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Court chides counsel for ‘scurrilous allegation’ against newly-appointed judge
Court chides counsel for ‘scurrilous allegation’ against newly-appointed judge

Counsel for a former presidential adviser on strategy, charged under Malawi’s anti-corruption laws, has come in for a tongue-lashing over the argument he put up in a judicial review application. During the course of the corruption trial so far, the presiding magistrate, Patrick Chirwa (pictured), was appointed as a judge of the high court. Counsel for Chris Banda, the accused, wanted a different magistrate to take over the corruption trial, but the magistrate, now a judge, said he would continue hearing the matter to completion. Counsel suggested this was improper and that the magistrate, now a judge, was refusing to ‘let go’ of the matter as he had a ‘personal interest’ in the case. The high court said it was ‘deeply troubled’ by this suggestion and roundly criticised counsel for this ‘scurrilous allegation’.

Lesotho’s CJ fights back after apex court’s critical judgment
Lesotho’s CJ fights back after apex court’s critical judgment

The Chief Justice of Lesotho, Sakoane Sakoane, has reacted sharply to a judgment by the country’s appeal court that found he ought to have recused himself from presiding in a major treason and murder trial. The court found that the prosecution’s claim to have a reasonable apprehension of bias by the CJ was well founded, and ordered that another judge take over the trial. But in reaction, the CJ has questioned whether ‘foreign’ judges ought any longer to preside over cases heard in Lesotho. He has also raised questions over the legality of part of the appeal court’s order.

Amnesty International death penalty report: a time for judges to reflect
Amnesty International death penalty report: a time for judges to reflect

In prisons across Africa, many thousands of prisoners sit on death row, uncertain whether they will be allowed to live. But as the numbers of condemned prisoners climb, with an estimated 5 843 awaiting execution in prisons all over Africa, debate over the death penalty is also growing. The newest report from Amnesty International, released this week, shows some stark contrasts. While, for example, Botswana is often considered to be a country that respects human rights, it is the only state south of the Sahara to have carried out executions (three in 2021, the year considered by Amnesty’s latest report). And while Kenya and Malawi have seen vigorous judicial discussion about mandatory death sentences, in Nigeria at least 3 036 people are imprisoned under the death sentence, one of the highest numbers recorded for any nation, worldwide.

Lesotho CJ ‘wrong’ to punish lead counsel in high profile murder, treason case – appeal court
Lesotho CJ ‘wrong’ to punish lead counsel in high profile murder, treason case – appeal court

A new decision from Lesotho’s highest court has made some uncomfortable findings about the country’s Chief Justice, Sakoane Sakoane. Three judges from outside Lesotho, brought in to hear the matter to ensure there could be no allegations of partiality given those involved, found that the Director of Public Prosecutions was not unreasonable in her apprehension of bias on the part of the CJ. The judges also found he had wrongly ‘punished’ controversial advocate Shaun Abrahams, lead counsel in the trial over which the CJ was to preside, both by finding that he had acted improperly, and by imposing a punishment not prescribed by the law. The high-profile trial, involving charges of murder and treason, must now continue before another judge.

Judges recall when their lives were threatened during contentious legal challenge in Malawi
Judges recall when their lives were threatened during contentious legal challenge in Malawi

Two participants at a human rights training course for judges from 11 African countries, held in Cape Town mid-May, have first-hand experience of what making a bold human rights decision may sometimes demand. Judges Michael Tembo and Redson Kapindu were both on the bench, part of a five-judge panel in what they say was, without doubt, the most significant case in Malawi’s history. It was a case that left them physically shaken and traumatised, but all the wiser from the experience and more determined than ever to live up to the demands of their judicial oath of office. Pictured in their bulletproof vests are (left to right) Justice Dingiswayo Madise, Justice Ivy Kamanga, Justice Healey Potani, Justice Michael Tembo and Justice Redson Kapindu.

State of the judiciary: new report on Malawi, Namibia, South Africa
State of the judiciary: new report on Malawi, Namibia, South Africa

For many judges it will come as a relief to hear some good news for once, in the form of largely positive public perception about the judiciary and its role in society. The good news emerges from a just-published report on the state of the judiciary in Malawi, Namibia and South Africa. Every member of the bench in those three countries will be only too well aware of the short-comings of their own judicial system, exacerbated by the restrictions imposed by the Covid pandemic, among a number of other problems. But the three-part report by the Democratic Governance and Rights Unit of the University of Cape Town’s law school found generally positive views by court users about how judges in these jurisdictions are doing their work. Another key finding is that perceptions of corruption in the court are significantly lower in the closely-targeted court user surveys, than had been found in opinion surveys of the general public.

Another ‘No’ for Eswatini’s LGBTI community
Another ‘No’ for Eswatini’s LGBTI community

A new judgment from Eswatini’s high court effectively supports a decision by the registrar of companies who refused to register an association called Eswatini Sexual and Gender Minorities. Two judges of the three-court bench held that the registrar’s decision had been properly made. In a dissenting decision, the third judge approached the question very differently. He found that in terms of the law, the registrar of companies should have taken the decision whether to register the association, but that the ministry of commerce and industry made the decision instead. As this was a misuse of administrative power, the decision should be set aside and the registration of the association should be allowed. But there was a glimmer of light for Eswatini’s sexual minorities: despite its conclusion on the registration issue, the court’s majority wrote that members of the LGBTI community had ‘a right to life, liberty, privacy or dignity’ among other rights.

International Child Abduction
Judge orders at least two years of state-funded therapy for 10-year-old raped by her uncle
Judge orders at least two years of state-funded therapy for 10-year-old raped by her uncle

A South African judge has ordered that a child, raped by a close family member, must be provided with state-funded counselling for at least two years to help her recover from the trauma of the sexual attacks. Further sessions may be added at the end of the two years, depending on whether the child needs more help at that stage. Despite an epidemic of child and adult rape in South Africa, such an order, made in this case as part of judgment on sentence, is extremely rare.

Key rulings have major implications for lawyers
Key rulings have major implications for lawyers

Two recent decisions from the courts in Zambia have serious implications for lawyers. In one, the appeal court rescued legal practitioners from a decision of the high court that found lawyers in private practice weren’t allowed to accept full-time employment. In the other, the appeal court had strong words for lawyers representing clients on trial for criminal offences: they should be sure that fee arrangements were recorded in writing and that there was genuine negotiation between the two sides over what would be charged.

African Commission finds judicial dismissal by Eswatini violated African Charter on Human and Peoples' Rights
African Commission finds judicial dismissal by Eswatini violated African Charter on Human and Peoples' Rights

Since 2011, Thomas Masuku has been in a kind of judicial limbo following a decision by the authorities in Eswatini to remove him from office as a judge. He was, however, welcomed with open arms in Namibia, where he serves on the high court bench. Now, in an extraordinary development, the African Commission on Human and Peoples’ Rights has found that his removal from office by Eswatini violated key articles of the African Charter. The commission has also urged that the government of Eswatini compensate Masuku for the violation of these rights and that it take other steps to amend the situation.

One case, two high court judgments: Namibian supreme court concern about ‘grave irregularity’
One case, two high court judgments: Namibian supreme court concern about ‘grave irregularity’

The supreme court in Namibia was busy preparing a written judgment in a rape case appeal when it discovered something was very wrong. Unknown to it at the time the case was argued, there had actually been two high court decisions on the same matter. The first of the two had refused leave to appeal as part of an unsuccessful application for condonation of late filing, with the court holding there were no prospects of success on appeal. Three months later, the same applicant had brought another application, for appeal. This time the court found there were indeed prospects of success on appeal and gave leave for the matter to be heard at the supreme court. What made the conflict between these two high court decisions even more remarkable was that one of the two judges in the first decision also sat in the second application and in fact wrote the judgment that, this time, came to a completely different conclusion from what had been found in the initial decision. Now the supreme court has decided that the second application to the high court was wrongly brought and that it amounted to a ‘grave irregularity’ for the second high court to overrule the order given by the high court the first time round. Making the story even more controversial is the fact that the convicted man, Vincent Likoro, was appointed as to a high-level ‘think tank’ of the ruling Swapo party after his rape conviction, a decision that was stoutly defended by a top Swapo official at the time.

Reproductive rights win in Botswana after woman’s nightmare hysterectomy experience at hands of state healthcare providers
Reproductive rights win in Botswana after woman’s nightmare hysterectomy experience at hands of state healthcare providers

Women’s reproductive rights include more than access to safe, affordable abortion and contraceptives. These rights are also about proper state care for any associated surgical procedure, for example, along with state obligations not to deny access to services that only women require, and to ensure the good quality of such services. The high court in Gaborone, Botswana, has just delivered an important decision related to this question, holding the state accountable for the shoddy treatment of a women who underwent a hysterectomy. Her treatment, both during the operation and afterwards, has caused serious physical and mental problems. The court found there was medical negligence and lack of proper post-operative care and, with some strongly-worded criticism of the way she was treated, awarded her P400 000.

Judgment highlights ambiguity of abortion provision in Kenya’s constitution
Judgment highlights ambiguity of abortion provision in Kenya’s constitution

In a judgment already welcomed by many, but likely to prove hugely controversial, the high court in Kenya has decided a constitutional petition centred on the question of whether – and under what circumstances – abortion is lawful in that country. The case involved a teenage girl who presented herself to a health centre because she was experiencing pregnancy ‘complications’. Diagnosing a partial abortion, the clinical officer completed the abortion, but both the patient and the clinic officer were subsequently arrested and charged. They later brought a wide-ranging petition to the high court contesting the lawfulness of the action taken against them. In his decision, Judge Reuben Nyakundi said that it was a woman’s right to access a safe abortion and that legal action taken against the girl and the clinical officer was ‘marked with irregularities from the outset’. However, the case once again illustrates a problem, stressed a few years ago in another high court constitutional petition on abortion: the constitution’s provision on abortion is ambiguous, and no guidelines or legislation are in place to clarify under what conditions an abortion would be legal. As a result, both the women who might seek an abortion, and the doctors or clinical officers who could offer the procedure, are unsure about what is allowed. The situation is so uncertain that a woman could be arrested and charged even if the abortion was spontaneous rather than procured, while a doctor or clinical officer could also be charged even if they are merely attending to the aftermath of an abortion.

Dispute over Facebook post brings major free speech decision by Eswatini high court
Dispute over Facebook post brings major free speech decision by Eswatini high court

The case of an airline accountant who posted a comment on his Facebook page that his employers have interpreted as being critical of the Eswatini government and the system of governance it operates has given the high court the opening to make an unusually strong defence of free expression. In his FB post, made at the time criticism over the government purchase of a number of luxury vehicles was making headlines, the accountant, Godfrey Exalto, included the word, ‘dictatorship’. His bosses said that by doing so he was bringing the airline company into ‘gross disrespect’.

Concerns over climate change stalemate court decision on UK financial support to Mozambique
Concerns over climate change stalemate court decision on UK financial support to Mozambique

A major decision by a senior UK court has split down the middle on whether that country should be financially backing a massive liquefied natural gas discovery in Mozambique. The case revolved around environmental questions and the climate change undertakings reached in terms of the 2015 Paris agreement. The Mozambique gas field is exceptionally rich and has the potential to catapult that country onto the list of the top five global suppliers of a growing international demand.

Problems over legal standing to claim N$4billion plus world-famed game reserve for Namibian ethnic group
Problems over legal standing to claim N$4billion plus world-famed game reserve for Namibian ethnic group

Legal efforts by several members of a Namibian ethnic group to prepare for litigation contesting ownership rights to one of the world’s best known game reserves, the Etosha National Park, have met with mixed results at the country’s supreme court. Eight members of the Hai||om said that the park was originally the group’s ancestral land but that the Hai||om had been dispossessed before Namibian independence. The post-independence Windhoek government had further neglected the needs of the Hai||om and had not acted to correct historic wrongs. Now the eight wanted the highest court to rule on the plan they had devised to give themselves standing to run a vast land claims case, given that Namibian law does not permit class actions. The supreme court said it disagreed with the narrow approach taken by the high court. While it, like the high court, dismissed the plan put forward by the eight, it noted a couple of other options available to them if they wanted to go ahead with their litigation.

Major court victory against ‘deadly air’ in South Africa’s most polluted region
Major court victory against ‘deadly air’ in South Africa’s most polluted region

One of the most important recent South African judgments on environmental law has delivered by the high court in Gauteng province. The case concerns a region of SA where high levels of air pollution risk the health of all the people living there. This is well-known to the government, but very little has been done about it. Now, environmental organisations have challenged the government’s inertia, and have won a major victory, with the court declaring that constitutional rights were breached by the failure to act. The court has also given the minister of environmental affairs a strict deadline to produce effective regulations for managing the problem of air pollution.

Report shows proportion of women judges varies strongly

A report by the United Nations’ Special Rapporteur women judges and prosecutors finds that the proportion of women on the bench varies a great deal from one country to another, and that in some jurisdictions women, if they are in fact appointed to the bench, serve on family or juvenile courts, rather than on commercial or criminal courts, where the bench tends to be reserved for male judges. The report makes a number of recommendations about how to improve the current situation.

Violence against women: on International Women’s Day, 2022, consider these two cases
Violence against women: on International Women’s Day, 2022, consider these two cases

Two random, recent cases from Namibia answer the question why there is the need for an annual marking of women’s day round the world. Both show how the vulnerability of girls and women make them easy targets for violence. And how, at crucial moments when they face the most danger, they may be completely deserted and left alone with their attackers.

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