of the Zambian
Supreme Court is seriously flawed. An overall context of the failure of the
Court can be traced to the lack of an enhanced and substantive conception of
administrative justice. It is of course true that the Zambian common law can
and should be developed to ensure effective grounds for the review of the
exercise of public power. Another possibility is the constitutionalisation of the
right to administrative justice, which is increasingly becoming popular in
Africa. Zambia seems to have chosen the latter route because s.46 of the First
Draft Constitution of Zambia recognises a right to fair administrative action
and provides that a person has a right to administrative action that is
expeditious, lawful, just, reasonable and procedurally fair. It is plausible to
suggest that the constitutionalisation of administrative justice would consign
principles such as the classification of functions to irrelevance and allow
Zambian courts to chart a new course in designing and elaborating grounds for
the review of executive action. To understand how this is possible a review of
recent constitutionalisation of the right to administrative justice in a number of
African States is undertaken.
3. A BRIEF COMPARATIVE OVERVIEW OF THE

RIGHT TO ADMINISTRATIVE JUSTICE AND
THE FRAMEWORK FOR THE REVIEW OF
PUBLIC POWER IN AFRICA
This part of the comment examines the right to administrative justice in five
African States and demonstrates that it is the further development of
substantive rule of law principles such as the principle of legality developed by
South African courts that ensures that all executive power, including the
exercise of presidential power, is reviewable on stated grounds. Without the
principle of legality, it is often the case that the president and other high-
ranking members of the executive who are not recognised as part of the
administration and therefore outside the remit of the right to administrative
justice exercise power without restraint and review. To illustrate this point we
now turn to South Africa.
3.1 South Africa
Section 33(1) of the 1996 Constitution of the Republic of South Africa

provides that everyone has a right to administrative action that is lawful,
reasonable and procedurally fair. Anyone whose rights have been adversely
affected by administrative action has the right to be given written reasons.

National legislation was to be promulgated to give effect to the s. 33 right.
Consequently, the Promotion of Administrative Justice Act (PAJA) 2000 was
promulgated as required by section 33(3). In time PAJA turned on the meaning
of ‘administrative action’ and in a number of decisions- President of the
Republic of South Africa v South African Rugby Football Union;13
Pharmaceutical Manufacturers Association of South Africa: In re Ex parte
President of the Republic of South Africa;14 Fedsure Life Assurance Ltd v
Greater Johannesburg Transitional Metropolitan Council15 and Nel v Le Roux
NO16 the South African Constitutional Court held that administrative action
does not contemplate legislative, judicial and executive action. Consequently,
the exercise of presidential power in South Africa would have been without
restraint and review, if it were not for the principle of legality, which requires
that the exercise of executive powers must be legal and rational. In
Pharmaceutical Manufacturers, the Constitutional Court held that:
“It is a requirement of the rule of law that the exercise of public

power by the Executive and other functionaries should not be
arbitrary. Decisions must be rationally related to the purpose for
which the power was given, otherwise they are in effect arbitrary
and inconsistent with this requirement. It follows that in order to
pass constitutional scrutiny the exercise of public power by the
Executive and other functionaries must, at least, comply with this
requirement. If it does not, it falls short of the standards demanded
by our constitution for such action.”17
The principle of legality therefore provides a safety net to catch the

exercise of public power that escape PAJA review. As stated above without
the principle of legality, a significant portion of South African public power
would be unfettered.
It is the lack of a principle of legality alongside the constitutionalised
right to administrative justice in four commonwealth African countries that
attenuate the review of all exercise of public power. In these countries, there
are no principles similar to the principal of legality. It is therefore likely in
these countries that the threshold of administrative action is important in
determining the extent of the right to administrative justice.
13 2000 1 SA 1 (CC). Hereafter SARFU.

14 2000 (2) SA 674 (CC). Hereafter Pharm. Manuf.
15 1999 (1) SA 374 (CC). Hereafter Fedsure.
16 1996 (3) SA 562 (CC).
17 Para 85.
3.2 Kenya
The 2010 Kenyan Constitution recognises that Kenyans have a right to fair
administrative action in s. 47(1) and (2). The administrative action must be
expeditious, efficient, lawful, reasonable, procedurally fair and if a right or
fundamental freedom has been or is likely to be adversely affected by
administrative action, the person has a right to be given written reasons for the
action. Parliament is to enact legislation to give effect to the right to fair
administrative action. Until that is done it is not clear whether a principle like
the principle of legality will be articulated in Kenya constitutional
jurisprudence to overcome significant jurisprudence that policy matters are
outside the ambit of judicial review. Thus in Ex parte Kenyatta18 the Court
stated thus:
“The Executive and Parliament do have monopoly on issues of

policy and a respectable interplay is encouraged in view of
Parliament’s role in terms of acting as a check on any excess of the
Executive and also in its watchdog role. Except where they are
reviewable under the Court’s Judicial Review powers, Executive
decisions and policies are within the province of the Executive and
Parliament and not the province of the Courts, Commissions or
Tribunals.”19
3.3 Ghana
With respect to Ghana, section 23 of the 1992 Constitution requires that

‘Administrative bodies and administrative officials shall act fairly and
reasonably and comply with the requirements imposed on them by law and
persons aggrieved by the exercise of such acts and decisions shall have the
right to seek redress before a court or other tribunal.’ In addition, s. 296 of the
1992 Ghanaian constitution purports to regulate the exercise of discretionary
powers and in effect provides that discretionary powers shall imply a duty to
be fair and candid and the exercise of power shall not be arbitrary, capricious
or biased either by resentment, prejudice or personal dislike and shall be in
accordance with due process of law. There is also a requirement for a
constitutional or statutory instrument setting out the conditions for the exercise
of discretionary power. It would appear that all public officers except the
president who is immunised by section 57(5) of the 1992 constitution are
subject to section 23 review.
18 See Republic v Registrar of Societies & 5 Others Ex Parte Kenyatta & 6 Others (2008) 3 KLR (EP) 521.
Hereafter Ex Parte Kenyatta. See also Patrick Ouma Onyango v Attorney General & 2 others [2005]
eKLR.
19 As above p. 581.
The extent to which section 23 would be the basis of the review of all
exercise of power in Ghana is still not clear. Available case law in Ghana:
Enekwa v Kwame Nkrumah University of Science and Technology;20 Tema
Development Corporation v Atta Baffour21 and Awuni v West African
Examinations Council22 – stress that section 23 of the Constitution is the
constitutionalisation of the common law grounds of review. The extent to
which section 23 has made radical changes in the protection of administrative
justice in Ghana is unclear. Accordingly, presidential immunity and modest
development of the right to administrative justice ensure that the President is
unfettered in the exercise of constitutionally endowed powers.
3.4 Namibia
In Namibia, article 18 of the 1990 Constitution requires administrative bodies

and administrative officials shall act fairly and reasonably and comply with the
requirements imposed upon such bodies and officials by common law and any
relevant legislation, and persons aggrieved by the exercise of such acts and
decisions shall have the right to seek redress before a competent Court or
Tribunal. Even though the right to administrative justice has yielded modest
fruit in many regards including the abolition of classification of functions; and
the consolidation of reasonableness as a ground of review, article 31 of the
Constitution extends civil and criminal immunity to the President in the course
of his official duties clearly removing certain actions from judicial review. It is
hoped that as Namibia debates whether to enact legislation to elaborate section
18 that it addresses the question of implied standards in the review of the
exercise of presidential power.
3.5 Malawi
For Malawi, administrative justice is protected by section 43 of the 1994

Constitution which provides that “Every person shall have the right to:
(a) lawful and procedurally fair administrative action, which is justifiable in
relation to reasons given where his or her rights, freedoms, legitimate
expectations or interests are affected or threatened; and (b) be furnished with
reasons in writing for administrative action where his or her rights, freedoms,
legitimate expectations or interests if those interests are known.” In an
assessment, Professor Danwood Chirwa asserts23 that Malawian courts have
not fully grasped the revolutionary potential of section 43.
20 [2009] SCGLR 242.

21 2005-2006] SCGLR 121.
22 [2003-2004] SCGLR 471
23 DM Chirwa “Liberating Malawi’s Administrative Justice Jurisprudence from its Common Law Shackles”
(2011) 55(1) JAL 105, 106.
It further appears that Malawian courts in some cases- Mkandawire v

Attorney General;24 Phiri v Minister of State25 – have held that certain
executive powers are outside the scope of s. 43. In this regard, Professor
Danwood Chirwa believes that Malawian courts will in certain circumstances
in which s. 43 is inapplicable undertake ‘constitutional review’ “… based on
the notion of constitutional supremacy enshrined under section 5 of the
Constitution and ask whether public power has been exercised in accordance
with the provisions of the Constitutions.” The cases cited in support of this
assertion-Attorney General v Masauli;26 Phiri v Minister of State27– involve
an analysis of express grant of constitutional powers. In Phiri28 the High
Court of Malawi declared that except there are express provisions to that
effect there are no general limitations on the exercise of the constitutional
powers of the President to create and run any department of government. This
implies the absence of implied limitations in the exercise of such presidential
power. It would appear that ‘constitutional review’ is a facial scrutiny of
constitutional compliance without the exacting implied standards which all
exercise of Malawian public power must meet.
To sum up this part, our review of the right to administrative action
in five commonwealth African countries reveals clearly that the absence of
rights like the principle of legality in South Africa drawn in the Kenyan,
Namibian, Ghanaian and Malawian legal system clearly limit the effect of the
right to administrative action. Thus, the constitutionalisation of the right to
administrative justice has not resulted in the development of implied standards
in the exercise of presidential power. Like Zambia, the Presidents of these
countries exercise unfettered public power.
4. CONCLUSION AND RECOMMENDATIONS
Mutuna reveals the ineffectiveness of the Zambian common law in

constraining the exercise of presidential power. There are many
commonwealth African countries whose common law is not better than that of
Zambia in the arduous task of constraining the exercise of public power. In
many commonwealth African countries it is felt that the exercise of
presidential power should not be subject to certain implied standards and
should be immune from judicial review. It is imagined that such immunisation
is a feature of separation of powers and that the judicial review of presidential
power would result in the usurpation of executive/presidential power. What the
principle of legality and the like demand is that the power must be exercised in
24 [1997] 2 MLR 1 9 (HC).

25 Miscellaneous Civil Cause No. 82 of 1997 (Unreported).
26 MSCA Civil Appeal No. 28 of 1998 (Unreported).
27 Note 25.
28 As above.
accordance with certain implied standards. Without these implied standards

public officers such as the President of Zambia are likely to abuse ordinary
citizens. In a continent where the enormous size of the State is the rule rather
than the exception, the unlimited unjustified and unreviewable exercise of
public power has been a sore thumb in Africa’s constitutionalism. The post-
colonial African state as the successor to a large colonial state and the
endowment of enormous powers on postcolonial African states as vehicles of
change and development continues to the present day resulting in an
exceedingly huge public sector. Without credible and substantive judicial
review the head of the post-colonial African State endowed by constitutions
with enormous general and specific public powers is likely to become
dictatorial. In order to ensure that this does not happen it is important that the
common law of commonwealth African States develop principles similar to the
South African principle of legality in addition to constitutionalising a right to
administrative justice. The principle of legality ensures that the shortcomings
in the interpretation of the right to administrative justice in constraining the
exercise of executive and presidential power is remedied so that all exercise of
presidential power is subject to implied standards.
15
Global antitrust and competition law: From a de facto system

of national laws to a de jure network of global competition
conventions
Eric Engle*
ABSTRACT
Currently, a de facto global antitrust system, constructed on the basis of

emulation of the converging U.S.-E.U. antitrust/competition law regime is
anchoring global laws about unfair business practices as to price fixing and
production quotas, inter alia. This de facto system is not yet based de jure in the
World Trade Organization or any similar parallel institution. This may be due
to the fact that there are several competing theoretical rationales which justify
antitrust law. These competing rationales often have conflicting assumptions
and the rules which they generate in turn reflect those divergences.
Nevertheless, outcomes, rules, and even, finally, the various rationales of the
globalising antitrust law are converging. Competing theories of antitrust, early
U.S. populism, Marxism, Corporatism, Ordo-Liberalism, and Neo-Liberalism
are exposed here so as to determine where there are any theoretical
commonalities. This article makes explicit the competing concerns and
assumptions underlying globalising antitrust law. It argues that the common
emerging practical threads of thought are: consumer well-being as the
standard for determining whether a restriction is reasonable; the recognition
that although monopoly may be inevitably more productive, monopoly is not
inevitably inefficient or unfair; economic analysis, especially quantitative
analysis; and possibly also proportionality analysis to resolve uncertainty. The
article explains how the various antitrust rules are consequent to competing
concerns and presumptions of the different theories. It concludes that a global
antitrust law is possible, and indeed inevitable, due to the globalisation of
trade. Any eventual “World Competition Law Convention” would best result
from a well-structured theoretical base. This work provides the needed
theoretical overview to help the process of history along, so that global society
will emerge out of the conflicts of the past and into prosperity. By exposing the
competing ideas and the resulting rules it is hoped that norms generated in the
first world center will be more rapidly and effectively understood, taken up,
and implemented by the global periphery, notably the BRICS countries, and
then de jure globally e.g. via OECD model antitrust convention.
* LL.M., Dr.Jur. Dr. Engle teaches law at Humboldt Universität Berlin, and wishes to thank the anonymous
peer reviewers of this article for their helpful comments. eric.allen.engle@justice.com.
1. THE RISE OF GLOBAL ANTITRUST
This article seeks to outline the theoretical and practical reasons for the rise of
a global anti-trust regime and the implications therefrom. Such a regime is
forming because of the globalisation of world trade. The post-war Bretton
Woods system sought to institute global free-trade, first through the General
Agreement on Trade and Tariffs (GATT), and then through its successor the
World Trade Organization (WTO).1 The global system sought to create a
world with the free movement of goods, capital, and even labour to prevent
wars for markets and resources by fostering interdependence. The success of
this model of global governance explains the desirability and future trend
toward a global anti-trust regime. Such a regime already exists de facto, but it
will become more transparent and effective as that regime becomes de jure;
most likely, either through model laws for States promulgated by the U.N.,2 the
OECD3 and/or through a multi-lateral international convention (treaty law)
governing competition law promulgated by the U.N. as part of the dense
network of U.N. conventions.4
Thus, as a first step toward the goals of model OECD laws and/or a
global competition law convention we outline in this article the already
existing de facto global anti-trust regime.5 This de facto regime is embodied
principally in the law of the United States and European Union, masterfully
described by Professors Elhauge and Geradin. This de facto transatlantic
regime in turn is reflected out onto the rest of the world as other states adopt
laws modeled on the U.S., the E.U. (increasingly more often the case) or a
hybrid of U.S. and E.U. laws. Anti-trust law in the E.U. is known as
competition law, the law of unfair competition.6 The different terminology
(U.S. anti-trust/E.U. competition law) reflects different rationales and in some
respects may be a sign of divergences between the U.S. and E.U. regimes.
However, E.U. competition law and U.S. antitrust law are converging toward
1 The WTO produces annual reports and documentations on the relation between trade and competition
policy, and in 2003 commissioned a study on a potential multi-lateral competition framework. WTO,
Issues Relating to a Possible Multilateral Framework (WT/WGTCP/W/228) at http://www.wto.org/
english/tratop_e/comp_e/wgtcp_docs_e.htm.
2 See, UNCTAD, The United Nations Set of Principles on Competition (The UN Set) http://unctad.org/en/
Pages/DITC/CompetitionLaw/The-United-Nations-Set-of-Principles-on-Competition.aspx. This multi-
lateral convention appears to apply a similar logic of “reporting” which the U.N. used in its earliest
attempts at improving global human rights. UN Set, at G. 3. g.
3 To present, the OECD does not propose a multilateral competition law convention, or a model law for
States to take up in their national legislation. However, the OECD does describe the basic norms of global
competition law, proposing best practices and toolkits for developing countries to take up into their
national fair competition laws. OECD, Competition Assessment Toolkit, at http://www.oecd.org/daf/
competition/assessment-toolkit.htm. See generally: http://www.oecd.org/competition/
4 Indeed, a U.N. model competition law already exists. U.N. Conference on Trade and Development
(UNCTAD), Model Law on Competition, available at http://unctad.org/en/docs/tdrbpconf
5d7rev3_en.pdf.
5 See generally Einer Elhauge, Damien Geradin Global Competition Law and Economics (2011).
6 The logic of unfair competition does appear in U.S. antitrust law too namely in the Federal Trade
Commission Act, 15 U.S.C. §45 which states “Unfair methods of competition in or affecting commerce
… are hereby declared unlawful.”
GLOBAL ANTITRUST AND COMPETITION LAW 17
a common rationale, which focuses on consumer well-being,7 and common

rules, because the competition authorities in each of these regimes are well
aware of the rationales, methods, and rules of each system. In turn, these two
great continental antitrust regimes serve as models for the rest of the world. It
is suggested that the de facto global antitrust regime will further cohere into
some form of global antitrust authority along the lines of the World Trade
Organization (WTO) in the next few decades8 both as pusher and product of
globalisation.
2. COMPETING ANTITRUST LOGICS
If one surveys antitrust/competition law one fairly quickly notes apparent

practical incoherence. The cases seem to be “all over the place”.9 Partly, this is
because antitrust/competition law emerged fairly recently and has had to adapt
itself to meet the challenges of a globalising economy which had suffered two
catastrophic global wars. However, it is mainly because there are, or were,
several competing rationales for antitrust law which have vied for supremacy
and have had more or less prominence over time depending on the historical
and economic circumstances. While none of the following ideologies has
definitively prevailed or been decisively rejected we nevertheless see
tendencies common to them and a direction in global antitrust/competition law.
Here, we explore the competing theories in the historical order of their
development.
2.1 “Naïve” U.S. Antitrust Logic: Ca. 1880-
Globally, antitrust law first emerged in North America.10 Thus, this article
examines U.S. theory first, and takes U.S. theory and rules as the “default” and
starting point. At that time in U.S. history (ca. 1880) that antitrust law was
forming, capitalist enterprises were consciously seeking to attain monopoly
through vicious competition and were also brutally suppressing labour unions.
The emergence of antitrust law was a populist reaction to the excesses of
wildcat capitalism. The class conflict between the oligarchs and the mass of
farmers in an industrialising society resulted in antitrust legislation which, in
our eyes, was too broadly drafted, prohibiting “[e]very contract, combination
in the form of trust or otherwise, or conspiracy in restraint of trade or
7 Elhauge points out the rise of the consumer well-being standard in the EU. See Einer Elhauge, Damien
Géradin Global Antitrust Law and Economics p. 69 (2007) (hereafter Elhauge).
8 In previous decades, a soft law approach was taken, using corporate codes of conduct – which proved
ineffective.Yves Guyon, Droit des Affaires, vol. 1, 9th edn.§ 892 p. 927(1996).
9 Elhauge, 62
10 The first modern anti-trust statute was Canada's Act for the Prevention and Suppression of Combinations
formed in restraint of Trade (1889), which preceded the U.S. Sherman act (1890) by one year.
commerce among the several States or with foreign nations”.11 Meanwhile, the
logic behind the antitrust regime was naively populist: the sugar trust, the steel
trust, were all terrible things, from the populist view, because they suppressed
the rights and freedoms of the small farmer to say nothing of the penniless
immigrant. At that point in U.S. history there was still a productive proletariat
of immigrant industrial workers and nativist farmers. Because of their class
origins, the economic perspective pushed by the naive nativists and their
immigrant allies was simplistic and unrealistic – resulting in badly drafted anti-
trust law which in turn empowered the oligarch influenced courts to step in and
“remedy” the legislation by imposing ex post a judicial view “rule of reason”12
which essentially affirmed the oligarchs’ views. This is one example of why
Marxists are critical of the rule of law idea in capitalism. To Marxists,
capitalism promises the rule of law, but delivers the rule of capital, i.e. law is
the means whereby the capitalist class exercises dominance over society.
2.2 Marxism and Antitrust: 1848-1989
A competing economic view to free market capitalism is Marxism. The

Marxist view on trusts, i.e. oligarchic capitalism, is much more sophisticated,
more accurate, but also an incomplete perspective on competition law/antitrust.
To Marxists, the inevitable tendency of capital is to monopoly13 because of
brutal zero-sum competition: each capitalist wishes to destroy their competitor,
legally if possible, illegally if necessary. Capitalists are driven into destructive
competition in order to obtain a larger market-share and more profits, even
without “rent seeking”, though that too motivates brutal and destructive
competition. Capital also tends naturally to monopoly because of economies of
scale and entry costs. Monopoly is terrible, per Marxism, because any oligarch
can out-compete and, thus, exploit each and every small farmer, to say nothing
of the semi-literate unskilled worker, who is as an individual essentially
helpless in the face of concentrated economic power. This essential weakness
of the exploited individual explains Marxist skepticism toward individualism:
“individual” “freedom” is not just the freedom to go starve and be homeless
while unemployed: it is also the paralysis of any effort to collectively organise
the exploited so as to defend themselves from concentrated economic power.
While the Marxist perspective is more sophisticated than the populist
perspective, it too is somewhat inaccurate and simplistic. To Marxists, capital
and labour are locked into a zero-sum conflict, and capitalism fosters warfare
to obtain access to resources, to increase market share, and to employ the
unemployed; Marxism also predicts the inevitable collapse of advanced
11 Sherman Act, § 1, 15 U.S.C. § 1.

12 Standard Oil Co. of New Jersey v United States, 221 U.S. 1 (1911).
13 Ian Ward, Introduction to Critical Legal Theory 116 (2004) (citing Marx for the proposition that the
natural tendency of capital is to monopoly).
capitalist economies in revolution due to ever greater economic cyclicty.14

These Malthusian predictions of Marxism do not seem so accurate. Marxists
seem to have underestimated the power of technological innovation and legal
rationalisation to save capitalism from itself. Capitalism probably reformed
itself out of self-destruction in the post-war social democratic era due to the
spate of social democratic reforms enacted in the post-war era forestall
another great depression and prevent another world war. However, there does
appear to be a natural tendency of capital toward monopoly (monopolistic
production is more efficient) even though there does not appear to be
inevitable cyclical economic hysteresis triggering global war and global
revolution.
2.3 Catholic Competition Theory and Religious

Objections to (Supposed) Commercial Injustice: 1891-
Yet another view on monopoly is the Catholic, i.e. Corporatist view. It is

perhaps unfair to lump them together, but corporatism, while somewhat
variegated, did emerge from Catholic thought. When the Catholic Church was
confronted by the productive power unleashed by the scientific revolution in
the 1800s, the reaction15 was to try to shield the poor from the worst excesses
of industrialisation and to try to protect workers from conflicts with capital.
The Catholic logic was that competition was destructive because it encourages
the worst tendencies of humans to mistreat each other in order to take selfish
advantage of each other. However, in the face of a veritable technological
revolution based on a non-religious worldview – the scientific paradigm – the
Catholic Church was compelled to react to the essentially Marxist challenges
at a deeper ideological level16 if only in order to preserve itself as an institution,
as well as to carry out the struggle to end human suffering. Because the
Catholic Church has at least sufficient resources to maintain a clergy in
adequate conditions for intellectual production the Catholic Church developed
a complex of interlocking ideas about society, economics, and governance -one
example is the subsidiarity principle17 which, in turn, were taken up and
implemented in the political idea known as Corporatism. Corporatism,
exceptionally, is sometimes being taken up, at times consciously, as a response
to the global economic crisis of 2008. This is seen particularly in Putin's
Russia, though corporatist responses to the global financial crisis are also
evident in countries like Argentina. The author regards these as atavistic
throwbacks to the failed nation-state era of international relations, where the
world was divided by tariff walls and, thus, marked by wars for markets and
14 See generally, Karl Marx Capital and Karl Marx, The Communist Manifesto.
15 Pope Leo XIII, De Rerum Novarum (On the New Things) May 15, 1891.
16 Pope Pius XI Quadragesimo Anno (On Reconstruction Of The Social Order) (1931).
17 Pope Pius XI, Quadragesimo Anno, 79 (1931).
resources. That the corporatist tendencies of the authoritarian Putin and the
populist Kirchner are indeed throwbacks can be seen in this: the U.S. stock
market recovery was immediately followed by negotiations by the U.S. and the
E.U. toward the formation of a transatlantic free trade area (TAFTA).18
Canada, likewise, entered into a free trade area with the E.U. upon the recovery
of the stock market, the Canada EU Trade Agreement (CETA).19 That is
practice.
Returning to theory, Catholic thinking opposes brutal destructive
competition because of its dehumanising effects. Rather than seeing
competition as the source of an abundance of high quality products available
at low prices, Catholic thinking saw competition as brutal and destructive:
dog-eat-dog, the race to the bottom. Faced with the anarchy of production and
the challenges of communist expropriation and economic planning, Catholic
thought, expressed in corporatism, took up some ideas of social democrats
such as economic planning, even as it rejected expropriation. To what
ultimately became the corporatist perspective, price fixing and quantity quotas
are not necessarily wrongful: they create economic certainty and reduce the
tendency to destructive competition.20 What is wrongful, to this perspective,
is parasitical market manipulation.
The Catholic view on competition law as only the latest example of a
series of religious objections to various economic practices: an opposition to
trade, usury (money at interest), to advertising, and to speculation. All these,
in retrospect, seem to be lost rear-guard struggles which, like the successful
struggle against slavery, were bitterly fought over by persons who in modern
terms would be considered leftists. Looking at them leads to indications of
where contemporary left struggles against pornography, prostitution and
gambling are likely to go and one may be able to draw some lessons of where
and how to struggle over contemporary issues.
2.3.1 Religious Opposition to Trade
Historically, religious perspectives on the economy have tended to take anti-

economic perspectives,21 although there is a Christian idea of wealth as
stewardship and the Calvinist idea that wealth in this world is evidence of one's
Godliness, an idea which does have textual justification in the New
18 U.S. Trade Representative, “Fact Sheet: United States to Negotiate Transatlantic Trade and Investment
Partnership with the European Union”, 02/13/2013 http://www.ustr.gov/about-us/press-office/fact-sheets/
2013/february/US-EU-TTIP.
19 Huffington Post, “CETA: What's In The Canada-EU Free Trade Deal – The Huffington Post Canada”, 10/
19/2013 http://www.huffingtonpost.ca/2013/10/19/ceta-canada-eu-free-trade-deal_n_4124867.html.
20 For a relatively recent example of this thinking see Yves Guyon, Droit des Affaires, vol. 1, 9th edn.§ 838
p. 873 (1996) (critiquing the destructive tendencies of dog-eat-dog competition).
21 For just one example see, Hannah More, The complete works of Hannah More, vol. 1 p. 253 (1835). One
may recall the religious tendency to focus on life “in the next world” and toward ascetic renunciation of
the sinful pleasures of this world to understand the religious oppositions to commerce.
Testament.22 Weber, of course, postulated that the rise of capitalism was due
to the protestant ethic of deferring consumption, resulting in accumulation of
capital needed for the industrial revolution.23 Currently some argue a similar
Confucian ethic of delayed reward has caused the accumulation of capital
resources needed for the contemporary industrialisation of the People's
Republic of China. However, despite these counter-currents the general
tendency of religious thinking on the economy is sceptical and often outright
anti-market. One can recall the image of Jesus overturning the tables of the
money lenders in the temple as just the most visible example, or of Moses and
the golden calf for that matter.
To most religious views on market forces, trade itself was seen as
unfair, because the merchant purchases a good at a low price, and then seeks
to resell it at a higher price: that exchange would violate commutative
justice.24 To a naive view, one good cannot possibly have two different
prices: and so merchants seem parasitical, deceptive, and unfair. The
merchant has, supposedly, produced nothing but has only driven a cunning
bargain, talking down the good while buying, and talking up the good while
selling – lies! Of course, that naive view does not recognise the role of the
merchant as aggregator of demand. The merchant identifies and rectifies
scarcity. Thousands of years of economic activity have consistently shown
that trade is economically superior to autarchy because it efficiently
reallocates relative surplus and generates specialisation. Specialisation in
production creates greater social wealth.25 More recently, modernity noted
that trade leads not only to prosperity but also to interdependence, and that
prosperity and interdependence obviate and suppress military conflict. Global
competition law indirectly prevents future wars by generating greater
interdependence, prosperity, and peaceful dispute resolution, which explains
why the object of this article is not merely of pecuniary interest.
2.3.2 Religious Opposition to Money at Interest (Usury)
The next example of a religious opposition to economic practice is the idea of

usury.26 Legally, usury has been defined at various times in different ways.
Sometimes usury is defined as “taking of interest on lent money”. At other
times usury is defined as “excessive interest taken on lent money”. In still other
22 New Testament, Matthew, 25:14-30.

23 Max Weber, Die protestantische Ethik und der Geist des Kapitalismus (1904).
24 Aristotle seems to criticise this sort of unequal trade in Nicomachean Ethics, Book V, Ch. 4 (350 B.C.). In
contrast, in, Nicomachean Ethics, Book V, Ch. 5 (350 B.C.) (“justice in transactions between man and
man is a sort of equality indeed, and the injustice a sort of inequality; not according to that kind of
proportion, however, but according to arithmetical proportion.”). Aristotle correctly sees trade as between
different goods as beneficial (“proportionate return is secured by cross-conjunction”).
25 See, Adam Smith On the Nature and Causes of the Wealth of Nations, Book I, Ch. 1 “Of the Division of
Labour”, paragraph I.1.3 (1776).
26 E.g., Deuteronomy 23:19-20. Koran, The Imrans 3:130.
times and places, usury is defined as “interest taken on interest” i.e.

compounded interest. Contemporary law tends to define usury as “excessive”
interest which begs the question – what is excessive? To Islamic law, for
example, any interest is usurious, but profit sharing is permissible.27
2.3.3 Comparative Advertising
Comparative advertising directly compares the qualities of two different

products to each other. Comparative advertising is often prohibited as an unfair
trade practice. The logic for the prohibition is apparently the belief that
comparative advertising fosters destructive competition. However, that ignores
the potential benefit to the consumer of awareness of the flaws or benefits of
different products. If the concern with comparative advertising is inaccurate
information then the remedy to that is to prohibit false advertising, which
incidentally appears to be universally prohibited. While it is sensible to
prohibit use of a competitor's trademark in comparative advertising, and
likewise it is logical to prohibit false advertising, prohibiting comparative
advertising otherwise is economically foolish.
2.3.4 Religious Opposition to Speculation
Finally, “speculation” is also attacked, often on religious grounds.28

Speculation is the prognostication of economic trends and then the making of
trades based on one's prognostications. Speculative income, from the religious
perspective, is another form of parasitism. In fact, however, speculation plays
the role of efficient capital allocation. The objections to speculation are
essentially the same objections which were raised to commercial trade itself:
“unearned income” and “parasitism”. And, like the religious critique of
commerce, these critiques ignore the beneficial allocative effects of the
economic activity.
Several common contemporary beneficial economic practices were
historically opposed by religious perspectives on law and economics and this
fact shapes theories of antitrust/competition law. Ironically, these religious
critiques often recur or are reflected in similar critiques made by Marxism, an
atheistic theory. These critiques of capitalism sometimes recur in corporatist
thinking as well. However, these religious perspectives on several basic
economic practices are largely inaccurate. Late capitalism features trade,
interest, including compounded interest, comparative advertising and
speculation as well as legal pornography and even legal prostitution, which
27 See, generally, e.g., Munawar Iqbal, David LLewelyn, Islamic Banking and Finance: New Perspectives
on Profit Sharing and Risk (2002).
28 E.g., Philip Goodchild Capitalism and Religion: The Price of Piety, 136-137 (2002).
are two other economic practices generally opposed on religious grounds.

While the religious perspective on the economy has clearly been swept away
by capitalism, religious perspectives on antitrust/competition law still
sometimes play out due to the politicised wing of Catholic social thought
known as corporatism.
2.4 Corporatism: 1920-
Corporatism is the idea that labour and capital, rather than being locked into a
zero sum competition, can and should relate to each other cooperatively29 and
that the role of the state is to mediate conflicts between labour and capital to
obtain the greatest social well-being, however defined (usually, by
utilitarianism).30 According to corporatism, economic activity should be
organised into social bodies such as labour syndicates, confederations of
artisans, merchant associations, and companies. The formation of such peak
associations – grouping of groups – enables each peak association to clearly
articulate the precise goals of their group, which the state would then be able
to mediate in the best interests of all.31
To corporatism, like Catholicism, competition is destructive both of
social relations and of the planned economy. Corporatism tends to be
associated with a semi-planned economy, with the plan developed and
implemented by the various peak associations.32 Corporatism also tends to be
associated with the idea of the autarchic national economy and a union of state
and economy, because corporatism developed prior to globalisation, i.e. when
the world was still organised into autarchic national economies rather than a
world-market. Peronism33 in Argentina is the clearest current example of
corporatism,34 though one might argue that Singapore35 and Russia36 are also
examples of contemporary corporatist states.
2.5 E. E.U. Competition Theory 1957-
Competition law in the EU developed as a reaction to the Second World War.

Noting the tendency of isolated autarchic national economies to go to war for
29 See, e.g., James M. Malloy, Authoritarianism and Corporatism in Latin America, 47 (1977).
30 See, e.g., Barbara Stallings, Global Change, Regional Response: The New International Context Of
Development, p. 193 (1995).
31 In the European context see, e.g., Michael J. Gorges Euro-Corporatism?: Interest Intermediation in the
European Community (1996).
32 See, generally, O. Molina and M. Rhodes, Corporatism: The Past, Present and Future of a Concept
(2002) 5 Annual Review of Political Science 305.
33 James P. Brennan, Peronism and Argentina, 8 (1998).
34 Katherine Isbester, The Paradox of Democracy in Latin America: Ten Country Studies of Division and
Resilience, 345 (2010).
35 John Benson, Trade Unions in Asia, 102 (2008).
36 Richard Sakwa, Putin: Russia's Choice, 249-254 (2004).
access to markets and resources, the EU sought to consciously create an

integrated European market. In part because of vestigial corporatist thinking,
and also because the key logic of competition law in the EU was the formation
of a single integrated EU market it is not monopoly which was seen as the
central problem. Rather, the problem was seen as the existence of national
markets – where cartels or even monopoly were generally allowed37 – because
the cartelised national market was compelled to wage war for access to
resources and markets. Thus, “abuse of dominant position” is the standard for
determining violations of the law in the EU and its Member States38 unlike in
the U.S.39 Historically, the logic of EU competition law is, in fact, entirely
different from the logic of U.S. antitrust law. Nevertheless, a global antitrust
law is emerging as the rationales and rules of these two systems converge into
neo-liberal globalisation.
2.6 Neo-Liberal Globalisation: 1991-
In the U.S., the rise of the neoliberal Chicago school was a rejection of the
failed and discredited Keynesian economics, which brought stagnation and
inflation to the West in the 1970s. Neoliberal ideas, taken up in the United
States in the 1980s, prevailed in Europe in the 1990s as well with the end of the
Cold War. The neoliberal rejection of a planned or even semi-planned
economy in favour of privatisation and competition entailed a reduction in
antitrust oversight.40 However, the Chicago school was unable to develop an
effective model for third-world development, despite the empirical fact of
winners like Singapore which followed some (not all) Chicago school
prescriptions.
Globalisation fosters world peace through interdependence and
prosperity. Recall that one reason for the wars endemic to the Westphalian
nation-state system was the unity of state and market: war occurred, in part,
because of zero-sum economics. In the pre-war system, the unity of state and
market meant enterprises (often organised as cartels) were cut off from
markets and raw materials located outside the territory of their state and
empire due to high tariff walls. Not only was that system economically sub-
optimal due to restricted trade it also contributed to war – wars for market
share and access to resources. It was zero-sum economics, and it failed
catastrophically – twice.
37 E.g., in France the anti-cartel law only appeared in 1953, and then only weakly. Yves Guyon, Droit des
Affaires, vol. 1, 9th edn.§ 838 p. 874 (1996).
38 E.g., France, Yves Guyon, Droit des Affaires, vol. 1, 9th edn.§ 896-5 p. 938 (1996).
39 “U.S. law does not recognise a comprehensive prohibition of abuse by enterprises which dominate their
market. At the same time, the U.S. antitrust authorities possess the power, on the basis of various rules of
antirust law, to step in against the most important forms of abuse.” Volker Emmerich, Kartellrecht (7th
ed.) p. 28 (1994) (Author's translation).
40 Volker Emmerich, Kartellrecht (7th ed.) p. 22 (1994).
In the post war era, the norms of the free movement of goods,
enterprises, capital, and labour have gradually become taken up, globally as
an alternative to the failed dysfunctional pre-war system of cartelised national
markets. Mobility of productive inputs generates greater prosperity due to
efficient allocation of capital and labour: labour migrates to wherever it is paid
best. Goods are sold wherever they bring the most profit. The economic
efficiency that results generates a prosperity which obviates war, and the
interdependence which results also obviates war. All of these trends and facts
tended to undermine corporatism, finishing off what fascist corporatists such
as Mussolini and Franco had started.
The logic of globalisation, international interdependence, is
completely different from that of corporatism. However, the emergence of
free movement of goods and capital on the global market explains why the
globalist view of the world economy is in fact more accurate than the
corporatist view, even without questioning the possibility or desirability of a
planned or even semi-planned economy in late capitalism. As to antitrust, just
as global law created free movement of goods (WTO) and capital (floating
exchange rates, free convertibility), so too will globalism create, first de facto
and then later de jure, a global competition law regime.
2.4 Common Threads throughout the Theories
2.4.1 The Natural Tendency of Capital is to Monopoly
In the face of several competing contradictory ideas, any of which may be true
or false, the approach the author takes and recommends is practical and
empirical. A priori thinking leads to disconnect from reality. Marxism claims
that capital naturally tends towards monopoly. That seems to be true. There are
several reasons that the natural tendency of business is to monopoly. First, the
nature of competition itself indicates that any producer would prefer to be the
only producer, and will act accordingly to destroy their competitor. Even aside
from the self-interest and destructive logic of capitalist competition, there are
other reasons that the natural tendency of capital is to monopoly. Monopolistic
production is more efficient due to a variety of productive synergies:
economies of scale, specialisation in production, standardisation of parts,
interoperability of systems, lower unit costs, network affects, and reputation all
explain why large businesses tend to succeed and successful businesses tend to
grow large. They are more efficient producers.
These facts, however contradict the traditional logic of antitrust –
which is the fear of rent seeking. Traditionally, antitrust law fears that a
monopoly capitalist will seek to lower production quantity so as to raise the
price of goods sold: to sell fewer goods more dearly so as to have a higher
profit margin and obtain more profit for less work. To the traditional view,
monopoly producers will only lower the prices they sell their goods at when
they must do so to destroy any new competition which challenges their rent
and will at such times sell goods below costs specifically to destroy the
competitor in the short term so as to maintain their rent-profits in the long
term. From this traditional perspective on monopoly-as-rent-seeking the very
existence of monopoly is the problem, not merely the abuse of dominant
position. This view is behind the thinking of U.S. antitrust law, at least
initially. However, in reality several productive synergies explain why
monopoly can be more productive and socially beneficial than (destructive
fragmented) competition.
2.4.2 Consumer Well-Being
The only way to make sense of the competing rationales and rules of antitrust
law is to focus on the effect of the measure in question on consumer well-being.
The most common thread which can be discerned from the competing rules and
rationales of antitrust and competition law is consumer well-being.
3. COMPETING RULES OF SUBSTANTIVE LAW
3.1 United States
The logic of United States (U.S) antitrust law is that the acquisition of a
monopoly is the problem:41 “Every person who shall monopolize or attempt to
monopolize, or combine or conspire with any other person or persons, to
monopolize any part of the trade or commerce among the several states or with
foreign nations, shall be deemed guilty of a felony”.42 Monopoly itself was
thought to be the problem because monopolies supposedly inevitably result in
rent seeking and market manipulation. This rationale43 played itself out in an
evolution from a per se rule through a rule of reason44 resulting increasingly in
a focus on consumer well-being as responses to the limits of the naive and
simplistic idea that monopoly itself is the problem.
41 Volker Emmerich, Kartellrecht (7th ed.) p. 23 (1994).

42 Sherman Act, 15 U.S.C. §2.
43 For an early comparison of the U.S. focus on the existence of monopoly power in contrasted with the EU
focus on the abuse of dominant position see E. Fox Monopolization and Dominance in the US and EC:
Efficiency, Opportunity and Fairness 61 Notre Dame L. Rev. 981 (1986).
44 “Recently there has been a pointed limitation of the area of applicability of the per se rule to the benefit of
a greater significance of the rule of reason” Volker Emmerich, Kartellrecht (7th ed.) p. 23 (1994)
(Author's translation).
3.1.1 The Per se rule
In U.S. law, put simply, the first question is whether the agreement is a restraint
on trade; of course, most agreements are a “restraint on trade”. Thus, the U.S.
judges quickly developed a rule, that certain violations of antitrust law are per
se illegal.45 Per se violations are wrongful by nature. For example, fixing
production quotas or setting prices, which would be perfectly logical to a
corporatist perspective as part of a planned national economy, are prohibited in
the U.S. as per se violations of antitrust law. Whether a particular practice is a
per se violation may depend on whether the market is “vertical”, involving
different levels of production (from raw material, to finished product, to retail,
to wholesale) or horizontal46 (wholesalers inter se; retailers inter se; producers
at the same level).47
In EU primary legislation there is no express “rule of reason”
language.48 However, commentators,49 and even occasionally courts,50
analyse EU cases using per se and rule of reason terminology.
Practices which have been found to be per se violations in horizontal
markets include setting prices (price fixing),51 splitting the market among
producers,52 whether in terms of production quotas,53 market share, or by
territory.54 Group boycotts have also been found to be per se violations on
horizontal markets.55 Bid rigging (conspiring to bid at a certain price) is also a
per se violation. Tying arrangements,56 where a producer agrees to sell a
product only on condition that another product be bought (more accurately,
those are bundling agreements), or where a producer agrees only to sell to a
particular distributor,57 though historically perhaps per se violations, at least
on horizontal markets, probably are better seen as governed by the rule of
reason. Production quotas58 and boycotts59 are also essentially per se illegal
in the law of the EU Member States.
45 Northern Pacific Co. v United States, 356 U.S. 1, 5 (1958); United States v Topco Associates, 405 U.S.
596, 607 (1972); Arizona v Maricopa County Med. Soc'y, 457 U.S. 334-45.
46 Elhauge, p. 60.
47 EU law likewise makes the distinction between horizontal markets and vertical markets. See, e.g., Hans-
Peter Schwintowski, Prüfe dein Wissen, 31 et seq., (horizontal) 99 et seq. (vertical), (1992); Roger Zäch,
Wettbewerbsrecht der Europäischen Union p. 33 (1994).
48 Albert Bleckmann, Europarecht, (6th edn.) § 1867 p. 675 (1997).
49 Roger Zäch, Wettbewerbsrecht der Europäischen Union p. 33 (1994).
50 Albert Bleckmann, Europarecht, (6th edn.) § 1867 p. 676 (1997).
51 United States v Socony-Vacuum Oil Co. 310 U.S. 150, 218 (1940).
52 Palmer v BRG 498 U.S. 46 (1990)
53 NCAA 468 U.S. at 99-101.
54 United States v Topco Associates, Inc., 405 U.S. 596 (1972).
55 FTC v Superior Court Trial Lawyers Association, 493 U.S. 411 (1990); Klor's Inc. v Broadway Hale
Stores Inc., 359 U.S. 207 (1959); Fashion Originators Guild of Am. v FTC 312 U.S. 457 (1941).
56 For a good summary of the pros of tying see Yves Guyon, Droit des Affaires, vol. 1, 9th edn.§ 836 p. 868-
869 (1996).
57 See, e.g., G. Bonet, La distribution sélective des produits cosmétiques de luxe à l'épreuve du droit
communautaire, La décision Yves Saint Laurent Parfums du 16 déc 1991. Dalloz, 1992, 303.
58 Yves Guyon, Droit des Affaires, vol. 1, 9th edn.§ 879 p. 915 (1996).
59 Yves Guyon, Droit des Affaires, vol. 1, 9th edn.§ 882 p. 918 (1996).
3.1.2 The Rule of reason
Not all restraints on trade are per se illegal. Some “reasonable” restraints on
trade are permitted.60 This raises the question what is “reasonable”?61 One idea
is that the reasonable restraint on trade must somehow augment competition;
that if the pro-competitive effects of the restraint outweigh its anti-competitive
effects then the restraint should be permitted.62 As an interpretative
rationalization, Professor Einer Elhauge suggests that the rule of reason bans
net restraints on trade,63 pointing out the fact that Standard Oil focuses on the
concept of a “restraint of trade”.64
The problem with measuring “reasonable restraints” as a comparison
of pro versus anti competitive effects is empirical. How do we measure or
determine whether an agreement has pro or anti-competitive effects? Just
what is a pro-competitive effect or an anti-competitive effect? A better
argument might be that restraints on trade are justified by reasons of economic
efficiency. It is taken as a given that a more competitive market will be more
efficient (which may not always be the case) and that a more efficient market
will generate greater consumer well-being (which does seem logical).
However, defining “reasonable” as “efficient” merely displaces the issue:
what is efficient? efficient to whom? efficient to what end? To the corporatist,
efficiency means: the construction of an autarchic isolated yet productive
national economy capable of defending itself if attacked and of extending the
State’s economic and political influence. For a Marxist, efficiency would
attain a planned economy and the suppression of the capitalist class, the
dominance of the workers. To a U.S. capitalist, efficiency might mean simply
a larger GDP.
The best way to assess efficiency, i.e. reasonability, is in terms of
marketplace effects. The only defensible standard, the one common to all the
perspectives, is the desire to attain consumer well-being. The consumer, as
60 For a relatively early comparison of the “rule of reason” in U.S. law as to E.U. law from the U.S.
perspective see J. Peeters The Rule of Reason Revisited: Prohibition on Restraints of Competition in the
Sherman Act and the EEC Treaty 37 Am. J. Comp. L. 521 (1989).
61 As an example of how hopeless the courts can be at thinking critically note United States v Trenton
Potteries: “Reasonableness is not a concept of definite and unchanging content.” 273 U.S. 392 (1927). So
much for legal foreseeability, the rule of law, and the capacity to plan, structure, and form one's private
law obligations and expectations, at least per that U.S. court. U.S. v Trenton did not provide a satisfactory
answer to the question “what is reasonable”. When the law imposes a supposedly objective standard of
“reasonability” lawyers must then present justifications – reasons – the grounds on which they make their
claim. The only reason which makes sense in a globalised open market economy is consumer well-being:
not the construction of a national market, industrial policy, or the implementation of a planned or semi-
planned economy.
62 Standard Oil Co. v United States, 221 U.S. 1, 59-68 (1911); Chicago Board of Trade v United States, 246
U.S. 231, 238 (1918); United States v Topco Associates, 405 U.S. 596, 606-607 (1972); National Soc'y of
Prof'l Eng'rs v United States, 435 U.S. 678, 687-690 (1978); Arizona v Maricopa County Med. Soc'y, 457
U.S. 332, 342-343; NCAA v Board of Regents, 468 U.s. 84, 98, 103 (1984); Texaco Inc. v Dagher, 126
S.Ct. 1276, 1279 (2006).
63 Einer Elhauge, Damien Géradin Global Antitrust Law and Economics p. 61 (2007).
64 Id; Standard Oil, 211 U.S., 63-64.
measure of economic well-being is both pragmatic and consistent with any of

the competing rationales. If that is the measure then the norm would be this:
Certain economic practices such as production quotas and price fixing are, per
se, unreasonable. Other practices such as market divisions and product tying
may, depending on the market and the practice, be justified by reason of their
effect on improving consumer well-being through providing consumers with
goods of higher quality, lower price and, preferably, both.
3.1.3 From Per Se to Rule of Reason to Consumer well-

being
Using the consumer as the measure of efficiency, as our reason, appears

increasingly to be the actual practice of the courts.65 U.S. antitrust law
historically evolved from outright absolute hostility toward monopoly, due to
the fear of rent seeking and market manipulation as expressed in the per se rule,
toward a more flexible rule of reason which recognises that some restraints of
trade may be reasonable, resulting in an understanding that the restraint on
trade is reasonable if it works a net benefit to the market, i.e. to the consumer
(not the producer nor even the state) that is greater than its net-detriment to the
market.
3.2 European Union (E.U.) Abuse of Dominant Position
The key norm in EU law is the idea of the abuse of dominant position, not the
rule of reason.66 In EU law, it is not monopoly power per se which is a
problem;67 rather, it is the abuse of that power, whether by destructive
competition or by rent-seeking. Thus, the rule of reason appears at times to
justify exceptions by the Member States to the prohibition of an anti-
competitive combination which were necessary to serve a compelling state
interest.68 That is, the rule of reason and the proportionality inquiry in EU law
at times appear to blend into each other.69 EU law also prohibits those
agreements which (re)create a national market – as opposed to an EU market.
There, the rationale is war prevention: national monopolies are the problem,
65 Broadcast Music, Inc. (BMI) v Columbia Broadcasting Systems 441 U.S. 1 (1979) seems to be an
example of the proposition that improved consumer well-being may justify an otherwise impermissible
restraint.
66 E.g., in German national law the rule of reason did not figure at all prominently in the decartelisation law.
Heinrich Tetzner, Kartellrecht: Ein Leitfaden, p. 2 (1965).
67 Suggesting that the EU applies a rule of reason standard to determine whether a cartel has violated EU
law (Schweitzer, Hummer, Europarecht, para. 1273, p. 389 (1996)). A more nuanced analysis however
would distinguish between national cartels, which are per se illegal versus cross-border cartels which
may be permitted if they do not interfere with or better still contribute to the formation of a single
integrated European market.
68 Roger Zäch, Grundzüge des Europäischen Wirtschaftsrechts p. 60 (1996).
69 Josephine Steiner, Textbook on EC Law, p. 102 (1988).
not monopoly itself. National monopolies are the problem because they
resulted from zero sum competition in which competitors were cut off from
access to markets and resources, which in turn caused global wars for resources
and markets.
The principle of proportionality in the E.U. also figures in
determining the legality of anti-competitive measures.70 Finally, a brooding
omnipresent rationale in E.U. law is the idea of the economic constitution: that
the EU constitutes a state in being which embodies a certain view of the
economy; that is, the EU creates a public law framework within which private
rights interact.71 The E.U. thereby comprises a “market without states”.72
3.3 Convergence: The Rule of Reasons?
U.S. and E.U. antitrust/competition law are tending to converge due to instant
global communication, machine translation, and greatly increased comparative
law as a result of instant access to foreign materials coupled with intensified
global trade. Norm convergence occurs first as to rationales and then as to
substantive rules. Norm convergence here also occurs because EU competition
law necessarily built on the experiences of U.S. antitrust law since E.U.
competition law started several decades after U.S. antitrust law had already
been operative. Thus, a recurrent issue in EU law, as in US law, is whether
there are per se anticompetitive practices which are definitively prohibited and
whether there is a rule of reason, i.e. whether and when “reasonable” restraints
on trade are permitted. Since it is theoretical rationales which tend to converge,
this article first explores some critiques of the rule of reason in order to
understand its limits and definition.
3.4 Critique of the Rule of Reason
3.4.1 “Reasonability”
The question which the “rule of reason” raises is: what is reasonable?
“Reasonability” is a favoured standard used by legal realism, because what is
reasonable will depend on the actual factual circumstances of the case at bar:
substance over form. The best view from the lawyer’s perspective as to what is
“reasonable” is to argue for the specific factual grounds – the reasons – for why
70 Eirik Østerud, Identifying Exclusionary Abuses by Dominant Undertakings Under EU Competition Law:
The Spectrum of Tests (International Competition Law) 267 (2010).
71 See, e.g., Liza Lovdahl Gormsen, A Principled Approach to Abuse of Dominance in European
Competition Law, 98 (2010).
72 See Christian Joerges, The Market without the State? The 'Economic Constitution' of the European
Community and the Rebirth of Regulatory Politics. 1 European Integration online Papers (EIoP) 19
(November 24, 1997). Available at SSRN: http://ssrn.com/abstract=302710 or http://dx.doi.org/10.2139/
ssrn.302710
the proposed standard is or is not “reasonable” – to avoid circularity. Why is

this measure “reasonable”? Reasonability is often used in a conclusory fashion,
to impose an objective external standard. However, “reasonable” is not an
inevitably conclusory term. We argue that the essence of reasonability is
consumer well-being, as reflected in a productive market with many high
quality goods available at low prices.
3.4.2 Economic “Efficiency”
Often, “reasonability” is assessed in terms of “efficiency” or “economic

efficiency”. Unfortunately, that simply raises the problem of regress. Now,
instead of defining “reasonable” one must define “efficient”. The relevant
contextual questions are: “Efficient toward what end?” and “Efficient for
whom?” Often, “efficiency” is presented in a conclusory fashion, as self
evidently desirable, as self explanatory. But what is efficient?
Sometimes, Pareto Optimality – the idea that any change which hurts
no one and improves at least one person's position is desirable73 – is proposed
as a measure of efficiency. At other times, utilitarianism is proposed as
definition of efficiency. Unfortunately, neither of those standards will prove to
be adequate. That fact, in turn, leads us back to the only standard which we
see that is at once coherent with the competing rationales and explains the
evolution of antitrust/competition law: consumer well-being.
Inadequacy of Utilitarianism
Utilitarianism argues that the economy should seek to attain “the greatest good
for the greatest number”.74 However, there are several problems with
utilitarianism. First, how is one to measure utility? To measure it objectively
an external measure is required: money is one such measure. Commodities
might be another. The economic system has long recognised that trade by
money is more efficient than barter. However, money does not capture the
essence of the utilitarian idea, which is that the utility of a good declines with
increases in its quantity the “law of diminishing returns”. For example, I
subjectively regard my bicycle as most valuable: I only need one bike, but I
need it very badly. An attempt to measure all the utility of all the goods to one
person, and then the entire society is futile because the data is intractably large.
Utility cannot be used as a tool for evaluation of real wealth, let alone as a tool
for economic planning. Even if the idea of a “utility” were able to be
objectively defined and were tractable over an entire society, how would one
measure “the greatest good” for “the greatest number”? Imagine an economy
73 Mikroökonomie von Edwin “von” Böventer,Gerhard Illing,Robert Koll 167 (2001).

74 John Stuart Mill, Utilitarianism (1863).
with four persons, three have one dollar each, the fourth has 8 dollars. The
entire social wealth is eleven dollars. Now let us imagine another society,
where each person has 2.5 dollars, and the aggregate social wealth is ten
dollars. The society here with the greatest wealth is not the society with the
most equal distribution of wealth. One can easily imagine such societies
throughout history. Of course, if there is in fact a “law of diminishing returns”,
then the society with the more equal distribution of wealth will achieve the
greater “utility” in this example. However, that ignores the potential different
allocative abilities of each citizen. The very wealthy citizen may be so not due
to parasitism, inheritance, or trickery, but due to astute investment. Due to wise
investment, the society is wealthier and even may attain “greater utility” as a
result, for expropriation results in dissimulation and destruction of existing
wealth and generally leads to sub-optimal allocation of the available remaining
wealth since the most astute economic actors have been removed from the
economy thereby. To us, these flaws taken together make utilitarianism a
terrible idea in practice and utterly unworkable. Quite simply, utilitarianism is
empty: it is a vacuous or nearly vacuous theory really fit only to justify anti-
productive demagoguery.
Inadequacy of Pareto Optimality
Utilitarianism is often criticised. Sometimes, Pareto optimality is suggested as

an alternative rationale. A situation is said to be Pareto optimal when the
change it represents works no injury to any party. However, in the real world,
how is one to measure optimality? Moreover, in reality, almost any change to
a status quo will result in an injury to at least one person: there are few or no
real world situations which are Pareto optimal. Pareto optimality as the
standard for determining change forecloses almost all changes.
Pareto optimality is conservative and reinforces the existing status
quo. Finally, Pareto optimality does not tell us anything about how to choose
between two competing alternatives, each of which is Pareto optimal. Thus,
Pareto optimality is, like utilitarianism, of little or no use in assessing
antitrust.
3.4.3 Legal Realism / Interessenjurisprudenz
Increasingly, competition law appears to be an ad hoc fact intensive inquiry

into the particular case at bar,75 which is the sort of legal analysis preferred by
legal realism. The courts in antitrust tend to use legal-realist terms like
“standards”, “reasonability” and “efficiency”. Those terms are all too easily
75 Lawrence Anthony Sullivan, Warren S. Grimes, The Law of Antitrust: an Integrated Handbook, 242
(2006).
used in a conclusory fashion, like the other legal-realist concept of “balancing”

of competing “interests” (the relevant questions to beg there are: whose
interests, which interests, and what weight?). These terms and methods are all
hallmarks of legal realism (Interessenjurisprudenz).76
Legal realism argues that deducing legislative will is impossible,
because the legislature is no monolith; moreover, unforeseen circumstances
which the legislator did not anticipate and lacunae (gaps) in the law also doom
the search for “legislative will” to ambiguity, even futility (per legal realism).
Although legal realism originated in Germany as Interessenjurisprudenz, it
received more widespread acceptance in the U.S. than it ever has in Germany.
This is because the U.S. does not have a civil code. Furthermore, U.S. judges
have historically been much more powerful than their German counterparts.
First, the U.S. judge was always able to review the constitutionality of
ordinary laws.77 Second, U.S. judges have always been a source of law
(strictly speaking, the judge merely recognises existing customary law, though
that justification of judicial power today is clearly but a legal fiction). Given
this extensive judicial power, and the absence of a systematic set of Codes
(law books) the U.S. legislator has a remarkable tendency to draft legislation
which is ambiguous on its most controverted points. This is because the
legislators know full well the judiciary will cure the ambiguous statute
through interpretation. Thus, rather than take pointed stands on concrete
issues and risk ouster at election, U.S. legislators tend to draw up bad
legislation. That in turn creates exactly the sort of ambiguity and lacunae
which legal realism is intended to cure (though we think it does not).
Three other legal-realist concepts, which we regard as more
workable because they are not so ambiguous, are what we call pretextualism,
effects analysis, and the objective-subjective standard.
Pretextualism is simply the idea that the law will not recognise a
formal legal framework which operates to achieve substantive injustice – a
pretext. In French this is known as the abuse of law (abus de droit) and in the
tax context is referred to as taxation realism (réalisme fiscale). Thus, e.g.,
claims that a given anti-competitive behaviour such as price fixing is in fact
setting a price ceiling to the benefit of consumers will not be accepted;78 the
apparently favourable show of concern for consumers there was illusory and
the court recognised that and, thus, did not grant any exemption from the per
se rule. In tax law, step transactions may be collapsed;79 illusory sham
transactions shall be ignored.80
76 See, Günter Hager, Konflikt und Konsens 28 (2001).

77 Marbury v Madison, 5 U.S. 137 (1803).
78 Arizon v Maricopa County Medical Soc'y 457 U.S. 332 (1982).
79 E.g., Hans Georg Ruppe, Steuerrecht, Verfassungsrecht, Europarecht: Festschrift für Hans Georg Ruppe
375 (2007).
80 Gregory v Helvering, 293 U.S. 465 (1935).
Effects analysis looks to the practical real world outcomes the rule
generates: would the effect of the measure under review in fact result in a
more competitive and, thus more efficient market, or not? Effects analysis is
often seen in imputed liability such as strict products liability where any
producer of the defective product in the stream of commerce may be held
liable.81 Likewise, effects analysis finds itself expressed in the constitutional
commerce clause.82
The objective-subjective standard holds the person to the actual
knowledge and abilities they in fact have but also imputes a standard of the
knowledge of a reasonable and prudent person to them as the standard of
liability where no actual knowledge is found or admitted – a careful person, of
ordinary intelligence. The standard is: what the person knew or should have
known. Thus, the highly talented person will be held to their excellence as the
standard of their negligence, but even the ordinary person will be held to a
standard of prudence: cautious foresight and ordinary intelligence, no matter
how unintelligent, untalented, or foolish they may be. These are all examples
of legal realist thinking in current law and occur throughout the law, including
in antitrust.
3.4.4 Economic Analysis: An Objective Response to Legal

Indeterminacy
This article has attempted to explain, supra, why legal indeterminacy is a

particular problem of the U.S. common law and not a problem found so
pervasively in other legal systems. One method for obtaining legal certainty is
economic analysis of law. Although utilitarianism and Pareto optimality alike
cannot offer us good solutions to the problem of determining whether a
restraint on trade is “reasonable”, other economic tools can, in fact, help to
resolve uncertainty. Cost-benefit analysis, discounted present value,83
historical and statistical analysis of the range, median and mean of income in
the market measured or the market as a whole, i.e. quantitative analyses, may
well provide useful tools in concrete cases for determining whether a particular
measure was or was not “reasonable”, i.e. “efficient”. The best arguments look
at consumer well-being. What resulted, results, and would result from the past,
present, and proposed alternatives in terms of the consumer? While courts may
well lack the means to undertake these inquiries that just means they will resort
to economic experts – which, like the raw exercise of judicial power to impose
81 Henningsen v Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (N.J. 1960) (any producer in the chain of
production may be held liable for the defective product).
82 E.g., Wickard v Filburn, 317 U.S. 111 (1942) (grain grown on a farm for consumption on that farm found
to be “interstate” “commerce” because of the affect that such production had on the national market).
83 See, e.g., Edward J. Mishan,Euston Qu, Cost-Benefit Analysis 129 (5th edn. 1976).
a “rule of reason” and constitutional review of ordinary legislation, undercuts

any “radical” vestiges remaining in antitrust law.
4. CONCLUSION
There are several competing theories of monopoly/oligopoly, and their

rationales are only at times reconcilable. In the U.S. the focus, especially
historically, is on the acquisition and obtention of monopoly power, which is
itself wrongful. In the E.U. the focus is not so much on the acquisition of
monopoly power but rather on the abuse of a dominant position on the market
and also the use of antitrust in breaking up national markets in order to foster
economic integration to prevent war. Moreover, the “third way” ideology of
corporatism, a political expression of Catholic social thought, argues that
monopoly is not necessarily the problem at all and can even be good due to
price and supply stability and as part of a planned or semi-planned economy
to constrain the anarchy of production and destructive competition.
Corporatism is much more concerned with unfair competition, i.e. brutal and
destructive competition than neo-liberalism or populist capitalism. Meanwhile,
Marxist critiques lurk in the shadows. These competing rationales in turn
generate different rules: here, rules prohibiting acquisition of monopoly power.
There, rules prohibiting the abuse of a dominant position. Likewise, these
different theories also result in different tests: here, the per se rule and its
complement the rule of reason; there, the idea of abuse of dominant position,
proportionality, and the construction of a single integrated European market to
replace the autarchic isolated national markets and cartels associated with two
world wars.84 However, all these rules and their rationales are converging. The
logic of peace through interdependence and prosperity has found global
application with the WTO, capital market liberalisation, and the free
convertibility of currency. Consumer well-being is the common denominator
of the competing rationales, and explains the evolution of antitrust/competition
law. Consumer well-being, while difficult to determine, can be objectively
measured in the aggregate in terms such as price, quality, and quantity.
Consumer well-being coheres with each of the competing theories. Another
observation is emerging: the recognition that capital inevitably tends to
monopoly, but that monopoly is not inevitably inefficient. In fact, the largest
producers, acting as quasi-monopolies (oligopolies, in fact) produce an
abundance of high quality inexpensive goods. Rent seeking can be controlled
84 Thus, although German jurists tried to address the problem of cartels even prior to the world wars there,
as in the U.S., the judiciary intervened to permit the rise of concentrated economic power. Volker
Emmerich, Kartellrecht (7th ed.) p. 30 (1994).
by use of review of mergers,85 and by applying the ideas of per se rules and the
rule of reason to keep corporate leaders from monopolistic and oligopolistic
rent seeking via price fixing, boycotts and quotas.
By understanding the common and conflicting rationales of antitrust,
and the resulting at-times-conflicting rules, it is hoped that the global antitrust/
competition regime can continue its process of rapprochement and legal
harmonisation as a precursor to the formation of a global antitrust authority,
whether pursuant to or independent of the WTO. That is an ambitious goal,
but given the ever greater integration of the global economy a necessary one,
and given the economic and political fact that wealth is generated and peace
preserved through trade and interdependence a desirable one. Given the past
50 years of global integration via the UN, GATT/WTO, and the EU, the goal
of a global competition regime is attainable. But how? Efforts toward
promulgation of model national laws whether at the U.N. or the OECD and
toward a global competition law convention will be the way ahead. The
precise details will be worked out in the usual processes of globalisation of
law: intense comparisons, and convergence, based on common theories and
goals. These converging rules and rationales were described in this paper.
85 Though the terms of the EU Treaty do not expressly address mergers, a merger which results in a
corporate group attaining a dominant market position entails an obligation to give notice and complete
disclosure to the EU Competition Law authorities. Stephan Hobe, Europarecht p. 225 (2002).
37
Adoption of children in Botswana in a comparative

perspective: Unpacking two models of adoption
Rowland JV Cole,* Jimcall Pfumorodze** and Hauwa Nuru***
ABSTRACT
Legal definitions of adoption provide for the integration of the adopted child
into the adoptive family. This denotes severance of legal rights and obligations
as far as the natural or biological family is concerned. This article asserts that
the Adoption Act of Botswana fails to ensure such integration. In justification
of this assertion, the article develops the two models of adoption, namely, the
integration model and the inchoate model of adoption. The integration model
entails the complete transfer of the rights, duties and obligations concerning
the child from the natural family to the adoptive family, whereas inchoate
adoption does not afford the child the full benefits of family relations. By
comparing the adoption laws of Botswana with regional legal systems (being
South Africa and Zimbabwe) and international norms, it is observed that the
integration model represents best international practice, while Botswana’s
legal regime falls within the realm of the inchoate model. The article observes
that the integration model comports with the best interests of the child principle
which is enshrined in international conventions pertaining to the rights of
children. Thus, there is a lacuna in the adoption laws of Botswana.
Consequently, the adoption laws of Botswana, particularly those dealing with
the legal consequences of adoption, should be revamped in line with the
integration model if the Botswana adoption regime is to afford the child the full
benefits of integration into the adoptive family.
1. INTRODUCTION
The Adoption Act1 of Botswana (the Act) dates back to the country’s pre-
independence era and has not undergone any significant amendment. A study
of the Act reveals that the legal effects of adoption creates unsatisfactory
results in that it discriminates against adopted children and does not fully
integrate them into adoptive families. This is due to two key provisions of the
Act, which essentially retain kinship ties and maintain legal obligations
between the adopted child and the biological or natural family. First, the Act
deprives the child from acquiring property rights in respect of the adoptive
*1 LLB (Hons) (Sierra Leone), LLM (UNISA), LLD (Stell), Senior Lecturer, Department of Law,
University of Botswana.
** LLB (UZ), LLM (UWC), Senior Lecturer, Department of Law, University of Botswana.
*** LLB, LLM (Edinburgh), Assistant Registrar and Master, Administration of Justice, Botswana.
1 Cap 28:01. Promulgated in 1952.
family but retains those rights in respect of the biological family. Second, the
Act permits amorous relations between the adopted child and members of the
adoptive family, thereby negating family relations child adoption is meant to
create. Thus, the Act creates an inchoate regime, with the child connected to
both the adoptive and natural families for the purposes of parent and child legal
obligations. To highlight the authors disquiet in respect of the adoption regime,
this article engages in a comparative study with the adoption regimes of two
regional countries, being South Africa and Zimbabwe, and examines
international norms.
In the first part of this article, the authors engage in a study of the
adoption legislation of the three countries and a number of international
conventions reveal that Botswana’s adoption regime is inconsistent with
contemporary thinking. To highlight this position, we package the legal
requirements and effects of adoption into models. The result is that two
distinct models arise for the purposes of analysis. It is clear that the Botswana
adoption regime falls under an inchoate model, which essentially creates an
incomplete integration of the child into the adoptive family. The Zimbabwean
and South African positions facilitate complete integration of the child, thus
falling under the integration model. This position is consistent with legal
definitions of adoption as well as the tenets of international norms. We also
note that while the South African adoption law retains provisions that connect
the adopted child with the natural family, these provisions are for social
purposes only. In this regard, the retention of contact was not meant to retain
legal obligations between the child and the natural family. Rather, it was
meant for the benefit and best interests of the child.
The second part of the article conceptualises adoption as the basis for
the articulation of the integration model. The inchoate model is also discussed
to contextualise the discussion of the Botswana adoption regime. The third
part of the article engages in a discussion of international conventions relating
to adoption. It appears from these documents that the integration approach can
lay claim to international support. The fourth, fifth and sixth parts, discuss the
legal requirements and legal effects of adoption in Botswana, South Africa
and Zimbabwe respectively. It is argued that Botswana falls within the ambit
of the integration model for the purposes of legal requirements for adoption,
but follows the inchoate model in respect of the legal consequences. South
Africa and Zimbabwe, on the other hand, fall squarely within the integration
model. The seventh part makes comparative analysis and highlights the
discord between the inchoate model and the purpose of the law. The article
concludes that the Botswana adoption regime is at variance with the
integration model in that it fails to fully integrate the child into the adoptive
family. We conclude that the current regime is not one that safeguards the best
interests of the child and recommend law reform.
ADOPTION OF CHILDREN IN BOTSWANA IN A COMPARATIVE PERSPECTIVE 39
2. CONCEPTUALISATION OF ADOPTION
The analysis of adoption processes, its theories and models mainly find
articulation in social sciences other than the law. These theories mainly relate
to social relations and interactions between adopted children and adoptive
families, and post placement adjustment of adopted children.2 However, in this
paper, the models discussed are based on legal definitions, legal requirements
and legal effects of adoption.
Slomnicka defines adoption as, “the virtually complete and
irrevocable transfer of a child from one legal family to another.”3 Triseliotis et
al, in similar fashion, define adoption, “as a legal procedure through which a
permanent family is created for a child whose birth parents are unable,
unwilling or are legally prohibited from caring for the child.”4 They conceive
adoption as a means of meeting the developmental needs of a child by legally
transferring on-going parental responsibility from birth parents to adoptive
parents, recognising that in the process we have created a new kinship
network that forever links those two families together through the child.5
These definitions reflect the notion that adoption involves the integration of
children into new families.
Historically, adopted children were usually abandoned or unwanted
babies6 and were taken in and cared for by relatives. The adoption process
was meant to present a solution to the problems facing needy children who
were matched with adoptive parents capable of providing them with love,
care, emotional and financial support.7 In this regard, the ideal environment
for raising children was seen as the two parent home consisting of a mother
and a father providing a loving and nurturing home.
Over time, formal and principled structures evolved to respond to
homeless children. This was done with the active involvement of governments
and relevant child care authorities, and laws evolved to regulate the process.
Nowadays adoption follows a court order, which permanently removes all
parental responsibilities from the biological parents, and transfers them to the
adoptive parents.8 The relationship between a child and her natural parents is
2 See for example, D. Howe, “Developmental Attachment Psychotherapy with Fostered and Adopted
Children” 11(3) Child and Adolescent Mental Health (2006), p. 128; C.S. Pace and G.C. Zavattini,
“‘Adoption and Attachment Theory’ the Attachment Models of Adoptive Mothers and the Revision of
Attachment Patterns of their Late-Adopted Children,” (2011) 37(1) Child: Care, Health and Development
(2011), p. 82; M. Steele, J Hodges, J. Kaniuk and H. Steele, “Mental Representation and Change:
Developing Attachment Relations in an Adoption Context,” 30 Psychoanalytic Inquiry (2010), p. 25; L.
Hamilton, S. Cheng and B. Powell, “Adoptive Parents, Adaptive Parents: Evaluating the Importance of
Biological Ties for Parental Investment,” 72 American Sociological Review (2007), p. 95.
3 B.I. Slomnicka, Law of Child Care, Plymouth, Macdonald and Evans (1982), p. 195.
4 J. Triseliotis, J. Shireman, and M.H. Cassel, Adoption Theory, Policy and Practice, London, Cassell
(1997), p. 1.
5 Ibid, at p. 2.
6 Ibid.
7 Ibid, at p. 1.
8 Ibid, at p. 2.
severed, and a new relationship is created between the child and her adoptive
parents.9 Thus, while Triseliotis et al recognise that adoption might not
completely sever kinship links between the child and the biological family, for
the purposes of the law all parental responsibilities are transferred to the
adoptive family, to the exclusion of the biological family.
Theoretically, the aim of adoption is to secure the future of a child. A
successful adoption is viewed as one that provides a permanent home or social
base which is secure and meets the needs of the individual child.10 Although it
is best for children to be brought up by their own birth family, there are those
whose birth family cannot provide a secure, stable and permanent home for
them.11 The full integration of children into families forms a firmer basis for
socialisation. It has come to be viewed as a successful social policy in that
children generally fare better after adoption than in long-term foster care or
residential care.12
2.1 The integration model
While this discussion relates mainly to the legal aspects and consequences of
adoption, law is about the regulation of social relations and the interaction
between law and social relations is no less visible in facets of human life than
in adoption. In this regard, adoption regimes tend to reflect an integration
model. This model provides for complete integration of the adopted child into
the adopting family. Thus, the rights and obligations concerning the child are
transferred from the natural family to the adopting family. Consequently, rights
and obligations relating to the child’s biological family are severed.13
The integration model ensures a stable environment for the child and
is underlined by two imperatives. The first is the parental imperative. The
historical development of all family law legal systems provides for parental
authority over their children.14 Parental responsibilities and authority result in
various rights and duties.15 In this regard, parents have a duty under the law to
care for their children, which includes providing them with education,
9 Ibid, at p. 1.
10 Triseliotis et al, op. cit., p. 1.
11 J. Tunstill, “Adoption and Family Support; Two means in Pursuit of the Same End,” in A. Douglas and T.
Philpot (eds), Adoption: Changing Families, Changing Times, London and New York, Routledge, (2003),
p. 99 at p. 101; V. Ben-David, “Voices in the Adjudication of Compulsory Adoption in Israel: The
Hegemonic Voice of the Professional Expert and the Unheard Voice of the Biological Parents,” 14
Adoption Quarterly (2011), p. 132 at pp. 132-133.
12 A. Douglas and T. Philpot, “Introduction,” in A. Douglas and T. Philpot (eds), Adoption: Changing
Families, Changing Times, Routledge, (2003), p.1 at p. 4.
13 V. Ben-David, “Social Information in Court Decisions of Compulsory Child Adoption in Israel,” 40 Child
Youth Care Forum (2011), p. 233 at pp. 233-234.
14 L. Schafer, “The Judicial Development of the Roman-Dutch Doctrine of Parental Authority in South
African Law,” 76 The Legal History Review (2008), p. 133, at p. 137.
15 Ibid, at p. 138.
clothing, food and accommodation.16 As legal guardians, parents are also

required to administer the properties of children, represent or assist them in
judicial proceedings, give consent to their removal from the country and give
consent to their marriage when required by law.17 Adoption laws generally
prescribe that the adoptive parents should be mature and capable of parenting.
They also provide for a healthy age gap between the child and the adoptive
parents. Thus, the age and character of the adoptive parents are vital
considerations relating to the requirements for adoption.
The second is the welfare imperative. This imperative is not far
removed from the parental imperative. The welfare imperative denotes that in
the event of competing factors affecting a child, the factor that best serves the
welfare of the child should be adopted.18 This is reflected in section 5 of the
Children’s Act of Botswana which provides that in the exercise of a function
or power by a court or person that relates to a child, the best interest of the
child should be of paramount consideration.19 Further, statutes relating to
children generally provide for institutions and procedures relating to the
protection of neglected and ill-treated children.20 In this regard, the adoptive
parents should be able to financially provide for the welfare, education and
upkeep of the child.21 Adoption regimes can only serve the best interest of the
child where the welfare of children is adequately guaranteed.
2.2 The inchoate model
While the integration model appears to be the dominant model, an inchoate

model can be deciphered from Botswana’s adoption regime. In terms of this
model, while adoption entrusts the child to the care of the adoptive parents, the
legal consequences of adoption do not necessarily permit the full integration of
the child into the adoptive family. Consequently, the child might not be entitled
to the full benefits of family relations. In this regard, the adoption laws may bar
16 Ibid; H.R. Hahlo and E. Khan, The Union of South Africa: The Development of its Laws and Constitution,
Juta, (1960), pp. 366-367; E.K. Quansah, Introduction to Family Law in Botswana, Gaborone, Pula Press,
4th ed., Pula Press (2006), p. 137; D.S.P. Cronje and J. Heaton, South African Family Law, Durban,
Butterworth (1999), p. 197; the best interests of the child principle has been used by the courts in granting
fathers access to their illegitimate children, a right that does not exist under the common law. See
Mfundisi v Kabelo [2003] 2 BLR 129; Letsile Macheme v Dumisani Ndlovu CACLB 035/08, 30 January
2009 (unreported); see also E.K. Quansah, “Some contemporary Challenges Facing Family Law in
Botswana,” 9 University of Botswana Law Journal (2009), p. 25, at p 45.
17 Section 27 Children’s Act of Botswana, Cap 28:04; Section 18 Children’s Act of South Africa, No 38 of
2005.
18 J. Williams, Child Law for Social Work, Los Angeles, Sage (2008), p. 11.
19 Sello v Sello & Anor [1999] 2 BLR 104; Mmutle v Mmutle [2007] 3 BLR 81; See also Sections 5 and 6 of
the South African Children’s Act.
20 See part X Children’s Act of Botswana; chapter 9 of the South African Children’s Act. Also, Section
17(1) of the 1989 English Children Act, Chapter 41, imposes a duty on local authorities to provide for the
welfare of children. This Act was amended by the Children Act of 2004, Chapter 31.
21 Section 2 of the Children’s Act of 2009 of Botswana provides for the protection and care of children. It
also acknowledges the role played by communities in promoting and safeguarding the well-being of
children.
the child from inheriting the intestacy of the adoptive family, nor is the child
considered their kin for the purposes of the laws of consanguinities.22 Rather,
the child remains entitled to inherit from the intestacy of the natural family,
despite the adoption. Therefore, the adoption does not result in complete
integration and the child is trapped between two legal regimes connecting her
with both the adoptive and the natural family.23 This position is representative
of the Botswana legal regime relating to adoption.
There appears to be a halfway house between the integration and
inchoate models. In this vein, “open adoption” or “inclusive adoption” or semi
adoption, relates to situations wherein both members of the natural family and
the adoptive family maintain contact or have access to the adoptive child. The
manner of contact depends on the agreement between the parties, which may
state the nature and extent of such contact. The manner of contact may be
restricted to the exchange of information or may extend to physical contact.24
Though the legal consequences of this regime may actually integrate the child
into the adoptive family, some contact is permitted with the natural family. It
must be noted that contact with the biological family does not limit the full
integration of the child into the adoptive family but rather ensures that
integration is in accordance with the emotional needs of the child.25 It must be
noted however, that research conclusions on the benefits of open adoption are
conflicting. It has been contended that the expected benefits to be derived
from open adoptions is often over estimated or are not fully known. Richard
Barth notes that though adoptive parents elect for open adoption on the belief
that they resolve “genealogical bewilderment” and reduces the impact of
adoption on children who are upset by the process, openness may not be in the
best interest of all families and all children during all developmental phases.26
Quinton et al note that research methods have not been sophisticated enough
to establish a link between post adoption relationships and benefits accruing to
adoptive parents and adopted children.27 Carole Smith, on the other hand
states that tentative conclusions derived from cumulative research, confirms
that many adopted children value contact with their natural family, even
22 Section 3 of the Adoption of Children Act.

23 K.S. Rotabi and J.L. Gibbons, “Does the Hague Convention on Intercountry Adoption Adequately Protect
Orphaned and Vulnerable Children and their Families?,” 12 Journal of Child Family Studies (2012), p.
106, at p. 108;
24 S. Harris-Short, Family Law Text, Cases and Materials, Oxford, Oxford University Press (2011).
25 “… [E]vidence points to the importance for those who are adopted of the maintenance of links with their
original families.”: M. Ryburn, “The Effects of an Adversarial Process on Adoption Decisions,” 17
Adoption and Fostering (1993), p. 39, at p. 44; C. Smith, “Trust v Law: Promoting and Safeguarding
Post-Adoption Contact,” 27 (3/4) Journal of Social Welfare and Family Law (2006), pp. 315, at pp. 315-
316.
26 R.P. Barth, “Adoption Research: Building Blocks for the Next Decade,” 73 (5) Child Welfare (1994), p.
625, at p 635.
27 D. Quinton, A. Rushton, C. Dance and D. Mayes, “Contact between Children Placed Away from Home
and their Birth Parents: Research Issues and Evidence,” 2 (3) Clinical Child Psychology and Psychiatry
(1997), p. 393.
though such situations are often uncomfortable.28 Accordingly, such contacts

foster emotional relations and do not undermine the sense of security of
adopted children. Thus, while we argue that adoption involves a separation
from the natural family for the purposes of the law, it has been argued from a
sociological perspective, that children need to retain a sense of connection with
their natural family but also be fully integrated into their adoptive family.29
3. THE INTEGRATION MODEL IN

INTERNATIONAL LAW
3.1 The United Nation’s Convention on the Rights of the

Child
Not only does international law reflect the parental and welfare imperatives in
relation to adoption, it gives consideration to the protection of the rights of
adopted children. The United Nation’s Convention on the Rights of the Child
(CRC)30 came about as a result of the “evolution of attitudes towards and
perceptions of children and childhood and the progressive consolidation of
international human rights law.”31 The preamble to the Convention states
various grounds for the promulgation of a convention tailored specifically to
the rights of children worldwide.32 The Convention contains four basic
principles in entrenching the rights of children. These principles are non-
discrimination; respect for the views of the child;33 right to life, survival and
development; and the best interest of the child.34 Of these principles, the best
interest of the child relates significantly to adoption.35 This principle is
28 Smith, op. cit., p. 316.

29 E. Neil, “Supporting Post-Adoption Contact for Children Adopted from Care: A Study of Social
Workers’ Attitudes,” 10(3/4) Adoption Quarterly (2007), p. 3, at p. 6.
30 Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20
November 1989. Entered into force 2 September 1990.
31 S. Detrick, The UN Convention on the Rights of the Child: A Guide to the “Travaux Preparatoires”,
Dordrecht, Martinus Nijhoff (1992), p. 19.
32 The seed for recognising that children had rights and for the eventual promulgation of such Convention
was sown as far back as 1924 when the League of Nations (the precursor to the UN) passed a resolution
endorsing the Declaration of the Rights of the Child. Since then, a number of countries have adopted and
embraced these basic and underlying principles that were laid down so long ago, and which form the
backbone of adoption laws in countries that have adopted the Convention. The theme or underlying
principles for having an adoption regimen was in recognition of the special need and priority care that
children need.
33 For an articulation of this concept under the Convention see, L. Krappmann, “The Weight of the Child’s
View (Article 12 of the Convention on the Rights of the Child),” 18 International Journal of Children’s
Rights (2010), p. 501.
34 Y. Lee, “Celebrating Important Milestones for Children and their Rights,” 18 International Journal of
Children’s Rights (2010), p. 479, at p. 480; see generally J. Zermatten, “The Best Interests of the Child
Principle: Literal Analysis and Function,” 18 International Journal of Children’s Rights (2010), p. 483.
35 J. Lind and S. Johansson, “Preservation of the Child’s background in In-and Intercountry Adoption,” 17
International Journal of Children’s rights (2009), p. 235, at p. 246.
enshrined in Article 3 of the CRC,36 and has been described as an innovative

concept37 in relation to the rights of children. In this regard, children’s best
interest should be of primary consideration in all actions affecting them. The
CRC effectively provides a framework for legal values and standards that
effectively promote the rights of children and their socialisation in the family
unit. Thus, the CRC is in tandem with protecting the welfare of adopted
children, thereby giving support to the integration model of adoption.
The CRC provides child care values and legal rules for the guidance
of state parties and their domestic legal orders. The common principle
emanating from the Convention and running through laws of adoption in
contracting states is the best interests of the child.38 In the United Kingdom
and the USA, the main rationale for adoption is that it will promote the
welfare of the child.39 This rationale is premised on studies that show that
when the birth family cannot provide care, adoption is possibly the best
available alternative where a child’s continuing care, security and a sense of
belonging enables her to grow into a productive and healthy individual.40 In
this regard, it can be said that the integration model represents widespread
practice.
3.2 The Hague Convention on the Protection of Children

and Co-Operation in Respect of Intercountry
Adoption
The Hague Convention on the Protection of Children and Co-operation in

Respect of Intercountry Adoption41 seeks to craft ways to prevent avenues for
possible abduction, sale or trafficking where inter-country adoption occurs.
The main objective of this Convention is to offer the advantage of a permanent
36 See Article 21 of the CRC which states, “States Parties that recognize and/or permit the system of
adoption shall ensure that the best interests of the child shall be the paramount consideration and they
shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in
accordance with applicable law and procedures and on the basis of all pertinent and reliable information,
that the adoption is permissible in view of the child's status concerning parents, relatives and legal
guardians and that, if required, the persons concerned have given their informed consent to the adoption
on the basis of such counseling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an alternative means of child's care, if the
child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in
the child's country of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent
to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result
in improper financial gain for those involved in it;
(e) Promote, appropriate, the objectives of the present article by concluding bilateral or multilateral
arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the
child in another country is carried out by competent authorities or organs.”
37 Zermatten, op. cit., p. 483.
38 Article 21 of the CRC.
39 Triseliotis, op. cit., p. 1; Detrick, op. cit., p. 19.
40 Ibid, at p. 13.
41 Concluded on 29 May 1993 and entered into force on 1 May 1995.
family to a child for whom a suitable family cannot be found in his or her State
of origin. In so doing, the Convention seeks to establish safeguards to ensure
that inter-country adoptions take place in the best interests of the child and with
respect for her fundamental rights as recognised by international law. The
Convention gives credence to the integration model. The binding principle of
the Convention is the best interest of the child and the full and harmonious
development of her personality. Consequently, it is vital that the child grows
up in a family environment, in an atmosphere of happiness, love and
understanding.42 The Hague Convention further reflects the integration model
by providing for the complete severance of any relationship between the child
and the birth parents whilst recognising the transfer of legal parent-child
responsibilities to the adoptive parents.43 It further requires states to consider
in-country adoption prior to considering inter-state adoption.44 The
Convention, therefore, seeks to keep the child within her family, kinship group
or country, making international adoption a last measure, the preferred position
being to place the child within her special needs, family system or cultural
surroundings.45 Not only does this provision guard against trafficking, it also
guarantees integration of adopted children into familiar surroundings and
cultures.
4. THE ADOPTION REGIME IN BOTSWANA
4.1 Legal Requirements for Adoption
While the legal requirements for adoption are founded on the integration
model, this does not hold true in relation to the legal consequences. It is clear
that the legal consequences encompass the parental and welfare imperatives,
which form the framework of the integration model. In this regard, they
encapsulate the parental and welfare imperatives. This demonstrates that the
purpose of adoption is to integrate the child into the adoptive family. In this
regard, the law serves to regulate social and family relations. Thus, it is the
purpose of the law to ensure that adoption results in the creation of binding
family units, the avoidance of relational discord and the protection of the rights
of adopted children.
A study of the statutory requirements governing persons qualified to
42 The Hague Convention, at the preamble.

43 The Hague Convention, Article 26 which states that the effect of an adoption serves to terminate any pre-
existing legal relationship between the child and his or her mother and father.
44 Article 4(b) of the Hague Convention. See also Article 21(b) of the CRC.
45 K.S. Rotabi and J.L. Gibbons, “Does the Hague Convention on Intercountry Adoption Adequately Protect
Orphaned and Vulnerable Children and their Families?,” 12 Journal of Child Family Studies (2012), p.
106, at p. 108; M.H. Engel, N.K. Phillips and F.A. DellaCava, “Cultural Difference and Adoption Policy
in the United States: The Quest for Social Justice for Children,” 18 International Journal of Children’s
Rights (2010), p. 291, at p. 293.
adopt children in Botswana clearly shows that the intention is to ensure a

healthy age gap between the adoptive parents and the child. This clearly
signifies the intention of the legislative draftsman of the Adoption of Children
Act to create a parent and child relationship, and to integrate the latter into the
adoptive family. Thus, the Adoption Act recognises the following categories
of persons as being capable of adopting children:
“(a) a husband and his wife jointly;

(b) a widower or widow or unmarried or divorced person;
(c) a married person whose spouse is at the time of the adoption,
and has been for a continuous period of not less than seven years
immediately preceding that time, mentally disordered or defective;
(d) a married person who is separated from his or her spouse by
judicial decree.”46
To a great extent, this provision signifies the intent to integrate

children into families. The Act also provides for significant age gaps between
adoptive parents and adopted children. The Act prohibits persons under the
age of 25 years from adopting children. It further requires an age gap of at
least 25 years between the adoptive parents and adopted child in respect of
children who have attained the age of 16 years.47 These ‘age regulatory
provisions’ ensure that the adoptive parents act in loco parentis in relation to
the adopted child.
The welfare imperative seeks to ensure that the adoptive parents are
of proper moral standards, that they are able to provide the necessaries for the
child, and that the adoption is in the best interests of the child. The law
ensures that these requirements are met by subjecting the adoption of children
to court orders. In other words, an adoption is made subject to the adoptive
parents satisfying a magistrate in their district that they meet the required
standards. In this regard, a magistrate may not grant an adoption order unless
she is satisfied that the adoptive parents are of good repute, are fit and proper
persons to be entrusted with the custody of the child, and possess adequate
means to provide for the welfare and education of the child.48 In determining
the character and fitness of the adoptive parents, the courts usually rely on the
assessment of social welfare officers. In this regard, social welfare officers
provide a report on the basis of their assessment of the adoptive family. The
assessment of the fitness of the adoptive parents depends largely on the report.
Further, in ensuring that the adoption serves the interests of and is conducive
46 Section 3(1) of the Adoption of Children Act.

47 Section 3(2) of the Adoption of Children Act. This provision is subject to certain exceptions where one of
the adoptive parents is the biological parent of the child.
48 Section 4(2)(b) of the Adoption of Children Act.
to the welfare of the child, the views of the child may be considered.49 Thus,
children over the age of 10 years are considered as being able to sufficiently
understand the notion of adoption. In this vein, children above the age of 10
years cannot be adopted without their consent.50
4.2 Discourse
4.2.1 Legal Consequences of Adoption
There is a clear disconnect between the philosophy underlying the legal

requirements of adoption and the legal effects of adoption. The Act provides
that the adopted child is a legitimate child of the adoptive parent.51 However,
the legal consequences of adoption do not appear to follow this provision.
While the legal requirements appear to ensure the integration of the child into
the adoptive family, it appears that the legal consequences fail to do so in that
it does not securely cement the child into the adoptive family. The legal effect
reflects an inchoate approach which fails to grant the child all the rights and
benefits accruing to children on account of family relations. This is discussed
under the headings that follow.
4.2.2 Possible Deprivation Of Surname
It would appear at first sight that the adoption Act seeks to integrate the child
into the adoptive family by making provision that the surname of the latter be
conferred on the former.52 However, while the effect of the adoption order is
to confer the surname of the adoptive parents on the child, this is not sacrosanct
and the order may provide otherwise.53 The Act does not provide under what
circumstances this may occur. If one might be speculative, such circumstances
may arise where the adoptive parent, or the adoptive and natural parents decide
or agree not to confer the surname of the adoptive parent on the child. This
opens the doors for “negative” and haphazard integration of the child into the
adoptive family.
49 Section 4(2)(c) of the Adoption of Children Act.

50 Section 4(2)(e) of the Adoption of Children Act.
52 Section 6(1) of the Adoption of Children Act provides, ‘An order of adoption shall, unless thereby
provided, confer the surname of the adoptive parent on the adopted child’. S 6(3) provides that adoption
terminates the rights and responsibilities between the child and the natural parents. This provision, which
is discussed later, is however, subject to property rights exceptions.
4.2.3 Denial of Property Rights
The Act deprives the adopted child of property rights. It precludes the child
from benefiting from any testamentary instrument made prior to the adoption
whether made inter vivos or mortis causa, unless the instrument “clearly
conveys the intention” that the property shall devolve on the adopted child.54
In relation to inter vivos instruments, it is understandable that the adopted child
may be excluded as its effects would take place before the adoption. However,
a gift mortis causa takes effect after the death of the testator and certainly after
the adoption. One would have thought, therefore, that the Act will provide that
the instrument be interpreted so as to include the adopted child except where
there is express reference to the contrary. The situation may be viewed from
two interpretational points. Donation mortis causa would usually contain the
specific names of the beneficiaries. Therefore, where the names of the
beneficiaries are expressly stated, the gift would devolve on them. In this
regard, it will be assumed that had the testator intended the adoptive child to
benefit from the gift, she would have taken the necessary steps to make express
provisions to that effect. However, where there is a doubt as to who the
beneficiary children are, the instrument should be interpreted to include the
adopted child. A second line of interpretation could be to the effect that where
the testator leaves properties to all her children, it may be inferred that the
adopted child was intended to benefit from such property. Had the testator
intended to exclude the adopted child she would have taken the necessary steps
to make this clear.
The Act provides that the adopted child shall not benefit from the
intestacy of the relatives of the adopted parents.55 Effectively, in the event
that the intestacy of her adoptive family members was to pass on to her
adoptive parents’ children, only the natural children and not the adoptive child
would benefit. This clearly creates discrimination in the inheritance of
property. Notably, the Act provides that the adopted child may benefit from
the intestacy of her own natural parents.56 This creates a situation where a
long lost and unknown child may show up and claim the inheritance of her
deceased natural parents. This is a clear formula for social discord, and is
contrary to the purpose of the law. The law is meant to resolve conflict rather
than create them. The inheritance regime created by the Act places limitations
on the legal consequences of adoption.
54 Section 6(2)(i) of the Adoption of Children Act. See the case of Marman v Marman [2003] 1 BLR 97
where the Court held that a child adopted under customary law was entitled to the estate of the adopting
parent. It must be noted that the Adoption Act does not apply in respect of customary adoptions and that
the Court noted that the adopting parent had expressed a wish that the adoptive child should inherit his
estate.
55 Section 6(2)(ii) of the Adoption of Children Act.
4.2.4 Pre-adoption Application of the Law Of

Consanguinities
The Act applies the laws of consanguinities as if the adoption did not take
place. Consanguinity refers to kinship among persons. The laws of
consanguinities are usually taken into account in deciding whether two persons
may be married. Usually, persons who are descendants from a common
ancestor are not permitted to engage in sexual relations or marriage.
Consanguinity also relates to property inheritance. In this regard, after
surviving spouses, the descendants of deceased person, (usually starting with
children), inherit the intestate property. The Adoption of Children Act does not
consider the adopted child as a child for the purposes of sexual relations,
marriage and property inheritance.
Section 14(a) of the Act provides that adoption “shall not prohibit or
permit a marriage between that [the adopted] person and any other person,
which would not have been prohibited if the adoption had not taken place.”57
Clearly, the adopted child is permitted to marry a sibling of the adopted
family, but is not permitted to marry a natural sibling of whom he is unaware
of their kinship. In this regard, the proviso to s 14(a) permits marriage
between an adoptive parent and an adoptive child who has attained the age of
21 years. Effectively, the Act fails to legislate for sexual and marital relations
between an adoptive parent and an adoptive child. The fact that the adopted
child is unaware of the blood relationship between herself and a natural
sibling, does not exempt her from criminal liability in relation to charges of
incest.58 The Penal Code provides the requirement of knowledge of kinship in
relation, as an element of the offence of incest.59 To crown it all, the Adoption
of Children Act contemplates marriage between adoptive children and their
adoptive parents. The Act further decriminalises offences founded on the laws
of consanguinities such as incest, in relation to the adoptive child and
members of her adopted family.60
It is submitted that adoption regimes should create avenues for social
groupings, regulate social interaction and family relations. The Act fails to
cement the child as part of the adopted family. Rather, it appears to leave the
adopted child outside the family fold in some respects. Thus, the legal
consequences of adoption create an inchoate relationship between the adopted
child and the adoptive parents. The rights of adopted child and the obligations
of adoptive parents are not securely cemented to create genuine family
relations. Rather, the child is put in a severely vulnerable situation. The
expectations of the child as a true member of the family are open to “legal-
57 Section 14(a) of the Adoption of Children Act.

58 Section 14(c) of the Adoption of Children Act.
59 Section 168 and 169 of the Penal Code, Cap 08:01.
60 Section 14(b) of the Adoption of Children Act.
negative-rebuttal” in that she cannot benefit from the full rights that accrue to
legitimate children of families. Section 6(1) of the Act, which proclaims the
child a legitimate child of the adoptive parents, is unashamedly made subject
to section 6(i), (ii) and (3) which deprives her of the rights of a legitimate
child and section 14 which effectively de-recognises her as a family member.
5. THE ADOPTION REGIME IN SOUTH AFRICA
5.1 Legal Requirements
Under the South African legal framework, persons qualified to adopt children
include a husband and wife jointly, partners in a permanent domestic setting or
life-partnership, and persons sharing a common household and forming a
permanent family unit.61 This suggests that persons of the same gender who are
in a permanent relationship may adopt a child, and the fact of their chosen
sexuality may not necessarily defeat an application for adoption.62 Further, the
biological father of a child born out of wedlock may adopt his own child, and
a foster parent may also adopt a child in her care.63 Other class of persons who
may adopt are a widow, a widower or a divorced or unmarried person, a step-
parent and a person whose permanent domestic life partner is the parent of the
child.64
South African law provides for the adoption of specific classes of
children. These include children in need of a permanent alternative placement,
abandoned or orphaned children without guardians or caregivers who are
willing to adopt them, children with guardians or parents whose whereabouts
are not known and cannot be established, and children whose parents or
guardians though still present have abused or deliberately neglected such
children or allowed them to be abused.65
61 Section 231(1) South African Children’s Act, No. 38 of 2005.

62 Wald argues that a truly child-focused analysis leads to a conclusion that an adult’s sexual orientation is
generally irrelevant in relation to the placement of children. Children needs homes that provide love and
steady care, and these qualities are not related to the parents’ sexual orientation. See M.S. Wald, “Adults’
Sexual Orientation and State Determinations Regarding Placement of Children,” 40(3) Family Law
Quarterly (2006). Available on http://web.ebscohost.com/ehost/detail (accessed on 11 November 2012).
Hart notes that non-heterosexual family formation is a consequence of post-Second World War equality
and human rights realities. See L. Hart, “Individual Adoption by Non-Heterosexuals and the Order of
Family Life in the European Court of Human Rights,” 36(4) Journal of Law and Society (2009), p. 536, at
p. 557. For the approach of the South African courts in relation to placement of children with same sex
couples see, National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1
(CC), at para 50; Ex Parte Critchfield 1999 (3) SA 132 (W). See also J.A. Robinson, “An Overview of
Recent Legal Developments in South Africa with Regard to the Position of Lesbigay Parents and
Children with Specific Reference to the Adoption of Children,” 22(2) Brigham Young University Journal
of Public Law (2008), p. 383.
63 Section 231(d) & (e) of the Children’s Act.
64 Section 231(b) & (c) of the Children’s Act.
65 Section 230 of the Children’s Act.
A child can be adopted only after a court hearing and an order issued
by the court.66 Adoption terminates all parental responsibilities and rights of
the person having the care and responsibility of the child and terminates all
contact by any family member of such person.67 The only contact with the
natural family relates to property acquired prior to the adoption.68 Adoption is
subject to the consent of each parent of the child.69 Thus, where a child
becomes available for adoption, the court should notify each parent of the
impending adoption, and request such parent to either consent or to withhold
consent.70 Should the parents fail to respond after the lapse of 30 days, they
are regarded to have consented71 and the requisite consent is dispensed
with.72 A child over 10 years may also be required to consent to the adoption
where the court is of the opinion that she is of sufficient maturity or is at a
developmental stage so as to understand the implications posed by the
adoption.73
Parental and welfare imperatives are deeply ensconced in respect of
the legal requirements for adoption. In this regard, the South African
Children’s Act seeks to establish that the adoptive parent is capable of
carrying out parental responsibilities. Thus, a person wishing to adopt a child
must be at least over the age of 18 years.74 In addition, the adoptive parent
must be a fit and proper person.75 These criteria are significant in view of the
fact that the adoptive parent is entrusted with full parental responsibilities with
regards to the child. The exercise of adjudging fitness is undertaken with the
active involvement of a social worker who is tasked with the responsibility of
assessing the fitness and suitability of the adoptive parents. In this assessment
the cultural and community diversity of the child is taken into consideration.76
In securing the integration process of the child, the courts consider the child’s
religious and cultural background as well as those of the adoptive parents.
This would seem to call for placing a child with adoptive families with similar
background.77 In this context, it would seem that the child’s ethnicity and race
may be relevant factors although this is not expressly stated in the Act.
Perhaps in a country as culturally diverse as South Africa, these are crucial

67 Section 242(1)(a) of the Children’s Act.
68 Section 242(2)(d) of the Children’s Act.
71 Section 238 (3) of the Children’s Act.
72 Section 236(1)(f) of the Children’s Act.
73 Section 233(1) of the Children’s Act.
74 Section 231(2)(c) of the Children’s Act.
75 Section 231(a) of the Children’s Act.
77 See J.L. Roby and S.A. Shaw, “The African Orphan Crisis and International Adoption,” 51(3) Social
Work (2006), p. 199, at p. 203 for a similar discussion in relation to the USA.
factors in ensuring integration.78
5.2 Legal Consequences
Adoption transfers full parental responsibilities and rights to the adoptive

parents.79 The intent of adoption is to fully integrate the child into the adoptive
home. It is envisaged that adoption severs all legal obligations between the
child and the natural parents80 as well as any rights or responsibilities that the
child may have in relation to such persons.81 Furthermore, in order to foster an
immediate sense of belonging, the adoption order serves not only to confer the
surname of the adoptive parents upon the child,82 but also generally terminates
any claims to contact by members of the pre-adoption family.83 The Act
prohibits sexual relationship or marriage between the child and members of her
natural family.84 In this regard, the laws of consanguinities apply in respect of
the child’s natural family. It is submitted that this position would extend to the
adopted child’s relationship with the adoptive family. It must be noted that the
Act regards an adopted child as the child of the adoptive parent and conversely
regards an adoptive parent as the parent of the adopted child “for all
purposes”.85 Thus, crossing the line of a parent/child relationship into a sexual
relationship on the basis that the relationship has no blood ties would clearly
equate to an incestuous relationship. It is submitted that this must hold true
even if the adoption is only a relationship sanctioned by the law as opposed to
blood relationship. Thus, the Act gives concrete recognition to family relations
even in the absence of blood relations. This is so because the object of adoption
is to cement the adopted child into the adoptive family as a family member and
to ensure that the family connection is not subsequently broken due to lack of
blood relations between the child and the adoptive family. If this occurs, the
legal consequences of adoption will become uncertain and severable. This in
turn will create tenuous and volatile social relations which run contrary to the
object of the law. Thus, it can be said that as opposed to the position in
Botswana, marriage and sexual relations between the adopted child and a
member of the adoptive family as well as with any natural born siblings is
prohibited under South African law.
78 Empirical research conducted among a small section of South Africans show the black South Africans
support the adoption of black children by white parents and believe that such trans-racial adoptions do not
have a negative impact on black children. See A. Moos and K. Mwaba, “Beliefs and Attitudes About
Transracial Adoption Among A Sample of South African Students,” 35(8) Social Behavior and
Personality (2007), p. 1115, at p. 1118.
79 Section 242(2)(a) of the Children’s Act.
80 Section 242(1)(a) of the Children’s Act. This position is subject to the adoption order or a court
sanctioned post-adoption agreement.
82 Section 242(2)(b) of the Children’s Act.
83 Section 242(1)(b) of the Children’s Act.
With regards to property rights, adoption of a child does not deprive

a child of all property rights acquired before the adoption.86 Thus, it is
ensured that adoption does not divest a child of property already acquired and
ensures that the child is not disadvantaged as a result of adoption. Adoption
should serve the interests of the child and not disadvantage her. In this regard,
what the property regime seeks to do is to secure the rights of the child and not
to maintain relations with the natural family.
5.3 Open Adoption – A Deviation From The Integration

Model?
It is to be noted that despite severing legal relations between the child and the
natural parents, the South African Act envisages situations wherein contact
may still be maintained between the child and the previous parents. Thus, the
system provides for open adoption or semi adoption that maintains some level
of contact between the natural and adoptive families. Open adoption is
formalised by post adoption agreements made by the adoptive and natural
parents.87 Such agreements may permit any form of communication, visitation
between the child and the natural parent and the provision of medical
information in respect of the child.88 This agreement seeks to protect the best
interests of the child. In this regard, where the child is of an age or stage of
maturity such that she understands the implications of the agreement, the
agreement should not be concluded without her consent.89 The social worker
assigned to the adoption process should be involved in the conclusion of the
agreement and also has a responsibility to counsel all parties concerned on the
implications of the agreement.90 While post adoption agreements appear to
create a half house situation between the integration and inchoate models, it
must be noted that such arrangements are made for the full integration of the
child into the adoptive family. This is clear from the fact that such agreements
are sanctioned by the courts, only where the court is of the view that the
agreement is in the best interests of the child.91 Further, the South African
adoption Act in its totality provides for the full integration into the adoptive
family and the severing of legal ties with the natural family. Placing post
adoption agreements under an inchoate cloak will clearly run counter to the
intent, the letter and the spirit of the Act. Therefore, one may conclude that post
adoption agreements only create social stability for the child and do not run
contrary to her full and legal integration into the adoptive family.
86 Section 242(2)(d) of the Children’s Act.

88 Section 234(1)(a) & (b) of the Children’s Act.
6. ADOPTION OF CHILDREN IN ZIMBABWE
In Zimbabwe, mechanisms for the adoption of children are provided for under
the Children’s Act.92 This Act repealed and replaced the Children Adoption
and Protection Act.93 However, the new Act did not make substantial changes
in rules governing the adoption of children. The Children’s Act seeks to
holistically deal with numerous facets on children’s welfare. Its preamble
stipulates that the Act seeks to create the children’s courts which, among other
things, deal with the adoption of minor children in accordance with the Act.
Thus, the adoption of children is only but one aspect of the Act which has a
broader framework that encompasses the institutional and legal framework on
the protection and the welfare of children.
6.1 Legal Requirements
The procedure of the children’s court is flexible and is not bound by any rules
relating to civil and criminal proceedings.94 In cases of adoption, a child is
assisted by a probation officer who assesses the personal circumstances of each
child and makes an appropriate recommendation.95 An adoptive parent should
be at least twenty five-years old and be at least twenty-one years older than the
adoptive child.96 It appears that the assessment of the fitness of the adoptive
parents takes place prior to adoption proceedings in court. According to section
62 of the Children’s Act, those who wish to adopt children should register with
the Director of Social Affairs, Youth and Rehabilitation, who keeps a register
for that purpose. However, the Director may refuse to register a person who is
unfit to adopt a child. Where registration is refused, section 62 also provides
for an appeal to the children’s court. The Director may also remove the names
of persons who are no longer considered fit to adopt children from the register.
Adoptions are the subject of court orders. In this regard, the court may impose
any terms and conditions it may deem fit and necessary to safeguard the
adopted child.97 An adoption order is usually made subject to a written and
signed consent by a parent or a guardian of the child. The court must be
satisfied that the person giving such consent appreciates fully the legal
92 Chapter 5:06.
93 No. 22 of 1971.
95 Section 57 of the Children’s Act. A probation officer represents the interests of the child during adoption
proceedings in court.
96 Section 59 of the Children’s Act. However, there are exceptions to this rule. A Minister has a discretion to
allow an adoption contrary to this section. For further exceptions, see the proviso in Section 59 of the
Children’s Act.
implications of adoption. A child who can appreciate adoption proceedings

may also be allowed to express her wishes.98
6.2 Legal Consequences of Adoption
An adoption has several effects and consequences on the adopted child and
imposes several duties and responsibilities on the adoptive parents.99 Also, an
adoption order ordinarily confers the surname of the adoptive parent on the
adopted child.100 Further, in relation to inheritance, an adopted child is allowed
to inherit from the estate of the adoptive parents like other natural children of
the adoptive parents.101 In any disposition of property made by an instrument
which takes effect after the date of an adoption order, any reference, whether
express or implied, to the child or children of the adoptive parent should be
construed as, or as including, reference to the adopted child.102 Upon an
adoption order being made, all rights, duties, obligations and liabilities of the
natural parents or guardians of the adopted child are extinguished, and become
vested in and enforceable against the adoptive parents as if the adopted child
was born to the adoptive parents in lawful wedlock.103 Where a dispute arises
between adopting spouses concerning the custody and maintenance, and the
rights of access to children, the legal position relating to the spouses and their
natural children shall apply.104
The net effect of the above provisions is that to a large extent, the
adopted child is treated in the same way and enjoys all rights and privileges as
if she were a natural child. Thus, there is equality of treatment between the
biological and adopted children. This treatment extends to the inheritance of
property. The rights of the biological parents or guardians of the adopted child
are completely extinguished and the adopted child becomes part of the family
of the adopting parents. Thus, it can be argued that the legal rules pertaining to
the adoption of children in Zimbabwe comports with the best interests of the
child principle and is in line with international and regional standards on the
protection and adoption of children. Clearly, the legal regime provides for the
complete and unreserved integration of the child into the adopting family and
severance with the natural family. This certainly fits within the ambit of the
integration model.

99 See Section 64 of the Children’s Act.
7. VARIED CONSEQUENCES OF ADOPTION
A juxtaposition of the legal consequences of adoption in Botswana on the one

hand, and South Africa and Zimbabwe on the other, shows that the Botswana
regime is inchoate and falls short of integrating the child as a member of the
family with full legal rights accruing to children. The legal consequences of
adoption create varied consequences in Botswana as opposed to South Africa
and Zimbabwe. First, in Botswana, adopted children are entitled to inherit
property from the intestate of the natural family as if the adoption did not take
place while they are not entitled to inherit from the intestacy or gifts made
mortis causa of the adoptive family. However, under South African and
Zimbabwe law, adopted children are entitled to the intestacy of the adoptive
parents. In South Africa, adoptive children are severed from the property of the
natural family except those acquired prior to the adoption. Second, in
Botswana, adoptive children may have sexual relations with members of the
adoptive family but are barred from having sexual relations from members of
their natural family.
In South Africa, while the Act prohibits sexual relations or marriage
between adoptive children and members of their natural family, it is silent in
relation to members of the adoptive family. However, unlike the Botswana
Act, the South African Act does not encourage or provide a framework for
marriage or sexual relations between adopted children and members of the
adoptive family.
The Zimbabwe Act is also silent on sexual or marital relations. The
obvious reason why the South African and Zimbabwe Acts are silent on
sexual relations or marriage between adoptive children and members of the
adoptive family can be found in their express declaration that adopted children
are children of the adoptive family for all purposes and intent. The Zimbabwe
Act treats adopted children as lawful children of the family. Where the
adoptive parents are married, the child is treated as a child born in lawful
wedlock. The same legal position applies for the purposes of maintenance and
custody if the adoptive parents were to divorce. The South African Act also
declares that an adopted child must be regarded as the child of the adopted
parent for all purposes and vice versa.105 In relation to Botswana, therefore, it
can be concluded that the provisions of sections 6(2)(i) and 6(2)(ii) were
specifically meant to prevent the child from taking advantage of property
rights that should accrue to her as a member of the adoptive family. The
rationale of section 14 in specifically permitting marriage between the
adopted child and members of the adoptive family is inconceivable, save to
say that the Act conceives adoption as creating informal foster relations,

rather than firm family units.

We do not seek to argue for the complete severance of social contact
from the natural family. What is important is the best interests of the child.
Indeed, the South African regime provides for open adoption which
contemplates contact between the child and the natural family, and the sharing
of information which may be beneficial to the child. Adoption is a complex
matter and as Barth notes, even the effects of open adoption on the
development of the child are not fully understood.106 What is clear, however,
is that the legal effects of adoption in Botswana appears to be far from
securing the legal rights of a child as part of the adoptive family. The ultimate
legal effect is that the child is in the care of a new family, but may not acquire
the rights that family membership confers on persons. The Botswana regime
ranks closer to a foster care arrangement than an adoption. Thus, the adopted
child in Botswana seems to have an unequal status as a child in the adoptive
family. Clearly, the adoption regime creates inequality of persons before the
law. Similarly, the child remains in legal entanglement with the natural family
by retaining pre-adoption family rights, even though she is no longer
considered part of that family. Thus, the adoption Act negates the purpose of
the law, which includes the regulation of social relations. It also discriminates
against adopted children and violates the constitutional demand of equality
before the law. Children within the family should be treated equally as long as
their natural abilities, gender and other attributes permit this.
8. CONCLUSION
Definitional conception, international norms and regional legal regimes

demonstrate that adoption requires an integration approach. The legal
relationship between parents and children is ‘bilateral’107 and does not include
multilateral legal obligations with the biological parents. The integration
model represents the approach of the wider international community. It
recognises the best interests of the child and guarantees the stability of the
parent and child relationship. The function of the law is to regulate stable
family and social relations. In this regard, the integration model relies on the
parental and welfare imperatives to ensure a firm, solid and permanent parent-
child relationship.
Unfortunately, the Botswana adoption regime is at odds with the
integration model. It is inchoate and bifurcated in character, maintaining legal
obligations with the biological and adoptive families at the same time.
Further, the Botswana adoption regime is unstable and creates uncertainty by
subjecting the parent-child relationship to summary alteration by permitting
106 Barth, op. cit., p. 635.

107 L. Schafer, op. cit., p. 138.
subsequent sexual relations and even marriage. The social consequences of

this unstable and variegated relationship are worse still, since the instability
referred to in this situation does not necessarily result from annulment of the
adoption order. Such sexual relations within the family may potentially create
serious social consequences. This can result in the steering of passions and
breaking up of marriages and family units. The fact that an adoptive parent
may engage the adoptive child in an amorous relationship undermines joint
adoption and the joint exercise of parental rights thereby making adoption
inconsistent with permanent parenthood. The Botswana Adoption Act
deprives the child from inheriting property of the adoptive family, but entitles
her to the property of the biological family. Clearly, the Botswana Adoption
Act does not view adoption as creating legal family relations. Rather, it
creates an informal system of custody of the child by the adoptive parents.
This regime is inconsistent with the best interests of the child. The Act is out-
dated and the adoption regime requires urgent reform in line with the
integration model.
59
NOTES
Judicial protection of women’s rights in Nigeria: The

regrettable decision in Mojekwu v Iwuchukwu
I.N. Eme Worugji* and R.O. Ugbe**
ABSTRACT
This note analyses the Supreme Court opinion in Mojekwu v Iwuchukwu in
which the Nigerian apex court opined that the oli-ekpe custom which denies
women right of inheritance is not repugnant to natural justice, equity and good
conscience, and its implication for the protection of women’s rights in Nigeria.
It argues that the Supreme Court’s opinion in this case is not only a clog on the
judicial activism in the protection of women’s right but also a neglect of its role
as a watch-dog in the protection of women’s rights in Nigeria. This article
therefore calls for a removal of this clog through legislative intervention to
provide a clear direction in the judicial protection of women’s rights. This is
necessary, since the Supreme Court is the court of last resort in Nigeria and all
other courts are bound by its views on any matter.
1. INTRODUCTION
Although customary law and practice is a major source of law in Nigeria, its
patriarchal tradition has, in some cases, remained in conflict with women’s
rights protection regime. This has remained so in spite of the Constitutional
provisions on non-discrimination, National Policy on Gender Equality and
Equity and the international human rights laws. This is the focus of this article.
The article enquires into the Nigerian Supreme Court opinion in Mojekwu v
Iwuchukwu1 in which the apex court opined that the oli-ekpe customary law
and practice which denies women right of inheritance is a valid custom and that
it is not repugnant to natural justice, equity and good conscience.
The article starts its discussion by highlighting the legal and policy
framework upon which the protection of women’s rights in Nigeria is
anchored, the etiology of Mojekwu’s case from the High Court to the Court of
Appeal, and the case’s impact on judicial protection of women’s rights. This is
followed by a discussion of the judgment of the Supreme Court and an
*1 LLM (Essex) Ph. D (Ibadan), Associate Professor of Law (Reader), Faculty of Law, University of
Calabar, Nigeria. Email: ineme2003@yahoo.co.uk.
** LLM (Jos) Ph.D Candidate, University of Jos, Lecturer, Faculty of Law, University of Calabar, Nigeria.
1 (2004) 11 NWLR (pt 883) 196. This is an appeal from a decision of the Court of Appeal, Enugu Division
delivered on 10 April, 1999 and reported as Augustine Nwafor Mojekwu v Caroline Mgbafor O. Mojekwu
(1997) 7 NWLR (pt 512) 283. Mrs Theresa Iwuchukwu was substituted for Caroline Mojekwu who died
in course of the appeal at the Supreme Court.
analysis of the implications of the judgment for the protection of women’s

rights and the role of the Supreme Court as a watchdog for the protection of
women’s rights.
2. LEGAL AND POLICY FRAMEWORK
The United Nations Charter, the Universal Declaration of Human Rights2 and
the UN Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW, 1979), which came into force in 1981, are the bases upon
which the protection of women’s rights as an international agenda rests. They
provide the standard for comparison by which the status and rights of women
in any society can be evaluated. Nigeria, like most other African States, has not
only ratified this document but has formulated policies for its implementation.3
At the regional and national levels, the African Charter on Human and Peoples’
Rights (1981) provides explicit provisions for the protection of women’s rights
in the society.4 The Charter is part of the municipal law in Nigeria hence
provides a stronger normative standard for the protection of women’s rights
alongside the Constitution and the CEDAW.5 It emphasises the equality of
treatment of men and women in the society.6 The Protocol to the African
Charter on Human and Peoples’ Rights of Women in Africa (2003) provides
further impetus for the Protection of Women’s Rights in Nigeria.7 The primary
objective of the Protocol, like the CEDAW, is to ensure that the rights of
women are promoted and protected in order to enable them to enjoy all their
human rights. The Protocol has a range of rights which includes the right to
inheritance among others.8 The Protocol came into force in 2004.
The 1999 Constitution of Nigeria is replete with provisions on
gender equality and protection of women’s rights. The Fundamental
Objectives and Directive Principles of State Policy, Chapter II of the 1999
Constitution in Section 17(1) provides that “the state social order is founded
on ideals of social objectives freedom, equality and justice”. Subsection 2
maintains that “in furtherance of social order (a) every citizen shall have
equality of rights, obligation and opportunities before the law”. Subsection 3
provides:
2 See Articles (13); 3 and 55(c) of the UN Charter; and 2, and 7 of UNDHR respectively. The writer is not
oblivious of The Convention on the Elimination of all forms of Violence Against Women (CEVAW)
3 Nigeria ratified the CEDAW in 1985.
4 See Articles 1 and 2 of the African Charter on Human and People’s Rights.
5 African Charter on Human and People’s (Enforcement and Ratification) Act, 2004 Cap.
6 See Article 18(3) of the African Charter. It provides that the State parties shall ensure the elimination of
every discrimination against women and also ensure the protection of the rights of women as stipulated in
International Declaration and Conventions.
7 See also Article 2 of the Protocol to the African Charter on Human and people’s rights of Women in
Africa under which the state parties are under obligation for the elimination of discrimination against
women.
8 See generally articles 3 – 21 of the Protocol.
MOJEKWU V IWUCHUKWU 61
“The state shall direct its policies towards ensuring that-All citizens,
without discrimination on any ground whatsoever, have the
opportunity for securing adequate means of livelihood ...”
Even though this Section is also not enforceable, it provides the basis
for the promotion of human rights and the direction of state policy on
protection of human rights.
The fundamental rights provisions of the Constitution, at Section 42,
provides the right to freedom from discrimination. Section 42(1) provides
thus:
“A citizen of Nigeria of a particular community, ethnic group, place

of origin, sex, religion or political opinion shall not, by reason only
that he is such a person –
(a) Be subjected either expressly by, or in the political application
of, any law in force in Nigeria or any executive or administrative
action of the government, to disabilities or restrictions to which
citizens of Nigeria of other communities, ethnic groups, places of
origin, sex, religions or political opinions are not made subject: or
(b) Be accorded either expressly by, or in the practical application
of, any law in force in Nigeria or any such executive or
administrative action, any privilege or advantage that is not
accorded to citizens of Nigeria of other communities, ethnic groups,
places of origin, sex, religions or political opinions.”
Subsection (2) emphasises that:
“No citizen of Nigeria shall be subjected to any liability or

deprivation merely by reason of the circumstances of his birth.”
Section 43 of the said Constitution also guarantees the right to

acquire and own property anywhere in Nigeria. This applies to all, irrespective
of sex or circumstances of birth as well. These provisions are justiciable. They
provide the legal basis upon which certain violations of human rights could be
challenged.
Furthermore, to show its commitment to the promotion and
protection of women’s rights, Nigeria has formulated the National Policy on
Women, 2000 and the National Gender Policy 2006.9 These National Policies
draw heavily from the international initiatives relating to women in
development and aims at ensuring, among other things, the elimination of all
forms of discrimination against women. The National Gender Policy (NGP)
9 Published by the Federal Ministry of Women Affairs and Social Development.

2006 in its introductory paragraphs emphasises that:
“Promoting gender equality is now globally accepted as a

development strategy for reducing poverty level among women and
men, improving health and living standards and enhancing
efficiency in public investment. The attainment of gender equality is
not only seen as an end in itself and human right issue, but as a
prerequisite for the achievement for sustainable development.”
It must further be noted that the continued sustenance of any

customary rules and practices within the legal system is dependent upon their
being in consonance with natural justice, equity, good conscience, public
policy and not in conflict with any written law for the time being in force.10
Moreover, section 21 of the Constitution is emphatic that the state shall
protect, preserve and promote the Nigerian culture which enhance human
dignity and are consistent with the fundamental objectives provided in it.
The fundamental rights provisions of the Constitution and the
National Policy on Gender as well as the international human rights standards
ratified by Nigeria provide the plank upon which judicial protection of
women’s rights in Nigeria is advocated. Moreover, the justice, equity, good
conscience and public policy of the present time is not only in favour of
reforming the customary laws and practices but greatly insisting on the
protection of women’s rights in the society.
The judiciary in some other African countries has also relied on their
national Constitutions and influenced by the international human rights
standards to protect women’s rights in their national jurisdictions.11 The need
for Nigeria to ensure the elimination of discrimination against women as
assumed under international treaties to which they have acceded cannot be
over-emphasised.12 It is within this context that the Supreme Court
pronouncement in Mojekwu v Iwuchukwu and the implication for protection
of women’s rights in Nigeria is analysed.
Except where there is a will, the extent to which the courts have
interfered to guarantee the protection of inheritance rights of women depends
largely on the customary law applicable in the various communities. This has
10 Section 14 (3) of the Evidence Act Cap E 14 Law of Federation of Nigeria, 2004. Moreover, the
Constitution is written law and the grundnorm in Nigeria. Any other law inconsistent with it is void to the
extent of the inconsistency. See also article 2(7) of the CEDAW
11 See Chinkin Christine (1999) Supra where the learned author discussed the judicial responses to the
protection of womens’ right in some Commonwealth countries. See also the Commonwealth Human
Right Law Digest (2010) vol. 6 no 3 pp302-303 and Javaid Rehman International Human Right Law
(England:Pearson, 2010) p 32 for some of these cases.
12 D Coker – Appiah, & J Foster, Advocacy for Better Implementation of Women’s Rights in Ghana. Women
in Law and Development in Africa (WILDAF) Project Ghana 2002. www.wildaf.co.org. visited May 13,
2005; GW Mugwanya, ‘Augmenting the struggle for Gender Equality in Uganda: A Case for the
domestication of International Human Rights Standards’. (2002), 12.4 African Journal of International
and Comparative Law 754 – 798.
remained so in spite of the constitutional provisions on non-discrimination,

and the national policy on gender equality and equity and the fact that Nigeria
has ratified the CEDAW, and other regional conventions on women’s rights.
It is against this background that the appellant being a woman in Mojekwu v
Iwuchukwu came to the court to enforce her right of inheritance to family
property. It must be noted that the protection of rights of inheritance is an
aspect of protection of property rights. Lack of property rights under the
customary law for women is one of the fundamental challenges hindering
active participation of women in economic development.
3. THE FACTS AND JUDGMENT IN MOJEKWU V.

IWUCHUKWU’S CASE
At the High Court, Onitsha, the appellant Iwuchukwu sued one Mrs Caroline
Mgbafor Mojekwu who, having died, was substituted by the respondent, her
daughter. The appellant claimed a declaration that he was entitled to the
statutory right of occupancy of the property situated at and known as No. 61
Venn Road, South, Onitsha in accordance with Nnewi native law and custom;
a declaration that he, being the recognised kola tenant of the Mgbelekeke
family of Onitsha kola tenancy; general damages for trespass; injunction and
an account of rents collected by the defendant from the property from the
month of April, 1982 until delivery of judgment.
According to the appellant, his only Uncle Okechukwu Mojekwu
acquired a parcel of land from the Mgbelekeke family of Onitsha under
kolanut tenancy and built a house on it which was known as No. 61 Venn
Road, South, Onitsha. The man died in 1944 and was survived by two
daughters and a son called Patrick Adina Okechukwu Mojekwu. The
appellant averred that his own father, the only brother of Okechukwu
Mojekwu died in 1963 while Patrick, the only son of his said uncle, died
during the Nigerian civil war without any child. The appellant claimed that by
virtue of Nnewi native law and custom, he succeeded to the estate of his late
uncle Okechukwu Mojekwu, and was the head of the Mojekwu family. He
laid action to the property by virtue of a document, exhibit 1, he got from the
Mgbelekeke family.
The mother of late Patrick was the defendant at the High Court. The
respondent who was substituted for the defendant at the Supreme Court was
one of her two daughters.
The defendant’s case was that the property in dispute had passed to
late Patrick and that it later passed to Chukwuemeka Okechukwu, the alleged
infant son of late Patrick. The defendant claimed that when the house built by
her husband went into ruins during the Nigerian civil war, she built it, without
any reference to the appellant, with her own money and that she put in all the
fee-paying tenants. The defendant averred that the appellant misrepresented

facts to the Mgbelekeke family to recognise him as the person entitled to
continue the kolanut tenancy; that the recognition of the appellant where the
male and female issues of the deceased kola tenant are living is contrary to the
Onitsha customary kola tenancy system of devolution of property on death;
and that the native law and custom of inheritance of Onitsha applied to the
case where the land in dispute is situate and not the native law and custom of
Nnewi.
At the trial, the evidence led on behalf of the appellant was that under
Nnewi custom, a male child inherits property; and, if there is no male child,
the brother of the deceased owner of the property inherits it even where the
man is survived by female children. In either case, the person who so inherits
is called the “oli-ekpe”. He inherits the assets and liabilities of the deceased.
However, from the record of proceedings when the suit was earlier heard by
Onwuamaegbu, J. which was tendered in support of the appellant’s case, the
PW6, who testified on behalf of the appellant stated under cross-examination
that the children of kola tenant of the Mgbelekeke family inherited the kola
tenancy such that where the deceased had no male child, the female child
would inherit the tenancy. The court considered whether Patrick was ever
married and bore a son in 1973. The first defence witness to testify for the
defendant claimed that Patrick had a son called Emeka who was born on 26
August, 1973. But she also stated that she last saw Patrick in 1970 and that
when she met him, he told her he was going to collect his things which was
the last time she saw him. At the time DW1 testified on 6 November, 1992
and 23 April, 1993, she maintained that Patrick had not died. One James
Okoronkwo also testified that Patrick who was in the Biafran Army died
during the war on 25 August, 1969 at Ikot Ekpene sector and was buried at the
Military Cemetery, Nnewi. James Okoronkwo said he was his batsman and
witnessed the burial.
At the conclusion of the trial, the High Court dismissed the suit. It
held that there was no evidence in support of the relief sought by the appellant
that under the Onitsha kola tenancy he is entitled to the land in dispute. The
trial court held that it did not believe that Patrick died in August, 1969. It
found that Patrick was married to one Jemimah in 1968 and Patrick was the
father of Emeka who was born in 1973.
Aggrieved by the decision of the trial court, the appellant appealed to
the Court of Appeal. The Court of Appeal came to the conclusion that the
applicable law was the lex situs and that the lex situs was the kola tenancy law
and not the personal law of the parties, which was the Nnewi custom of “oli-
ekpe”. The court affirmed the findings of the trial court that Patrick was the
father of Emeka born in 1973, and then dismissed the appeal.
The Court of Appeal further declared the “oli-ekpe” custom of
Nnewi by which a surviving brother of a deceased is by custom allowed to

inherit property of the late deceased brother because the surviving wife has no
son repugnant to natural justice, equity and good conscience. Niki Tobi JCA
(as he then was), commenting on the uncivilised nature of the Oli-ekpe
custom by way of obiter, noted as follows:
“Day after day, month after month and year after year, we hear of
and read about customs which discriminate against the womenfolk
in this country. They are regarded as inferior to the menfolk. Why
should it be so? Also human beings – male and females – are born
into a free world and are expected to participate freely, without any
inhibition on grounds of sex; and that is constitutional. Any form of
societal discrimination on grounds of sex, apart from being
unconstitutional, is antithesis to a society built on the tenets of
democracy which we have freely chosen as a people. We need not
travel all the way to Beijing to know that some of our customs,
including the Nnewi ‘Oli-ekpe’ custom relied upon by the appellant
are not consistent with our civilized world in which we all live
today. In my humble view, it is the monopoly of God to determine
the sex of a baby and not the parents. Although the scientific world
disagrees with this divine truth, I believe that God, the creator of
human beings, is also the final authority of who should be male and
female. Accordingly for a custom or customary law to discriminate
against a particular sex is to say the least an affront on the Almighty
God Himself. Let nobody do such a thing. On my part, I have no
difficulty in holding that the ‘Oli-ekpe’ custom of Nnewi is
repugnant to natural justice, equity and good conscience.”13
This pronouncement of Niki Tobi, JCA opened up a new horizon in

the jurisprudence of protection of women’s right in Nigeria. It not only
acknowledged the fact of the relevance of the emergent standards and
aspirations derivable from international human rights law but gave further
impetus to the application of the non-discrimination clause in the Nigerian
Constitution, the promotion of gender equality and the protection of women’s
rights generally.
One of the cases in which the Court of Appeal’s pronouncement in
Mojekwu’s case provided further impetus for the protection of women’s rights
and gender equality is Muojekwu v Ejikeme.14 The issue before the court was
whether the Nrachi custom of Nnewi which enables a man to keep one of his
13 Per Niki Tobi, JCA (as he then was) p. 305. This is the Court of Appeal opinion that provoked the
Supreme Court resentment under review.
14 Mojekwu v Ejikeme (2000)5 NWLR (pt 657) 403, Uke v. Iro (2001) 17 WRN 172, Ukeje v Ukeje (2001)
17 WRN 142.
daughters unmarried perpetually under his roof to raise issues for him is not
repugnant to natural justice, equity and good conscience, and whether the
appellants are entitled to inherit the estate of Reuben Muojekwu who died
intestate without any surviving male issue.
The justices of appeal, while dismissing the appeal, unanimously
renounced the nrachi custom as inconsistent with public policy and repugnant
to natural justice, equity and good conscience and unconstitutional. Fabiyi,
JCA, maintained, thus:
“I must express the point here by which I will continue to stand that
human nature, in its most ‘exuberant prime and infinite telepathy’
cannot support the idea that a woman can take the place of a man
and be procreating for her father via a mundane custom. She stays in
the father’s house and cannot marry for the rest of her life even if
she sees a honest man who loves her. I cannot, and do not believe
that the society, as it is presently constituted, will for long acquiesce,
in a conclusion so ludicrous, ridiculous, unrealistic and merciless
more especially as we march on into the next millennium. The
polity, as presently constituted, cannot, in my view, contain what
Nrachi custom stands for. It is not neat. It is an antithesis to that
which is wholesome and forward looking. It cannot, and should not,
be allowed to rear its ugly head any longer. It should die a natural
death and be buried. It should not be allowed to resurrect. The
custom is perfidious and the petrifying odour smells to high
heavens. It is an old time custom. And, ‘behold, the old order must
change and become new’. I strongly feel that Nrachi custom is no
longer worthy of application with modern day trends. No elite
would agree that it be performed on his daughter as at now when
making of a Will can readily take care of situations calling for care.
Nrachi custom is rendered otiose, as it is absurd and fantastic. In the
main, it is a farce, a sort of window dressing designed to oppress
and cheat the women-folk. I have no hesitation in declaring that
Nrachi custom is against the dictates of equity. It is no doubt
repugnant and contrary to natural justice, equity and good
conscience. It is not worthy of application and I declare it as being
unenforceable in the judicial realm and no court of record should
countenance or take judicial notice of it. In the result, a female child
does not need the performance of Nrachi ceremony on her to be
entitled to inherit her deceased father’s estate.”15
15 Ibid per Fabiyi, JCA pp 422-423.

Olagunju, JCA, in similar words said:
“The practice is preposterous as compromising the basic tenets of

family life that institutionalized marriage as the foundation of that
fulfillment. The contribution of the womenfolk as a procreative
medium in the annals of human race imposes a duty on the mankind
to accord to that special breed of Homo sapiens a dignity and
respect for which advanced culture provides a model worth
emulating. This cannot be reconciled with trivializing the virtue of
adolescence which the practice of Nrachi ceremony foisted on the
youth at the formative stage of life when they can hardly appreciate
the burden of the custom in all its ramifications. True enough, it
cannot be gainsaid that at the time of its conception ‘Nrachi
ceremony’ was designed for the purpose of circumventing the
harshness of ‘Ili-Ekpe custom’ that was so invaluable to the cultural,
economic and social aspirations of an environment which called Ili-
Ekpe into play that is totally different from the aspirations of the
present era. But with the passage of time and cross-fertilization of
values with other cultures of the world ‘Ili-Ekpe custom’ for the
iniquity of which ‘Nrachi ceremony’ provides a panacea has
become anachronistic and sheer customary relics for the modern
times that is yearning desperately for some booster to buy up the
low level of chastity that pervades the permissive society which the
practice of Nrachi compounds. That the twin practice which has all
the trimmings of a primordial evolution should survive the 20th
century with only a few days to run is one irony of the legacy on the
cultural horizon that will be bequeathed to the new millennium. It is
retrograde. However, since the abrogation of such obnoxious
practice rests absolutely with the legislature of the state that still
clings to such absurdity and the burden of containing the incidence
of its manifestations in judicial matters lies upon the apex court the
best that can be done at this level of judicial hierarchy is to shun the
practice as repugnant to natural justice, equity and good conscience
and, therefore, unenforceable hoping that sooner than later the
authorities that are in a position to do so will hasten the interment of
a custom that has outlived its usefulness and has become counter-
productive.”16
Niki Tobi, JCA, (as he then was) while also acknowledging the
unconstitutionality and repugnancy of this custom extended the invalidating
grounds to its violation to the CEDAW when he stated:
16 Ibid per Ologunju JCA pp. 438 - 439.

“… the Nrachi ceremony … is inconsistent with public policy,

repugnant to natural justice, equity and good conscience. That is not
all. The Nrachi ceremony encourages promiscuity and prostitution,
the latter condemned in Article 6 of the Convention on the
Elimination of All Forms of Discrimination Against Women
(CEDAW)…”.17
Similarly, in Ukeje v Ukeje18 the Court of Appeal declared an Igbo

native law and custom that disentitles a female from sharing in her deceased
father’s estate as unconstitutional. Galadima, JCA, restated this when he said:
“I have held the opinion that the Igbo native law and custom which
disentitles a female whether born in or out of wedlock from sharing
in her deceased father’s estate is void as it conflicts with section 39
(1)(a) and 39(2) of the Constitution of the Federal Republic of
Nigeria.”19
Still on the need to maintain gender equality and non-discrimination

in all spheres of life, the Court of Appeal in Uke v Iro20 declared
unconstitutional a rule of customary law which precludes women from giving
evidence in an action for title to land. According to Pat Achelonu, JCA, (as he
then was):
“They argued that by Nneato Nnewi custom, a woman cannot give

evidence in relation to title to land. This assertion or argument is
oblivious of constitutional provision which guarantees equal rights
and protection under the law. The right of sexes are protected under
the organic law of the land. I refer to section 39 (1) of the 1979
Nigerian Constitution which states as follows: … this same
provision is now repeated in section 41 (1) of the 1999 constitution.
Any customary law which flies against decency and is not
consonant with notions, beliefs or practices of what is acceptable in
a court where the rule of law is the order of the day should not find
its way in our jurisprudence and should be disregarded and
dismissed as amounting to nothing. Any laws or customs that seek
to relegate women to the status of a second class citizen thus
depriving them of their invaluable and constitutionally guaranteed
rights are laws and customs fit for the garbage and consigned to
history. … A custom which strives to deprive a woman of
17 Ibid per Niki- Tobi JCA (as he then was) p. 432.

18 (2001) 17 WRN 142.
19 (2001) 27 WRN 142 at 160, per Galadima JCA.
20 (2001) 17 WRN 172.
constitutionally guaranteed right is otiose and offends the provisions

that guarantee equal protection under the law.”21
There is no doubt that the position of the Court of Appeal since after
its judgment and pronouncement of Niki Tobi JCA (as he then was) has
remained consistent in dealing with repugnant issues and preserving the
fundamental rights of women. They declared repugnant any provisions of the
customary law which impinge the enjoyment of women’s rights as being
unreasonable and unjustifiable in a democratic society which Nigeria is
consciously trying to establish in its body polity. The Court of Appeal in these
cases not only played the role of interpreting the law but kept faith with the
role of the judiciary as being the public conscience and common sense. Issues
of invidious and non-invidious gender-based discriminations were addressed.
4. THE SUPREME COURT’S DECISION IN

MOJEKWU’S CASE
The appellant, dissatisfied with the judgment of Court of Appeal, appealed to

the Supreme Court where he contended among other issues, that the Court was
wrong in declaring the ‘oli-ekpe’ custom of Nnewi repugnant to natural justice,
equity and good conscience and therefore, not a valid custom to be enforced by
the courts. The Supreme Court, however, upheld the judgment of the Court of
Appeal in favour of the respondent as the woman in the particular case was not
excluded from inheritance of the deceased property by the customary law of
their community. Moreover, the pronouncement of Niki Tobi JCA, according
to the Supreme Court, had nothing to do with the merits of the case and did not
occasion any miscarriage of Justice.
But the Supreme Court maintained that the language used by the
Court of Appeal in declaring the custom repugnant to natural justice was so
general, far reaching and capable of causing some strong feelings against all
customs which failed to accept that women perform certain roles. Uwaifo JSC
in disapproving the pronouncement of Court of Appeal noted the concern of
the Court of Appeal, about the discriminatory nature of the custom in issue but
felt that the Court of Appeal should have been cautious in its approach in
declaring the custom invalid. In the words of Uwaifo JSC:
“The learned justice of Appeal was no doubt concerned about the

perceived discrimination directed against women by the said Nnewi
‘oli-ekpe’ custom and that is quite understandable. But the language
used made the pronouncement so general and far-reaching that it
21 Ibid per Pat Acholonu JCA (as he then was) pp. 176 – 177. His Lordship in this case also referred to the
pronouncement by Niki- Tobi JCA in Mojekwu v Mojekwu 1997) in reaching this conclusion.
seems to cavil at, and it is capable of causing strong feelings against,

all customs which fail to recognize a role for women. For instance,
customs and traditions of some communities which do not permit
women to be natural rulers or family heads. The import is that those
communities stand to be condemned without a hearing from such
fundamental customs and tradition they practice by the system by
which they run their native communities … the underlining crusade
in that pronouncement went too far to stir up a real hornet’s nest
even if it had been made upon an issue joined by the parties, or
properly raised and argued. I find myself unable to allow that
pronouncement to stand in the circumstances, and accordingly I
disapprove of it as unwarranted.”22
Besides, the Supreme Court noted the underlining crusade in the

pronouncement of Niki Tobi JCA as based on English Law concepts or some
principles of individual rights as understood in any other legal system. The
court therefore concluded that the concern should not be the basis upon which
our customary law is evaluated. The understanding of our home
circumstances before deciding whether or not such custom should be declared
repugnant to natural justice, equity and good conscience. This, Uwaifo, JSC,
emphasized, when he said:
“It must be remembered that a custom cannot be said to be

repugnant to natural justice, equity and good conscience just
because it is inconsistent with English law concept or some
principle of individual right as understood in any other legal system
… so the Court must hear the parties and act with solemn
deliberation over all the circumstances before declaring or
pronouncing a custom repugnant. Admittedly, there may be no
difficulty in reaching a decision in some obviously outrageous or
needlessly discriminatory customs. In some other cases, it may not
be so easy. That is where the repugnancy principle should be
dispassionately considered and applied. In the present case, because
of the circumstances in which it was done, I cannot see any
justification for the court below to pronounce that the Nnewi native
custom of (‘oli-ekpe) was repugnant to natural justice equity and
good Conscience.”23
It is submitted, that the cautious approach advocated by the Supreme

Court underscores both the rationality and compelling public policy need for
22 Ibid at p.217.
23 (2004) 11 NWLR (pt 883) 196 at 216 – 217.
protection of women’s rights upon which Niki Tobi’s pronouncement is

anchored. It ignored the fact that the customary law and practice in issue is
one which denies women the inheritance rights to deceased father’s property
generally, and also the general unconstitutionality of the custom as it is
discriminatory under the Nigerian Constitution. The allusion that the Court of
Appeal was influenced by “English law concept or some principle of
individual right as understood in any other legal system”, with all due respect,
is a clear indication of the Supreme Court’s refusal to accept changing times,
circumstances and environment. It must be noted that Niki Tobi’s
pronouncement is not only sound in law but informed by the public policy of
the state. Apart from the non-discrimination clause in the constitution, its
credence can also be found in the National Gender Policy. It is a call for the
prevalence of the rule of law in all circumstances. It remains a pronouncement
that inheres in law as an instrument of social engineering to promote equality
and gender equality in our social relations generally.
It is further submitted that the Supreme Court itself went too far
when it maintained that the pronouncement of Court of Appeal is capable of
causing some strong feelings against all customs which failed to recognize a
role for women and the type of example relied upon. The issue in this case is
that of means of livelihood and deprivation and not mere role playing. Even if
the issue has been ascription of roles, so long as it is discriminatory it will be
unconstitutional.
The position of Niki-Tobi, JCA, is most profitable and
commendable. It no doubt sets the trail for judicial intervention in women’s
rights violations under the customary law. It clearly acknowledges the law as
a means to an end, that end being the society that should operate on equality
and not an end in itself. An approach that is not responsive to changing times
and environment “would not only break the law but the society with it”. It is
this use of the law to avert social injustice and to adapt the law to changing
times that Niki-Tobi strongly advocates in the judgment. It is simply a
pronouncement directed at guaranteeing just polity, combining both societal
ideals, policies and the law. This is a task the Supreme Court ought to promote
in this case. Protection of women’s rights is not only an issue of law but policy
in modern times.
The Nigerian Constitution, as noted, prohibits discrimination on
grounds of sex. It, also outlaws any law which is inconsistent with the
provisions of the Constitution. Customary law is no exception in this regard.
The African Charter is part of the domestic law in Nigeria and, by necessary
implication, the Protocol to the Charter and the CEDAW. It stands to reason,
therefore, that all customary laws and practices which discriminate against
women are unconstitutional and ought to be declared null and void. The
proactive judicial stance of the Court of Appeal in Mojekwu v Mojekwu,
Mjekwu v Ejikeme, Uke v Iro, Ukeje v Ukeje and Asika v Atuanya cannot be
overemphasized.
The Court of Appeal is blazing a trail for judicial protection of
women’s rights and gender equality in Nigeria drawing its inspiration from
the Constitution and the international human rights standards. This is a
commendable approach.
There is no doubt that the Supreme Court view in this case has
measure of uncertainty on the question of inheritance rights of women under
the customary law in some communities in Nigeria. The Supreme Court is
making inroads through some of the recent judicially pro-active views on
protection of women’s rights and gender equality under the Nigerian legal
system.24
5. CONCLUSION
The Supreme Court’s cautious approach remains a clog on the judicial

protection of women’s rights in Nigeria. This is particularly so since the
Supreme Court is the court of last resort. There is, therefore, the need for the
Supreme Court to reverse itself in this regard. There is, also, the need for
legislative intervention for the protection of women’s rights in family relations.
This will require the domestication of the CEDAW and other international
human rights standards in favour of women’s rights in Nigeria. There is also
need for giving legislative backing to some aspects of the Fundamental
Objectives and Directive Principles of the 1999 Constitution, which are for
now not justiciable, in favour of eliminating obnoxious customs; the same
applies to the National Gender Policy.25
It is hoped that this will provide a favourable legal environment for
effective protection of women’s rights and gender equality in Nigeria. It will
eliminate the uncertainty which the Supreme Court view and approach has
created in favour of judicial protection of women’s rights and gender equality
in Nigeria.
24 See supra footnote 14. O.V.C Ikpeze, Gender Dynamics of Inheritance Rights in Nigeria Need for
Women Empowerment (Onitsha: FOLMECH Pub). 2009, p.194.
25 O.V.C. Ikpeze supra p.63. Legislation in this regard will also give effect to article 2(7) of CEDAW which
requires governments to take appropriate measures including legislation to modify, or abolish all existing
laws, customs or practices which constitute discrimination against women. See also article 2(1) Protocol
to the African Charter on Human and Peoples’ Rights on the Rights of women in Africa.

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UNIVERSITY OF BOTSWANA LAW JOURNAL

VOLUME 16 JUNE 2013

Judicial review of the exercise of presidential power in Africa .................3

Global antitrust and competition law: From a de facto system of ............15

Adoption of children in Botswana in a comparative perspective: ............37

Judicial protection of women’s rights in Nigeria: The regrettable ...........59

Judicial review of the exercise of presidential power in Africa

The judicial review of executive power is an important requirement of

*1 Associate Professor of Law University of Botswana nwauche@hotmail.com.

2. ATTORNEY GENERAL V MUTUNA AND THREE

“We are satisfied that bearing in mind the authoritative position of

We now turn to an evaluation whether the decision of the Supreme

reading of implied conditions as being within the province of what parliament

“[t]he answer in a given case is not provided by the statement that

It is also instructive to note that many commonwealth legal systems

terms of the law which authorized the making of that decision or

In determining illegality as a ground of reviewing the exercise of

“Article 91 and 98 without doubt are interconnected. Article 91

It is submitted that the need to preserve judicial independence itself

can do no wrong because he is in charge of everything is to abandon this

3. A BRIEF COMPARATIVE OVERVIEW OF THE

3.1 South Africa

Section 33(1) of the 1996 Constitution of the Republic of South Africa

affected by administrative action has the right to be given written reasons.

“It is a requirement of the rule of law that the exercise of public

The principle of legality therefore provides a safety net to catch the

13 2000 1 SA 1 (CC). Hereafter SARFU.

“The Executive and Parliament do have monopoly on issues of

With respect to Ghana, section 23 of the 1992 Constitution requires that

In Namibia, article 18 of the 1990 Constitution requires administrative bodies

For Malawi, administrative justice is protected by section 43 of the 1994

20 [2009] SCGLR 242.

It further appears that Malawian courts in some cases- Mkandawire v

4. CONCLUSION AND RECOMMENDATIONS

Mutuna reveals the ineffectiveness of the Zambian common law in

24 [1997] 2 MLR 1 9 (HC).

accordance with certain implied standards. Without these implied standards

Global antitrust and competition law: From a de facto system

Currently, a de facto global antitrust system, constructed on the basis of

1. THE RISE OF GLOBAL ANTITRUST

a common rationale, which focuses on consumer well-being,7 and common

2. COMPETING ANTITRUST LOGICS

If one surveys antitrust/competition law one fairly quickly notes apparent

2.1 “Naïve” U.S. Antitrust Logic: Ca. 1880-

2.2 Marxism and Antitrust: 1848-1989

A competing economic view to free market capitalism is Marxism. The

11 Sherman Act, § 1, 15 U.S.C. § 1.

capitalist economies in revolution due to ever greater economic cyclicty.14

2.3 Catholic Competition Theory and Religious

Yet another view on monopoly is the Catholic, i.e. Corporatist view. It is

2.3.1 Religious Opposition to Trade

Historically, religious perspectives on the economy have tended to take anti-

2.3.2 Religious Opposition to Money at Interest (Usury)

The next example of a religious opposition to economic practice is the idea of

22 New Testament, Matthew, 25:14-30.

times and places, usury is defined as “interest taken on interest” i.e.

2.3.3 Comparative Advertising

Comparative advertising directly compares the qualities of two different

2.3.4 Religious Opposition to Speculation

Finally, “speculation” is also attacked, often on religious grounds.28

are two other economic practices generally opposed on religious grounds.

2.4 Corporatism: 1920-

2.5 E. E.U. Competition Theory 1957-

Rowland JV Cole,* Jimcall Pfumorodze and Hauwa Nuru*