When there is nothing left to burn, you have to set yourself on fire.

The North Gauteng High Court reserved judgment in the case of the Zim farmers last week.
If you recall, farmers from Zimbabwe received a judgment from the 2008 South African Development Community (SADC) Tribunal declaring Zimbabwe's land reform programme as unlawful.

The SADC ruling was recorded in the North Gauteng High Court, South Africa in 2010 with an additional order made by the court awarding costs to the farmers. Zimbabwe owned property in SA, free from any diplomatic immunity, was identified and attached in order to be auctioned in settlement of those awards.

The Zimbabwe Government was absent for much of these proceedings until now. The government of Zim has disputed the validity of the SADC Tribunal ruling from the beginning. The recent court proceedings in South Africa are objected to on various grounds such as improper service, lack of jurisdiction, and purported violation of the Foreign States Immunity Act. These arguments are made late and hopefully in vain. The court reserved judgment and should make a decision within the next 3 weeks. This blog has followed the case as best as possible with sometimes imperfect information.

It has always been my opinion that the success of this case, resulting in the defeat of all of the Government of Zimbabwe's arguments, has little to do with politics per se. Success has everything to do with the credibility of the SADC tribunal and the rule of law in Southern Africa. The SADC tribunal is a brilliant creation that makes it possible to resolve disputes without winding up in a local court that might be biased or non-functioning.

In addition to all of this nonsense, the SADC tribunal's status as effectively suspended is unclear.
At the SADC Summit in August 2010, the Council of Ministers decided to review how the Tribunal functions allegedly in order to address the Government of Zimbabwe's refusal to honor the tribunal's ruling against it in 2008. This effectively suspended the tribunal with the judges being removed. In response, two of the Zim farmers. Mike Campbell and Luke Tembani filed an application to have the tribunal back in action. Without a functioning tribunal there is no recourse for those who wish to make further claims against the Government of Zim, according to the application.

In January of this year, mining companies in a dispute with Lesotho asked the tribunal to take the case. A docket number was assigned but there is no evidence of the case on the SADC tribunal website.

Finally, Mike Campbell, one of the Zim farmers in the 2008 SADC Tribunal case passed away earlier this month. No matter what the ultimate outcome of all of these cases I hope he will be remembered for using the law to create fairness and equity for everyone. This blog will continue to watch those developments.

Banker's morality

Austin, Texas, Africa Conference and Madonna.

The Africa in World Politics Conference in Austin, Texas was one of the best conferences I have attended on Africa. It might be because there were no lawyers there, I cannot be sure.

http://www.utexas.edu/cola/depts/history/events/17554


The conference had may interesting panel discussions that were robust and exceedingly honest. The attendees were from all over the World. I did get to spend some time with a history scholar from Kenya. His research considers land management in rural Kenya in the 1930's--fascinating.

http://www.maxwell.syr.edu/hist.aspx?id=36507229536


Austin is awesome, of course. The food was authentic African. (except at the banquet). African music and dancing (by us participants) was fun. The attendees were genial and the discourse lively. LOTS of academics from Nigeria prompting LOTS of animated dialogue!

My presentation went well. I sought some input on a PhD chapter that I have concluded needs more historical analysis on the establishment of stock exchanges in East Africa. It was well attended. There was an amazing presentation after mine by Prof Rhonda Gonzales, from UT-San Antonio. Her research area is Ancient History and she makes it seem very relevant for us today.

http://provost.utsa.edu/home/Faculty_Profile/Gonzales.asp


Finally, the Board for Madonna's charity in Malawi, Raising Malawi has been dismissed. Her organization is being sued from wrongful termination. The charity was meant to start a state of the art girls school but has failed to make much progress. Maybe Sean Penn had the right idea when he moved to Haiti. Madonna has not made much progress throwing money at her school idea.

http://www.iol.co.za/tonight/gossip/madonna-sued-by-group-in-malawi-1.1047926

New Generation of Africans

The African Studies Centre at the Univ. of Oxford have helped organise a conference on Pan-Africanism for the New Generation. To be held 4 June 2011. See the link below which contains an email address for information. African heads of state will be invited along with researchers to address changes in Africa within the context of so many students of African and Caribbean descent studying abroad and facing changes at home.

It sounds fascinating and perfectly in tune with the changes we are seeing in developing countries populations uprising. In tune in the sense of changes that can potentially force us all into a new way of thinking and dealing with some African countries. I am not, per se, a proponent of Pan-Africanism, whatever that is. It has extreme political connotations of Africa at Independence with new revolutionaries ousting the Empire. That is simply too outdated a concept to be helpful.

The focus of any meeting of minds on developments in Africa must include, and the Oxford on does, the students over here in the UK doing research and then what.....

I sadly missed the opportunity to do a Graduate Seminar on my research topic at the Univ of Warwick this week. That School of law has a historical connection to Africa, and particularly East Africa. There are students doing dissertations on every topic including things such as Private Equity, Rule of law and (of course) corruption. I may try to come back in May and do that presentation and also meet up again (I did a similar presentation last year...or two years ago perhaps) with so many East African students who have definite opinions of what is happening there and what might need to be done. This is a new generation of leaders for Africa. Which is primarily the focus of the Oxford conference.

This is such an interesting way to explore moving forward in the region given the recent upheaval. I love the UK for taking responsibility in this way.

I am headed home to Orange County now. My trip here has been very productive. Next weekend, I present at the Africa in World Politics Conference at the University of Texas in Austin.


http://www.pambazuka.org/en/category/Announce/71762

March is East African Exchange month!

I am in London where an African Securities Conference run by Securities Africa is currently on. It is primarily an event for institutional investors to meet with exchange executives and an opportunity to showcase the African Stock Exchange Association (ASEA). I am not in London to attend this auspicious event, however. Instead, I am trying to save my thesis which is stagnating in a sea of academic red-tape and out-of-sight,out-of-mindness. My pain and anguish does have its rewards.

I am staying in my old diggs on Bow Rd, across from the Bow Rd tube. There is a nifty Tesco Express nearby so I am enjoying some affordable South African, Shiraz and the sounds of East London. The Mile End library of Queen Mary has been completely modernized and is a joy to sit and work in even when it is swarmed with undergraduates. Maybe secretly I delay finishing my PhD so I can make these little trips......not likely. If and when they start paying attention to me at QM, I will finish and come back and attend the theatre instead of visiting the LIBRARY!!!

This Securities Africa conference has allowed the new ASEA Presdient, Sunil Benimadhu, to announce a new (hopefully realised) direction for ASEA as an organisation to promote African exchanges and also inform investors....and researchers....about member African Exchanges. Sunil is the CEO of the Stock Exchange of Mauritius and seems to have a positive vision about what ASEA can do for exchanges.

He suggests that ASEA do the following:

• provide a pan-African (member) stock exchange index to serve as a benchmark
• revamp the ASEA webiste so it is up to date and actual informs!
• serve as a mouthpiece for African exchanges in cluding African governments and regional bodies such as the AU, World Bank

Let's hope all of the above happens and these guys from Mauritius are the ones to get it done!!

Nairobi Stock Exchange

The NSE has purchased a Broker Back Office system worth $880k (USD) from Chella Software of India, which will allow the CMA and the NSE to offer online trading that can also be monitored. This goes a long way to resolving the Nyaga-like broker problem that plagued the NSE in 2008 and forced the closure of several brokers who had fraudulent back-office dealings. (see this blogs very first post) The back office is the heart of any brokerage firm because it clears trades and ensures that funds pass smoothly from client to broke and vice versa. Without a credible back office no broker and no Exchange has the integrity needed to cultivate investor confidence. The CMA-Kenya also established an anti-fraud unit. I need to look at that and will write a separate blog post on it later.

Additionally, the NSE claims that its online trading will draw funds from the Kenyan diaspora and from tech-savy Kenyan youth with discretionary funds. This is huge and a move in the right direction. Online trading is what facilitated a massive increase in retail share ownership in the US. This is not always a good thing if the technology and trading do not also come with instructions. The NSE will also have to provide loads of EDUCATION for these new investors so that the stream continues and does not wither and die on the vine due to terrible miscalculations all of which are aviodable with a little instruction on investment 101's.

Uganda Securities Exchange

Also in March, the USE announced that trading will be exteded to 5 days a week from 3. This baby step is also huge. Order flow should become more continuous if brokers can place them each day rather than every other day. The USE has only 14 listed companies but cross-lists on the NSE as well. This is a positive move, not as mometous as online trading but significant nonetheless. Much like the USE, this move is friendly and measured.

Me likey!!

I am so jazzed to paying attention to this space again. It was wrong to ignore it for so long! I enjoy being back in London. This city is World class and dare-I-say-it, so much nicer than New York. (shocking!!)

http://www.africancapitalmarketsnews.com/

www.securitiesafrica.com

www.africansea.org

Assignment, signatures and the Rule of Law

Landmark National Bank v. Kessler* and a recent Supreme Court of Massachusetts case US Bank v. Ibanez**, provide an interesting perspective in to the legal deficiencies of mortgage backed securities. In both of these cases the underlying home owners mortgage had been registered with the Mortgage Electronic registration System (MERS) or assigned to an entity that would allow the mortgage to be part of a pool pf assets sold as a mortgage backed security; all very legal.

What was problematic was the documentation of the transfer or assignments. Under the Statute of Frauds, ay contract concerning an interest in land must be written. Because of the speed with which these mortgages traded hands before they wound up in a Mortgage backed security, the assignment never designated the new assignee. Documents were left blank and unsigned. Due to this, it was unclear who help the mortgage and whom was entitled to foreclose on the property.

These formalities of contract and real estate were overlooked because of the speed with which these mortgages changed hands. Participants in the market were also so enamoured with MERS that they did not question its legal status. All of these activities were driven by market forces and a lack of respect for the rule of law.

The decisions in the Landmark and US Bank case uphold the formalities of contract and the recording of mortgages. These out of date 17^th century concepts may be boring and old but they are reliable and create a sense of stability when contracts are challenged and titles need quieting.

The law may be old and outdated but everyone is reassured when it helps them keep their house. Banks should have been more careful. When they weren’t then those homeowners should be able to keep their homes.

*192 P.3d 177 (2008)

** 2011

www.kscourts.org/cases-and-opinions/opinions/supct/.../98489.htm

http://www.scribd.com/doc/46472110/Ibanez-Case-JAN-2011

http://www.massrealestatelawblog.com/2011/01/07/ibanez-foreclosure-ruling-upheld-an-indictment-of-the-securitized-mortgage-system/

Contract implications of the Foreclosure Documentation Crisis

For anyone in the area, I am speaking tonight at the meeting of the Orange County chapter of the National Contract Managers Association. It is $30 for dinner and my presentation! A little steep perhaps but it could be fun.

My topic is the Contract implications of the Foreclosure documentation crisis. So many recent cases have prevented Banks from foreclosing because the documentation was missing, blank or falsified. The focus of my presentation is only on the contract law dimension of that documentation mess.

This way I can avoid trying to understand, let alone explain, arcane title theory, real property and securitization law-which we all know NO ONE in the US understands.