Skip to document content Skip to main menu Skip to search

Latest Articles

Article 8363
Article 8363

Bail for arrested government critics and others is becoming an increasingly common legal issue in countries of the Southern African Development Community. But a new decision from Kenya’s high court, written by Judge Joel Ngugi, is a model of how the problem should be approached. He was faced with a magistrate’s decision to approve the continuing detention of government critic Oscar Sudi, against whom no charges, not even so-called ‘holding charges’, had yet been formulated. The magistrate accepted the police argument that continuing his detention would allow the authorities to investigate and formulate exactly what charges they wanted to bring against Sudi. But in his reconsideration of the magistrate’s ruling, Ngugi delved into the Constitution and concluded that there was no way that Sudi’s continued detention was constitutional. Instead, he granted bail, but stipulated conditions that would allow the police to continue their investigation unhindered. The decision is one that should interest judges elsewhere in the region; many other courts could profit from the Ngugi approach, namely to uphold the constitution and protect the rights of the individual while allowing investigations to proceed.

Twomey steps down as Seychelles CJ but continues on Court of Appeal – and joins us at Jifa!
Twomey steps down as Seychelles CJ but continues on Court of Appeal – and joins us at Jifa!

No-one could ever call Justice Mathilda Twomey of Seychelles a ‘usual’ kind of person. She has spent the last five years as the highly-successful Chief Justice of Seychelles and a member of the country’s apex Court of Appeal. But she had only accepted the post on condition that she would stand down as CJ at the end of five years. Now she has reached the end of that contract period, and is about to start a new phase in her life, one that could greatly benefit a wider community than just Seychelles.

High court judge finds 'no place' for sexual offences corroboration rule in Malawi
High court judge finds 'no place' for sexual offences corroboration rule in Malawi

Many women and men have long felt uncomfortable with the corroboration requirement attached to trials of sexual offences. This requirement, whether a matter of law or practice, appears increasingly unjustifiable, unconstitutional even. It is inevitably, and almost exclusively, directed against women who are the overwhelming targets of sex crimes. Malawi now appears to have joined the list of jurisdictions where the corroboration rule will be regarded with suspicion and discarded. The latest decision is by Judge Fiona Mwale, but it builds on an earlier judgment by another judge from Malawi, Maclean Kamwambe, as well as legal and academic critiques of the corroboration rule. Perhaps, with two clear decisions against the corroboration requirement, other Malawian courts will adopt this approach as well, without having to wait for the supreme court of appeal to speak?

The Revised Rules of the African Court 2020: towards a more effective African Court
The Revised Rules of the African Court 2020: towards a more effective African Court

The African Court on Human and Peoples’ Rights is not a body that goes in for rapid or unnecessary change. So, when a revised set of rules is announced, everyone interested in the court and its work should take note. This week we’ve asked human rights expert Usani Odum, who is working at the court on secondment from the University of Pretoria’s Centre for Human Rights, for his take on the changes. Here he outlines the new provisions and their likely impact. He also congratulates the court on adapting so well to the challenges of Covid-19 by, for example, switching to on-line sessions.

Sewage is ‘not a public friend’
Sewage is ‘not a public friend’

A broken sewerage pipe in the capital of Malawi has led to a successful claim for damages under the country’s consumer protection legislation. The pipe broke but when it was not initially fixed by the authorities, sewage found its way into the pipe that supplied clean water for drinking and other household use. Consumers then formed a neighbourhood action group to monitor the quality of the drinking water, and to bring legal action for compensation.

Kenya's apex court confirms 'novel' rights of victim's counsel
Kenya's apex court confirms 'novel' rights of victim's counsel

A man accused of murdering a student has helped make new law. That's because of the significant judgment issued by Kenya's Supreme Court after he tried to stop counsel for the deceased student becoming involved in the trial. Joseph Waswa, charged with killing Mitch Kibiti Barasa, said that his fair trial rights were infringed when the trial court allowed counsel for Barasa to play a role in the matter. But the Supreme Court has now put him right. The country's highest court has ruled that the Victim Protection Act, the constitution and international law all support the right of victims to be represented by counsel in court - and that counsel may even be allowed to ask questions of the witnesses.

Controversial Ugandan retired military officer loses court bid to prevent arrest during election run-up
Controversial Ugandan retired military officer loses court bid to prevent arrest during election run-up

An increasingly contentious figure in Uganda, retired military general Henry Tumukunde, has just tried – and failed – to invoke judicial help against persistent police action targeted at him. Tumukunde, a once close ally of Uganda’s President Yoweri Museveni, plans to contest the presidential position in next year’s elections. But during the run-up to the elections, he has become a person of considerable interest to the police and the army, and he has been arrested several times. His latest court action was for a temporary interdict to prevent the police from arresting him and violating his constitutional rights.

Litigation in Lesotho as King declines to appoint judges
Litigation in Lesotho as King declines to appoint judges

Many people in the legal world will be aware of the looming constitutional crisis in Kenya where the President, Uhuru Kenyatta, has refused to appoint a number of judges whose names were presented to him by the Judicial Service Commission. Fewer, however, will have been aware that a similar problem has arisen in Lesotho and that litigation is now pending to test whether the King – Lesotho is a constitutional monarchy – may refuse to approve the appointment of candidates proposed by the commission.

Court finds against ‘back door emergency’ in Malawi
Court finds against ‘back door emergency’ in Malawi

A constitutional court in Malawi has delivered an unequivocal condemnation of that country’s Covid-19 lockdown regulations. In its decision last week, the three judges found that the rules were unconstitutional as they were made in terms of a law that did not permit such rules to be made. They also criticised the government for imposing a lockdown without concern for the poor of Malawi who would not have access to food and other essentials if they could not leave their homes. The judge urged parliament to pass new legislation as soon as possible, that would allow the regulations needed in a national health emergency such as the current pandemic.

Kenya pressurised by big oil to backtrack on plastic ban
Kenya pressurised by big oil to backtrack on plastic ban

An alarming new series of reports in the international media claims that the US oil and petro-chemical lobby is putting considerable pressure on Kenya to roll back its environmental protections related to plastic waste. The report has led to strong reaction by the African Commission on Human and Peoples’ Rights. Kenya has played a leading anti-pollution role in Africa, for example with its 2017 ban on the manufacture, sale and distribution of plastic bags. Now the African Commission is urging Kenya’s President Uhuru Kenyatta not to give into pressure that seeks to link the US trade deal he desires with freer access to Kenya by US plastics manufacturers.

High Court grants bail to Zimbabwe opposition leader, journalist
High Court grants bail to Zimbabwe opposition leader, journalist

Two prisoners in one of Zimbabwe’s most notorious jails have been making international headlines as the courts repeatedly denied them bail. This week, however, as South Africa prepared to send a delegation to discuss the deteriorating situation in Zimbabwe, and as the number of international political and legal statements critical of the continued imprisonment continued to grow, the two men were released on the orders of the high court.

Change company law to allow virtual AGMs, Uganda high court urges
Change company law to allow virtual AGMs, Uganda high court urges

The high court in Uganda has urged that the government change the law to make it easier for businesses to hold their annual general meetings online, or via a mixture of a physical and electronic meeting. This is to take account of the restrictions on gatherings, due to Covid-19, imposed by the government on the one hand, and, on the other, the legal requirement that companies must hold AGMs. For the last few months in Uganda, individual companies have been coming to court asking for judicial authorisation to hold electronic meetings. Now, says the court, the time has come to change the law and make electronic meetings the new normal.

SCA cases show up long delays in delivering judgments
SCA cases show up long delays in delivering judgments

Two new decisions by Malawi’s highest court show that at least some of the country’s judges are still not delivering decisions within a reasonable time. In one case a group of people convicted of murder and sentenced to 30 years in prison were still waiting to hear the outcome of an appeal heard more than five years before. In the other, a man convicted of robbery had still not heard the result of his appeal over 37 months later. The judge who heard applications for release on bail in both cases, said he had no idea when the judges involved in the appeal would hand down their decisions. He spoke of the ‘suffering’ of the appellants as they awaited the outcome, wondering if they would ultimately be imprisoned for longer than the appeal court would find they should spend in jail. The judge finally agreed to grant conditional bail in both cases. Two years ago the country’s Chief Justice, Andrew Nyirenda, undertook to ensure judgments were up to date on pain of disciplinary hearings at the Judicial Service Commission, but not all judges seem to have been caught in that net.

Victory for pregnant women after rethink by Constitutional Court
Victory for pregnant women after rethink by Constitutional Court

Uganda’s constitutional court has delivered a major victory for the health of pregnant women. The case was brought by the Centre for Health, Human Rights and Development, along with a health law expert and the relatives of two women who had died in childbirth because of Uganda’s inadequate maternal healthcare conditions. Five constitutional court judges found that the government was underfunding maternal healthcare to the extent that it was unconstitutional. To ensure that this improved, they ordered that the court had to be provided with an audit report on the status of maternal health in Uganda over the next two financial years. The judges further awarded general damages to two of the applicants, relatives of pregnant women who had died because of the violation of their rights to life and health. While the decision has been widely hailed for taking the rights of pregnant women seriously, and ensuring the issue has the protection of the constitution, it also shows that Uganda’s constitutional court is seeing its own role in a changing light: in 2012 the same case had come before the constitutional court but the court refused to hear it on the basis that it amounted to consideration of political issues, namely government allocation of funds to maternal health. However, an appeal to the Supreme Court – Uganda’s apex court – resulted in an order that the constitutional court should consider the issue. Back before a now-differently composed constitutional court, the matter fared rather better second time round.

New head of judiciary for Uganda
New head of judiciary for Uganda

Following the retirement of Uganda’s chief justice, Bart Katureebe, the country’s judiciary has a new leadership team. The new Chief Justice and Deputy Chief Justice were announced by Uganda's President Yoweri Museveni. His official decision came as no surprise as the names had been openly known and discussed for some time before the official announcement.

For Kenya: celebration of its 10-year-old constitution, a growing crisis – and a forthright judge speaks
For Kenya: celebration of its 10-year-old constitution, a growing crisis – and a forthright judge speaks

As Kenya celebrated the 10 th  anniversary of its constitution, with virtual seminars, webinars and other discussions, one of the most serious challenges yet brought under the constitution is making its way through the courts. That problem is the failure of the country’s President, Uhuru Kenyatta, to appoint more than 40 judges nominated by the Judicial Service Commission. And, equally significant, his failure to abide by a court order that the judges be appointed.

'Judicial independence on trial’ in case involving Malawi’s Chief Justice
'Judicial independence on trial’ in case involving Malawi’s Chief Justice

Malawi’s high court has decided that attempts by the country’s former President, Peter Mutharika, to get rid of the Chief Justice and other senior judges by placing them on enforced leave pending retirement, were illegal and unconstitutional. The decision, delivered this week, followed major local and international support for the judiciary of Malawi, after the announcement of the former President’s steps against its leadership.

Two Ugandan judges, two attorneys, sanctioned by US state department over bribery, corruption & adoption scam
Two Ugandan judges, two attorneys, sanctioned by US state department over bribery, corruption & adoption scam

Two Ugandan judges and two attorneys have been named and sanctioned by the US State Department for their role in bribery and corruption related to an adoption scam. One of the two judges retired last year; the other is a sitting judge. A statement on behalf of the judiciary said that there had been awareness of these allegations for some time and that they were being investigated. However, there seems to be little doubt in the legal profession that the investigations will show the judges and the attorneys were involved as the US authorities claim.

Shock judgment bars Zimbabwe human rights lawyer from crucial human rights case
Shock judgment bars Zimbabwe human rights lawyer from crucial human rights case

The legal world was stunned this week by the news that Harare magistrate, N Nduna, had ruled that a lawyer appearing in a case before him was ‘disqualified’ from continuing to act in the matter. Whatever the case, this would have caused concern because of the drastic nature of the step. But this is not just any case. The accused person is an award-winning investigative journalist, Hopewell Chin’ono, who had been researching government corruption questions before his arrest. And his lead counsel is internationally-acclaimed human rights lawyer, Beatrice Mtetwa. The state’s determined prosecution of Chin’ono, refusing him bail, not allowing him to consult with his lawyer in private and insisting that he appear in court in leg irons, all indicate that he is being made an example of, to frighten off other critics. The case comes amid growing community opposition to the government in Zimbabwe. Nduna's judgment will inevitably be criticised as reflecting the court’s failure to respect the Rule of Law. And questions will be asked about whether it is the magistrate, rather than the lawyer, who has become so identified with a cause as to lose ‘impartiality and detachment’.

Judge Key Dingake in new top post
Judge Key Dingake in new top post

A long-standing member of faculty of the Judicial Institute for Africa, Justice Key Dingake, has been sworn in as a member of the Seychelles Court of Appeal.

Recent news

Categories