Articles - 2020

All years

January 2020

Lesotho’s King urged: don't appoint ACJ as Chief Justice
Lesotho’s King urged: don't appoint ACJ as Chief Justice

While the police continue to search for the current wife of Lesotho’s head of government, Tom Thabane, in connection with the murder of his former wife, Thabane has announced that he is to quit office on a date still to be announced. Thabane, whose ruling All Basotho Convention is riven with splits, is also of interest to the police, who say that Thabane’s personal phone was used at the scene of his second wife’s murder. His current wife disappeared when police said they wanted her for questioning. But while he mulls his departure date, and reflects on where his wife might be, Thabane has not been taking life easy: he has been busy pushing for the Acting Chief Justice to be appointed Chief Justice.

Speedy justice puts brakes on attempted fraud
Speedy justice puts brakes on attempted fraud

A company set on pulling a fast one on the government of Malawi has just had a quick lesson on the impact of speedy justice. Asked to supply a number of tyres and tubes for the country's prison service, the company obliged (before a price had been agreed on) and then billed the authorities for more than double the going rate for tyres a year later when the case was heard. To add insult to injury, the company then demanded payment with interest at 10% more than the bank rate. President of Malawi's Specialised Commercial Court Judge John Katsala was, however, having none of it.  Noting that the two sides had been disputing the sum owed ever since the invoice arrived, he found there had been no prior agreement about the price and set a rate that appeared fair to him. Then, throwing out the interest rate demanded by the company, he gave the government 14 days to settle the bill he had approved.Remarkably, the case came to court, was argued fully and a written judgment delivered, all less than two years after the government made its original request for the tyres.

'Silent', 'curt', law society admonished by Namibian high court
'Silent', 'curt', law society admonished by Namibian high court

When the high court of Namibia asked the country’s law society what it thought about a candidate for admission as a lawyer, the judge had a ‘curt reponse’. The court was anxious to hear from the society as the candidate had frankly admitted to having a criminal record. Did this mean he was not a ‘fit and proper’ person for admission? Or did the society have reason to believe he could be admitted after all? Faced with the law society’s lack of response, the judge asked the society of advocates to help the court instead. But, he warned, the ‘silence of the NLS’ is ‘totally out of order and must not be allowed to take root or be repeated.’

Should recalcitrant county officials pay for environmental restoration from their own pockets?
Should recalcitrant county officials pay for environmental restoration from their own pockets?

Judging from a recent case decided by Kenyan judge Dalmas Ohungo, working in the environment and land court can be a truly soul-destroying job. Virtually two years after the court delivered a judgment against a local county government for violating the right to a clean and healthy environment of the people in its area, the local authorities have done absolutely nothing to fix the situation – and they have consistently ignored the court’s orders.

The Gambia wins first round in genocide case
The Gambia wins first round in genocide case

One of the most extraordinary recent developments in international law has been the so-far successful challenge by The Gambia to the policies and practices by Myanmar against its minority Muslim Rohingya people. The Gambia took the matter to the International Court of Justice, where it alleges these practices amount to genocide, a claim denied by Myanmar. In the latest round, The Gambia has won a series of provisional orders against Myanmar. The unanimous decision by the 17 judges of the International Court of Justice, delivered yesterday, 23 January 2020, included four interim measures to be taken by Myanmar to protect the Rohingya from any acts of genocide and to retain evidence that might be needed when the court gets to hearing the merits of the case.

Judge Mathilda Twomey of Seychelles to step down as Chief Justice
Judge Mathilda Twomey of Seychelles to step down as Chief Justice

Unlike many presidents who seek extensions of a constitutionally-mandated limited term of office, the chief justice of Seychelles, Mathilda Twomey, has honoured her commitment to just one five-year term and will step down later this year. Speaking at the opening of the supreme court’s 2020 legal year, the chief justice spoke passionately about judicial independence and the courage required to exercise true independence. She also urged the establishment of a law reform commission, saying efforts to make the legal changes needed in Seychelles were hindered by ‘outdated, unreformed laws’. When Judge Twomey leaves her post as chief justice, she will remain a member of the judiciary, but will focus on her work as part of the Seychellois court of appeal.

HIV+ prisoners' victory opens door to rights-based legal action

Two HIV+ prisoners held in Lusaka's central prison, have won a case against the prison authorities that could have widespread repercussions for other prisoners and for rights-based litigation more broadly. They claimed their rights to life and dignity were infringed by conditions in the cells. In response, Zambia's highest court has ordered the government to ensure they are provided with a balanced diet and access to the medicine and treatment they need given their condition. They must also be housed in cells that are neither a health risk, nor in such a condition that they constitute inhuman and degrading treatment or additional punishment. The court has further ordered that the prison authorities must provide the courts with regular updates on what has been achieved by way of reducing overcrowding and improving conditions in the cells. A part from its important orders related to prison conditions, the judgment is also crucial from a legal perspective: the High Court had found that though the prisoners had proved the terrible conditions under which they were housed, there was nothing the courts could do about the situation as the rights infringed were not justiciable. The Supreme Court overturned that finding, leaving the way open for other challenges on issues previously thought out of bounds for the judiciary.

February 2020

Law reporting at the African Court on Human and People’s Rights: Aspirations and Challenges (Part II)

In this second of a two-part blog, legal scholar Yuzuki Nagakoshi reflects on recent training at the African Court on Human and Peoples' Rights. Offered jointly by the  African Legal Information Institute , the  Judicial Institute for Africa , based at the University of Cape Town, and by  Kenya Law , the course was intended to provide a comprehensive theoretical and practical training in traditional and digital law reporting. Participants comprised legal research, registry and judicial staff of the African Court on Human and Peoples' Rights and the East African Court of Justice.

When the shepherd becomes a wolf
When the shepherd becomes a wolf

Top-ranking Namibians implicated in international corruption related to the country’s lucrative fishing industry, have failed to have the search and seizure warrants issued against them set aside. Among the targets of the warrants applied for by the anti-corruption commission were the former minister of fisheries and marine resources and the former minister of justice. But the judge hearing the matter was highly critical of aspects of the commission’s behaviour. One of the complaints against the commission in relation to the warrants was that certain of the documents were ‘privileged and confidential’. The anti-corruption commission said the documents were ‘confidential but not privileged’ and there was thus no reason for them not to be seized and used in the matter – an attitude that the judge said ‘horrified’ him. The judge said it ‘boggles the mind’ that the commission did not follow the law that applied in a case where privilege was claimed. The commission’s behaviour amounted to ‘a shepherd becoming a wolf’ and in this regard, the commission’s officers acted ‘despicably’.

Law reporting at the African Court on Human and People’s Rights: Aspirations and Challenges (Part I)
Law reporting at the African Court on Human and People’s Rights: Aspirations and Challenges (Part I)

In this first of a two-part blog, legal scholar Yuzuki Nagakoshi reflects on recent training at the African Court on Human and Peoples' Rights. Offered jointly by the African Legal Information Institute , the Judicial Institute for Africa , based at the University of Cape Town, and by Kenya Law , the course was intended to provide a comprehensive theoretical and practical training in traditional and digital law reporting. Participants comprised legal research, registry and judicial staff of the African Court on Human and Peoples' Rights and the East African Court of Justice.

Democracy an expensive business - Malawi court
Democracy an expensive business - Malawi court

Malawi’s judicial decision that the country’s ‘Tippex’ election be re-run, has survived its first crucial challenge. The original dispute, heard as a constitutional matter by the high court, concerned the validity of national polls held in May 2019. Earlier this month, five judges ordered that the elections be held again because of widespread irregularities including the blanking out of official records with correction fluid. Last week the court heard and decided an application for this judgment to be suspended, pending a challenge in the Supreme Court of Appeal. Peter Mutharika, who emerged from the now discredited elections as Malawi’s President, gave a number of reasons for why the decision should be put on hold until the apex court has re-considered the judgment. His legal team said it would waste a lot of money to prepare and perhaps even hold a second round of elections, only to find that the appeal court overturned the original decision. Refusing the application for suspension, the judges commented: ‘The view of this court is that democracy is an inherently expensive process.’

Three decades later, former Kenyan air force member may sue for torture – appeal court
Three decades later, former Kenyan air force member may sue for torture – appeal court

In a major new decision, Kenya’s court of appeal has ruled that a claim alleging torture under a previous regime may be heard – even though it is more than 30 years since the events involved. The case concerns Michael Kibuti, a previous member of the armed forces, who was tortured and then discharged after a court martial following a failed coup in 1982. It was originally heard in the employment and labour relations court as Kibuti wants the court to recognise that various of his constitutional rights were violated by the torture meted out to him, and he also claims the terminal benefits due to him when he was discharged. However, that court dismissed the petition saying his claim was disqualified. Kibuti then turned to the appeal court for help and the judges of that court have held the matter must be properly heard by a trial court.

Prisoner, jailed for indecent assault, loses civil action over extended imprisonment
Prisoner, jailed for indecent assault, loses civil action over extended imprisonment

A prisoner, convicted of indecent assault by the Eswatini courts, has tried to sue the magistrate who presided in his case, claiming he was kept in prison five months longer than his sentence. And indeed, he was kept in prison for extra time. But this was in terms of a high court review of his original sentence. Moreover, as the high court hearing the civil case pointed out, the magistrate who ordered the additional time in prison was acting in her official capacity, and the constitution stipulates that a judicial officer is immune from claims for anything done in the exercise of the judicial power. It’s an important reminder about judicial power. But why did it require a year for the court to deliver its decision?

Copyright & A2K Issues - 30 January 2020

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:  http://www.africanlii.org/content/copyright-a2k-information . If you would like to subscribe to, or unsubscribe from, this newsletter, please email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Copyright & A2K Issues - 20 February 2020

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:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Copyright & A2K Issues - 19 February 2020

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:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:  http://lists.wits.ac.za/mailman/listinfo/copyrightanda2kinfo    or email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Uganda judiciary to hold court in refugee camps; warn police on judicial independence
Uganda judiciary to hold court in refugee camps; warn police on judicial independence

It has been a busy time for Uganda's judiciary, in the media for contrasting reasons. The judiciary put its collective foot down after police summonsed a magistrate in connection with a case he had heard and which the police were also investigating. In a strongly-worded statement the judiciary said that such actions were ‘irregular’ and that the police ‘cannot summon judicial officers to explain how they handle court cases.’ Another, more positive development, has seen the judiciary in discussion with the Refugee Law Project over holding court sessions in refugee camps starting as soon as next month. Uganda hosts about 1.4 milllion refugees, more than any other African country, and this step is seen as highly significant in offering refugees in camps better access to justice.

Top court reigns in Kenya's President over judicial appointments
Top court reigns in Kenya's President over judicial appointments

Kenya's President Uhuru Kenyatta has violated the constitution by not appointing judicial candidates whose names were given him by the Judicial Service Commission in the middle of last year. That's according to a finding of the country's Constitutional Court, which has held that the President plays only a ceremonial part in judicial appointments and was constitutionally obliged to enroll those chosen by the JSC. The judges said Kenyatta had no constituitonal power to 'review, reconsider or decline to appoint' those recommended by the JSC.  The significant new decision follows many months of silence from the President in the wake of the JSC's recommendations for appointment. According to Kenyatta, who argued that he had the right and the duty to decide for himself whether the JSC nominations were appropriate, questions were raised about some of the candidates by the country's intelligence services. Rejecting this justification, the court said the appointment of judges 'should be immediate and as soon as recommendations are forwarded to him' by the JSC, and suggested that the process should take no longer than 14 days. The strongly-worded decision is the latest in an ongoing struggle between the President and the judiciary dating from at least 2017 when the Supreme Court annulled national elections and ordered a fresh round of voting across the country

Relatives of Lesotho's PM appeal bail granted to his 3rd wife, charged with murdering wife number two
Relatives of Lesotho's PM appeal bail granted to his 3rd wife, charged with murdering wife number two

The decision by Lesotho’s Acting Chief Justice to grant bail to the wife of that country’s Prime Minister, Tom Thabane, is to be challenged as an urgent matter in the apex court of appeal. Relatives of Thabane, including a grandson who shares his name, have lodged the appeal claiming the ACJ granted bail under ‘suspicious circumstances’. Thabane’s wife, Maesaiah Thabane, has been arrested by the police in connection with the murder of Thabane’s previous wife, Lipolelo. When she was asked to report to police for questioning, Maesaiah fled Lesotho to South Africa but later returned. The Thabane relatives are joined in their appeal by the survivor of the shooting, Thato Sibolla, who was in the vehicle with Lipolelo at the time that unknown gunmen open fire on it.

Judges' scandal in South Africa raises questions over Judicial Service Commission
Judges' scandal in South Africa raises questions over Judicial Service Commission

In many African countries a special ceremony is held during January to mark the start of the official court year. No such tradition has yet developed in South Africa. But the 2020 legal year got off to a spectacular start all the same: the deputy judge president of the high court in one of SA's biggest provinces issued an affidavit making sensational claims against the judge president and his wife, who is also a judge in the same division. Now their battle has spread to other parts of the judiciary as well as the Judicial Service Commission which is supposed to deal with complaints involving judges. There are two major issues to note: first, the judge concerned already has an unresolved serious complaint against him from more than 10 years ago, with no sign that it might be heard, let alone finalised, any time soon; second, the JSC has a growing reputation for being unwilling or unable to manage disciplinary issues involving judges.

'Inescapable conclusion': Malawi polls fatally flawed, say concourt judges
'Inescapable conclusion': Malawi polls fatally flawed, say concourt judges

Malawi’s constitutional court has found the May 2019 national elections awarding presidential victory to Peter Mutharika, invalid. One of the most interesting aspects of this landmark judgment is the sense of judicial confidence that comes through in each of the well over 400 pages. There is no tentative digging in corners to find possible technical infringements. By the time they had gone through the evidence led by all the parties, the five judges of Malawi’s high court constitutional division were ready to bring out the big guns and find the integrity of the elections had been fatally undermined. This was not because of bribery and corruption (though alleged, these claims were not proved, said the court) but because of the way the checks and balances had been skewed, final reports constantly changed and over-written and voting records duplicated, to name just a few issues.

This woman is supposed to be a leader, not a 'flower-girl'
This woman is supposed to be a leader, not a 'flower-girl'

The controversial new head of Kenya’s National Employment Authority (NEA) board has already lost her job. This after the high court found Mary Wambui Munene did not qualify for the position. The NEA is intended to help with the serious unemployment problem among young people in Kenya. But Wambui was 'handpicked' for the job, without the selection process laid down for positions of public office. The judge hearing the dispute over her appointment said he could find not one iota of evidence in Wambui’s CV to suggest she had any experience in human resource management, let alone the seven years required for the post. Government lawyers argued that her appointment should stand since she would be little more than a ‘ceremonial steward’ on the board. But the judge retorted, ‘As a chairperson (she) is not expected to be a flower-girl in the NEA, but the person to provide leadership to the board … to ensure that it achieves its functions.’ Under Kenya’s new constitutional dispensation, government had to ensure that taxpayers got their money’s worth from appointees to public office, he added.

March 2020

Chaotic land ownership records shock Ghana's supreme court
Chaotic land ownership records shock Ghana's supreme court

A recent dispute over the rightful owner of a plot of land in Ghana has led the country's highest court to ask why people who sell the same land to several buyers in fradulent deals, are not prosecuted. The judges also expressed their shock at the state of Ghana's records from which it is often impossible to tell the rightful owners of plots of land. They said such chaos, combined with uncertainty about whether property deals are valid, would deter also foreign investors.

Judicial Leadership in the Time of Covid-19
Judicial Leadership in the Time of Covid-19

The role of judicial leadership during the COVID-19 pandemic will be critical. We don’t have a single judiciary, or at least not yet – and the different parts of the South African justice system are responding differently.

Damage to the environment resides in a hallowed place - Zambian judge
Damage to the environment resides in a hallowed place - Zambian judge

Eight senior Zambian headmen and a traditional princess have challenged the behaviour of the government’s private-public partnership company, Zambia Airforce Projects Ltd, in relation to a building project in an environmentally critical area. Now they have been rewarded by a tough court response in their favour. A Court of Appeal judge who heard the application by the traditional leaders has issued an order stopping any further work in the area until key environmental law issues have been satisfied and the court gives the company the go-ahead to continue.

Banks helped rob Uganda of millions of US dollars – constitutional court
Banks helped rob Uganda of millions of US dollars – constitutional court

Like sunlight shining into dark spaces, Uganda’s constitutional court has named names and pointed fingers at those responsible for a mega-scam that has shocked the country. The court’s majority found several banks played a key role in a taxpayer loss of almost US37m. Now the banks involved have each been fined US10m and other parties to the scam will also have to pay up, though the exact amounts are yet to be decided by the high court. The scam involved a prominent Ugandan business leader and politician, several of his companies and four banks. The court also pointed a finger at a former minister of finance and a former attorney general.

African lawyers protest as colleagues targeted by police, judiciary
African lawyers protest as colleagues targeted by police, judiciary

International lawyers’ organisations have reacted with shock to news that colleagues in four African countries have been targeted by the judiciary, the police or other state officials, in a way that has stopped them carrying out their work -  all without a proper opportunity to be heard.

Senior Zimbabwean judge, Francis Bere, at misconduct tribunal
Senior Zimbabwean judge, Francis Bere, at misconduct tribunal

A respected senior member of Zimbabwe's judiciary is being investigated for alleged misconduct, for the second time in little over a year. President Emmerson Mnangagwa has appointed a tribunal to investigate the allegations against him and, surrounded by considerable publicity, the tribunal members have been sworn in. The allegations against the judge concern a phone call he made to a lawyer. While the lawyer says the call included remarks to the effect that he should settle a civil dispute involving relatives of the judge, the judge himself says the call was 'purely social.'

Just 34, but he has already spent over half his life in a Kenyan jail
Just 34, but he has already spent over half his life in a Kenyan jail

The case of Thomas Odede, arrested for murder aged just 12, illustrates how easy it is for children to be forgotten once they land in jail. Following his conviction he was detained in prison ‘at the President’s pleasure’. But after 19 years he asked the courts for help, claiming such an open-ended ‘sentence’ was unconstitutional.

Judicial independence infringed when Uganda's Chief Justice has to 'plead' for funds - constitutional court
Judicial independence infringed when Uganda's Chief Justice has to 'plead' for funds - constitutional court

Uganda’s constitutional court has found that the independence of the country’s judiciary is in jeopardy because of the way the budget of this arm of government is handled. In one of its most significant decisions under the present constitution, the court said the system made the judiciary very much the junior branch in the three arms of government, and often reduced the Chief Justice ‘to pleading for funds from the executive’. A unanimous court of five judges set time-tables for major changes to the present situation so as to protect judicial administrative independence. The court also had strong criticism for the other arms of government whose argument, presented in court, seemed to ‘trivialise the importance of the judiciary’.

Angolan lawyer’s arrest, torture condemned by SADC Lawyers’ Association
Angolan lawyer’s arrest, torture condemned by SADC Lawyers’ Association

Angolan lawyers are in uproar over an incident in which one of their profession was detained, tortured and charged by police. According to a statement by the Southern African Develoment Community Lawyers' Association, the lawyer, Eugenio Marcolino, had been appearing in court when the police detained him.

New website of the Seychelles' judiciary to 'help ensure open justice'
New website of the Seychelles' judiciary to 'help ensure open justice'

The judiciary of Seychelles has launched a new website, providing access to the judgments of its courts as well as giving the judiciary a more human face. It is intended to help the public with provide resources as well as information. Everything the public needs to know about accessing legal aid, for example, can be found there, while for lawyers all the Practice Directions now become available in a single place

Record mysteriously disappears: what should a court do?
Record mysteriously disappears: what should a court do?

Out of the blue, and after serving nearly 16 years of his 30-year sentence, a prisoner in one of Zimbabwe’s maximum security jails applied for bail pending an appeal. But there were two problems: there was no appeal pending - and there could be no appeal since all the records had mysteriously disappeared. Not even the name of the trial magistrate could be found. What was the high court to do?

Should South Africa's top court hear a torture dispute implicating Equatorial Guinea's vice president?
Should South Africa's top court hear a torture dispute implicating Equatorial Guinea's vice president?

Teodorin Obiang, vice president of Equatorial Guinea (EG), a country regarded as one of the most corrupt in the world, wants South Africa’s top court to halt a R70m legal claim being brought against him there. The claim, by a South African businessman, is for damages relating to his wrongful arrest and detention in EG between 2013 – 2015, under conditions so appalling that they amount to torture under international law. Obiang is asking the Constitutional Court to hear his challenge to a decision of a full bench of the high court in SA after three judges said the damages claim against him could go ahead.

Africa's women struggle to gain abortion rights; USA women struggle to keep them
Africa's women struggle to gain abortion rights; USA women struggle to keep them

Most African states still struggle over the right to an early, safe, legal abortion and as a result the number of women dying from illegal terminations continues to increase at an alarming rate. However, in the United States, where women thought that this right had been established decades ago, it is now under serious threat, with the principle established in Roe v Wade under systematic attack in the courts and the states' legislatures. Just last week the Supreme Court heard argument in the latest state bid to undermine that right.

Indian widow’s plight ‘shocks conscience of the court’
Indian widow’s plight ‘shocks conscience of the court’

In Africa, as in India, land rights, access to and ownership of land are a major concern. It is often the most poor and vulnerable that suffer the worst when these rights are not respected. And if you are an unlettered woman, on your own, you could find yourself and your rights disappearing altogether. Take the case of Vidya Devi who lives in India’s Himachal Pradesh state. More than half a century ago, the state took her land away from her for a road – but to this day she has been paid not a cent for it, even though the state was legally obliged to pay compensation. It is cases like that this that we need to remember when marking International Women's Day.

Eritrea 'slave labourers' - Canada's highest court allows claim to be heard in Canada
Eritrea 'slave labourers' - Canada's highest court allows claim to be heard in Canada

In a widely-hailed new decision, Canada’s supreme court has ruled that Eritrean workers, allegedly forced by the state to provide slave labour to a Canadian-owned mine in Eritrea, may sue the mining company in the Canadian courts. Vancouver-based company, Nevsun, has been operating a mining outfit in Eritrea, using local workers. In terms of the new supreme court decision, these miners may now sue Nevsun, in Canada and under Canadian law, for the conditions under which they say they were made to work. The three Eritreans claiming against Nevsun say they worked in the mine against their will. They claim they constantly feared torture and other punishment. One of the three said he was ‘abducted at gunpoint’ from the mine, held in solitary confinement, tortured, and given electric shocks.  Apart from the impact on the workers (who must now prove their working conditions and that Nevsun was aware of these conditions) the decision is also important because it shows the highest court in Canada developing the law of that country to take account of customary international law. The court’s majority said there were no Canadian laws that conflicted with the adoption of customary international law as part of Canada’s common law. On the contrary, the government had adopted policies to ensure that ‘Canadian companies operating abroad respect these norms’. ‘In the absence of any contrary law, the customary international law norms raised by the Eritrean workers form part of the Canadian common law and potentially apply to Nevsun,’ said the court.

Kenya and Botswana: why were their recent sodomy judgments so different?
Kenya and Botswana: why were their recent sodomy judgments so different?

In this post from the website of the International Association of Constitutional Law , blogger Aditendra Singh of the National Law University, Delhi, compares two similar cases from Kenya and Botswana. He poses the question: What made the courts adjudicate the matters so differently?

Namibia's anti-graft body targets counsel from South Africa

Namibia’s Anti-Corruption Commission, already sharply censured by the high court for going beyond powers allowed it by law (see 'When the Shepherd becomes a Wolf' on this website), is now coming in for even wider criticism. This time it’s for serving a summons on counsel for the accused – in court and during a hearing related to the ‘Fishrot’ scandal that has stunned Namibia. The scandal involves allegations of international bribery and corruption for access to Namibian fishing waters. Last week, South African counsel, Tembeka Ngcukaitobi, appearing in the high court, Windhoek, on behalf of suspects in the matter, was served with a summons from the ACC demanding that he explain a payment he had received from Namibia’s national fishing corporation, Fishcor, in 2018, and given just an hour to answer. The SADC-Lawyers Association has issued a strongly worded statement on the incident, and the Namibian government has subsequently apologised to Ngcukaitobi. It is not the first time that counsel for the Fishrot accused have run into trouble with the Namibian authorities: late last year, two South African advocates were arrested, held in police cells and prevented from appearing to argue in court as they did not have the required work permits.

Sudan: does it care a damn?
Sudan: does it care a damn?

The highest court in the United States has just heard argument in a case that could have far-reaching implications for Sudan and perhaps for other countries said to be sponsoring terrorism. It concerns amendments to a key piece of US legislation and whether these amendments could apply retroactively, in this case to Sudan. That state has withdrawn from the litigation, refusing to participate in any way. However, if the court finds the law applies, Sudan could be liable to damages running into billions of US dollars for compensation to victims of terror bombings and their families. Judgment on the question has been reserved, but in the course of argument when the matter came to the US Supreme Court last week, counsel appearing for Sudan let slip an ‘utterance’ seldom heard in such a conservative, formal environment: he said ‘damn’. A quick check shows that a member of South Africa’s highest court has gone even further, putting the word into a formal decision of that court.

April 2020

First-class vs economy-class access to the law: what the US Supreme Court says
First-class vs economy-class access to the law: what the US Supreme Court says

A new decision from the US Supreme Court has a strong message for other courts, lawyers and everyone who works with court documents and with legislation, annotated or otherwise. The judgment restates the principle that no-one may claim copyright on decisions of the courts because the law belongs to 'the people' who have a right to know its content. But the judgment goes further and holds that government-commissioned annotations, like headnotes made on legislation, are also not subject to copyright. It’s an important decision for courts everywhere now that increasing numbers of lawyers and legal activists demand access to court judgments in electronic format. It’s also important because of the likely influence of the US court’s newly-articulated thinking on the copyright status of annotated legislation.

RIP Justice Augustino Ramadhani

Justice Augustino Ramadhani, who died this week at the Aga Khan Hospital in Dar es Salaam, had been the Chief Justice of both Zanzibar and of the United Republic of Tanzania. He had also served as a judge on the African Court on Human and Peoples’ Rights from 2010 to 2016, and for the last two years of his term had been President of that court. That was not his only appointment to a regional court, however, and he had served as a judge on the East African Court of Justice from 2001 to 2007.

Totality principle in 'harrowing' Seychelles online sexual abuse case
Totality principle in 'harrowing' Seychelles online sexual abuse case

From the holiday islands of Seychelles comes a new judgment with a warning for all of us on lockdown with kids spending too much time online. It is a horrifying reminder of the dangers lurking on Facebook and other seemingly innocent platforms: even in a paradise like Seychelles, children may fall victim to evil that stalks them. The judgment, from the Supreme Court of Seychelles is important because of this warning, but it is also important for lawyers because of the sentencing system used by the court. Given the 'shocking' nature of the crimes, the judges concluded that sentencing in the matter had to be decided using what had come to be known as 'the totality principle', most developed and applied in Australia, the UK and Canada. It was a common law principle that required a judge, in a case where the accused was convicted on several offences, to ensure that the 'aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.'

Thai judge dies after second suicide attempt
Thai judge dies after second suicide attempt

The Thai judge who attempted suicide in court during October 2019 , has died after shooting himself in the heart. Judge Khanakorn Pianchana was protesting at what he said was interference in a politically-charged trial over which he presided. His death last month has been marked by statements of sympathy and concern by a number of international human rights organisations. Before his second, successful, suicide attempt, the judge wrote about his despair over structural problems in the judiciary that allowed for interference in decisions. He also wrote about his sadness at losing a job he loved.

Sentencing pregnant women in Malawi – judge lays down the law
Sentencing pregnant women in Malawi – judge lays down the law

The case of a heavily pregnant woman accused of stealing at a shopping centre has given one of Malawi’s judges the chance to re-state the law on sentencing first offenders and pregnant women. The judge quoted international law on the subject, as well as Malawi’s own legislation and prison inspection reports, some of which she had written herself. She pointed out that the country’s prisons did not have proper health care facilities for dealing with pregnant women or infants and that the infant and maternal mortality rates in prison were a matter of concern.

Sierra Leone scraps ban on pregnant schoolgirls going to school
Sierra Leone scraps ban on pregnant schoolgirls going to school

In a major policy shift, the government of Sierra Leone this week announced that it had agreed to change the law and allow pregnant schoolgirls to continue attending school. The issue has divided society in that country, with the previous government taking a strong stand against mothers-to-be being permitted to go on attending lessons in mainstream schools. However, the new government that took office about two years ago has shown itself willing to make changes on the issue. Pressure to change the law has been mounting, most recently in December 2019, with a decision of the ECOWAS Court holding that the ban was discriminatory and should be scrapped.

Repressive policing law: scathing judgment by Uganda's constitutional court
Repressive policing law: scathing judgment by Uganda's constitutional court

One of Uganda’s most contentious laws has come under fire by that country’s constitutional court. A particularly repressive section giving the police power to prohibit all public gatherings and protest has been declared unconstitutional and the court’s majority took the opportunity to criticise the way police hound and harass any political gathering not called by the ruling party.

May 2020

Two state entities overseeing Kenyan land administration fight over their respective rights, duties
Two state entities overseeing Kenyan land administration fight over their respective rights, duties

Two Kenyan state entities are not seeing eye to eye about how crucial land issues should be handled. The National Land Commission and the Ministry of Lands and Physical Planning both claim that tasks where they should be in charge, are wrongly being carried out by the other entity. Not even a supreme court advisory opinion has resolved the problem, and each continues to interpret that opinion in a way that favours its own interests, escalating conflict between them. There are also now two ‘live’ petitions that ask for judicial help in solving the disputes. The country’s appeal court has just given a decision on the way forward.

Copyright & A2K Issues - 21 May 2020

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:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:  http://lists.wits.ac.za/mailman/listinfo/copyrightanda2kinfo    or email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Nigeria loses bid for UK courts to hear bribe claims against petrol giants
Nigeria loses bid for UK courts to hear bribe claims against petrol giants

A London judge has ruled that England has no jurisdiction over a case brought by the Nigerian government against Royal Dutch Shell and Italian oil giant, Eni. The $1 billion U.K. lawsuit was brought over allegations the two companies knew about bribes in a Nigerian oil deal. Last week, on May 22, the judge determined that the claim in London involves essentially the same facts as a parallel proceeding that is currently ongoing before a court in Milan, Italy and that the London claim may thus not go ahead

Police officers cannot escape responsibility for rights abuse by citing ‘higher orders’ – Ugandan court
Police officers cannot escape responsibility for rights abuse by citing ‘higher orders’ – Ugandan court

A judge of Uganda's high court has ruled that individual members of the police and other security forces may not rely on 'higher orders' or claims that they were waiting for orders 'from above', to justify human rights violations. Judge Margaret Mutonyi ordered significant damages as compensation to a number of applicants after she found police had abused their rights. In one of the two applications she dealt with, a number of people were unlawfully arrested and detained for participating in a legal protest against the raising of Uganda's presidential age limit. In the other case, the two wives of a man being investigated for murder were both arrested. Between them they had about a dozen children, including babies under a year old and still breast feeding. All the children were taken away by the police after the mothers were detained. The police caused the mothers severe stress by refusing to tell them what had happened to the children, even saying they had been given away and that they would never see them again. The arrested children were held for 51 days. The question of whether following 'higher orders' is a valid excuse for rights abuse in the security forces is a long-standing issue in international law, and the International Military Charter (Nuremberg), for example, states: 'The fact that the Defendant acted pursuant to orders of his Government or of a superior, shall not free him from responsibility.' It may however be considered in mitigation.

Copyright & A2K Issues - 26 May 2020

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:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please email  Denise.Nicholson@wits.ac.za . (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Copyright & A2K Issues - 27 May 2020

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:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:  http://lists.wits.ac.za/mailman/listinfo/copyrightanda2kinfo    or email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Parliament’s ‘contempt’ raised in challenge to Tanzania’s bail-ban laws
Parliament’s ‘contempt’ raised in challenge to Tanzania’s bail-ban laws

Tanzania’s bail laws have been brought into line with the country’s constitution, following an application by a member of the legal profession. But in the aftermath of the decision there’s confusion and concern, mostly related to the appeal noted by the government the day after judgment was delivered this week. The high court judgment by three judges deals with the problem that the law makes certain offences ‘unbailable’. How does this square with judicial discretion, the petitioner asked.

Help secure African Court’s future: here’s your chance
Help secure African Court’s future: here’s your chance

One of the continent’s most precious and prized institutions, the African Court on Human and Peoples’ Rights, is under immense pressure. Its very existence as a human rights court for the continent is at stake – and now you can join in doing something about it. The court is asking for input on its next five-year plan and we urge you to take this plea for helpful ideas very seriously. Celebrate Africa Day by ensuring your voice is heard on the court’s future role!

Malawi appeal court judges set new election standards
Malawi appeal court judges set new election standards

Malawi’s Supreme Court of Appeal has confirmed that Peter Mutharika was ‘not duly elected’ as President in last year’s national election. This is important news: many people had been holding their breath as they waited for the appeal outcome. But that is far from all that the judgment decided. It also made final rulings on other issues that will impact on government and elections into the future, well beyond the forthcoming re-run. In this case the appeal court was considering a decision by Malawi's constitutional court, handed down earlier this year. It had reached the shock conclusion that Mutharika was not in fact ‘duly elected’ in the May 2019 polls, and the constitutional court ruled new elections had to be held within 150 days. Mutharika and the Malawi Electoral Commission appealed against this decision, and it was in response to this appeal that the seven Appeal Court judges have now delivered their decision, from which there can be no further challenge. Important though the Appeal Court’s eagerly-anticipated decision has been in relation to the validity of the last polls and the requirement of a re-run, it also decided a number of other, related, issues that will impact on government and elections in the future as well.

African aviation post COVID-19 – Where to?
African aviation post COVID-19 – Where to?

According to the International Air Transport Association (IATA), aviation contributes to 2.6 % of Africa’s GDP and supports an estimated 6.2 million jobs. The aviation sector is one of the worse impacted during this crisis.

Courts should not give up their position as ‘last resort protection’ under COVID-19 regulations
Courts should not give up their position as ‘last resort protection’ under COVID-19 regulations

Courts should beware of giving up their role of protecting fundamental rights during the COVID-19 pandemic, according to Tim Fish Hodgson, legal advisor with the International Commission of Jurists, Africa. Interviewed online on how COVID-19 regulations were impacting on socio-economic rights wordwide, he said that in many countries, courts were no longer as willing to consider cases involving infringements of rights. They took the view that, under an emergency situation, judges 'need to defer'. Urging courts not to take this stance, Hodgson said judges around the world need to make sure that court systems operate as fully as possible, especially in response to people's claims about right's protection.

Lawyers don't have to pay double tax, minister ought to consult next time - Uganda court
Lawyers don't have to pay double tax, minister ought to consult next time - Uganda court

After a long and difficult battle with the relevant minister, Uganda's law society has staved off attempts to subject members to double taxation. The government had included lawyers on a schedule of professions and businesses that had to apply for local licences to 'trade', though they are already taxed via practice certification processes. Judge Ssekaana Musa had to deal with similar challenges to the schedule from members of Uganda's pharmaceutical association and organised members of the country's forwarding and clearing business. In all three cases, he found the 2017 proposals would introduce a system that amounted to double taxation. This was impermissible and the minister's actions were thus declared invalid. In an obiter note at the end of his judgment on the law society's challenge, Judge Musa urged that the government consult with the law society to avoid 'further litigation'.

Changes to Dispensing Regulations pertaining to certain Schedules of Medicines during COVID-19
Changes to Dispensing Regulations pertaining to certain Schedules of Medicines during COVID-19

On 7 May 2020 the Minister of Health published a Government Notice (Gazette No 43294, Notice no. 514) relating to the dispensing of Schedule 2, Schedule 3 and Schedule 4 substances during the COVID-19 Pandemic.

Conducting Court Hearings in Botswana under Covid-19 Restrictions: Hidden Feature of ‘extremely urgent applications’
Conducting Court Hearings in Botswana under Covid-19 Restrictions: Hidden Feature of ‘extremely urgent applications’

Quite unfamiliar territory it is to find one’s self emailing a Judge about their case before it is filed (let alone emailing a Judge entirely) and even more peculiar calling a magistrate directly, but such are the extents to which extreme social distancing has led our court system in Botswana.

New head for SADC administrative tribunal
New head for SADC administrative tribunal

A member of Mozambique’s supreme court, Pedro Sinai Nhatitima, has been elected to head the SADC Administrative Tribunal. He succeeds Zimbabwe’s Justice Francis Bere who had reached the end of his term of office as president of the tribunal.

Teachers' body vicariously liable for rape, sexual assault at school - appeal judges

Whenever a judgment announces that it is dealing with ‘novel questions of law’, readers need to pay close attention. This is just such a case. It concerns Kenya’s Teachers Service Commission, a body that had employed a teacher who sexually abused some students. Was the TSC vicariously liable for those acts? Had the TSC failed in its constitutional and statutory duty to protect the two children named in the case as WJ and LN, as well as other children, from the teacher’s depredations? – Unusually, these questions were considered by four women judges. One, Judge Mumbi Ngugi, heard the original case in the high court. Then three more women presided when the case was considered on appeal.

Posthumous win for Kenyan human rights activists
Posthumous win for Kenyan human rights activists

Many decades after they were detained and tortured, two prominent Kenyan activists who campaigned for multi-party democracy and human rights have been awarded posthumous compensation related to their detention and torture under previous repressive governments. The court that awarded compensation to them also made formal declarations that the fundamental freedoms of the two, Charles Rubia and John Serony, had been violated, as had their right not to be subject to torture and other unlawful abuse. Though it had been many years since the two were detained and tortured, the presiding judge said it was 'not too late to peer into the past and correct injustices that may have occurred in our history.'

June 2020

Copyright & A2K Issues - 29 June 2020

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:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:  http://lists.wits.ac.za/mailman/listinfo/copyrightanda2kinfo    or email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Supply doctors, health workers with protection, court tells Lesotho government
Supply doctors, health workers with protection, court tells Lesotho government

Doctors in Lesotho have won a major constitutional battle. They brought a case against the country’s minister of health, the minister of finance and the minister of public service, among others, claiming that their constitutional rights had been infringed in a number of ways. In particular they said they were not being provided with proper personal protective equipment (PPE). They were also unhappy because long-established supplementary payments to them had been cut off by government, all in the name of shortage of funds. On both issues the court has declared their constitutional rights were violated, and the judges also ordered the government parties to provide doctors and health workers with PPE ‘within a reasonable time’.

'Indeed the dead have rights' - Kenyan high court in Covid exhumation case
'Indeed the dead have rights' - Kenyan high court in Covid exhumation case

Relatives of a Kenyan man who died shortly after the outbreak of the Coronavirus pandemic, have asked that his hurriedly-buried body be exhumed, tested for Covid-19 and then re-buried with proper traditional rites. They complained that during a late-night burial, the body of James Onyango was put into a shallow grave wrapped in a plastic bag, while a ‘battalion of police officers’ and local government officials surrounded the family house. This was contrary to custom and had caused stigma in their traditional village. Government authorities, however, said post-mortem tests showed that Onyango had Covid-19 and thus he had been buried hastily, according to the practice prevalent in April, with very few attending. The family was particularly worried that wild animals could dig up the body as it was not buried in a coffin, nor in a grave of the normal depth. They said the dead man had a right to human dignity ‘even in death’. In a lengthy judgment, Judge Rosemary Aburili concluded that exhumation was not advised given the health hazards involved, but ordered the grave site be properly cemented to prevent animals from digging it up.  She also spoke about the fear and stigma, even at present, if someone in the family was suspected of having Covid-19. She said such a person was ‘surrounded by an army of public health officials, accompanied by heavy security teams, captured like a stray monkey [and] taken to quarantine at the suspect’s own cost.’

Copyright & A2K Issues - 23 June 2020

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:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:  http://lists.wits.ac.za/mailman/listinfo/copyrightanda2kinfo    or email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Malawi's judicial crisis deepens: resistance to gvmt moves placing CJ on immediate leave
Malawi's judicial crisis deepens: resistance to gvmt moves placing CJ on immediate leave

Malawi remains tense after last weekend’s shock government announcement of action against the country’s Chief Justice, Andrew Nyirenda. The government said that, with immediate effect, it was sending him on leave ‘pending retirement’. That announcement galvanised the local and international community and led to protests in a number of Malawian cities. It also led to many statements of support for Malawi’s judiciary, including from other African Chief Justices. In response to the action taken against the Chief Justice, the Malawian judiciary issued a statement of its own saying that the Chief Justice and other judges - whose immediate departure from office ‘on leave pending retirement’ had also been announced by the government - would all be back at work as usual in the week that followed. All of this legal drama took place as the country prepared for new elections on June 23, following the Supreme Court’s judgment, upholding the Constitutional Court, to the effect that the elections of 2019 were invalid.

A war against the nation's women and children - Ramaphosa
A war against the nation's women and children - Ramaphosa

In his most recent address to the country on the Covid-19 situation, President Cyril Ramaphosa of South Africa has spoken about easing the restrictions imposed on the country since March 27. But he took his audience by surprise when he deviated from his usual format to speak strongly – even with some passion – about the terrible increase of killings and abuse of women and children that has characterised the period of restrictions imposed to curb the Coronavirus.

Judge murdered while presiding in massive DRC corruption trial
Judge murdered while presiding in massive DRC corruption trial

Judge Raphael Yanyi, presiding in the high-profile trial of a senior Democratic Republic of Congo official facing corruption charges, died on May 26. Three successive versions of the cause of his death have now been given – a heart attack, poisoning and stab wounds to the head. His family is calling for an independent autopsy to be conducted by international experts who are independent of the DRC government. Sentence is likely to be imposed on the three accused in the case on June 20, by another judge who stepped in to continue the case after Judge Yanyi died.

Major decision on gay rights by US Supreme Court
Major decision on gay rights by US Supreme Court

The US Supreme Court this week delivered a judgment in which the majority held it was unlawful, under the Civil Rights Act of 1964, to dismiss anyone on grounds of ‘sex’ – and that this included firing anyone because they were gay or transgender. Three judges disagreed, saying the law dealt with ‘sex’ – not ‘sexual identity’ or gender.

Coronavirus fears hit law firms, courts; plans for containment
Coronavirus fears hit law firms, courts; plans for containment

Law firms around the world are considering how best to help contain the spread of coronavirus among staff and clients. Some legal offices have closed their corporate premises, requiring their staff to work from home. And in some countries even the courts have been affected or are making plans for possible shut-down.

Judge orders curfew exemption for Kenya’s lawyers
Judge orders curfew exemption for Kenya’s lawyers

Kenya's High Court has declared as unconstitutional the 'unreasonable use of force' by police since a dusk to dawn curfew came into effect in that country on 26 March. The court has also ordered that the authorities must include lawyers and members of the police oversight authorities on the list of those exempt from the provisions of the curfew, established as a response to the coronavirus. The curfew was implemented because the government was reluctant to impose a lockdown as has been the case in a number of other countries.

Kenya’s Covid-19 restrictions invalid, unlawful – law society
Kenya’s Covid-19 restrictions invalid, unlawful – law society

Kenya’s law society has launched a court application challenging the validity of the country’s Covid-19 restrictions because they have not been approved by parliament. The law society also claims they are invalid because they discriminate against the poor, in that they make wearing masks compulsory while those living in poverty will not be able to afford them. Further, the society argues that the regulations go further than the laws from which they derive their power, will allow.

As ‘moral Covid-19’ infects Namibia, even legal profession touched by Fishrot bribery scandal
As ‘moral Covid-19’ infects Namibia, even legal profession touched by Fishrot bribery scandal

The ‘Fishrot’ corruption scandal engulfing Namibia seems set to choke the country’s legal profession as well: while the Law Society of Namibia tries to access the records of one of its prominent members, suspected of being involved in the scandal and to have used his trust account for money-laundering, it has become clear that a number of the society’s council members face problems of a conflict of interest in the matter. In fact, so many of the council are hampered in one way or another, that local media speculate the society’s attempts to investigate involvement by members of the profession in the scandal could be compromised.

Costs order a lesson about 'frivolous' Covid-19 claims - labour court
Costs order a lesson about 'frivolous' Covid-19 claims - labour court

The first case testing whether sufficient protection was available for medical staff working on the front line against the coronavirus in South Africa, has resulted in an ignominious conclusion for the union that brought the legal action. The National Education Health and Allied Workers Union (Nehawu) launched its challenge as a matter of urgency in the Labour Court, alleging that the government was not providing adequate protective gear to Nehawu members working in particular hospitals. In the end, however, it was unable to provide any evidence of a lack of personal protective equipment (PPE) at any of the medical facilities mentioned in its claim, and withdrew its case. But despite that withdrawal the court gave a full judgment, reciting information provided by the government about the stocks of PPE available in the hospitals or ordered. The judge said it was necessary to evaluate the union's claims in a formal, written decision so that the public was assured about the situation. The case led to the national Minister of Health giving a clear statement of the preparedness of SA's medical facilities for dealing with Covid-19 in relation to health workers' protective gear. It is also important because the judge spelled out that a court could adjust the 'standard of what constitutes frivolous and vexatious conduct' in litigation so that parties who pursued 'obviously untenable legal points' or used the court as 'part of power-play', or made allegations they could not substantiate, would know that they risked a cost order if they should lose. In other words, the judge gave notice of how a court might consider the question of costs in a case brought at a critical time like this, when the case involved serious claims that could not be backed up.

Malawian law students lose their challenge to Covid-19 university closure
Malawian law students lose their challenge to Covid-19 university closure

A group of four students studying law in Malawi have lost their high court case challenging the validity of the President's Covid-19-related directives. They also lost their challenge to the closure of their university in terms of those directives. But it was not all bad news for them – at least the students won commendation from the presiding judge for ‘taking their future seriously’.

Controversial Lesotho PM prorogues Parliament, gets taken to court
Controversial Lesotho PM prorogues Parliament, gets taken to court

Lesotho’s Prime Minister, Tom Thabane, has signed papers suspending parliament for three months. He cited the coronavirus pandemic to explain his decision. Ironically, a full-on legal application contesting the validity of his Covid-19-based decision, was heard in a virtually empty court due to steps aimed at containing spread of the disease. But the case also marked a significant step for the country’s broadcaster which, for the first time, carried a court hearing live on national television and radio.

Fix laws or face huge damages claims – judge warns Malawi lawmakers on the state of Covid-19 disaster legislation
Fix laws or face huge damages claims – judge warns Malawi lawmakers on the state of Covid-19 disaster legislation

In a long and highly unusual judgment, a judge of Malawi’s high court has shown that the country’s legislation is completely unprepared to manage the coronavirus pandemic, and without the appropriate regulations or, in some cases, even appropriate laws. The judge made these findings in a case that concerned 10 Chinese nationals visiting the country. In a series of steps by officials of Malawi’s immigration and citizenship services some were deported, while the remaining four are still in Malawi although attempts were made to send them back to China. Official action against them appears, however, to have been taken without the proper legal basis: officials were unable to use the present health law that dates back to 1948, and so decided on action based on a 'resolution'. In deciding the interim questions raised in the first part of the case, the judge examined laws essential for the state of disaster declared to deal with the coronavirus and found the laws ‘archaic’, ‘obsolete’ and in a ‘total shambles’. The judge also strongly resisted claims that appear to be circulating in Malawi, that judges who demand that official action must be taken in terms of some law or regulation, are ‘unpatriotic’. He warned that unless laws and regulations were urgently fixed so that they are fit for purpose and will stand up in court, the state as well as local authorities could find themselves facing massive claims for damages in relation to actions that are not lawful.

Court slams lawyers for not having COVID-19 permits to appear in case
Court slams lawyers for not having COVID-19 permits to appear in case

A South African judge has strongly criticised a group of lawyers who appeared in an urgent case that, among other things, dealt with access to water by residents of a municipality affected by a political dispute. The judge said that the lawyers were irresponsible and unprofessional because they had not obtained the permits required to attend a court case under COVID-19 lockdown regulations. The court further ordered that the lawyers were not allowed to charge their fees for the day, and that the question of their lack of proper permits should be reported to the Legal Practice Council.

Judge rejects bid to stop upgrade of 'elite' hospital in Zimbabwe
Judge rejects bid to stop upgrade of 'elite' hospital in Zimbabwe

The High Court in Zimbabwe has rejected an attempt to stop the refurbishment of an incomplete and deserted hospital and make it available for patients ill with Covid-19. The Rock Foundation Medical Centre, sometimes called the Arundel Mediclinic and Arundel Hospital, has been at the centre of a major row, with many government opposition members saying the ruling party was renovating the place for the use of the political elite. Government response to these claims has been equivocal and there is still a strong and widespread belief that the upgraded facilities would be available only to fee paying patients. Since the vast majority of people in Zimbabwe would not be able to afford treatment at such centres, and must rely on public facilities that lack even the most basic equipment, the Rock Foundation hospital and a second facility that is also being upgraded for fee-paying patients, have both become touchstones for public protest.

No protection in Zim for pangolin, alleged trigger of world's coronavirus pandemic
No protection in Zim for pangolin, alleged trigger of world's coronavirus pandemic

Scientists increasingly believe that pangolin meat might have been part of the trigger for the deadly coronavirus. In this case the pangolin would have been bought in a typical Chinese market where illegally obtained wildlife has been an everyday element. But though that news has given new impetus to wildlife protection, it turns out that there is no proper legal protection for the pangolin in Zimbabwe. Cabinet ministers have not added it to the list of protected species whose possession is unlawful - despite being urged to do so in a recent judicial decision.

Human rights fightback as security forces take abusive action under cover of COVID-19 regulations
Human rights fightback as security forces take abusive action under cover of COVID-19 regulations

As the security forces of some African countries take abusive action against people under cover of Covid-19 lockdown regulations, human rights groups have begun to fight back. Prompted by complaints of serious constitutional rights' violations – beatings, torture and other humiliating treatment – Kenya’s law society has brought a petition to the courts, and a human rights organisation in South Africa has done the same. In Kenya the court has agreed to part of the petition, with other issues still to be argued at a later date, possibly even today, while the SA case could be called later this month.

Covid-19 and the justice and legal sector
Covid-19 and the justice and legal sector

Covid-19, the viral threat that is sweeping across the world, is not exempting the judicial and legal sector. It raises problems for the operation of courts and legal practices as well as posing novel legal dilemmas. Here is a glimpse of some of the challenges being dealt with internationally in relation to the law, reported over the last week.

Lessons for Covid-19 from HIV response: don’t forget vulnerable groups - women, the unemployed – and sexual minorities
Lessons for Covid-19 from HIV response: don’t forget vulnerable groups - women, the unemployed – and sexual minorities

In a webinar this week, arranged by UNAIDS and the SADC-Lawyers Association, speakers teased out what could be learned from the response to HIV as countries struggled to manage the impact of Covid-19 on people’s safety.

A win for all of South Africa against brutality by security forces
A win for all of South Africa against brutality by security forces

In a major victory for human rights delivered by the high court in South Africa, the family of Collins Khosa and their neighbours have won a court application for orders against the security forces and their bosses. And they will no doubt be awarded significant damages when that part of the litigation is eventually heard. But they are not the only winners: everyone in South Africa has won because of this restatement by the courts of the obvious: that the government and the security forces will be held to account for how they behave - even during restrictions aimed at curbing the spread of Covid-19 - and that their behaviour will be measured against the standards of the Constitution and the Bill of Rights. The judgment is a reminder to everyone in the region that judges and courts are able to act in protection of human rights, and that they can truly make a difference.

Malawi case flags growing threats to human rights, role of African Court
Malawi case flags growing threats to human rights, role of African Court

Almost every country in the world is experiencing a narrowing of peoples’ rights and freedoms because of government restrictions imposed in the name of fighting the Covid-19 pandemic. But will these governments willingly give up their new powers as the contagion eases? And if not, where should the people of a state look for help, if their own courts uphold these infringements of fundamental rights? In Africa, the African Court on Human and Peoples' Rights would be the court to adjudicate serious rights issues like these. But the question is whether, come the end of the pandemic, the court will be in a position to help. Very few of the 55 members of the African Union have fully signed up to the court in the sense of allowing individuals and NGOs to bring cases of human rights violations for adjudication by that forum. And those numbers have dropped in the past few months, weakening the court further. The case of Malawi human rights activist Charles Kajoloweka should, however, persuade people of the need to protect the African Court from any further withdrawals - and of the need to lobby for more countries to submit to its jurisdiction.

Dying surrounded by family ‘a most fundamental right’ - court
Dying surrounded by family ‘a most fundamental right’ - court

In a case that has moved readers worldwide and that sparked a judge to comment on the rights of a dying person even during the Covid-19 pandemic, a court has ordered that a terminally ill Nigerian woman living in the UK be allowed to leave the care home where she had been staying, to spend her last days with her extended family. In her decision on the case, UK Judge Nathalie Lieven commented that the woman had ‘something between a few weeks and 3 – 6 months to live’ and that the question was whether she should be able to spend those last days with her family. ‘The ability to die with one’s family and loves ones seem to me to be one of the most fundamental parts of any right to private or family life,’ the judge wrote.

Lockdown on hold, AG taken to task: latest from Malawi high court
Lockdown on hold, AG taken to task: latest from Malawi high court

In this week’s round of an ongoing dispute over the validity of Malawi’s Covid-19 restrictions, the high court has ruled that the government's planned regulations may still not be put into effect. The court has referred these challenges to the Chief Justice who will consider setting up a high court constitutional panel that would hear the problem and find a way forward. At its heart, the dispute is about whether the proposed restrictions have a valid legal base and/or contravene the constitution. But this week’s judgment also took on the attorney general’s office for having made no appearance in court when the matter was argued. The court called this a ‘snub’ and ‘astounding effrontery’.

Security forces sowing terror in Lesotho, Lawyers for Human Rights tells courts

Lawyers of yet another SADC country have turned to the courts for help with security force brutality against ordinary people in the community, carried out under cover of Covid-19 regulations. This time it is Lesotho Lawyers for Human Rights that is asking the high court’s constitutional panel to stop the security forces from torturing, killing and abusing people. The organisation also wants the court to order that all members of the security forces who have assaulted or tortured members of the public should be arrested and charged. The lawyers claim that ‘terror and consternation’ is sweeping through the nation, and that the judges should act urgently to stop the unlawful brutality and to protect people against further ‘inhuman and degrading treatment’.

Suspension of Lesotho's parliament 'irrational', 'unlawful' - court
Suspension of Lesotho's parliament 'irrational', 'unlawful' - court

It was a transparent attempt to avoid a vote of no-confidence by parliament, hiding behind a claim to be protecting MPs from Covid-19. And now the controversial Prime Minister of Lesotho has had his come-uppance from the country’s high court which ruled his prorogation of parliament was invalid. Just another blow for the soon to be ex-PM, Thomas Thabane, a man under suspicion of involvement in the murder of his estranged second wife. Just how soon is far from clear, however, with defiant Thabane saying he will choose how and when to make his exit.

'Just not good enough' - get up to speed for electronic hearings: UK court
'Just not good enough' - get up to speed for electronic hearings: UK court

Like it or not, the coronavirus is forcing lawyers – judges, magistrates, prosecutors, advocate and attorneys – to play catch up with technology. Many courts are now operating through the lockdown or other social distancing restrictions via electronic hearings, and judges have to be up to speed. A number of recent cases show the courts wrestling with the question of how much extra time should be allowed to parties for preparation when the case is to be heard electronically. And under what circumstances should a court agree to postpone a matter until it is possible that lockdown will be lifted, so that the case may be heard as in the past? If ever there was a case that illustrated the problems involved with Covid-19 regulations and their impact on hearings in legal matters, it is this one.

Copyright & A2K Issues - 12 June 2020

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:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:  http://lists.wits.ac.za/mailman/listinfo/copyrightanda2kinfo    or email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Tanzania must overhaul its oppressive media law after court scraps appeal
Tanzania must overhaul its oppressive media law after court scraps appeal

The Tanzanian government has suffered yet another blow to its efforts at curbing free expression: it has lost its appeal against a declaration of invalidity of key elements of a law that had given it wide-ranging powers to stifle the media. Earlier this week, the appellate tribunal of the East African Court of Justice dismissed the government’s attempts to appeal, saying the appeal had not been filed within the time limits set by the court.

‘Limping and irrational’ decision overturned on appeal by East African Court
‘Limping and irrational’ decision overturned on appeal by East African Court

A strange application brought to the East African Court of Justice by Burundi has completely unraveled. Burundi had argued that the Speaker of the East African Legislative Assembly was not properly elected. Failing before the trial court, Burundi challenged the court’s decision - only to have its legal team slated on appeal. Not just that: the initial costs order was overturned and Burundi must now pay the legal costs of both the trial and the appeal.

Judge Chifundo Kachale's appointment to head Malawi electoral commission welcomed
Judge Chifundo Kachale's appointment to head Malawi electoral commission welcomed

Regional media are falling over themselves to praise and welcome the appointment of Judge Chifundo Kachale as the new head of Malawi’s electoral commission. Judge Kachale was named by President Peter Mutharika last weekend along with the rest of the commission – some new names and some old. Judge Kachale takes over from Judge Jane Ansah whose commission came in for scathing criticism by the country’s supreme court for its handling of the now-discredited 2019 elections.

Justice Modibo Tounty Guindo of Mali and the African Court RIP
Justice Modibo Tounty Guindo of Mali and the African Court RIP

A veteran of the African Court on Human and Peoples’ Rights, Judge Modibo Tounty Guindo, has died. He was among the group of judges that first set up the African Court when it began operations in 2006, and he served as that court’s first Vice President. At the time of his death he was a member of the constitutional court in his home country of Mali.

Regional court upholds freedom of expression, media freedom
Regional court upholds freedom of expression, media freedom

The Tanzanian government, seen as oppressive in its attitude to a number of democratic freedoms including freedom of expression and free media, has lost a significant battle at the East African Court of Justice. The EACJ, which resolves disputes involving the East African Community and its member states, was approached by the newspaper, Mseto, after the Tanzanian government suspended it from all operations for three years. First, the EACJ trial court held that the suspension was unlawful. Now, the EACJ appeal tribunal has set aside the government’s appeal application and refused it an extension of time to file the appeal. The Tanzanian government recently announced that it will no longer allow its citizens to bring cases against it in the African Court on Human and Peoples’ Rights, the continent’s human rights court. In view of this new defeat at the EACJ, might Dodoma be considering how to prevent another embarrassing recurrence at the EACJ as well?

Judiciary in Malawi under threat – strong support offered
Judiciary in Malawi under threat – strong support offered

Growing animosity expressed by Malawi’s President Peter Mutharika against the country’s judiciary has provoked shocked reaction by two major legal bodies in Malawi, the Malawi Law Society and the Magistrates and Judges Association of Malawi. Both strongly criticised the President’s comments. Now several leading international legal organisations have issued a statement supporting the judiciary and restating the need for its independence to be respected.

Copyright & A2K Issues - 5 June 2020

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:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:  http://lists.wits.ac.za/mailman/listinfo/copyrightanda2kinfo    or email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Namibian paralegal's 'naked failure' to be admitted as attorney
Namibian paralegal's 'naked failure' to be admitted as attorney

A Namibian paralegal is rapidly notching up entries in the index of his country's law reports. In May alone, Alex Mabuku Kamwi featured in two decided cases. In one he was given leave to appeal because of a recusal issue. In the other he tried, a fourth time, for admission as an attorney - only to meet with what Judge Thomas Masuku called, a 'naked failure'. This was because the qualifications on which he bases his fight for admission are not recognised for this purpose by the Namibian law. He was also warned that if he makes another application based on 'spurious grounds' he could well be met with the court's 'ire' as well as a punitive costs order.

Court orders huge payout for former CEO of Zambia Railways
Court orders huge payout for former CEO of Zambia Railways

One of Zambia’s internationally best-known figures has been awarded huge damages by the high court following his sacking by the late Zambian President, Michael Sata. Clive Chirwa had been head-hunted by Sata to return to Zambia and take over as CEO of Zambia Railways. Just three months into the five-year contract, however, he was fired. He was told that he was being ‘retired in the public interest’. But Chirwa’s contract stipulated he was to be paid for the full five years if the contract were to be terminated for any reason other than ‘disciplinary’. The court awarded Chirwa, who has been fighting the matter since 2013, the full balance of his contract payments, plus interest.

Judge Lebohang Aaron Molete of Lesotho RIP
Judge Lebohang Aaron Molete of Lesotho RIP

A senior member of the judiciary in Lesotho, Lebohang Aaron Molete, has died. He was 61. In 2010 Judge Molete was appointed as a member of the commercial court. He also sat in several significant cases as a member of a specially constituted three-person constitutional panel. He died following a stroke that had left him suffering significant complications.

Bail grant to former First Lady of Lesotho: court finds 'gross irregularities'
Bail grant to former First Lady of Lesotho: court finds 'gross irregularities'

Lesotho's former first lady, Maesaiah Thabane, third wife of the country's former Prime Minister Thomas Thabane, has been charged with murdering her predecessor, the former PM's second wife. Though Maesaiah was granted bail by the country’s Acting Chief Justice, an Appeal Court bench – consisting of three ‘outside’ judges – has now found the bail decision tainted by ‘gross irregularities’. After a virtual hearing due to the Covid-19 pandemic, the three judges declared the bail decision invalid and ordered that a further bail hearing be urgently convened to resolve the issue. In its decision the court stressed the importance to Lesotho, as a 'constitutional democracy under the rule of law', of the dispute over the validity of the grant of bail in this case. The judges took note of the ‘high status’ and political power wielded by Maesaiah, urged that matters such as this should take place in open court rather than in judicial chambers as has become the norm in Lesotho, and that transparency should characterise such hearings in the interests of the people of the country and the rule of law. In particular, the judges expressed concern that well-established key issues for consideration in bail matters such as the likelihood of interference with witnesses and the prospects of convictions were not taken into account before bail was granted. Nor were any reasons provided by the Acting CJ for her decision to grant bail.

July 2020

Laptop left on, so private conversation in judge's chambers heard in courtroom
Laptop left on, so private conversation in judge's chambers heard in courtroom

This is a case that offers a warning lesson to every reader, judge, counsel and litigant. And it is particularly relevant to everyone struggling to come to terms fully with the ways that the coronavirus pandemic affects the practice of law. The UK judge at the heart of this matter was dealing with a difficult case of possible child abuse arising from the death of a baby, and had to decide what arrangements should be made for the care of the remaining child. She decided to hear some of the trial remotely by Zoom, and some of it with witnesses physically present in court. But problems arose at the end of a 'live' court session when the judge, thinking her laptop had been switched off, had a conversation with someone in her chambers about the parties – and a number of people still in court were able to hear what she said as the computer had not been disconnected. The result was an application for her recusal on the basis of remarks critical of the mother and, after she refused to stand down, the issue went on appeal.

'Not merely a department of state’: new Commonwealth statement of principles on funding the judiciary
'Not merely a department of state’: new Commonwealth statement of principles on funding the judiciary

An important new set of principles on the proper financing and resourcing of the judiciary has been issued by the Commonwealth Magistrates’ and Judges’ Association (CMJA). The principles, issued this month, are likely to prove just as influential as the Commonwealth (Latimer House) principles dealing with the accountability of and relationship between the three branches of government. They are a timely contribution to the debate on judicial funding, given that the judiciary in a number of African countries is struggling to obtain the funding needed – and the number of judges required.

‘Barred and interdicted’
‘Barred and interdicted’

The Young Lawyers Association of Zimbabwe scored a victory of note this week. The Zimbabwe Republic Police had issued a press statement on 25 July, listing in minute detail the documents that would be required at checkpoints throughout the country, with immediate effect. But the legal organisation challenged the lawfulness of the police action and were granted an interim order barring the police from demanding the documents listed in the press statement.

Sacking of 14 judges by South Sudan President unconstitutional: East African Court of Justice
Sacking of 14 judges by South Sudan President unconstitutional: East African Court of Justice

When a government removes one judge from office in a way that flouts the constitution and judicial independence it would be bad enough. But a case brought to the East African Court of Justice (EACJ) by Justice Malek Mathiang Malek against South Sudan’s President Salva Kiir for dismissing him, was just the tip of the iceberg. In fact, Justice Malek was one of more than a dozen judges dismissed by the government in 2017. But Justice Malek, who has had more than 20 years’ experience on the bench, decided he was not simply going to accept the situation. Instead, he brought an action against the Attorney General of South Sudan before the EACJ. And, last week, that court decided in his favour, ruling that the dismissal of the judges was unconstitutional, against the law of South Sudan – and amounted to a violation of the East African Community Treaty.

More work needed on Ivory Coast's election commission - African Court
More work needed on Ivory Coast's election commission - African Court

For the second time, Ivory Coast has been taken to the African Court on Human and Peoples’ Rights over whether the country’s electoral commission is sufficiently independent and impartial. In 2016, the court found the then electoral commission seriously lacking, and in 2017 it gave a further decision spelling out and interpreting its earlier decision. The commission has been reworked since then but a different group of challengers have tested the new body, claiming it was still not sufficiently independent or impartial. In its decision given last week, the African Court found the applicants had not shown that the new electoral body was made up of members who were not independent and impartial. Nor had they shown that it was clearly balanced in favour of the ruling party. However, there were other issues that needed to be addressed. For example the court found that Ivory Coast had not fully complied with its obligations because of a ‘manifest imbalance’ in the number of chairpersons of the local electoral commissions proposed by the ruling party. The court ordered Ivory Coast to take the steps needed to remedy these shortcomings in its electoral commission ‘before any election’ is held. As national presidential elections are scheduled for the end of October this year, the court’s decision means urgent attention will have to be given to the issue or the polls will be susceptible to criticism for non-compliance with this ruling.

Allowing birth certificates for voter ID would be a ‘retrograde step’ – Ghana’s Supreme Court
Allowing birth certificates for voter ID would be a ‘retrograde step’ – Ghana’s Supreme Court

Two combined applications testing decisions of Ghana’s attorney general and related to the national elections scheduled for 7 December 2020, have been decided by that country’s Supreme Court. Determined to clean up Ghana’s voter register, the AG gazetted new regulations. Among them was the decision not to allow the old (current) voter identification cards to be used to identify people wanting to register as voters on the new, updated list. The other contentious decision was that birth certificates would also not be accepted to prove identity for that purpose.

Two judges of the region die as a result of pandemic. RIP
Two judges of the region die as a result of pandemic. RIP

The judiciary in Lesotho and South Africa has been shaken by the death of colleagues as a result of the Covid-19 pandemic. Both Judge Patrick Jaji of SA’s Eastern Cape bench, and Judge Lisebo Chaka-Makhooane of Lesotho’s commercial court, had been confirmed as having contracted the virus, and died of associated complications.

Dream job in Seychelles
Dream job in Seychelles

The Chief Justice of Seychelles, Justice Mathilda Twomey, is stepping down from the position, and a search has begun to fill the post. Among other responsibilities, the Chief Justice sees to the discipline of legal practitioners in Seychelles and sits on the Supreme Court, the Constitutional Court and, ex officio, on the Court of Appeal.

Courts’ differing views on whether independent candidates may contest elections
Courts’ differing views on whether independent candidates may contest elections

The role of independent candidates in elections is contested in many African countries. The Constitutional Court in South Africa issued a landmark decision on the question during June 2020. It held that the law had to be changed so that independent candidates may contest seats in elections. When a similar complaint was brought to the courts in Nigeria, however, the result was the opposite: there the courts upheld laws permitting candidates to contest political elections only via established political parties. Seven Nigerians subsequently asked the Court of Justice of the Economic Community of West African States (ECOWAS), for its view. Now, three ECOWAS judges have handed down their decision. They found against the seven, and held that the Nigerian system, with its bar on independent candidates, was valid, lawful and not an infringement of rights in the African Charter.

Concern about CJ's instruction that heads of court should 'see and approve' all judgments before delivery
Concern about CJ's instruction that heads of court should 'see and approve' all judgments before delivery

A storm broke over the head of Zimbabwe's Chief Justice Luke Malaba when he issued a memo to heads of court on 16 July, 2020. Among others, the memo instructed that before a judgment was delivered by any judge, 'it should be seen and approved by the head of court'. The instruction led to a major furore, with critics at home and abroad saying it infringed judicial independence. They asked what would happen if a head of court disagreed with and declined to 'approve' a judgment that a member of the judiciary was about to deliver. This lead to statements of support for judicial independence being published on social media, along with messages expressing alarm about the situation. Subsequently, on 21 July, the Chief Justice issued a revised memo. On that day, via the Judicial Service Commission, there was also a reply to a letter of concern sent to the Chief Justice by the Law Society of Zimbabwe.

New book points to solutions for civil case backlogs
New book points to solutions for civil case backlogs

When the deputy chief justice of Namibia writes a book on court-managed civil procedure in that country’s high court, then judges in many countries should pay attention. That's because it is written by the judge who is widely regarded as the architect of Namibia's new and highly successful system, and he has made sure that his book will be informative and helpful for other countries wanting to follow the same path - towards judicial case management and a dramatic reduction in civil case backlogs.

Woman candidate from Malawi’s 2019 elections wins court order for fresh polls in her constituency
Woman candidate from Malawi’s 2019 elections wins court order for fresh polls in her constituency

A new round of national elections was held in Malawi during June, after courts in that country held that the polls of May 2019 had been invalid because of the extent of the irregularities during the elections. But not all the polling is done: last month, just as fresh national elections were taking place, the high court declared that the May 2019 elections in one constituency was invalid. The judge said he was satisfied that the parliamentary elections in Phalombe North were affected by various irregularities. He declared that the candidate previously held to be the winner was not validly chosen and he ordered that another election had to be held for that constituency within 60 days.

African Court tells Tanzania: your constitution violates basic rights
African Court tells Tanzania: your constitution violates basic rights

Africa’s premier regional court, the African Court on Human and Peoples’ Rights, has found that Tanzania’s constitution is in breach of the African Charter and other international law. This is because it provides that no one may test the results of Tanzania’s presidential elections in court. Tanzanian advocate, Jebra Kambole, brought the litigation in the African Court saying his rights under the African Charter had been violated. Finding in favour of Kambole’s application, the court ordered that Tanzania amend its constitution to remove this violation. Tanzania was also given 12 months to submit a report on what had been done to implement the terms of the judgment, and was ordered to publish the court’s decision on the websites of the Judiciary, and of the Ministry for Constitutional and Legal Affairs. The judgment text is to remain on these websites for at least a year after publication.

Preserve your independence, court urges Namibian election commission
Preserve your independence, court urges Namibian election commission

A full bench of Namibia’s high court has found that the country’s electoral commission acted unlawfully when it removed certain approved names from the list of candidates supplied by a political party and allowed other party members to replace them and be sworn-in, instead. Two members of Namibia’s Popular Democratic Movement brought the application when the electoral commission permitted a number of PDM members, not on the PDM list approved by the electoral commission before the polls, to replace those who had been approved by the commission. In its decision, the court said the commission acted beyond its powers in allowing the party to substitute names after the elections. It could not allow parties to ‘parade’ candidates for election and then after the polls, ‘put up totally different persons who were never “marketed” to voters as candidates.’

Copyright & A2K Issues - 13 July 2020

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:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:  http://lists.wits.ac.za/mailman/listinfo/copyrightanda2kinfo    or email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Court slams father's attempt to avoid maintenance for his daughter, 6
Court slams father's attempt to avoid maintenance for his daughter, 6

An apparently wealthy property owner, politically well-connected and a major player in Zimbabwe's guest accommodation industry, is in trouble with the Harare high court. That's because he has been doing all he can to make sure his 6 year old daughter does not get the maintenance the mother says she needs. The man - unnamed to protect the child's identity - 'divested himself of assets' to defeat the mother's claim for a maintenance increase. He formed a trust to which he donated all his income-generating properties. Though the child was listed as a beneficiary, the 'trustees' resolved at a board meeting that she would not receive maintenance 'to the disadvantage of other beneficiaries'. The trustees also decided that during the current year 'no beneficiary was to ... benefit from the trust, including the minor child'. According to the judges, the 'inescapable conclusion' from the facts was that the father formed the trust to ensure the child did not get maintenance. The problem of men who go to extraordinary lengths, including legal stratagems to avoid their financial responsibilities to wives and children, is not uncommon but rarely surfaces in court.

Congratulations to Namibia on its achievements in preventing human trafficking
Congratulations to Namibia on its achievements in preventing human trafficking

Namibia has become the only African country to make it to the world’s top-ranking list, ‘Tier 1’, in the fight against human trafficking. This has brought the number of countries worldwide, recognised as Tier 1, to 34 in 2020. Countries at this level have fully met the international standards for the elimination of human trafficking.

Man, criticised by court for not being open about his wealth, leaves divorce empty-handed
Man, criticised by court for not being open about his wealth, leaves divorce empty-handed

A man who walked out of his family home 20 years ago, after having a number of affairs and giving his wife an incurable sexually-transmitted infection, has emerged empty-handed from their divorce. This, after the high court ruled that he had made no contribution to the support of his family since he quit the matrimonial home. The man had demanded half of the house in which his now former wife lived, even though he is a well-to-do international business man. She, on the other hand, has no property to her name apart from the house in which she has been living since their marriage in 1983.

High Court in Zimbabwe orders woman be recommended for Mvuthu chieftainship vacancy
High Court in Zimbabwe orders woman be recommended for Mvuthu chieftainship vacancy

When their chiefly father died leaving only three daughters, the eldest of them, Silibaziso Mlotshwa, might have seemed the obvious choice to succeed to the Mvuthu chieftainship. But instead her uncle, Saunders Mlotshwa, got the nod from the government's district administrator. This followed a meeting of the Mlotshwa men at which they said a female chief ‘would be an insult’. Now, however, the high court in Bulawayo has ordered that the administrator propose the daughter’s name for the vacant position. The judge said it was unconstitutional to discriminate against her and that the earlier recommendation that the uncle should take the throne was unlawful.

Apex courts in two African countries try to avoid ‘absurd results’ in labour matters
Apex courts in two African countries try to avoid ‘absurd results’ in labour matters

Time limits on filing appeals and reviews can bring litigation to an abrupt end when they are not observed. But what is a court to do if it is not clear when the time limits actually start. The apex courts of two African jurisdictions have found themselves dealing with exactly this question – when do the days of a time limit begin to run? And the question was made even more complicated because the high courts in both countries had produced two contradictory positions from which the apex courts had to choose.

Directors beware! The court declares Dudu Myeni (former SAA Chair) a Delinquent Director

It is a common principle within South African company law that a company is managed by its board of directors (“ Board ”). The Board bears the responsibility for the functioning and management of the company and is ultimately accountable for the performance thereof. However, the Board’s collective responsibility does not exclude the individual responsibility and liability of each of the directors. Where the company performs poorly due to the dishonesty, recklessness or gross negligence of the Board, the individual directors may be held jointly and severally liable for breaching their fiduciary duties as contemplated in the Companies Act, 2008 (“ Companies Act ”), and for those individuals who are directors of State Owned Entities (“ SOEs ”), the Public Finance Management Act, 1999 (“ PFMA ”).

Judge slams Kenya's 'shameful' treatment of diplomat
Judge slams Kenya's 'shameful' treatment of diplomat

The High Court in Nairobi has strongly criticised the government’s action in deporting from Kenya a diplomat representing Niger. Ali Oumarou, who has been recognised by Kenya as honorary consul for Niger, was summarily deported in August 2019. Oumarou has since challenged his deportation in the Kenyan courts from outside the country. The High Court in Nairobi has now given its judgment on the matter, with a scathing assessment of the government’s failure to adhere to the constitution. Judge James Mukau said the court would not tire of reminding the government that the constitution was Kenya's supreme law. ‘It has life and it has teeth,’ he said. The way Oumarou had been treated was ‘unbearably shameful’ for a democracy, said the judge. He granted a slew of orders, including one that stopped the government preventing Oumarou from returning to Kenya without proper cause and without following due process.

Namibian President must sign affidavit on exercise of his ‘formidable powers’ – high court
Namibian President must sign affidavit on exercise of his ‘formidable powers’ – high court

A full bench of Namibia’s high court has found certain of the country’s Covid-19 regulations unconstitutional and invalid. These include regulations aimed at preventing employers from dismissing staff or from forcing them to take leave during the pandemic. The decision made clear to the Namibian authorities that, even during an emergency situation like the present, the constitution must be respected. It also stressed that in a case such as this, the President is expected to sign an affidavit on his reasons for regulations: ‘reverence’ for his office cannot be an excuse not to do so.

Uganda's Chief Justice Bart Katureebe retires, heads for his 'village'
Uganda's Chief Justice Bart Katureebe retires, heads for his 'village'

One of the most recognisable of Africa's Chief Justices - partly because of his height - Bart Katureebe, has retired on reaching 70, the mandatory age for judges to quit in Uganda. The former Chief Justice had a wide-ranging career before becoming a member of Uganda's Supreme Court, and his legacy includes introducing an electronic case management system for the country.

August 2020

'Judicial independence on trial’ in case involving Malawi’s Chief Justice
'Judicial independence on trial’ in case involving Malawi’s Chief Justice

Malawi’s high court has decided that attempts by the country’s former President, Peter Mutharika, to get rid of the Chief Justice and other senior judges by placing them on enforced leave pending retirement, were illegal and unconstitutional. The decision, delivered this week, followed major local and international support for the judiciary of Malawi, after the announcement of the former President’s steps against its leadership.

Victory for pregnant women after rethink by Constitutional Court
Victory for pregnant women after rethink by Constitutional Court

Uganda’s constitutional court has delivered a major victory for the health of pregnant women. The case was brought by the Centre for Health, Human Rights and Development, along with a health law expert and the relatives of two women who had died in childbirth because of Uganda’s inadequate maternal healthcare conditions. Five constitutional court judges found that the government was underfunding maternal healthcare to the extent that it was unconstitutional. To ensure that this improved, they ordered that the court had to be provided with an audit report on the status of maternal health in Uganda over the next two financial years. The judges further awarded general damages to two of the applicants, relatives of pregnant women who had died because of the violation of their rights to life and health. While the decision has been widely hailed for taking the rights of pregnant women seriously, and ensuring the issue has the protection of the constitution, it also shows that Uganda’s constitutional court is seeing its own role in a changing light: in 2012 the same case had come before the constitutional court but the court refused to hear it on the basis that it amounted to consideration of political issues, namely government allocation of funds to maternal health. However, an appeal to the Supreme Court – Uganda’s apex court – resulted in an order that the constitutional court should consider the issue. Back before a now-differently composed constitutional court, the matter fared rather better second time round.

New head of judiciary for Uganda
New head of judiciary for Uganda

Following the retirement of Uganda’s chief justice, Bart Katureebe, the country’s judiciary has a new leadership team. The new Chief Justice and Deputy Chief Justice were announced by Uganda's President Yoweri Museveni. His official decision came as no surprise as the names had been openly known and discussed for some time before the official announcement.

For Kenya: celebration of its 10-year-old constitution, a growing crisis – and a forthright judge speaks
For Kenya: celebration of its 10-year-old constitution, a growing crisis – and a forthright judge speaks

As Kenya celebrated the 10 th  anniversary of its constitution, with virtual seminars, webinars and other discussions, one of the most serious challenges yet brought under the constitution is making its way through the courts. That problem is the failure of the country’s President, Uhuru Kenyatta, to appoint more than 40 judges nominated by the Judicial Service Commission. And, equally significant, his failure to abide by a court order that the judges be appointed.

Some justice at last for girls, women, raped by police in Malawi
Some justice at last for girls, women, raped by police in Malawi

It was a major scandal at the time, but nothing had been done about it until now. Last October, a number of police raped and sexually abused at least 18 girls and women outside Lilongwe, Malawi. The attacks by police were in apparent retaliation for a political protest that had led to one police officer being killed. Since then there was complete inaction by the police, with neither investigation nor arrest. Now, however, Judge Kenyatta Nyirenda has put the police on notice. He has issued a number of declaratory orders spelling out the rights of the girls and women attacked by the police. Finding that compensation was appropriate in this case, flowing from ‘the state’s responsibility to remedy human rights violations’, he further ordered that the registrar must ‘deal with’ and assess the amount of compensation to be paid, within 21 days. It is, however, far from the only such case in Malawi, with other similar occurrences over the past year involving police and/or soldiers.

Judge Key Dingake in new top post
Judge Key Dingake in new top post

A long-standing member of faculty of the Judicial Institute for Africa, Justice Key Dingake, has been sworn in as a member of the Seychelles Court of Appeal.

Shock judgment bars Zimbabwe human rights lawyer from crucial human rights case
Shock judgment bars Zimbabwe human rights lawyer from crucial human rights case

The legal world was stunned this week by the news that Harare magistrate, N Nduna, had ruled that a lawyer appearing in a case before him was ‘disqualified’ from continuing to act in the matter. Whatever the case, this would have caused concern because of the drastic nature of the step. But this is not just any case. The accused person is an award-winning investigative journalist, Hopewell Chin’ono, who had been researching government corruption questions before his arrest. And his lead counsel is internationally-acclaimed human rights lawyer, Beatrice Mtetwa. The state’s determined prosecution of Chin’ono, refusing him bail, not allowing him to consult with his lawyer in private and insisting that he appear in court in leg irons, all indicate that he is being made an example of, to frighten off other critics. The case comes amid growing community opposition to the government in Zimbabwe. Nduna's judgment will inevitably be criticised as reflecting the court’s failure to respect the Rule of Law. And questions will be asked about whether it is the magistrate, rather than the lawyer, who has become so identified with a cause as to lose ‘impartiality and detachment’.

Two Ugandan judges, two attorneys, sanctioned by US state department over bribery, corruption & adoption scam
Two Ugandan judges, two attorneys, sanctioned by US state department over bribery, corruption & adoption scam

Two Ugandan judges and two attorneys have been named and sanctioned by the US State Department for their role in bribery and corruption related to an adoption scam. One of the two judges retired last year; the other is a sitting judge. A statement on behalf of the judiciary said that there had been awareness of these allegations for some time and that they were being investigated. However, there seems to be little doubt in the legal profession that the investigations will show the judges and the attorneys were involved as the US authorities claim.

Support grows for Zimbabwe protesters

A number of legal and human rights organisations have expressed support for the people of Zimbabwe and for lawyers who are struggling on behalf of clients arrested by the government of Emmerson Mnangagwa. The past few weeks have been marked by violent attacks on protesters by members of the Zimbabwe police, by the arrest of journalists on trumped up charges and their detention after the courts refused bail, and by growing international concern at the stance taken by Manangagwa and his government, now widely regarded as ‘probably worse than (former President) Robert Mugabe’ whose regime became an international by-word for corruption, intolerance of dissent and the violent abuse of political opponents.

Far-reaching symposium on ‘spectacular recent efforts’ at undermining judicial independence in Africa
Far-reaching symposium on ‘spectacular recent efforts’ at undermining judicial independence in Africa

Potentially far-reaching decisions about strengthening support for judicial independence in Africa were taken at a two-day online symposium held last week. Nine organisations hosted the event, illustrating the kind of joint action in support of judicial independence that participants said was essential. Speakers described judicial independence as ‘the last line of defence for the rule of law, human rights and democracy in East and Southern Africa’. They said it was crucial that legal organisations worked with civil society to protect judicial independence. Recent experiences had also shown the importance of support from organisations, regional and international, that were representative of judges and Chief Justices.

Copyright & A2K Issues - 14 August 2020

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:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:  http://lists.wits.ac.za/mailman/listinfo/copyrightanda2kinfo    or email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Court stalls moves by Kenya's President putting judiciary under executive control
Court stalls moves by Kenya's President putting judiciary under executive control

The Law Society of Kenya has succeeded in putting at least a temporary brake on the government’s plan to transfer the judiciary and a number of independent bodies to the direct control of the executive. In May President Uhuru Kenyatta signed Executive Order No 1/2020, making these changes, and the law society responded by filing a petition shortly afterwards. Last week the high court’s constitutional and human rights division considered that petition and granted an interim order in terms of which the executive order is put on hold, pending full argument of the case. Judge James Makau said this was a suitable case for the court to intervene against ‘the excesses of the Executive’ which was using administrative processes to extend its powers.

Libel case fails: court finds election was at stake and media had ‘duty to publish’

Issues around elections continue to be heard by the courts. This time the case concerned a scandal that was brewing in 2002, about the malfunctioning IT system that was supposed to compile a national voters’ register for Uganda’s then pending election. Members of the consortium that seemed unable to sort out the register brought a defamation action against the publication that broke the story. But the court found the report was truthful and accurate and that the public needed to know the information as the success of the election was at stake.

Tanzania’s apex court rules bail-ban law is constitutional
Tanzania’s apex court rules bail-ban law is constitutional

Tanzania’s Criminal Procedure Act includes provisions that automatically refuse bail to people charged with certain offences. Earlier this year the high court found that mandatory prohibition of bail was unconstitutional. The court's decision restored discretion to the judiciary and meant that the question of whether to grant bail, whatever the alleged offence, would have been a matter for the individual judge to decide. But the high court finding was overturned by the Court of Appeal this week. Five judges of the appeal court said mandatory barring of bail did not amount to an ouster clause, and that the constitution was not infringed by making certain offences ‘unbailable’.

Parents dispute paying private school fees during lockdown
Parents dispute paying private school fees during lockdown

Parents of children at a private school in Kenya have won an interim high court order in what promises to be a significant constitutional dispute related to Covid-19. The parents say they should not have to pay full fees for the third term of the 2020 school year and that the school may only charge for the services offered, namely for ‘virtual class or digital calls’. For its part, the Sabis International School, Runda, objected to the legal action brought against it by parents of children attending the school on the grounds that the parents had signed a contract with the school that was ‘private’, and that the court ought thus ‘not to intervene in these private matters’. Last month Kenya’s education secretary George Magoha said that the rest of the 2020 school year ‘will be considered lost’ because of the pandemic and that schools would only re-open in January 2021. Those due to write final exams would sit them next year.

September 2020

Kenya's apex court confirms 'novel' rights of victim's counsel
Kenya's apex court confirms 'novel' rights of victim's counsel

A man accused of murdering a student has helped make new law. That's because of the significant judgment issued by Kenya's Supreme Court after he tried to stop counsel for the deceased student becoming involved in the trial. Joseph Waswa, charged with killing Mitch Kibiti Barasa, said that his fair trial rights were infringed when the trial court allowed counsel for Barasa to play a role in the matter. But the Supreme Court has now put him right. The country's highest court has ruled that the Victim Protection Act, the constitution and international law all support the right of victims to be represented by counsel in court - and that counsel may even be allowed to ask questions of the witnesses.

Controversial Ugandan retired military officer loses court bid to prevent arrest during election run-up
Controversial Ugandan retired military officer loses court bid to prevent arrest during election run-up

An increasingly contentious figure in Uganda, retired military general Henry Tumukunde, has just tried – and failed – to invoke judicial help against persistent police action targeted at him. Tumukunde, a once close ally of Uganda’s President Yoweri Museveni, plans to contest the presidential position in next year’s elections. But during the run-up to the elections, he has become a person of considerable interest to the police and the army, and he has been arrested several times. His latest court action was for a temporary interdict to prevent the police from arresting him and violating his constitutional rights.

Sewage is ‘not a public friend’
Sewage is ‘not a public friend’

A broken sewerage pipe in the capital of Malawi has led to a successful claim for damages under the country’s consumer protection legislation. The pipe broke but when it was not initially fixed by the authorities, sewage found its way into the pipe that supplied clean water for drinking and other household use. Consumers then formed a neighbourhood action group to monitor the quality of the drinking water, and to bring legal action for compensation.

Litigation in Lesotho as King declines to appoint judges
Litigation in Lesotho as King declines to appoint judges

Many people in the legal world will be aware of the looming constitutional crisis in Kenya where the President, Uhuru Kenyatta, has refused to appoint a number of judges whose names were presented to him by the Judicial Service Commission. Fewer, however, will have been aware that a similar problem has arisen in Lesotho and that litigation is now pending to test whether the King – Lesotho is a constitutional monarchy – may refuse to approve the appointment of candidates proposed by the commission.

Court finds against ‘back door emergency’ in Malawi
Court finds against ‘back door emergency’ in Malawi

A constitutional court in Malawi has delivered an unequivocal condemnation of that country’s Covid-19 lockdown regulations. In its decision last week, the three judges found that the rules were unconstitutional as they were made in terms of a law that did not permit such rules to be made. They also criticised the government for imposing a lockdown without concern for the poor of Malawi who would not have access to food and other essentials if they could not leave their homes. The judge urged parliament to pass new legislation as soon as possible, that would allow the regulations needed in a national health emergency such as the current pandemic.

Kenya pressurised by big oil to backtrack on plastic ban
Kenya pressurised by big oil to backtrack on plastic ban

An alarming new series of reports in the international media claims that the US oil and petro-chemical lobby is putting considerable pressure on Kenya to roll back its environmental protections related to plastic waste. The report has led to strong reaction by the African Commission on Human and Peoples’ Rights. Kenya has played a leading anti-pollution role in Africa, for example with its 2017 ban on the manufacture, sale and distribution of plastic bags. Now the African Commission is urging Kenya’s President Uhuru Kenyatta not to give into pressure that seeks to link the US trade deal he desires with freer access to Kenya by US plastics manufacturers.

High Court grants bail to Zimbabwe opposition leader, journalist
High Court grants bail to Zimbabwe opposition leader, journalist

Two prisoners in one of Zimbabwe’s most notorious jails have been making international headlines as the courts repeatedly denied them bail. This week, however, as South Africa prepared to send a delegation to discuss the deteriorating situation in Zimbabwe, and as the number of international political and legal statements critical of the continued imprisonment continued to grow, the two men were released on the orders of the high court.

Change company law to allow virtual AGMs, Uganda high court urges
Change company law to allow virtual AGMs, Uganda high court urges

The high court in Uganda has urged that the government change the law to make it easier for businesses to hold their annual general meetings online, or via a mixture of a physical and electronic meeting. This is to take account of the restrictions on gatherings, due to Covid-19, imposed by the government on the one hand, and, on the other, the legal requirement that companies must hold AGMs. For the last few months in Uganda, individual companies have been coming to court asking for judicial authorisation to hold electronic meetings. Now, says the court, the time has come to change the law and make electronic meetings the new normal.

SCA cases show up long delays in delivering judgments
SCA cases show up long delays in delivering judgments

Two new decisions by Malawi’s highest court show that at least some of the country’s judges are still not delivering decisions within a reasonable time. In one case a group of people convicted of murder and sentenced to 30 years in prison were still waiting to hear the outcome of an appeal heard more than five years before. In the other, a man convicted of robbery had still not heard the result of his appeal over 37 months later. The judge who heard applications for release on bail in both cases, said he had no idea when the judges involved in the appeal would hand down their decisions. He spoke of the ‘suffering’ of the appellants as they awaited the outcome, wondering if they would ultimately be imprisoned for longer than the appeal court would find they should spend in jail. The judge finally agreed to grant conditional bail in both cases. Two years ago the country’s Chief Justice, Andrew Nyirenda, undertook to ensure judgments were up to date on pain of disciplinary hearings at the Judicial Service Commission, but not all judges seem to have been caught in that net.

October 2020

Judge claims CJ instructs how cases must be decided
Judge claims CJ instructs how cases must be decided

The crisis in Zimbabwe heightened this week, with a spotlight now pointed at internal problems within the judiciary. First, a judge who was suspended on contested grounds has launched an urgent application to prevent a disciplinary tribunal from being set up to investigate her. In the course of her founding affidavit she made some grave allegations against the Chief Justice, for example, saying that he routinely intervened to ensure judges decided matters in a certain way. And then, as the people of Zimbabwe were digesting her claims, a second document was published, this time apparently put out by judges of the high court and the supreme court, making similar allegations about the role of the CJ and his irregular interventions.

International honour for Malawi’s judges

When five of Malawi’s judges overturned that country’s presidential elections in 2019 because of 'grave irregularities', it seemed a brave and startling thing to do. Their decision led to fresh elections and then to a change in government. Now it has also caused them to win an international award, the Chatham House Prize, given to those the institute feels have made the most significant contribution to improved international relations.

Attorney loses battle with Chief Justice over dirty hands
Attorney loses battle with Chief Justice over dirty hands

Strange to say, there are two current cases in the region citing a Chief Justice as respondent in a civil matter. Apart from the grave issue involving the Chief Justice of Zimbabwe (see above), there is another case in which the respondent is a Chief Justice. This time it is the judicial head of Eswatini, Bheki Maphalala, who was sued as a respondent, along with the government of Eswatini and the attorney general. The applicant was a local attorney, Muzi Simelane, whose battle with the CJ over the issues raised in this judgment, has lasted for a number of years.

Mapping legal impact of the African Court
Mapping legal impact of the African Court

As the number of decisions by the African Court on Human and Peoples’ Rights grows, legal scholars have become keen to track its influence. Now there’s a formal project dedicated to doing just that – and it needs your help.

Support rule of law – by sharing law books
Support rule of law – by sharing law books

A small charity based in the United Kingdom has been helping judges, lawyers and NGOs by providing them with law books. The books are free and must be requested online.

No evidence, no arrest - Kenya high court
No evidence, no arrest - Kenya high court

A prominent Kenyan legal academic and practising advocate, Professor Tom Odhiambo Ojienda, is in the midst of a running battle between himself and the country’s tax bosses and prosecution services. The authorities claim that he has not paid tax on payment for work in a series of cases. The claims are particularly damaging for Ojienda, given that his law company advertises itself as ‘a top-tier law firm comprising a dedicated team of advocates and support staff offering expert legal advice’. After he was arrested and detained by the prosecuting authorities, Ojienda asked the courts to intervene, and they have now done so, with the judge holding that Ojienda should not have been arrested as there had been no evidence to justify such a step. The judge said that the power to prosecute was like a ‘river’. It had to ‘flow within its course,’ he said. Anytime it left its path ‘it causes floods and untold human suffering’. The power of the prosecution services had to be confined ‘within the four corners of the constitution’, otherwise innocent citizens would suffer if the courts did not check the abuse of that power.

Elections for Africa's top human rights bodies should be transparent, merit-based
Elections for Africa's top human rights bodies should be transparent, merit-based

African Human Rights Day seems like a good time to reflect on an issue that affects all three of the continent’s premier human rights bodies: the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child. This issue is one that is raised in a new report by Amnesty International, and it’s an issue faced by each country separately as well, namely how the system of choosing judges is run, in order to ensure transparency, fairness and the best candidates.

A new anti-corruption hero – and a judge who holds the line
A new anti-corruption hero – and a judge who holds the line

A woman who held firm against a shady 'fronting' scheme has been vindicated by the high court in Mombasa. After Rachel Ndambuki refused to become part of the scheme she was demoted and sent to another office. However, she persisted with her legal action, saying her transfer and demotion had infringed a number of her rights and that she should be paid damages. The case also saw a prominent civil servant be declared in contempt of court, and be fined, after ignoring a court order not to effect Ndambuki's transfer until the court had heard full argument in the case.

A TRIBUTE TO GEORGE BIZOS - A LARGER THAN LIFE CRUSADER FOR JUSTICE
A TRIBUTE TO GEORGE BIZOS - A LARGER THAN LIFE CRUSADER FOR JUSTICE

On the 9th of September 2020 George Bizos, that unrelenting crusader for justice, succumbed to death at a ripe age of 92. His passing hit close to home. It left my brother, Mike (a former client of Bizos) heart-broken. I was similarly deeply saddened. He impacted on our lives in different ways. Mike wrote me soon after he learnt of his passing: “My intimates are falling in quick succession. Beginning to feel like I am in the queue”.  Not long time ago he lost another close friend – Andrew Mlangeni, an anti-apartheid campaigner, who, along with my brother and Nelson Mandela were imprisoned for furthering the aims of the African National Congress (ANC) and were sentenced to serve in Robben Island.

World Mental Health Day highlights shackling, inadequate court response
World Mental Health Day highlights shackling, inadequate court response

Just as Human Rights Watch issued its horrific report on the shackling of people with mental illness in many countries around the world, so an equally horrific case has emerged in Namibia. The report and the case show that there is a great deal still to be done to sensitise ordinary members of communities round the world – and, sadly, this includes magistrates, whom one might expect to know better – about how to respond to mental illness and what the law and the constitution require in such cases. Judges of Namibia’s high court recently picked up on review that there had been a problem with the trial of a woman recognised as mentally ill by her community, but by the time the magistrate responded to their questions almost a year down the line, it was too late: though the judges set aside her conviction days before World Mental Health Day, she had already served the sentence in full.

Don't view sexual offences only through traditional male perspective - Chief Justice
Don't view sexual offences only through traditional male perspective - Chief Justice

In one of her last decisions before ending a five-year contract as head of the judiciary in Seychelles, Chief Justice Mathilda Twomey came out strongly on the need for the country’s penal code to be modernised in relation to its definition of consent in sexual offences. The CJ said that at present it only defined ‘absence of consent’, and that it was time ‘to look beyond the traditional male perspective as the prism through which sexual offences must necessarily be viewed.’

Will Acting Chief Justice swear in winner of Seychelles presidential election?
Will Acting Chief Justice swear in winner of Seychelles presidential election?

The five-year contract of Chief Justice Mathilda Twomey came to an end earlier this month, and a new judicial leader for Seychelles must now be appointed. That is the responsibility of the Constitutional Appointments Authority of Seychelles. In the meantime, however, an Acting Chief Justice has been named: Justice Melchior Vidot.

Court dismisses bid to remove 'dirty money' report
Court dismisses bid to remove 'dirty money' report

As concern grows about enormous amounts of money unlawfully leaving Africa, two new reports and a significant court case highlight the growing problem. A new report by the UN Conference on Trade and Development, UNCTAD, 'Economic Development in Africa 2020', estimates that if illicit capital flight from Africa were stopped, it could virtually halve the financing gap of $200b that the continent faces if it is to achieve its Sustainable Development Goals. And while experts are unanimous that illicit financial flow must be stopped, another report gives a concrete example of what seems to have been going wrong. Entitled, 'The Golden Laundromat; the conflict gold trade from Eastern Congo to the United States and Europe', it is a report of an investigation into 'the dirty money connected to African war criminals and transnational war profiteers'. In particular, the report points to the Uganda-based African Gold Refinery (AGR), saying it has been refining gold from conflict areas of the eastern Democratic Republic of Congo, which is then exported through a series of companies to Europe and the United States. AGR is challenging the report in court in Uganda, claiming it is defamatory. Pending a full hearing, however, AGR asked the court for an interim order that the report has to be removed from the website. As readers will quickly see, however, there was no chance that the court would agree to silence the Laundromat: the two brothers running AGR were recently convicted in a court in Antwerp of both money-laundering and fraud.

Article 8363
Article 8363

Bail for arrested government critics and others is becoming an increasingly common legal issue in countries of the Southern African Development Community. But a new decision from Kenya’s high court, written by Judge Joel Ngugi, is a model of how the problem should be approached. He was faced with a magistrate’s decision to approve the continuing detention of government critic Oscar Sudi, against whom no charges, not even so-called ‘holding charges’, had yet been formulated. The magistrate accepted the police argument that continuing his detention would allow the authorities to investigate and formulate exactly what charges they wanted to bring against Sudi. But in his reconsideration of the magistrate’s ruling, Ngugi delved into the Constitution and concluded that there was no way that Sudi’s continued detention was constitutional. Instead, he granted bail, but stipulated conditions that would allow the police to continue their investigation unhindered. The decision is one that should interest judges elsewhere in the region; many other courts could profit from the Ngugi approach, namely to uphold the constitution and protect the rights of the individual while allowing investigations to proceed.

The Revised Rules of the African Court 2020: towards a more effective African Court
The Revised Rules of the African Court 2020: towards a more effective African Court

The African Court on Human and Peoples’ Rights is not a body that goes in for rapid or unnecessary change. So, when a revised set of rules is announced, everyone interested in the court and its work should take note. This week we’ve asked human rights expert Usani Odum, who is working at the court on secondment from the University of Pretoria’s Centre for Human Rights, for his take on the changes. Here he outlines the new provisions and their likely impact. He also congratulates the court on adapting so well to the challenges of Covid-19 by, for example, switching to on-line sessions.

High court judge finds 'no place' for sexual offences corroboration rule in Malawi
High court judge finds 'no place' for sexual offences corroboration rule in Malawi

Many women and men have long felt uncomfortable with the corroboration requirement attached to trials of sexual offences. This requirement, whether a matter of law or practice, appears increasingly unjustifiable, unconstitutional even. It is inevitably, and almost exclusively, directed against women who are the overwhelming targets of sex crimes. Malawi now appears to have joined the list of jurisdictions where the corroboration rule will be regarded with suspicion and discarded. The latest decision is by Judge Fiona Mwale, but it builds on an earlier judgment by another judge from Malawi, Maclean Kamwambe, as well as legal and academic critiques of the corroboration rule. Perhaps, with two clear decisions against the corroboration requirement, other Malawian courts will adopt this approach as well, without having to wait for the supreme court of appeal to speak?

Twomey steps down as Seychelles CJ but continues on Court of Appeal – and joins us at Jifa!
Twomey steps down as Seychelles CJ but continues on Court of Appeal – and joins us at Jifa!

No-one could ever call Justice Mathilda Twomey of Seychelles a ‘usual’ kind of person. She has spent the last five years as the highly-successful Chief Justice of Seychelles and a member of the country’s apex Court of Appeal. But she had only accepted the post on condition that she would stand down as CJ at the end of five years. Now she has reached the end of that contract period, and is about to start a new phase in her life, one that could greatly benefit a wider community than just Seychelles.

November 2020

Release police review report, urge more than 20 South African civil society organisations
Release police review report, urge more than 20 South African civil society organisations

Dozens of civil society organisations have urged the government to release a report into South Africa's police methods, conducted by a panel of experts set up in the wake of the 2012 Marikana massacre - when police fired into groups of striking miners, killing 34 and leaving more than 70 injured. The report closely examined police methods and related issues and could have played an important role in relation to a pending Bill related to the police. But though it was to have been released this week, it has now been indefinitely blanketed, prompting urgent calls for the secrecy to be lifted.

Former President, Judge, both ordered to pay legal costs from their own pockets
Former President, Judge, both ordered to pay legal costs from their own pockets

In a further stunning reversal for Malawi’s former President, Peter Mutharika, he and a former high court judge, Lloyd Muhara, have been ordered personally to pay the legal costs of a case brought to reverse a major decision taken by them just before the elections at which Mutharika was voted out of office. By that decision they hoped to force the Chief Justice to go on leave, pending retirement, in retaliation for a judicial decision finding that the May 2019 elections were invalid. Muhara, who had moved from the bench to government offices as a secretary to cabinet, wrote official letters on behalf of government, announcing the decision about the CJ, a decision the courts have since found to have been unconstitutional and made in bad faith.

Lesotho amnesty deal unconstitutional – apex court
Lesotho amnesty deal unconstitutional – apex court

Relatives of people murdered allegedly on the orders of prominent politicians in Lesotho have gone to court to challenge a new agreement brokered by the Southern African Development Community (SADC). Under this agreement, all parties have been urged to join talks on the way forward for the country, and those now in exile out of fear of being charged with murder and other crimes, have been assured no action would be taken against them if they returned for the talks. Bereaved relatives, however, told the court this was an unlawful step, and that the grant of immunity undermined the powers of the prosecuting authorities. Argument on this crucial issue has been heard over a number of days by Lesotho’s constitutional court, and the three judges who presided have now given their decision.

‘Unstable arithmetic’ indicates corrupt deal – judge
‘Unstable arithmetic’ indicates corrupt deal – judge

When a Tanzanian court clerk appealed against his conviction and sentence for corruptly demanding payments from a would-be litigant at court, he did not realise that his faulty sums would help confirm his guilt. What Judge Amour Khamis would later describe as ‘unstable arithmetic’ convinced the court that there was no truth in the explanation given for the payments and that conviction and sentence should be confirmed.

Bail for death row prisoner after long appeal delay
Bail for death row prisoner after long appeal delay

Normally a reader might have little sympathy for someone convicted of murder who is serving time in prison. But the case of Malawian Charles Khoviwa is rather different. Sitting on death row for many years, Khoviwa has been trying to have sentence in his case reconsidered, now that the courts have decided that the mandatory death penalty, in force at the time of his conviction, is unconstitutional. His appeal, asking for a re-sentencing hearing, was argued nearly three years ago before a full bench of the Supreme Court – and still judgment has not been delivered. Now a single judge of that court has decided to grant him bail, saying it was not the fault of Khoviwa that ‘the judgment he awaits has been pending for so long’. After serving 18 years in prison, Khoviwa may now wait at home for the decision on whether he will be granted a re-hearing on sentence.

Senior African judge wins second term on top world court
Senior African judge wins second term on top world court

Justice Julia Sebutinde of Uganda is set for a second term on the UN’s International Court of Justice, one of a 15-member bench drawn from jurists round the world. She had faced competition for the slot from contenders put up by Nigeria, Croatia and, because of tensions between the two countries, from Rwanda as well. Justice Sebutinde has extensive international and African experience. She is regarded as probably Africa's most senior woman judge, and her re-appointment last week was widely expected.

Copyright & A2K Issues - 14 November 2020

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. If you wish to unsubscribe, please email  Denise.Nicholson@wits.ac.za .   Please note :  This information service will be closing down on Friday 11 December 2020 , but you will still be able to access the Archives at:  https://africanlii.org/content/copyright-and-a2k-issues

SADC unlawfully terminated Malawi judge's contract - Tribunal
SADC unlawfully terminated Malawi judge's contract - Tribunal

After the disappointing, politically expedient demise of the Southern African Development Community Tribunal, a new decision by its replacement Southern African Development Community Administrative Tribunal (Sadcat) shows how a top staffer of the defunct body was leaned on by SADC to make him go quietly. But SADC reckoned without the determination of Judge Charles Mkandawire, someone who has shown his mettle in contentious cases heard in his home of Malawi.

Seychelles: new Chief Justice announced, sworn in
Seychelles: new Chief Justice announced, sworn in

Supreme Court judge, Ronny Govinden, has been appointed as Chief Justice of Seychelles and was sworn in on November 9.

Constitution 'is the boss', Lesotho judge tells police
Constitution 'is the boss', Lesotho judge tells police

Respect for individual rights and the Rule of Law is collapsing in several states in this region – Zimbabwe being a prime example. So it is a welcome relief to find a decision by a high court judge that is dedicated to the preservation and protection of constitutional values. The judge concerned, Sakoane Sakoane of Lesotho’s high court, had some powerful words of warning for the police after finding that they had attacked and assaulted a man for no acceptable reason. The judge said the police had behaved ‘like terrorists in uniform’ and that the courts would no longer merely send ‘warnings’ to the police about respecting people’s constitutional rights. From now on, police should expect only ‘uncompromising judicial eradication of the pernicious culture of police brutality,’ Judge Sakoane said.

A LIFE LIVED TO UPHOLD THE PROMISSORY NOTE CALLED THE CONSTITUTION
A LIFE LIVED TO UPHOLD THE PROMISSORY NOTE CALLED THE CONSTITUTION

This tribute records and celebrates the extraordinary life of a US Supreme Court Justice I held in high regard, and who, as law reports will show, has contributed immensely to a better world for all.

Freedom of speech supports good governance says President of Sierra Leone
Freedom of speech supports good governance says President of Sierra Leone

Things are looking up for the media in Sierra Leone. For decades journalists have been harassed by a colonial-era law that created the offence of criminal libel. And as recently as four months ago this section was used against a journalist and publisher who spent 50 days in detention before being freed on bail. Then, last week, the country’s President, Julius Maada Bio, signed the death certificate of the section used against the media, a step already begun in July when some members of parliament repealed this part of the law. At this official event, President Bio also announced that the government was determined to allow the development of a free and robust media.

More than 20 Kenyan laws nullified after National Assembly disregards Senate
More than 20 Kenyan laws nullified after National Assembly disregards Senate

As the still-unresolved fight over the number of women in Parliament shows, Kenya’s constitution is very much a work in progress, with continuing disputes over what its text means exactly and how seriously to take clauses that some parties dismiss as merely ‘aspirational’. The latest case to be decided by the courts on gaps or possible ambiguities in the constitution concerns the very serious question of how the Senate and the National Assembly must relate to one another. In this case, in an almost unheard of development, the Senate and its top officials sued the Speaker of the National Assembly, as well as the National Assembly itself. Now three judges have produced a constitutional judgment finding that the Senate was right: in many cases the National Assembly ought to have worked with the Senate to pass legislation. The fact that the Senate was left out of the process means that no fewer than 23 laws, passed by the National Assembly, are unconstitutional and thus null and void.

Copyright & A2K Issues - 3 November 2020

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. If you wish to unsubscribe, please email Denise.Nicholson@wits.ac.za .   Please note :  This information service will be closing down on Friday 11 December 2020, but you will still be able to access the Archives at:  https://africanlii.org/content/copyright-and-a2k-issues

December 2020

Copyright & A2K Issues - 15 December 2020 (FINAL NEWSLETTER)

Please note :  This is the Final newsletter on this website.  You will still be able to access the Archives of this newsletter at: https://africanlii.org/content/copyright-and-a2k-issues    Denise Nicholson retires from the University of the Witwatersrand, Johannesburg on 31 December 2020. She will be consulting in future. Should you wish to contact her, her website from January 2021 will be http://www.scholarly.horizons.com .    Should you wish to receive similar information in a new online newsletter, please email denise.nicholson@scholarlyhorizons.com   with " Yes to new online newsletter" in the subject field.

Benin taken to task by African Court for Charter failures – not even constitutional court escapes censure
Benin taken to task by African Court for Charter failures – not even constitutional court escapes censure

Seldom does Africa’s premier regional court find that laws or practices relating to a state’s court violate rights enshrined in the African Charter. But in a new decision, delivered by the African Court on Human and Peoples’ Rights, the judges declared that Benin violated its obligation to guarantee the independence of the country’s constitutional court. The judges were equally clear that recent changes to the constitution should have involved far more consultation with the people. Among other decisions they declared that the state of Benin had violated the Charter right to information, as well as the right to economic, social and cultural development.

Diplomatic immunity defence in Kenya's maintenance case
Diplomatic immunity defence in Kenya's maintenance case

The tragic story of young Harry Dunn, knocked over and killed last year allegedly by the wife of a member of the US diplomatic corps in the UK, was a reminder of the conundrums that can sometimes be caused by diplomatic immunity. She left the UK after the accident and the US government has refused her return, citing immunity. Now a poignant new case is being decided in Kenya, a case that raises just as complex a conflict between rights and immunity. It concerns a senior diplomat from Sierra Leone, stationed in Kenya. A woman, claiming to be a former girlfriend of his, has gone to court asking that he be ordered to pay maintenance for a child born of their relationship. But despite the court’s order he has refused to do so, citing the Vienna Convention to justify his inaction. As the case winds its way through many hearings, the sum he owes in maintenance is mounting steeply. And the high court is unimpressed.

'Help us', Tanzania's opposition urges African Court
'Help us', Tanzania's opposition urges African Court

Elections in Tanzania at the end of October passed with little comment from outside that country. And since the declaration of John Magufuli as president, Tanzanian politics have been relegated to a non-issue in most other parts of the world. But not for long: disputed aspects of the polls are about to be ventilated in court even though legal challenges to aspects of the election are not allowed in Tanzania’s own courts. Activists have taken their dispute over the way the elections were conducted to the African Court on Human and Peoples’ Rights. It promises to be a landmark case: given the inability of people inside Tanzania to bring a meaningful test of the polls’ validity, the African court could prove an alternative forum - and one drawing an international audience; further, in a politically poignant development, this will also be the last case from Tanzania that the court will hear.

Remembering the first woman to argue before the US Supreme Court
Remembering the first woman to argue before the US Supreme Court

The first woman to argue a matter before the US Supreme Court, Belva Lockwood, was also directly responsible for ensuring that the first black lawyer was able to argue in the Supreme Court some time later. Belva Lockwood's landmark first case, Kaiser v Strickney, was argued 140 years ago this week.

Even refugees have a right to be heard on voting issues – high court
Even refugees have a right to be heard on voting issues – high court

Key organisations working with Kenya’s vast refugee community want them to elect leaders based on where they live now, rather than where they came from. They say this will reduce ethnic tension and will fall in line with the general approach to elections in Kenya. To implement these changes, the country’s refugee affairs secretariat and the United Nations refugee agency have been working on new guidelines for how refugee community leaders will be chosen. But it turns out that these guidelines were not discussed beforehand with the affected communities. Enter one of Kenya’s most prominent human rights activists, on a mission to ensure justice is done – and that the voices of the most vulnerable communities in the country are heard.

‘Unprecedented levels of political interference with courts’ – Chief Justice
‘Unprecedented levels of political interference with courts’ – Chief Justice

The leader of the judiciary in England and Wales has reacted sharply to continuing attempts by politicians to interfere with the judiciary, judicial appointments and judicial decisions. In fact, he has even suggested that politicians should be taught about the boundaries that should exist between parliament and the judiciary and that a short course could be drawn up for new members, to explain these ‘boundaries’ and why they should be observed.

Copyright & A2K Issues - 1 December 2020

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. If you wish to unsubscribe, please email  Denise.Nicholson@wits.ac.za .   Please note :  This information service will be closing down on  Friday 11 December 2020 , but you will still be able to access the Archives at:  https://africanlii.org/content/copyright-and-a2k-issues