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Kenya court says no more 'jobs for pals', sets aside 130 appointments
Kenya court says no more 'jobs for pals', sets aside 130 appointments

Kenya’s President Uhuru Kenyatta has been dealt another blow by the country’s courts, this time by three members of the high court who found a raft of appointments he made in June 2018 was unconstitutional. As the media in Kenya have pointed out, the list of more than 100 appointments made at that time of people to head parastatal organisations or serve on those boards, was dominated by individuals who had failed to win election in the 2017 polls. Now those appointments have been set aside on the basis that the mechanism followed was not the transparent, merit- and competition-based process envisaged in the constitution. Instead, there was not even an attempt to show any ‘semblance of transparency and accountability’. Nor was there any evidence of ‘any form of competition’.

Warnings offered by Zambian land expropriation case
Warnings offered by Zambian land expropriation case

As South Africa moves towards more stringent laws to allow expropriation of property without compensation, cases in other parts of the region show the pitfalls of expropriation even where compensation is paid. A new case from Zambia’s apex court concerns land expropriated from a farmer, ostensibly for development in the public interest. It turned out, however, that fraud was involved and that after a long period in which nothing was done with the land, it was sold off – at one stage for the development of a luxury hotel and golf course. When nothing came of that project either, the land was allocated to other developers who re-sold the property for private development purposes. One of the questions the judges of Zambia’s apex court had to consider was what the court’s attitude should be in such a case, given that the fraudulent misrepresentation came to light only after the supreme court’s earlier judgment that found the expropriation had been lawful.

Application that Zim’s former CJ be found in contempt of court
Application that Zim’s former CJ be found in contempt of court

The decision by Zimbabwe’s former Chief Justice, Luke Malaba, to return to work despite a high court declaratory order that his tenure of office ended when he turned 70, has been challenged in court with an application that the former CJ be found in contempt of court, fined and imprisoned, for acting in a way that precipitated a ‘constitutional crisis’. The contempt application was brought by a human rights lawyer involved in one of the two applications leading to a court finding that Judge Malaba could not stay on in office beyond his 70 th  birthday.

Drama as Zim court finds Chief Justice must retire, confusion about an appeal
Drama as Zim court finds Chief Justice must retire, confusion about an appeal

An urgent application, brought last weekend to stave off a constitutional crisis in Zimbabwe, may not achieve this aim, despite a court victory. The case challenged the extension of office of the country’s chief justice, Luke Malaba, for an additional five years beyond the constitutionally mandated retirement age of 70, thanks to a new constitutional amendment. Human rights lawyer Musa Kika, in whose name the case was brought, said that if Malaba were to stay on, unconstitutionally, then all decisions he made would be void. The matter should be heard urgently to stave off a constitutional crisis, he argued. After a marathon hearing, the three high court judges agreed that Malaba had to step down at 70 and that the deputy chief justice should now become the acting CJ. This provoked a furious reaction from the minister of justice who claimed that the judiciary had been ‘captured’ by foreign elements. But the outcome of the case creates a problem for those who wish to appeal. As all the supreme court judges have been cited in the case – they too are affected by the amendment that grants an additional five-year tenure – who is to hear an appeal?

Tough questions asked about JSC’s role in extending tenure of Zim’s retired CJ
Tough questions asked about JSC’s role in extending tenure of Zim’s retired CJ

The drama of Zimbabwe’s ‘judicial amendment’ is far from over. This week, two separate letters demanding information were sent to the judicial service commission, asking for details about the JSC’s role in considering or facilitating the extension of retired Chief Justice Luke Malaba’s tenure. The week also saw the government trying some damage control in the wake of the extraordinary statement issued by the minister of justice after the high court declared that Judge Malaba’s extension of office was invalid and that his retirement had begun on his 70 th  birthday.

Tough court sentence could mark shift on albinism murders in Malawi
Tough court sentence could mark shift on albinism murders in Malawi

A high court judge in Malawi has sentenced a gang who killed a man with albinism for his body parts, to life imprisonment, and recommended that they not ever be given sentence reduction by the country’s President. Judge Redson Kapindu said life imprisonment was perhaps an ‘even sterner’ punishment that the death penalty, since the prisoner had ‘only hopeless, painful years’ ahead of him, ‘… stretching out forever’. The murder of adults and children with albinism is a growing problem in many African countries, and some international organisations have criticised what they see as the inadequate response by government, police investigators, prosecutors and even the courts, which, in the view of these organisations, pass sentences that do not reflect the gravity of the crime or act as a deterrent. Perhaps the tough approach taken by Judge Kapindu, could mark a new phase in judicial response to this crime?

SADC and Covid-19: collective failure to meet human rights obligations says ICJ
SADC and Covid-19: collective failure to meet human rights obligations says ICJ

The International Commission of Jurists has brought out a briefing paper on access to Covid-19 vaccines in the Southern Africa Development Community states. The report is called, ‘The Unvaccinated: Equality not Charity in Southern Africa’. It finds a collective failure to ensure access to vaccines even though more than 60 000 people have died due to the virus and the lives of countless others have been affected. The failure was caused by a number of factors, according to the report. These include denialism (Tanzania and Madagascar) and the failure to share relatively greater resources (South Africa). Even though SADC’s chair, President Filipe Nyusi of Mozambique encourages a ‘regional pooling of resources’ to make it easier to procure vaccines and their distribution, ‘SADC has … taken no clear action towards this goal.’

Tough new approach to sentencing in child rape cases
Tough new approach to sentencing in child rape cases

A significant development is under way in Malawi’s high court judgments on sentencing in child rape cases. Three new decisions by a couple of high court judges show a clear determination to treat such crimes with great seriousness and for sentencing to reflect the gravity of the crimes. The judges have also made significant critiques of aspects of defilement cases, with suggestions for what can be done to improve matters.

Ongwen sentenced by ICC: court’s intricate balancing task
Ongwen sentenced by ICC: court’s intricate balancing task

Dominic Ongwen, a former child soldier captured by the Lord’s Resistance Army in northern Uganda and forced to join that militia, has been sentenced as an adult for the more than 60 counts of which he had been convicted by the International Criminal Court. Ongwen, found guilty of war crimes and crimes against humanity among others, escaped life imprisonment because of his unique personal circumstances, a reference to his childhood abduction.

Malawi joins growing trend outlawing death penalty
Malawi joins growing trend outlawing death penalty

First, Malawi’s courts found it was unconstitutional for the death penalty to be mandatory in cases where the accused was convicted of murder. Now the apex court has found, by an overwhelming majority, that the death penalty itself is unconstitutional, and has ordered that everyone on death row must be re-sentenced. One member of the court dissented, without ever commenting on the issue of the constitutionality of the death penalty, finding that the route to resolving the appeal before the nine judges could be resolved in a different way.