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Lockdown on hold, AG taken to task: latest from Malawi high court
Lockdown on hold, AG taken to task: latest from Malawi high court

In this week’s round of an ongoing dispute over the validity of Malawi’s Covid-19 restrictions, the high court has ruled that the government's planned regulations may still not be put into effect. The court has referred these challenges to the Chief Justice who will consider setting up a high court constitutional panel that would hear the problem and find a way forward. At its heart, the dispute is about whether the proposed restrictions have a valid legal base and/or contravene the constitution. But this week’s judgment also took on the attorney general’s office for having made no appearance in court when the matter was argued. The court called this a ‘snub’ and ‘astounding effrontery’.

Lessons for Covid-19 from HIV response: don’t forget vulnerable groups - women, the unemployed – and sexual minorities
Lessons for Covid-19 from HIV response: don’t forget vulnerable groups - women, the unemployed – and sexual minorities

In a webinar this week, arranged by UNAIDS and the SADC-Lawyers Association, speakers teased out what could be learned from the response to HIV as countries struggled to manage the impact of Covid-19 on people’s safety.

Dying surrounded by family ‘a most fundamental right’ - court
Dying surrounded by family ‘a most fundamental right’ - court

In a case that has moved readers worldwide and that sparked a judge to comment on the rights of a dying person even during the Covid-19 pandemic, a court has ordered that a terminally ill Nigerian woman living in the UK be allowed to leave the care home where she had been staying, to spend her last days with her extended family. In her decision on the case, UK Judge Nathalie Lieven commented that the woman had ‘something between a few weeks and 3 – 6 months to live’ and that the question was whether she should be able to spend those last days with her family. ‘The ability to die with one’s family and loves ones seem to me to be one of the most fundamental parts of any right to private or family life,’ the judge wrote.

Malawi case flags growing threats to human rights, role of African Court
Malawi case flags growing threats to human rights, role of African Court

Almost every country in the world is experiencing a narrowing of peoples’ rights and freedoms because of government restrictions imposed in the name of fighting the Covid-19 pandemic. But will these governments willingly give up their new powers as the contagion eases? And if not, where should the people of a state look for help, if their own courts uphold these infringements of fundamental rights? In Africa, the African Court on Human and Peoples' Rights would be the court to adjudicate serious rights issues like these. But the question is whether, come the end of the pandemic, the court will be in a position to help. Very few of the 55 members of the African Union have fully signed up to the court in the sense of allowing individuals and NGOs to bring cases of human rights violations for adjudication by that forum. And those numbers have dropped in the past few months, weakening the court further. The case of Malawi human rights activist Charles Kajoloweka should, however, persuade people of the need to protect the African Court from any further withdrawals - and of the need to lobby for more countries to submit to its jurisdiction.

Coronavirus fears hit law firms, courts; plans for containment
Coronavirus fears hit law firms, courts; plans for containment

Law firms around the world are considering how best to help contain the spread of coronavirus among staff and clients. Some legal offices have closed their corporate premises, requiring their staff to work from home. And in some countries even the courts have been affected or are making plans for possible shut-down.

A win for all of South Africa against brutality by security forces
A win for all of South Africa against brutality by security forces

In a major victory for human rights delivered by the high court in South Africa, the family of Collins Khosa and their neighbours have won a court application for orders against the security forces and their bosses. And they will no doubt be awarded significant damages when that part of the litigation is eventually heard. But they are not the only winners: everyone in South Africa has won because of this restatement by the courts of the obvious: that the government and the security forces will be held to account for how they behave - even during restrictions aimed at curbing the spread of Covid-19 - and that their behaviour will be measured against the standards of the Constitution and the Bill of Rights. The judgment is a reminder to everyone in the region that judges and courts are able to act in protection of human rights, and that they can truly make a difference.

Covid-19 and the justice and legal sector
Covid-19 and the justice and legal sector

Covid-19, the viral threat that is sweeping across the world, is not exempting the judicial and legal sector. It raises problems for the operation of courts and legal practices as well as posing novel legal dilemmas. Here is a glimpse of some of the challenges being dealt with internationally in relation to the law, reported over the last week.

Human rights fightback as security forces take abusive action under cover of COVID-19 regulations
Human rights fightback as security forces take abusive action under cover of COVID-19 regulations

As the security forces of some African countries take abusive action against people under cover of Covid-19 lockdown regulations, human rights groups have begun to fight back. Prompted by complaints of serious constitutional rights' violations – beatings, torture and other humiliating treatment – Kenya’s law society has brought a petition to the courts, and a human rights organisation in South Africa has done the same. In Kenya the court has agreed to part of the petition, with other issues still to be argued at a later date, possibly even today, while the SA case could be called later this month.

No protection in Zim for pangolin, alleged trigger of world's coronavirus pandemic
No protection in Zim for pangolin, alleged trigger of world's coronavirus pandemic

Scientists increasingly believe that pangolin meat might have been part of the trigger for the deadly coronavirus. In this case the pangolin would have been bought in a typical Chinese market where illegally obtained wildlife has been an everyday element. But though that news has given new impetus to wildlife protection, it turns out that there is no proper legal protection for the pangolin in Zimbabwe. Cabinet ministers have not added it to the list of protected species whose possession is unlawful - despite being urged to do so in a recent judicial decision.

Judge rejects bid to stop upgrade of 'elite' hospital in Zimbabwe
Judge rejects bid to stop upgrade of 'elite' hospital in Zimbabwe

The High Court in Zimbabwe has rejected an attempt to stop the refurbishment of an incomplete and deserted hospital and make it available for patients ill with Covid-19. The Rock Foundation Medical Centre, sometimes called the Arundel Mediclinic and Arundel Hospital, has been at the centre of a major row, with many government opposition members saying the ruling party was renovating the place for the use of the political elite. Government response to these claims has been equivocal and there is still a strong and widespread belief that the upgraded facilities would be available only to fee paying patients. Since the vast majority of people in Zimbabwe would not be able to afford treatment at such centres, and must rely on public facilities that lack even the most basic equipment, the Rock Foundation hospital and a second facility that is also being upgraded for fee-paying patients, have both become touchstones for public protest.

Court slams lawyers for not having COVID-19 permits to appear in case
Court slams lawyers for not having COVID-19 permits to appear in case

A South African judge has strongly criticised a group of lawyers who appeared in an urgent case that, among other things, dealt with access to water by residents of a municipality affected by a political dispute. The judge said that the lawyers were irresponsible and unprofessional because they had not obtained the permits required to attend a court case under COVID-19 lockdown regulations. The court further ordered that the lawyers were not allowed to charge their fees for the day, and that the question of their lack of proper permits should be reported to the Legal Practice Council.

Fix laws or face huge damages claims – judge warns Malawi lawmakers on the state of Covid-19 disaster legislation
Fix laws or face huge damages claims – judge warns Malawi lawmakers on the state of Covid-19 disaster legislation

In a long and highly unusual judgment, a judge of Malawi’s high court has shown that the country’s legislation is completely unprepared to manage the coronavirus pandemic, and without the appropriate regulations or, in some cases, even appropriate laws. The judge made these findings in a case that concerned 10 Chinese nationals visiting the country. In a series of steps by officials of Malawi’s immigration and citizenship services some were deported, while the remaining four are still in Malawi although attempts were made to send them back to China. Official action against them appears, however, to have been taken without the proper legal basis: officials were unable to use the present health law that dates back to 1948, and so decided on action based on a 'resolution'. In deciding the interim questions raised in the first part of the case, the judge examined laws essential for the state of disaster declared to deal with the coronavirus and found the laws ‘archaic’, ‘obsolete’ and in a ‘total shambles’. The judge also strongly resisted claims that appear to be circulating in Malawi, that judges who demand that official action must be taken in terms of some law or regulation, are ‘unpatriotic’. He warned that unless laws and regulations were urgently fixed so that they are fit for purpose and will stand up in court, the state as well as local authorities could find themselves facing massive claims for damages in relation to actions that are not lawful.

Controversial Lesotho PM prorogues Parliament, gets taken to court
Controversial Lesotho PM prorogues Parliament, gets taken to court

Lesotho’s Prime Minister, Tom Thabane, has signed papers suspending parliament for three months. He cited the coronavirus pandemic to explain his decision. Ironically, a full-on legal application contesting the validity of his Covid-19-based decision, was heard in a virtually empty court due to steps aimed at containing spread of the disease. But the case also marked a significant step for the country’s broadcaster which, for the first time, carried a court hearing live on national television and radio.

Malawian law students lose their challenge to Covid-19 university closure
Malawian law students lose their challenge to Covid-19 university closure

A group of four students studying law in Malawi have lost their high court case challenging the validity of the President's Covid-19-related directives. They also lost their challenge to the closure of their university in terms of those directives. But it was not all bad news for them – at least the students won commendation from the presiding judge for ‘taking their future seriously’.

Costs order a lesson about 'frivolous' Covid-19 claims - labour court
Costs order a lesson about 'frivolous' Covid-19 claims - labour court

The first case testing whether sufficient protection was available for medical staff working on the front line against the coronavirus in South Africa, has resulted in an ignominious conclusion for the union that brought the legal action. The National Education Health and Allied Workers Union (Nehawu) launched its challenge as a matter of urgency in the Labour Court, alleging that the government was not providing adequate protective gear to Nehawu members working in particular hospitals. In the end, however, it was unable to provide any evidence of a lack of personal protective equipment (PPE) at any of the medical facilities mentioned in its claim, and withdrew its case. But despite that withdrawal the court gave a full judgment, reciting information provided by the government about the stocks of PPE available in the hospitals or ordered. The judge said it was necessary to evaluate the union's claims in a formal, written decision so that the public was assured about the situation. The case led to the national Minister of Health giving a clear statement of the preparedness of SA's medical facilities for dealing with Covid-19 in relation to health workers' protective gear. It is also important because the judge spelled out that a court could adjust the 'standard of what constitutes frivolous and vexatious conduct' in litigation so that parties who pursued 'obviously untenable legal points' or used the court as 'part of power-play', or made allegations they could not substantiate, would know that they risked a cost order if they should lose. In other words, the judge gave notice of how a court might consider the question of costs in a case brought at a critical time like this, when the case involved serious claims that could not be backed up.

As ‘moral Covid-19’ infects Namibia, even legal profession touched by Fishrot bribery scandal
As ‘moral Covid-19’ infects Namibia, even legal profession touched by Fishrot bribery scandal

The ‘Fishrot’ corruption scandal engulfing Namibia seems set to choke the country’s legal profession as well: while the Law Society of Namibia tries to access the records of one of its prominent members, suspected of being involved in the scandal and to have used his trust account for money-laundering, it has become clear that a number of the society’s council members face problems of a conflict of interest in the matter. In fact, so many of the council are hampered in one way or another, that local media speculate the society’s attempts to investigate involvement by members of the profession in the scandal could be compromised.

Kenya’s Covid-19 restrictions invalid, unlawful – law society
Kenya’s Covid-19 restrictions invalid, unlawful – law society

Kenya’s law society has launched a court application challenging the validity of the country’s Covid-19 restrictions because they have not been approved by parliament. The law society also claims they are invalid because they discriminate against the poor, in that they make wearing masks compulsory while those living in poverty will not be able to afford them. Further, the society argues that the regulations go further than the laws from which they derive their power, will allow.

'Just not good enough' - get up to speed for electronic hearings: UK court
'Just not good enough' - get up to speed for electronic hearings: UK court

Like it or not, the coronavirus is forcing lawyers – judges, magistrates, prosecutors, advocate and attorneys – to play catch up with technology. Many courts are now operating through the lockdown or other social distancing restrictions via electronic hearings, and judges have to be up to speed. A number of recent cases show the courts wrestling with the question of how much extra time should be allowed to parties for preparation when the case is to be heard electronically. And under what circumstances should a court agree to postpone a matter until it is possible that lockdown will be lifted, so that the case may be heard as in the past? If ever there was a case that illustrated the problems involved with Covid-19 regulations and their impact on hearings in legal matters, it is this one.

Judge orders curfew exemption for Kenya’s lawyers
Judge orders curfew exemption for Kenya’s lawyers

Kenya's High Court has declared as unconstitutional the 'unreasonable use of force' by police since a dusk to dawn curfew came into effect in that country on 26 March. The court has also ordered that the authorities must include lawyers and members of the police oversight authorities on the list of those exempt from the provisions of the curfew, established as a response to the coronavirus. The curfew was implemented because the government was reluctant to impose a lockdown as has been the case in a number of other countries.

Suspension of Lesotho's parliament 'irrational', 'unlawful' - court
Suspension of Lesotho's parliament 'irrational', 'unlawful' - court

It was a transparent attempt to avoid a vote of no-confidence by parliament, hiding behind a claim to be protecting MPs from Covid-19. And now the controversial Prime Minister of Lesotho has had his come-uppance from the country’s high court which ruled his prorogation of parliament was invalid. Just another blow for the soon to be ex-PM, Thomas Thabane, a man under suspicion of involvement in the murder of his estranged second wife. Just how soon is far from clear, however, with defiant Thabane saying he will choose how and when to make his exit.

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