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Eswatini’s highest court reverses itself; holds customary marriages are ‘lawful’

It’s rare for any country’s apex court to reverse an earlier decision it had made and say it was wrongly decided. But Eswatini’s supreme court has recently done just that. In fact, it went even further, and declared that elements of two of its own decisions needed to be set aside as made in error. The key issue in the case was the status of marriages in Eswatini, made in terms of local customary law. Both the two earlier decisions had upheld the consequences of a 1902 colonial law, and concluded that such marriages were not ‘lawful’. The particular result of that finding in the new case was to question the jurisdiction of the master of the high court to deal with the deceased estate of someone married under customary law.

Crucial case on judicial independence unfolds in Seychelles

While many readers were enjoying a well-deserved year-end break, the apex court of Seychelles was deciding another phase in what appears to be a crucial case on judicial independence. Three petitioners – the Seychelles human rights commission, ombudsman and bar association – are jointly challenging the lawfulness of a controversial constitutional amendment, saying it undermined the rule of law. But before the main case was argued, the petitioners asked the judges hearing the matter to recuse themselves. That’s because an official government statement, issued at the time the amendment was ratified, indicated that ‘the judiciary’ had helped finalise the amendment. The notice particularly named the supreme court and the appeal court. Since the judges hearing the challenge were thus included, they should step down, said the petitioners. In addition, the chief justice was believed to have received land from the state at a price lower than its true value, and a reasonable person might thus question the CJ’s ability to adjudicate impartially in matters involving the interests of government. When the supreme court judges hearing the matter refused to recuse themselves, or to grant leave to appeal, the petitioners turned to the apex court of Seychelles. In record time, the appeal court has now given its decision.

Nasty Supreme Court surprise for Namibian man who hid properties from ex-wife to avoid child maintenance increases

Namibia’s supreme court has given a scathing judgment in the case of a man who resorted to fraud or attempted fraud to hide his new property acquisitions so his ex-wife couldn’t access them for child maintenance. Instead, the properties were bought in the name of his then-fiancée so that they would appear not to belong to him. The judges have held that such an agreement was against public policy, ‘morally reprehensible’ and thus unenforceable. The man, who has since walked out on his fiancée and married someone else, was trying to get the properties back from his fiancée now that their relationship had ended. The supreme court ordered that he should get 60% of the two properties and his former fiancée, 40%. The judges also approved the high court’s order that the former fiancée be paid N$5 000 for breach of his promise to marry her.

Power of attorney: does it give non-lawyers the right to litigate?

Complaints about ‘fake lawyers’ have been surfacing in several African jurisdictions. But what about people who don’t even pretend to be lawyers? What if they claim instead that even though aren’t legally qualified, they have the right to represent a ‘client’ in court, via a power of attorney?  A new Zambian judgment makes clear that the courts in that country at least, will take a tough line should they be faced with such a claim.

Kenyan magistrate loses court battle against judge co-contender for top job at law body

Kenyan magistrate Derrick Kuto made headlines in December 2021 when he became the first magistrate to head the Kenya Magistrates and Judges Association. After outvoting high court judge Patrick Otieno, by 290 votes to 113, Kuto took over as president of the association. The term of office is for two years, renewable once. Kuto has clearly expected a second two years in office, but his bid hasn’t been straightforward. It has taken a detour through the high court’s constitutional and human rights division, where the judge who heard the dispute, Enock Mwita, has now delivered a judgment dismissing Kuto’s petition.

Successful human trafficking prosecution could see Namibia’s ratings improve

Namibia’s high court has convicted four people in relation to the trafficking of two young girls, one of them from Angola. Their convictions include infringement of immigration laws, not sending children to school, kidnapping, common assault and rape. In its 2022 global report on trafficking in persons, the US state department rated Namibia as Tier 1 because of its continued commitment to deal with trafficking. However, Namibia was downgraded to Tier 2 in the 2023 report, because of several problems like ‘inappropriately’ penalizing trafficking victims by imprisoning or deporting them, for offences ‘solely committed as a direct result of being trafficked.’ The investigation and prosecution in this new case will likely be among the factors that the US state department considers when ranking Namibia in its next report.

Zambia's constitutional court upholds judge's dismissal

Five judges of Zambia’s constitutional court have rejected an application by a former member of the high court bench, Joseph Banda, challenging the decision of the country’s president, Hakainde Hichilema, to remove him from office in May 2022. The action against Banda is part of the current government’s declared push to fight corruption. However, in addition to upholding the decision to remove Banda, the judgment also shows that the process of holding Zambian judges to account on matters of misconduct is not operating as it should.

Kenyan lawyer must personally repay funds received from ‘corrupt deal’

A prominent Kenyan lawyer has been ordered personally to pay Kshs10 million to the country’s Ethics and Anti-Corruption Commission (EACC). In a decision handed down last week, high court judge Esther Maina said Joseph Owino Kojwando had acted to conceal the source of funds and that he was not entitled to keep any part of the money as ‘instruction fees’, since this would unjustly benefit him. The case dealt with land acquired by the then city council of Nairobi to use as a cemetery, in a deal that has since been held by several high court judges to have been fraudulent. According to the EACC, Kojwando was paid Kshs10 million as part of the cemetery deal. The judge also ordered that Kojwando pay the legal costs of the case plus interest at 12% from the date he received the money until it’s paid, in full, to the EACC

Explained: why the UK’s highest court declared Rwanda agreement unlawful

A combination of factors led the UK’s apex supreme court to hold that the government’s deal with Rwanda wasn’t lawful. Among them was Rwanda’s poor human rights record, and the Rwandan judiciary’s lack of independence. The deal, outsourcing the management of asylum-seekers to Kigali, is a key element of the UK government’s policy. But it has also been hotly contested, both in political debate and in the UK courts. Initially, the divisional court dismissed a challenge to the deal, but that approach has now been twice rejected, first by the court of appeal and more recently, by the UK’s supreme court. Here’s what the top court found.

Pioneering legal victory for childhood statelessness fight

The staggering size of Southern Africa’s childhood statelessness problem is mostly hidden, even though an estimated 12 million children under five years old aren’t registered at birth. Tebogo Khoza was one of them, and the impact on his life has been devastating. But Khoza is one of the lucky ones: after many years of fruitless effort, stymied by official bloody-mindedness, he found lawyers to help him. Now, after a landmark case, a court has ordered that he be given the documentation he needs – and his life as a full member of the community can begin at last.