Articles - 2021

Intl Criminal Court to announce verdict on notorious Lord’s Resistance Army leader

• 29 January 2021
• Carmel Rickard

It will be a crucial moment for international justice as well as for justice in Uganda when the International Criminal Court gives its verdict on 4 February 2021 in the case of Dominic Ongwen, a much-feared commander of the Lord’s Resistance Army (LRA). It's so important that Human Rights Watch has prepared a special briefing explaining the background and significance of the case.

Zim's top court clarifies bequeathed property dispute

• 29 January 2021
• Carmel Rickard

After a decade of legal uncertainty, the supreme court of Zimbabwe has clarified a contentious problem relating to whether spouses are legally obliged to bequeath their property to each other. The courts have been divided over the issue for some time. Some have taken the view, now upheld by the supreme court, that a spouse, not married in community of property, has testamentary freedom. Others said that a will effectively disinheriting the other spouse was unlawful. Moreover, it had a disproportionate effect on women and would thus be unconstitutional. A judgment written by Chief Justice Luke Malaba and with the unanimous agreement of four of his colleagues, has brought certainty to the question. They found that a will is not invalid merely because the testator bequeaths property to someone other than the surviving spouse. Where there was no will, however, or where the couple were married in community of property, a different law and a different legal regime apply.

Uganda’s security forces wait 24 hours before obeying court order to end opposition leader’s house arrest

• 29 January 2021
• Carmel Rickard

Uganda’s high court has encouraged many with its ruling that opposition leader Bobi Wine should be freed from what has effectively been a period of house arrest, during which security forces outside his home refused to let anyone go in or out. Given the atmosphere of tension and fear in the country, there was keen public interest in how the court would handle a matter which so obviously involved crossing the government and acting independently.

Human rights 'upside' of the Trump years

• 29 January 2021
• Carmel Rickard

Human Rights Watch has released its 2021 report on the state of the world in 2020. And though it is upfront about the hostility of former USA president, Donald Trump, to human rights at home and in the rest of the world, the organisation finds some unexpected reasons for optimism arising from this hostility. The report summarises the state of human rights in almost 100 countries across the world in 2020. Among them are a number from Africa starting from Algeria, Angola, Burkina Faso, Burundi and Cameroon, then taking in other countries right across the continent (and the alphabet), and winding up with reports on Uganda and Zimbabwe.

International lawyers’ body announces its new president: Zimbabwean Sternford Moyo

• 21 January 2021
• Carmel Rickard

The International Bar Association has announced Zimbabwean lawyer, Sternford Moyo, as the new president of the influential organisation. Harare-based Moyo is the chairman and senior partner at Scanlen and Holderness, a firm he joined in 1982 and where his particular specialties are mining, corporate and commercial law. He is the first lawyer from Africa to head the organisation.

Religious freedom the winner in Zim school flag salute dispute

• 21 January 2021
• Carmel Rickard

Attempts to establish a compulsory daily ceremony for schoolchildren to salute the national flag have come unstuck in Zimbabwe. The education authorities intended the ceremony to ‘inculcate patriotism’ and other values, according to the justification their lawyers argued before the constitutional court. But not everyone was impresssed. One parent went to court with a claim that the ceremony was not constitutionally acceptable and saying that his right, and the right of his children, to freedom of religion was infringed by the compulsory requirement of flag-saluting. He argued that the ceremony, which included words directed at ‘Almighty God’, infringed the religious freedom of others as well. Nine judges including the Chief Justice sat as a constitutional court to hear the matter. They have agreed with the father, finding the ceremony unconstitutional because it was made compulsory, and because there was no provision for those who found it in conflict with their religious beliefs. The judges were, however, less forthcoming about why it took nearly four years for them to finalise and deliver the judgment.

Legal row over Kenya's acting Chief Justice

• 21 January 2021
• Carmel Rickard

The appointment of a new Chief Justice for Kenya is turning into the nightmare that court-watchers had predicted – and the process still has a long way to go. Former CJ David Maraga officially stood down last week, having taken his outstanding leave from mid-December 2020. He leaves behind a number of unresolved conflicts between the judiciary on the one hand and the executive and legislature on the other. For example, President Uhuru Kenyatta still refuses the appointment of more than 40 judges selected by the Judicial Service Commission – apparently part of his retribution for the court holding in September 2017 that elections in the previous month were invalid. The latest problem, however, concerns the Deputy Chief Justice, Philomena Mwilu, set to take over as Acting Chief Justice pending the new appointment. However, a legal activist has been making determined efforts to stop her from taking the acting appointment, saying that she is not constitutionally entitled to such a post, and that corruption charges pending against her also disqualify her from serving as ACJ. Now the high court’s constitutional and human rights division has refused to consider this controversial petition. But it has set new deadlines for amendments to be made to the original petition after which the matter could return to court.

Court finds award of two Namibian farms, aimed at land reform, tainted by corruption and irregularities

• 25 February 2021
• Carmel Rickard

An official decision awarding two farms to a business venture that had not even applied to be allotted them, has been set aside by Namibia’s high court. Judge Harold Geier said that the original decision had to be scrapped because one of the decision-makers had not recused himself even though he had an interest in the matter, being a manager of one of the business entities under consideration. It was an offence not to declare one’s interest in such a case, and recuse oneself, and could result in a fine and prison sentence.

Int'l law firm suggests expelling Tanzania from Commonwealth over Covid denialism

• 25 February 2021
• Carmel Rickard

As local and international concern grows over the Tanzanian government’s handling of Covid-19, a major international law firm has written to the Commonwealth Secretariat, suggesting that the time had come to consider expelling Tanzania from the Commonwealth. International human rights specialist firm, Amsterdam & Partners, said this was because, due to the policies of its president, John Magufuli, Tanzania was not living up to its undertakings as a member of the Commonwealth. It had committed to fight against communicable disease but was instead endangering the lives of people in Tanzania and other Commonwealth countries. These concerns are shared by others as well and last weekend alone, both Human Rights Watch and the World Health Organisation also raised alarm about the effect of government policies on the health of Tanzanians.

Lesotho’s Minister of Law and Justice sues over allegations he helped fabricate evidence in murder case against former PM, Thomas Thabane

• 19 February 2021
• Carmel Rickard

It has been a very busy few weeks in Lesotho. Included in these developments was a major cabinet reshuffle by Prime Minister Moeketsi Majoro, as well as the launch of new politically-charged court cases. Among the most interesting of these cases is a defamation action brought by the minister of law and justice,  Nqosa Mahao. In a newly-filed case he seeks to challenge a newspaper story that carried allegations against him made by a senior police officer. The allegations were that he, Mahoa, was involved in deliberately trying to ensure that Lesotho’s former Prime Minister, Thomas Thabane, was wrongfully accused of murder.

'Catastrophic' Nigerian oil pollution case may be heard in the UK - Supreme Court

• 19 February 2021
• Carmel Rickard

Two Nigerian communities, hard hit through the devastation of their environment by oil spills, have won a legal victory in the UK supreme court that could have wide-reaching effects not only on their own situation, but in similar cases in future. The communities have been trying to sue Royal Dutch Shell for alleged negligence in Nigeria that has led to the severe pollution of their traditional lands. Overturning a court of appeal decision, the supreme court judges held that the appeal court was mistaken in finding that a parent company could never incur a duty of care in respect of the activities of a subsidiary, merely because the parent company maintained ‘group-wide policies and guidelines’. Rather, the issue was how far the parent took over or shared management of the dispute activity, with the subsidiary. The most immediate consequence of the judgment is that it will allow the Nigerian claimants to litigate their negligence case in the UK courts.

Which set of lawyers has the duty of care when an ‘impersonator’ makes off with the money paid by a would-be buyer?

• 19 February 2021
• Carmel Rickard

Suppose a law firm draws up a land sale agreement between a client ‘well known to them’ and an outside party, and one of its lawyers witnesses the agreement, accompanies the parties to the bank and witnesses the payment of the funds to that same client. If that sale goes bad because the ‘seller’ (the client well known to the firm) was actually only impersonating the seller and previous owner of that land, and has since disappeared with the funds without giving over the land, where does that leave the firm in a negligence claim by the disappointed, not to mention aggrieved, would-be buyer? If the legal firm argued it had ‘no duty of care’ to the would-be buyer, would the court agree?

Judge sets new Malawi benchmark in child rape case

• 12 February 2021
• Carmel Rickard

Against the background of a sharp and disturbing rise in the rape of children in Malawi (a problem in a number of other jurisdictions as well), a prominent high court judge has delivered a decision setting a new benchmark for sentence and judicial comment in response to such crimes. His important new judgment comes as police in Malawi have released new rape statistics showing that the number of young girls raped (or ‘defiled’ in terms of Malawi’s law) is far higher than the number of adult women raped. Police have speculated that this was due to ‘superstitious beliefs’ that raping a child brought luck or wealth.

Hotel owners refused another ‘bite at the cherry’ by Zambia’s supreme court

• 12 February 2021
• Carmel Rickard

The supreme court of Zambia, involved in a dispute about damages following a bizarre defamation, have refused to consider an application brought under the slip rule. The court said the rule was intended to fix minor problems like dates, not allow litigants with a long list of complaints about the original judgment to have a ‘second bite at the cherry’ aimed at attempting to secure a more favourable outcome. The initial dispute was over allegations, carried in the local media, that a prominent political figure had said a hotel should be closed as it was being 'run as a brothel'.

Crisis averted in the Kenyan judiciary – for now at least

• 5 February 2021
• Carmel Rickard

Kenya’s deputy chief justice, Philomena Mwilu, has been under pressure since she was arrested and charged in connection with corruption and tax related offences in 2018. But that has only increased since former chief justice, David Maraga, left office to take leave, pending retirement, late last year. Early in January 2021, an application, ultimately unsuccessful, was made for her to be prevented from taking over as Acting Chief Justice. And last week, a different application was granted, on an interim basis, for a similar order. As a result, she was temporarily suspended as Deputy Chief Justice, as a member of the supreme court and as part of the Judicial Service Commission. Initially, it seemed the court’s order would throw the judiciary into disarray, but that order was quickly set aside following an urgent application just a couple of days later.

UK hold on Chagos archipelago declared unlawful

• 5 February 2021
• Carmel Rickard

Most inland countries would ignore decisions of the world’s maritime court, the International Tribune for the Law of the Sea (Itlos). But this decision is different. It sheds important light on one of the few places in the world still regarded by many (including the United Nations) as a colony that should be returned to its original people. This time the ‘colony’ is the Chagos Archipelago – a group of islands and atolls in the Indian Ocean. Mauritius says the islands are a part of its territory. But the UK denies this. Despite a key opinion by the ICC and a crucial resolution by the UN general assembly both saying that the UK was unlawfully in occupation, the UK has held fast to its position – and to the archipelago. Following the Itlos judgment, however, will its hold be quite so secure?

Making history, Intl Criminal Court convicts former Uganda militia leader of war crimes, crimes against humanity

• 5 February 2021
• Carmel Rickard

Dominic Ongwen, a former commander with the Lord’s Resistance Army that terrorised areas of northern Uganda for decades, has been convicted by the International Criminal Court of war crimes and crimes against humanity. Sentence is yet to be passed. The judgment broke new ground in several ways, both in terms of the crimes of which he was convicted, and the involvement of communities in East Africa, affected by the long-running civil war, who had been helped to feel involved in the process of the trial and who listened to the court’s decision via a radio or television link in sometimes far-flung areas.

'Global jurist of the year': prestige award goes to Kenya’s Justice Mumbi Ngugi

• 5 February 2021
• Carmel Rickard

One of the most prominent judges in Kenya has been given a major reward in recognition of her work in support of human rights. Judge Mumbi Ngugi, who sits on the anti-corruption and economic crimes division of the high court in Kenya, is also a world advocate for the rights of people with albinism at a time when, in certain parts of the world such as Kenya, people with albinism are targeted and sometimes even killed for ritual purposes. The award to Judge Ngugi is to be made later this month by the Centre for International Human Rights, based at the law school of Northwestern University.

African Court’s existence threatened by lack of cooperation from AU states

• 26 March 2021
• Carmel Rickard

Africa’s premier regional human rights court, the African Court on Human and Peoples’ Rights, has released a detailed report on its activities and the challenges it faces. The report, published earlier this month, gives information about the difficulties and achievements of the court during 2020 as well as its plans for the immediate future.

Judges told not to make traditional rituals a condition of bail in sexual assault cases

• 26 March 2021
• Carmel Rickard

The supreme court of India has slammed judges who impose ‘wholly inappropriate’ bail conditions in cases of sexual violence, like requiring that the accused visit the woman concerned and give her gifts. The court has also ordered that judges, lawyers and prosecutors must undergo gender sensitivity training to stop language and bail conditions that retraumatise victims. The decision, which comes during international women’s month, is likely to be well received by women’s organisations, professional law bodies and the courts in Africa where rulings from India are often quoted with approval.

Majority of Zambia's constitutional court: We are bound by this high court decision

• 26 March 2021
• Carmel Rickard

When the constitution sets a minimum education level for members of parliament, what should be done about a candidate, accepted for nomination to parliament and ultimately voted in, who turns out not to have satisfied the requirements? Five judges of Zambia’s constitutional court split on this significant question, leaving the MP concerned, Lawrence Nyirenda, safely in his place.

Supreme Court judge's sensational claims against Chief Justice

• 19 March 2021
• Carmel Rickard

What was meant to be the end of a high-profile political case intended to challenge the outcome of Uganda’s national elections earlier this year turned into something even more astonishing late this week: a senior member of the country’s Supreme Court claimed that Chief Justice Alfonse Owiny-Dollo had tried to gag her and stop her reading her minority decision in the matter until he had vetted her ruling. Justice Esther Kisakye went on to say that the CJ had used ‘barbaric methods’ in dealing with the matter and that he had given her unconstitutional orders that she felt she could not obey.

Uganda's Internet closure during elections challenged at East African Court of Justice

• 19 March 2021
• Carmel Rickard

Uganda’s government, which closed down social media and Internet access during the country’s January 2021 elections, is far from the only state to take such action over the time of national polls. In fact, research indicates that Senegal recently became the 63 rd  country to restrict social media access since 2015. But in the case of Uganda, the East Africa Law Society has decided to take action, launching a challenge in the East African Court of Justice.

A women’s month win in Kenya – court finds ban on female genital mutilation constitutional

• 19 March 2021
• Carmel Rickard

Since 2011 female genital mutilation has been illegal in Kenya – though too late for the 21 percent of girls and women in that country, aged between 15 and 49, estimated to have undergone the practice already. Though the ban was widely welcomed, and was introduced to the National Assembly as the brainchild of the cross-party Kenya Women’s Parliamentary Association, it has not been accepted by everyone. In fact, some traditionalists feel so strongly about it that they have gone to court with a claim that the law banning FGM is unconstitutional. Fortunately, in a judgment delivered this week, the high court has ruled that the law is valid – and has suggested that it should be further amended to close a gap that made proper enforcement difficult.

Covid-19 a further set back to fight against child marriage

• 12 March 2021
• Carmel Rickard

Two major new reports have been released by the United Nations, both timed for international women’s month, and both pointing to the dire situation of many young woman around the world.

Dangers of policing Malawi's 'green', off-season fishing ban

• 12 March 2021
• Carmel Rickard

At the heart of this unusual decision by Malawi’s senior magistrates’ court lies a dramatic account of the dangers involved in trying to protect the fragile ecosystem of the country’s fish-rich Lake Chilwa. Apart from ecological concerns the court also speaks with some anxiety about the way police put their members in unnecessary danger by sending them to deal with well-armed, illegal fishing people while hopelessly outnumbered. They were provided with just a paddle boat – against the engine-powered boats used by the fishermen – and were not adequately armed. The police also failed to send reinforcements, even when their members sent desperate pleas for help.

‘Run for your lives’, judge urges partners in abusive relationships

• 12 March 2021
• Carmel Rickard

In a most unusual judgment from Kenya, one that fits perfectly with March marking international women’s month, a judge has found that a woman who killed her husband acted in self-defence after years of violent abuse at his hands. The judge sentenced the woman to prison until the rising of the court and ordered that she should receive counselling to help her recover from the trauma of the long-term abuse inflicted by her husband. Judge Roselyn Aburili also urged members of the public suffering in abusive relationships to leave and ‘find an escape route to safety’.

Knowing where to shop?

• 11 March 2021
• <a href="/users/fasken">1069</a>

Judicial disciplinary body tells Chief Justice to retract, apologise for pro-Israel comments critical of government policy

• 5 March 2021
• Carmel Rickard

South Africa’s Chief Justice Mogoeng Mogoeng has been told to issue an apology and a retraction for a series of highly controversial comments he made in the middle of last year, criticising Pretoria’s policy on Israel. The decision plus the ‘remedial steps’ of apology and retraction were issued this week by the Judicial Conduct Committee of SA’s Judicial Service Commission. After a mid-2020 interview and subsequent comments defending the views he expressed, several official complaints were made to the JSC. Judge Phineas Mojapelo, newly-retired deputy judge president of the South Gauteng high court, Johannesburg, wrote the decision on behalf of the JCC.

Shock report by Malawi's ombud finds maladministration, corruption behind decision to bring in SA legal team

• 5 March 2021
• Carmel Rickard

In a report handed down with commendable promptness, Malawi’s ombudsperson, Martha Chizuma, has found that the procurement of a team of South African lawyers to handle a crucial election appeal by the then-government of Malawi in 2020, amounted to maladministration and an abuse of power. Her shock report made a number of significant findings on this issue, with orders of tough remedial action – but also dealt with several unexpected additional findings of maladministration that had crept into official government appointment practice.

Is 'sting' of saluting former subordinates sufficient punishment, high court asked

• 5 March 2021
• Carmel Rickard

When a formerly high-ranking Namibian prison official won a high court battle over his salary it was a wake-up call for governments keen to ensure that corruption and other crime is properly punished within the ranks of the civil service. The message is: check your legislation because it might not be as water-tight as you thought. In this case, the assistant commissioner of correctional services pleaded guilty to the theft of a mobile phone at a disciplinary inquiry and was demoted to the rank of senior superintendent as a punishment. When he was informed later that his salary would be reduced to that of senior superintendent, Kahimise challenged the decision. The high court has now found in his favour, saying the law as its stands did not provide for a reduction in salary in such a case and that the demotion in rank – and having to salute officers who previously had to salute him – was punishment enough.

Malawi joins growing trend outlawing death penalty

• 30 April 2021
• Carmel Rickard

First, Malawi’s courts found it was unconstitutional for the death penalty to be mandatory in cases where the accused was convicted of murder. Now the apex court has found, by an overwhelming majority, that the death penalty itself is unconstitutional, and has ordered that everyone on death row must be re-sentenced. One member of the court dissented, without ever commenting on the issue of the constitutionality of the death penalty, finding that the route to resolving the appeal before the nine judges could be resolved in a different way.

Belated vindication for free speech, media, in African Commission decision

• 30 April 2021
• Carmel Rickard

Two women journalists, released from prison in Rwanda after serving their full jail terms for writing and publishing articles that ‘endangered national security’, have been vindicated by the African Commission for Human and Peoples’ Rights. In its decision officially published last week, the commission found that Rwanda’s laws on defamation and freedom of expression violated the African Charter and should be amended. The two journalists, Agnes Uwimana-Nkusi and Saidati Mukakibibi, were charged in connection with articles published in 2010. They were originally sentenced to far longer prison terms, but on appeal this was reduced to four and three years respectively. While they were serving their sentences, international organisations helped mount a case before the African Commission, testing whether certain of Rwanda’s laws that impact on the media, including criminal defamation, were compatible with the African Charter. The commission has now officially found these laws violate the charter and have ‘requested’ that Rwanda amend its laws so that they comply with the rights guaranteed in the Charter.

Newborn twins born to gay parents, in maze over Namibian citizenship

• 23 April 2021
• Carmel Rickard

The Namibian high court has ruled that it cannot order the government to issue emergency travel documents for newborn twins to come into the country. The babies were born to a South African surrogate mother. Their fathers, married in South Africa, are a Namibian and a Mexican. The babies have birth certificates, issued by the SA authorities, indicating that the Namibian is the father of the children. However, the Namibian minister of home affairs and immigration is insisting on a DNA test before any official documents will be issued for the twins. This would be to establish whether the Namibian man is the biological father, rather than the Mexican spouse. While the issue is fought in the courts and government offices, the Namibian father, with the two babies, is stuck in SA and cannot legally cross into Namibia with the twins.

Faced with 'wrongful allegations' of bribery, judge recuses herself

• 23 April 2021
• Carmel Rickard

A prominent judge of Malawi’s high court has announced her recusal from a case involving the death of a woman allegedly at the hands of her husband. Judge Fiona Mwale has recused herself from the trial following claims by the family of the dead woman that bribe money had been collected to pay the presiding officer in the matter. She said that there was no truth in the claim, but that she felt she had to quit the trial so that the bribery allegation could be investigated. The trial has now been adjourned so that another judge may be appointed to deal with the case.

Police rape spree: huge compensation awarded by Malawi court

• 16 April 2021
• Carmel Rickard

Thanks to the determined efforts of the women involved, no fewer than three recent decisions in Malawi have dealt with sexual assault, harassment or rape under extremely troubling circumstances. The trio of cases will surely act as a boost to awareness of women’s constitutional rights in Malawi, to add pressure on the police to investigate and on employers to act in cases of workplace sexual harassment.

Judge stands down, citing 'intensity of insolence' from counsel

• 16 April 2021
• Carmel Rickard

The search for Kenya’s new chief justice has reached a crucial point: an intensive fortnight of candidate interviews by the judicial service commission. But the battle over the future of the jurist leading the search, Kenya’s acting chief justice, Philomena Mwilu, is continuing in parallel. Most recently, the high court judge set to hear a petition that Justice Mwilu be removed as acting CJ and deputy CJ among other positions, because of graft allegations against her, has announced he will recuse himself. In his written decision on the question, the high court judge, Patrick Otieno, explained his recusal: given the line taken by Justice Mwilu’s counsel in the matter, he would be seen to have been ‘intimidated’ if he found for one side, or to have been ‘propelled by vengeance’ if he found for the other, he said. The judge further castigated counsel for the DCJ for making ‘preposterous accusations’ against him and for the ‘intensity of insolence’ he experienced from counsel in the case.

Dispute over sitting Ugandan judges appointed to head prosecution arm

• 9 April 2021
• Carmel Rickard

Is a sitting judge allowed to take a job as head of his or her country’s prosecution services? And if a court finds that it was unconstitutional for the judge to accept the second position, what is the status of the judge’s decisions as a prosecutor? These, and difficult, related questions, have been raised in Uganda, where a series of judges have been appointed to other government jobs, without first resigning from the bench. The initial answers to the questions around the DPP job were decided in a constitutional petition last month: it’s unconstitutional, the court said, and from now on decisions by any judge who takes another government position without first resigning as a judge, will be invalid. Faced with an uproar from the prosecution services, however, the supreme court, the country’s apex forum, is to reconsider the question.

Malawi's human rights commission recommends compensation for women sexually harassed by country's broadcasting boss

• 9 April 2021
• Carmel Rickard

The women of Malawi had barely time to digest a landmark high court judgment ordering a company to pay ‘aggravated damages’ in a workplace sexual harassment matter, when a second, similar, high profile matter hit the news. This time it was a report from the Malawi Human Rights Commission which found the CEO of the country’s broadcasting corporation had sexually harassed women on the staff and recommended tough measures in response.

Landmark sexual harassment case in Malawi

• 1 April 2021
• Carmel Rickard

The women of Malawi have been handed a legal victory that will stand them in good stead when faced with sexual harassment and assault at the workplace. It involves a woman working as a time-keeper for construction company Mota-Engil, who went to court over her experience of sexual harassment. She claimed that because her employers did nothing about her complaints, and thus allowed the situation to continue, Mota-Engil was liable to pay ‘aggravated damages’ to her. During the trial it emerged that the company did not have a proper system in place in terms of which action would be taken immediately that a sexual harassment claim was made.

Warnings offered by Zambian land expropriation case

• 28 May 2021
• Carmel Rickard

As South Africa moves towards more stringent laws to allow expropriation of property without compensation, cases in other parts of the region show the pitfalls of expropriation even where compensation is paid. A new case from Zambia’s apex court concerns land expropriated from a farmer, ostensibly for development in the public interest. It turned out, however, that fraud was involved and that after a long period in which nothing was done with the land, it was sold off – at one stage for the development of a luxury hotel and golf course. When nothing came of that project either, the land was allocated to other developers who re-sold the property for private development purposes. One of the questions the judges of Zambia’s apex court had to consider was what the court’s attitude should be in such a case, given that the fraudulent misrepresentation came to light only after the supreme court’s earlier judgment that found the expropriation had been lawful.

Application that Zim’s former CJ be found in contempt of court

• 28 May 2021
• Carmel Rickard

The decision by Zimbabwe’s former Chief Justice, Luke Malaba, to return to work despite a high court declaratory order that his tenure of office ended when he turned 70, has been challenged in court with an application that the former CJ be found in contempt of court, fined and imprisoned, for acting in a way that precipitated a ‘constitutional crisis’. The contempt application was brought by a human rights lawyer involved in one of the two applications leading to a court finding that Judge Malaba could not stay on in office beyond his 70 th  birthday.

Tough questions asked about JSC’s role in extending tenure of Zim’s retired CJ

• 21 May 2021
• Carmel Rickard

The drama of Zimbabwe’s ‘judicial amendment’ is far from over. This week, two separate letters demanding information were sent to the judicial service commission, asking for details about the JSC’s role in considering or facilitating the extension of retired Chief Justice Luke Malaba’s tenure. The week also saw the government trying some damage control in the wake of the extraordinary statement issued by the minister of justice after the high court declared that Judge Malaba’s extension of office was invalid and that his retirement had begun on his 70 th  birthday.

Drama as Zim court finds Chief Justice must retire, confusion about an appeal

• 21 May 2021
• Carmel Rickard

An urgent application, brought last weekend to stave off a constitutional crisis in Zimbabwe, may not achieve this aim, despite a court victory. The case challenged the extension of office of the country’s chief justice, Luke Malaba, for an additional five years beyond the constitutionally mandated retirement age of 70, thanks to a new constitutional amendment. Human rights lawyer Musa Kika, in whose name the case was brought, said that if Malaba were to stay on, unconstitutionally, then all decisions he made would be void. The matter should be heard urgently to stave off a constitutional crisis, he argued. After a marathon hearing, the three high court judges agreed that Malaba had to step down at 70 and that the deputy chief justice should now become the acting CJ. This provoked a furious reaction from the minister of justice who claimed that the judiciary had been ‘captured’ by foreign elements. But the outcome of the case creates a problem for those who wish to appeal. As all the supreme court judges have been cited in the case – they too are affected by the amendment that grants an additional five-year tenure – who is to hear an appeal?

Tough court sentence could mark shift on albinism murders in Malawi

• 14 May 2021
• Carmel Rickard

A high court judge in Malawi has sentenced a gang who killed a man with albinism for his body parts, to life imprisonment, and recommended that they not ever be given sentence reduction by the country’s President. Judge Redson Kapindu said life imprisonment was perhaps an ‘even sterner’ punishment that the death penalty, since the prisoner had ‘only hopeless, painful years’ ahead of him, ‘… stretching out forever’. The murder of adults and children with albinism is a growing problem in many African countries, and some international organisations have criticised what they see as the inadequate response by government, police investigators, prosecutors and even the courts, which, in the view of these organisations, pass sentences that do not reflect the gravity of the crime or act as a deterrent. Perhaps the tough approach taken by Judge Kapindu, could mark a new phase in judicial response to this crime?

SADC and Covid-19: collective failure to meet human rights obligations says ICJ

• 14 May 2021
• Carmel Rickard

The International Commission of Jurists has brought out a briefing paper on access to Covid-19 vaccines in the Southern Africa Development Community states. The report is called, ‘The Unvaccinated: Equality not Charity in Southern Africa’. It finds a collective failure to ensure access to vaccines even though more than 60 000 people have died due to the virus and the lives of countless others have been affected. The failure was caused by a number of factors, according to the report. These include denialism (Tanzania and Madagascar) and the failure to share relatively greater resources (South Africa). Even though SADC’s chair, President Filipe Nyusi of Mozambique encourages a ‘regional pooling of resources’ to make it easier to procure vaccines and their distribution, ‘SADC has … taken no clear action towards this goal.’

Tough new approach to sentencing in child rape cases

• 7 May 2021
• Carmel Rickard

A significant development is under way in Malawi’s high court judgments on sentencing in child rape cases. Three new decisions by a couple of high court judges show a clear determination to treat such crimes with great seriousness and for sentencing to reflect the gravity of the crimes. The judges have also made significant critiques of aspects of defilement cases, with suggestions for what can be done to improve matters.

Ongwen sentenced by ICC: court’s intricate balancing task

• 7 May 2021
• Carmel Rickard

Dominic Ongwen, a former child soldier captured by the Lord’s Resistance Army in northern Uganda and forced to join that militia, has been sentenced as an adult for the more than 60 counts of which he had been convicted by the International Criminal Court. Ongwen, found guilty of war crimes and crimes against humanity among others, escaped life imprisonment because of his unique personal circumstances, a reference to his childhood abduction.

‘The law cannot be adhered to in part’ - Malawian court on dispute over police officer sacked for nude photos

• 25 June 2021
• Carmel Rickard

Could the law countenance a dismissal on the grounds that a recruit had nude photos taken of herself while she was at police training college? That is the unusual question posed to the high court in Malawi, when the woman concerned challenged her dismissal. Was it even illegal – under any Malawian law – for a police officer or recruit to have taken nude pictures of herself for private use? Read on to see how the court resolved the problem.

Time to end mandatory death penalty in Zambia?

• 25 June 2021
• Carmel Rickard

The courts of Zambia continue to pass and confirm the death penalty in alarming numbers, following a 2016 constitutional review in which the majority of voters expressed support for the existing laws on hanging. Presidents have periodically commuted large batches of death row prisoners. The most recent mass commuting of death penalty sentences occurred earlier this year, when President Edgar Lungu moved 225 men and 21 women off death row, ostensibly to reduce ‘overcrowding’ and create better conditions to protect against Covid-19. But in the months since then many more convicted people have been added to the numbers on death row - and judges keep adding to the number, thanks to the fact that the death penalty is mandatory for several offences in Zambia.

Media reports of unlawful home ‘invasion’ by private investigators amount to defamation – Eswatini supreme court

• 18 June 2021
• Carmel Rickard

The Supreme Court of Eswatini has delivered judgment in a most extraordinary defamation case. It concerns the raid on a private home by operatives of a firm of private investigators. They broke into the house where they found a couple asleep, naked, in bed. Then they took distasteful photographs and video as the two people tried desperately to cover themselves. The firm said that they had been hired by the then minister of justice, who was, at the time, involved in a dispute with the man of the couple. But the media that published the first story about the ‘illegal raid’ on the house approached the story as though the couple had been caught doing something unlawful – which they were not. The supreme court has now confirmed the defamation finding of the high court, but has reduced the damages that must be paid.

'Integrity arm' of State given prominence in new Kenyan decision

• 18 June 2021
• Carmel Rickard

On Valentine’s Day, 2020, Kenya’s President Uhuru Kenyatta issued an executive order than brought him no red roses from the country’s human rights bodies. In fact, the order – purporting to ‘re-organise’ government and put various judicial bodies and independent commissions under other state departments and ministries – was the subject of a constitutional challenge brought by the law society of Kenya. Now the high court has decided the petition, and declared that the executive order was unconstitutional and invalid.

Former Chief Justices join row over Kenya President’s appointment of selected judges only

• 11 June 2021
• Carmel Rickard

Kenya’s President Uhuru Kenyatta has appointed or promoted a number of judges. But not the whole list of 40 nominated by the judicial service commission. Only 34 were sworn in during a ceremony last week, causing strong criticism and strong justification by the President himself. Now two former Chief Justices, Willy Mutunga and David Maraga, have weighed in on the issue as well. Their comments follow criticism by some observers of their successor in office, the new CJ, Martha Koome. That criticism centres round whether her response to the President’s move was adequate.

Judicial appointments’ problems spread like a virus

• 11 June 2021
• Carmel Rickard

Like a rampaging judicial virus, political and other problems are infecting the process of appointing judges in a number of African countries. And there’s no vaccine or any other easy solution in sight. Developments in Lesotho, Zimbabwe, Kenya – and then, out of the blue last week, South Africa – all point to serious problems about the process of judicial appointments. Here’s a guide to the symptoms of this particular virus.

Magistrate correct to have woman imprisoned for contempt over child access - Lesotho high court

• 11 June 2021
• Carmel Rickard

A mother was found to have committed contempt of court by disobeying an order about child-access, shared with her ex-husband, and she was sent to prison. She later claimed the magistrate had wrongly ordered her imprisonment and she demanded financial compensation for alleged constitutional damages. But the high court in Lesotho has now found the mother was the one in the wrong, not the magistrate, and applauded the magistrate for protecting the dignity and effectiveness of the courts.

Scrap colonial era common law crime of sodomy, urges Namibia's law reform commission

• 4 June 2021
• Carmel Rickard

Namibia’s law reform and development commission has released a detailed report on what it terms the ‘possibly obsolete’ common law crimes of sodomy and unnatural offences. It traces the origins of these offences as well as their applicability today and concludes that the laws should be repealed, in line with the similar moves in many other countries. This is partly because they are ‘victimless crimes that serve no practical purpose whatsoever’ and partly because to scrap these laws would help recognise the inherent dignity ‘of all members of the human family’.

Kenya court says no more 'jobs for pals', sets aside 130 appointments

• 4 June 2021
• Carmel Rickard

Kenya’s President Uhuru Kenyatta has been dealt another blow by the country’s courts, this time by three members of the high court who found a raft of appointments he made in June 2018 was unconstitutional. As the media in Kenya have pointed out, the list of more than 100 appointments made at that time of people to head parastatal organisations or serve on those boards, was dominated by individuals who had failed to win election in the 2017 polls. Now those appointments have been set aside on the basis that the mechanism followed was not the transparent, merit- and competition-based process envisaged in the constitution. Instead, there was not even an attempt to show any ‘semblance of transparency and accountability’. Nor was there any evidence of ‘any form of competition’.

State must take tougher steps to ensure people's fundamental rights are not violated - Kenya’s apex court

• 30 July 2021
• Carmel Rickard

The supreme court of Kenya has delivered a significant judgment on the right to shelter. It involved people who had been living in two informal settlements since the 1960s, when it was effectively public land. In 2013, they were forcibly evicted by a private entity, the Moi Educational Centre, with the help of the state via the police and others. The high court found in favour of the people who were evicted, saying there was an ‘unapologetic admission’ by the Moi Centre that it had evicted the people and had their homes demolished, all without a court order. The high court ruled that fundamental rights were indeed violated, and awarded damages to the petitioners. Much of this was set aside on appeal, and the petitioners then approached the supreme court for its view. The five supreme court justices unanimously ruled that the petitioners’ rights were infringed by the Moi Centre, the police and other arms of government, and affirmed the original high court finding as well as an award of damages.

Police act against two Kenyan high court judges, search chambers

• 30 July 2021
• Carmel Rickard

Two judges of the high court in Kenya were questioned and their chambers searched last week, sparking widespread concern about whether this was a symptom of worsening relations between the judiciary and the executive. After the arrests – detectives now dispute that the judges were in fact ‘arrested’ – and questioning for several hours, the judges were released. Their lawyers said afterwards that the judges’ chambers had been searched, apparently for money that might have been evidence of bribery, but that nothing had been found. This week, however, the directorate of criminal investigations (DCI) claimed it had seized Ksh6million in the search. At this stage the situation is still confused – and confusing. But a useful article gives some guidance as to how the police ought to approach the question of arresting a judge and searching his or her chambers.

Judge sued by counsel over behaviour that supreme court rules is ‘unacceptable’

• 23 July 2021
• Carmel Rickard

One of the legally most distressing cases ever to be argued in the courts of Zambia has reached a crucial point: the scandalous matter of a senior advocate suing a high court judge with allegations that his constitutional rights had been infringed by the judge, has now been considered by the country’s highest court. The supreme court has ordered that the matter be properly heard in the high court, but with the judge no longer named as respondent. This part of the decision followed a reaffirmation by the court of the principle that judges cannot be sued in their personal capacity. But the three supreme court judges also used the opportunity to chastise the judge concerned for his behaviour, saying that to call his behaviour ‘unacceptable’ would be an ‘understatement’. And they then went on to change the court rules to prevent such behaviour in the future. The dispute originally started when the judge did not announce a time for handing down his original decision and left counsel waiting, as the client’s costs escalated, until an 11pm delivery.

No justiciable rights to shelter in Zimbabwe – supreme court

• 23 July 2021
• Carmel Rickard

Zimbabwe’s supreme court has confirmed that the country has no justiciable right to shelter, saying reference to shelter in the constitution was ‘essentially hortatory in nature’, operating merely as a kind of reminder or guideline to government in formulating policy. Given that shelter and housing is a major issue in Zimbabwe, this is an important decision that, along with the particular reasoning of the court, will impact on how human rights lawyers handle cases raising such issues in future.

Death penalty case re-visited by Kenya supreme court

• 9 July 2021
• Carmel Rickard

Kenya’s supreme court has given special directions in relation to follow-up of its landmark 2017 decision in relation to the mandatory death penalty. At a special sitting of the court, its members questioned a number of court decisions delivered in the wake of the watershed case of Francis Muruatetu and said that the confusion that had arisen needed to be resolved. The special sitting also made clear that the national assembly, along with the senate, the attorney general and the Kenya law reform commission, had not met the court’s deadline to propose a new framework for such cases.

Zambian statesman Kenneth Kaunda ‘not an ordinary person’ – high court

• 9 July 2021
• Carmel Rickard

The family of Zambia’s first president, Kenneth Kaunda, approached a high court judge with an application to set aside the government’s decision for a state funeral and a two-stage burial for Kaunda, who died in June. The judge, Wildred Muma, refused the application. Though most readers know that he said, as part of his decision, that Kaunda was ‘not an ordinary person’, little is known about the legal reasons he gave for rejecting the application.

School’s demand that Rasta boy cut his dreadlocks ‘unconstitutional’, court finds

• 9 July 2021
• Carmel Rickard

The future of an academically gifted senior high school boy is in the balance again. The prestige school to which the boy had earlier won admission refused to enroll him unless he cut off his dreadlocks. Ghana’s high court recently declared that, in doing so, the school had infringed his rights and he had to be admitted. Almost immediately the decision was handed down, however, the school, which claimed its ultimatum in no way discriminated against the boy for his religious Rasta beliefs, said it would appeal against the high court’s decision.

Litigant faces criminal investigation after telling court to ‘stick its apology in its arse’

• 2 July 2021
• Carmel Rickard

In a week that saw South Africa’s highest court order the country’s former President, Jacob Zuma, to serve a prison sentence for contempt of court, the second-highest court also had to deal with a litigant who expressed contempt, using language that must be unheard of in contemporary law reports. The five judges who heard this second matter said the litigant’s contempt would be referred to the national director of public prosecutions for action. The contempt took place in the context of a challenge to government anti-Covid-19 regulations, promulgated last year, and the litigant’s refusal to take part in a ‘virtual’ appeal hearing on the matter.

Under-age rape trial in Malawi results in steamy judgment by court

• 2 July 2021
• Carmel Rickard

A magistrate in Malawi has produced a decision on a statutory rape case that, in part, reads like a racy novel. The magistrate was presiding in the trial of an 18-year-old, charged with ‘defilement’ – the Malawian version of rape when the complainant is underage. At issue was the defence of the accused who said he genuinely thought the girl involved was over 16 – and in dealing with that question, the magistrate rather sensationalised the sexual history of the girl concerned.

Test of judicial impartiality, independence, for Eswatini judges

• 27 August 2021
• Carmel Rickard

A case pending before the Supreme Court of Eswatini, and due for hearing at the end of August, could be a crucial test of judicial independence in the country. Lawyers involved in the case say at least three of the five judges due to preside when the case is called, are candidates for recusal. The appeal is due to deal with a high court’s declaration that key sections of Eswatini’s terrorism and sedition laws were unconstitutional. Even before the appeal is called, however, a prominent litigation organisation has also expressed its concerns about the composition of the bench. The Southern Africa Litigation Centre (SALC) says that two intended members of the supreme court bench, slated to hear the matter, were involved in the case at the high court level and could thus not sit in the appeal.

Case built on ‘a lie’ by investigators, prosecutors ‘gone rogue’ – judge clears former Botswana intelligence agent of charges

• 27 August 2021
• Carmel Rickard

It will be a long time until the dust settles after this week’s sensational judgment in the case of Botswana’s former intelligence officer, Welheminah Maswabi. After a great deal of hype about the enormous sums of money that she was supposed to have stolen from the Botswana government – a total that was a good deal more than the country’s entire gross domestic product – the court found that the director of public prosecutions and the investigation team that worked on the case, had fabricated and deliberately falsified evidence. Those involved had ‘gone rogue’, committing a brazen criminal act, said the court. The prosecution of Maswabi involved other high profile people – Botswana’s former president, Ian Khama, and South African business woman, Bridgette Radebe – and Khama, for one, is planning to take action against those whom he believes are behind the extraordinary case.

SADC loses appeal over unlawfully terminated contract with top tribunal official

• 20 August 2021
• Carmel Rickard

Claims by senior Malawian judge, Charles Mkandawire, that his position with the Southern African Development Community’s now defunct tribunal was unlawfully terminated have again been upheld. Three judges of the SADC Administrative Tribunal’s appeal panel have dismissed an appeal brought by SADC, testing last year’s decision in favour of Judge Mkandawire, the original tribunal’s first registrar. After SADC closed down the tribunal at the instance of Zimbabwe’s former President, Robert Mugabe, Judge Mkandawire ultimately returned to Malawi where he is now a member of the country’s apex court.

Ugandan court guts anti-porn laws women say oppress, rather than protect, them

• 20 August 2021
• Carmel Rickard

Women’s organisations and several individual women in Uganda have challenged key parts of the country’s 2014 laws intended to deal with pornography. They claimed that, far from protecting women, the ‘overbroad’ laws had led to women being assaulted and literally undressed in public by men who claimed their dress was ‘too skimpy’. The constitutional court was unanimous in agreeing to much of the petition and finding the contested provisions unconstitutional.  This decision is particularly interesting since it was responding to an application by a number of women and women’s organisations and yet anti-pornography laws are usually justified by governments on the grounds that they are necessary to protect women and children.

Newly ‘perfected’ death penalty decision shows all is far from perfect on Malawi’s apex court

• 20 August 2021
• Carmel Rickard

It was an amazing glitch: though a majority of Malawi’s highest court was seen to have declared the death penalty unconstitutional in a decision delivered late April, the court now says this isn’t so. According to a ‘perfected’ version of the judgment, published this week, the lead writer of the April decision was expressing his own views on the death penalty, not those of his colleagues. In terms of explanations given by other members of the court in the new ‘perfected’ judgment, the lead writer was supposed to have expressed the majority view on the narrow question of whether the convicted prisoner whose appeal the court was considering, was entitled to a sentence re-hearing. Instead, however, he delivered a decision that was much more wide-ranging and committed the majority to a view it had not reached.

Justice for Memory

• 13 August 2021
• Carmel Rickard

Reports from Zimbabwe that a 14-year-old girl, Memory Machaya, died giving birth last month have inflamed social media in that country. Memory, whose family is part of an indigenous apostolic sect, was ‘married’ at 13 after her family forced her to leave school. She was buried within hours of her death, without any official investigation. There are now calls for urgent action by police and for government to speed up changes to the legal minimal age for marriage to reflect a decision, delivered five years ago by the constitutional court, stipulating that neither boys nor girls may marry before they are 18.

Strong human rights judgment for prisoners in Lesotho

• 13 August 2021
• Carmel Rickard

In an important human rights judgment, the high court of Lesotho has held that a former army commander, Tlali Kamoli, now a prisoner, refused bail and standing trial for murder and attempted murder, may attend the funeral of his son who died recently. The decision is important because Chief Justice Sakoane Sakoane, who wrote the decision, stressed the principle that the human rights of prisoners had to be taken into account in making such a decision - and in fact did so in his judgment. He also criticised the commissioner of Lesotho’s correctional services for the obstructing role he played in the matter of Kamoli attending the funeral. And while it became clear from the argument on behalf of the commissioner that he had assumed Kamoli would have to attend the funeral in chains and leg irons, the court made it clear that such treatment infringed a prisoner's right to dignity, among other rights.

CONSTITUTIONAL COURT RULES THAT MARRIAGES OF BLACK WOMEN MARRIED IN TERMS OF SECTION 22(6) OF THE BLACK ADMINISTRATION ACT 38 OF 1927 ARE AUTOMATICALLY IN COMMUNITY OF PROPERTY

• 10 August 2021
• <a href="/users/fasken">1069</a>

Historically marriages of black people were regulated exclusively by the Black Administration Act, 38 of 1927 (“BAA”). In terms of section 22(6) of the BAA, the default position for black couples was that their marriages were automatically out of community of property. This section was repealed by the Marriage and Matrimonial Property Law Amendment Act, 3 of 1998 (“Amendment Act”),  which deleted section 22(6) of the BAA and inserted of section 21(2)(a) and 25(3) into the Matrimonial Property Act 88 of 1984 (“MPA”) which provided black couples that were married under section 22(6) of the BAA with an “opportunity” to change their matrimonial property regimes within two years after the commencement of the MPA, from 2 December 1988.

Major new development for law and rights related to African refugees, migrants

• 6 August 2021
• Carmel Rickard

A new ‘centre of excellence’, focused on law that deals with refugees and migrants in Africa, was announced this week. Based at the University of Cape Town, the project has three major backers: the UNHCR (the UN’s refugee agency), the International Association of Refugee and Migration Judges and the Judicial Institute for Africa. Among its chief objects, the project will focus on university-certified training in refugee and migrant law for judges, magistrates and others working with refugees in Africa. It will also provide an immediately accessible, constantly updated database of relevant decisions, legislation and policy documents from around Africa that can be used by judges and magistrates as well as lawyers working with refugee and migrant clients, policy-makers and others.

Courts consider litigation by deaf drivers, TV viewers

• 6 August 2021
• Carmel Rickard

The rights of deaf people have been considered by the courts in two recent decisions, one in Zambia and the other in the UK. In the first, the applicants challenged Zambian provisions in terms of which deaf drivers are not entitled to driving licences. In the second, a deaf woman claimed the UK government discriminated against her and others in her position by not providing a British Sign Language interpreter for government live briefings to the public about Covid-19.

Uganda prepares for new law on ‘human sacrifice’: here’s what a case of ‘human sacrifice’ looks like

• 6 August 2021
• Carmel Rickard

Uganda’s President Yoweri Museveni has just signed a long-anticipated piece of legislation into law. The new legislation, aimed to deal with ‘human sacrifice’, was originally introduced as a private member’s Bill but won widespread support in parliament. Among other tough provisions, the new law prescribes life imprisonment for anyone found to unlawfully possess human body parts as well as ‘instruments associated with human sacrifice’. As the law becomes part of the state’s options for dealing with cases like this, a recent decision of Uganda’s court of appeal, involving just such a matter, brings home the horror it involves.

Court finds Kenya’s new tax law unconstitutional; calls government’s ‘vaccine’ for ‘virus’ of non- tax payments, ‘inappropriate’

• 30 September 2021
• Carmel Rickard

Kenya’s high court has declared a controversial new tax law unconstitutional. The proposed new law would have seen taxpayers paying tax on gross turnover when they declared a loss or not enough profit to be billed for income tax. The government wanted the new law providing for a minimum tax to help state finances after Covid-19’s incursions on the fiscus. The decision is to go on appeal, but in the meantime the new tax cannot be levied.

Not all a bed of roses in Kenya’s flower export industry

• 17 September 2021
• Carmel Rickard

A newcomer to Kenya’s trade union scene has been trying to have a more established trade union elbowed out of the way by the high court. The Kenya Export, Floriculture, Horticulture and Allied Workers Union says it should be the only union recognised by management. As a result, it said, the court should order that the cabinet secretary for labour must approve no further collective bargaining agreements related to floriculture and horticulture between the employer association and the established union.

Election case thrown out over advocate's expired practice certificate

• 17 September 2021
• Carmel Rickard

When is an advocate not an advocate? The question has been raised in an application heard by the high court, Uganda, in a dispute related to elections held in that country earlier this year. The advocate concerned had commissioned an affidavit that formed the basis of the litigation, but the other side questioned whether the advocate was entitled to do so. It all came down to whether the advocate had renewed her annual practice certificate in time. If not, would the affidavit – and thus the petition – be valid?

Namibia’s apex court ‘seriously censures’ police officers for malicious arrest and acting as though ‘beyond any level of accountability’

• 10 September 2021
• Carmel Rickard

Namibia’s highest court has sternly reproved elements of the country’s police service for seriously abusing their power and acting ‘as if they were beyond any level of accountability’. In its official summary of the case, the supreme court wrote that the ‘highhanded conduct of the police officers called for serious censure by this court.’ The case concerns Bernhardt Lazarus who runs a bar in Windhoek and who was terrorised by some members of the police who repeatedly arrested him, without warrant or cause.

Uganda’s anti-corruption court sentences international gold scammers

• 10 September 2021
• Carmel Rickard

Uganda’s anti-corruption court has been hearing an incredible story about a gang of scammers, headed by Lawrence Lual Malong of South Sudan, a high-living playboy, sometimes photographed lying in pools of US dollars and wearing shoes, clothes and watches worth a fortune. Malong and two co-accused were convicted of fraud in that they extracted huge sums from two Ethiopian businessmen, living in South Africa, for gold that did not exist. Malong has been named in a variety of articles and reports including one from movie star and activist George Clooney’s anti-corruption outfit, The Sentry. A 2016 report by The Sentry, “War Crimes Shouldn’t Pay”, says Malong junior creates the impression of having ‘immense wealth’, and as benefitting from close family connections to the enormously rich and powerful in South Sudan.

Apologising for delay, Sierra Leone’s highest court says appeal ‘beggars belief’ because based on ‘unsigned and undated’ documents

• 3 September 2021
• Carmel Rickard

The highest court in Sierra Leone has dismissed an appeal by the losing candidate in an election for chieftaincy. The appeal was, however, based on provisions that only came into legal operation after the disputed election. Not just that, the provisions were also never shown to any witness nor, until they were attached as annexures in counsel’s final written address, were they even available to the court itself. The supreme court found that the grounds for appeal were so weak that, if leave to appeal had had to be obtained, it would never have been granted in this case. In fact, it was a good example of why there should not be an automatic right of appeal to the apex court, said the judges.

Uganda’s ‘forest people’ win judgment over land dispossession for gorilla parks

• 3 September 2021
• Carmel Rickard

A little-known Ugandan tribe, evicted from their ancestral lands to make way for three internationally famous national parks that are home to endangered gorillas, have won an important legal victory. The constitutional court of Uganda has held they must be helped and compensated for the loss of their lands. The Batwa people lived in the forests that are now known as the Mgahinga Gorilla National Park, the Bwindi Impenetrable National Park and the Echuva Central Forest Reserve. When they were evicted for the formal proclamation of these reserves, however, they were not paid proper compensation and live under what the court called appalling conditions. The exact extent and nature of the ‘affirmative action’ that the state must now take to improve the condition of the Batwa is to be decided by the high court after hearing proper evidence on what is needed.

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

• 22 October 2021
• Carmel Rickard

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.

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

• 22 October 2021
• Carmel Rickard

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.

Malawi paralegal investigation given go-ahead by court

• 15 October 2021
• Carmel Rickard

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’.

Fairness at divorce

• 15 October 2021
• Carmel Rickard

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.

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

• 8 October 2021
• Carmel Rickard

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

• 8 October 2021
• Carmel Rickard

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

• 2 October 2021
• Mariya Badeva-Bright

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.

Doing well, but could do better: the judiciary and technology in Africa

• 1 October 2021
• Carmel Rickard

The theme of the 2021 Southern African Chief Justices’ Forum conference was ‘The judiciary and technology in Africa’. As readers might expect, there was considerable focus on the switch, in many jurisdictions, to virtual court hearings because of Covid-19. But that’s not all that was on the agenda.

Transgender victim of police unlawful arrest and assault awarded damages

• 19 November 2021
• Carmel Rickard

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.

Judge concerned about 'overcriminalisation' of teenage sex

• 19 November 2021
• Carmel Rickard

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.

Namibian government to appeal in gay fathers' surrogacy case

• 12 November 2021
• Carmel Rickard

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.

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

• 12 November 2021
• Carmel Rickard

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.

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

• 12 November 2021
• Carmel Rickard

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’.

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

• 5 November 2021
• Thandeka Chauke|Tshegofatso Mothapo

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

• 5 November 2021
• Emmanuelle Mitte

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.

The Community Land Act in Kenya Opportunities and Challenges for Communities

• 15 December 2021
• AfricanLII

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

• 13 December 2021
• Carmel Rickard

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

• 11 December 2021
• Carmel Rickard

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

• 3 December 2021
• Carmel Rickard

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.

Outcry over rape decisions by Namibian magistrate

• 3 December 2021
• Carmel Rickard

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.

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

• 3 December 2021
• Carmel Rickard

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.