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Three decades later, former Kenyan air force member may sue for torture – appeal court
Three decades later, former Kenyan air force member may sue for torture – appeal court

In a major new decision, Kenya’s court of appeal has ruled that a claim alleging torture under a previous regime may be heard – even though it is more than 30 years since the events involved. The case concerns Michael Kibuti, a previous member of the armed forces, who was tortured and then discharged after a court martial following a failed coup in 1982. It was originally heard in the employment and labour relations court as Kibuti wants the court to recognise that various of his constitutional rights were violated by the torture meted out to him, and he also claims the terminal benefits due to him when he was discharged. However, that court dismissed the petition saying his claim was disqualified. Kibuti then turned to the appeal court for help and the judges of that court have held the matter must be properly heard by a trial court.

Copyright & A2K Issues - 30 January 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 email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Copyright & A2K Issues - 20 February 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 email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Copyright & A2K Issues - 19 February 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)

Top court reigns in Kenya's President over judicial appointments
Top court reigns in Kenya's President over judicial appointments

Kenya's President Uhuru Kenyatta has violated the constitution by not appointing judicial candidates whose names were given him by the Judicial Service Commission in the middle of last year. That's according to a finding of the country's Constitutional Court, which has held that the President plays only a ceremonial part in judicial appointments and was constitutionally obliged to enroll those chosen by the JSC. The judges said Kenyatta had no constituitonal power to 'review, reconsider or decline to appoint' those recommended by the JSC.  The significant new decision follows many months of silence from the President in the wake of the JSC's recommendations for appointment. According to Kenyatta, who argued that he had the right and the duty to decide for himself whether the JSC nominations were appropriate, questions were raised about some of the candidates by the country's intelligence services. Rejecting this justification, the court said the appointment of judges 'should be immediate and as soon as recommendations are forwarded to him' by the JSC, and suggested that the process should take no longer than 14 days. The strongly-worded decision is the latest in an ongoing struggle between the President and the judiciary dating from at least 2017 when the Supreme Court annulled national elections and ordered a fresh round of voting across the country

Uganda judiciary to hold court in refugee camps; warn police on judicial independence
Uganda judiciary to hold court in refugee camps; warn police on judicial independence

It has been a busy time for Uganda's judiciary, in the media for contrasting reasons. The judiciary put its collective foot down after police summonsed a magistrate in connection with a case he had heard and which the police were also investigating. In a strongly-worded statement the judiciary said that such actions were ‘irregular’ and that the police ‘cannot summon judicial officers to explain how they handle court cases.’ Another, more positive development, has seen the judiciary in discussion with the Refugee Law Project over holding court sessions in refugee camps starting as soon as next month. Uganda hosts about 1.4 milllion refugees, more than any other African country, and this step is seen as highly significant in offering refugees in camps better access to justice.

Relatives of Lesotho's PM appeal bail granted to his 3rd wife, charged with murdering wife number two
Relatives of Lesotho's PM appeal bail granted to his 3rd wife, charged with murdering wife number two

The decision by Lesotho’s Acting Chief Justice to grant bail to the wife of that country’s Prime Minister, Tom Thabane, is to be challenged as an urgent matter in the apex court of appeal. Relatives of Thabane, including a grandson who shares his name, have lodged the appeal claiming the ACJ granted bail under ‘suspicious circumstances’. Thabane’s wife, Maesaiah Thabane, has been arrested by the police in connection with the murder of Thabane’s previous wife, Lipolelo. When she was asked to report to police for questioning, Maesaiah fled Lesotho to South Africa but later returned. The Thabane relatives are joined in their appeal by the survivor of the shooting, Thato Sibolla, who was in the vehicle with Lipolelo at the time that unknown gunmen open fire on it.

This woman is supposed to be a leader, not a 'flower-girl'
This woman is supposed to be a leader, not a 'flower-girl'

The controversial new head of Kenya’s National Employment Authority (NEA) board has already lost her job. This after the high court found Mary Wambui Munene did not qualify for the position. The NEA is intended to help with the serious unemployment problem among young people in Kenya. But Wambui was 'handpicked' for the job, without the selection process laid down for positions of public office. The judge hearing the dispute over her appointment said he could find not one iota of evidence in Wambui’s CV to suggest she had any experience in human resource management, let alone the seven years required for the post. Government lawyers argued that her appointment should stand since she would be little more than a ‘ceremonial steward’ on the board. But the judge retorted, ‘As a chairperson (she) is not expected to be a flower-girl in the NEA, but the person to provide leadership to the board … to ensure that it achieves its functions.’ Under Kenya’s new constitutional dispensation, government had to ensure that taxpayers got their money’s worth from appointees to public office, he added.

Judges' scandal in South Africa raises questions over Judicial Service Commission
Judges' scandal in South Africa raises questions over Judicial Service Commission

In many African countries a special ceremony is held during January to mark the start of the official court year. No such tradition has yet developed in South Africa. But the 2020 legal year got off to a spectacular start all the same: the deputy judge president of the high court in one of SA's biggest provinces issued an affidavit making sensational claims against the judge president and his wife, who is also a judge in the same division. Now their battle has spread to other parts of the judiciary as well as the Judicial Service Commission which is supposed to deal with complaints involving judges. There are two major issues to note: first, the judge concerned already has an unresolved serious complaint against him from more than 10 years ago, with no sign that it might be heard, let alone finalised, any time soon; second, the JSC has a growing reputation for being unwilling or unable to manage disciplinary issues involving judges.

'Inescapable conclusion': Malawi polls fatally flawed, say concourt judges
'Inescapable conclusion': Malawi polls fatally flawed, say concourt judges

Malawi’s constitutional court has found the May 2019 national elections awarding presidential victory to Peter Mutharika, invalid. One of the most interesting aspects of this landmark judgment is the sense of judicial confidence that comes through in each of the well over 400 pages. There is no tentative digging in corners to find possible technical infringements. By the time they had gone through the evidence led by all the parties, the five judges of Malawi’s high court constitutional division were ready to bring out the big guns and find the integrity of the elections had been fatally undermined. This was not because of bribery and corruption (though alleged, these claims were not proved, said the court) but because of the way the checks and balances had been skewed, final reports constantly changed and over-written and voting records duplicated, to name just a few issues.

Lesotho’s King urged: don't appoint ACJ as Chief Justice
Lesotho’s King urged: don't appoint ACJ as Chief Justice

While the police continue to search for the current wife of Lesotho’s head of government, Tom Thabane, in connection with the murder of his former wife, Thabane has announced that he is to quit office on a date still to be announced. Thabane, whose ruling All Basotho Convention is riven with splits, is also of interest to the police, who say that Thabane’s personal phone was used at the scene of his second wife’s murder. His current wife disappeared when police said they wanted her for questioning. But while he mulls his departure date, and reflects on where his wife might be, Thabane has not been taking life easy: he has been busy pushing for the Acting Chief Justice to be appointed Chief Justice.

'Silent', 'curt', law society admonished by Namibian high court
'Silent', 'curt', law society admonished by Namibian high court

When the high court of Namibia asked the country’s law society what it thought about a candidate for admission as a lawyer, the judge had a ‘curt reponse’. The court was anxious to hear from the society as the candidate had frankly admitted to having a criminal record. Did this mean he was not a ‘fit and proper’ person for admission? Or did the society have reason to believe he could be admitted after all? Faced with the law society’s lack of response, the judge asked the society of advocates to help the court instead. But, he warned, the ‘silence of the NLS’ is ‘totally out of order and must not be allowed to take root or be repeated.’

Speedy justice puts brakes on attempted fraud
Speedy justice puts brakes on attempted fraud

A company set on pulling a fast one on the government of Malawi has just had a quick lesson on the impact of speedy justice. Asked to supply a number of tyres and tubes for the country's prison service, the company obliged (before a price had been agreed on) and then billed the authorities for more than double the going rate for tyres a year later when the case was heard. To add insult to injury, the company then demanded payment with interest at 10% more than the bank rate. President of Malawi's Specialised Commercial Court Judge John Katsala was, however, having none of it.  Noting that the two sides had been disputing the sum owed ever since the invoice arrived, he found there had been no prior agreement about the price and set a rate that appeared fair to him. Then, throwing out the interest rate demanded by the company, he gave the government 14 days to settle the bill he had approved.Remarkably, the case came to court, was argued fully and a written judgment delivered, all less than two years after the government made its original request for the tyres.

The Gambia wins first round in genocide case
The Gambia wins first round in genocide case

One of the most extraordinary recent developments in international law has been the so-far successful challenge by The Gambia to the policies and practices by Myanmar against its minority Muslim Rohingya people. The Gambia took the matter to the International Court of Justice, where it alleges these practices amount to genocide, a claim denied by Myanmar. In the latest round, The Gambia has won a series of provisional orders against Myanmar. The unanimous decision by the 17 judges of the International Court of Justice, delivered yesterday, 23 January 2020, included four interim measures to be taken by Myanmar to protect the Rohingya from any acts of genocide and to retain evidence that might be needed when the court gets to hearing the merits of the case.

Should recalcitrant county officials pay for environmental restoration from their own pockets?
Should recalcitrant county officials pay for environmental restoration from their own pockets?

Judging from a recent case decided by Kenyan judge Dalmas Ohungo, working in the environment and land court can be a truly soul-destroying job. Virtually two years after the court delivered a judgment against a local county government for violating the right to a clean and healthy environment of the people in its area, the local authorities have done absolutely nothing to fix the situation – and they have consistently ignored the court’s orders.

Judge Mathilda Twomey of Seychelles to step down as Chief Justice
Judge Mathilda Twomey of Seychelles to step down as Chief Justice

Unlike many presidents who seek extensions of a constitutionally-mandated limited term of office, the chief justice of Seychelles, Mathilda Twomey, has honoured her commitment to just one five-year term and will step down later this year. Speaking at the opening of the supreme court’s 2020 legal year, the chief justice spoke passionately about judicial independence and the courage required to exercise true independence. She also urged the establishment of a law reform commission, saying efforts to make the legal changes needed in Seychelles were hindered by ‘outdated, unreformed laws’. When Judge Twomey leaves her post as chief justice, she will remain a member of the judiciary, but will focus on her work as part of the Seychellois court of appeal.

HIV+ prisoners' victory opens door to rights-based legal action

Two HIV+ prisoners held in Lusaka's central prison, have won a case against the prison authorities that could have widespread repercussions for other prisoners and for rights-based litigation more broadly. They claimed their rights to life and dignity were infringed by conditions in the cells. In response, Zambia's highest court has ordered the government to ensure they are provided with a balanced diet and access to the medicine and treatment they need given their condition. They must also be housed in cells that are neither a health risk, nor in such a condition that they constitute inhuman and degrading treatment or additional punishment. The court has further ordered that the prison authorities must provide the courts with regular updates on what has been achieved by way of reducing overcrowding and improving conditions in the cells. A part from its important orders related to prison conditions, the judgment is also crucial from a legal perspective: the High Court had found that though the prisoners had proved the terrible conditions under which they were housed, there was nothing the courts could do about the situation as the rights infringed were not justiciable. The Supreme Court overturned that finding, leaving the way open for other challenges on issues previously thought out of bounds for the judiciary.

‘Remarkable African jurist, judge and scholar’ – Jifa faculty member lauded
‘Remarkable African jurist, judge and scholar’ – Jifa faculty member lauded

When the Judicial Institute for Africa (Jifa) schedules training for African judges, one of the most important preparatory issues is who to invite as faculty. Then follows an anxious time of discussion to ensure that the invited jurist will be available and willing to assist. Among those who regularly offers enthusiastic help and expertise is Justice Oagile ‘Key’ Dingake, originally from Botswana’s high court but now enjoying an international judicial career. Justice Dingake's remarkable writing, teaching and judicial life thus far – he is in his mid-50s - has been the centre of a new media profile that we are delighted to share with you.

Regional court overturns Sierra Leone ban on pregnant girls attending school, writing exams
Regional court overturns Sierra Leone ban on pregnant girls attending school, writing exams

For years organisations and individuals have urged the government of Sierra Leone to re-think its 2015 ban on pregnant girls attending mainstream schools and writing exams. But they had no success. Eventually some of these organisations approached the Court of Justice of the regional Economic Community of West Africa States (ECOWAS), arguing that important rights of such girls were violated by the bar on attending school. Today, the court noted its decision: the ban was discriminatory and had to be overturned, said the judges.

Citing outdated colonial attitudes, Zambia's Con Court dumps laws on chiefs
Citing outdated colonial attitudes, Zambia's Con Court dumps laws on chiefs

Contemporary Zambian laws allowing the President to regulate traditional chiefly appointments have been declared unconstitutional. The laws, based on colonial-era ordinances, were tested when a prominent traditional leader disputed the President’s power to legitimise a chief’s appointment through ‘recognition’. The court found that these presidential powers infringed the amended constitution saying ‘no law’ could allow anyone the right to ‘recognise or withdraw the recognition of a chief’. Given the promises of the constitution and its supremacy over all other law, provisions of the Chiefs Act allowing the President a say in the choosing of chiefs and other traditional leaders were unconstitutional and were to be ‘expunged’ from the statute books.

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