Articles - 2024

January 2024

Outcry in Uganda over early release of prisoners convicted of defilement

More than a dozen organisations concerned with the rights of women and children in Uganda have expressed dissatisfaction and concern about the decision to pardon and release 13 convicted prisoners. Their concern was based on the fact that 11 of those released were serving sentences for defilement (child rape), and the organisations questioned the commitment of the authorities to protecting girls and women from rape and sexual assault. They have urged more transparency around such decisions in the future and want the current list of pardoned convicts to be reviewed.

Where should a country’s leader sleep at night?

Should Zambia’s president live in his own home? It’s a question that was raised in the constitutional court recently by Sean Tembo, head of a Zambian opposition party. The seven judges of that court had been asked by Tembo to find that the country’s president, Hakainde Hichilema, should have been living in state house instead of his own home. Tembo cited the cost and inconvenience to the public of the daily presidential cavalcade from his private home to his offices in state house, and asked the court to find that the expense was unjustified and unconstitutional.

Traditional healer dupes woman into quitting her home; supreme court comes to the rescue

A desperate woman who says she was duped by a local Namibian traditional healer into selling him her house at a small fraction of its true value, has been helped by the supreme court to keep her case alive. Elizabeth Neis, a retired nurse, consulted the healer because she had landed in financial trouble. He agreed to help her, but told her that her house was inhabited by evil spirits who would cause the death of someone from her family if they stayed on in the house. He proposed that Neis should sell him her house and said he would buy her another place. He did not buy her another house however, and Neis, homeless and by now quite desperate, took the matter to the high court. There, the court granted an application brought by the traditional healer’s legal team for absolution from the instance, meaning that the case was essentially thrown out for not having been proved. But Neis appealed, and, in one of its final decisions of 2023, the supreme court held that Neis had been unduly influenced by the traditional healer and set aside the absolution order. This means that the case will continue before the high court, with the court now having to consider the supreme court findings on such issues as the mental state of Neis at the time and the undue influence over her by the traditional healer.

Inaugural meeting and conference of African Network of Judicial Trainers

The work of the Judicial Institute for Africa (Jifa) and the African Legal Information Institute (AfricanLII) was showcased at this week’s inaugural three-day AGM and conference of the African Network of Judicial Trainers (ANJT), held in Zanzibar. A number of important projects were launched or unveiled at the event, including an inaugural project to draw up a shared ethics manual on judicial training for trainers.

Landmark Gaza case at the International Court of Justice

No conflict has divided world opinion like the war now being waged in Gaza. But supporters of both sides have been caught up in the drama of this week’s historic sessions of the International Court of Justice.

Tensions high in Kenya as President attacks judiciary

The health of judicial independence in Kenya has come under scrutiny since the start of this new year. That’s ever since the president, William Ruto, launched a reinvigorated war of words on the judiciary. He called the judiciary ‘corrupt’ and threatened to ignore court orders that delayed his planned public development projects. As the row continues, the CJ has urged her judicial colleagues to continue doing their work as usual and promised her support to them. The judiciary has also been given backing from both local and international supporters of the courts and judicial independence. Among others, members of the legal profession planned to protest at the supreme court to show their support for the judiciary.

New challenges to judicial independence in Uganda

Indications are growing of a worrying trend to weaken judicial independence in Uganda. This week, the Ugandan judiciary issued a statement entitled ‘Interference of court processes undermines judicial independence’ in which it expressed misgivings about a government district commissioner who had been ‘meddling in court matters’. But just last month, the country’s president, Yoweri Museveni, ‘meddled’ even more dramatically, writing a letter to the chief justice, saying the CJ should investigate a controversial judicial decision authorising the auctioning of the national mosque, even implying the CJ should ensure the decision was overturned.

Crucial case on judicial independence unfolds in Seychelles

While many readers were enjoying a well-deserved year-end break, the apex court of Seychelles was deciding another phase in what appears to be a crucial case on judicial independence. Three petitioners – the Seychelles human rights commission, ombudsman and bar association – are jointly challenging the lawfulness of a controversial constitutional amendment, saying it undermined the rule of law. But before the main case was argued, the petitioners asked the judges hearing the matter to recuse themselves. That’s because an official government statement, issued at the time the amendment was ratified, indicated that ‘the judiciary’ had helped finalise the amendment. The notice particularly named the supreme court and the appeal court. Since the judges hearing the challenge were thus included, they should step down, said the petitioners. In addition, the chief justice was believed to have received land from the state at a price lower than its true value, and a reasonable person might thus question the CJ’s ability to adjudicate impartially in matters involving the interests of government. When the supreme court judges hearing the matter refused to recuse themselves, or to grant leave to appeal, the petitioners turned to the apex court of Seychelles. In record time, the appeal court has now given its decision.

Eswatini’s highest court reverses itself; holds customary marriages are ‘lawful’

It’s rare for any country’s apex court to reverse an earlier decision it had made and say it was wrongly decided. But Eswatini’s supreme court has recently done just that. In fact, it went even further, and declared that elements of two of its own decisions needed to be set aside as made in error. The key issue in the case was the status of marriages in Eswatini, made in terms of local customary law. Both the two earlier decisions had upheld the consequences of a 1902 colonial law, and concluded that such marriages were not ‘lawful’. The particular result of that finding in the new case was to question the jurisdiction of the master of the high court to deal with the deceased estate of someone married under customary law.

February 2024

Kenya’s judicial leaders issue strong re-statement of judicial independence

Judicial independence in Kenya has been under some serious threats recently, particularly from the president, William Ruto, and other members of government. Threats to judicial independence are a problem in other countries as well and the judiciary sometimes seems to take refuge in silence on this issue. However, this week, following a consultative meeting involving the heads of all the country’s courts, Kenya’s top judges issued a wide-ranging statement, dealing with judicial independence, as well as claims of corruption in the judiciary, and ways in which the courts could improve to offer a better service to the public.

Uganda’s president chastises chief justice over litigation outcome, orders action to rectify matters: profession divided over response

It took time to get going, but a letter by Uganda’s president Yoweri Museveni (pictured) to the country’s chief justice has sparked a row that shows no sign of blowing over. The letter complained about a court decision and urged that the CJ should take action in the wake of that decision. The letter, written in December 2023, dealt with a visit to Museveni by one of the parties to a court case, and castigated the CJ for the decision taken by a member of the judiciary in relation to the case. Though there was initially no public reaction from the CJ, the judiciary and other members of the profession, the matter blew up more than a month later, in a way that adds to growing concern about the health of judicial independence in Uganda.

Changes needed on how Zim police deal with vernacular witness statements – court

A controversial Zimbabwean high court judge, Munamato Mutevedzi, has strongly criticised the way police handle statements by potential witnesses. In a recent judgment, Mutevedzi discussed what he said was a matter of concern arising from ‘many criminal trials handled in the courts’.  He said witnesses would make statements in the vernacular. These were then translated into English by the police, with the witness signing the English version, even though he or she had no idea of what the English statement said or meant. This was a ‘misrepresentation’ that could amount to an ‘illegality’, Mutevedzi said. Sometimes, the police even signed the statement themselves, purporting to be the witness. He said the frequency with which witnesses came to court and claimed ‘misrepresentations’ of their statements to the police, had convinced the courts that ‘something untoward’ was happening during the recording of statements. Among his suggestions for dealing with the problem, Mutevedzi urged that police keep the original vernacular statements by witnesses, and that statements in the vernacular be translated by certified translators or interpreters.

Top court of Seychelles delivers major environmental law decision on state responsibility for pollution cleanup

An environmental law decision by the highest court in Seychelles has found that the state has a constitutional responsibility to clean up pollution of public places like rivers and beaches and that it might be liable for damages in some cases. The decision, likely to be hugely influential, was delivered by the court of appeal in response to a claim by private applicants that the state had not acted to deal with the serious E.coli pollution of a river. While the state argued that it was not constitutionally obliged to act in such a case, the court of appeal has declared that it does indeed have such an obligation, and that failure to act could lead to claims for damages.

WhatsApp message exchange constitutes a valid contract – Ugandan court

A new judgment from the commercial division of the high court in Uganda has held that an exchange on WhatsApp amounted to a binding contract. In this case, the contract was concluded between a surgeon and a hospital that had called him in to carry out two operations. The court held that their WhatsApp exchange amounted to an offer made and accepted, and that the hospital and its director were liable for the unpaid bills for the operations and follow-up visits and services.

Misreporting could add to tensions between judiciary, executive in Kenya

A recent high court decision in Kenya about the government’s failure to make a decision on whether to grant a citizenship application, has been incorrectly reported in some of the media in that country. The case concerned a man who lost his Kenyan citizenship when he took UK citizenship as a child. Now that the law has changed to allow dual citizenship he has applied for Kenyan citizenship. But after sitting with the matter for five years, the authorities have still not made their decision. The court held it did not have power itself to grant citizenship to the applicant, but gave the authorities six months to make their decision and inform the applicant of the outcome. However, reports in the media say the court ordered the grant of citizenship. It’s a serious mistake, particularly at this time when dangerous tension exists between Kenya’s judicial and executive arms.

March 2024

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Executive interference in Ugandan court decisions continues – this time by the justice minister

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Major court decision on image rights benefits Ugandan soccer players

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Is rape by family members treated too lightly by the law?

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

Two prominent South African advocates have just lost their last hope of squashing  their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.

Are the courts out of touch with the ordinary, and often poor, people they serve?

This is a question that readers can’t help asking, based on a contempt of court conviction and sentence by the magistrate’s court in Namibia. The case raises concerns about a lack of sensitivity and awareness of that court to the daily difficulties of poor people it serves. The accused in the case, Festus Shimmy, was sent to prison for three months because he wore ‘short pants’ to a court hearing and the magistrate convicted him of contempt of court for doing so. Explaining his attire, Shimmy told the court that his long trousers were very dirty and so he had worn the shorts. To make matters worse, his case was not sent to the high court on review ‘without delay’, as the law requires in contempt of court matters, but only arrived for review well after the three-month sentence had expired. This meant that even though the high court set aside his conviction and sentence, this came too late for Shimmy. Further, the high court pointed out that the magistrate imposed a fine of N$500, though the law clearly states the maximum is N$100.

Where officials, authorised to take decisions themselves, instead insist on unnecessary litigation before overcrowded courts, they could face costs orders – judge

Faced with growing court backlogs, judges around the world are looking for new ways to reduce delays experienced by litigants. A new decision from Canada shows a judge warning that he would have been willing to order costs against officials who could have resolved a problem themselves, but who instead insisted that the court should do so.