Articles - AfricanLII

Magistrate stages obscene event as part of rape case; high court orders a retrial

27 January 2023
Carmel Rickard

A magistrate in Malawi, who presided over a sordid sexual scene in his office, has been taken to task by a high court judge. Judge Zione Ntaba ordered that the rape trial being heard by the magistrate, and of which the office scene had ostensibly formed part, should start again under a different presiding officer. The behaviour of the initial magistrate has also been reported to the judicial service commission. Judge Ntaba used the opportunity presented by the case she was reviewing, to spell out best practice in relation to gender stereotypes, judicial bias and other key issues.

Maseko killed by ‘demented enemies of justice’, independent inquiry demanded

27 January 2023
Carmel Rickard

A flood of shocked, sometimes angry, sometimes despairing, often challenging, responses has followed the murder of Eswatini human rights lawyer, Thulani Maseko, last weekend. From embassies to human rights defenders in remote parts of the continent, all have paid tribute to this extraordinary man and his dedication to the task of ensuring justice and democracy for the people of his home country.

Pocket Law

23 January 2023
AfricanLII

Pocket Law: Legal Information In Your Pocket

23 January 2023
AfricanLII

Do your users struggle to connect to the Internet? Pocket Law lets you search for cases and legislation off-line. It is a USB stick loaded with an LII website, which works off-line and updates with new content once users are in Internet coverage.

Claiming potential conflict, Malawi Law Society wants its members barred from joining specialist law bodies

20 January 2023
Carmel Rickard

Malawi’s legal community is braced for a major court battle between the Malawi Law Society (MLS) – it bills itself as ‘the voice of the legal profession in Malawi’ – and two other professional legal bodies, the Corporate Lawyers Association (CLA) and the Commercial Bar Association (CBA). This follows an attempt by the MLS to have the court prevent MLS members from joining the ‘objects and business’ of the CLA and the CBA. The proposed ban, which would stop all Malawi’s registered lawyers from joining the two specialist legal bodies, must now be fully ventilated in court as a constitutional issue since it could affect the constitutionally guaranteed right to freedom of association.

Court says accused in double witchcraft murder a ‘suitable candidate’ for death penalty, imposes lesser sentence because of sincere beliefs

20 January 2023
Carmel Rickard

The high court in Zimbabwe has been grappling with the question of how to deal with witchcraft-related murder, and the role that such beliefs should play in a trial. It’s an on-going issue for courts in a number of African countries, and in this case, the presiding judge, Lucy Mungwari, looked at a variety of approaches by other courts. The case she was considering was particularly horrific, as the accused murdered his own father and his aunt, both of whom were well over 80 years old.

Free speech gets a huge boost in Uganda

13 January 2023
Carmel Rickard

A key freedom of expression law, used in Uganda to arrest, detain and hamper the work of journalists, along with other writers and political activists, has been declared unconstitutional by that country’s constitutional court. Five judges held that the law, dealing with ‘computer misuse’, imposed curbs that were incompatible with the constitution. The court said that prosecuting people for the content of their communication amounted to a violation of what ‘falls within guarantees of freedom of expression in a democratic society’.

Tough sentences follow terrorism convictions by Tanzanian court

13 January 2023
Carmel Rickard

Six men, including three from the same family, have been convicted of terrorism by the high court in Tanzania and sentenced to a total of 50 years each. The prosecution said the six were members of a larger group that had met in the Tunduru district, as part of a conspiracy to start a religious war linked to Al-Shabaab. They planned to convince young people to join in the overthrow of the government and establish an Islamic state. The presiding judge, Yose Mlambina, heard argument that the offence was a transnational matter, with potential to harm Tanzania and its neighbours. Passing sentence, he said terrorism was ‘a complex national and international plague.’ For Tanzania, troubled by continuing terrorism linked to Al-Shabaab, this new decision is a significant moment in efforts to halt the training of young people for terrorist activity.

New journal on democracy, governance and human rights for Zimbabwe

13 January 2023
Carmel Rickard

A new, scholarly journal focused on democracy, governance and human rights in Zimbabwe, has just published its first edition online. Coordinator of the journal, Musa Kika, says the journal is partly a response to Zimbabwe’s lack of scholarly publications dealing with legal and other issues, and that this is a lack that the judiciary itself has commented on. The first edition, featuring five articles focused on elections, election practices and disputes, is particularly timely given that a general election is expected to be held in Zimbabwe by mid-year.

Judges applaud African states’ efforts in hosting refugees, suggest much work remains to be done

9 December 2022
Carmel Rickard

At a recent meeting in Arusha, Tanzania, the Africa Chapter of the International Association of Refugee and Migration Judges (IARMJ) applauded the solidarity and efforts of many African states in hosting refugees. Their work in finding collective solutions for the situation of refugees, sometimes under the auspices of the African Union, was also appreciated. The judges have now issued a formal declaration, covering a wide range of issues related to refugees, asylum-seekers and stateless people.

Uganda’s constitutional court finds 16 high court two-year, acting appointments unconstitutional

9 December 2022
Carmel Rickard

When Uganda’s judicial service commission (JSC) announced earlier this year, that 16 high court judges had been appointed – for a two-year acting stint – it prompted two legal academics to bring a petition challenging the constitutionality of these appointments. Now the country’s constitutional court has given its decision: by four to one, the court ruled that the appointments were unconstitutional, and gave the JSC six months to rectify the situation.

Circumcised without their parents’ consent: now two young boys win judgment for damages

9 December 2022
Carmel Rickard

Two young boys, circumcised without their parents’ knowledge or consent, and who later developed complications, have won their high court action against Population Services International (PSI) Malawi, and will now be entitled to damages. The two boys claimed for assault and battery as well as pain and suffering, and they want damages for ‘deformity’ and violation of their right to personal security as well as bodily integrity. The judge of the Malawi high court who heard the matter, Dingiswayo Madise, said that PSI had abused the legal process and should be ‘ashamed’ that it defended the case, rather than settling the matter out of court.

Health activist loses court battle for complete tobacco ban in Kenya

2 December 2022
Carmel Rickard

A spirited fight for tobacco to be completely banned on tobacco in Kenya has gone up in smoke: the constitutional and human rights division of the high court has refused a petition brought to overturn the existing laws controlling the production and sale of tobacco in Kenya. Instead, the unsuccessful litigant wanted tobacco to be outlawed completely to safeguard the health of that country’s people. Ibrahim Mahmoud Ibrahim, who brought the application, argued that tobacco actively contributed to lowering the standard of health of Kenyans, since it killed up to half of its users and was the world’s single biggest cause of preventable death.

Crucial role for Africa's courts in preventing electoral violence

2 December 2022
Carmel Rickard

As judicial interest grows in the role that judges and courts should play relative to elections, the president of the African Court on Human and Peoples’ Rights has addressed a conference of the International Commission of Jurists (ICJ), Kenya on the issue. Among other questions, Justice Imani Aboud discussed the contribution that courts can make, through their work as arbiters of the law, that would help assure voters, and politicians, that elections are fair, and thus help reduce the likelihood of violence related to polls.

Uganda's appeal court in new approach to division of marital property on divorce

25 November 2022
Carmel Rickard

Uganda’s Court of Appeal has handed down a decision that could prove a turning point on the question of how marital property should be divided on divorce. The judges seem to have rejected what some have seen as a growing tendency in divorce matters, namely granting women half share of a property. Instead, these judges say equality doesn’t automatically mean equity, and that a claim for half of the property must be backed by facts if it is to succeed. In this case, they said, the facts did not warrant an equal split and the wife should get just 20% of the property.

Judge from Botswana fights off transfer, takes CJ to court

25 November 2022
Carmel Rickard

A most extraordinary story emerged this week of an attempt by the Chief Justice of Botswana, Terrence Rannowane, to transfer a senior judge from the high court in Gaborone to Francistown, and of the judge’s response. The CJ is alleged to have justified the sudden transfer on the basis that a judge in Francistown, recently appointed to head the country’s independent electoral commission, needed to be based in Gaborone. The judge sought to be moved, Gabriel Komboni, now plans a judicial review of the CJ’s transfer decision. In the meantime, he has been granted an urgent interim interdict stopping the CJ’s attempted transfer of the case from one high court seat to another. The order further declared that the CJ’s appointment of three named judges to hear part of this dispute, ‘undermines judicial independence’ and is inconsistent with the constitution.

Colonial era police powers to effect indiscriminate mass arrests in Malawi declared unconstitutional

23 November 2022
Carmel Rickard

Police in Malawi, like those in other post-colonial African countries, have long enjoyed wide powers to round up, hold and threaten anyone with prosecution under the guise of crime prevention. Typically, these powers are exercised by way of mass arrests, locally known as ‘sweeping exercises’, targeting people the police regard as vagrants or who seem out of place. Though first enacted under colonial rule, these powers have remained on the statute books even after independence. Human rights activists consider these powers unconstitutional because of their blatant disregard for the rights of those rounded up, but now these ‘sweeping exercises’ have been officially condemned by Malawi’s high court.

Crucial Lesotho court decision nullifies disputed contract that could cripple the mountain kingdom

18 November 2022
Carmel Rickard

A new decision by Lesotho’s high court could prove key in a developing crisis over a disputed contract, that could bring the mountain kingdom to its knees. A full bench has found that the contract, between Lesotho and Frazer Solar, a German company that provides alternative energy systems and that would have involved Lesotho in finding funding of €100m, was null and void. Lesotho has repudiated the contract, and as a result, Frazer Solar is claiming compensation that could cripple Lesotho. Now, the Lesotho court has found the contract flouted the constitution as well as public procurement provisions and key legislation. It also fingered the minister who had signed the contract, apparently on a frolic of his own, without cabinet authorisation. The decision could help Lesotho fight off claims for compensation by Frazer Solar. These are sizeable claims amounting to a significant part of Lesotho’s annual budget.

Kenya’s independent electoral commission boss faces possible jail over contempt of court

11 November 2022
Carmel Rickard

The head of Kenya’s independent electoral and boundaries commission has been found in contempt of court and will be staring some serious punishment in the face when he appears in court for sentencing. An office technology company brought an application against commission CEO, Marjan Hussein Marjan, asking that he be fined and/or jailed for six months for having ‘deliberately disobeyed’ earlier court orders and a 2016 judgment to pay the company. The judge who heard the company’s application had some tough words for Marjan about heeding court orders.

Death penalty for convicted HIV rapists unconstitutional – Lesotho court

11 November 2022
Carmel Rickard

A decision by the constitutional division of Lesotho’s high court has found controversial provisions in that country’s sexual offences law, unconstitutional. In particular, the court held that stipulating the death penalty for a convicted rapist, held to have known he was HIV positive at the time of the crime, infringed the constitutional right to freedom from discrimination and to a right to equality before the law.

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