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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.

Preserve your independence, court urges Namibian election commission
Preserve your independence, court urges Namibian election commission

A full bench of Namibia’s high court has found that the country’s electoral commission acted unlawfully when it removed certain approved names from the list of candidates supplied by a political party and allowed other party members to replace them and be sworn-in, instead. Two members of Namibia’s Popular Democratic Movement brought the application when the electoral commission permitted a number of PDM members, not on the PDM list approved by the electoral commission before the polls, to replace those who had been approved by the commission. In its decision, the court said the commission acted beyond its powers in allowing the party to substitute names after the elections. It could not allow parties to ‘parade’ candidates for election and then after the polls, ‘put up totally different persons who were never “marketed” to voters as candidates.’

Copyright & A2K Issues - 13 July 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)

Court slams father's attempt to avoid maintenance for his daughter, 6
Court slams father's attempt to avoid maintenance for his daughter, 6

An apparently wealthy property owner, politically well-connected and a major player in Zimbabwe's guest accommodation industry, is in trouble with the Harare high court. That's because he has been doing all he can to make sure his 6 year old daughter does not get the maintenance the mother says she needs. The man - unnamed to protect the child's identity - 'divested himself of assets' to defeat the mother's claim for a maintenance increase. He formed a trust to which he donated all his income-generating properties. Though the child was listed as a beneficiary, the 'trustees' resolved at a board meeting that she would not receive maintenance 'to the disadvantage of other beneficiaries'. The trustees also decided that during the current year 'no beneficiary was to ... benefit from the trust, including the minor child'. According to the judges, the 'inescapable conclusion' from the facts was that the father formed the trust to ensure the child did not get maintenance. The problem of men who go to extraordinary lengths, including legal stratagems to avoid their financial responsibilities to wives and children, is not uncommon but rarely surfaces in court.

Congratulations to Namibia on its achievements in preventing human trafficking
Congratulations to Namibia on its achievements in preventing human trafficking

Namibia has become the only African country to make it to the world’s top-ranking list, ‘Tier 1’, in the fight against human trafficking. This has brought the number of countries worldwide, recognised as Tier 1, to 34 in 2020. Countries at this level have fully met the international standards for the elimination of human trafficking.

Man, criticised by court for not being open about his wealth, leaves divorce empty-handed
Man, criticised by court for not being open about his wealth, leaves divorce empty-handed

A man who walked out of his family home 20 years ago, after having a number of affairs and giving his wife an incurable sexually-transmitted infection, has emerged empty-handed from their divorce. This, after the high court ruled that he had made no contribution to the support of his family since he quit the matrimonial home. The man had demanded half of the house in which his now former wife lived, even though he is a well-to-do international business man. She, on the other hand, has no property to her name apart from the house in which she has been living since their marriage in 1983.

High Court in Zimbabwe orders woman be recommended for Mvuthu chieftainship vacancy
High Court in Zimbabwe orders woman be recommended for Mvuthu chieftainship vacancy

When their chiefly father died leaving only three daughters, the eldest of them, Silibaziso Mlotshwa, might have seemed the obvious choice to succeed to the Mvuthu chieftainship. But instead her uncle, Saunders Mlotshwa, got the nod from the government's district administrator. This followed a meeting of the Mlotshwa men at which they said a female chief ‘would be an insult’. Now, however, the high court in Bulawayo has ordered that the administrator propose the daughter’s name for the vacant position. The judge said it was unconstitutional to discriminate against her and that the earlier recommendation that the uncle should take the throne was unlawful.

Directors beware! The court declares Dudu Myeni (former SAA Chair) a Delinquent Director

It is a common principle within South African company law that a company is managed by its board of directors (“ Board ”). The Board bears the responsibility for the functioning and management of the company and is ultimately accountable for the performance thereof. However, the Board’s collective responsibility does not exclude the individual responsibility and liability of each of the directors. Where the company performs poorly due to the dishonesty, recklessness or gross negligence of the Board, the individual directors may be held jointly and severally liable for breaching their fiduciary duties as contemplated in the Companies Act, 2008 (“ Companies Act ”), and for those individuals who are directors of State Owned Entities (“ SOEs ”), the Public Finance Management Act, 1999 (“ PFMA ”).

Apex courts in two African countries try to avoid ‘absurd results’ in labour matters
Apex courts in two African countries try to avoid ‘absurd results’ in labour matters

Time limits on filing appeals and reviews can bring litigation to an abrupt end when they are not observed. But what is a court to do if it is not clear when the time limits actually start. The apex courts of two African jurisdictions have found themselves dealing with exactly this question – when do the days of a time limit begin to run? And the question was made even more complicated because the high courts in both countries had produced two contradictory positions from which the apex courts had to choose.

Namibian President must sign affidavit on exercise of his ‘formidable powers’ – high court
Namibian President must sign affidavit on exercise of his ‘formidable powers’ – high court

A full bench of Namibia’s high court has found certain of the country’s Covid-19 regulations unconstitutional and invalid. These include regulations aimed at preventing employers from dismissing staff or from forcing them to take leave during the pandemic. The decision made clear to the Namibian authorities that, even during an emergency situation like the present, the constitution must be respected. It also stressed that in a case such as this, the President is expected to sign an affidavit on his reasons for regulations: ‘reverence’ for his office cannot be an excuse not to do so.

Uganda's Chief Justice Bart Katureebe retires, heads for his 'village'
Uganda's Chief Justice Bart Katureebe retires, heads for his 'village'

One of the most recognisable of Africa's Chief Justices - partly because of his height - Bart Katureebe, has retired on reaching 70, the mandatory age for judges to quit in Uganda. The former Chief Justice had a wide-ranging career before becoming a member of Uganda's Supreme Court, and his legacy includes introducing an electronic case management system for the country.

Judge slams Kenya's 'shameful' treatment of diplomat
Judge slams Kenya's 'shameful' treatment of diplomat

The High Court in Nairobi has strongly criticised the government’s action in deporting from Kenya a diplomat representing Niger. Ali Oumarou, who has been recognised by Kenya as honorary consul for Niger, was summarily deported in August 2019. Oumarou has since challenged his deportation in the Kenyan courts from outside the country. The High Court in Nairobi has now given its judgment on the matter, with a scathing assessment of the government’s failure to adhere to the constitution. Judge James Mukau said the court would not tire of reminding the government that the constitution was Kenya's supreme law. ‘It has life and it has teeth,’ he said. The way Oumarou had been treated was ‘unbearably shameful’ for a democracy, said the judge. He granted a slew of orders, including one that stopped the government preventing Oumarou from returning to Kenya without proper cause and without following due process.

Copyright & A2K Issues - 29 June 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)

'Indeed the dead have rights' - Kenyan high court in Covid exhumation case
'Indeed the dead have rights' - Kenyan high court in Covid exhumation case

Relatives of a Kenyan man who died shortly after the outbreak of the Coronavirus pandemic, have asked that his hurriedly-buried body be exhumed, tested for Covid-19 and then re-buried with proper traditional rites. They complained that during a late-night burial, the body of James Onyango was put into a shallow grave wrapped in a plastic bag, while a ‘battalion of police officers’ and local government officials surrounded the family house. This was contrary to custom and had caused stigma in their traditional village. Government authorities, however, said post-mortem tests showed that Onyango had Covid-19 and thus he had been buried hastily, according to the practice prevalent in April, with very few attending. The family was particularly worried that wild animals could dig up the body as it was not buried in a coffin, nor in a grave of the normal depth. They said the dead man had a right to human dignity ‘even in death’. In a lengthy judgment, Judge Rosemary Aburili concluded that exhumation was not advised given the health hazards involved, but ordered the grave site be properly cemented to prevent animals from digging it up.  She also spoke about the fear and stigma, even at present, if someone in the family was suspected of having Covid-19. She said such a person was ‘surrounded by an army of public health officials, accompanied by heavy security teams, captured like a stray monkey [and] taken to quarantine at the suspect’s own cost.’

Supply doctors, health workers with protection, court tells Lesotho government
Supply doctors, health workers with protection, court tells Lesotho government

Doctors in Lesotho have won a major constitutional battle. They brought a case against the country’s minister of health, the minister of finance and the minister of public service, among others, claiming that their constitutional rights had been infringed in a number of ways. In particular they said they were not being provided with proper personal protective equipment (PPE). They were also unhappy because long-established supplementary payments to them had been cut off by government, all in the name of shortage of funds. On both issues the court has declared their constitutional rights were violated, and the judges also ordered the government parties to provide doctors and health workers with PPE ‘within a reasonable time’.

Copyright & A2K Issues - 23 June 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)

Malawi's judicial crisis deepens: resistance to gvmt moves placing CJ on immediate leave
Malawi's judicial crisis deepens: resistance to gvmt moves placing CJ on immediate leave

Malawi remains tense after last weekend’s shock government announcement of action against the country’s Chief Justice, Andrew Nyirenda. The government said that, with immediate effect, it was sending him on leave ‘pending retirement’. That announcement galvanised the local and international community and led to protests in a number of Malawian cities. It also led to many statements of support for Malawi’s judiciary, including from other African Chief Justices. In response to the action taken against the Chief Justice, the Malawian judiciary issued a statement of its own saying that the Chief Justice and other judges - whose immediate departure from office ‘on leave pending retirement’ had also been announced by the government - would all be back at work as usual in the week that followed. All of this legal drama took place as the country prepared for new elections on June 23, following the Supreme Court’s judgment, upholding the Constitutional Court, to the effect that the elections of 2019 were invalid.

Judge murdered while presiding in massive DRC corruption trial
Judge murdered while presiding in massive DRC corruption trial

Judge Raphael Yanyi, presiding in the high-profile trial of a senior Democratic Republic of Congo official facing corruption charges, died on May 26. Three successive versions of the cause of his death have now been given – a heart attack, poisoning and stab wounds to the head. His family is calling for an independent autopsy to be conducted by international experts who are independent of the DRC government. Sentence is likely to be imposed on the three accused in the case on June 20, by another judge who stepped in to continue the case after Judge Yanyi died.

A war against the nation's women and children - Ramaphosa
A war against the nation's women and children - Ramaphosa

In his most recent address to the country on the Covid-19 situation, President Cyril Ramaphosa of South Africa has spoken about easing the restrictions imposed on the country since March 27. But he took his audience by surprise when he deviated from his usual format to speak strongly – even with some passion – about the terrible increase of killings and abuse of women and children that has characterised the period of restrictions imposed to curb the Coronavirus.

Major decision on gay rights by US Supreme Court
Major decision on gay rights by US Supreme Court

The US Supreme Court this week delivered a judgment in which the majority held it was unlawful, under the Civil Rights Act of 1964, to dismiss anyone on grounds of ‘sex’ – and that this included firing anyone because they were gay or transgender. Three judges disagreed, saying the law dealt with ‘sex’ – not ‘sexual identity’ or gender.

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