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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.

Support grows for Zimbabwe protesters

A number of legal and human rights organisations have expressed support for the people of Zimbabwe and for lawyers who are struggling on behalf of clients arrested by the government of Emmerson Mnangagwa. The past few weeks have been marked by violent attacks on protesters by members of the Zimbabwe police, by the arrest of journalists on trumped up charges and their detention after the courts refused bail, and by growing international concern at the stance taken by Manangagwa and his government, now widely regarded as ‘probably worse than (former President) Robert Mugabe’ whose regime became an international by-word for corruption, intolerance of dissent and the violent abuse of political opponents.

Copyright & A2K Issues - 14 August 2020

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc.  Archives are available at:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:  http://lists.wits.ac.za/mailman/listinfo/copyrightanda2kinfo    or email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Far-reaching symposium on ‘spectacular recent efforts’ at undermining judicial independence in Africa
Far-reaching symposium on ‘spectacular recent efforts’ at undermining judicial independence in Africa

Potentially far-reaching decisions about strengthening support for judicial independence in Africa were taken at a two-day online symposium held last week. Nine organisations hosted the event, illustrating the kind of joint action in support of judicial independence that participants said was essential. Speakers described judicial independence as ‘the last line of defence for the rule of law, human rights and democracy in East and Southern Africa’. They said it was crucial that legal organisations worked with civil society to protect judicial independence. Recent experiences had also shown the importance of support from organisations, regional and international, that were representative of judges and Chief Justices.

Court stalls moves by Kenya's President putting judiciary under executive control
Court stalls moves by Kenya's President putting judiciary under executive control

The Law Society of Kenya has succeeded in putting at least a temporary brake on the government’s plan to transfer the judiciary and a number of independent bodies to the direct control of the executive. In May President Uhuru Kenyatta signed Executive Order No 1/2020, making these changes, and the law society responded by filing a petition shortly afterwards. Last week the high court’s constitutional and human rights division considered that petition and granted an interim order in terms of which the executive order is put on hold, pending full argument of the case. Judge James Makau said this was a suitable case for the court to intervene against ‘the excesses of the Executive’ which was using administrative processes to extend its powers.

Tanzania’s apex court rules bail-ban law is constitutional
Tanzania’s apex court rules bail-ban law is constitutional

Tanzania’s Criminal Procedure Act includes provisions that automatically refuse bail to people charged with certain offences. Earlier this year the high court found that mandatory prohibition of bail was unconstitutional. The court's decision restored discretion to the judiciary and meant that the question of whether to grant bail, whatever the alleged offence, would have been a matter for the individual judge to decide. But the high court finding was overturned by the Court of Appeal this week. Five judges of the appeal court said mandatory barring of bail did not amount to an ouster clause, and that the constitution was not infringed by making certain offences ‘unbailable’.

Libel case fails: court finds election was at stake and media had ‘duty to publish’

Issues around elections continue to be heard by the courts. This time the case concerned a scandal that was brewing in 2002, about the malfunctioning IT system that was supposed to compile a national voters’ register for Uganda’s then pending election. Members of the consortium that seemed unable to sort out the register brought a defamation action against the publication that broke the story. But the court found the report was truthful and accurate and that the public needed to know the information as the success of the election was at stake.

Parents dispute paying private school fees during lockdown
Parents dispute paying private school fees during lockdown

Parents of children at a private school in Kenya have won an interim high court order in what promises to be a significant constitutional dispute related to Covid-19. The parents say they should not have to pay full fees for the third term of the 2020 school year and that the school may only charge for the services offered, namely for ‘virtual class or digital calls’. For its part, the Sabis International School, Runda, objected to the legal action brought against it by parents of children attending the school on the grounds that the parents had signed a contract with the school that was ‘private’, and that the court ought thus ‘not to intervene in these private matters’. Last month Kenya’s education secretary George Magoha said that the rest of the 2020 school year ‘will be considered lost’ because of the pandemic and that schools would only re-open in January 2021. Those due to write final exams would sit them next year.

‘Barred and interdicted’
‘Barred and interdicted’

The Young Lawyers Association of Zimbabwe scored a victory of note this week. The Zimbabwe Republic Police had issued a press statement on 25 July, listing in minute detail the documents that would be required at checkpoints throughout the country, with immediate effect. But the legal organisation challenged the lawfulness of the police action and were granted an interim order barring the police from demanding the documents listed in the press statement.

'Not merely a department of state’: new Commonwealth statement of principles on funding the judiciary
'Not merely a department of state’: new Commonwealth statement of principles on funding the judiciary

An important new set of principles on the proper financing and resourcing of the judiciary has been issued by the Commonwealth Magistrates’ and Judges’ Association (CMJA). The principles, issued this month, are likely to prove just as influential as the Commonwealth (Latimer House) principles dealing with the accountability of and relationship between the three branches of government. They are a timely contribution to the debate on judicial funding, given that the judiciary in a number of African countries is struggling to obtain the funding needed – and the number of judges required.

Laptop left on, so private conversation in judge's chambers heard in courtroom
Laptop left on, so private conversation in judge's chambers heard in courtroom

This is a case that offers a warning lesson to every reader, judge, counsel and litigant. And it is particularly relevant to everyone struggling to come to terms fully with the ways that the coronavirus pandemic affects the practice of law. The UK judge at the heart of this matter was dealing with a difficult case of possible child abuse arising from the death of a baby, and had to decide what arrangements should be made for the care of the remaining child. She decided to hear some of the trial remotely by Zoom, and some of it with witnesses physically present in court. But problems arose at the end of a 'live' court session when the judge, thinking her laptop had been switched off, had a conversation with someone in her chambers about the parties – and a number of people still in court were able to hear what she said as the computer had not been disconnected. The result was an application for her recusal on the basis of remarks critical of the mother and, after she refused to stand down, the issue went on appeal.

Sacking of 14 judges by South Sudan President unconstitutional: East African Court of Justice
Sacking of 14 judges by South Sudan President unconstitutional: East African Court of Justice

When a government removes one judge from office in a way that flouts the constitution and judicial independence it would be bad enough. But a case brought to the East African Court of Justice (EACJ) by Justice Malek Mathiang Malek against South Sudan’s President Salva Kiir for dismissing him, was just the tip of the iceberg. In fact, Justice Malek was one of more than a dozen judges dismissed by the government in 2017. But Justice Malek, who has had more than 20 years’ experience on the bench, decided he was not simply going to accept the situation. Instead, he brought an action against the Attorney General of South Sudan before the EACJ. And, last week, that court decided in his favour, ruling that the dismissal of the judges was unconstitutional, against the law of South Sudan – and amounted to a violation of the East African Community Treaty.

Courts’ differing views on whether independent candidates may contest elections
Courts’ differing views on whether independent candidates may contest elections

The role of independent candidates in elections is contested in many African countries. The Constitutional Court in South Africa issued a landmark decision on the question during June 2020. It held that the law had to be changed so that independent candidates may contest seats in elections. When a similar complaint was brought to the courts in Nigeria, however, the result was the opposite: there the courts upheld laws permitting candidates to contest political elections only via established political parties. Seven Nigerians subsequently asked the Court of Justice of the Economic Community of West African States (ECOWAS), for its view. Now, three ECOWAS judges have handed down their decision. They found against the seven, and held that the Nigerian system, with its bar on independent candidates, was valid, lawful and not an infringement of rights in the African Charter.

Allowing birth certificates for voter ID would be a ‘retrograde step’ – Ghana’s Supreme Court
Allowing birth certificates for voter ID would be a ‘retrograde step’ – Ghana’s Supreme Court

Two combined applications testing decisions of Ghana’s attorney general and related to the national elections scheduled for 7 December 2020, have been decided by that country’s Supreme Court. Determined to clean up Ghana’s voter register, the AG gazetted new regulations. Among them was the decision not to allow the old (current) voter identification cards to be used to identify people wanting to register as voters on the new, updated list. The other contentious decision was that birth certificates would also not be accepted to prove identity for that purpose.

Two judges of the region die as a result of pandemic. RIP
Two judges of the region die as a result of pandemic. RIP

The judiciary in Lesotho and South Africa has been shaken by the death of colleagues as a result of the Covid-19 pandemic. Both Judge Patrick Jaji of SA’s Eastern Cape bench, and Judge Lisebo Chaka-Makhooane of Lesotho’s commercial court, had been confirmed as having contracted the virus, and died of associated complications.

Concern about CJ's instruction that heads of court should 'see and approve' all judgments before delivery
Concern about CJ's instruction that heads of court should 'see and approve' all judgments before delivery

A storm broke over the head of Zimbabwe's Chief Justice Luke Malaba when he issued a memo to heads of court on 16 July, 2020. Among others, the memo instructed that before a judgment was delivered by any judge, 'it should be seen and approved by the head of court'. The instruction led to a major furore, with critics at home and abroad saying it infringed judicial independence. They asked what would happen if a head of court disagreed with and declined to 'approve' a judgment that a member of the judiciary was about to deliver. This lead to statements of support for judicial independence being published on social media, along with messages expressing alarm about the situation. Subsequently, on 21 July, the Chief Justice issued a revised memo. On that day, via the Judicial Service Commission, there was also a reply to a letter of concern sent to the Chief Justice by the Law Society of Zimbabwe.

Dream job in Seychelles
Dream job in Seychelles

The Chief Justice of Seychelles, Justice Mathilda Twomey, is stepping down from the position, and a search has begun to fill the post. Among other responsibilities, the Chief Justice sees to the discipline of legal practitioners in Seychelles and sits on the Supreme Court, the Constitutional Court and, ex officio, on the Court of Appeal.

More work needed on Ivory Coast's election commission - African Court
More work needed on Ivory Coast's election commission - African Court

For the second time, Ivory Coast has been taken to the African Court on Human and Peoples’ Rights over whether the country’s electoral commission is sufficiently independent and impartial. In 2016, the court found the then electoral commission seriously lacking, and in 2017 it gave a further decision spelling out and interpreting its earlier decision. The commission has been reworked since then but a different group of challengers have tested the new body, claiming it was still not sufficiently independent or impartial. In its decision given last week, the African Court found the applicants had not shown that the new electoral body was made up of members who were not independent and impartial. Nor had they shown that it was clearly balanced in favour of the ruling party. However, there were other issues that needed to be addressed. For example the court found that Ivory Coast had not fully complied with its obligations because of a ‘manifest imbalance’ in the number of chairpersons of the local electoral commissions proposed by the ruling party. The court ordered Ivory Coast to take the steps needed to remedy these shortcomings in its electoral commission ‘before any election’ is held. As national presidential elections are scheduled for the end of October this year, the court’s decision means urgent attention will have to be given to the issue or the polls will be susceptible to criticism for non-compliance with this ruling.

New book points to solutions for civil case backlogs
New book points to solutions for civil case backlogs

When the deputy chief justice of Namibia writes a book on court-managed civil procedure in that country’s high court, then judges in many countries should pay attention. That's because it is written by the judge who is widely regarded as the architect of Namibia's new and highly successful system, and he has made sure that his book will be informative and helpful for other countries wanting to follow the same path - towards judicial case management and a dramatic reduction in civil case backlogs.

African Court tells Tanzania: your constitution violates basic rights
African Court tells Tanzania: your constitution violates basic rights

Africa’s premier regional court, the African Court on Human and Peoples’ Rights, has found that Tanzania’s constitution is in breach of the African Charter and other international law. This is because it provides that no one may test the results of Tanzania’s presidential elections in court. Tanzanian advocate, Jebra Kambole, brought the litigation in the African Court saying his rights under the African Charter had been violated. Finding in favour of Kambole’s application, the court ordered that Tanzania amend its constitution to remove this violation. Tanzania was also given 12 months to submit a report on what had been done to implement the terms of the judgment, and was ordered to publish the court’s decision on the websites of the Judiciary, and of the Ministry for Constitutional and Legal Affairs. The judgment text is to remain on these websites for at least a year after publication.

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