Carmel Rickard

Judges draw the line in witchcraft case

WITCHCRAFT is a hot topic in Zambia where the courts seem to deal with such matters more often than in many other countries. In this case the two accused were convicted of murdering an elderly woman, but pleaded their belief in witchcraft as an extenuating circumstance. Though found guilty of murder, their alleged beliefs helped reduce their punishment to a life sentence instead of the death penalty that would otherwise have been mandatory. The two then appealed against sentence only, on the basis that it was “manifestly excessive” to imprison them to life since they were first offenders. Hearing this case, Zambia’s supreme court took the opportunity to restate its views on when a belief in witchcraft would amount to extenuating circumstances. Given the number of such cases, this is a timely reminder – though the results of their deliberation would have come as a shock to the two accused.

The Complexity of Land Expropriation

TO an outsider, the case might at first sight seem no more than a relatively simple dispute over ownership of the land on which a shopping mall is being built. But the case of Stantoll v Johannes involves far more complex issues than that. It is also about the difficulties surrounding state expropriation of land and subsequent expectations of compensation, at a time when this is a hot issue in many African countries. In fact, the case has caused something of a headache for the presiding judge, as well as for the judiciary in Namibia. As Carmel Rickard explains, the presiding judge has become the focus of protests by land-rights groups with allegations that he is a “foreign land-monger”, and, apparently to deflate growing tension, the Judge President has taken over the disputed case as well as a second case that is just as contentious.

Making decisions of the African Court of Human and Peoples’ Rights better known

A SPECIAL training team visited Arusha, Tanzania earlier this month to work with the African Court on Human and Peoples’ Rights on how to make decisions of the court better known. The aim was to formulate a protocol for issuing simplified summaries of judgments so that potential litigants, public interest lawyers and the media will more easily understand the issues and the outcome of cases decided by the court.

Unhelpful assessors throw life-line for murder convict

THE courts in Tanzania still interpret the law to mean that the death penalty is mandatory in the case of murder, but it is decades since last anyone was hanged. As the numbers on death row increase, judges in those courts remain scrupulous in ensuring that all the elements of a fair trial are observed in cases potentially involving capital punishment. Take the case of Hilda Innocent, convicted of murdering her husband. Tanzania’s highest court found certain safety nets had not been put in place during her trial – the assessors, who were appointed to assist the judge in her case, had not participated properly. As a result the trial was nullified and a new trial must now take place. This story was first published in Legalbrief *

Best – and worst – Kenya’s courts have it all

KENYA’S courts find themselves in a unique position: they have a starring role on the list of both the world’s best – and the world’s worst – judgments. The awards are made every year by Women’s Link Worldwide, and acknowledge the role that a court’s decisions may make to improving gender equality or to making it worse. A case from Kenya is shortlisted for the 2018 Golden Gavel award because it makes life better for women. Winners of that award will be announced at the end of October 2018. On the other hand, an outright winner of last year’s Golden Bludgeon award for negatively affecting women’s rights, was another case from Kenya’s courts.

Challenging sentencing considerations in Malawi's cashgate scandal

Depending on the sources you consult, Malawi’s infamous Cashgate corruption scandal involved between MWK236 billion and MWK577 billion of public funds. This wholesale looting of government money was made possible by loopholes in state financial systems, exploited by a wide range of people over a number of years. While trials are continuing, the most recent accused to be sentenced was a former top official in the ministry of tourism, Leonard Karonga. Carmel Rickard takes a look at some of the difficult challenges faced by the court in deciding his punishment.

Lesotho: Independence of the Judiciary in Peril
Lesotho: Independence of the Judiciary in Peril

FOR the second time this year, the political authorities in Lesotho are involved in major litigation that threatens the independence of the judiciary. As Carmel Rickard writes, the latest shock is the government’s determined efforts to get rid of Lesotho’s first woman chief justice, Nthomeng Majara.

"Passing the baton" for judicial discipline in Seychelles
"Passing the baton" for judicial discipline in Seychelles

JUST weeks after a top level judicial delegation visited Seychelles and offered help in resolving the conflict gripping the islands’ judiciary, there comes a significant new development: the constitutional court of Seychelles has dismissed the latest appeal of the suspended judge who is at the heart of the ongoing, tense situation.

Ugandan judge slashes “ridiculously” high legal costs in public interest case

AS African jurisdictions embrace powerful, forward-looking constitutions and the possibility of litigation to protect rights, one question will inevitably arise: how should a court manage the question of legal costs in such litigation? An important new decision from the constitutional court of Uganda lays down clear guidelines. Carmel Rickard writes that the dispute over legal costs in this case followed a high-profile challenge to parliament’s decision that corruption allegations against leading members of government should be investigated.

Namibia: Bending a little bit backwards

LAY litigant Ronald Somaeb was in over his head when he attacked the right of any Namibian judge to hear the case in which he was suing the chief justice: all judges would be thinking “about (their) boss, the chief justice” and would be biased in favour of the CJ, he said. Somaeb's efforts came to nothing, however, and his case has been dismissed as vexatious and frivolous.

Justice for ex-corporal more than three decades later

IN one of the most unusual decisions yet to come out of Kenya’s constitutional court division, Judge Chacha Mwita has upheld a claim by a former member of that country’s defence force, that he was unlawfully detained for over four years until 1986. The court found it could consider the case, even though the events took place so long ago, and has awarded damages of almost R900 000, plus costs and interest.

No “rationale” or “justification” for Kenya’s travel ban on academics - court

A CONTROVERSIAL ban on Kenyan public servants leaving the country without presidential permission has been dealt a resounding blow: the constitutional division of the high court says that the extension of that ban to academics is null and void. The court found that the ban as it applied to academics was neither reasonable nor justifiable in an open and democratic society. The ban, issued shortly after the supreme court found the August 2017 elections were invalid, led to widespread criticism. Though initially issued to stop any public servant leaving Kenya without permission, a letter from the ministry of education later stressed that the ban also applied to all academics in public institutions who had to “seek clearance from the President” before leaving Kenya.

Lone judicial voice in runup to Zimbabwe's elections

In Zimbabwe elections on 30 July were followed by violence in which soldiers opened fire on people protesting against what they claimed were “rigged” election results, killing at least six people.  During the months before the elections, however, many court applications tried to ensure broader democracy and a more transparent election process – almost all without success. Read here about the solitary exception in which a judge ordered the ruling party to stop misusing schools and school children for party rallies, only to be overturned on appeal.

Judges stress "sanctity" of constitution as tension mounts over rule of law

AT 814 pages, this critically important constitutional court decision was never going to be easy to digest. Five judges, headed by the deputy chief justice, Alfonse Chigamoy Owiny-Dollo, contributed to its length and they all had a lot to say.

Corruption-busting strategy tested in Kenya court

CONSTITUTIONAL limits on how to deal with corruption – said to be Kenya’s Public Enemy Number One – have been taxing Nairobi judge, Byram Ongaya, after local activist Okiya Omtatah Okoiti challenged new moves to vet public servants.

Between abduction and contempt of court: children left without parents

A NIGERIAN father of three, serving time in a UK jail, says the English judges who heard his case are “racist” and “biased”, and that his imprisonment amounts to slavery. Levi Egeneonu is in prison for contempt of court, after he refused to return his three sons to the UK, where their mother – who has not seen her children since 2013 – is desperate about their fate. The man also claims that he cannot obey the orders of the UK courts since they conflict with the orders of the Nigerian courts.

African Judges Presiding over African Presidents

WHEN SA high court judge Themba Sishi entered the historic court room in the east coast city of Durban to preside in the corruption case of former president Jacob Zuma, he became one of a select few judges required to try an African president.

Ugandan Judge Sues Attorney-General

IN the struggle to ensure judicial independence judges sometimes have to take extraordinary steps. Over the last six months however none can have been more unusual than the litigation by Ugandan high court judge Joseph Murangira, which saw the judge suing Uganda’s attorney-general.

ZIMBABWEAN IMMIGRANT BRINGS ABOUT LEGAL CHANGE IN THE UK

AFRICANS abroad sometimes make legal headlines – and even new law – while they are away from home. Carmel Rickard writes about a Zimbabwean in the UK whose landmark cases shows that judges may have to remind officials that the law is about nothing if not the truth.

‘Cautionary rule’ victory for sexual assault victims

A dissenting judgment discusses the law on corroboration’ in sexual assault cases in Uganda.  The result is a landmark ruling for girls and women considering whether to lay charges against their attackers in cases of sexual assault. And it’s also crucial in the development of a jurisprudence that no longer discriminates against women. None of her colleagues objected to her separate judgment: clearly, they found it legally sound. But you have to wonder why they did not regard her contribution as an essential element of the main judgment – and what the impact would have been if all five members had signed it.

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