Articles - 2023

January 2023

Magistrate stages obscene event as part of rape case; high court orders a retrial

A magistrate in Malawi, who presided over a sordid sexual scene in his office, has been taken to task by a high court judge. Judge Zione Ntaba ordered that the rape trial being heard by the magistrate, and of which the office scene had ostensibly formed part, should start again under a different presiding officer. The behaviour of the initial magistrate has also been reported to the judicial service commission. Judge Ntaba used the opportunity presented by the case she was reviewing, to spell out best practice in relation to gender stereotypes, judicial bias and other key issues.

Maseko killed by ‘demented enemies of justice’, independent inquiry demanded

A flood of shocked, sometimes angry, sometimes despairing, often challenging, responses has followed the murder of Eswatini human rights lawyer, Thulani Maseko, last weekend. From embassies to human rights defenders in remote parts of the continent, all have paid tribute to this extraordinary man and his dedication to the task of ensuring justice and democracy for the people of his home country.

Pocket Law: Legal Information In Your Pocket

Do your users struggle to connect to the Internet? Pocket Law lets you search for cases and legislation off-line. It is a USB stick loaded with an LII website, which works off-line and updates with new content once users are in Internet coverage.

Pocket Law
Claiming potential conflict, Malawi Law Society wants its members barred from joining specialist law bodies

Malawi’s legal community is braced for a major court battle between the Malawi Law Society (MLS) – it bills itself as ‘the voice of the legal profession in Malawi’ – and two other professional legal bodies, the Corporate Lawyers Association (CLA) and the Commercial Bar Association (CBA). This follows an attempt by the MLS to have the court prevent MLS members from joining the ‘objects and business’ of the CLA and the CBA. The proposed ban, which would stop all Malawi’s registered lawyers from joining the two specialist legal bodies, must now be fully ventilated in court as a constitutional issue since it could affect the constitutionally guaranteed right to freedom of association.

Court says accused in double witchcraft murder a ‘suitable candidate’ for death penalty, imposes lesser sentence because of sincere beliefs

The high court in Zimbabwe has been grappling with the question of how to deal with witchcraft-related murder, and the role that such beliefs should play in a trial. It’s an on-going issue for courts in a number of African countries, and in this case, the presiding judge, Lucy Mungwari, looked at a variety of approaches by other courts. The case she was considering was particularly horrific, as the accused murdered his own father and his aunt, both of whom were well over 80 years old.

New journal on democracy, governance and human rights for Zimbabwe

A new, scholarly journal focused on democracy, governance and human rights in Zimbabwe, has just published its first edition online. Coordinator of the journal, Musa Kika, says the journal is partly a response to Zimbabwe’s lack of scholarly publications dealing with legal and other issues, and that this is a lack that the judiciary itself has commented on. The first edition, featuring five articles focused on elections, election practices and disputes, is particularly timely given that a general election is expected to be held in Zimbabwe by mid-year.

Free speech gets a huge boost in Uganda

A key freedom of expression law, used in Uganda to arrest, detain and hamper the work of journalists, along with other writers and political activists, has been declared unconstitutional by that country’s constitutional court. Five judges held that the law, dealing with ‘computer misuse’, imposed curbs that were incompatible with the constitution. The court said that prosecuting people for the content of their communication amounted to a violation of what ‘falls within guarantees of freedom of expression in a democratic society’.

Tough sentences follow terrorism convictions by Tanzanian court

Six men, including three from the same family, have been convicted of terrorism by the high court in Tanzania and sentenced to a total of 50 years each. The prosecution said the six were members of a larger group that had met in the Tunduru district, as part of a conspiracy to start a religious war linked to Al-Shabaab. They planned to convince young people to join in the overthrow of the government and establish an Islamic state. The presiding judge, Yose Mlambina, heard argument that the offence was a transnational matter, with potential to harm Tanzania and its neighbours. Passing sentence, he said terrorism was ‘a complex national and international plague.’ For Tanzania, troubled by continuing terrorism linked to Al-Shabaab, this new decision is a significant moment in efforts to halt the training of young people for terrorist activity.

February 2023

Funeral business loses bid to enforce contract, claim damages, from Zim mining group

Doves Funeral Assurance hoped to persuade the high court in Harare that it had a valid agreement with Zimplats to provide an employee funeral scheme, and that after Zimplats cancelled, it should pay the funeral company more than US $4m in damages for lost profit. But Judge Amy Tsanga wasn’t convinced.

Overhaul essential elements of Malawi’s adoption laws, high court urges

The Malawian judge who some years ago authorised singer Madonna’s adoption of two girls has now delivered a thorough-going critique of the legislation surrounding adoptions in that country, with strong recommendations for parliament about changes that should be made urgently, to protect the many vulnerable babies who need new homes and families through the adoption process.

Former payment officer sued after Namibian national student funds go missing

When money in a Namibian national student assistant fund went missing, siphoned off into the bank accounts of someone who was not registered as a beneficiary of the fund, alarm bells rang. An internal investigation pointed to a payments officer being responsible for the fraud, but he resigned before a disciplinary hearing could be finalised. The fund then sued the former employee and this case has begun in the high court, Namibia. However, when the fund closed its case after two witnesses had given evidence, the former employee applied for absolution from the instance – but the judge, Boas Usiku, wasn’t persuaded.

Huge corruption challenge for sub-Saharan Africa - latest Transparency International index

The 2022 report from Transparency International, ranking the world’s states according to their perceived levels of corruption, has a few surprises. This latest index from TI lists Denmark as the least corrupt country in the world – but several states in Western Europe have scored markedly worse than before. In Sub-Saharan Africa, Seychelles once again tops the score-sheet for the region, while Somalia scores the lowest not just in the region, but in the world. Apart from its index, the report also discusses the role that factors such as conflict play in a country’s level of corruption.

Death penalty confirmed by Zambia’s court of appeal days before capital punishment scrapped. What happens now?

Zambia’s court of appeal has dealt with a sensational murder and arson case in a recent decision that highlights two problems. First, the court’s judgment of 16 December 2022 upheld the death penalty imposed on a woman accused of murdering her gym instructor boyfriend by setting him alight. Just days after the appeal court’s decision, however, Zambia’s President Hakainde Hichilema finally abolished the death penalty, leading the justice minister to comment that from now on, no court could impose the death penalty. The new appeal judgment thus highlights the problem of death row convicts whose sentences must be reconsidered now that the death penalty has been scrapped. The second issue relates to when a mandatory life sentence may be imposed for arson. In this case, the appeal court used the opportunity to explain to other courts the circumstances under which such a sentence may be imposed. The appeal court said this was the first time an appellate court had interpreted this section, and it had thus deliberately analysed the provisions to provide guidance to trial courts for the future. Apart from these technical issues, the judgment also laid to rest the claim of the woman convicted of murder in the case – namely, that her boyfriend had set himself alight, angry over her refusal to end a pregnancy that medical tests subsequently showed did not exist.

March 2023

Lesotho's CJ bemoans police impunity & its effect on rule of law

The frustration of Lesotho’s Chief Justice Sakoane Sakoane at continuing police brutality against ordinary citizens of that country is plainly evident in a new decision. Just as disturbing for him is the fact that police mostly commit these acts with impunity – seldom are they investigated and prosecuted – and the attorney general often fights against complainants if they ever bring a claim for damages, even in the face of completed medical reports that put the matter beyond doubt. The CJ found the case of Kabelo Khabanyane against the police particularly egregious since Khabanyane is an elderly man who has a visual impairment. Thus, he was highly vulnerable to police assault. In addition, their assaults against him came at dawn, after police found him sleeping.

Unconstitutional for Uganda’s tax authority to demand banks supply sensitive information on every single client

In March 2018, the Commissioner General of the Ugandan Revenue Authority (URA) sent notices to Uganda’s banks requiring them to supply key information about every single client. The banks in turn challenged whether this move was lawful, and the country’s constitutional court has now declared that it was not.

Magistrate wins defamation case against accused

A Namibian magistrate has been awarded damages of N$20 000 after an accused, appearing in court before her, handed up a document in which he defamed her. Among other claims, the document, hand-written by the accused, said she was paid by the family of the complainant in the criminal case before her. The magistrate then brought a defamation action in the high court. Now she has won her case and the judge who heard the matter ordered that if the man who defamed her didn’t make her a written apology, the damages award would jump to N$30 000.

New Kenyan judgment shows difficulties for courts when adjudicating environmental matters

A cohort of judges has been carefully trained by Jifa to deal with environmental and climate change cases. But what if those who bring petitions to court, even those who may have a genuine case, don’t present evidence that measures up? The latest decision from Kenya’s environment and land court illustrates the problem.

April 2023

‘No judgment attains perfection’: Tanzania's top court, considering major wildlife crime

Two men, found guilty of being in possession of almost two tons of elephant tusks, have just lost a third challenge in their case. The matter was brought before Tanzania’s court of appeal for a second time, with counsel urging the court, on review, to change its earlier decision on sentence. But the judges weren’t persuaded. They called the review a disguised appeal against sentence. The accused claimed the original appeal decision showed a ‘manifest error’ resulting in a miscarriage of justice. Not so, said the judges. No judgment could be perfect, but the grounds the accused raised were fundamental and would require reconsidering the entire decision, something not permitted in a review.

May 2023

Namibia’s top court on recognising foreign same-sex marriage: what did it actually say?

In a decision with wide-reaching implications for the country’s gay and lesbian community, Namibia’s apex supreme court has held that same-sex marriages, properly concluded in countries where such unions are permitted, must be regarded as valid in Namibia. The new decision, made despite the fact that same-sex marriage is not allowed in this Southern African nation, brings to an end long-running litigation involving two couples whose relationship had been refused recognition.

Seychelles and human trafficking: sinister new trend emerges from appeal

Seychelles is regarded as a state that is doing relatively well on the question of combatting human trafficking. It’s on the US state department’s global assessment register as at Tier 2: not fully meeting the minimum standards for the elimination of trafficking, but making significant efforts to do so. These efforts include establishing the country’s first anti-trafficking hotline and establishing a trafficking-specific shelter. Two recent appeal judgments, however, give a sense of the difficulty of the work that lies ahead. Both involved a worrying new development in human trafficking: the use of local men as ‘drug guarantees’. These are people trafficked to stand as hostages to ensure that money owed to drug suppliers will be paid.

Court orders more learning space for law students

Desperate law students at the University of Zambia have taken the council of the university to court: the students were distressed about the shortage of lecture halls and study space on campus due to an unprecedented number of students signed up after the government changed its policy on admissions. The court heard of students facing ‘near stampede circumstances’ in trying to attend lectures, with jostling for seats and many standing outside the lecture rooms.

June 2023

Refugees could lose host country’s protection if they visit ‘home’

The issue of refugees going ‘home’ for a visit and their asylum status then being revoked in the host country isn’t a common problem for African courts. At least not yet, judging by the absence of reported cases dealing with that question. But it’s very much a problem in some other jurisdictions as Turkish refugee to Canada, Ismail Kaya, for example, has discovered.

Protection of asylum seekers and of children facing lifelong statelessness highlighted in two significant South African decisions – case note extracts

Asylum seekers face huge obstacles trying to reach a country that can offer them refuge. One of their greatest challenges is the risk of detention on arrival because their entry to the country is unauthorised. Now a landmark judgment reinforces protection of asylum seekers and respect for their right to seek and enjoy asylum even if they are in the country unlawfully, while the state’s responsibility in cases of statelessness, another major problem for refugees, is considered in a second decision.

‘Once a refugee, always a refugee’: Uganda’s high court disagrees with passport control officer’s views

Uganda is Africa’s most generous refugee host and more than 1.5 million refugees and asylum seekers have been registered there. But despite this open-arms approach, there seem to be problems with local officials discriminating against refugees, as the case of Abucar v Attorney General illustrates. It was a matter brought by a group of plaintiffs who say they have met the requirements for citizenship, but that a senor passport official had issued a circular that effectively cancelled their right to citizenship status, thus making them permanent refugees.

Judges need a working knowledge of social media to handle certain refugee cases

When would-be refugees formally apply for asylum, it is standard in some countries for the authorities to examine the applicant’s social media record. There are possible benefits – and possible dangers – in doing so, and a new working paper from the International Association of Refugee and Migration Judges highlights some of these.

Dreadlocks may no longer prevent children from admission to Malawi’s schools – high court

It has taken years to achieve, but the children of Malawi’s Rastafarian community may no longer be barred from going to state schools because of their dreadlocks. The new decision to this effect, written by high court judge Zione Ntaba, follows years of discrimination against children who have had to choose between obtaining education, or acting in a way that is contrary to their faith by cutting their hair. The judge found that a number of the children’s constitutional rights were infringed by a government policy – whether written or not – that learners would not be allowed to attend classes wearing dreadlocks.

Diplomatic immunity invoked in spat over collapsed Kampala wall

From time to time, diplomats and other representatives of foreign governments become involved in legal disputes, both criminal and civil, in their host countries. At stake in all such cases is the important question of diplomatic or sovereign immunity, a principle that generally shields foreign diplomats and governments from legal action in their host country. The latest reported African judgment in which this issue has been raised comes from Uganda where the high court had been poised to hear a dispute over a collapsed neighbour’s wall, allegedly the result of repairs carried out by the British High Commission in Kampala to its own property. Now, however, thanks to a high court decision made last week, the question has become whether the action will be heard at all, rather than whose version of events is correct and whether the British High Commission must pay damages to its neighbour.

July 2023

Judgment upholds public ‘right to know’: Kenyan court orders government minister to provide information

Maverick Kenyan human rights litigator, Okiya Omtatah, has done it again. The engineer-turned defender of the rule of law brought a challenge related to a government decision exempting the instruments used in a major merger from the Stamp Duty Act. When Omtatah asked the reasons for the exemption, he was met with silence. So, he challenged that silence in the constitutional and human rights division of the high court. Now, via a judgment that reaffirms key constitutional values, presiding judge Lawrence Mugambi says the reasons should have been provided and has ordered the government to do so.

Tortured Ugandan wins award against intelligence operatives

A year after Human Rights Watch issued a strongly-worded report on torture and illegal detention carried out by security officers in Uganda, a court in that country has awarded substantial damages to a man who was held and tortured for 17 months by the country’s Internal Security Organisation (ISO). The court also ordered that the damages, and legal costs, be paid by the members of the ISO involved.

Judge orders damages against Namibia’s police who detained child overnight for no good reason

The conduct of Namibia’s police is under the spotlight once more, thanks to a high court case from which it emerged that they detained a group of people and held them overnight although they did not suspect them of any crime. Among those detained was a nine-year-old boy. The boy was travelling with a group of his relatives, one of whom was thought by the police to be a suspect in a housebreaking case. Police ordered that everyone in the car had to go the police station where they were held overnight. This included the child. When the boy and his father later sued the police, the court held that no attempt was made to contact the child’s family to inform them of his whereabouts. The judge also held that the child had been unlawfully detained and awarded damages to the boy as well as to his father, who had spent an anguished night not knowing what had happened to his child.

Tanzania’s high court says constitution adequately protects Chief Justice

A Tanzanian court has found there is no need to seek changes to that country’s constitution which says the president may dismiss the Chief Justice. The court says this does not infringe the independence of the judiciary, and that the procedure laid down for the dismissal of judges of the appeal court would apply, since the CJ is a member of that court. The court was responding to a petition which said giving the president the power to dismiss the CJ was wrong since it undermined the principle that the three arms of state were equal and independent.

Child marriage and the law: challenges, cautions and alarming statistics from new report

Between them, Tanzania and Mozambique are estimated to have more than 10 million child brides. These and other alarming statistics emerge from a new report by Equality Now. The report examines the prevailing situation of child marriage in eastern and southern Africa, including the legal frameworks and potential gaps in legislation. Some of its conclusions are particularly important to note for judges and lawyers who may be faced with cases of intended or concluded child marriage.

Supreme court rules on Nigerian attorney’s struggles to practice in Namibia

Imafon Fiona Akpabio is a Nigerian lawyer. Living legally in Namibia, she wants to practice there – but she’s been having problems getting her qualifications recognised. Eventually her conflict on the issue with the relevant authorities – the minister of justice and the board for legal education – landed up in Namibia’s apex court, and three judges of that court have now given their decision.

August 2023

Bank not liable for loss after clerk, mandated to operate a client’s accounts, steals money

Should banks allow staff to be given mandates so that they may operate the accounts of customers? It’s a question that has to be asked in the wake of a new decision by Namibia’s supreme court. The apex court had to consider the bank’s liability for funds misappropriated by a clerk who had been given a mandate by a customer to operate the customer’s accounts.

Court reviews bail conditions for Malawi’s deputy president, facing financial charges

Malawi’s deputy president, Saulos Chilima, is facing charges in the financial crimes division of the high court. He was granted bail on the day of his arrest in November 2022, when the magistrate set conditions that Chilima has observed since then. This month, however, the high court had to consider an application for certain bail conditions to be changed. During his judgment on the issue, high court judge Redson Kapindu had to deal with some strange moments from argument during the hearing on bail. Like Chilima’s counsel quoting the case of United States v Donald Trump, dealing with the former US president’s release on bail without any conditions. It sounded on point, but since no-one could find a copy of the judgment text, the Malawian court could put no weight on it.

Court orders reporting shroud over upcoming divorce hearing

Uganda’s high court has been wrestling with the difficult question of how to balance three sometimes competing constitutional principles when it comes to reporting on divorce cases: the right to free expression claimed by the media, the parties’ privacy rights and the general principle that courts should be ‘open’ and the justice they dispense should be seen to be done. The need for a judicial balancing act was triggered when an advocate appearing for one of the parties in a divorce due to be heard by the high court, brought an unusual application. He asked the court to hear an ‘anonymous divorce’ in which the parties would be referred to only by ‘special pseudonyms’. The advocate said especially sensitive information would emerge from the case relating to the mental health of at least one of the parties. There was also a young child who should be protected from publication of the details of the divorce. Further, those involved in the ‘narration supporting the proposed divorce’ included current and/or retired judges who could be affected in their work by media reports of the petition. The judge who heard the application has now agreed to the use of pseudonyms, along with other strict conditions that bar the media from covering the case.

Uganda’s anti-gay laws: what will East African Court of Justice say?

The lawfulness of Uganda’s ultra-punitive new legislation on homosexuality has been challenged by two applications filed at the East African Court of Justice. The first was filed in June by controversial Ugandan lawyer, Male Mabirizi. The second just made the court deadline when it was filed by a group of individuals and organisations. Both applications ask the court to declare the law null and void. The new challenge will argue that the principles of good governance were infringed because of an alleged absence of adequate public participation as well as bias and partiality on the part of the speaker of Uganda’s parliament. Further, these challengers say, enacting the law contravened the principles of good governance, including democracy, the rule of law, social justice, and the protection of human rights, in accordance with the African Charter on Human and Peoples’ Rights as well as provisions of the treaty that set up the East African Community.

September 2023

New deal for awaiting trial prisoners in Namibia

Namibia’s highest court has delivered a judgment that could see a new era for awaiting trial prisoners in that country. Most fundamentally, it has struck down, as unconstitutional, the definition of the word ‘offender’ which had previously included awaiting trial prisoners. The court said that to call people ‘offenders’ when they hadn’t been convicted, struck at the heart of the constitutionally guaranteed presumption of innocence, because it suggested they had already been found guilty. The court also held certain other practices in relation to awaiting trial prisoners were unconstitutional.

Zambia’s constitutional court strongly backs judicial independence

Zambia’s constitutional court has found parliament in breach of the constitution by not passing legislation to ensure the full financial independence of the judiciary and that it is adequately funded. In a decision strongly underlining the principle of judicial independence, the court has ordered that until these laws have been passed and put into effect, the minister for finance should report to parliament every six months on what has been done to ensure financial independence of the judiciary. Ironically, the challenge was brought by Zambian counsel, John Sangwa. In March 2020, the chief court registrar informed all the country’s judges and magistrates that Sangwa was no longer allowed to appear in court because of a ‘malpractice complaint’ filed against him by the lawyers’ association of Zambia. This ‘complaint’ followed a ‘denunciation’ of Sangwa by several judges after Sangwa was critical of certain new judicial appointments. He had also criticised the government when the former president, Edgar Lungu, announced he would stand again for the presidency, even though, in Sangwa’s view, he was ineligible.

Church obtained land fraudulently, must give it back, with damages, court finds

A high-profile Ugandan church and one of its senior pastors have been found to have obtained land by fraud. The high court in Kampala, which made that finding, has ordered that the church must quit the land that was fraudulently obtained, while the plots must be returned and the official title and registration deeds changed to reflect that order. In addition, the church and the pastor must pay a damages bill of UGX50m plus interest and legal costs.

Time to rethink Zambia’s law on ‘insulting language’?

An outspoken Zambian magistrate has criticised the country’s law against the use of insulting language, saying some people saw mere criticism as insults, and that the law ‘when misapplied’ could result in an authoritarian and controlling society. It could cause ‘contemporary intolerance’ and ‘when not well prosecuted’, represented ‘an intense desire to gag uncomfortable voices of dissent’. He was giving judgment in a case where the accused was charged with naming someone as a witch and with using insulting language. The magistrate said it was the actions taken in consequence of a belief in witchcraft that are a problem, rather than the belief itself – but that this belief ‘has been deeply entrenched in the Zambian psyche’. He said it increasingly seemed that ‘old age is synonymous with being a witch in many communities in Zambia’, and that many elderly men and women were forced to leave their ancestral villages because of being labelled witches.