UCC Law Journal

SHIELDING DIRECTING MINDS OF COMPANIES AGAINST LIABILITY:

Reginald Nii Odoi Odoi — 2024-07-01

Corporate Governance involves how companies are controlled and the role directors play in running the affairs of companies. Directors owe a fiduciary duty to the companies they administer and are required to observe the utmost good faith in their dealings. Where a director breaches the duties imposed by law or exceeds the powers so conferred, the director is to be personally liable for the damages caused actionable through fiduciary-duty litigation. This paper argues that though directors owe a duty of care, the “business judgment rule” or “business judgment presumption” should serve as a basis to shield directors from liability in cases where the directors are reasonably informed and not self-interested in the making of the business decision. The paper discovers that, unlike other jurisdictions, the Companies Act of Ghana does not codify the business judgment rule. This paper contends that codifying the business judgment rule in Ghana would strike a workable balance between the role of a director in exercising independent and unrestrained judgment on one hand, whilst also exacting accountability on the other hand, to safeguard the interests of the stakeholders of the company. As a way of developing a thesis upon which director conduct and compliance could be measured, this paper recommends that practical guidelines of best practice for directors should be formulated by the courts using the National Corporate Governance Code (National Code) developed by the Institute of Directors of Ghana as a guide. This is significant because, in order to achieve economic efficiency of companies, it is imperative to not hold directors liable for every business decision they make

MICROFINANCE REGULATION IN GHANA:

James Atta Peprah — 2024-07-01

A well-functioning and regulated financial system is vital for businesses, consumers and the economy. Therefore, regulating microfinance activities is crucial to ensure institutional sustainability and customer protection. We explore the consequences of microfinance regulation in Ghana using the desk review approach to document lessons that could be learnt. Our preliminary findings suggest that there are some learning opportunities. These are regulatory methodology mismatch, mission drift tension, and the collapse of potentially rescuable institutions. Additional lessons include a need for better governance, implementation of complementary laws and inadequate regulatory capacity. The paper offers policy recommendations for future regulatory architecture and design.

INTERNATIONAL LAW AND THE PEACEFUL SETTLEMENT OF DISPUTES

Kwadwo Addo Tuffuor Tuffuor — 2024-07-01

International law functions principally in maintaining the fabric of international relations, which reflects the overriding desire by states to resort to a supra-national power of legal mechanisms to resolve disputes that may arise among them on territorial claims without force and in a peaceful manner. The United Nations (UN), its Security Council, and its judicial organ - the International Court of Justice (ICJ) - were established after the Second World War primarily to achieve international peace and security. Consequently, the Constitutive Charter of the UN placed an obligation on member-states to resolve all disputes in a peaceful manner which was ostensibly geared towards forestalling the occurrence of another world war. Under the auspices of the UN, the world has achieved a comprehensive body of international law and dispute resolution mechanisms, some of which have helped to resolve disputes that would have otherwise threatened international peace and security. Despite this, scholars have paid less attention to how international law and the implementing agencies of the UN have contributed to global dispute settlement. This paper examines the significance of international law and its implementing agencies in the peaceful settlement of disputes. We argue that international law and its implementation agencies provide an effective framework for peaceful dispute settlement among nations, promoting global security and cooperation.

ADOPTING A STRICT LIABILITY APPROACH TOWARD GENOCIDE

Elizabeth Kanburi Bidzakin Bidzakin — 2024-07-01

The Genocide Convention lists intent as a critical element that must be proven to secure convictions for genocide. Many defendants have been acquitted or convicted of lesser crimes due to the difficulty in proving genocidal intent. The argument presented in this paper is that the large-scale negative impact of genocide on humanity should be considered when defining its scope in penal legislation. A fortiori, the crime of genocide should be given similar consideration to other crimes that have been classified as strict liability crimes due to their severity and cost to society. Intent as an element should, therefore, be deduced from the general purpose of the perpetrator’s acts. Although the strict legality principle is not perfect and has some flaws, it is still the most just, effective, coherent, persuasive, and proper reading of the genocide convention. The goal here is to contribute to the conversation on the limitations of genocidal intent to the effectiveness of the enforcement of the crime of genocide in international criminal law.

A CRITIQUE OF THE CONSTITUTIONALITY AND CONSTITUTIONALISATION OF THE RIGHT TO SELF-DETERMINATION UNDER THE NIGERIAN CONSTITUTION

Oluwaseye Oluwayomi Ikubanni Ikubanni — 2024-07-01

As the quest for self-determination in Nigeria surges to a record high in recent times, the Nigerian government has repeatedly adopted every means including the use of force to quell the agitations for this right on the basis that it violates the constitution and endangers the territorial integrity of Nigeria. The advocates of this right contend that it is an inalienable right that is recognized under international laws to which Nigeria is a signatory. Therefore, enforceable in Nigeria. This paper examined the constitutionality of the right to self-determination in Nigeria. It found that though the constitution of Nigeria emphasizes the indivisibility and indissolubility of Nigeria, there is a constitutional silence on the right to self-determination. The study found further that the amalgamation of the southern and northern protectorates in 1914, political and economic marginalisation, failure of federalism, and legitimacy question surrounding the 1999 constitution amongst others are factors responsible for the various agitations in the country. Moreso, there is no express affirmation or denial of the right to self-determination under the Nigerian constitution. The study thus concluded that the Nigerian constitution must take a decisive position on the legality of self-determination agitation in Nigeria instead of leaving the challenge to the judiciary

GHANA’S REGULATORY FRAMEWORK AND SUSTAINABILITY IN THE MINING SECTOR

David Asumda Asumda — 2024-07-01

The mining sector in Ghana predates independence and has, over the years, contributed significantly to Ghana’s socio-economic development through revenue generation, employment creation and increase in foreign direct investments. This can be attributed largely to the institution of comprehensive and attractive legal, fiscal and institutional frameworks by the Ghanaian Government, which have helped to attract investments into the mining industry. Nonetheless, lack of effective revenue mobilization, generous tax incentives, damaging environmental effects, and destruction of livelihoods of host communities, especially due to illegal mining activities, remain major challenges. Most of the problems associated with mining in Ghana are due mainly to a weak mining regulatory framework. Ghana has enacted the Minerals and Mining Act, 2006 (Act 703) (the Minerals and Mining Act), as amended in 2010, 2015, and 2019, as the basic law that regulates the mining sector, to improve the fiscal regime and to ensure effective regulation and sustainability of the mining industry. Even though Act 703 has been amended twice, and the Government has proposed a third amendment, previous amendments focused on “non-essential” areas, without special focus on the management of the environment for sustainability in the mining sector. Making the mining industry sustainable seems to have been addressed as an incidental. The Minerals and Mining Act has not undergone any major amendments to align it with regional frameworks, reflect international best practices and address sustainability challenges in the mining sector in Ghana. This paper reviews the key provisions of the Minerals and Mining Act, with a special focus on how the same facilitates environmental management for sustainability in the mining sector.

CONSTRAINTS TO THE RIGHTS AND PROTECTION OF PERSONS WITH DISABILITIES IN NIGERIA

Enobong Mbang Akpambang Akpambang — 2024-07-01

Persons with disabilities (PWDs) have been known to suffer various attitudinal and environmental barriers which hinder them from fully participating in their communities on equal terms with others. To address this predicament, Nigeria signed, ratified, and domesticated a number of global and regional instruments on disability rights, including the Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol. The essence of these instruments recognised by Nigeria are restatements of the centrality, inseparability, and correlation of all human rights and the necessity for PWDs to be assured of their full protection and enjoyment of fundamental liberties on an equal basis with others without prejudices. Unfortunately, discrimination and marginalisation against PWDs in Nigeria still persist. The crux of this article is to identify the constraints faced by PWDs in the pursuit of their guaranteed rights in Nigeria. This issue is vital because it is not enough for the Nigerian government to put in place normative framework endorsing the rights and protection of PWDs; such laws must indeed be implemented. The article adopted the normative legal research and analytical methods by examining various legal instruments on the protection of the rights of PWDs in Nigeria. The findings revealed that the inability of PWDs to access physical structures, social, economic, academic, and healthcare facilities are some of the constraints faced by PWDs. It is recommended, inter alia, that all laws and governmental policies must align with the endorsement of the rights and protection of PWDs and violators should be sanctioned appropriately.

COLLECTIVE INVESTMENT SCHEME AS A TOOL FOR ECONOMIC INCLUSION AND DEVELOPMENT IN NIGERIA

Irene Airen Aigbe Aigbe — 2024-07-01

There are two major challenges to doing business in Nigeria: lack of capital and managerial expertise. With the large population of Nigeria, and by implication, the size of her market, Collective Investment Scheme (CIS), as regulated under the Investment and Securities Act (ISA) 2007, provides the necessary platform to overcome the two challenges above. Where the two challenges are overcome, the CIS can be a tool for economic inclusion and development in Nigeria. This study, therefore, examines the Collective Investment Scheme (CIS) in Nigeria, a business package aimed at economic inclusion and development. CIS, regulated by the Securities and Exchange Commission, offers three types of schemes with potential benefits for investors and addressing housing deficits. The CIS is a vital tool for economic inclusion and development of Nigeria. Its domicile in the Nigerian Capital Market (NCM) is to ensure its success as the funds are only invested in securities of choice for profits. The regulatory expertise and wide powers of the Securities and Exchange Commission (SEC) in the regulation of CIS are for the success and sustenance of the scheme via systemic scrutiny of the CIS managers and their operations. However, a comparison with Mauritius reveals some shortcomings. The doctrinal research method is adopted in this study. This doctrinal research adopts a comparative analysis to identify areas for improvement. The study finds that while CIS has advantages, it also has demerits. Recommendations are proffered to enhance the Nigerian CIS scheme, including addressing regulatory gaps and improving investor benefits.