Articles - 2021

The Community Land Act in Kenya Opportunities and Challenges for Communities

Kenya is the most recent African state to acknowledge customary tenure as producing lawful property rights, not merely rights of occupation and use on government or public lands. This paper researches this new legal environment. This promises land security for 6 to 10 million Kenyans, most of who are members of pastoral or other poorer rural communities. Analysis is prefaced with substantial background on legal trends continentally, but the focus is on Kenya’s Community Land Act, 2016, as the framework through which customary holdings are to be identified and registered. A main conclusion is that while Kenya’s law is positive and even cutting-edge in respects, legal loopholes place communities at risk of their lands not being as secure as promised ahead of formalization, and at risk of losing some of their most valuable lands during the formalization process. This is mainly due to overlapping claims by the national and local government authorities. Political will to apply the law is also weak. The truism that the law is never enough on its own to secure social change is illustrated. With or without legal protection, the assistance of non-state actors will be needed to help communities secure their lands under formal collective entitlements. The need for judicial interpretation of disputed legal provisions may also be required to ensure new constitutional principles are delivered.

Legal first for Zimbabwe as court orders damages for workplace sexual harassment
Legal first for Zimbabwe as court orders damages for workplace sexual harassment

A ground-breaking judgment from the high court in Zimbabwe has held that a woman, sexually harassed at work, is entitled to damages. It is understood to be the first time that such an order has been made in Zimbabwe. The decision comes after the woman experienced sexual harassment by her employer in 2002/3. According to evidence, her whole life changed as a result of the harassment: she lost her job, her marriage broke up and her personality has changed dramatically.

Ugandan court puts widow's rights ahead of cultural practices
Ugandan court puts widow's rights ahead of cultural practices

In a judgment that strikes a blow for women’s equality in the face of strong cultural practices, the Ugandan high court has ordered that a widow may decide where her deceased husband may be buried. This despite the wishes of the man’s family, who wanted him laid in an ancestral burial ground and who wanted the woman to be barred from in any way ‘interfering’ with the burial. Before making its decision, the court asked for expert witnesses to provide evidence about the burial traditions of the Ndiga clan. And, in its conclusion, the court urged that ordinary members of the public should be encouraged to adopt a culture of writing wills indicating their preferences about property distribution and burial preferences. The judge said this would reduce the number of cases handling burial dispute matters, and would promote peaceful relations between families.

Botswana's highest court upholds decriminalisation of gay sex, AG undertakes to implement this decision
Botswana's highest court upholds decriminalisation of gay sex, AG undertakes to implement this decision

Botswana’s apex court has upheld a high court decision decriminalising gay sex. And the country’s attorney general has issued a special media release on the subject, saying that Botswana has an impressive post-independence record of observing human rights and the rule of law. Against this background, the government will ensure the new decision in the court of appeal’s judgment is implemented.

Mauritian lawyer, named in controversial drug trafficking report, wins case to expunge findings
Mauritian lawyer, named in controversial drug trafficking report, wins case to expunge findings

The controversial report of an official inquiry into drug trafficking in Mauritius continues to cause waves in that state’s upper echelons. When it appeared in 2018, the report led to the resignation of the minister for gender equality as well as the deputy speaker in the national assembly. Both said they would contest the report, particularly its suggestion that they were implicated in drug scandals. The report went even wider in its reach, however: as well as linking politicians to drug traffickers, it suggested certain police officers and lawyers were involved as well, and recommended further inquiries in relation to them. Now the supreme court of Mauritius has decided an application arising from the report, brought by a prominent member of the legal profession who objected to the several pages dealing with allegations against him. What makes the case even more noteworthy is that the lawyer is Abdool Raouf Gulbul, whose wife, Rehana Bibi Mungly-Gulbul, has just been appointed Chief Justice of Mauritius. One of the allegations against Gulbul in the report was that during the 2014 elections, when he stood unsuccessfully as a candidate, he had used his wife’s phone to make calls that he did not want recorded. Another is that, given the income of the couple at the time, they could not have afforded to buy the properties they own.

Outcry over rape decisions by Namibian magistrate
Outcry over rape decisions by Namibian magistrate

Decisions by a magistrate based at the Oshakati Regional Court in Namibia have led to strong community protest and concern by anti-rape activists who oppose sentences the judicial officer has passed in rape cases. They are also against him being asked to sentence a rapist in a case where he (the magistrate) had originally acquitted the accused. Now, following the state’s successful appeal against that acquittal, the magistrate must sentence the man whom he was originally sure was not guilty. Protesters, however, say the magistrate should have nothing more to do with the case as he will not bring an open mind to the matter.

Judge concerned about 'overcriminalisation' of teenage sex
Judge concerned about 'overcriminalisation' of teenage sex

Many teenagers are sexually active but, in its efforts to protect children and vulnerable young people, the law is not always able to act appropriately in response. A significant new decision from the high court in Malawi raises the issue squarely and, in a section headed, ‘Overcriminalisation of factually consensual sexual intercourse’ suggests that South Africa, among others, might have found a suitable approach for the law to take. The judgment was delivered after the court reviewed the decision of a magistrate in a case where a teenage boy was charged with defilement for having had sex with a teenage girl a couple of years younger than he was. The magistrate acquitted the young man, but wrote a decision in a way that sensationalised the young woman’s sexual history and in so doing trivialised the problem faced by the courts, parents – and teenagers themselves. In her review of that decision, Judge Vikochi Chima suggested that this was not the style for judicial officers to adopt, but approved the magistrate’s finding that the young man should be acquitted.

Transgender victim of police unlawful arrest and assault awarded damages
Transgender victim of police unlawful arrest and assault awarded damages

Police in Namibia have yet again come in for some tough criticisms by the courts of that country. This time because of the unwarranted harassment, unlawful arrest, assault and abuse meted out against a transgender woman who was picked up and forced into a police van, for no good reason. A video that captured the continuation of the abuse and assault once the police van arrived at the station was shown to the court, and the judge quoted with approval comments in another case that ‘despicable conduct’ should not be associated with a professional police service in a constitutional state.

Judges ask: are ‘fraudulent leakages’ responsible for all those missing court records?
Judges ask: are ‘fraudulent leakages’ responsible for all those missing court records?

Three Ugandan judges have been wrestling with an increasingly common problem in the region: appeals that cannot be heard because vital court documents have gone missing. In this latest case the appeal judges said that as with other such cases it was not possible to know whether the documents had disappeared by way of ‘fraudulent leakages’, but that the appeal rights of the accused had been infringed as they had been waiting six years for the registrar to supply the record, without success. The only light at the end of the tunnel was the hope that with digitalisation of Ugandan court records, the ‘spate’ of lost court records would come to an end, said the judges. They also urged the Principal Judge to ensure that leaks were ‘sealed’.

Court declares husband, charged with murdering his wife, 'unworthy' to bury her
Court declares husband, charged with murdering his wife, 'unworthy' to bury her

A high court judge in Lesotho has found a husband ‘unworthy’ to bury his wife, because the evidence indicated that he had ‘brutalised her in what was plainly a ‘callous act of domestic violence’. Her birth family had asked that they be allowed to bury her instead, a move strongly opposed by the husband, charged with her murder and out on bail. He claimed that, as the heir, he had the right to bury her. Finding the husband responsible for the woman’s death, Judge Moroke Mokhesi said such behaviour offended public policy the world over. The abuse and brutalising of women was frowned on and it would ‘offend a sense of what is right’ to allow him to bury her merely because he was the heir.

Namibian government to appeal in gay fathers' surrogacy case
Namibian government to appeal in gay fathers' surrogacy case

An important Namibian high court decision, seen as progressive and widely welcomed in the gay and lesbian community, is to be challenged in that country’s highest court. The high court had ordered the government to register a child, born of a surrogacy arrangement in South Africa, as a Namibian citizen by descent. Complicating the decision in Namibia, where gay and lesbian rights are still contested terrain, is that the father, a Namibian, who brought the application for his child to be given Namibian citizenship by descent, is married to another man, in terms of South Africa law. The notice of appeal discloses that the government wants to challenge the outcome on a number of grounds including references by the high court to anti-gay discrimination in Namibia. But the supreme court might decide to deal with the matter on grounds related to the surrogacy agreement and its implications for Namibian citizenship law, rather than getting to the question of gay discrimination.

Ending childhood statelessness and dismantling barriers to birth registration in South Africa
Ending childhood statelessness and dismantling barriers to birth registration in South Africa

A recent decision by South Africa’s apex court has put the focus on an antiquated law that prevented children of unmarried parents accessing birth registration in the same way that children of married parents do. It’s a crucial issue for the children affected and their families, because the law as it previously stood was a serious obstacle and the potential cause of statelessness for those denied birth registration. As the writers explain, the decision of SA’s Constitutional Court affirms the intrinsic worth and right to birth registration for all children in SA and also does away with several archaic concepts.

‘Foreigners everywhere, nationals nowhere’: Southern Africa’s changing response to UN campaign on statelessness

Statelessness, once a ‘forgotten human rights crisis’, has been put at the forefront of a global agenda with the UN’s #Ibelong campaign. Among the most tragic victims of statelessness are children found abandoned in a state and who, in most Southern African states, would as a result never have any nationality. Condemned to a life in a limbo that extends even to their adult years, and that may even be inherited by their children, these stateless persons illustrate how essential the right to nationality is to every person. But that is just one of many problems associated with statelessness. Here, Emmanuelle Mitte, UNHCR expert on the subject, explains the background and shares some encouraging news: most Southern African states that once simply ignored the problem, have now begun to join the movement to end statelessness.

Kenyan government put the ‘cart before the house’ on data protection and must live with the consequences, says court
Kenyan government put the ‘cart before the house’ on data protection and must live with the consequences, says court

The high court in Kenya has taken a strong line on protection of personal data related to the government’s new ‘huduma’ identity cards. The cards are meant to do away with the need for many cards related to various government services – ID, passport, clinic cards, driving licences and others. Collection and collation of the data needed for the new, all-encompassing cards has already taken place and the cards are now available for collection. However, a court challenge to the government’s failure to put in place any screen that would protect the privacy of the individual, has just been finalised in the high court, Nairobi. The presiding judge, Ngaah Jairus, has held that the government put the cart before the horse and that it was unconstitutional to have collected data without first ensuring the constitutional right to privacy would be protected.

Namibian judge delivers landmark ruling on gay rights and the rights of a child born of gay parents
Namibian judge delivers landmark ruling on gay rights and the rights of a child born of gay parents

The case involves a same-sex couple where only one of the couple is a Namibian. They have had a child by surrogacy, and now applied for the child to be granted Namibian citizenship by descent. The minister of home affairs and immigration objected, saying there should first be a paternity test to establish whether the biological father was in fact the Namibian man rather than his partner. Now the court has found against the minister, saying there is no requirement in law for a ‘biological link’ between child and parent. The judge also used the opportunity to speak strongly against official discrimination saying it was unconstitutional and should not be allowed to flourish.

Fairness at divorce
Fairness at divorce

Two new judgments from the courts in Kenya and Zimbabwe underline changing judicial views about the role of women in building up a family home and the contribution that women, as wives and mothers, may be said, on divorce, to have made. One stresses with new urgency that women who work in the home should stand up for their rights and, at divorce, be prepared to give evidence in court about the significance of their contribution to the home. The other notes that despite progressive decisions by the courts, at divorce most men still undervalue the contribution of women and are unwilling to agree to an equal share in the matrimonial property.

Malawi paralegal investigation given go-ahead by court
Malawi paralegal investigation given go-ahead by court

The Malawi law society has lost the first round in its battle over turf: it had asked the high court to squash an investigation being planned by the legal affairs committee of the national assembly. The investigation could see a recommendation that paralegals be allowed to defend certain cases in the magistrates’ courts. However, Judge Mike Tembo refused to stop the inquiry, and said the action reminded the court ‘of the colonial days … in which the law severely limited black people’s political participation’.

Charged and found guilty of ‘being pregnant’, school learners now awarded damages in compensation
Charged and found guilty of ‘being pregnant’, school learners now awarded damages in compensation

A group of pregnant school learners, the boyfriends by whom they were pregnant, and the parents of some of them, have been awarded damages for their ‘arrest’ and conviction under community by-laws. Sentenced to pay fines, they were kept in police cells until the fines were paid in full. Now, however, the fines must be repaid, along with damages. The exact amount of damages due was finalised last week by the assistant high court registrar who also warned that community by-laws did not amount to formal law. They could thus not be enforced through the formal legal system which did not, in any event, recognise pregnancy as an ‘offence’.

Long struggle for justice after failed Kenya coup
Long struggle for justice after failed Kenya coup

Reverberations from Kenya’s 1982 coup attempt were felt once again last week, this time in a high court case brought by former members of the armed forces, tortured in the wake of the failed coup. The plotters had tried to get rid of the then president, Daniel Moi. After being held for more than a year, one of the former members of the armed forces involved in the litigation was subsequently let go without any charges. The others pleaded guilty to coup-related offences and served time, but now claim that they were forced into the guilty pleas by threats of continued torture. The high court declared all ten officers had been victims of unconstitutional treatment and they were awarded damages plus legal costs and interest.

The Forum at Mosi-oa-Tunya: Judiciaries and the Fourth Industrial Revolution in Africa
The Forum at Mosi-oa-Tunya: Judiciaries and the Fourth Industrial Revolution in Africa

Just like the inevitable thunder of the "smoke" of the Zambezi at Victoria Falls, where this year's Southern African Chief Justices Forum conference took place, so is the flood of the Fourth Industrial Revolution engulfing the African justice sector. The theme of the conference was The Judiciary and Technology in Africa. In my presentation to the Forum, I proposed that African judiciaries have an opportunity to engage with the technologies shaping the Fourth Industrial Revolution now. This engagement should focus on formulating policies and practices that support equitable development of new technologies in the justice sector and in a way that ensures respect for human rights, transparency, efficiency and enhanced access to justice. In addition, judiciaries should invest in programmes to train judges and equip the judicial administration with the necessary interdisciplinary skills and knowledge to fully engage with this new reality.

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