Articles - 2022

All years

January 2022

Controversial South African advocate barred by Lesotho CJ from prosecuting treason, murder case
Controversial South African advocate barred by Lesotho CJ from prosecuting treason, murder case

Controversial advocate, Shaun Abrahams, forced from his top prosecution job in South Africa, has been hauled over the coals by Lesotho’s Chief Justice Sakoane Sakoane for his behaviour in a bitterly contested trial, and has been barred from further participation in the matter. Since he was dropped as the national prosecuting boss in SA, Abrahams has also had a not very successful stint prosecuting in Botswana. He was brought in to help the prosecuting authorities in Lesotho with a series of high-profile, politically sensitive murder and treason cases.

Dismissal of staffer who refused Covid-19 vaccine ruled ‘fair’
Dismissal of staffer who refused Covid-19 vaccine ruled ‘fair’

Is mandatory workplace vaccination constitutional? Is it even a fair workplace practice? These are questions being asked in many jurisdictions as employers try to ensure safe work environments. The issue is also beginning to filter into the court system, as those who do not want to be vaccinated challenge employers who have made vaccination mandatory. In what seems to be the first such case to reach the Commission for Conciliation, Mediation and Arbitration (CCMA) in South Africa, the commissioner hearing the matter has decided that the company concerned did not act unfairly in dismissing an employee who refused to be vaccinated.

Gay 'spouses' case: Namibia's high court urges supreme court to change its mind
Gay 'spouses' case: Namibia's high court urges supreme court to change its mind

In a most unusual judgment, a full bench of Namibia’s high court has spelled out its strong disagreement with a decision made 21 years ago by that country’s highest court – and has urged the presently constituted Supreme Court to reconsider its views on the matter. The case, crucial for the country’s LGB community, and for human rights more broadly, concerned two same-sex couples (both couples involved one Namibian and one non-Namibian partner) ranged against the immigration authorities. The majority in a 2001 supreme court judgment had held that same-sex relationships were deliberately not recognised by the constitution, but the high court has now said while it was bound by this decision, it could not agree with it, and urged that the Supreme Court reconsider the matter.

The tale of an elephant in the room, by the supreme court of Seychelles
The tale of an elephant in the room, by the supreme court of Seychelles

What does the tale of an on-again, off-again, children’s day-care centre in Seychelles have to say to readers from other legal jurisdictions? The case is apparently about how a court might approach what seems to be a valid lease that the government appears desperate to cancel. While that sounds unexceptional, here’s the catch: there are suggestions that the original deal to award the lease might have been finalised as a political favour and the government, caught out by the opposition, wanted to renege on the deal so as not to appear corrupt. Against this strained background, the judgment looks at what a court is to do about a valid lease and the government’s stratagems to have it cancelled.

February 2022

Citing separation of powers, Lesotho court refuses to order that national assembly vote on no confidence debate by secret ballot
Citing separation of powers, Lesotho court refuses to order that national assembly vote on no confidence debate by secret ballot

Attempts by two MPs to bypass an investigation into possibly holding secret ballots in the Lesotho National Assembly have come unstuck: the High Court has rejected an application by the duo for the court to order that a no confidence ballot against the Prime Minister be held by secret ballot, saying this had to be decided by the assembly itself. The court also took the opportunity to restate the boundaries between the executive, legislature and judiciary, and to urge ‘political honesty’ from MPs, saying ‘political morality is the hygiene that is needed to embed and sustain citizens’ faith’ in Lesotho’s ‘young democracy’.

Court orders unusually high damages for defamatory allegations made against Namibia’s First Lady

An opposition political party figure in Namibia has been found to have defamed the wife of the President, Hage Geingob, and was ordered to pay damages at a very significant level to First Lady, Monica Geingos. The high court found that Abed-Nego Hishoono had actually intended to target Geingob with his defamatory social media claims and that Hishoono’s claims that he merely repeated rumours already circulating about Geingos did not lessen the seriousness of his actions.

Kenyan court rules presidential power to hold under-age offenders in prison indefinitely is unconstitutional, orders prisoner released at once
Kenyan court rules presidential power to hold under-age offenders in prison indefinitely is unconstitutional, orders prisoner released at once

A Kenyan high court has declared that rights given to the head of government to detain certain convicted prisoners ‘at the pleasure of the president’ are unconstitutional. This is because the court found these powers usurp the power of the courts. But the case was not just a theoretical exercise; it concerned a very real matter in which a prisoner, convicted of a crime that attracted the death penalty at the time, was sentenced to jail ‘at the pleasure of the president’ because he was under age. That was well over 16 years ago. Now the man, known only by his initials, ‘JMR’, can no longer be held in what amounts to indefinite imprisonment, and must be released immediately, said the court.

Wildlife vs cattle: unauthorised newcomers cause tensions in Namibian conservation areas
Wildlife vs cattle: unauthorised newcomers cause tensions in Namibian conservation areas

Land is a major source of tension and dissatisfaction in Namibia and the courts are increasingly asked to step in when communities feel they are being ‘invaded’ by outsiders whose livestock put unbearable pressure on already scarce grazing resources. The latest such case involves a community trying to reinvent itself as a base for wildlife tourism: members of this community asked the court to order the removal of a number of families, with their livestock. They claim these outsiders and their animals are living on and grazing areas set aside for community wildlife conservation projects.

Innovative Kenyan judgment on Presidential inaction should be studied by other jurisdictions - Justice Mathilda Twomey
Innovative Kenyan judgment on Presidential inaction should be studied by other jurisdictions - Justice Mathilda Twomey

The decision of a Kenyan judge has won high praise from trainers at a recent judicial core skills workshop by the Judicial Institute for Africa (JIFA), held in Cape Town and attended by judges from 12 African countries. The decision, by high court judge Enoch Mwita, dealt with a situation in which the President of the country, Uhuru Kenyatta, was held to have ignored the constitution by failing to appoint a member of the Judicial Service Commission. Justice Mohamed Warsame was elected by the judges of the Court of Appeal as their representative on the JSC, but Kenyatta did not officially appoint Justice Warsame even though he was obliged to do so by the constitution. What should be the court’s response, faced with the President’s continuing failure to act in terms of the constitution and appoint the commissioner? Judge Mwita’s decision, to ‘deem’ that Justice Warsame was appointed to the JSC, was highly praised by trainer Justice Mathilda Twomey, former Chief Justice of Seychelles and JIFA’s academic director. She said the deeming decision was recognition that new judicial tools need to be designed to fit circumstances in which the executive refuses to obey and enforce court orders.

Registration of a child’s birth: Unmarried fathers no longer treated differently from married fathers
Registration of a child’s birth: Unmarried fathers no longer treated differently from married fathers

On 22 September 2021, the Constitutional Court handed down a judgment in the case of  Centre for Child Law v Director General: Department of Home Affairs and Others [2021] ZACC 31 ; the judgment found section 10 of the Births and Deaths Registration Act 51 of 1992 (the "Act"), to be invalid in its entirety, and consequently severed it from the Act, along with the wording in section 9(2) which subjected that provision to section 10.

Training Tanzania’s judiciary on gender issues - the struggle, and the partial success
Training Tanzania’s judiciary on gender issues - the struggle, and the partial success

Training of judges and magistrates is an accepted tool to deal with built-in opinions and prejudices. In the same way, training can also be crucial in highlighting inaccurate preconceptions about gender issues. In her chapter forming part of the new work,  Gender, Judging and the Courts in Africa , Juliana Masabo (a Tanzanian high court judge and former academic) takes readers through the difficulties in ensuring training for judges, magistrates and others who play a role in the court processes of Tanzania.

Wiser to restrain ongoing activity than risk irreparable damage to the environment – Zambian judge
Wiser to restrain ongoing activity than risk irreparable damage to the environment – Zambian judge

Two Tanzanian-owned entities operating on the edge of a significant national park in Zambia, have been ordered to stop cutting down trees, clearing vegetation or putting up constructions at least until the dispute between them and the trust running the reserve is resolved. The judge hearing the application for an interim order against the two entities said that the status quo ‘should not be maintained. It would be wiser to restrain ongoing activity rather than risk irreparable damage to the environment.’

March 2022

Problems over legal standing to claim N$4billion plus world-famed game reserve for Namibian ethnic group
Problems over legal standing to claim N$4billion plus world-famed game reserve for Namibian ethnic group

Legal efforts by several members of a Namibian ethnic group to prepare for litigation contesting ownership rights to one of the world’s best known game reserves, the Etosha National Park, have met with mixed results at the country’s supreme court. Eight members of the Hai||om said that the park was originally the group’s ancestral land but that the Hai||om had been dispossessed before Namibian independence. The post-independence Windhoek government had further neglected the needs of the Hai||om and had not acted to correct historic wrongs. Now the eight wanted the highest court to rule on the plan they had devised to give themselves standing to run a vast land claims case, given that Namibian law does not permit class actions. The supreme court said it disagreed with the narrow approach taken by the high court. While it, like the high court, dismissed the plan put forward by the eight, it noted a couple of other options available to them if they wanted to go ahead with their litigation.

Major court victory against ‘deadly air’ in South Africa’s most polluted region
Major court victory against ‘deadly air’ in South Africa’s most polluted region

One of the most important recent South African judgments on environmental law has delivered by the high court in Gauteng province. The case concerns a region of SA where high levels of air pollution risk the health of all the people living there. This is well-known to the government, but very little has been done about it. Now, environmental organisations have challenged the government’s inertia, and have won a major victory, with the court declaring that constitutional rights were breached by the failure to act. The court has also given the minister of environmental affairs a strict deadline to produce effective regulations for managing the problem of air pollution.

Report shows proportion of women judges varies strongly

A report by the United Nations’ Special Rapporteur women judges and prosecutors finds that the proportion of women on the bench varies a great deal from one country to another, and that in some jurisdictions women, if they are in fact appointed to the bench, serve on family or juvenile courts, rather than on commercial or criminal courts, where the bench tends to be reserved for male judges. The report makes a number of recommendations about how to improve the current situation.

Violence against women: on International Women’s Day, 2022, consider these two cases
Violence against women: on International Women’s Day, 2022, consider these two cases

Two random, recent cases from Namibia answer the question why there is the need for an annual marking of women’s day round the world. Both show how the vulnerability of girls and women make them easy targets for violence. And how, at crucial moments when they face the most danger, they may be completely deserted and left alone with their attackers.

Consider tax payer loss when deciding on bail in white-collar crime appeals – Uganda Supreme Court
Consider tax payer loss when deciding on bail in white-collar crime appeals – Uganda Supreme Court

Employees of a country’s tax collector represent a potential weak point for any revenue authority. South African police announced at the end of February that two staffers of the SA Revenue Service had been arrested after they allegedly demanded R150 000 from a tax payer. The money was to cancel an outstanding tax bill. It’s a problem repeated almost every year, with SA officials arrested over similar allegations, often having taken bribes to make a taxpayer’s problems ‘go away’. And with most countries in the region reporting cases of alleged involvement by revenue collection staff, it’s clearly not a problem peculiar to SA. One of the most recent judgments dealing with such an issue comes from Uganda where the Supreme Court was asked to authorise the grant of bail to two Uganda Revenue Authority (URA) staffers, convicted of causing financial loss to the fiscus, and of other offences under the Anti-Corruption Act.

Once-powerful Malawian political figure ‘lied’ to court in divorce settlement case – senior magistrate
Once-powerful Malawian political figure ‘lied’ to court in divorce settlement case – senior magistrate

Nicholas Dausi has had a full and chequered career as a political figure in Malawi. He’s held significant positions under the governments of Bingu and Peter Mutharika, for example, becoming head of intelligence services as well as an MP. But nothing will have been as challenging as his court battle with V, his now-divorced wife. In theory, she is someone who should cause Dausi no problems: since their divorce in December 2021, she lives a completely separate life and earns a small salary as a shop assistant. But when V brought an application to the principal resident magistrate’s court for distribution of matrimonial property acquired while they were wed, things changed very quickly.

April 2022

International Child Abduction
Judge orders at least two years of state-funded therapy for 10-year-old raped by her uncle
Judge orders at least two years of state-funded therapy for 10-year-old raped by her uncle

A South African judge has ordered that a child, raped by a close family member, must be provided with state-funded counselling for at least two years to help her recover from the trauma of the sexual attacks. Further sessions may be added at the end of the two years, depending on whether the child needs more help at that stage. Despite an epidemic of child and adult rape in South Africa, such an order, made in this case as part of judgment on sentence, is extremely rare.

Key rulings have major implications for lawyers
Key rulings have major implications for lawyers

Two recent decisions from the courts in Zambia have serious implications for lawyers. In one, the appeal court rescued legal practitioners from a decision of the high court that found lawyers in private practice weren’t allowed to accept full-time employment. In the other, the appeal court had strong words for lawyers representing clients on trial for criminal offences: they should be sure that fee arrangements were recorded in writing and that there was genuine negotiation between the two sides over what would be charged.

African Commission finds judicial dismissal by Eswatini violated African Charter on Human and Peoples' Rights
African Commission finds judicial dismissal by Eswatini violated African Charter on Human and Peoples' Rights

Since 2011, Thomas Masuku has been in a kind of judicial limbo following a decision by the authorities in Eswatini to remove him from office as a judge. He was, however, welcomed with open arms in Namibia, where he serves on the high court bench. Now, in an extraordinary development, the African Commission on Human and Peoples’ Rights has found that his removal from office by Eswatini violated key articles of the African Charter. The commission has also urged that the government of Eswatini compensate Masuku for the violation of these rights and that it take other steps to amend the situation.

One case, two high court judgments: Namibian supreme court concern about ‘grave irregularity’
One case, two high court judgments: Namibian supreme court concern about ‘grave irregularity’

The supreme court in Namibia was busy preparing a written judgment in a rape case appeal when it discovered something was very wrong. Unknown to it at the time the case was argued, there had actually been two high court decisions on the same matter. The first of the two had refused leave to appeal as part of an unsuccessful application for condonation of late filing, with the court holding there were no prospects of success on appeal. Three months later, the same applicant had brought another application, for appeal. This time the court found there were indeed prospects of success on appeal and gave leave for the matter to be heard at the supreme court. What made the conflict between these two high court decisions even more remarkable was that one of the two judges in the first decision also sat in the second application and in fact wrote the judgment that, this time, came to a completely different conclusion from what had been found in the initial decision. Now the supreme court has decided that the second application to the high court was wrongly brought and that it amounted to a ‘grave irregularity’ for the second high court to overrule the order given by the high court the first time round. Making the story even more controversial is the fact that the convicted man, Vincent Likoro, was appointed as to a high-level ‘think tank’ of the ruling Swapo party after his rape conviction, a decision that was stoutly defended by a top Swapo official at the time.

Reproductive rights win in Botswana after woman’s nightmare hysterectomy experience at hands of state healthcare providers
Reproductive rights win in Botswana after woman’s nightmare hysterectomy experience at hands of state healthcare providers

Women’s reproductive rights include more than access to safe, affordable abortion and contraceptives. These rights are also about proper state care for any associated surgical procedure, for example, along with state obligations not to deny access to services that only women require, and to ensure the good quality of such services. The high court in Gaborone, Botswana, has just delivered an important decision related to this question, holding the state accountable for the shoddy treatment of a women who underwent a hysterectomy. Her treatment, both during the operation and afterwards, has caused serious physical and mental problems. The court found there was medical negligence and lack of proper post-operative care and, with some strongly-worded criticism of the way she was treated, awarded her P400 000.

Judgment highlights ambiguity of abortion provision in Kenya’s constitution
Judgment highlights ambiguity of abortion provision in Kenya’s constitution

In a judgment already welcomed by many, but likely to prove hugely controversial, the high court in Kenya has decided a constitutional petition centred on the question of whether – and under what circumstances – abortion is lawful in that country. The case involved a teenage girl who presented herself to a health centre because she was experiencing pregnancy ‘complications’. Diagnosing a partial abortion, the clinical officer completed the abortion, but both the patient and the clinic officer were subsequently arrested and charged. They later brought a wide-ranging petition to the high court contesting the lawfulness of the action taken against them. In his decision, Judge Reuben Nyakundi said that it was a woman’s right to access a safe abortion and that legal action taken against the girl and the clinical officer was ‘marked with irregularities from the outset’. However, the case once again illustrates a problem, stressed a few years ago in another high court constitutional petition on abortion: the constitution’s provision on abortion is ambiguous, and no guidelines or legislation are in place to clarify under what conditions an abortion would be legal. As a result, both the women who might seek an abortion, and the doctors or clinical officers who could offer the procedure, are unsure about what is allowed. The situation is so uncertain that a woman could be arrested and charged even if the abortion was spontaneous rather than procured, while a doctor or clinical officer could also be charged even if they are merely attending to the aftermath of an abortion.

Concerns over climate change stalemate court decision on UK financial support to Mozambique
Concerns over climate change stalemate court decision on UK financial support to Mozambique

A major decision by a senior UK court has split down the middle on whether that country should be financially backing a massive liquefied natural gas discovery in Mozambique. The case revolved around environmental questions and the climate change undertakings reached in terms of the 2015 Paris agreement. The Mozambique gas field is exceptionally rich and has the potential to catapult that country onto the list of the top five global suppliers of a growing international demand.

Dispute over Facebook post brings major free speech decision by Eswatini high court
Dispute over Facebook post brings major free speech decision by Eswatini high court

The case of an airline accountant who posted a comment on his Facebook page that his employers have interpreted as being critical of the Eswatini government and the system of governance it operates has given the high court the opening to make an unusually strong defence of free expression. In his FB post, made at the time criticism over the government purchase of a number of luxury vehicles was making headlines, the accountant, Godfrey Exalto, included the word, ‘dictatorship’. His bosses said that by doing so he was bringing the airline company into ‘gross disrespect’.

May 2022

Amnesty International death penalty report: a time for judges to reflect
Amnesty International death penalty report: a time for judges to reflect

In prisons across Africa, many thousands of prisoners sit on death row, uncertain whether they will be allowed to live. But as the numbers of condemned prisoners climb, with an estimated 5 843 awaiting execution in prisons all over Africa, debate over the death penalty is also growing. The newest report from Amnesty International, released this week, shows some stark contrasts. While, for example, Botswana is often considered to be a country that respects human rights, it is the only state south of the Sahara to have carried out executions (three in 2021, the year considered by Amnesty’s latest report). And while Kenya and Malawi have seen vigorous judicial discussion about mandatory death sentences, in Nigeria at least 3 036 people are imprisoned under the death sentence, one of the highest numbers recorded for any nation, worldwide.

Lesotho’s CJ fights back after apex court’s critical judgment
Lesotho’s CJ fights back after apex court’s critical judgment

The Chief Justice of Lesotho, Sakoane Sakoane, has reacted sharply to a judgment by the country’s appeal court that found he ought to have recused himself from presiding in a major treason and murder trial. The court found that the prosecution’s claim to have a reasonable apprehension of bias by the CJ was well founded, and ordered that another judge take over the trial. But in reaction, the CJ has questioned whether ‘foreign’ judges ought any longer to preside over cases heard in Lesotho. He has also raised questions over the legality of part of the appeal court’s order.

Lesotho CJ ‘wrong’ to punish lead counsel in high profile murder, treason case – appeal court
Lesotho CJ ‘wrong’ to punish lead counsel in high profile murder, treason case – appeal court

A new decision from Lesotho’s highest court has made some uncomfortable findings about the country’s Chief Justice, Sakoane Sakoane. Three judges from outside Lesotho, brought in to hear the matter to ensure there could be no allegations of partiality given those involved, found that the Director of Public Prosecutions was not unreasonable in her apprehension of bias on the part of the CJ. The judges also found he had wrongly ‘punished’ controversial advocate Shaun Abrahams, lead counsel in the trial over which the CJ was to preside, both by finding that he had acted improperly, and by imposing a punishment not prescribed by the law. The high-profile trial, involving charges of murder and treason, must now continue before another judge.

Judges recall when their lives were threatened during contentious legal challenge in Malawi
Judges recall when their lives were threatened during contentious legal challenge in Malawi

Two participants at a human rights training course for judges from 11 African countries, held in Cape Town mid-May, have first-hand experience of what making a bold human rights decision may sometimes demand. Judges Michael Tembo and Redson Kapindu were both on the bench, part of a five-judge panel in what they say was, without doubt, the most significant case in Malawi’s history. It was a case that left them physically shaken and traumatised, but all the wiser from the experience and more determined than ever to live up to the demands of their judicial oath of office. Pictured in their bulletproof vests are (left to right) Justice Dingiswayo Madise, Justice Ivy Kamanga, Justice Healey Potani, Justice Michael Tembo and Justice Redson Kapindu.

Another ‘No’ for Eswatini’s LGBTI community
Another ‘No’ for Eswatini’s LGBTI community

A new judgment from Eswatini’s high court effectively supports a decision by the registrar of companies who refused to register an association called Eswatini Sexual and Gender Minorities. Two judges of the three-court bench held that the registrar’s decision had been properly made. In a dissenting decision, the third judge approached the question very differently. He found that in terms of the law, the registrar of companies should have taken the decision whether to register the association, but that the ministry of commerce and industry made the decision instead. As this was a misuse of administrative power, the decision should be set aside and the registration of the association should be allowed. But there was a glimmer of light for Eswatini’s sexual minorities: despite its conclusion on the registration issue, the court’s majority wrote that members of the LGBTI community had ‘a right to life, liberty, privacy or dignity’ among other rights.

State of the judiciary: new report on Malawi, Namibia, South Africa
State of the judiciary: new report on Malawi, Namibia, South Africa

For many judges it will come as a relief to hear some good news for once, in the form of largely positive public perception about the judiciary and its role in society. The good news emerges from a just-published report on the state of the judiciary in Malawi, Namibia and South Africa. Every member of the bench in those three countries will be only too well aware of the short-comings of their own judicial system, exacerbated by the restrictions imposed by the Covid pandemic, among a number of other problems. But the three-part report by the Democratic Governance and Rights Unit of the University of Cape Town’s law school found generally positive views by court users about how judges in these jurisdictions are doing their work. Another key finding is that perceptions of corruption in the court are significantly lower in the closely-targeted court user surveys, than had been found in opinion surveys of the general public.

June 2022

Eswatini supreme court calls delayed trial ‘a form of torture’
Eswatini supreme court calls delayed trial ‘a form of torture’

Eswatini’s highest court has strongly criticised that country’s prosecution service for how long it took to bring a murder case to trial. Writing a review judgment in that case, the court called the 13 years it took to begin the trial ‘a form of torture’ for the accused in the matter, adding that the delays were unconstitutional. A full bench of the supreme court confirmed the revised 23-year sentence imposed on appeal, adding that if the question of the prosecution’s delays had been raised during the hearing of the review, it could have ‘seriously considered’ reducing the sentence by at least five years.

Nigeria’s top judges in public spat over disputed benefits - CJ says it's 'dancing naked in the market place'
Nigeria’s top judges in public spat over disputed benefits - CJ says it's 'dancing naked in the market place'

Members of Nigeria’s apex court have come out strongly against the leader of the country’s judiciary, Tanko Muhammad. In the first letter of its kind, they have written to him, as Chief Justice of Nigeria to complain about a variety of issues related to conditions at court as well as conditions under which the judges operate. They moan about a memo informing them that electricity will operate at court only between 8 and 4 due to a diesel shortage, about amended court rules that have not been finalised, and about not being able to take ‘accompanying persons, due to age’ when they travel for training. The CJN in turn has responded with a statement that, by implication, criticises the judges for their initial letter, saying it amounted to ‘dancing naked in the market square’. In the letter he makes assurances, however, that everyone at court is getting on with their work and doing their normal duty.

Impact on asylum seekers of South Africa’s tardy officialdom

For many reasons, South Africa is not an easy place to seek asylum, and new research by human rights lawyer Jacob van Garderen highlights some of the difficulties faced by asylum seekers as well as other migrants. Among the worst issues he found were ongoing problems over access to safe housing, difficulties around documentation because of a government system that doesn’t appear to be working – and the ever present threat of xenophobia.

Desperate Afghan judges ask UK high court for review of government’s refusal to allow them entry

The alarming case of two Afghan judges, refused entry into the UK after the Taliban took over Afghanistan, is instructive. The two face the very real possibility that they will be found and executed by the Taliban, and yet the UK government has flatly refused to allow them in. Among other things, this illustrates how vulnerable judges, as a group, sometimes are, persecuted precisely for the work that they do as judges. When they seek asylum, it is difficult to say that they are simply ‘making things up’, an accusation often levelled at other would-be refugees. At the same time, however, the case shows how incredibly difficult it must be for ordinary people to gain legal entry into a country as asylum-seekers, if even judges, clearly committed to promoting the rule of law, are turned down.

What about the children?
What about the children?

This year, World Refugee Day focuses particularly on the right of displaced people to be safe. But what does that mean for children? Laura Buffoni, senior community-based protection officer of the UNHCR’s regional bureau for Southern Africa, sat down for an interview with Justice in Africa to share some ideas and information with readers, starting with this statistic: globally, as well as in this region, women and children make up some 80% of the displaced population.

Don’t trade people fleeing war ‘like commodities’ – UNHCR
Don’t trade people fleeing war ‘like commodities’ – UNHCR

The UN High Commission for Refugees has issued a strongly-worded statement condemning attempts by the UK government to fly asylum-seekers to Rwanda. And while the UK courts have rejected attempts to halt the flights, the European Court of Human Rights has unexpectedly intervened to halt the first scheduled removal of asylum-seekers at least until July. The result has been to raise the international profile of the dangers and difficulties involved in asylum-seeking.

Asylum-seekers should be dealt with under refugee law, says Kenyan court – not under immigration legislation
Asylum-seekers should be dealt with under refugee law, says Kenyan court – not under immigration legislation

The Kenyan courts regularly hear cases related to people claiming to be asylum-seekers. The latest, decided three months ago, led to a judgment pointing out that the men at the heart of the matter, flagged for deportation, had the right to access Kenya’s elaborate new system designed to inquire into the validity of someone’s claim for refugee status. The two men were convicted of being illegally in Kenya and were to have been deported once they had served their term of imprisonment. Judge Joseph Kamau, however, set aside their conviction and sentence and ruled they were to be handed over to the Department of Refugee Affairs immediately for processing as asylum seekers.

Jifa in talks for proposed new African association of judicial training organisations
Jifa in talks for proposed new African association of judicial training organisations

Jifa (the Judicial Institute for Africa) has for some time been aware of the need to establish an African association of judicial training organisations, and co-hosted a three-day meeting in Dakar, Senegal, earlier this month to investigate the possibility. A group of anglophone and francophone training institute directors and representatives attended. Jifa director, Vanja Karth, said afterwards that the meeting, sponsored by the German development agency, GIZ, had been a great success and led to the group (pictured) formulating the ‘Dakar Declaration’. This declaration 'concretised the shared vision of an African body, and committed the parties to a validation meeting in November.’

Zambian high court scraps lawyer from the roll of practitioners for dishonesty
Zambian high court scraps lawyer from the roll of practitioners for dishonesty

A Zambian legal practitioner who failed to pay over money from his client intended to settle a bank loan, has been disciplined by the Law Association of Zambia (LAZ) and has now been struck off the roll of practitioners by the high court. This was despite the disgraced lawyer’s claim that his client had settled matters amicably and that there was now no dispute between them. The court held that this did not matter: the court and the LAZ were obliged to investigate the lawyer’s behaviour regardless of whether the original complaint was withdrawn or not.

Malawi high court judge on anti-graft unit’s powers
Malawi high court judge on anti-graft unit’s powers

In a major new decision, the high court in Malawi has clarified a number of issues critical to the country’s criminal justice system. The decision comes in the wake of attempts by a former cabinet minister, Kezzie Msukwa, dismissed because of corruption charges against him, to challenge the basis on which investigations into his alleged wrong-doing were carried out. Among other questions, Msukwa argued that the anti-corruption authorities in Malawi ought not to have made a cooperation arrangement with their counterparts in other states without going through Malawi’s attorney-general, and that the material gathered for use as evidence as a result of that cooperation, ought to be rejected by the court.

Court chides counsel for ‘scurrilous allegation’ against newly-appointed judge
Court chides counsel for ‘scurrilous allegation’ against newly-appointed judge

Counsel for a former presidential adviser on strategy, charged under Malawi’s anti-corruption laws, has come in for a tongue-lashing over the argument he put up in a judicial review application. During the course of the corruption trial so far, the presiding magistrate, Patrick Chirwa (pictured), was appointed as a judge of the high court. Counsel for Chris Banda, the accused, wanted a different magistrate to take over the corruption trial, but the magistrate, now a judge, said he would continue hearing the matter to completion. Counsel suggested this was improper and that the magistrate, now a judge, was refusing to ‘let go’ of the matter as he had a ‘personal interest’ in the case. The high court said it was ‘deeply troubled’ by this suggestion and roundly criticised counsel for this ‘scurrilous allegation’.

Top court delivers major victory for Zimbabwe’s children
Top court delivers major victory for Zimbabwe’s children

A new decision by Zimbabwe’s constitutional court (a separate chamber of the supreme court), has found sections of the criminal law unconstitutional because it completely fails to protect children aged 16 – 18 from sexual exploitation. The judgment also found sections that permit child marriage, involving children under 18, unconstitutional. The new judgment contains a harsh critique of an earlier high court decision that found the criminal law was valid, even though it did not conform to the constitution.

July 2022

Considering the world’s response to human trafficking: the annual report
Considering the world’s response to human trafficking: the annual report

The annual report by the US state department on the efficacy and commitment of the world’s nations to fighting human trafficking is always a moment for reflection. A particular focus of the report this year is the role that should be played by people who have had personal experience of being trafficked. But most of the report, as usual, deals with how different states are shaping up in the struggle to curb trafficking and the particular challenges that they should address in the future.

Top Namibian court slams capital’s municipality over rule of law transgressions
Top Namibian court slams capital’s municipality over rule of law transgressions

Unlawful action by the municipality of Namibia’s capital city, Windhoek, has been slammed by the Supreme Court, whose judges said the municipality’s ‘resort to self-help’ transgressed the country’s commitment to the rule of law. They were deciding an appeal related to the municipality’s actions against Paratus, a licensed telecommunications company that was installing fibre optic cables in the city. The company’s claim – uncontested by the municipality – was that the municipality was harassing Paratus because it wanted to commercialise the network via a partnership with another company, use the new infrastructure without payment, and then operate in opposition to Paratus.

African Court orders Malawi to compensate victim of oppressive pre-democracy laws
African Court orders Malawi to compensate victim of oppressive pre-democracy laws

A judgment of the African Court has brought the promise of justice to a Malawian family, victim of the country’s one-party, undemocratic and often brutal past, and that has been unable to obtain redress through Malawi’s own courts.

Namibia’s apex court confirms new trend in media freedom cases
Namibia’s apex court confirms new trend in media freedom cases

In a new judgment of extraordinary importance for freedom of expression and media freedom in Namibia, that country’s highest court has confirmed the development of the common law to give greater protection to the Namibian media so that, as the court put it, its ‘important democratic role of providing information to the public is not imperilled by the risk of defamation claims.’

Law imposing three-year wait for divorce found unconstitutional by Kenya’s appeal court
Law imposing three-year wait for divorce found unconstitutional by Kenya’s appeal court

With five forms of marriage from which to choose, couples in Kenya could find it easy enough to tie the knot. It might be a different story for some if they want an early divorce, however. That’s because those opting for a civil marriage must wait a minimum of three years before they may start divorce proceedings. Claiming this provision is unconstitutional, a Kenyan advocate has brought legal action to test the three-year limitation. The high court upheld his petition, but the national assembly subsequently appealed and judgment in that appeal has now been delivered.

Major new global research shows judges under stress – and without help to cope
Major new global research shows judges under stress – and without help to cope

A significant new report on judicial well-being has been published by the Global Judicial Integrity Network. It’s the result of a survey involving 758 judges from 102 countries across all parts of the globe. The high response rate is seen as indicating that the topic is one of great interest to judges generally. The report gives important data about the causes of stress among judges and the consequences of that stress; judicial responses to the changes forced by Covid-19, and what could be done to ensure better mental well-being among judges in the future.

African Court orders that Kenya pays reparations to Ogiek people of Mau Forest
African Court orders that Kenya pays reparations to Ogiek people of Mau Forest

One of Kenya’s most vulnerable communities, the Ogiek people of the Mau Forest, have been awarded more than USD 1.3m by the African Court on Human and Peoples’ Rights for breaches of their rights under the African Charter. The court found the breaches were committed by the Kenyan government, which has tried to remove the Ogiek from the forest to allow other undertakings there. According to the Kenyan government, much of its activity in the forest was to protect the local water sources which are of great importance to the rest of the country. The new decision, spelling out the reparations to be undertaken by Kenya, was delivered last week, and follows a judgment in 2017 in which the court found that at least seven separate Charter rights of the Ogiek had been breached by Kenya.

‘Cry-baby’ politician should not have brought party political case to court – judge
‘Cry-baby’ politician should not have brought party political case to court – judge

When Malawian politician Shadrick Namalomba asked for judicial intervention on the question of where he should sit in the national assembly, Judge Mzonde Mvula set him straight. Such issues were not appropriate for the courts to consider, he said. It was clearly an issue related to conflict within the official opposition, and for a variety of reasons, it should never have been brought to court.

August 2022

Malawi court finds against judge’s claim for appeal court seat
Malawi court finds against judge’s claim for appeal court seat

A judge in Malawi has found himself in the unusual position of having to consider a colleague’s complaint, made before him in litigation, that the other judge had been unfairly passed over for appointment to a higher court.

Court ruling poses Lesotho elections dilemma
Court ruling poses Lesotho elections dilemma

Lesotho’s October 7 election date suddenly appears at risk. The date was announced by the country’s Independent Electoral Commission in July, but a new decision of the constitutional court has found that the delimitation of 20 constituencies doesn’t pass constitutional muster, because the range in voter numbers is larger or smaller than the 10% variation constitutionally prescribed. The decision, delivered on August 8, puts the IEC under enormous pressure and it might not be possible to redraw constituencies in time for the elections. This is particularly so since it will not be a question of just adjusting the 20 voter boundaries: tinkering with any boundary will necessarily also affect even those constituencies that are now compliant.

No proof of grade 12 school certificate, so re-election of Zambian former minister declared invalid
No proof of grade 12 school certificate, so re-election of Zambian former minister declared invalid

When President Edgar Lungu lost the elections in Zambia in August 2021, one of the members of his party who was re-elected as an MP was Joseph Malanji, a former foreign minister. But that re-election was disputed by a rival for his seat who claimed Malanji did not meet the criteria because he did not have a grade 12 certificate, a requirement for election. The high court decided that the election was not valid. Malanji then appealed and the constitutional court of Zambia has now given its decision on the matter.

Last minute Kenyan court order overturns ban on manual voters’ register for polls
Last minute Kenyan court order overturns ban on manual voters’ register for polls

Kenya’s high court stepped in, just days before that country’s presidential polls of 9 August, to overturn a decision of Kenya’s Independent Electoral Boundaries Commission, the body that runs elections. The commission had decided to bar the use of printed registers of voters as a backup to the electronic system by which the elections will be run. That decision was contained in a letter that the commission had written to one of the contending parties. The judge found that the decision violated the constitution because some voters could be refused the right to vote if they weren’t identified due to a malfunction of the technology, and declared that the decision, contained in the letter, was null and void.

Kenya’s constitutional court puts job interviews on hold after ads for 600 new posts
Kenya’s constitutional court puts job interviews on hold after ads for 600 new posts

As tensions rise in many African countries over inadequate service delivery and development, Kenya’s Baringo County administration is being asked to explain its advert for 600 new posts. Human rights activist, Isaiah Biwott, has successfully argued that the constitutional court should grant an interim interdict preventing the county from going ahead with interviews for more than 600 new staff. Biwott said that the constitution and other legislation caps the percentage of a county government’s total revenue that may be spent on wages at 45%, and that the county would be way over that limit if the proposed posts were filled. The money should be spent on development instead of an inflated wage bill, he said.

Judges refused appointment suffer ‘unlawful discrimination’ says Kenyan high court
Judges refused appointment suffer ‘unlawful discrimination’ says Kenyan high court

The blunt refusal of Kenya’s President Uhuru Kenyatta to appoint or promote six judges of the more than 40 recommended during 2019 by the Judicial Service Commission, has unleashed a storm of ligitation, with human rights and constitutional groups determined that the law should intervene to give effect to the JSC decision. The latest in that litigation is a petition decided last week by three judges of the high court, after it was brought by a Kenyan doctor, Benjamin Magare. The judges held that certain of Magare’s petitions couldn’t be decided at this stage as they had already been determined by another bench or were up for appeal. It was, however, appropriate to resolve his petition on the question of whether the six nominees were treated differently from the rest of the 40, in a way that amounted to unlawful discrimination. They were indeed unlawfully discriminated against, said the judges, and moreover the six had a legitimate expectation that they would have been appointed, along with the rest of those recommended by the JSC.

September 2022

Ugandan forest dwellers still struggling for compensation, 21 years later, after being forcefully evicted from land given them by Idi Amin
Ugandan forest dwellers still struggling for compensation, 21 years later, after being forcefully evicted from land given them by Idi Amin

The spectre of Uganda’s former president, Idi Amin, hangs over a case involving 2500 forest dwellers who are in continuing dispute over compensation for their eviction from forest land. They have been trying to get satisfaction from the courts since 2001, so far without success, even though the high court made a significant compensation award in 2019. Now the appeal court has refused the attorney general’s application to be allowed to introduce new evidence for the appeal due to be heard against the high court’s order. Turning down the application, the appeal court said it was clear that the AG wanted to use the application to put up evidence which ought to have been produced before the high court, but which wasn’t brought to that court, despite the AG being given ample time and opportunity to do so. One of the noteworthy features of the case is that the validity of the claim hangs at least partly on whether Amin granted the villagers the land from which they were later evicted.

Former minister refused bail pending appeal after conviction, sentence, over theft of laptops destined for poor schools
Former minister refused bail pending appeal after conviction, sentence, over theft of laptops destined for poor schools

A new judgment from the high court in Zimbabwe shows the country struggling with corruption, even at the highest level. But it also highlights a loophole in the law that has seen many people, once convicted and sentenced, apply for bail pending appeal, only to disappear and never hand themselves over, if they lose on appeal.

Congolese woman convicted and sentenced for smuggling immigrants into Namibia
Congolese woman convicted and sentenced for smuggling immigrants into Namibia

A former refugee from Congo has been found guilty on three charges relating to smuggling immigrants into Namibia. Abigail Bashala, who gave the court a list of illnesses with which she is afflicted as part of her evidence in mitigation, took money from desperate people to help them get into Namibia and to travel to Canada, though the flights to Canada never materialised. The court found she was part of a syndicate that preyed on people desperate to escape from war and start a new life.

Convictions overturned after 'merciless' torture finding by Ugandan high court
Convictions overturned after 'merciless' torture finding by Ugandan high court

Elements of the Ugandan state have been found by the high court’s anti-corruption division to have been responsible for brutal torture aimed at extracting confessions from two employees of the Uganda Revenue Authority. Judge Lawrence Gidudu, head of the country’s anti-corruption court, awarded compensation and punitive damages for the torture, but also asked some questions about the handling of the two tortured detainees that the authorities will find uncomfortable and difficult to answer. The judge further ruled that the conviction of the two men be set aside on the basis that no conviction may result in a case where torture has been used to extract a confession.

Non-punishment principle for trafficking victims: here’s how you can help a new research project
Non-punishment principle for trafficking victims: here’s how you can help a new research project

Victims of trafficking are sometimes brought to court themselves, charged with offences they are thought to have committed, even though this may have been in the course of being trafficked. Will you help with research into this problem?

Activist for women’s rights called ‘violent’ because she used local word for vagina on protest placard
Activist for women’s rights called ‘violent’ because she used local word for vagina on protest placard

A women’s rights activist in Malawi, Beatrice Matweyo, found by the high court to have been wrongly arrested during an anti-gender-based violence protest, has now been slammed for having carried a placard with a slogan including the local word for vagina. Lilongwe’s high court assistant registrar said the use of this word amounted to violence against women, and thus awarded her merely a nominal amount for her claim for punitive damages. Mateyo had claimed damages for false imprisonment and punitive damages as well as compensation for the violation of her constitutional rights. The registrar had the task of assessing the damages she should be awarded.

State of emergency can't be used to resurrect legislative corpses - Lesotho's high court
State of emergency can't be used to resurrect legislative corpses - Lesotho's high court

Lesotho’s political leaders have been given a firm message by that country’s high court: don’t try to use state of emergency powers in a sleight of hand to pass legislation that wasn’t finalised during Parliament’s normal sessions.

Courses on climate change law, environmental law, open judges’ eyes to the coming storm
Courses on climate change law, environmental law, open judges’ eyes to the coming storm

New awareness of climate change and litigation associated with it, has dramatically changed the perception of over 20 judges who attended a training course on environmental law and climate change law under the auspices of Jifa last month. Almost all of them started out unsure of what climate change law actually is, and doubting whether they would ever be involved in litigation concerning climate change. But after a week’s training with a University of Cape Town expert, including two days intensively focused on climate change, they now have a very different perspective. As the judges put it, ‘Our eyes have been opened; now we have a massive responsibility to implement what we have learnt.’

Ugandan lawyer, serving time for contempt, loses bid for bail release
Ugandan lawyer, serving time for contempt, loses bid for bail release

A Ugandan lawyer with a reputation for strongly criticising judges and demanding the recusal of those presiding in cases where he is involved, has lost his bid to be freed from prison pending an appeal. The lawyer, Male Mabirizi (pictured), was sentenced to an 18-month jail term for contempt of court by a high court judge whom he repeatedly slandered and pilloried. Though he sought release from prison pending an appeal, he had not yet filed any appeal and so the appeal court judges turned him down.

Kenya’s supreme court election petition rules set aside by high court
Kenya’s supreme court election petition rules set aside by high court

Kenya’s supreme court has been given a lesson on observing the separation of powers and not ‘usurping’ the legislative power of parliament. Strangely enough, this lesson has come from the high court which had been asked to consider the constitutional validity of new rules promulgated by the supreme court. The disputed rules effectively prevented litigants, advocates and advocates’ agents from commenting on the merits, or otherwise, of a presidential election challenge from the time the hearing of the matter begins until the decision is given. Though the Chief Justice strongly defended the rules, the high court found they did not pass constitutional muster and has set them aside.

October 2022

Serious court efforts brought to hold public officers, top members of the Zim government administration to account, curb corruption
Serious court efforts brought to hold public officers, top members of the Zim government administration to account, curb corruption

Zimbabwe’s 2013 constitution requires a law to be passed to deal with accountability and transparency among public officers as well as top members of government. But virtually 10 years since the constitution was enacted, there is still no such law. Now, efforts are being made through the courts to ensure that something is, at last, done about this fundamental constitutional requirement.

Steep damages against Kenyan media house as five advocates win defamation awards
Steep damages against Kenyan media house as five advocates win defamation awards

A Kenyan media company has been punished by a series of high court judgments ordering that it pay what amounts in total to more than US$535 000 in damages for defamation against a group of senior advocates. The awards followed reporting by the company’s titles on the involvement of the lawyers in some high profile cases. The lawyers claimed, among other problems, that the articles were misleading and insinuated that they had obtained briefs improperly. One complaint, heard as a test case, was decided first, in 2020. The judge in that matter held that the advocates had indeed been defamed and should be awarded damages. Now a group of judgments in relation to the other defamed lawyers has been delivered, and the total damages’ payout so far ordered by the courts has shot up to Kshs 64,800,000, plus interest and costs.

Safeguarding wildlife can mean danger, sometimes death, for local communities – and seeking compensation can prove difficult
Safeguarding wildlife can mean danger, sometimes death, for local communities – and seeking compensation can prove difficult

Kenya’s national environment tribunals have been busy dealing with families suffering the effects of living close to wildlife. A series of recent decisions make clear how complicated it has become to manage human settlements that intersect with land on which wild creatures are also at home.

Free speech restrictions stressed by Eswatini’s election body make 2023 polls a ‘sham’
Free speech restrictions stressed by Eswatini’s election body make 2023 polls a ‘sham’

Eswatini’s election body has been challenged over recent comments by its chairperson that are seen as threatening free expression, the right to self-determination – and as even making upcoming polls a ‘sham’.

Judge says law on witchcraft reflects ‘western’ norms, not those of Eswatini. Supreme court disagrees
Judge says law on witchcraft reflects ‘western’ norms, not those of Eswatini. Supreme court disagrees

A potentially divisive judicial dispute over witchcraft in Eswatini has been nipped in the bud by that country’s supreme court. The debate emerged when a high court judge, presiding in a witchcraft-related murder trial, questioned whether the present legally accepted position that witchcraft is unreasonable and irrational, reflected ‘western’ views rather than the norms of the people of Eswatini. The judge then referred a question to the country’s highest court asking if the time hadn’t come to change the way the matter is handled. Instead of belief in witchcraft being a possible extenuating circumstance after conviction, should it not provide a ‘complete defence’ to a witchcraft-related murder? (Exactly what he meant by this was not spelled out, but it seems he was suggesting that the accused would then be acquitted.) Now three supreme court judges have given their answer: there is no legal basis to change the current precedent, they said. The three judges said that though many in Eswatini practised and believed in witchcraft, murder remained a very serious crime.

In strong judgment, judge refuses 'sensitive' recusal application
In strong judgment, judge refuses 'sensitive' recusal application

A major new decision from Malawi’s high court on the vexed question of judicial recusal has laid down the law on the subject. It included strong words against the Anti-Corruption Bureau’s legal strategy – bringing a recusal application based on no arguments at all, but only a suggestion that the matter surrounding the appeal application was ‘too sensitive’ even to give reasons. Judge Kenyatta Nyirenda, who wrote the decision, also spoke more widely and slammed dissatisfied litigants who threaten ‘physical violence’ against judges or ‘resort to dastardly and primitive schemes of staging road accidents’ intended to cause judges grievous harm, or even to ‘assassinate’ them.

Namibian judge calls out police, army, impunity for assaults on the public
Namibian judge calls out police, army, impunity for assaults on the public

The Namibian police – long criticised for arbitrary brutality towards members of the public – have come in for some strong rebukes in a new decision by the high court. Dealing with the damages claim of a woman who was assaulted in an incident where she merely came out of her home to see the cause of a commotion, the court has slammed an ‘intolerable’ situation involving ‘prevalent’ assaults by police and members of the defence force on members of the public in Namibia. The court also questioned why the individual perpetrators were allowed to ‘disappear into the undergrowth’ instead of being held accountable for their actions.

November 2022

Uganda's appeal court in new approach to division of marital property on divorce
Uganda's appeal court in new approach to division of marital property on divorce

Uganda’s Court of Appeal has handed down a decision that could prove a turning point on the question of how marital property should be divided on divorce. The judges seem to have rejected what some have seen as a growing tendency in divorce matters, namely granting women half share of a property. Instead, these judges say equality doesn’t automatically mean equity, and that a claim for half of the property must be backed by facts if it is to succeed. In this case, they said, the facts did not warrant an equal split and the wife should get just 20% of the property.

Judge from Botswana fights off transfer, takes CJ to court
Judge from Botswana fights off transfer, takes CJ to court

A most extraordinary story emerged this week of an attempt by the Chief Justice of Botswana, Terrence Rannowane, to transfer a senior judge from the high court in Gaborone to Francistown, and of the judge’s response. The CJ is alleged to have justified the sudden transfer on the basis that a judge in Francistown, recently appointed to head the country’s independent electoral commission, needed to be based in Gaborone. The judge sought to be moved, Gabriel Komboni, now plans a judicial review of the CJ’s transfer decision. In the meantime, he has been granted an urgent interim interdict stopping the CJ’s attempted transfer of the case from one high court seat to another. The order further declared that the CJ’s appointment of three named judges to hear part of this dispute, ‘undermines judicial independence’ and is inconsistent with the constitution.

Colonial era police powers to effect indiscriminate mass arrests in Malawi declared unconstitutional
Colonial era police powers to effect indiscriminate mass arrests in Malawi declared unconstitutional

Police in Malawi, like those in other post-colonial African countries, have long enjoyed wide powers to round up, hold and threaten anyone with prosecution under the guise of crime prevention. Typically, these powers are exercised by way of mass arrests, locally known as ‘sweeping exercises’, targeting people the police regard as vagrants or who seem out of place. Though first enacted under colonial rule, these powers have remained on the statute books even after independence. Human rights activists consider these powers unconstitutional because of their blatant disregard for the rights of those rounded up, but now these ‘sweeping exercises’ have been officially condemned by Malawi’s high court.

Crucial Lesotho court decision nullifies disputed contract that could cripple the mountain kingdom
Crucial Lesotho court decision nullifies disputed contract that could cripple the mountain kingdom

A new decision by Lesotho’s high court could prove key in a developing crisis over a disputed contract, that could bring the mountain kingdom to its knees. A full bench has found that the contract, between Lesotho and Frazer Solar, a German company that provides alternative energy systems and that would have involved Lesotho in finding funding of €100m, was null and void. Lesotho has repudiated the contract, and as a result, Frazer Solar is claiming compensation that could cripple Lesotho. Now, the Lesotho court has found the contract flouted the constitution as well as public procurement provisions and key legislation. It also fingered the minister who had signed the contract, apparently on a frolic of his own, without cabinet authorisation. The decision could help Lesotho fight off claims for compensation by Frazer Solar. These are sizeable claims amounting to a significant part of Lesotho’s annual budget.

Death penalty for convicted HIV rapists unconstitutional – Lesotho court
Death penalty for convicted HIV rapists unconstitutional – Lesotho court

A decision by the constitutional division of Lesotho’s high court has found controversial provisions in that country’s sexual offences law, unconstitutional. In particular, the court held that stipulating the death penalty for a convicted rapist, held to have known he was HIV positive at the time of the crime, infringed the constitutional right to freedom from discrimination and to a right to equality before the law.

Kenya’s independent electoral commission boss faces possible jail over contempt of court
Kenya’s independent electoral commission boss faces possible jail over contempt of court

The head of Kenya’s independent electoral and boundaries commission has been found in contempt of court and will be staring some serious punishment in the face when he appears in court for sentencing. An office technology company brought an application against commission CEO, Marjan Hussein Marjan, asking that he be fined and/or jailed for six months for having ‘deliberately disobeyed’ earlier court orders and a 2016 judgment to pay the company. The judge who heard the company’s application had some tough words for Marjan about heeding court orders.

Strengthening civil registration legislation for the prevention of statelessness
Strengthening civil registration legislation for the prevention of statelessness

States must include safeguards to prevent statelessness in their civil registration laws and align registration procedures with their citizenship laws. Here, birth registration specialist Anette Bayer Forsingdal takes a brief look at the status of civil registration laws in Southern Africa and outlines some regional challenges in ensuring universal birth registration.

Crucial high court statelessness case tests route out of legal limbo
Crucial high court statelessness case tests route out of legal limbo

A young man, stateless and unable to access even the basic rights that go with citizenship, has brought what could be a precedent-setting case in the high court of South Africa. The young man, who knows nothing of his father, and whose mother died when he was very young, wants the court to order that he be granted citizenship of SA, either by birth or through naturalisation. He has also urged the court to order that the relevant government department must establish regulations, as the law clearly says it must, providing a route for people in his position to acquire citizenship.

When women can’t confer nationality on their children equally with men, problems of statelessness grow – UNHCR
When women can’t confer nationality on their children equally with men, problems of statelessness grow – UNHCR

As the world’s states consider how to reduce the plague of statelessness, nationality laws come increasingly under the microscope. That’s because if a child can only take on the nationality of their father, and the father is unknown or dies or disappears before a child is officially registered as his, then the child could well be doomed to a life without nationality or citizenship. Thus, ensuring that there is equality between women and men when it comes to conferring nationality on children, would help greatly in reducing statelessness around the world. The UN High Commission for Refugees keeps a careful watch on developments towards equality in this important, but often forgotten, area in the struggle to eradicate statelessness. Among its other findings, this year’s report notes that the nationality laws in several African countries do not provide mothers equal rights with fathers to confer their nationality on their children.

Being stateless is ‘not merely a state of mind, or a choice’ – judge
Being stateless is ‘not merely a state of mind, or a choice’ – judge

Some readers might wonder how statelessness is viewed by courts in other parts of the world. For them, the recent Canadian case of Davood Helalifar v Minister of Citizenship and Immigration will be an eye-opener. Helalifar’s application for permanent residence was refused by a senior official and so Helalifar approached the federal courts asking for judicial review of that decision. Helalifar, who has had several criminal convictions since arriving in Canada, is originally from Iran. With all that was counting against him, what weight would the federal court put on Helalifar’s statelessness?

December 2022

Uganda’s constitutional court finds 16 high court two-year, acting appointments unconstitutional
Uganda’s constitutional court finds 16 high court two-year, acting appointments unconstitutional

When Uganda’s judicial service commission (JSC) announced earlier this year, that 16 high court judges had been appointed – for a two-year acting stint – it prompted two legal academics to bring a petition challenging the constitutionality of these appointments. Now the country’s constitutional court has given its decision: by four to one, the court ruled that the appointments were unconstitutional, and gave the JSC six months to rectify the situation.

Judges applaud African states’ efforts in hosting refugees, suggest much work remains to be done
Judges applaud African states’ efforts in hosting refugees, suggest much work remains to be done

At a recent meeting in Arusha, Tanzania, the Africa Chapter of the International Association of Refugee and Migration Judges (IARMJ) applauded the solidarity and efforts of many African states in hosting refugees. Their work in finding collective solutions for the situation of refugees, sometimes under the auspices of the African Union, was also appreciated. The judges have now issued a formal declaration, covering a wide range of issues related to refugees, asylum-seekers and stateless people.

Circumcised without their parents’ consent: now two young boys win judgment for damages
Circumcised without their parents’ consent: now two young boys win judgment for damages

Two young boys, circumcised without their parents’ knowledge or consent, and who later developed complications, have won their high court action against Population Services International (PSI) Malawi, and will now be entitled to damages. The two boys claimed for assault and battery as well as pain and suffering, and they want damages for ‘deformity’ and violation of their right to personal security as well as bodily integrity. The judge of the Malawi high court who heard the matter, Dingiswayo Madise, said that PSI had abused the legal process and should be ‘ashamed’ that it defended the case, rather than settling the matter out of court.

Crucial role for Africa's courts in preventing electoral violence

As judicial interest grows in the role that judges and courts should play relative to elections, the president of the African Court on Human and Peoples’ Rights has addressed a conference of the International Commission of Jurists (ICJ), Kenya on the issue. Among other questions, Justice Imani Aboud discussed the contribution that courts can make, through their work as arbiters of the law, that would help assure voters, and politicians, that elections are fair, and thus help reduce the likelihood of violence related to polls.

Health activist loses court battle for complete tobacco ban in Kenya
Health activist loses court battle for complete tobacco ban in Kenya

A spirited fight for tobacco to be completely banned on tobacco in Kenya has gone up in smoke: the constitutional and human rights division of the high court has refused a petition brought to overturn the existing laws controlling the production and sale of tobacco in Kenya. Instead, the unsuccessful litigant wanted tobacco to be outlawed completely to safeguard the health of that country’s people. Ibrahim Mahmoud Ibrahim, who brought the application, argued that tobacco actively contributed to lowering the standard of health of Kenyans, since it killed up to half of its users and was the world’s single biggest cause of preventable death.