AFRICAN ‘SOCIAL ORDERING’ GRUNDNORMS AND THE DEVELOPMENT OF AN AFRICAN LEX PETROLEA?

Egede, Hephzibah (2016) AFRICAN ‘SOCIAL ORDERING’ GRUNDNORMS AND THE DEVELOPMENT OF AN AFRICAN LEX PETROLEA? Denning Law Journal, 28. pp. 138-165. ISSN 0269-1922

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Abstract

This article interrogates the constitutional relevance of African social ordering rules in petroleum governance in Sub-Saharan African petroleum producing states. At the apex of the hierarchized African legal system is the national constitution which contains the basic norm or grundnorm derived from Western received law. Yet some African scholars have described African social ordering norms as grundnorms. This goes contrary to the conventional positivist position that “a legal system cannot be founded on two conflicting grundnorms.” This article will consider whether African social ordering norms have attained the level of a grundnorm as expounded in Kelsen’s pure theory. Utilising the Ekeh’s “two publics” model, it investigates how the basic norm for African social ordering grundnorms is presupposed. The article considers whether there is a conflict between the domanial system of state ownership as approved by African national constitutions and indigenous African social ordering norms premised on communitarianism. The article presents for analysis the recent study undertaken by African Petroleum Producers Association (APPA). This study considers whether it is possible to standardise the rules of petroleum contractual governance in Africa. This has led to some discussion on whether the standardisation of these rules could lead to the development of an African Lex Petrolea. This article explores the role that African social ordering norms can play in the development of a continent-wide Lex Petrolea.

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