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Libel case fails: court finds election was at stake and media had ‘duty to publish’

Issues around elections continue to be heard by the courts. This time the case concerned a scandal that was brewing in 2002, about the malfunctioning IT system that was supposed to compile a national voters’ register for Uganda’s then pending election. Members of the consortium that seemed unable to sort out the register brought a defamation action against the publication that broke the story. But the court found the report was truthful and accurate and that the public needed to know the information as the success of the election was at stake.

Tanzania’s apex court rules bail-ban law is constitutional
Tanzania’s apex court rules bail-ban law is constitutional

Tanzania’s Criminal Procedure Act includes provisions that automatically refuse bail to people charged with certain offences. Earlier this year the high court found that mandatory prohibition of bail was unconstitutional. The court's decision restored discretion to the judiciary and meant that the question of whether to grant bail, whatever the alleged offence, would have been a matter for the individual judge to decide. But the high court finding was overturned by the Court of Appeal this week. Five judges of the appeal court said mandatory barring of bail did not amount to an ouster clause, and that the constitution was not infringed by making certain offences ‘unbailable’.

Laptop left on, so private conversation in judge's chambers heard in courtroom
Laptop left on, so private conversation in judge's chambers heard in courtroom

This is a case that offers a warning lesson to every reader, judge, counsel and litigant. And it is particularly relevant to everyone struggling to come to terms fully with the ways that the coronavirus pandemic affects the practice of law. The UK judge at the heart of this matter was dealing with a difficult case of possible child abuse arising from the death of a baby, and had to decide what arrangements should be made for the care of the remaining child. She decided to hear some of the trial remotely by Zoom, and some of it with witnesses physically present in court. But problems arose at the end of a 'live' court session when the judge, thinking her laptop had been switched off, had a conversation with someone in her chambers about the parties – and a number of people still in court were able to hear what she said as the computer had not been disconnected. The result was an application for her recusal on the basis of remarks critical of the mother and, after she refused to stand down, the issue went on appeal.

‘Barred and interdicted’
‘Barred and interdicted’

The Young Lawyers Association of Zimbabwe scored a victory of note this week. The Zimbabwe Republic Police had issued a press statement on 25 July, listing in minute detail the documents that would be required at checkpoints throughout the country, with immediate effect. But the legal organisation challenged the lawfulness of the police action and were granted an interim order barring the police from demanding the documents listed in the press statement.

Sacking of 14 judges by South Sudan President unconstitutional: East African Court of Justice
Sacking of 14 judges by South Sudan President unconstitutional: East African Court of Justice

When a government removes one judge from office in a way that flouts the constitution and judicial independence it would be bad enough. But a case brought to the East African Court of Justice (EACJ) by Justice Malek Mathiang Malek against South Sudan’s President Salva Kiir for dismissing him, was just the tip of the iceberg. In fact, Justice Malek was one of more than a dozen judges dismissed by the government in 2017. But Justice Malek, who has had more than 20 years’ experience on the bench, decided he was not simply going to accept the situation. Instead, he brought an action against the Attorney General of South Sudan before the EACJ. And, last week, that court decided in his favour, ruling that the dismissal of the judges was unconstitutional, against the law of South Sudan – and amounted to a violation of the East African Community Treaty.

'Not merely a department of state’: new Commonwealth statement of principles on funding the judiciary
'Not merely a department of state’: new Commonwealth statement of principles on funding the judiciary

An important new set of principles on the proper financing and resourcing of the judiciary has been issued by the Commonwealth Magistrates’ and Judges’ Association (CMJA). The principles, issued this month, are likely to prove just as influential as the Commonwealth (Latimer House) principles dealing with the accountability of and relationship between the three branches of government. They are a timely contribution to the debate on judicial funding, given that the judiciary in a number of African countries is struggling to obtain the funding needed – and the number of judges required.

More work needed on Ivory Coast's election commission - African Court
More work needed on Ivory Coast's election commission - African Court

For the second time, Ivory Coast has been taken to the African Court on Human and Peoples’ Rights over whether the country’s electoral commission is sufficiently independent and impartial. In 2016, the court found the then electoral commission seriously lacking, and in 2017 it gave a further decision spelling out and interpreting its earlier decision. The commission has been reworked since then but a different group of challengers have tested the new body, claiming it was still not sufficiently independent or impartial. In its decision given last week, the African Court found the applicants had not shown that the new electoral body was made up of members who were not independent and impartial. Nor had they shown that it was clearly balanced in favour of the ruling party. However, there were other issues that needed to be addressed. For example the court found that Ivory Coast had not fully complied with its obligations because of a ‘manifest imbalance’ in the number of chairpersons of the local electoral commissions proposed by the ruling party. The court ordered Ivory Coast to take the steps needed to remedy these shortcomings in its electoral commission ‘before any election’ is held. As national presidential elections are scheduled for the end of October this year, the court’s decision means urgent attention will have to be given to the issue or the polls will be susceptible to criticism for non-compliance with this ruling.

Two judges of the region die as a result of pandemic. RIP
Two judges of the region die as a result of pandemic. RIP

The judiciary in Lesotho and South Africa has been shaken by the death of colleagues as a result of the Covid-19 pandemic. Both Judge Patrick Jaji of SA’s Eastern Cape bench, and Judge Lisebo Chaka-Makhooane of Lesotho’s commercial court, had been confirmed as having contracted the virus, and died of associated complications.

Allowing birth certificates for voter ID would be a ‘retrograde step’ – Ghana’s Supreme Court
Allowing birth certificates for voter ID would be a ‘retrograde step’ – Ghana’s Supreme Court

Two combined applications testing decisions of Ghana’s attorney general and related to the national elections scheduled for 7 December 2020, have been decided by that country’s Supreme Court. Determined to clean up Ghana’s voter register, the AG gazetted new regulations. Among them was the decision not to allow the old (current) voter identification cards to be used to identify people wanting to register as voters on the new, updated list. The other contentious decision was that birth certificates would also not be accepted to prove identity for that purpose.

Concern about CJ's instruction that heads of court should 'see and approve' all judgments before delivery
Concern about CJ's instruction that heads of court should 'see and approve' all judgments before delivery

A storm broke over the head of Zimbabwe's Chief Justice Luke Malaba when he issued a memo to heads of court on 16 July, 2020. Among others, the memo instructed that before a judgment was delivered by any judge, 'it should be seen and approved by the head of court'. The instruction led to a major furore, with critics at home and abroad saying it infringed judicial independence. They asked what would happen if a head of court disagreed with and declined to 'approve' a judgment that a member of the judiciary was about to deliver. This lead to statements of support for judicial independence being published on social media, along with messages expressing alarm about the situation. Subsequently, on 21 July, the Chief Justice issued a revised memo. On that day, via the Judicial Service Commission, there was also a reply to a letter of concern sent to the Chief Justice by the Law Society of Zimbabwe.