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Copyright & A2K Issues - 3 November 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. If you wish to unsubscribe, please email Denise.Nicholson@wits.ac.za .   Please note :  This information service will be closing down on Friday 11 December 2020, but you will still be able to access the Archives at:  https://africanlii.org/content/copyright-and-a2k-issues

Judge claims CJ instructs how cases must be decided
Judge claims CJ instructs how cases must be decided

The crisis in Zimbabwe heightened this week, with a spotlight now pointed at internal problems within the judiciary. First, a judge who was suspended on contested grounds has launched an urgent application to prevent a disciplinary tribunal from being set up to investigate her. In the course of her founding affidavit she made some grave allegations against the Chief Justice, for example, saying that he routinely intervened to ensure judges decided matters in a certain way. And then, as the people of Zimbabwe were digesting her claims, a second document was published, this time apparently put out by judges of the high court and the supreme court, making similar allegations about the role of the CJ and his irregular interventions.

International honour for Malawi’s judges

When five of Malawi’s judges overturned that country’s presidential elections in 2019 because of 'grave irregularities', it seemed a brave and startling thing to do. Their decision led to fresh elections and then to a change in government. Now it has also caused them to win an international award, the Chatham House Prize, given to those the institute feels have made the most significant contribution to improved international relations.

Mapping legal impact of the African Court
Mapping legal impact of the African Court

As the number of decisions by the African Court on Human and Peoples’ Rights grows, legal scholars have become keen to track its influence. Now there’s a formal project dedicated to doing just that – and it needs your help.

Attorney loses battle with Chief Justice over dirty hands
Attorney loses battle with Chief Justice over dirty hands

Strange to say, there are two current cases in the region citing a Chief Justice as respondent in a civil matter. Apart from the grave issue involving the Chief Justice of Zimbabwe (see above), there is another case in which the respondent is a Chief Justice. This time it is the judicial head of Eswatini, Bheki Maphalala, who was sued as a respondent, along with the government of Eswatini and the attorney general. The applicant was a local attorney, Muzi Simelane, whose battle with the CJ over the issues raised in this judgment, has lasted for a number of years.

Elections for Africa's top human rights bodies should be transparent, merit-based
Elections for Africa's top human rights bodies should be transparent, merit-based

African Human Rights Day seems like a good time to reflect on an issue that affects all three of the continent’s premier human rights bodies: the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child. This issue is one that is raised in a new report by Amnesty International, and it’s an issue faced by each country separately as well, namely how the system of choosing judges is run, in order to ensure transparency, fairness and the best candidates.

Support rule of law – by sharing law books
Support rule of law – by sharing law books

A small charity based in the United Kingdom has been helping judges, lawyers and NGOs by providing them with law books. The books are free and must be requested online.

No evidence, no arrest - Kenya high court
No evidence, no arrest - Kenya high court

A prominent Kenyan legal academic and practising advocate, Professor Tom Odhiambo Ojienda, is in the midst of a running battle between himself and the country’s tax bosses and prosecution services. The authorities claim that he has not paid tax on payment for work in a series of cases. The claims are particularly damaging for Ojienda, given that his law company advertises itself as ‘a top-tier law firm comprising a dedicated team of advocates and support staff offering expert legal advice’. After he was arrested and detained by the prosecuting authorities, Ojienda asked the courts to intervene, and they have now done so, with the judge holding that Ojienda should not have been arrested as there had been no evidence to justify such a step. The judge said that the power to prosecute was like a ‘river’. It had to ‘flow within its course,’ he said. Anytime it left its path ‘it causes floods and untold human suffering’. The power of the prosecution services had to be confined ‘within the four corners of the constitution’, otherwise innocent citizens would suffer if the courts did not check the abuse of that power.

A TRIBUTE TO GEORGE BIZOS - A LARGER THAN LIFE CRUSADER FOR JUSTICE
A TRIBUTE TO GEORGE BIZOS - A LARGER THAN LIFE CRUSADER FOR JUSTICE

On the 9th of September 2020 George Bizos, that unrelenting crusader for justice, succumbed to death at a ripe age of 92. His passing hit close to home. It left my brother, Mike (a former client of Bizos) heart-broken. I was similarly deeply saddened. He impacted on our lives in different ways. Mike wrote me soon after he learnt of his passing: “My intimates are falling in quick succession. Beginning to feel like I am in the queue”.  Not long time ago he lost another close friend – Andrew Mlangeni, an anti-apartheid campaigner, who, along with my brother and Nelson Mandela were imprisoned for furthering the aims of the African National Congress (ANC) and were sentenced to serve in Robben Island.

World Mental Health Day highlights shackling, inadequate court response
World Mental Health Day highlights shackling, inadequate court response

Just as Human Rights Watch issued its horrific report on the shackling of people with mental illness in many countries around the world, so an equally horrific case has emerged in Namibia. The report and the case show that there is a great deal still to be done to sensitise ordinary members of communities round the world – and, sadly, this includes magistrates, whom one might expect to know better – about how to respond to mental illness and what the law and the constitution require in such cases. Judges of Namibia’s high court recently picked up on review that there had been a problem with the trial of a woman recognised as mentally ill by her community, but by the time the magistrate responded to their questions almost a year down the line, it was too late: though the judges set aside her conviction days before World Mental Health Day, she had already served the sentence in full.