Articles - 2019

January 2019

Zim judge presiding in controversial Lesotho murder trials, starts work

A number of controversial murder trials are about to get under way in Lesotho, presided over by foreign judges to ensure the cases are seen to be fairly conducted and without bias to either side. The murders allegedly involve high-ranking figures from the country's politicians, army and police as victims and/or assassins. The first cases were due to start last week under Jifa alum Judge Charles Hungwe of Zimbabwe, but they were delayed due to the absence of the defence lawyers for the accused. Other foreign judges are due to arrive in Lesotho soon, to share the load of the trials with Judge Hungwe.

Namibian lawyer tells national police chief: protect my client against abduction, rendition by Zim police  

As the crisis in human rights and the rule of law continues in Zimbabwe, its impact – and growing condemnation of the government crackdown – has spread elsewhere in the region and abroad. In Namibia, an opposition MP, visiting from Zimbabwe, fears for his life after receiving information that a squad of Zimbabwe’s Central Intelligence Organisation police have arrived in Namibia to abduct him. He believes the aim of the secret mission is to return him to Zimbabwe and put him on trial for treason. In other developments, confidential documents have been leaked by Zim police to The Guardian in the UK, showing police frustration at the impunity enjoyed by the military in the Harare area. And a ranking UK MP, Kate Hoey, has made a major speech condemning the Mnangagwa government for its dangerous infringement of the constitution and the rule of law.

Malawi’s courts will intervene, even in party political disputes - judge

As election fever hots up in Malawi, a high court judge has reminded political parties of something many would rather forget: that under certain circumstances the judiciary is obliged to hear and decide party disputes. It could not be denied that courts had jurisdiction over ‘political disputes’ raising issues of a judicial nature, the judge said. And, where appropriate, for example if a party breached its own constitution or acted arbitrarily, judges had to “do their duty” and hear such cases. The reminder came in a case involving contested primaries for the Malawi Congress Party.

Law society meets with Chief Justice over torture, crackdown in Zimbabwe

Security forces in Zimbabwe are continuing to use torture and deadly force against people protesting against government restrictions and fuel hikes that have made petrol in that country the highest-priced in the world. Alarming pictures of security forces beating protesters shown round the world forced President Emmerson Mnangagwa, on an international visit to drum up foreign investment, to return before his original date, and take control of the situation. But little has changed since he arrived home earlier this week and the violent crackdown is continuing. In a rare move, the Law Society of Zimbabwe has met with the Chief Justice, Luke Malaba, to raise concerns about the way that judicial officers are handling cases relating to the crackdown. They told him it appeared the courts were biased and that justice was not being meted out.

Copyright & A2K Issues - 24 January 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

“Despicable” behaviour outside debating chamber not privileged, judge tells assembly members

Dressed in a pink suit and looking rather bewildered, Nairobi city county Speaker, Beatrice Elachi, is seen on camera watching as protesting assembly members demonstrate in her office. They wanted her to step down and yelled and shouted at her to achieve their aim. Since that day in September 2018, Elachi has been removed from her position – but the demonstrating assembly members are now under investigation by the Ethics and Anti-Corruption Commission for their behaviour in her office. Indignant at what they saw as an infringement on their right to “privileged” proceedings, the assembly members went to court. But their reception at the high court in Nairobi was not what they had hoped.

What is going on in Tanzania's trial courts?

WHEN half of the criminal appeals heard by a country’s apex court lead to decisions that the trials were a nullity or fatally defective in some way and that conviction and sentence must be set aside, you know there is a problem. This is the situation in Tanzania where the court of appeal considered almost 30 criminal appeals between 29 November and 14 December 2018 and threw out the results in 13 of these cases because of some major defect during the trial in the court below. Strange to relate, however, neither Tanzania’s highest court nor the country’s justice authorities have reacted to what appears an urgent – even critical – systemic problem.

Death penalty overturned for woman who murdered, dismembered husband

The appropriateness of the death penalty as a punishment for even extremely violent murder has been raised at the Supreme Court in Kampala. Members of Uganda’s apex court were considering the case of a 63-year-old woman who murdered and dismembered her husband. Though she was originally condemned to death, the five Supreme Court justices have replaced that sentence with a 30-year jail term. The case illustrates the close attention a trial court needs to pay to the balance between mitigating and aggravating circumstances to get the sentence right, as per the sentencing guidelines. It also illustrates that Uganda's apex court is reluctant to approve the death penalty.

Villagers' water pollution case should be heard in UK not Zambia, court hears

A major case on the environmental and human rights of villagers in Zambia was heard in the English courts over two days this week. The appeal concerns the question of where villagers, suing over the pollution of their water via mining action, may bring their dispute. They want the case heard in the UK while Vedanta, the parent company they are targeting, says the “natural forum” for the matter would be Zambia. If the English Supreme Court gives the go-ahead for the case to be heard in the UK, it will have a major impact on many other environmental cases and be a significant step in the development of environmental law, making it easier to hold international parent companies responsible for the actions of their subsidiaries.

Why the long wait for Zambia's supreme court death penalty decision?

After a cattle-rustling raid into Zambia by uniformed Angolan soldiers armed with assault rifles, a local man has been convicted and sentenced to death. It is an unusual case for several reasons: armed border raids seldom result in a conviction, for example. But it is also significant because it shows the Supreme Court, Zambia's highest legal forum, taking more than four years to deliver judgment. Given that the case did not appear to involve particularly complex legal issues, questions have to be asked about why the judges took so long - especially in a case that concerns the death penalty - and why they felt no need to explain the delay.

Copyright & A2K Issues - 16 January 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

February 2019

Judges on warpath against drug scourge

Two new decisions from the High Court in Namibia show judges on the warpath against drugs and drug dealing. The distinctly tougher line follows a watershed judgment late last year (2018). As I wrote at the time, through that strongly-worded landmark decision the Namibian courts gave notice that they were intent on a serious change to the way they handle cases involving drugs and drug dealing. Judge President Petrus Damaseb and Judge Christie Liebenberg said in that earlier decision that crimes involving drugs and dealing would no longer be tolerated and that sentences would now be ‘appropriately severe’. The fruits of that decision can now be seen in two new cases, the first full judgments reported on the subject in 2019. In one, a man’s 10-year sentence for drug-related offices has been confirmed on appeal. And in a second case, the High Court has upheld a magistrate’s decision refusing bail to two accused in a high-profile case involving suspected drug importation.

Citing “canteen factor”, judge stops law firm from acting against its own client

WHEN a hacker found and used the password of bank employee Shakil Pathan Ismail he was short-paid for a year while police investigated. Then the bank went under and the financial institution that took over its assets and liabilities ended the staffer’s employment while denying they were responsible to sort out the problem of his hack-related short pay. So how was he to get his money? - He headed to Uganda’s Commercial Court where Judge David Wangutusi came to the rescue.

Don’t use “constitution” as a “mantra”, Malawi’s supreme court warns

Malawi’s former agriculture minister, George Chaponda, was a key figure in that country’s “Maizegate” scandal around the importation of maize from Zambia to replenish stocks that had allegedly fallen low. Public criticism of apparent corruption led to a presidential commission of inquiry and then to high court action to have Chaponda stand down during the inquiry. Though the high court initially ordered Chaponda’s suspension, the supreme court has just ruled that it was wrong to do so, and that the judge had ignored binding precedent. The judgment was important for clarifying Malawi’s approach to judicial review. It has also taken an in-depth look at presidential prerogative among other issues.

Landmark Ugandan decision highlights judicial accountability

TWO crucial judicial principles, independence and accountability, have clashed with each other in a landmark judgment by Uganda’s highest court. Unusually, the case produced seven separate decisions, one a dissenting judgment – and it has also sparked strong criticism from outside the court. The case concerned the right of the judicial disciplinary body to charge a registrar, someone who exercises judicial powers in Uganda, with misconduct in relation to an action she took in the course of her judicial duties.

Lost in the system: court admits it is to blame for man’s indefinite detention in mental asylum

IT sounds like a Kafka novel: a man found criminally insane and thus not responsible for a murder he committed, sent to an asylum for observation. Then he was forgotten for years. Now, he says the doctors have ruled he is sane and he wants to be released. But the minister who has to decide whether to release him was never informed he was there in the first place. This month, however, Uganda’s Court of Appeal admitted it was at fault for not informing the right authorities of the man’s hospitalization as it should have done, and that his fundamental rights might thus have been seriously infringed.

Justice for Malawi's children

IN a “remarkable breakthrough”, the Malawi high court has come to the rescue of children illegally held in adult prisons. Some of the children were imprisoned in a jail where, according to an official 2016 parliamentary report, no food was available to inmates and where blankets were in short supply. As Carmel Rickard explains, the law says that children in trouble with the law may only be held in special places of safety or reformatories, and the court has now ordered the authorities to move the children within 30 days.

Kenya: Judges’ law clerks and researchers take Judicial Service Commission to court over contracts

Eight young law clerks and researchers who help judges with research and writing for their decisions, say they are unhappy with changes to their employment conditions made by the Judicial Service Commission and have taken their dispute to court. Two of the eight won the first round when the employment and labour relations court found the JSC acted unlawfully in changing their service conditions and ordered the JSC to pay both the young lawyers damages for unfair labour practices. But the JSC wants to challenge the results, and has asked the court of appeal to excuse them from paying the damages, pending the outcome of the appeal.

JIFA alum, Judge Derrick Mulenga of Zambia, delivers important workers' rights decision

WHEN does a union dispute become, fair and square, an issue of human rights and a test of the constitution? A recent decision by Judge Derrick Mulenga in Zambia’s high court makes a strong statement about this question: the court said the right of workers to belong to a union of their choice involved fundamental rights. These were constitutionally protected and part of an employee’s human rights. As a result, the mining company’s refusal to give official recognition to an additional trade union, and the several reasons it gave for not allowing workers to join, were all forcefully dismissed by the judge. Mbewe v Lumwana Co. Ltd. (IRC/SL/03/2018) [2018] ZMIC 292 (27 July 2018);

“Radical surgery” cutting off this judicial employee was unlawful – court

WHEN Edward Asitiba was sacked as Chief Supplies Officer in the Kenyan judiciary, he was told it was “in the public interest” that he should go. But Asitiba did not agree – and now he has a judgment backing his complaint, as well as a large payout due to him as compensation. Edward C. Asitiba v Attorney General [2018] eKLR

Court orders tribal authority to act democratically

Do traditional leaders have to consult with their community before litigating on their behalf? On 9 March 2018, a Mahikeng High Court  judgment  answered this question: yes, they do. The Court found that the kgosi (king) of the Bafokeng Nation had to consult broadly with the community before going to court against the Minister of Land Affairs. This was because of the customary law principle of “kgosi ke kgosi ka morafe” (a king is a king by virtue of the people). Phrased differently: sovereignty resides with the people.

Crucial Seychelles fact-finding mission by Southern African Chief Justices’ Forum issues report

WHEN the Southern African Chief Justices’ Forum heard that one of their members, Chief Justice Mathilda Twomey of Seychelles, was to face an inquiry and possible removal for alleged misconduct the forum asked the government of Seychelles to allow a fact-finding mission. The investigation into the chief justice was particularly troubling as this as it was the second current investigation into a senior judge in Seychelles. The SACJF wanted to inquire into the state of judicial independence, accountability and security of tenure among other issues involving judicial officers in that country. Now the forum has released its report into that visit, with a useful summary of the contesting views they were given and a number of significant recommendations.

Appeal judges set aside staggering USD30m high court order against Tanzanian bank

TANZANIA’s largest private bank, CRDB Bank, has won an important appeal against a high court order that it pay USD30m in damages and lost business opportunities to a dissatisfied customer. Three court of appeal judges, including chief justice Ibrahim Hamis Juma, said the damages order had been wrongly made and that the customer could not escape the consequences of standing guarantor for a loan.

LGBTI Equality for a Fairer Future

Justice Dingake, Co-Chair of the African Think Tank on HIV, Health and Social Justice, highlights the ongoing prejudice against the LGBTI community across Africa, and calls on the Commonwealth to accelerate action for LGBTI equality and equitable access to services.

Top judges of world’s largest democracy strike down anti-gay sex law

INDIA’S highest court has struck down the country’s anti-gay sex law as unconstitutional. The decision, widely welcomed as conforming to a modern understanding of constitutionality and rights, was the result of India’s highest court, the supreme court, reconsidering the validity of Section 377 of the Indian Penal Code. The judgment, likely to be hugely influential worldwide, followed a 2013 decision of the same court when two judges upheld the Code. Earlier this year, however, the supreme court decided to revisit the issue, but with a larger bench.

“You can’t charge me, I’m immune”: dismissed cabinet secretary

ANY judgment that concerns a country’s anti-corruption commission, is usually worth reading. But when it involves a case brought against the commission by a dismissed former cabinet minister now in the spotlight for abuse of office, it becomes just too tantalizing to miss – especially when the former top official claims he is untouchable.

Judicial independence is critical to protecting press freedom in Africa

In this opinion piece, Anneke Meerkotter, Litigation Director of the Southern Africa Litigation Centre  (SALC), discusses a recent High Court of Lesotho (sitting as a Constitutional Court) judgment which declared the offence of criminal defamation unconstitutional. She takes the opportunity to also reflect more generally on the extent to which judiciaries have created the space for constitutional jurisprudence to be exercised in a manner that facilitates social transformation.

“Tainted” judicial history remembered in new Kenya judgement

WITH a reminder of what has at times been the unsavoury past of Kenya’s judiciary, the constitutional court has declined to intervene in the dismissal of a number of magistrates who served during the pre-constitutional era. As Carmel Rickard explains, the Kenyan courts are barred by an ouster clause from considering such dismissals. In this case the court deferred to the provision, at the same time spelling out the ouster’s limits and ensuring that in the case before it those limits were not transgressed.

Communal land victory confirms state’s ‘social obligations'

In an important decision clarifying the law for people claiming rights over communal land, Namibia’s highest court has found in favour of a woman in the remote Zambezi region. Agnes Kashela claimed she had inherited the right to part of the communal land held by the Mafwe Traditional Authority. At independence however all communal land became the property of the state, and part of the Mafwe land had been transferred to the local town council at Katima Mulilo. Four individuals or businesses then leased and later bought sections of the land over which Kashela claimed a right and she sued the council for damages and unjustified enrichment. The supreme court had to decide whether she had lost her rights over the communal land initially allocated to her father. The judges found in her favour saying the state had “social obligations” to use land for the public good, and that the court was obliged to find a remedy to meet the facts. Now that her rights have been established, the case will return to the high court to consider whether she has proved the damages she claims.

Canada: Supreme Court ruling around religious versus equality rights

WHEN Trinity Western University in Canada wanted to establish a new law school, it ran into unusual difficulties with three law societies in that country. TWU insists that all staff and student must sign a “community covenant” agreeing that the only healthy form of sexuality is in marriage. And only in marriage between a man and a woman. No sexual intimacy outside marriage would thus be tolerated on campus, and no same-sex relationship in or out of marriage. The law societies challenged the idea of such a law school saying it would not be in the public interest to accredit a school with a discriminatory admission policy such as this. Among the witnesses heard in the lower courts were students who described the oppressiveness of such a policy. On appeal to the highest court the law societies prevailed, with that court finding that, since they had a mandate to protect public interest, the law societies were obliged to protect equality and human rights. Their objectives included ensuring equal access to the profession, diversity at the bar and the prevention of harm to LGBTQ students.

Firearms verdict a victory for rule of law

THE high court in Kenya has declared that the firearms licensing board acted unconstitutionally when it revoked the licence of a controversial politician. The letter informing Senator Johnson Muthama that he could no longer legally possess a firearm was part of a crack-down on opposition figures who protested after the results of last year’s second national elections were confirmed. But the board gave no reasons for its decision and did not allow Muthama an opportunity to put his view on the proposed ban. After an interim order preventing the board from revoking the licence, the high court has now given a full judgment upholding Muthama’s rights to fair administrative action. While some of the tension between the ruling party and the opposition appears to have eased in the meantime, the decision is still important as it shows the courts prepared to hold everyone to constitutional standards of decision-making.

Oops! We Blew it! Zimbabwe’s supreme court backtracks earlier international law decision

TOP courts rarely revisit their own decisions and own up to being wrong. But Zimbabwe’s supreme court has done exactly that, finding that a key section of a 2004 judgment was wrong. Not just that: the mistake has had to be admitted under the watchful eye of the world’s international organizations, all of whom were potentially affected by the outcome. To make matters even more sensitive, one of the judges who concurred in the earlier decision has now been the author of the correction, none other than the president chief justice, Luke Malaba.

Major precedent set for communities affected by mining

Constitutional Court judge quotes Fanon: to “strip someone of their source of livelihood, then you strip them of their dignity too”

Nigerian flags at half-mast over death of former chief justice

NIGERIA’S judiciary declared seven days of mourning after the death of a former chief justice last month. Justice Idris Legbo Kutigi, who was buried on 24 October, 2018, was 78, and had served as chief justice from 2007 to 2009.

Top judges jolt magistrates, prosecutors over slack handling of drugs cases

TWO high court judges in Namibia have strongly criticized magistrates and prosecutors in that country’s lower courts for not taking drug abuse offences seriously enough. The two judges, one of them Judge President Petrus Damaseb, were reviewing the conviction and sentence of a drug dealer who had been selling cannabis to children at a primary school. After the prosecution put to him the count of possession only – and not the second count of dealing – the prosecutor proposed that he be dealt with under a section that limits sentence to a fine. The judges said the purpose of their strongly-worded judgment in the case was to emphasise to prosecutors and magistrates “the need to reflect on the approach currently adopted in the lower courts which, unfortunately, often operates against the interests of justice.” The judges, who said they confirmed conviction and sentence only reluctantly, urged that a clear message should now emerge from the court that crimes of this nature would no longer be tolerated and that sentences would from now on be “appropriately severe”.

Land commission reversed after “monumental, unmitigated” breach of natural justice

LAND issues are causing storms in many African countries as politicians, courts and ordinary people struggle to work out a just solution to problems of land ownership. While in Uganda the issue of how the judiciary handles land issues is currently causing a spat between judges themselves, in Kenya a new decision has seen the National Land Commission thoroughly trounced by the high court because of the way it has handled a matter.

First woman chief justice sworn in for Ethiopia

For the first time in the country's history, Ethiopia has a woman chief justice. Meaza Ashenafi was sworn in as the head of the Federal Supreme Court today, 1 November 2018. She had been nominated by Ethiopia's Prime Minister, Abiy Ahmed. Ashenafi, the founder of the Ethiopian Women Lawyers Association, is widely regarded for her work as a human rights activist.

Zimbabwe victims of SA’s banking woes in novel relief bid

SA’s corruption woes are casting long shadows across the whole region. Highly improper decisions to “invest” in two discredited SA financial outfits, VBS Mutual Bank and Mamepe Capital, have led to the demise of a Namibian bank intended to provide banking facilities for Namibia’s small businesses and disadvantaged communities. The insolvency of the bank has in turn hit its two minorities shareholders, both from Zimbabwe. Lawyers for the Zimbabwe shareholders have tried, unsuccessfully, to persuade Namibia’s highest court not to wind up the bank. They took a novel line, saying the Namibian constitution required the courts to adopt a different view on what should have happened when the bank was identified as insolvent. The judges should have been tougher on procedural shortcomings in the light of the constitutional aims of empowering disadvantaged communities, and should not have approved the winding-up application. First the high court and now the supreme court as well, have rejected this argument, saying Namibia was based on the rule of law, and the central bank was bound by law to act as it did to protect the country’s financial stability and the hard-earned savings of people and enterprises.

A new chapter for human rights in Zimbabwe?

A KEY section of one of Zimbabwe’s most used – and most despised – anti-human rights laws, the Public Order and Security Act (Posa), has been declared unconstitutional by eight senior judges sitting as that country’s constitutional court. Among others, the section allowed for repeated month-long bans on all public demonstrations in any areas. The judgment found the section effectively gave the authorities power to nullify two important fundamental rights – to demonstrate and to petition – “completely and perpetually”. The outcome has been widely welcomed, among others by Amnesty International.

Too many heirs to this traditional Zambian throne

ZAMBIA’S courts have been wrestling with how to resolve a dispute over a “novel situation”: too many contenders to the throne of Chief Kapijimanga, leader of the country’s Kaonde people. The high court proposed an unusual remedy for this dilemma, namely that all subjects should be involved in considering the way forward. But this apparently democratizing approach was overturned on appeal with the supreme court finding that the electoral college of royal family members traditionally made such decisions – not their “subjects”.

Lesotho: New judgment reinstates Mosito

A DECISIVE new judgment by five acting judges of Lesotho’s highest court has found that the former president of the appeal court, Kananelo Mosito, who resigned to pre-empt his impeachment, has been validly reappointed by government. The new decision that will see the acting chief justice swearing in Mosito very soon does not, however, resolve Lesotho’s continuing judicial problems and in particular the alarming issue of ongoing political interference with the judiciary.

Swazi court makes news – by giving reasons for recusal

FOR some time, courts in Swaziland have been raising puzzled eyebrows over controversial recusal decisions made without explanation to the litigants involved. In one such case the en masse decision of a court’s members to recuse themselves has left litigants with nowhere to go, raising concerns that the right to access a legal forum to hear and decide a matter has been infringed. But now that country’s courts have made news of a more positive kind. A judge in Swaziland has done what is normal practice in other jurisdictions: he has actually given written reasons for his decision on recusal. Judge Mzwandile Fakudze’s formal recusal judgment involves a case disputing the election of an MP.

High time to overhaul Lesotho’s offensive colonial-era laws

A SIGNIFICANT new decision from the high court in Lesotho has found that a widow is entitled to inherit according to the joint will that she and her husband made. The court also found that her deceased husband’s family could not contradict the wishes expressed in that will and use customary law to decide for themselves how to dispose of the estate. Judge Keketso Moahloli further spelled out that a couple may make a joint will, even if they are unmarried and, just as important, that someone is “competent to make a will” if their lifestyle is “predominantly modern” rather than “predominantly customary”. The judge also strongly criticized Lesotho’s lawmakers for not long ago having got rid of offensive, colonial era laws that he had to cite in the judgment.

When a high court judge and counsel litigate against each other – the Zambian experience

A full-on fight between judge and counsel is never good to see, and if it spills over into angry and frustrated litigation against each other, it is far worse. When just such a fight broke out earlier this year between a high court judge in Zambia and a prominent Lusaka lawyer, the local media was full of the scandalous story. Realizing the significance of the matter for the judiciary, its independence and public perceptions, the Chief Justice appointed a team of three high court judges to hear the latest round in the dispute. Jifa alum, Judge Edward Musona, was tasked with chairing the full bench, and the three judges have now given their decision. This is not yet the end of the matter, however, as the dispute is headed for appeal.

Women Chief Justices in Africa: why are they under threat?

VERY, very few women in Africa hold the position of Chief Justice or deputy Chief Justice. On the last count, just five women hold these posts in the southern and east African countries we most regularly write about.  And yet two of these five women are under threat of prosecution or impeachment, while a third who has been facing an impeachment tribunal emerged unscathed last week. Against this background, the story of the inquiry into the Chief Justice of Seychelles, Mathilda Twomey, makes sober reading for the general public. For her female CJ colleagues, however, the report must be ringing alarm bells.

Kenya: Time for courts to develop judicial review as “constitutional supervision of power” - judge

IN an ongoing battle over land compensation payment in Kenya, the high court has awarded both a win and a lose to the two sides in the bitter dispute. This particular part of the fight has seen the senate determined to show its authority by summonsing the companies that owned the contested land to appear before one of its committees and answer questions. The companies, on the other hand, claim a witch-hunt and say there is an attempt to coerce and blackmail them. Though both the parties may feel dissatisfied with the outcome, the interesting decision by Judge John Mativo shows there was in fact a clear victor: the rule of law has won.

Somali "forced marriage" case poses headache for UK courts

AS the world becomes more aware of the need to protect children and young people from forced marriage, courts are faced with increasingly difficult cases on the issue. A new UK decision involving a family of children from Somalia illustrates the problems that judges could face. The children’s older sibling, who still lives in the UK, believed their mother was intent on the forced marriage of at least one of the children and tried to get the UK courts to act. In a series of hearings, the courts repeatedly extended protection orders over the children. But then the court was faced with a new dilemma – lawyers asked the judge to order that the family should trek from Somalia to Ethiopia for a welfare check, even though the court had no idea how, and even whether, the family would be able to make that long journey.

Essentials of Akamba customary marriage

Customary Law  – Akamba customary law – Akamba customary marriages – existence of Akamba customary marriages – when was Akamba customary law marriages deemed to be in existence – ntheo ceremony - whether a woman whose ntheo had not been paid could receive ntheo for her daughter Jurisdiction  - jurisdiction of Magistrates Court - burial disputes - whether the magistrate Courts had the jurisdiction to hear and determine burial disputes -  Magistrate’s Court Act No. 26 of 2015 Section 7(3)(b)

Seychelles CJ Mathilda Twomey cleared of all charges by top tribunal

AFTER many months of unpleasantness, uncertainty and threat of impeachment, Chief Justice Mathilda Twomey of Seychelles – the first woman to hold this position in her country – has been completely exonerated by a tribunal of inquiry. The tribunal’s report, published on Friday, was written by three prominent jurists: recently retired Australian judge Michael Adams, SA judge John Murphy and Nigerian judge Olufunmilayo Atilade. Their report closely examines the complaints against her made by her fellow judge, Durai Karunakaran, and unanimously concludes that his complaints are entirely baseless. They find her actions were all proper, professional and, in the circumstances, even what was required of her.

Traditional leaders in Malawi win against property developer who hid information from court

TRADITIONAL leaders in Malawi’s Chikwawa district have won a significant court victory over a developer. This after he asked for judicial help in throwing a local community off land where they have lived for many years – but failed to disclose key facts to the court. An initial injunction against the local community was granted earlier this year, but then it emerged that he hid important facts in his original application, brought without notice to the traditional community. When Judge Kenyatta Nyirenda discovered the full story, he commented on the “sheer effrontery” of the application, and threw it out.

“Astute and thorough” judgment on trafficking by Namibia’s Judge President

ATTENTION judges who attended Jifa’s advanced course on international human rights law in Cape Town earlier this month. During the training week, Jifa discussed a recent decision by Namibia’s Judge President Petrus Damaseb with expert course trainer, Peter Carter QC. We asked for Carter’s comments on the judgment in the context of the course, namely that any judge – not just a specialist court – might find themselves in a position to consider applying international Protocols. What would other judges be able to learn from the judgment, we wondered. Take a look at the judgment – the accused was charged with rape and trafficking – and at how Judge Damaseb invoked the Palermo Protocol of 2000 (the UN Protocol to Prevent, Suppress and Punish Trafficking in Person, especially Women and Children). Then see the trainer’s comments.

Lesotho’s acting chief justice slows pending litigation brought by sidelined Chief Justice

THE judicial crisis in Lesotho shows no signs of resolution. While the suspended Chief Justice waits in limbo for a tribunal to investigate government claims against her, the acting chief justice has stepped in to stamp her authority on the situation. Among others, the actions of the ACJ have slowed a planned constitutional court hearing scheduled to deal with the dispute between the government and the CJ.

High court protection "doesn't filter down to the lower courts" so this Jifa Alum declared magistrates court processes unconstitutional

NAMIBIAN high court judge Shafimana Ueitele , has been dealing with a sensitive case of injustice: a woman lost her home because the Magistrates Court Act did not give her the protections she would have had under the High Court Act. What should a court do when – as here – the law results in such blatant inequality, causing suffering and injustice? For Judge Ueitele, a JIFA alum, the answer was obvious: declare the relevant part of the law unconstitutional . The existing system meant that not all litigants were equal, he reasoned, and the only way to end the injustice was to ensure that the system itself was changed.

When “straying” courts need to be “reined in"

HERE is a rare situation: three judges of Swaziland’s highest legal forum, the supreme court, confessing they are at a loss to understand what is happening in the courts below. This after two high court judges issued contradictory orders in relation to a bail hearing and the supreme court was asked to intervene and sort out the mess. Did the supreme court have the power to do so? It was a novel question, testing certain of its constitutional powers for the first time.

When courts must be parents

SOMETIMES a court is called on to act as a parent might, and resolve the problems of difficult children. Seldom, though, will two courts in the same country, less than 100 km apart, both hand down such a decision on the same day. But this is exactly what happened in Kenya where two judges both had to deal with errant scholars. The judges found different solutions to the problems before them: one allowed the suspended scholar to write exams at the school, but under strict conditions; the other refused to let the boy involved back onto the campus at all.

Court bars suspended Chief Justice from entering Palace of Justice

IN a week of high drama, the Chief Justice of Lesotho has been ordered by the high court to stay out of the Palace of Justice and not to carry out any functions relating to her office. This follows her suspension, in apparent defiance of two court orders barring the government from taking steps to ask that the King suspend her.

Lesotho, Namibia, SA judges in controversial recusal decisions

CONCERN and confusion about recusal decisions by judges in the region continued this week. Most significant of these cases was a startling high court order against the chief justice of Lesotho. It was granted by the judge appointed as acting chief justice in her place who, in other jurisdictions, might have been expected to recuse herself. Other cases involving controversial recusal decisions this week come from SA and Namibia. These cases follow our report last week of mounting unease about a series of controversial decisions by judges in Swaziland on whether or when to recuse themselves.

The eight allegations against Lesotho’s Chief Justice Nthomeng Majara, and their context

LIKE the former president of Lesotho’s highest court, the Chief Justice may be seen as a victim of the clash between two competing political interest groups: there is now an established pattern in terms of which one party or interest group makes a top judicial appointment and then, when the other grouping gets into power, it seeks to get rid of that jurist and put its own candidate in place. But while this may be the reasoning behind the drive to get rid of top judges, what are the public reasons given by the Maseru government for wanting to suspend and investigate the present Chief Justice?

A country waits: when will Zimbabwe’s constitutional court give its long-delayed decision?

PROMPT delivery of decisions is seen as so important that some African countries even discipline judges who do not give judgments within a reasonable time. But in Zimbabwe, the constitutional court has still failed to hand down a crucial judgment two years and eight months after hearing. This in a country where the maximum delay tolerated by the judicial code of ethics is six months.

Recusals in Swaziland and Lesotho: cause for concern?

RECUSAL of judges – when they should stand down, when not and if judges are always properly deciding whether to hear a case – has emerged as a serious issue in both Lesotho and Swaziland. In both those jurisdictions, decisions about recusal have left litigants worried that, with no judges available to hear their matters, they could have no access to justice.

Why does Kenya’s Law School keep making the same legal mistake, asks judge?

IF anyone could be expected to understand judicial precedent it should surely be a country’s law school. After all, this is the body with responsibility for ensuring that the next generation of lawyers understands this crucial, basic concept. But the Kenya School of Law keeps getting it wrong.

Newspaper report leads to judge’s intervention

POLITICAL leaders often refuse to act on the basis of “mere” newspaper reports. But not Zimbabwean judge Alphas Chitakunye. He spotted a story in the media about a magistrates court trial and immediately asked for the record in the case as he feared an injustice had been done.

Judge lays down the law for psychologists to testify

FOR as long as anyone can remember psychologists from SA, called to give expert evidence in the courts of their Namibian neighbours, have been able to do so without a problem. But no longer. A new high court decision, delivered as part of what appears to be a bitterly-contested divorce dispute, has held that no psychologist may give expert evidence in court unless registered with Namibia’s professional council – and that includes practitioners from just over the border.

PEN Report: Criminal Defamation is Used to Stifle Dissent in Africa

JUDICIAL independence and media freedom are usually linked. In countries where judges feel unacceptable levels of government pressure it is probable that journalists will be experiencing the same thing.

Challenges to Judicial independence in Seychelles

WITH mounting international concern about the open conflict on the Seychelles judicial bench, a delegation of the Southern African Chief Justices’ Forum has visited the country and offered its help in resolving the situation. It has also volunteered its professional expertise with the legal reforms that are clearly needed in the Seychelles.

Swaziland: Chief justice in stand-off with senior lawyer

ONE of Swaziland’s longest-serving attorneys has been banned by the chief justice from appearing in court or even lodging court papers. The chief justice says the attorney was in contempt of court because he disobeyed court orders to pay maintenance in a case where he was executor of an estate. Now the attorney has fired back, saying the move was unconstitutional and that he was denied a hearing: he wants the CJ investigated for misbehavior – and he wants to sue.

Kenya: Judicial Service Commission demands recusal of Supreme Court justices

IN an extraordinary move, Kenya’s judicial service commission has tried to persuade virtually all of that country’s top judges, from the chief justice down, to recuse themselves from hearing a matter involving the JSC. The commission argued that as this would disqualify the supreme court from hearing the matter, the decision of the lower court should stand as the final word.

“Dangerous” for politician to head Seychelles Human Rights Commission - judges

WHEN prominent Seychellois lawyer and political figure, Alexia Amesbury, decided to contest a seat on the country’s human rights commission, she came up against an apparently immovable obstacle: the law disqualifies candidates who hold office in or are employed by political parties from sitting on the HRC. Undeterred, she contested the constitutionality of the relevant sections of the law in the constitutional court of Seychelles. There the judges found it international best practice for such commissions to be "impartial" and without overt party political presence and so Amesbury lost her challenge to all but one of the sections she targeted. The government, however, is appealing even that small victory and so the case is now headed back to court.

Give senior lawyer his current tax compliance certificate, high court orders

A PROMINENT senior lawyer in Kenya, Professor Tom Odhiambo Ojienda, has persuaded the high court in Nairobi to order that the country’s tax bosses give him a current tax compliance certificate, despite their earlier refusal to do so. The revenue authorities say the lawyer owes them a lot of money and so they won’t issue the certificate. But Ojienda told the judge he needed the certificate so that he could contest a seat he wants to keep – on Kenya’s Judicial Service Commission, the body that helps select the country’s judges. Though he won the interim order, the revenue authorities have noted an appeal.

Top Kenyan officials must pay damages personally in Miguna case - high court

We start the new year with a sensational turn to the high-profile dispute between the Kenyan government and controversial political figure Miguna Miguna: the high court has ordered that six top government and police officials must together personally pay his legal costs in a case testing the validity of his arrest, torture, and deportation. Not just that, the six officials must also jointly pay the Kshs7m Miguna was awarded in damages by the court for the violation of his rights. Miguna was arrested a year ago under dramatic circumstances and twice deported to Canada within a few weeks, despite judicial orders that he be produced before the high court. Those court orders are still being ignored by government officials and Miguna was unable to attend argument in his case as he is still in Canada and prohibited from entering Kenya. Among other shocking allegations the court heard that state agents blew off the doors to Miguna’s house when they first arrested him, and that he was held for days in a toilet cubicle at Jomo Kenyatta International Airport before he was injected with a tranquilizer to subdue him so that he could be deported for a second time.

Judges lash ‘disingenuous’ magistrate for ‘mind-boggling’ action

A provincial magistrate has come under fire from two judges of the high court in Zimbabwe for “conducting himself as a loose cannon” and for not telling the truth to an accused about what the judges had ordered in their review of the original trial court sentence. The magistrate first imposed a hopelessly lenient sentence on a bus driver whose negligence directly caused the death of six people and then misrepresented to the accused the high court’s order on review. The judges said the magistrate’s behaviour was “mind boggling”, that he had been “untruthful”, had “taken leave of his senses” and “embarked on a frolic of his own”. They also ordered that their judgment be brought to the attention of the chief magistrate who was to ensure that the conduct of the magistrate concerned “is not repeated”.

SA’s Constitutional Court slates ex-President Jacob Zuma over protocol replacing SADC Tribunal with a toothless body

SA’s ex-president, Jacob Zuma, already in hot water with pending corruption charges and a court order that he must personally pay some of his massive legal costs, has again become the target of serious criticism from SA’s Constitutional Court. This time the country’s highest court was considering an application to set aside Zuma’s decision backing the dissolution of the SADC Tribunal, a crucial regional rights forum, based in Windhoek, Namibia. The application also asked that his agreement to a “protocol” establishing an effectively toothless body, barred from considering petitions from individuals, be declared invalid. The court said Zuma had the duty to uphold rights, not abandon them, as he had done in this case, and ordered that his presidential ratification of the “protocol” be withdrawn.

Ghana’s Supreme Court orders chief’s name reinstated in national register of traditional leaders

With Ghana’s constitution limiting the role of the courts in certain matters related to traditional leadership, judges are not always sure of when they may intervene to right wrongs. But in the case of Nana Abor Yamoah II, and a dispute about his name being removed from the register of chiefs, the supreme court has made something very clear: there has to be justification for action like expunging names, the process has to be fair and involve a hearing, or else the courts would be entitled to intervene and impose their “supervisory authority”.

Why Zambia's highest court found President Edgar Lungu eligible to serve another term

Zambia’s highest court has given the country’s president, Edgar Lungu, the go-ahead to serve a third term in office if he wishes. This judicial permission for the president to take a step regarded as contentious by many in Zambia, came by way of a judgment that had as its core the definition of a presidential “term”. The court found that a president may serve only two terms. However, sections of the constitution provided that a third term of less than three years, served as a stand-in president when the previous president could no longer function, did not count in computing the two terms. According to the court, a president would thus normally serve a maximum of 10 years but a full term of office could vary between eight and 13 years, depending on the circumstances. Though this was the main work of the court in this matter, the judges also issued a stiff warning to people not to “attack” judges “related to matters before the court”, adding that if they did so, they could face serious consequences.

African Court awards compensation for rights violations to Rwanda’s “Nelson Mandela”, Victoire Ingabire

When Victoire Ingabire was released from jail during September 2018, some of her many followers described her as the “Nelson Mandela” of Rwanda. She immediately called for other political prisoners to be freed in addition to those released with her. She said she was prepared to return to prison if that was the price to be paid to win freedom of speech and human rights in Rwanda. This week the African Court on Human and Peoples’ Rights awarded Ingabire significant reparations for the infringement of her rights by Rwanda and ordered that state to pay the reparations in full within six months or face escalating interest.

Return Iranian businessman’s passport, high court tells Kenya’s tax authorities

WHEN Iranian businessman Seyed Khavidaki took on Kenya’s tax authorities, not many people would have put money on a bet that he would win. He is, after all, the Kenya country representative of an outfit that allegedly owes Kshs188-m in tax and he is also the only avenue through which the revenue authority can reach the company concerned which has its base in the United Arab Emirates. To keep him in the country, Kenya’s official confiscated Khavidaki’s passport and issued a notice prohibiting him from leaving the country. But he has won at least a temporary victory, with the court ordering his passport returned and the prohibition notice lifted – pending resolution of the tax dispute.

Namibia’s retired Judge Pio Teek and his daughter lose defamation claim bid

FORMER Namibian supreme court judge, Pio Teek, has featured in judicial decisions more than once over the last weeks. Most significantly, the Supreme Court has confirmed the retired judge’s high court acquittal as pronounced at the end of his trial for sexual offences in relation to two young girls (see separate story below). The court strongly criticised the police investigation and other aspects of the way the state presented its case. But judgment in a second matter involving the retired judge has also been recently delivered, with the high court refusing a claim for defamation in which Judge Teek and his daughter wanted N$6-million in damages. The case is an off-shoot of a dispute over fishing rights. Judge Teek challenged a claim that he had suggested shares offered to him by an affirmative action fishing company should be registered in the name of his then under-age daughter; then, years later, he objected to an apparent reference to that issue in a separate plea filed in a different case, claiming defamation.

Former top Namibian judge, cleared on all sexual misdemeanor counts by the Supreme Court, now wants to sue

AFTER one of the most lengthy and grueling trials in Namibian history, former Supreme Court judge Pio Teek has finally been acquitted on all counts of sexual misbehavior first laid against him in January 2005. This week’s Supreme Court decision clearing him completely pointed out examples of shoddy work in the case by police investigators and others, and warned that the “systemic failures” evident in the case brought the system of criminal justice into disrepute. It could result “in a travesty of justice”, said the judges. Though the criminal case has now come to an end, there is a strong likelihood that former Judge Teek will sue over the charges and the state’s handling of the matter.

Tough, controversial contempt decision by Zambia’s highest court sends corruption activist to jail for six years

JUST days after a major international human rights organization released a report expressing concern about the level of official intolerance in Zambia, that country’s highest court has convicted an anti-corruption activist of contempt of court, sentencing him to an effective six years in jail. It is a controversial decision with human rights activists on both sides. The convicted man is Gregory Chifire, director of the Southern African Network Against Corruption, who questioned the outcome of an appeal in a high-profile commercial matter involving enormous financial stakes. His organization and others like Amnesty International have slammed his conviction and sentence. On the other side, the Law Association of Zambia welcomed the outcome, earlier having expressed concern about media allegations that judges, as well as some of LAZ’s own members, were corrupt in their handling of the controversial commercial case.

Billionaire advocate makes new law - on tax amnesty

WITH his flashy style, enormous wealth and handy political connections, billionaire Kenyan lawyer and businessman, Kenneth Kiplagat, regularly makes headlines. Now he is also making new law. In a major case against the country’s top financial officials he has won an order setting aside attempts to charge him interest and penalties for unpaid back tax. He has won a declaration that a particular aspect of the law on tax amnesties is unconstitutional. And, in a coup for members of the legal profession, he has also successfully argued that it is unfair for an advocate to be charged interest at 14 % for outstanding payments under the Income Tax Act (like every other taxpayer) when the maximum that an advocate may recover from a client is 9 %.

Long battle by 42 magistrates heads to employment and labour relations court

MORE than 40 former magistrates have taken another step in their fight against the Judicial Service Commission of Kenya. The magistrates have been contesting their 2003 dismissal, when they were “retired in the public interest”, a compulsory move made as part of “radical surgery” intended to deal with corruption in the judiciary at the time. They say they were wrongly dismissed and initially took their case to the high court’s constitutional division. But that court has now held that the 42 were indeed employed by the Judicial Service Commission and that their dispute should be heard by the employment and labour relations court. Charles Oyoo Kanyangi & 41 others v Judicial Service Commission of Kenya [2018] eKLR

Traditional king ordered to appear in court and testify about his decisions

High court judge, Maphios Cheda, was faced with a tricky issue earlier this month. A group of Namibian traditional leaders, ousted by the King after allegations of misconduct and other “transgressions”, challenged the King’s decision to remove them and appoint other traditional leaders in their place. The suspended leaders said the King was of advanced age and no longer able to make decisions on his own. They believed the decision to suspend them had not in fact been made by the King, and they wanted the court to order that he come to court and be examined on the origins of the letter sent to the suspended leaders under his name. Faced by the strong claim that the King had “mental challenges”, what was the court to do?

Second Training Session for Counsel on the Roster of the African Court on Human and Peoples’ Rights. Arusha, 9 - 11 July 2018

Opening address by Judge Sylvain Oré on occasion of the second training session for counsel on the roster of the African Court on Human and Peoples' Rights, Arusha, July 2018.

Customary Land Act and Regulations Now in Force in Malawi

The Customary Land Act, 2016 of Malawi commenced in March 2018.  The commencement notice was followed by Customary Land Regulations, 2018 in April 2018.

African Court Delivers a Landmark Decision on Statelessness

IN what is being hailed as a “monumental” decision for the continent, the African Court on Human and Peoples’ Rights has ruled that Tanzania arbitrarily deprived a man of his Tanzanian nationality. The judgment, likely to affect many “stateless” people in Africa, stipulates that a decision to strip someone of nationality may only be taken after a fair judicial process, and that arbitrary deprivation is in breach of the University Declaration of Human Rights. Tanzania has been given 45 days to restore Anudo Anudo’s nationality, fix the gaps in its legislation and report back to the court on what has been done to comply with its order.

Sick miners to get up to R500k

Historic settlement reached in silicosis case.

"Disgraceful abuse of legal authority" - attorney re-writes court's judgment before delivery

In what two high court judges have described as misconduct “unprecedented in the annals of SA judicial history”, a magistrate has been found to have allowed an attorney to re-write his judgment before delivery. Even worse, the attorney concerned had appeared for one side in the case that led to the judgment. The magistrate, who has since died, initially wrote a judgment four pages in length, but after the attorney’s re-write this increased to 10 pages. The case involved a civil claim against the minister of police who, on hearing that the final judgment had been written by the attorney representing the opposing parties, asked for the judgment to be set aside by the high court. Reviewing the matter, the judges strongly criticized the magistrate and attorney involved and ordered that the case be heard again, from scratch, by someone from outside the district where the first trial was conducted. They also ordered that the legal practice council investigate the conduct of the attorney involved, and that the magistrate and attorney pay the legal costs of the review on a punitive scale.

No gvmt budget to pay damages’ award is no excuse – high court

What is a litigant supposed to do when the government simply ignores court orders to pay damages? The problem can be starkly seen in this case of a Kenyan man who nearly lost his life when he was attacked and severely beaten by soldiers almost 30 years ago. Decades later, George Waithaka is still struggling to get the compensation due to him on the orders of the court. Faced by authorities who do nothing to ensure his payment, Waithaka has now won a contempt of court order against the official who should have signed the cheque.

Christmas is coming, so we're putting you in jail

In the midst of bad stories about the quality of justice being experienced in Zimbabwe’s courts comes a high court judgment that sees the accused as an individual – and that sets aside his trial sentence in the lower court as a shocking expression of the magistrate’s whims about burglars at Christmas.

Malawi’s CJ, JSC acted illegally over new appointments – high court

When a number of court clerks obtained an order temporarily stopping the country’s Judicial Service Commission and the Chief Justice from recruiting and appointing a certain category of magistrate until their employment dispute was fully considered by the high court, the stage was set: some high court judge would have to consider whether Malawi’s top judge and judicial appointment authority were acting illegally. Judge Zione Ntaba drew the short straw. Faced with this difficult and sensitive question she said the JSC had to devise policy on crucial human resource issues, so that decisions on the appointments of magistrates should be clear, unambiguous and consistent.

Copyright & A2K Issues - 14 February 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

“Ogoni 9” case back in the spotlight, this time in the Netherlands

The families of nine environment and human rights activists executed by the Nigerian government in 1995, have their hopes for justice pinned on a court in the Netherlands, where a preliminary round was argued this week.

Valentine's Day winner: New Tanzanian court rules improve experience of justice by vulnerable groups

Tanzania’s Chief Justice, Ibrahim Hamis Juma, has promulgated new rules that could greatly change how people from vulnerable groups experience courts and the justice system. That is why this is Jifa's winning Valentine's Day 2019 good news story: we like the care it shows for normally-forgotten people with no one else to champion their cause. The rules prioritise cases involving disadvantaged people, and set deadlines for finalizing matters in which they are involved. The new rules also provide that visually impaired people will get a free braille copy of any judgment or order in a case where they are involved, and that a specially assigned employee at each court will be responsible for making everyone at that court more sensitive to “vulnerability issues”.

Blunders set back fight against corruption

Namibia’s watchdog Anti-Corruption Commission (ACC) is in a great deal of trouble: a major bribery and fraud case, begun in 2009, appears to be imploding. Ten years after the scandal first broke that a member of the Public Service Commission, guardian of ethical conduct in the civil service, had been arrested and charged with two others in connection with massive corruption, the High Court has dealt what might be a crippling blow to the prosecution.  Judge Christie Liebenberg has found that because the ACC did not follow correct procedures its summonses issued to several banks were invalid. All the evidence against the accused from the banks was thus unlawfully obtained and inadmissible in court. Though an appeal has since been noted, the prospects of a successful prosecution seem increasingly bleak at this stage, particularly since this is not the first time the courts have knocked out evidence due to be heard in the trial on the grounds that it was improperly obtained.

Court tells Ugandan Law Council: ad hoc decisions about admission to practice wrong and must stop

The council that oversees access to the legal profession in Uganda has just experienced a thorough defeat in the high court. A full bench found the council had not passed the regulations it should long ago have put in place regulating admission of candidates to the roll of advocates. Instead it made ad hoc decisions about admission, something that was “wrong and must stop”. The council was also told that it was acting against the spirit of the East African Community Treaty which frowned on “protectionism” and that it could not unfairly discriminate against Ugandan would-be advocates with training and qualifications from other common law countries.

Reaction to shock suspension of Nigeria's Chief Justice

THE decision by Nigeria’s president, Muhammadu Buhari, to suspend the country’s chief justice, Walter Onnoghen, has come under increasing criticism at home and abroad. Following the suspension of Nigeria’s judicial leader, his deputy as chief justice, Ibrahim Tanko Mohammed, was sworn in as replacement. But Buhari’s decision has sparked considerable criticism with commentators pointing out that it comes shortly before a critical election in which Judge Onnoghen could have played an important role.

March 2019

UK court hands "Africa's last colony" an unexpected win

While two rival meetings were being held in Africa this week on the disputed future of Western Sahara, the territory – often referred to as Africa’s last colony – won an unexpected victory in court.

"You forged your salary increase letter" - now court awards damages for this allegation

The case of Evans Mukolwe will not give much encouragement to anyone considering a job with Kenya Wildlife Service (KWS). Mukolwe was recruited from a senior job with considerable prestige at the World Meteorological Organisation in Geneva. He was appointed to head the KWS in October 2003 but though he was promised that the salary would be made comparable to that which he had enjoyed in Switzerland, he was repeatedly frustrated when salary increases failed to materialise. Finally, in June 2004, he received a letter from the board of trustees giving him the increase and associated perks he had wanted. The upgraded salary lasted only a couple of months, however. Then he was suddenly suspended, without pay. KWS claimed that the letter telling Mukolwe about his pay increase was forged; a very serious claim to make about anyone, let alone a scientist who had been hand-picked and persuaded to leave his position in the WMO Secretariat. Understandably, Mukolwe sued and he has just been awarded more than Kshs24m ($240 000) in damages, plus three months' salary in lieu of notice as well as other payments.


AfricanLII and Laws.Africa develop and maintain the Indigo Legislation Platform, which makes it easier for you, government, commercial and non-profit organizations to capture, update and use legislation.

Collective Land Ownership in the 21st Century: Overview of Global Trends

Statutory recognition of rural communities as collective owners of their lands is substantial, expanding, and an increasingly accepted element of property relations. The conventional meaning of property in land itself is changing, allowing for a greater diversity of attributes without impairing legal protection. General identified trends include: (1) declining attempts to deny that community lands are property on the grounds that they may not be sold or are owned collectively; (2) increased provision for communities to be registered owners to the same degree as individual and corporate persons; (3) a rise in number of laws catering specifically to the identification, registration and governance of community property; and (4) in laws that acknowledge that community property may exist whether or not it has been registered, and that registration formalizes rather than creates property in these cases. The research examined the laws of 100 countries to ascertain the status of lands which social communities, either traditionally or in more contemporary arrangements, deem to be their own. Sampling is broadly consistent with numbers of countries per region. The constitutions of all 100 countries were examined. The land laws of 61 countries were scrutinized. Secondary sources were used for 39 countries, mainly due to laws not being available in English. The main secondary source used was LandMark, whose data is publicly available at .

Copyright & A2K Issues - 26 March 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Spy-thriller fizzles as Ugandan court acquits suspect

Official security networks in Uganda and neighbouring Sudan were set buzzing in 2013 when a Sudanese diplomat was expelled from Uganda. Shortly afterwards the story broke of the arrest of a Ugandan clerk in his country’s foreign intelligence agency, the External Security Organisation. Stephen Kisembo, a staffer of the ESO, had been found with secret documents, according to the story, and was to stand trial. He was alleged to have been delivering similar documents over several years to Sudanese diplomats, in a plan devised by the expelled envoy. However, six years later, and despite the apparently strong case against him, the high court has now found Kisembo not guilty.

Magistrates' recusal protests "insubordination" - Namibian Supreme Court

TWO regional magistrates who felt they were being badly treated by the authorities over promotion and then recused themselves in protest, have now been ordered back to work by Namibia’s top court. The magistrates stood down from several part-heard cases to highlight what they considered unfair treatment. The two, who held office in the district magistrates’ courts, had been asked to hear regional court cases in an acting capacity. But they were also informed by the magistrates’ appointment body that they were not suitable for full-time appointment to the regional court. This was because new regulations restricted regional court appointment to magistrates with certain qualifications only. According to the Supreme Court their protest actions were “sheer insubordination of great magnitude”, and though the justices expressed some sympathy with the magistrates, they reversed the recusals and ordered them to continue the delayed cases “with deliberate speed”.

Appeal court throws out one-sided racism case

Allegations of apartheid-style discrimination made by a group of doctors against an internationally-linked medical research institute have been questioned by Kenya’s court of appeal. The court overturned an earlier decision by the high court that found the Kenya Medical Research Institute (KEMRI) infringed the doctors’ rights to equality, dignity and property among others. The findings were particularly serious because, on the strength of them, the high court judge had also awarded significant damages against KEMRI to each of the doctors. The medics were involved as PhD candidates with the KEMRI Wellcome Trust Research Programme linked to Oxford University and their initial application alleged that local black doctors were providing the equivalent of intellectual slave labour to white researchers. The appeal court has now dismissed the original application and the damages award, saying the high court had considered the evidence of only one side in the matter, resulting in a “patent injustice”.

Liberia’s “tardiness” over money laundering investigations “condemned” by West African regional court

Judges of the West African regional court have joined the fight against money laundering. They have delivered a major new decision permitting the Liberian government’s continued freezing of an account through which vast sums of money have been moving back and forth. This despite the account-holders allegedly not having carried out a single business activity. At the same time, however, the court was not afraid to hold that government to account, criticising it for tardy investigation of the matter. The new judgment is also significant for clarifying an ambiguity that has troubled the court’s jurisprudence for some time and has given rise to contradictory decisions.

"Mind boggling" to resolve status of Swazi industrial courts

The Swazi courts have been battling to resolve the question of where the judges of the industrial court and the industrial court of appeal fit into the court hierarchy. In a long, complex and technical decision, that country’s highest court has laid down the law: the two industrial courts are inferior in the legal hierarchy to the high court and the supreme court, not equal to them. In a unanimous decision, five judges of the supreme court have sorted out the problem, but not without an immense struggle, for while they stress that the intention of the law makers has to be respected, that “intention” was clearly exceedingly difficult to fathom. “Mind-boggling”, in fact, to use the supreme court’s own words.

East African Law Society in plan to ease serious tensions between Rwanda, Uganda

The 17 000-strong East African Law Society has this week thrown its weight behind efforts to reduce growing antagonism between Rwanda and Uganda. Under its new president, Willy Rubeya, the society has offered to help with mediation, so that the border between the neighbours may be fully opened again and tensions eased.

Copyright & A2K Issues - 8 March 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Eviction from communal land only by chief or traditional authority - court

A small-scale farmer in the far north of Namibia wanted to evict his cousin from the same piece of land because the cousin was ignoring conditions aimed at protecting the highly-sensitive veld. But Judge Shafimana Ueitele found that the land occupation right did not give exclusivity – or the right to evict anyone from the land. Instead, that right belongs to the local chief or traditional authority.

Shock "advice" by International Court of Justice on another forgotten African colony

For tourists and investors, particularly those from South Africa, Mauritius is often seen as a quiet paradise, politically stable and a model of both democracy and humane economic development. Now, thanks to a new advisory opinion of the International Court of Justice, Mauritius – geographically part of Africa – has also been placed right at the forefront of an international political row that has its origins in the period of high colonialism and that involves the USA and its crucial defence strategies, the UK and the United Nations. The bottom line? - the ICJ tells the UK that holding on to islands that rightly belong to Mauritius, is colonial and illegal. It cannot continue and all UN members are obliged to help implement a plan to end it.

Challenging culture of impunity in Kenya

Three former university professors have brought a claim in Kenya’s high court asking for restitution for human rights infringements. They seem to be part of a trend to end the culture of impunity in Kenya. The three had been detained and tortured under a previous government, and now, more than 30 years later, wanted recognition of what had happened, plus compensation for how their lives had been ruined by the unlawful action against them. The professors’ court challenge was not the first in Kenya in which compensation was demanded for human rights abuses under the previous regime and the courts now seem more comfortable about agreeing to hear matters arising from decades ago. Going on previous experience, however, I wonder how long the professors will have to wait for the damages awarded by the courts, to be paid.

April 2019

Woman “unduly influenced” to sign by "bully" partner, so agreement invalid

Three high court judges in South Africa, sitting as an appeal bench, have found an agreement between a now-estranged couple is invalid because the woman signed due to the “undue influence” of her then partner. The agreement would have given the man half the sale price of the woman’s property if their relationship ended – which it did, just days after she signed, when he became violent and she obtained a protection order against him. The man then demanded his share of the property and business as detailed in the agreement. Although the trial court found in his favour, saying that she had not signed the agreement under duress, the appeal judges closely analysed the details of their relationship and found clear signs of his “undue influence” over her. They therefore held that she did not sign the agreement voluntarily and thus effectively set it aside.

Controversial land inquiry warned over infringing judicial independence

Tension between Uganda’s judiciary and a commission of inquiry headed by one of the judiciary’s own members has heightened following a new Court of Appeal decision. The appeal judgment refused to stay a huge, court-ordered payout to a local pastor and land broker, as ordered by the inquiry, and warned that the independence of the judiciary was at stake if court decisions and orders could be countermanded by a commission of inquiry.

"Iron fist" needed in fight against poaching, smuggling - court

Despite the scourge of wildlife poaching across Africa, the courts seldom see either poachers or smugglers in the dock. A recent trial followed by an appeal, however, has given members of the judiciary in Namibia a chance to express their concern about these crimes and to consider the prison term that should be imposed.

Copyright & A2K Issues - 26 April 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Lesson in democracy for Namibia's intelligence services

Namibia's top court has delivered a decision giving notice to the country's intelligence services that they, too, fall under the aegis of a constitutional democracy. The case concerned material collected by an investigative journalist that appeared to show the Namibia Central Intelligence Service (NCIS) was involved in corruption. But when he asked for comment he was informed that publication of his proposed story was unlawful, and the NCIS then went to court to enforce that prohibition. This week's judgment gave the Supreme Court an opportunity to explain that even the NCIS was bound by the values of an open and democratic society and could not count on the courts' blindly agreeing to banning publication even where 'not a scintilla of evidence' was provided to show that prohibition was necessary. If genuine grounds to prevent publication existed, however, these could be raised with a court behind closed doors.

Princess not considered for traditional throne - because of being a woman

For all its constitutional commitment to the equality of women, South Africa still experiences difficulties when it comes to matters of traditional leadership. That’s because these are often resolved at the local level in a way that assumes women are ineligible for traditional leadership roles. Take for example the question of who should fill the vacant Vhavenda throne. The Supreme Court of Appeal was asked to decide whether the traditional council acted in a way that promotes gender discrimination and, in answering that question, the court has now given a potentially far-reaching judgment.

Copyright & A2K Issues - 16 April 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Court “stands tall”, rules that state violates evictees’ rights

The failure of Uganda’s Government to pass laws protecting people evicted from private and public land has come under the sharp eye of the high court. Following an application brought by a local human rights lawyer, the court has declared that failure to pass laws setting out proper procedures in the case of evictions violated the rights to life, dignity and property of those affected. Judge Musa Ssekaana ordered the government to report back within seven months on its progress towards such legislative guidelines. The court also said these guidelines should be developed via public consultation and participation and with reference to the relevant United Nations-recommended best practice. Drawing from decisions of the courts in Uganda, Nigeria, Kenya and SA as well as international law and other UN documents, the judge said it was the state’s duty not only to protect property but also to ensure that the social and economic rights of the people were given meaning.

Zambian farmers head to UK courts for fight with international company over polluted water

Thousands of Zambian farmers, wanting to claim against a multinational giant for allegedly polluting their water with copper mining effluent, will have their day in court – in the United Kingdom. The UK’s Supreme Court this week ruled that the farmers could sue Vedanta and its Zambian subsidiary, Konkola Copper Mines, in the UK. The decision has been hailed as having the potential to affect many other cases involving international companies exploiting third world minerals and gas.

Zim judges may no longer sentence young male offenders to be caned: constitutional court

The law in Zimbabwe has allowed a court to impose a sentence of “moderate corporal punishment” on any boy under 18 convicted of any offence. This has been justified as a way of keeping young people out of prison, among other reasons. But now the country’s constitutional court says that this section of the law runs foul of developing human dignity jurisprudence. Corporal punishment, as a court imposed sentence, has to go – it cannot be retained in a society that wants to ensure no-one is subjected to degrading treatment or punishment.

Get your court paperwork in order, Namibian judges warn magistrates

What should the high court do when faced with trial records from the magistrate’s court that reflect the names of three different people in a case involving just one accused: one name at the typed start of the trial, a different name and age in the hand-written section of the record and a third name and age in the part of the trial dealing with mitigation? These and other problems have been taxing the high court in Namibia. Now, in a new decision responding to the records of 13 matters before them on automatic review, two judges have listed the most common mistakes they find in magistrate’s court records, and have asked that the magistrate’s commission take note.

Copyright & A2K Issues - 3 April 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Article 2845

Two African cigarette companies have been slugging it out in court for years, trying to gain advantage in the lucrative smoking markets of Uganda, Kenya, South Sudan and elsewhere. Both Leaf Tobacco and Mastermind Tobacco want to work the problem of access to South Sudan for their own benefit. Most recently Leaf Tobacco has sued Uganda’s revenue authority, saying it is complicit in allowing the smuggling of cigarettes, and that the Ugandan revenue authority ought to obey the orders of a court in South Sudan. So, what would the high court’s commercial division in Kampala have to say about such an argument?

May 2019

Diplomatic immunity challenge for five-state Southern African Customs Union

The Southern African Customs Union is the world’s oldest. Based in Windhoek, its origins date back to 1889. It was formally established in 1910 and forms a crucial commercial link between South Africa and all its immediate neighbours: Botswana, Namibia, eSwatini (formerly Swaziland) and Lesotho. It is also a union liable to stir strong commercial and other feelings. Most recently, it was the subject of an international law dispute, heard in the high court, Namibia, involving not just the union, but most of its individual members as well. As this analysis from Legalbrief Africa explains, the case concerns the claim by Clear Enterprises (CE), a transport outfit based in Botswana, that South Africa does not honour its obligations towards other members of the union. CE wanted to bring an action against the union, forcing it to make SA act towards its members as CE believes it should. But how could CE do so, when the customs union has been granted absolute immunity by the host state, Namibia?

We’ll protect you, Brazil’s supreme court tells gays; we won’t, say Kenya’s judges

Kenya’s high court has dealt a serious blow to that country’s gay community, by ruling that penal code provisions punishing “gay sex” are constitutionally valid. But judges in other parts of the world are meanwhile playing a far more pro-active role in protecting gay people who come under attack merely because of their sexual orientation. The latest court to offer protection to gays and transgender people is Brazil’s Supreme Court.

Meet the people behind Jifa's judicial training courses

Have you never been on a course offered by the Judicial Institute for Africa (Jifa), though you would like to? Do you read Jifa’s weekly newsletter and wonder at the people and the organization behind it? Would you like to know how to get more involved in the work of the Institute? The upcoming conference of the Africa regional bloc of the International Association of Judges being held in Cape Town next week gives you the perfect opportunity to meet us and have all these questions answered.

How a star liquidator fell from his perch

The fortunes of one of South Africa’s most prominent and successful liquidators, Enver Motala, have suddenly and rapidly declined, with his business ethics and behaviour called into question. Now the Supreme Court of Appeal has made it clear: his “disgraceful and dishonest” conduct means that its judges will not overturn the decision by the Master of the High Court to remove him from the panel of liquidators appointed to settle the affairs of companies in liquidation. Here is a story about his rise and fall, seen through the lens of the new court decision, from which readers may well conclude that he would be wasting his time to appeal any further.

Crucial meeting on judicial independence in Africa: June 2 - 6, 2019

Leading members of the judiciary across Africa will be gathering in Cape Town, 2 – 6 June 2019, and their focus will be on a crucial issue challenging judges from virtually every part of the continent: judicial independence and everything that promotes or hinders it.

Against all advice, prisoner appears for himself in a fourth trial for murder – and wins

The words we bring you this time are not the words of a court. Instead, they are the words of Hassan Bennett, a man from Philadelphia, USA. What makes his story unique is that, with the spectre of a mandatory life sentence before him, and having already spent 13 years in prison, he appeared for himself, in full prison garb, to argue a fourth trial on the same count – and he won.

High-ranking accused in "scurrilous" bid to remove foreign judges from Lesotho cases

When Judge Charles Hungwe from Zimbabwe arrived in Lesotho earlier this year to start work on a series of controversial trials, he was given a warm reception in the local media. But since then the accused in some of the cases over which he was due to preside proved rather less than welcoming. In fact, 16 accused initially due to stand trial before him, led by Lesotho's former defence minister, Tseliso Mokhosi, have brought an application for his appointment – and the appointment of all other foreign judges who might hear the pending cases – to be declared unconstitutional.

End of the road for Ghana Bank official, sacked after taking King’s cash by cab for depositing

When you are summoned by His Majesty, Ghanaian King Otumfuo Osei Tutu II, courtesy demands that you attend as quickly as you can. But how could London banker Mark Frank Arthur, second most senior official of Ghana International Bank, have known that the summons, via the king’s wife, would lead to his dismissal from the bank – and, he now fears, to his becoming unemployable in the financial sector?

Malawi police will be investigated for suspect's torture death

The Malawi Human Rights Commission this week released a report finding police responsible for the death, by torture, of a man unlawfully arrested on suspicion of being involved in the abduction and killing of a child with albinism. This is just the latest development in the horror of Malawi's increasingly endangered albino people, murdered for their body parts to satisfy occult beliefs, and it follows just days after a high court judge passed the death sentence on the convicted killer of a man with albinism (see separate story below).

Bank 'secrecy' ruling a blow for transparency, media freedom

The High Court of Eswatini (formerly Swaziland) has upheld and defended the secrecy surrounding that country's central bank. The court had been asked by the governor of the central bank for an interdict preventing a local newspaper from reporting on a leaked confidential document relating to Farmer Bank, Eswatini's newest financial institution. When the  Times  asked the governor a number of questions relating to the central bank's investigations on whether to grant the banking licence, he demanded an undertaking that 'the report' would not be published. And when the undertaking was not given, the bank went to court. The judge accepted that strict confidentiality had to be preserved 'at all costs' and that any leak could upset the country's financial stability and impact on central banks 'worldwide'.

'Devilish', 'primitive' murder of man with albinism warrants death sentence – Malawi judge

The last court-imposed execution was carried out in Malawi during 1992. Some 15 people were on death row at the end of 2017, and though the number has increased since then there have been no further hangings. However, the question of whether the death penalty will ever actually be carried out has now been given a new urgency, following the sentence of a man convicted for murdering a fellow villager with albinism in the apparent belief that this would make him rich. Sentencing the accused, the judge reasoned that the whole country lived in fear because of “devilish, primitive” crimes against albino people, and that the courts had a duty to impose the ultimate sentence as a deterrent.

“Raging” debate on bail sorted by Tanzania’s highest court

When members of a country’s highest judicial forum speak of a dispute that is “raging” in the courts there, readers should take note. Obviously, something important is going on. In the case of Mwita Joseph Ikoh and two co-accused, that “something” is the issue of which court has jurisdiction to consider whether they may be given bail: the high court, or the specialised division of the high court that deals with corruption and economic crimes. Earlier this month the Court of Appeal decided the question – and the “raging” debate should now be settled.

Jifa newsletter “essential reading”: judge trainer

This week’s Core Skills course offered by the Judicial Institute for Africa brought a new group of judges together from all over the continent. Even the faculty teaching the course had some new faces, one of them being Judge Sanji Monageng, who was once a magistrate in Botswana, as well as a judge in The Gambia and on the International Criminal Court among other judicial positions. Jifa’s Newsletter chatted to her briefly about her experience over the week of training and about the newsletter itself – and discovered she regards the weekly newsletter as “essential reading”.

Justice for these elderly folk – 21 years later

Well over 20 years ago the Kampala municipal authorities retrenched a group of long-serving workers. But they were not paid their full termination benefits. For more than two decades the group has been fighting to get the money to which they are entitled. They were ultimately awarded a certain sum plus damages by the high court in 2015 but they appealed, saying it was far too little. Now Uganda's Court of Appeal has given its decision on the matter. Would the judges find the pensioners ought to have been better compensated after 21 years of poverty?

Lesotho police service becoming "an institution of official torture" - constitutional court

The police in Lesotho, rapidly acquiring a reputation for acting as though they are above the law and even above the courts, have had a rude awakening: that country’s constitutional court has delivered a strongly-worded decision taking the police authorities to task for not obeying the law, and clarifying the rights of suspects in relation to police arrests, detention and interrogation. The judges found that the police violated the constitutional rights of two suspects, held far beyond the time provided for by the law and under unlawful conditions. They also said that, against the background of a “disturbing public outcry about increasing deaths of suspects in police custody”, it was time for “a judicial response” by way of “guidelines” for the police, prosecutors and the magistrates court.

‘Demeaning’ to portray counsellor as HIV-positive sex worker? – court rules

A specialised network of organisations responding to the issues of HIV/AIDS and tuberculosis in Kenya has come in for some unwelcome publicity. This after it used a photograph of one of its own staff on its website, with a caption that identified her as "an HIV positive sex worker waiting for treatment". The staffer in the photograph was awarded damages by Kenya's HIV/AIDS tribunal, but her employers appealed. They argued that it was not "demeaning" to say someone was a sex worker nor was she defamed when it was said of her that she was HIV positive. What would be the response of Judge Joseph Sergon of the High Court in Nairobi?

Controversy follows this Ugandan judge, from roads to land

Justice Catherine Bamugemereire of Uganda’s Court of Appeal has something of a name for being a tireless fighter against corruption. But her commission’s findings against a key figure in a 2015 report into allegations of fraud in the country’s national roads authority has just been set aside by the high court on the grounds of her perceived bias against him, and because his right to be treated fairly was infringed.

June 2019

Hearing obligatory before police are transferred  – Lesotho’s Court of Appeal

Is there a legal principle granting a hearing before a decision is made to transfer police officers in Lesotho? It was a topic of some heated discussion in that country when two officers – one of whom had been transferred eight times in a 17-year career – were given their transfer papers without a prior consultation or hearing. The Court of Appeal has now held that though the Police Act says nothing on the subject, there was a legitimate expectation that there would be a hearing – unless the police authorities could prove that “special circumstances” existed. And, said the court, it would “strictly interpret” the existence of special circumstances.

Uganda’s anti-gay laws feature in UK immigration hearing

Because of Uganda’s well-known punitive approach to homosexuality among men and women a specialist UK court has ordered that a woman, deported from the UK to Uganda, should be returned so that she could continue her efforts to be given asylum. The woman, known only as “PN” had claimed she should not be sent back to Uganda as she was a lesbian and would be subject to discrimination, prosecution and worse, on account of her sexuality.

Landmark ruling gives immigration abuse inquiry more muscle

Two detainees from African countries, held at Brook House, an immigration detention centre close to the UK’s Gatwick Airport, are at the centre of an important new decision by the UK courts. This decision, delivered last week, will enable an inquiry into horrific abuses of detainees at Brook House to be held in public. Almost more important, it ensures that the inquiry will have the power to compel staff from the centre to give evidence.

Judge, no soccer fan, recuses himself from murder trial involving fanatics of the game

Judges have a duty to hear cases that come before them, and so decisions to stand down and refuse to hear a matter should only be made on very serious grounds. What then, is the public to make of the decision by a judge of the high court, Eswatini, to recuse himself from a sensational murder trial, half way through the case, on the grounds that some of his family and friends have or had close links with a soccer club whose fortunes might perhaps somehow be implicated in the killing? The judge himself, as he strongly reiterated, has no affiliation to any soccer club’s fan base, and recognizes that the links for which he stood down are “indirect”. Just as troubling: why did the prosecution not appeal the recusal decision; and why did the Chief Justice appoint another judge to pick up the trial, mid-way, instead of starting afresh?

Without the SADC tribunal, “legitimacy of SADC community in jeopardy” – Tanzanian high court

Tanzania’s high court has come out strongly on the human rights implications of suspending the Southern African Development Community Tribunal, the regional court originally set up to consider disputes between states as well as between individuals and states. In a landmark decision the court said that without the tribunal, “the rule of law in the internal management of SADC and its institutions would be nothing but a pipe dream.” The new decision by the Tanzanian court follows a judgment by South Africa’s highest court finding Pretoria had unlawfully backed the demise of the Tribunal. The SADC Lawyers Association, that has been helping coordinate regional challenges to the suspension of the tribunal, has welcomed the new Tanzanian judgment and says that because the Presidents who supported the suspension are no longer in power, the time has come to consider re-establishing the Tribunal with its original mandate.

Mass prisons’ promotions declared invalid by Lesotho’s appeal court

Eight officers of Lesotho’s correctional services were suddenly appointed to higher positions during March 2015. The mass promotion was however successfully challenged by the Lesotho Correctional Services Staff Association which claimed the whole exercise was conducted unprocedurally. Now the Court of Appeal has agreed that the acting head of correctional services acted beyond his powers in making the appointments. This is bad news for the officers concerned because it means that they must refund all the extra money they were paid on the basis of the unlawful promotions.

Copyright & A2K Issues - 21 June 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Top Zim judges “regret” no change to outdated law that harms women

Activists for women’s rights have been challenged by Zimbabwe’s court of appeal to lobby for changes to the law to protect spouses and families. As it stands, the law allows one spouse to alienate his or her half share of the matrimonial property even without the permission of the other spouse. A case just decided by that court illustrates the problem: a woman who paid for the family home entirely out of her own earnings, but then had the property registered in the names of both spouses, now risks co-owning the house with a complete stranger after her husband’s share was attached to satisfy a debt for which he stood surety.

Abortion allowed when pregnancy follows rape - Kenya's constitutional court

The right of Kenya's girls and women to abortion where their physical and mental health is at risk, has been confirmed by five judges of that country's Constitutional Court. The judgment is all the more significant coming just a few weeks after the same court rejected any lessening in the legal burdens of gay men. The latest case challenged the decision of Kenya's director of medical services (DMS) to withdraw guidelines on an abortion training curriculum for health care practitioners, and to threaten disciplinary action against anyone who attended the training; this despite constitutional provisions that allow for abortion in certain circumstances. In the wake of these decisions by the DMS, a 14-year-old girl who became pregnant after being raped, had a botched illegal abortion and later died when various government facilities were unable to help her. Her family brought an application against the government saying that the decision to ban training on dealing with abortion and after-abortion care had led to her death.

Judicial officers urged to join associations

One of the strong themes of the International Association of Judicial Officers' Africa region conference was that judicial officers should join professional associations. This call came after decades in which judicial leaders have strongly advised against such associations, and at a time when they are still regarded with some suspicion in top judicial circles. Throughout the conference, speakers stressed the importance of such associations for judicial officers, not just in relation to conditions of employment, but also in helping maintain the rule of law.

"Timorous" judges vs "bold spirits"

The positive role that judges could play in Africa has been hampered by the increasing politicization of the judiciary, judicial corruption, lack of resources and judicial conservatism, according to Professor Charles Fombad of the Institute for International and Comparative Law in Africa at the University of Pretoria. In a challenging address to the International Association of Judges’ Africa region conference in Cape Town, Fombad urged judges to take note that if these issues were not properly dealt with, the “reverse winds” of authoritarianism and the decline of good governance and constitutionalism, caused by politicians clinging to power, might prevail.

Magistrates are judicial officers, not civil servants - Joasa

The proper place of magistrates within a constitutional state came under the spotlight again at the closing ceremonies of the International Association of Judges’ African region conference, held in Cape Town. It had been a recurring theme throughout the conference, with delegates from a number of countries complaining that magistrates were often treated as civil servants, and their judicial independence ignored or undermined by government.

Standing ovation after acting Chief Justice tells of her judiciary's plight

One of the most crucial sessions of the conference called by the International Association of Judges' Africa region dealt with reports by the countries represented at the event. This provided an opportunity for all delegates, and top officials of the International Association of Judges who attended the conference, to hear the particular challenges faced by judiciary and the justice system of each country. Several outlined serious difficulties, but the plight of the judiciary in Lesotho touched delegates particularly deeply, and had people talking right to the end of the five-day gathering.

Top judge pleads for protection of judicial officers

The safety of judicial officers was a recurring theme during the conference of the International Association of Judicial Officers' Africa region. These dangers - even in court - were starkly illustrated just as the conference was ending: a fight broke out between members of rival gangs in the corridors of the Johannesburg magistrates court. Members of the public tried to hide or run away, and eye-witnesses said only the quick intervention of police prevented serious injury. In his welcome speech at the opening dinner of the conference, the Judge President of the Western Cape, host province of the event, raised the safety issue for what would be the first - though not the last - time during the five-day event.

Bucking regional trend, Zim court gives go-ahead to sue for adultery

Flaring political passions in the region continue to make news headlines, but the courts have been hearing about other kinds of passion as well. While Zimbabwe is alight with raging political conflict, and while citizens die at the hands of the police and security forces, the judiciary has been dealing with the burning issues of sex, adultery and maintaining the country’s “moral standards”. In a recent decision, the high court in Harare has held that a damages claim for adultery may go ahead. Judge Alfas Chitakunye decided a special plea by the woman with whom the husband in the case allegedly had an affair. While the woman claimed that for a number of legal reasons the court should not hear the matter, Judge Chitakunye said that public views and “the community’s general sense of justice” would not permit doing away with the delictual claim for adultery. In Swaziland, meanwhile, a magistrate and a court president have made headlines about their private lives. In a sensational case one accused the other of having an affair with his wife. After a child, now 15, was born of the affair, the matter was dealt with in the traditional way, with the royal kraal fining the offending man seven cattle.

Courts get wise to Big Tobacco strategies

Africa’s courts are getting wise to the strategy of Big Tobacco in trying to fight off strict control over issues such as the size of health warnings on packaging. Uganda’s Constitutional Court has just dismissed a major attack brought by British American Tobacco (BAT) on laws that increase the size of health warnings, impose tough restrictions on where smoking is lawful, and hold tobacco company officials personally responsible when certain sections of the law are infringed. In its judgment, the court referred to a report on how such companies fight tobacco control, and the list of strategies included many that were in evidence in this case. Dismissing the petition, the court said it was “part of a global strategy” by BAT and its tobacco-selling peers to undermine laws in order to increase profits despite the risk of tobacco to the health of the “human population”.

It's not just sex: sexual orientation discrimination no longer allowed by Botswana’s constitution

Botswana has become the latest African country to decriminalize sexual relations between same-sex male couples, a particularly sweet victory after last month’s flat rejection of a similar application by Kenya’s constitutional court. What makes the decision from the court in Botswana even more significant is that the judges have effectively included sexual orientation as a ground on which discrimination in that country is now unconstitutional.

Dame Linda Dobbs and the Russian connection

Judges who have been part of the training offered by the Judicial Institute for Africa (Jifa), will have been fortunate enough to meet Dame Linda Dobbs, Jifa's head of training. But few will know much more about her: though Dame Linda is outgoing and extremely helpful with her advice, she is not given to talking about herself. However, she is profiled in a recent edition of Counsel Magazine, the monthly journal of the Bar of England and Wales. And from the discussion between Dame Linda and her interviewer, barrister and diversity champion Desiree Artesi, readers will see that the UK suffers many of the same problems as certain African countries when it comes to diversity and the promotion of women to judicial office.

Botswana: Criminalisation of Consensual Gay Sex is Unconstitutional

The High Court of Botswana has ruled that a ban on consensual gay sex is unconstitutional.  Read the full judgment below, which is reproduced here until such time as BotswanaLII is established.  The PDF of the judgment may be downloaded here .

Local shooting club targets Namibian defence force

In a bizarre case, due to be heard in the Namibian courts next week, the country’s defence force is alleged to have taken over the premises of a private shooting club outside the town of Rehoboth just before Christmas. The club says the army changed the locks and warned that the site is now off limits to the public as it is a “military zone” – all of this without notice or warning. The club is fighting back against this military might, by making an application for a spoliation order. Members say unless the dispute is heard urgently, their charitable work in the local community will be decimated and their other club activities will also be halted. The club’s officials claim that the defence force has taken the law into its own hands and that the club’s rights are being violated.

Copyright & A2K Issues - 7 June 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Death sentence or 7 years for the same offence? – Kenya’s conflicted Penal Code

When a death row prisoner has his date with the executioner commuted and starts a lifelong relationship with the inside of a prison instead, he will usually continue to explore every avenue to escape a prolonged life behind bars. Those explorations seldom amount to anything, but in the case of two prisoners waiting out their life-term in a jail in Kenya, luck – and a failure of Parliament to sort out a conflict of laws – was on their side.

July 2019

Copyright & A2K Issues - 30 July 2019 (Part 2)

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Copyright & A2K Issues - 30 July 2019 (Part 1)

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Malawi's national broadcaster refused permission for "live" coverage of major trial: here's why

Malawi's high court judge Zione Jane Veronica Ntaba is no stranger to controversy. Among her decisions she found her country's Chief Justice, Andrew Nyirenda and the whole of the Malawi Judicial Service Commission had acted irregularly, illegally and unconstitutionally. Now she has made another noteworthy decision, turning down a request to have the second half of a potentially sensational trial broadcast by the Malawi Broadcasting Corporation. Here’s the background – and her reasons.

Uganda’s courts ‘too westernized to handle cultural, customary issues’ – high court judge

Prominent Ugandan high court judge Ssekaana Musa has told litigants in dispute over traditional leadership that they should ‘always’ refer such quarrels ‘to the King or traditional or cultural leaders’. Judge Musa was considering two disputes about traditional leadership positions. He said that courts should discourage ‘petty issues’ like who was the rightful heir, family head or chief prince, from being ‘dragged to court’. These matters would be better dealt with by the established mechanism of a particular community, he said.

Last minute 'settlement' in Lesotho's shock judicial disputes

As fresh elections in Lesotho seem increasingly likely because of splits in the ruling party, a last minute settlement means the judicial disputes that have shocked the legal world over the last month are, at least for now, off the table. The settlement came shortly after new details emerged of barbed correspondence between the President of the Court of Appeal, the Acting Chief Justice and the Prime Minister, Thomas Thabane. The correspondence formed part of the founding affidavit in papers filed by the law society of Lesotho in litigation aimed at preventing the appeal court president's suspension. It is widely believed that Thabane wants to get rid of the appeal court president, formerly a judicial favourite of his, because the Prime Minister no longer perceives the judge to be on his side in the ruling party's continuing leadership struggle.

Abortion conundrum for court

Imagine you are an appeal judge in a country that permits abortion under certain conditions. One day, you hear the case of a young woman unable to give consent to a termination due to her permanent mental disability and behavioural problems. Doctors who assessed her were unanimous that an abortion would be in her best interests. Her adoptive mother however was strongly against the idea. The judge in the high court declared that the young woman lacked legal capacity to consent to an abortion, but that it would be lawful and in her best interests for doctors to terminate the pregnancy. As an appeal court judge, what would you say?

Dispute between top judges and political leaders in Lesotho hots up

The ongoing drama involving open conflict between political and judicial leaders in Lesotho continued this week and there is no sign that anyone is about to relent. Three potentially explosive challenges have been brought to court over the last few days, one of them a late-night urgent application. Two are for appeal while one is to be heard in the high court. All of them involve the judiciary probing highly sensitive political and judicial issues and raise questions of judicial independence. And in the meantime, a court of appeal judgment that has now been reported, throws more light on the dispute between Lesotho’s beleaguered Prime Minister, Tom Thabane, and the president of the court of appeal, Kanenelo Mosito.

Human trafficking reports show sub-Saharan Africa a global player

The UN has just released its latest reports on human trafficking around the world. It shows that while most African countries now have proper laws in place, some countries do not use these laws and report no investigations and no prosecutions. One study quoted by the UN report estimated that 357 million children lived in conflict areas in 2016. Every one of them would have been at risk of exploitation by armed groups or other traffickers.

Landmark defamation ruling clarifies standard for media

A Zambian TV journalist has won his defamation case against his own bosses, 10 years after the station carried repeated broadcasts showing his arrest outside the studio for allegedly raping a teenager. The judgment by the country’s highest court gives legal finality to the matter, but also provided an opportunity for the court to re-state the standards by which it will consider a defence against defamation. The case involved a young girl, who claimed she desperately needed overnight accommodation. The journalist offered her space for the night, but the next day she told the station bosses that he had raped her. Without calling him in to ask his side of the story, officials contacted the police and stage-managed his arrest on camera. The court also heard that the girl was taken for a medical examination by another journalist but though the results could have been obtained, the TV station either did not do so, or knew the results – showing the girl had not been raped – and did not mention this in its report on the arrest.

Should these judges have spoken out?

Three women judges of Zambia’s court of appeal have dismissed a young man’s appeal against his sentence of 30 years imprisonment with hard labour for violently raping his 12-year-old cousin three times. He maintained he took the girl as part of a Tonga custom in terms of which, as the judges put it in their decision, ‘one can abduct a woman ... have sexual intercourse with her and later formalize the marriage’. But though they dismissed his appeal against sentence, the judges did not take the opportunity to criticize the custom. They simply rejected this justification of his actions, because the trial record did not mention any agreement between the accused and the girl’s father for her to be abducted for the purposes of marriage. Why don’t judges speak out and condemn barbarities such as rape carried out in the name of custom and traditional marriage?

Lesotho’s PM threatens top judge with second impeachment

Judicial politics in Lesotho, highly fraught for some time, must now be the despair of the continent. For the fourth time in just a few years, a cloud hangs over a top judge of this mountain kingdom, with threats of suspension and impeachment. The latest development has been laid bare for the whole country to see, with the leaking of two letters indicating the struggle going on behind the scenes - and judicial independence, along with the Rule of Law, is very much the victim.

Top Namibian Minister quits after corruption conviction

It is not common to read of a high court finding a government minister guilty of corruption but, this week, what might be unthinkable in many countries came to pass in Namibia: the Minister of Education, Arts and Culture was convicted under anti-corruption laws for actions taken when she was still a district Governor. Katrina Hanse-Himarwe has since resigned, getting in first as it became clear that President Hage Geingob planned to dismiss her.

Foreigner's health issues insufficient to halt deportation

How poor must a country's medical facilities be before the UK courts may bar government from returning an illegal foreigner there? It is a question UK judges are increasingly having to grapple with, most recently in the case of 'PF', a Nigerian who has a serious, chronic disease. He also has a lengthy criminal record for which the UK authorities want to deport him.  PF suffers from sickle cell disease and his lawyers say to send him back to Nigeria would condemn him to an early, painful death. They also argued that the distress to his children if he were deported would infringe the European Convention on Human Rights. Though PF won an earlier round in his battle to stave off deportation, the Appeal Court has now found it has no evidence that he would not be able to access morphine and other medicines he needs in Nigeria. Deportation would thus not cause a 'serious, rapid and irreversible decline in health resulting in intense suffering', the current standards a deportee must meet before UK judges may set aside a deportation order on the grounds of illness.

Uganda’s human rights law takes enforcement to new level

What must surely be one of the most significant laws passed by the present administration in Uganda is being used for the first time in a pending court case – and the police officers involved in the case must be worried about the outcome as well as its possible impact on their pockets. That’s because they could be held liable if they are found to have infringed the new law by violating the human rights of the applicants. They could also be ordered to pay part of any damages that might be awarded, and might also be dismissed.

Copyright & A2K Issues - 8 July 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

"Contemptuous" report on planned major coal power plant dismissed by Kenya's environmental tribunal

In one of the most significant victories ever won by Kenya’s community and environmental activists, the National Environmental Tribunal has cancelled the licence for a controversial Chinese-funded coal power plant due to be erected near the town of Lamu, next to the sea. Among the sharp criticisms of the developers by the Tribunal was its failure to carry out proper community consultations.

What is a life worth in Uganda's courts?

Two recent decisions from the civil division of Uganda’s high court provide an interesting contrast. International media have picked up on one of them, in which a man was arrested by police, “violently beaten” by them and then taken to the cells where he was found dead next morning. The other, given virtually no publicity, concerns a man who was unlawfully held for four days in detention and then spent the next four years, on bond, forced to report regularly to police, before his bond was cancelled and the whole issue collapsed. Which case do you think won the higher damages award by the court?

August 2019

Keen interest in Jifa's first environmental law training course

Judges from across the African continent have been attending the first specialist course offered by the Judicial Institute for Africa (Jifa) on environmental law. The week-long course has brought together specialists in the field and already the participating judges have been asking for a further in-depth course as they have now become aware of how many of the matters they will hear could involve issues of environmental law.

Conservation victory as Kenyan judge rules against Ministers

One of Kenya’s fabled national parks and the most remote of them all, is allegedly under threat by the actions of two cabinet ministers and the neglect of the country’s wildlife service. That is according to claims made in litigation before the environmental and land court. The case concerns the Malka Mari national park along the Daua River forming the border with Ethiopia in the far north east of Kenya and near the boundary with Somalia. Granting an urgent interim order to prevent the ministers allocating any further land to squatters or offering tenders for any further buildings or infrastructure, the judge said the matter was in the public interest and that the ministers and other respondents had not challenged any of the allegations against them.

Magistrates in Lesotho introduce new deal for awaiting trial prisoners

Magistrates across Lesotho, concerned about the continuing conditions there that they believe impact negatively on the rule of law, judicial integrity and general confidence in the legal system, have taken a number of resolutions likely to impact on the courts and the public. Among others, they have resolved to release people being held awaiting trial if their cases ‘are not prosecuted within a reasonable time’. They have also resolved to dismiss criminal cases where ‘pending investigations’ have continued for an ‘unreasonably long time’.

‘Hear the voices speaking on behalf of the dead’ – court

At the centre of most murder trials are two people: the attacker and the deceased. During evidence in mitigation of sentence, the court and the public hear something about the person on trial. But when, if ever, is the voice of the deceased person heard? Who speaks for him or her? This decision, last of our special Women’s Month focus on decisions affecting women, is by Judge Christie Liebenberg of Namibia’s high court. He said he saw no reason why the family of a murdered person should not lead evidence about him or her as a person and the impact of that death on the family. Once the family evidence had been led, it could be considered when the court decided on aggravating circumstances. Given the horrifying number of gender-based killings, this approach is to be welcomed: it would, in theory at least, allow such a woman a voice in court.

Self-confessed poachers acquitted after prosecution’s mistake

Two Tanzanian poachers, who admitted they shot two animals in a national park, have been acquitted and set free on a second appeal. The country’s chief justice and two other appeal court judges found the prosecution had made crucial mistakes in the trial of the two men. The poachers had initially pleaded guilty to tracking and killing an impala and a kudu in the Ruaha National Park.

Copyright & A2K Issues - 28 August 2019

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Copyright & A2K Issues - 23 August 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Daughters: 'children of a lesser god’

This case is the third in our Women’s Month series on how courts deal with matters involving women. The case includes 13 invisible daughters and a fraudulent attempt by the estate administrator to cut out all the other sons and direct family from inheriting. So when Judge William Musyoka, of Kenya's high court - the third to become involved in the matter - found out, he put his foot down. He referred to the law on succession and to the constitution. Both make clear that discrimination against daughters and wives would not be tolerated. When sons and conniving chiefs tried to prevent daughters and wives from inheriting, the court was obliged to stop it, he said. Because Judge Musyoka bothered to give the papers and previous court orders very close scrutiny, he picked up the problem. Then he insisted that the daughters, along with the widows, had to be involved. And that is why his decision is our judgment of the week.

Former judge Michael Ramodibedi RIP

The most controversial judge in the SADC region over the last several decades, Justice Michael Ramodibedi, has died. Judge Ramodibedi, 74, died in Johannesburg but the cause of death has not been confirmed. He leaves his wife and five children. Among other positions, the judge served as Chief Justice of what is now known as Eswatini, and as president of the court of appeal in his home country, Lesotho. He left the bench in both countries under a cloud of disgrace.

Copyright & A2K Issues - 21 August 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Copyright & A2K Issues - 20 August 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Copyright & A2K Issues - 19 August 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Mentally ill man can’t be returned to Sierra Leone – UK courts

There might be widespread agreement that mental illness should be de-stigmatised, but that does not make it any easier for courts dealing with people who show signs of serious psychological ill-health and who are liable to mistreatment because of their illness. In this case, the UK courts were faced with the problem of a man from Sierra Leone, who believed he was the son of legendary Jamaican reggae singer Bob Marley and had absolutely no understanding of his mental condition. He has been fighting to stay on in the UK, saying the government of Sierra Leone would victimize him on his return because Marley, his father, had started a local war there. The government would also ‘want to recruit him’, again because Marley was his father.

Swazi court refuses bail for suspected human trafficker

With the eyes of the world now more sharply focused on human trafficking, all attempts by African courts to help stamp it out are important and will be reflected in annual international surveys. Though cases of trafficking are still something of a rarity, a Swazi judge, Mzwandile Fakudze, recently heard a bail application by a suspected trafficker and turned him down.

A challenge for women in Kenya: get this law changed

Our Women’s Month judgment this week comes from Kenya’s Judge William Musyoka. What makes his decision stand out is that he has found and highlighted an anomaly in the law dealing with rape, a particularly traumatic crime that is all too prevalent. He explained that the same set of facts could be considered under either of two provisions, but one could attract a much lighter sentence than the other. He said he did not understand why there should be two provisions and why, as in this case, the state would choose to charge the accused under the section that would result in a lesser sentence. It is a welcome and important step when judgments pay such close attention to the laws that affect so many – most of them women and children; when they challenging anomalies that see perpetrators walking away with ‘a slap on the wrist’, as Judge Musyoka put it. His judgment is a challenge to the legislature to reconsider the law and close the escape route that could see a rapist spending very little time in prison despite the horrendous nature of the crime.

Judge slams domestic violence, femicide and urges tougher sentences

The first judgment chosen as part of Jifa’s Women’s Month focus is from Eswatini. It deals with the murder of a young woman who had a young child, now an orphan. What makes this judgment on sentence different from many others we read each week, is the comments by the presiding judge, Titus Mlangeni. Many judges handle cases of violence against women as though they were traffic offences, with no comment on the impact of such crimes on the whole of society. Judge Mlangeni, however, speaks about the prevalence of domestic violence and the need for men to learn that they should walk away from disappointments in love rather than physically acting out their anger. He also says the time has come to increase sentences in such cases because domestic violence has become such a problem. If you were a member of the girl’s family, or a woman or girl living in Eswatini, and you heard this judgment, you would feel the judge understood the constant pain and the fear you suffered. If you were a man, you would also feel the impact of his words.

Unilateral salary hike by Uganda's MPs ‘unconstitutional' - highest court

Uganda’s highest court says MPs act unconstitutionally when they give themselves salary hikes. Instead, the government is supposed to introduce proposals for increases, as the costs of the increases are charges on the country's Consolidated Fund. The court’s seven judges said a section of the law that appears to let MPs decide these issues without government involvement, is unconstitutional. It had to be removed because, if left on the statute book, ‘it is bound to be used by Parliament to violate the constitution.’

RIP Seychelles Justice Prithviraj Fekna

Justice Prithviraj Fekna, who served on the Seychelles Court of Appeal, died unexpected this week. He had been sworn into office as a non-resident member of the appeal court on 27 June this year. Previously he had been a member of the Supreme Court of Mauritius.

Planned changes to Zambia’s constitution ‘infringe judicial independence’

Zambia’s ruling Patriotic Front government is in the process of piloting wide-ranging changes to the country’s constitution into law. The proposed amendments have drawn considerable criticism from political opponents of the PF on grounds of poor drafting, infringement of individual and community rights and of threatening judicial independence, among others. They are also under fire from local and international legal and human rights organisations.

Long delays in Ugandan justice system “no speculation” says Supreme Court judge – and grants bail

Faced with an application for bail pending a last appeal, how should a senior court approach the reality of this situation: long delays will mean that the accused could well have served his entire sentence by the time the appeal is heard? Here is what Uganda’s highest court had to say on the subject.

Raped child not sworn in properly: life sentence, conviction set aside

The child in this case claimed she had been raped by a relative of her father’s, starting from when she was nine years old. The case against the accused seemed strong, and the regional (senior) magistrate convicted him and sentenced him to life imprisonment. But when he appealed, the high court found the child had not been properly sworn in: conviction was set aside, along with his life sentence, and the man walked free. This case, from the KwaZulu Natal province of South Africa, is replicated in many countries, every day, because legal technicalities related to fair trial are so often ignored. As SA observes Human Rights Day, 2019, here's a plea: could the courts at least pledge to ensure they get the technicalities right? It would make a great impact of the human rights of every person brave enough to go through the trauma of reporting rape and giving evidence in a trial.

Against background of “judicial martyrs to the rule of law”, Ghana’s top court considers political interference in judicial independence

IN a sensational new case, Ghana’s highest judicial forum has been considering whether it was lawful for the country’s president to reverse contempt of court sentences. This, after three men were sent to prison for effectively inciting people listening to a radio show to kill judges if they did not like the outcome of a then-pending case. The whole matter, referred to as “Montie 3” after the radio station involved, has touched a raw nerve in Ghana: no one has forgotten the three high court judges who were executed in 1982 on orders of the then political establishment. A memorial to these judicial “martyrs to the rule of law” stands not far from where the panel of judges has been considering the crucial questions of judicial independence and presidential power under the constitution prompted by the Montie 3 case.

Secularism in Ghana "obviously" encourages state accommodation of religion and religious identity - Supreme Court

A major challenge to Ghana’s planned national cathedral, brought on the basis of a challenge to alleged infringements of the country’s “secular” constitution, has just been dismissed by the supreme court. Ghana’s highest court found that secularism in Ghana “obviously” allowed and encouraged recognition and accommodation of religion and religious identity by the state. But this does not necessarily mean criticism is over – plenty of critics say it will be wasteful and an unjustified expense.

Army officers keep their 10 parliamentary seats in Uganda

Over the last few months Uganda’s courts have delivered a series of decisions that extended democratic practices. Judges have declared restrictive legislation unconstitutional and ordered compensation for a detainee killed by police. No wonder some observers hoped that the constitutional court would rule in favour of an application to find army representation in parliament unconstitutional. No fewer than 10 parliamentary seats are reserved for ‘serving officers’ chosen by the Army Council, headed by President Yoweri Museveni. A human rights organization challenged the continuation of this practice, but last week the constitutional court turned down the application.

Top Malawi officials face jail after contempt of court finding

Two top government officials will be sentenced on 5 August 2019 for disobeying an order of Malawi’s Supreme Court. They had been told by the highest court to apologise to the nation for their role in the ‘Tractorgate’ scandal that has gripped the country – but they failed to do so. Now the high court has called this a ‘mockery of justice’ and found them guilty of contempt of court.

Who won this battle of judge vs judges in Seychelles?

For the last four years, the Seychelles judiciary has suffered division and disruption over the behaviour of a senior member of the bench, Durai Karunakaran. Recommended for dismissal by a tribunal that inquired into his behaviour, he resigned in March 2019, forestalling any action against him by the country’s President. But before he left, he had launched an appeal against one of the many court decisions against him. The outcome of newly released decision, likely to be the last in a very long series of cases under his name, is however not completely clear.

September 2019

Don’t expect judges to do your work for you, counsel told

Ethical and procedural issues have been strongly taken up by Ghana’s Supreme Court in an important and wide-ranging new decision – along with a pronouncement that an offer and acceptance via electronic communication makes for a contract just as valid as if it had been put in writing and signed.

Girl power in action at court

Three daughters have gone to court to fight for their right to inherit from their father. This, after their brothers had divided the estate among themselves, deliberately withholding from Kenya's high court the fact that the sisters even existed.

Lesotho's Acting Chief Justice names fellow judges likely biased against her

The Acting Chief Justice of Lesotho, the woman who recently brought a hall full of African judges to their feet with applause as she explained the difficult circumstances under which judges and magistrates in that country operate, is on notice that she is fighting for her professional life. Judge Maseforo Mahase says 'powerful forces' in Lesotho want her impeached. Though three local judges have been appointed to hear the case that will decide whether an impeachment tribunal should be set up to investigate allegations against her, she says the three - plus the entire high court bench of judges - should recuse themselves and that foreign judges should be asked to hear the matter.

Tanzanian lawyers in uproar after judge suspends their immediate past president from practice  

When prominent Tanzanian legal counsel, Fatma Karume, argued a recent case in the high court of Tanzania, she could not have anticipated the full outcome. Sure, she lost the case, but this is something all lawyers must assume may happen at any time and in any case. But how could she have known she would also raise the anger of her court opponents and the presiding judge? Citing argument by opposing counsel that her argument had been rude and 'inappropriate', the judge decided to suspend Karume from practice, and ordered the registrar of the high court to refer a ‘professional misconduct matter’ to the advocate’s disciplinary committee.

Judge & applicant instructed same legal counsel: grounds for recusal?

In this most unusual set of circumstances, a Namibian acting judge, while still in his permanent post as principal magistrate, needed to bring an insurance claim. His insurance company sent formal instructions to counsel. Now, as acting judge, he has an applicant before him represented by the same counsel. Are these good grounds for the applicant’s recusal application?

Good news - and bad - for African judiciary charged with wrong-doing

For two senior African judges, this is a particularly momentous month. Justice Joseph Wowo of Nigeria, former Chief Justice of Gambia, has been effectively exonerated by a regional court after his humiliating treatment at the hands of the courts in Gambia and his dismissal by the then-President, Yahya Jammeh. Justice Wowo has also been awarded significant damages for the way he was treated. But though his trials and tribulations may now be over, serious trouble is only just starting for a member of Kenya’s Supreme Court, Justice Jackton B. Ojwang’. Chief Justice David Maraga is reported to have written to President Uhuru Kenyatta, recommending that a special tribunal be established to consider the impeachment of his suspended colleague, Justice Ojwang’.

Demolish unlawful sewerage works - environmental tribunal

Kenya’s National Environmental Management Authority (NEMA) has been given a tough lesson in obeying the country’s environmental laws by the National Environmental Tribunal. The NEMA had given the go-ahead for a major sewerage works to be built close to a stream and a natural wetland, all of this despite objections by the local community. Now the tribunal has found that the NEMA and other parties had not properly followed the law before the project was started. The tribunal has ordered that everything related to the project must be demolished and removed, while the local soil, plants and other natural features must be restored.

‘Neglect, dereliction of duty’ by prosecution – and father convicted of child rape goes free

Three judges of Zambia’s supreme court have set free a father who was convicted of raping his young daughter and sentenced to 35 years with hard labour. How did it happen that what appeared a secure conviction was set aside? How will the three judges feel about their decision which, setting the father free, could place the daughter at risk again?

Fight over defence fees in controversial Lesotho trial

The Zimbabwean judge due to preside in Lesotho over a series of high-profile murder and attempted murder cases, has begun to stamp his authority on the matter. This week, Judge Charles Hungwe showed his patience was running out with the constant delays preventing the case proper from getting under way. Dealing with an application in the high court, Maseru, he held that that a decision by the high court registrar to allocate state-funded pro deo counsel to the accused, was not properly made and should be declared invalid.

Seychelles appoints leading Ugandan judge to its apex court

The Court of Appeal in Seychelles, that country’s highest judicial forum, has been joined by one of the continent’s leading judges who is also a prominent academic writer on the issues of gender-based violence. Judge Lillian Tibatemwa-Ekirikubinza of Uganda’s apex court, was sworn in at State House this week, where she will sit with three other members of that bench, along with the court’s president. Her appointment will give the highest court of Seychelles additional depth on issues of rape and femicide, subjects on which she is an acknowledged expert.

More Tribulations than Trials?

Two significant amendments to the Uniform Rules of Court that were published on 31 May 2019 have come into operation on 1 July 2019. The amendments to the procedure of applying for summary judgment in terms of Rule 32, and the introduction of Rule 37A regarding judicial case management respectively are likely to affect all attorneys frequenting the High Courts of South Africa.

Copyright & A2K Issues - 17 September 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Society ‘crying out for miracle’ to end brutality against women - judge

Over the last fortnight, the media in South Africa has been filled with particularly terrible crimes involving gender-based violence. In one response, an enormous crowd of women and men, dressed in black, protested outside the parliament buildings, demanding they be addressed by the President. Many were urging that a state of emergency be declared because of on-going femicide and rape. But the problem is endemic in the whole SADC region. And occasionally even the courts are moved to speak strongly on the issue. In one recent decision from Eswatini, for example, the judge hearing the matter spoke out more strongly than is usually the case against gender-based violence - and the need for a miracle to end it.

Contempt confirmed against former top Seychelles judge

Controversial former top Seychelles judge, Durai Karunakaran, has done it again. The disgraced jurist, embroiled in yet another legal dispute relating to his behaviour, has lost his appeal against a contempt of court finding. The contempt relates to a highly offensive insult he whispered into the ear of the public prosecutor during proceedings related to another matter involving the former judge. Karunakaran quit the bench earlier this year to avoid being impeached over misbehaviour, but judgments in pending cases involving him had not yet all been finalised.

Concern over impact of Botswana's appeal decision on 'refugees'

When Botswana’s Court of Appeal delivered its recent decision on 709 people from Caprivi, living in the Dukwi refugee camp, the judgment came as a serious blow to the hopes of the refugees. It has also raised questions by the refugees and their supporters, local and international, about whether the court was correct in its approach. Less theoretically, the refugees are deeply concerned about the dangers that they believe await them once they are returned to Caprivi, something that now seems inevitable - as well as the impact on their children's education.

Statement: Shining a light on the urgency of implementing the Regional Action Plan on Albinism in Africa
  • 11 September 2019
  • SALC

On 13 June, every year the world commemorates the International Albinism Awareness Day. This year the International Albinism Awareness day is commemorated under the theme  ‘shining our light to the world’ , providing an opportunity to reflect on progress and challenges facing persons with albinism.  SALC makes the following statement.

Taking pleasure in making justice accessible to the powerless – Judge Thomas Masuku

WHEN Judge Thomas Masuku was effectively expelled as a judge in Swaziland during 2011, human rights organisations said he had been the victim of a kangaroo court that breached international standards on fair trial. His sacking, at the instance of the then-Chief Justice Michael Ramodibedi – since himself dismissed in disgrace – had huge potential to be a chilling effect on other members of the judiciary in that country. Why would any judge risk writing honest decisions when the chances of summary dismissal were so strong? But that expulsion was far from the end of the road for Judge Masuku, who is now a respected member of the high court in Namibia. His story should give courage to others faced with the dilemma of dispensing justice on the one hand, and fear of dismissal on the other. This month he had an interview with a journalist of the The Swaziland News, and reflected on judicial independence as well as the crucial role played by an honest, impartial judiciary in society.

Copyright & A2K Issues - 10 September 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Husband's right to ‘rule over his wife’ – it's gone!

Women’s month may be over for 2019, but there is one new judgment that cannot be left out of consideration. It comes from Eswatini where a full bench of the high court - Principal Judge Qinqisele Mabuza with Judges Titus Mlangeni and N J Hlophe – has handed down a hugely significant decision: it delivers women from the power a husband has had to ‘rule over his wife’.

Environmental law in action: Jifa training course

When prominent global warming scientists hail a legal decision as a ‘watershed’ for climate change action, you know that judgment must, at the very least, make for good reading. But the judges attending last week’s environmental law training offered by the Judicial Institute for Africa (Jifa), took one step further – they met, listened to and discussed environmental law issues with the very author of that decision, Australian judge Brian Preston, chief judge of the New South Wales land and environment court.

Tiny, remote Namibian clan claims world renowed Etosha National Park as ancestral land

Perhaps they didn’t realise it, but when eight members of Namibia’s Hai||om people went to court for what they claimed was their traditional land, they raised a number of other burning socio-political issues as well. The Hai||om live in a remote northern area of Namibia, overlapping the pristine Etosha National Park, environmentally sensitive and a major world tourist attraction for the country. Could the eight litigants claim the entire park as ancestral land, acting in a representative capacity for all the Hai||om people?

Appeal blocks far-reaching environmental ruling

Intrigues, illegalities and pollution involved in a sugar milling operation whose poisonous effluent eventually flows in Lake Victoria have been highlighted by Kenya’s environment and land court. In a far-reaching judgment, the court gave the company 120 days to sort out licences and environmental impact assessments for all their operations – or be closed down. But the Court of Appeal has now stepped in to overturn part of the lower court’s order, with a ruling that the mill may continue to operate as before until the appeal is heard. Judging from the long delays common in hearing appeals in Kenya, the sugar mill and the associated paper mill and distillery could continue polluting almost indefinitely.

Wife "charged" 15 cows by traditional court after husband commits suicide

A woman whose husband committed suicide after he assaulted her and she laid a complaint with the police, has been “charged” by a traditional court in Namibia for causing her husband’s death. The woman, Kathova Shiputa, was told she should not have gone to their joint home where she had found her husband in bed with another woman, and that she should not have complained to the police after her husband threatened her with a knife. “Convicted” and sentenced to pay 15 cows or N$30 000 as punishment, she was told that if she did not pay by the end of May 2019, the “village police” would come to collect the cattle. This is far from the only example of traditional courts in Namibia acting beyond their powers. In this particular case, Shiputa has asked the high court to intervene and set aside the proceedings as well as the decision of the headmen and their “court”.

October 2019

Copyright & A2K Issues - 31 October 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Cabinet Minister ignored 'God-given blessing' - Lesotho court

The Lesotho courts, already embroiled in a scandal-ridden series of cases involving the Acting Chief Justice, the Prime Minister and others, have now had to intervene in what has been held to be the unlawful action of the Minister of Local Government and Chieftainship. At the end of July,  Litsoane Litsoane disbanded the Maseru City Council’s tender board, citing certain ‘irregularities’. But Judge Molefi Makara has now set aside the decision because the tender board members, including Maseru’s mayor and her deputy, had not been given a chance to put their views on the issue. The judge described this as ‘disregarding the God-given blessing upon (all) mankind that a person should be heard before any adverse decision is taken.’ This dispute, and the action involving the ACJ, come as the judiciary struggles with a widespread perception that certain politicians feel entitled to have judges ‘on their side’ in the decisions they make.

Don’t like a court judgment? Just change the law, why don’t you?

Everyone who attended the Jifa training course on environmental law earlier this year will remember Judge Brian Preston. Chief judge of the New South Wales land and environment court, he had remarkable insights into the subject of environmental law and the role of the courts in making environmental rights real. But now the NSW government is taking on a major decision he gave earlier this year in which he cited climate change, among other issues, for turning down a planned coal mine. In reaction, the NSW government has decided to introduce a new law saying that greenhouse gas emissions can’t be considered by the courts in deciding whether to approve mines.

No more child brides says Tanzania's highest court

Children’s rights and the rights of girls in particular took a major step forward in Tanzania this week: The Court of Appeal has delivered a judgment upholding a 2016 landmark high court decision holding that neither girls and boys may marry before 18. The appeal court also agreed that provisions to the contrary in the Law of Marriage Act were unconstitutional. It is a particularly important step for the courts as the number of child brides in Tanzania is among the highest in the world.

Zambia's human rights defender, Laura Miti, awarded Scottish university fellowship

Long-time Zambian human rights defender, Laura Miti, has joined a Russian human rights activist, Konstantin Baranov, for a three-month fellowship at the University of Dundee. It's intended to give fellows a break from constant work at the forefront of human rights struggles. Instead, they take time-out for research, reflection on what they have been doing and interaction with students and staff of the university as well as government officials and members of Scottish civil society.

Copyright & A2K Issues - 21 October 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

All three top posts in Zambia’s judiciary held by women – Chief Justice Irene Mambilima

As many African states struggle to increase the number of women on the bench and in leadership positions, one country in particular can boast of the substantial progress it has made in this area. Zambia’s Chief Justice Irene Mambilima spoke about the issue in a speech she delivered last week. She disclosed that all of the three top judicial posts are now held by women.

Champion of Ugandan judicial independence dies

A champion of judicial integrity and independence in Uganda, retired Supreme Court justice, Wilson Nattubu Tsekooko, has died. He was 76.

15 y.o. jailed for life. Now African Court orders reparations for 'lost youth'

Two cases involving convictions and heavy sentences for rape have been heard by the African Court on Human and Peoples’ Rights. Both cases originate in Tanzania and both show that legal rights of the accused were not observed by the state. In one, the accused was not given free legal representation though he faced a mandatory 30 years behind bars. In the other, an appeal was filed three days after sentence, but it took almost 16 years before the authorities provided the records needed for the appeal.

Tanzania's court of appeal overturns decision that found parts of electoral law invalid

A landmark High Court judgment on Tanzania’s electoral law has just been set aside by five judges of the country’s Court of Appeal. At stake was a provision that allowed officials appointed by the President to become returning officers, acting on behalf of the electoral agency, during elections. Earlier this year, three High Court judges found the provision unconstitutional, saying it infringed the independence of the National Electoral Commission, the body intended to oversee elections in an impartial manner. Now the Court of Appeal has overturned the original decision, saying there are enough safety measures in place to make sure that the officers act with independence.

Copyright & A2K Issues - 15 October 2019

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at: .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:    or email  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Lesotho Constitutional Court Repeals Criminal Defamation and Reaffirms Freedom of the Press

FREEDOM of the press and other media, as well as the safety of journalists, were all given a boost this week with a major new decision by Lesotho’s constitutional court. Three judges sitting in the high court’s constitutional division – Moroke Mokhesi, ‘Maseforo Mahase and Teboho Moiloa – have found that criminal defamation, long used as a threat against journalists and the media, is unconstitutional. This decision adds Lesotho to the growing list of African jurisdictions where criminal defamation has been repealed.

We can’t change death penalty - Tanzanian high court

A full bench of three high court judges has re-affirmed that the mandatory death penalty in Tanzania is constitutionally valid. No new factors had been given to the court to indicate that anything had changed since the last time the issue was considered by the judiciary, said the judges, so they could not vary the previous decisions or rehear the issue ‘on the same facts’. But, they said, the issue could be taken to the highest court via review if the petitioners felt strongly about the matter.

Thai judge shoots himself in court: protest at ‘political interference’

When Thai judge Khanakorn Pianchana reached the end of the judgment in a case he had been hearing, he read out a statement. He next walked from the bench to bow before a portrait of Thai King, Maha Vajiralongkorn. Then he took a pistol from his pocket and shot himself. He was immediately rushed to hospital where he is now reported as out of danger. But what caused the judge to take such dramatic and potentially fatal action?

Witchcraft trial adds 7 more to Tanzania's death row

A recent witchcraft trial in Tanzania has led to a further seven people being added to the well over 500 convicts believed to be on death row. The case illustrates the difficult position in which Tanzanian courts find themselves: the death penalty is still applicable to murder and a few other serious offences and just three months ago the high court declared it was unable to change the law in relation to the death penalty. This despite the country’s president, John Magufuli, declaring that he would be unable to sign the documents required for anyone to be actually executed. He would find it just too difficult to do so, he said. So, while capital punishment has not been carried out for the last 25 years, the courts continue to pass the death penalty, and the numbers of condemned prisoners continues to grow.

Both Lesotho's top judges facing suspension

Lesotho continues to prove itself highly unstable in relation to the judiciary and its tenure of office. More threats of suspension, inquiries related to impeachment and other disciplinary steps against top judges have been issued in Lesotho than in any other country in the region. This week, new action was launched against the Acting Chief Justice as well as against the President of the Court of Appeal (for the second time in two months this year, and following a successful impeachment process in 2016 from which he bounced back). All this while the Chief Justice continues in a state of limbo following her suspension a year ago on grounds widely suspected to relate to politics.

Recognition of customary Marriages Amendment Bill, 2019

The South African government is amending the law concerning customary marriages to bring it in line with constitutional jurisprudence. On 24 July 2019, Cabinet approved the submission of the  Recognition of Customary Marriages Amendment Bill of 2019  to Parliament.  The Bill is currently under consideration by the National Assembly. Fasken candidate attorney Mr. Selby Mathebula writes about these changes.

Poaching case victory highlights prosecution challenges

Three judges of Tanzania’s highest court have confirmed conviction and sentence of a Chinese national, Song Lei, after 11 rhino horn were found in a ‘secret chamber’ of his Toyota Hilux. However, the court upheld the acquittal of three other men who were with him at the time. This follows the widely welcomed arrest, trial and initial conviction of all four as well as the tough sentences imposed on them in 2016. Among those most elated by the initial conviction were members of the Lusaka Agreement Task Force (LATF). That task force, from seven countries in the region, had worked with Interpol to bring the four men to trial. Since then, however, two appeals have reduced the success of the LATF operation in relation to the four accused, underlining just how difficult it is to secure convictions in such cases.

Statute vs Statue: when judges become art critics

Kenya’s constitution says that the currency of that country ‘shall not’ bear the 'portrait' of any individual. So, when new bank notes were issued earlier this year, depicting the Kenyatta International Convention Centre with Kenya’s first president, Jomo Kenyatta, clearly distinguishable, seated alongside the building, the question arose whether the new notes were constitutional. Two of the presiding judges felt they had to solve the legal conundrum by deciding whether the bank notes bore a ‘portrait’ of Kenyatta  - or if it was just a picture of a statue.

Kenyan judge declares Rastafarianism a religion: but what’s its history?

On the very first day at her new school, the confused 15-year-old Kenyan girl was told to go home. She was not to return until her rastas (dreadlocks) were shaved off.

Judges critical of Lesotho Parliament's work, punt constitutional changes

Lesotho’s current political bosses – and the country’s economy – have been dealt a new blow. The high court of Lesotho, sitting as a constitutional court, has ruled that plans for dealing with repayment of generous government-guaranteed loans made to two categories of officials, are discriminatory and unconstitutional. Everyone who was given such a loan will now have to be treated in the same way, with the government paying all remaining loans back to the bank, in full. The court also made a strong but unexpected call for constitutional changes that would ‘more meaningfully’ separate the legislature from the executive. The three judges further complained about the escalating number of cases that came before the courts challenging the validity of regulations. It was so bad that the judiciary was justified in feeling sceptical about whether parliament did its work properly in overseeing such regulations, the court said.

November 2019

Zim judge gives stunning human rights decision in transgender case

A member of Zimbabwe’s Supreme Court has just delivered a landmark decision in a case heard while he was still a member of the high court in Bulawayo. It concerns a transgender Zimbabwean subjected to appalling infringements of her constitutional rights at the hands of the police and a high profile member of the ruling ZANU-PF's Youth League. Although she has now been awarded damages by the court, she has already left the country after claiming asylum in the USA on the grounds of Zimbabwe’s shocking treatment of LGBTI people.

How judges can help court reporters - plea from 2019 Judicial Dialogue

Unesco’s invitation to speak at an event associated with the Judicial Dialogue in Uganda last month included a request for practical ways in which the judiciary could ‘make life easier’ for members of the media who write about the courts. Here are some of the suggestions put to senior judges, and that made for interesting discussion.

Recusal, impartiality feature at conference of Southern African Chief Justices

Recusal has increasingly often emerged as an issue sparking controversy in decisions from various regional jurisdictions. So it was appropriate that it became one of the main problems for debate during this year’s conference of the Southern African Chief Justices (SACJ), held in Seychelles. At the AGM of SACJ that followed, Tanzania was chosen as the venue for the 2020 conference.

Former Rwandan Chief Justice Jean Mutsinzi RIP

Rwanada’s first post-genocide Chief Justice, Jean Mutsinzi, died last week after a short illness. He was 81. Justice Mutsinzi served as Chief Justice in Rwanda between 1995 and 1999, and was later a member of both the Common Market for Eastern and Southern Africa (Comesa) Court of Justice and the African Court on Human and Peoples’ Rights, including a two-year term as president of this court.

Judiciary runs out of words for 'barbaric' gender violence

As the international community marks its annual 16 days of activism to end gender-based violence, judges are running out of words to describe the horrific cases of femicide that regularly come before them for trial. A case in point was recently heard by Namibia's high court and concerns the butchery of a woman by the man with whom she had been in a romantic relationship. From the remarks by the judge in this case, it seems the courts are 'exhausted' by the horror they see and struggle to find the right words for the 'barbarism' involved in the cases before them.

Cannabis: Growing High on our List of Priorities

A lot of attention has been given to the changes in the South African legislative framework in so far as it relates to Cannabis. Of extreme importance is an understanding of these changes and being able to differentiate between cultivation for private use and the sale of CBD products on the open market.

The power of law to challenge injustice

One of Namibia’s senior judges, David Smuts of that country’s Supreme Court, has just published a book on his work during the 1980s when Namibia was still virtually a province of South Africa. At that time, Smuts was a young lawyer determined to make a difference by exposing and curbing the shocking human rights atrocities he knew were taking place in Namibia on the orders of the SA government or its security arms. It’s a book full of thrilling stories about his work in that period, reminding readers of the power of law – and lawyers – to challenge injustice. As Smuts puts it himself in the sub-title of the book, it is the story of ‘a lawyer’s battle to hold power to account in 1980s Namibia’.

Access to law includes access to unreported cases as well

This is the second in a two-part series reflecting on free access to law and discussions held at the seminar on freedom of expression & safety of journalists for judges in Africa in Kampala, Uganda on 29-30 October 2019.

Med Kaggwa, Ugandan human rights defender RIP

One of Uganda’s most prominent human rights defenders, Med Kaggwa, died unexpectedly this week, aged 64.

Tanzanian judges: nowhere to hide under-performance

A new electronic system intended to promote citizens’ rights to access justice and introduced in Tanzania a few months ago, will allow anyone to read decisions almost immediately after delivery. The country’s Chief Justice explained how the system worked to newly-appointed judges at the start of their induction training in Dar Es Salaam this week. In addition to e-filing, the new system will see judgments loaded onto TanzLII immediately they have been handed down.

Attorney, fugitive from justice, sues Chief Justice but loses

The case of Siboniso Clement Dlamini has caused ructions in Eswatini’s legal circles for some time. Now three members of the high court have laid down the law. Dlamini, one of the country’s longest-serving attorneys, has been fighting to have the Chief Justice investigated for misconduct because the CJ barred Dlamini from appearing in any court until he submitted himself to prison as punishment for contempt of court. At the heart of the matter is Dlamini’s handling of a deceased estate – and a widow who is clamouring for her inheritance.

Kenyan judge upholds dismissal of alcohol-addicted senior magistrate

How far must an employer go to help a staffer with alcohol addiction? At what point is dismissal appropriate? Kenya’s high court had to consider this problem in relation to a senior magistrate who was given his marching orders by the Judicial Service Commission after he had been drunk on duty.

Why has Uganda’s important new human rights law not been officially promulgated?

Hailed as a hugely significant step in promoting and protecting human rights, Uganda’s new law looked set to be an example for other African countries. But despite the hope and the hype around the new legislation, the law has not yet taken effect. This despite presidential assent eight months ago. Now the failure to publish this important new law is being challenged in court.

'Satan did it', claims rape accused

Mothers have been warned by a senior judge from Sierra Leone to be ‘doubly careful’ about the safety of their daughters. They should be ‘less trusting’ of others and should ‘prod on with love’ if they notice any change in their children, to find out the reason for the altered behaviour. This might help avert would-be rapists. Judge Reginald Fynn made these comments after finding a man guilty of raping a six-year-old who had been left in his care by the girl’s mother.

South African Police refuse to act against criminals targeting 'foreign truck drivers' - top judge wants action

The South African Police Service has been taken to task by a senior judge over persistent complaints that they fail to act and enforce the law. In an astonishing claim, the police are said to refuse to intervene, even faced with clearly criminal activity, ‘until a court directs them to take action’. The judge president of the Mpumalanga division of the high court, Frans Legodi, said litigants raised similar difficulties in court every week. Photographs from the two latest matters showed police standing by but doing nothing to prevent crimes involving in protest against 'foreign truck drivers'. One of the parties in these two cases said when he asked the SAPS for help, he was told that he should ‘firstly procure a court order to enable the SAPS to come to (their) assistance.’ The JP said it was not clear whether the problem lay with the training given to the police or whether it was ‘just dereliction of duty’ by individuals. Problems experienced with police inaction were often reported in areas ‘where mining activities are very high’. He had therefore written a judgment on the behaviour of the police that would be sent to the provincial police commission to consider a proper investigation.

Convicted of genocide, former Rwandan cabinet minister loses last attempt to stay out of jail

It has been a busy couple of months for one of the lesser-known – but critically important – courts in Arusha, Tanzania. Arusha houses a number of significant judicial bodies apart from the African Court of Human and Peoples’ Rights. Among these is a United Nations tribunal: the International Residual Mechanism for Criminal Tribunals, Rwanda (IR-MCT). In a momentous ongoing case, a former Rwandan minister of planning, Augustin Ngirabatware, already convicted on several genocide-related charges, asked that the IR-MCT appeal chamber consider his claim that he had acquired sensational new evidence. This evidence was that four key witnesses who testified against him had recanted and now claimed they had not told the truth during his trial. At special hearings in September and October, the IR-MCT in Arusha considered Ngirabatware’s claims and related matters. The outcome, however, did him no good at all.

Kenya's Chief Justice shines YouTube light on tension with government

Tension is high between the judiciary and the government in a number of African countries at the moment. But so far only one – Kenya – has seen the Chief Justice come out with a full public statement exploring these problems. The statement, read by CJ David Maraga to a number of media houses, has been added toYouTube, and can now be accessed by anyone interested in the situation. Most of the CJ’s complaints related to the massive cuts to the budget of the judiciary and the impact of those cuts. He also pointed out the contemptuous ways in which he and other judges were treated by the government.

Widow's rights upheld in customary law dispute

Customary law, at its best, is said to ensure that orphans and widows are cared for. But this is not always the case. That, at least, has been the experience of an elderly widow in Eswatini. Though she married into a royal household, when her husband died her circumstances became dire. She found her brother-in-law had his eye on her late husband’s property and he would not even allow her to construct a new outside toilet for her homestead. Now, however, three judges of Eswatini’s supreme court have granted her an interim interdict against her brother-in-law. Pending the resolution of their dispute by the traditional authorities, the brother-in-law must allow her to build the toilet and must restore possession of a field she was given on her marriage. He must also re-fence the field after he had his staff tear down the barbed wire fence that she was installing to protect herself.

December 2019

Top judge given human rights award in Zambia

Zambian Supreme Court Judge, Mumba Malila, has been honoured for his human rights work. Earlier this week, Justice Malila was the 2019 recipient of the Zambian Human Rights Commission Award, given in recognition of his contribution to the field of human rights both in Zambia and, more broadly, across Africa.

Regional court overturns Sierra Leone ban on pregnant girls attending school, writing exams

For years organisations and individuals have urged the government of Sierra Leone to re-think its 2015 ban on pregnant girls attending mainstream schools and writing exams. But they had no success. Eventually some of these organisations approached the Court of Justice of the regional Economic Community of West Africa States (ECOWAS), arguing that important rights of such girls were violated by the bar on attending school. Today, the court noted its decision: the ban was discriminatory and had to be overturned, said the judges.

‘Remarkable African jurist, judge and scholar’ – Jifa faculty member lauded

When the Judicial Institute for Africa (Jifa) schedules training for African judges, one of the most important preparatory issues is who to invite as faculty. Then follows an anxious time of discussion to ensure that the invited jurist will be available and willing to assist. Among those who regularly offers enthusiastic help and expertise is Justice Oagile ‘Key’ Dingake, originally from Botswana’s high court but now enjoying an international judicial career. Justice Dingake's remarkable writing, teaching and judicial life thus far – he is in his mid-50s - has been the centre of a new media profile that we are delighted to share with you.

Citing outdated colonial attitudes, Zambia's Con Court dumps laws on chiefs

Contemporary Zambian laws allowing the President to regulate traditional chiefly appointments have been declared unconstitutional. The laws, based on colonial-era ordinances, were tested when a prominent traditional leader disputed the President’s power to legitimise a chief’s appointment through ‘recognition’. The court found that these presidential powers infringed the amended constitution saying ‘no law’ could allow anyone the right to ‘recognise or withdraw the recognition of a chief’. Given the promises of the constitution and its supremacy over all other law, provisions of the Chiefs Act allowing the President a say in the choosing of chiefs and other traditional leaders were unconstitutional and were to be ‘expunged’ from the statute books.