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Foreigner's health issues insufficient to halt deportation
Foreigner's health issues insufficient to halt deportation

How poor must a country's medical facilities be before the UK courts may bar government from returning an illegal foreigner there? It is a question UK judges are increasingly having to grapple with, most recently in the case of 'PF', a Nigerian who has a serious, chronic disease. He also has a lengthy criminal record for which the UK authorities want to deport him.  PF suffers from sickle cell disease and his lawyers say to send him back to Nigeria would condemn him to an early, painful death. They also argued that the distress to his children if he were deported would infringe the European Convention on Human Rights. Though PF won an earlier round in his battle to stave off deportation, the Appeal Court has now found it has no evidence that he would not be able to access morphine and other medicines he needs in Nigeria. Deportation would thus not cause a 'serious, rapid and irreversible decline in health resulting in intense suffering', the current standards a deportee must meet before UK judges may set aside a deportation order on the grounds of illness.

Uganda’s human rights law takes enforcement to new level

What must surely be one of the most significant laws passed by the present administration in Uganda is being used for the first time in a pending court case – and the police officers involved in the case must be worried about the outcome as well as its possible impact on their pockets. That’s because they could be held liable if they are found to have infringed the new law by violating the human rights of the applicants. They could also be ordered to pay part of any damages that might be awarded, and might also be dismissed.

Top Namibian Minister quits after corruption conviction
Top Namibian Minister quits after corruption conviction

It is not common to read of a high court finding a government minister guilty of corruption but, this week, what might be unthinkable in many countries came to pass in Namibia: the Minister of Education, Arts and Culture was convicted under anti-corruption laws for actions taken when she was still a district Governor. Katrina Hanse-Himarwe has since resigned, getting in first as it became clear that President Hage Geingob planned to dismiss her.

Copyright & A2K Issues - 8 July 2019

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)

"Contemptuous" report on planned major coal power plant dismissed by Kenya's environmental tribunal
"Contemptuous" report on planned major coal power plant dismissed by Kenya's environmental tribunal

In one of the most significant victories ever won by Kenya’s community and environmental activists, the National Environmental Tribunal has cancelled the licence for a controversial Chinese-funded coal power plant due to be erected near the town of Lamu, next to the sea. Among the sharp criticisms of the developers by the Tribunal was its failure to carry out proper community consultations.

What is a life worth in Uganda's courts?
What is a life worth in Uganda's courts?

Two recent decisions from the civil division of Uganda’s high court provide an interesting contrast. International media have picked up on one of them, in which a man was arrested by police, “violently beaten” by them and then taken to the cells where he was found dead next morning. The other, given virtually no publicity, concerns a man who was unlawfully held for four days in detention and then spent the next four years, on bond, forced to report regularly to police, before his bond was cancelled and the whole issue collapsed. Which case do you think won the higher damages award by the court?

You only have Rights if you are a Person: How Zambia is Legislating Away the Rights of Persons with Psychosocial Disabilities
Hearing obligatory before police are transferred  – Lesotho’s Court of Appeal
Hearing obligatory before police are transferred  – Lesotho’s Court of Appeal

Is there a legal principle granting a hearing before a decision is made to transfer police officers in Lesotho? It was a topic of some heated discussion in that country when two officers – one of whom had been transferred eight times in a 17-year career – were given their transfer papers without a prior consultation or hearing. The Court of Appeal has now held that though the Police Act says nothing on the subject, there was a legitimate expectation that there would be a hearing – unless the police authorities could prove that “special circumstances” existed. And, said the court, it would “strictly interpret” the existence of special circumstances.

Uganda’s anti-gay laws feature in UK immigration hearing
Uganda’s anti-gay laws feature in UK immigration hearing

Because of Uganda’s well-known punitive approach to homosexuality among men and women a specialist UK court has ordered that a woman, deported from the UK to Uganda, should be returned so that she could continue her efforts to be given asylum. The woman, known only as “PN” had claimed she should not be sent back to Uganda as she was a lesbian and would be subject to discrimination, prosecution and worse, on account of her sexuality.

Landmark ruling gives immigration abuse inquiry more muscle
Landmark ruling gives immigration abuse inquiry more muscle

Two detainees from African countries, held at Brook House, an immigration detention centre close to the UK’s Gatwick Airport, are at the centre of an important new decision by the UK courts. This decision, delivered last week, will enable an inquiry into horrific abuses of detainees at Brook House to be held in public. Almost more important, it ensures that the inquiry will have the power to compel staff from the centre to give evidence.

Mass prisons’ promotions declared invalid by Lesotho’s appeal court
Mass prisons’ promotions declared invalid by Lesotho’s appeal court

Eight officers of Lesotho’s correctional services were suddenly appointed to higher positions during March 2015. The mass promotion was however successfully challenged by the Lesotho Correctional Services Staff Association which claimed the whole exercise was conducted unprocedurally. Now the Court of Appeal has agreed that the acting head of correctional services acted beyond his powers in making the appointments. This is bad news for the officers concerned because it means that they must refund all the extra money they were paid on the basis of the unlawful promotions.

Top Zim judges “regret” no change to outdated law that harms women
Top Zim judges “regret” no change to outdated law that harms women

Activists for women’s rights have been challenged by Zimbabwe’s court of appeal to lobby for changes to the law to protect spouses and families. As it stands, the law allows one spouse to alienate his or her half share of the matrimonial property even without the permission of the other spouse. A case just decided by that court illustrates the problem: a woman who paid for the family home entirely out of her own earnings, but then had the property registered in the names of both spouses, now risks co-owning the house with a complete stranger after her husband’s share was attached to satisfy a debt for which he stood surety.

Judge, no soccer fan, recuses himself from murder trial involving fanatics of the game
Judge, no soccer fan, recuses himself from murder trial involving fanatics of the game

Judges have a duty to hear cases that come before them, and so decisions to stand down and refuse to hear a matter should only be made on very serious grounds. What then, is the public to make of the decision by a judge of the high court, Eswatini, to recuse himself from a sensational murder trial, half way through the case, on the grounds that some of his family and friends have or had close links with a soccer club whose fortunes might perhaps somehow be implicated in the killing? The judge himself, as he strongly reiterated, has no affiliation to any soccer club’s fan base, and recognizes that the links for which he stood down are “indirect”. Just as troubling: why did the prosecution not appeal the recusal decision; and why did the Chief Justice appoint another judge to pick up the trial, mid-way, instead of starting afresh?

Without the SADC tribunal, “legitimacy of SADC community in jeopardy” – Tanzanian high court
Without the SADC tribunal, “legitimacy of SADC community in jeopardy” – Tanzanian high court

Tanzania’s high court has come out strongly on the human rights implications of suspending the Southern African Development Community Tribunal, the regional court originally set up to consider disputes between states as well as between individuals and states. In a landmark decision the court said that without the tribunal, “the rule of law in the internal management of SADC and its institutions would be nothing but a pipe dream.” The new decision by the Tanzanian court follows a judgment by South Africa’s highest court finding Pretoria had unlawfully backed the demise of the Tribunal. The SADC Lawyers Association, that has been helping coordinate regional challenges to the suspension of the tribunal, has welcomed the new Tanzanian judgment and says that because the Presidents who supported the suspension are no longer in power, the time has come to consider re-establishing the Tribunal with its original mandate.

Copyright & A2K Issues - 21 June 2019

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)

Abortion allowed when pregnancy follows rape - Kenya's constitutional court
Abortion allowed when pregnancy follows rape - Kenya's constitutional court

The right of Kenya's girls and women to abortion where their physical and mental health is at risk, has been confirmed by five judges of that country's Constitutional Court. The judgment is all the more significant coming just a few weeks after the same court rejected any lessening in the legal burdens of gay men. The latest case challenged the decision of Kenya's director of medical services (DMS) to withdraw guidelines on an abortion training curriculum for health care practitioners, and to threaten disciplinary action against anyone who attended the training; this despite constitutional provisions that allow for abortion in certain circumstances. In the wake of these decisions by the DMS, a 14-year-old girl who became pregnant after being raped, had a botched illegal abortion and later died when various government facilities were unable to help her. Her family brought an application against the government saying that the decision to ban training on dealing with abortion and after-abortion care had led to her death.

Top judge pleads for protection of judicial officers
Top judge pleads for protection of judicial officers

The safety of judicial officers was a recurring theme during the conference of the International Association of Judicial Officers' Africa region. These dangers - even in court - were starkly illustrated just as the conference was ending: a fight broke out between members of rival gangs in the corridors of the Johannesburg magistrates court. Members of the public tried to hide or run away, and eye-witnesses said only the quick intervention of police prevented serious injury. In his welcome speech at the opening dinner of the conference, the Judge President of the Western Cape, host province of the event, raised the safety issue for what would be the first - though not the last - time during the five-day event.

"Timorous" judges vs "bold spirits"
"Timorous" judges vs "bold spirits"

The positive role that judges could play in Africa has been hampered by the increasing politicization of the judiciary, judicial corruption, lack of resources and judicial conservatism, according to Professor Charles Fombad of the Institute for International and Comparative Law in Africa at the University of Pretoria. In a challenging address to the International Association of Judges’ Africa region conference in Cape Town, Fombad urged judges to take note that if these issues were not properly dealt with, the “reverse winds” of authoritarianism and the decline of good governance and constitutionalism, caused by politicians clinging to power, might prevail.

Judicial officers urged to join associations
Judicial officers urged to join associations

One of the strong themes of the International Association of Judicial Officers' Africa region conference was that judicial officers should join professional associations. This call came after decades in which judicial leaders have strongly advised against such associations, and at a time when they are still regarded with some suspicion in top judicial circles. Throughout the conference, speakers stressed the importance of such associations for judicial officers, not just in relation to conditions of employment, but also in helping maintain the rule of law.

Magistrates are judicial officers, not civil servants - Joasa
Magistrates are judicial officers, not civil servants - Joasa

The proper place of magistrates within a constitutional state came under the spotlight again at the closing ceremonies of the International Association of Judges’ African region conference, held in Cape Town. It had been a recurring theme throughout the conference, with delegates from a number of countries complaining that magistrates were often treated as civil servants, and their judicial independence ignored or undermined by government.

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