Latest Articles

All years
Crucial Seychelles fact-finding mission by Southern African Chief Justices’ Forum issues report

WHEN the Southern African Chief Justices’ Forum heard that one of their members, Chief Justice Mathilda Twomey of Seychelles, was to face an inquiry and possible removal for alleged misconduct the forum asked the government of Seychelles to allow a fact-finding mission. The investigation into the chief justice was particularly troubling as this as it was the second current investigation into a senior judge in Seychelles. The SACJF wanted to inquire into the state of judicial independence, accountability and security of tenure among other issues involving judicial officers in that country. Now the forum has released its report into that visit, with a useful summary of the contesting views they were given and a number of significant recommendations.

Judicial independence is critical to protecting press freedom in Africa

In this opinion piece, Anneke Meerkotter, Litigation Director of the Southern Africa Litigation Centre  (SALC), discusses a recent High Court of Lesotho (sitting as a Constitutional Court) judgment which declared the offence of criminal defamation unconstitutional. She takes the opportunity to also reflect more generally on the extent to which judiciaries have created the space for constitutional jurisprudence to be exercised in a manner that facilitates social transformation.

Court orders tribal authority to act democratically

Do traditional leaders have to consult with their community before litigating on their behalf? On 9 March 2018, a Mahikeng High Court  judgment  answered this question: yes, they do. The Court found that the kgosi (king) of the Bafokeng Nation had to consult broadly with the community before going to court against the Minister of Land Affairs. This was because of the customary law principle of “kgosi ke kgosi ka morafe” (a king is a king by virtue of the people). Phrased differently: sovereignty resides with the people.

“Radical surgery” cutting off this judicial employee was unlawful – court

WHEN Edward Asitiba was sacked as Chief Supplies Officer in the Kenyan judiciary, he was told it was “in the public interest” that he should go. But Asitiba did not agree – and now he has a judgment backing his complaint, as well as a large payout due to him as compensation. Edward C. Asitiba v Attorney General [2018] eKLR

Landmark Ugandan decision highlights judicial accountability

TWO crucial judicial principles, independence and accountability, have clashed with each other in a landmark judgment by Uganda’s highest court. Unusually, the case produced seven separate decisions, one a dissenting judgment – and it has also sparked strong criticism from outside the court. The case concerned the right of the judicial disciplinary body to charge a registrar, someone who exercises judicial powers in Uganda, with misconduct in relation to an action she took in the course of her judicial duties.

Long battle by 42 magistrates heads to employment and labour relations court

MORE than 40 former magistrates have taken another step in their fight against the Judicial Service Commission of Kenya. The magistrates have been contesting their 2003 dismissal, when they were “retired in the public interest”, a compulsory move made as part of “radical surgery” intended to deal with corruption in the judiciary at the time. They say they were wrongly dismissed and initially took their case to the high court’s constitutional division. But that court has now held that the 42 were indeed employed by the Judicial Service Commission and that their dispute should be heard by the employment and labour relations court. Charles Oyoo Kanyangi & 41 others v Judicial Service Commission of Kenya [2018] eKLR

Oops! We Blew it! Zimbabwe’s supreme court backtracks earlier international law decision

TOP courts rarely revisit their own decisions and own up to being wrong. But Zimbabwe’s supreme court has done exactly that, finding that a key section of a 2004 judgment was wrong. Not just that: the mistake has had to be admitted under the watchful eye of the world’s international organizations, all of whom were potentially affected by the outcome. To make matters even more sensitive, one of the judges who concurred in the earlier decision has now been the author of the correction, none other than the president chief justice, Luke Malaba.

Major precedent set for communities affected by mining

Constitutional Court judge quotes Fanon: to “strip someone of their source of livelihood, then you strip them of their dignity too”

Firearms verdict a victory for rule of law

THE high court in Kenya has declared that the firearms licensing board acted unconstitutionally when it revoked the licence of a controversial politician. The letter informing Senator Johnson Muthama that he could no longer legally possess a firearm was part of a crack-down on opposition figures who protested after the results of last year’s second national elections were confirmed. But the board gave no reasons for its decision and did not allow Muthama an opportunity to put his view on the proposed ban. After an interim order preventing the board from revoking the licence, the high court has now given a full judgment upholding Muthama’s rights to fair administrative action. While some of the tension between the ruling party and the opposition appears to have eased in the meantime, the decision is still important as it shows the courts prepared to hold everyone to constitutional standards of decision-making.

Canada: Supreme Court ruling around religious versus equality rights

WHEN Trinity Western University in Canada wanted to establish a new law school, it ran into unusual difficulties with three law societies in that country. TWU insists that all staff and student must sign a “community covenant” agreeing that the only healthy form of sexuality is in marriage. And only in marriage between a man and a woman. No sexual intimacy outside marriage would thus be tolerated on campus, and no same-sex relationship in or out of marriage. The law societies challenged the idea of such a law school saying it would not be in the public interest to accredit a school with a discriminatory admission policy such as this. Among the witnesses heard in the lower courts were students who described the oppressiveness of such a policy. On appeal to the highest court the law societies prevailed, with that court finding that, since they had a mandate to protect public interest, the law societies were obliged to protect equality and human rights. Their objectives included ensuring equal access to the profession, diversity at the bar and the prevention of harm to LGBTQ students.