Carmel Rickard

Benin taken to task by African Court for Charter failures – not even constitutional court escapes censure
Benin taken to task by African Court for Charter failures – not even constitutional court escapes censure

Seldom does Africa’s premier regional court find that laws or practices relating to a state’s court violate rights enshrined in the African Charter. But in a new decision, delivered by the African Court on Human and Peoples’ Rights, the judges declared that Benin violated its obligation to guarantee the independence of the country’s constitutional court. The judges were equally clear that recent changes to the constitution should have involved far more consultation with the people. Among other decisions they declared that the state of Benin had violated the Charter right to information, as well as the right to economic, social and cultural development.

Diplomatic immunity defence in Kenya's maintenance case
Diplomatic immunity defence in Kenya's maintenance case

The tragic story of young Harry Dunn, knocked over and killed last year allegedly by the wife of a member of the US diplomatic corps in the UK, was a reminder of the conundrums that can sometimes be caused by diplomatic immunity. She left the UK after the accident and the US government has refused her return, citing immunity. Now a poignant new case is being decided in Kenya, a case that raises just as complex a conflict between rights and immunity. It concerns a senior diplomat from Sierra Leone, stationed in Kenya. A woman, claiming to be a former girlfriend of his, has gone to court asking that he be ordered to pay maintenance for a child born of their relationship. But despite the court’s order he has refused to do so, citing the Vienna Convention to justify his inaction. As the case winds its way through many hearings, the sum he owes in maintenance is mounting steeply. And the high court is unimpressed.

'Help us', Tanzania's opposition urges African Court
'Help us', Tanzania's opposition urges African Court

Elections in Tanzania at the end of October passed with little comment from outside that country. And since the declaration of John Magufuli as president, Tanzanian politics have been relegated to a non-issue in most other parts of the world. But not for long: disputed aspects of the polls are about to be ventilated in court even though legal challenges to aspects of the election are not allowed in Tanzania’s own courts. Activists have taken their dispute over the way the elections were conducted to the African Court on Human and Peoples’ Rights. It promises to be a landmark case: given the inability of people inside Tanzania to bring a meaningful test of the polls’ validity, the African court could prove an alternative forum - and one drawing an international audience; further, in a politically poignant development, this will also be the last case from Tanzania that the court will hear.

Remembering the first woman to argue before the US Supreme Court
Remembering the first woman to argue before the US Supreme Court

The first woman to argue a matter before the US Supreme Court, Belva Lockwood, was also directly responsible for ensuring that the first black lawyer was able to argue in the Supreme Court some time later. Belva Lockwood's landmark first case, Kaiser v Strickney, was argued 140 years ago this week.

Even refugees have a right to be heard on voting issues – high court
Even refugees have a right to be heard on voting issues – high court

Key organisations working with Kenya’s vast refugee community want them to elect leaders based on where they live now, rather than where they came from. They say this will reduce ethnic tension and will fall in line with the general approach to elections in Kenya. To implement these changes, the country’s refugee affairs secretariat and the United Nations refugee agency have been working on new guidelines for how refugee community leaders will be chosen. But it turns out that these guidelines were not discussed beforehand with the affected communities. Enter one of Kenya’s most prominent human rights activists, on a mission to ensure justice is done – and that the voices of the most vulnerable communities in the country are heard.

‘Unprecedented levels of political interference with courts’ – Chief Justice
‘Unprecedented levels of political interference with courts’ – Chief Justice

The leader of the judiciary in England and Wales has reacted sharply to continuing attempts by politicians to interfere with the judiciary, judicial appointments and judicial decisions. In fact, he has even suggested that politicians should be taught about the boundaries that should exist between parliament and the judiciary and that a short course could be drawn up for new members, to explain these ‘boundaries’ and why they should be observed.

Release police review report, urge more than 20 South African civil society organisations
Release police review report, urge more than 20 South African civil society organisations

Dozens of civil society organisations have urged the government to release a report into South Africa's police methods, conducted by a panel of experts set up in the wake of the 2012 Marikana massacre - when police fired into groups of striking miners, killing 34 and leaving more than 70 injured. The report closely examined police methods and related issues and could have played an important role in relation to a pending Bill related to the police. But though it was to have been released this week, it has now been indefinitely blanketed, prompting urgent calls for the secrecy to be lifted.

Former President, Judge, both ordered to pay legal costs from their own pockets
Former President, Judge, both ordered to pay legal costs from their own pockets

In a further stunning reversal for Malawi’s former President, Peter Mutharika, he and a former high court judge, Lloyd Muhara, have been ordered personally to pay the legal costs of a case brought to reverse a major decision taken by them just before the elections at which Mutharika was voted out of office. By that decision they hoped to force the Chief Justice to go on leave, pending retirement, in retaliation for a judicial decision finding that the May 2019 elections were invalid. Muhara, who had moved from the bench to government offices as a secretary to cabinet, wrote official letters on behalf of government, announcing the decision about the CJ, a decision the courts have since found to have been unconstitutional and made in bad faith.

Lesotho amnesty deal unconstitutional – apex court
Lesotho amnesty deal unconstitutional – apex court

Relatives of people murdered allegedly on the orders of prominent politicians in Lesotho have gone to court to challenge a new agreement brokered by the Southern African Development Community (SADC). Under this agreement, all parties have been urged to join talks on the way forward for the country, and those now in exile out of fear of being charged with murder and other crimes, have been assured no action would be taken against them if they returned for the talks. Bereaved relatives, however, told the court this was an unlawful step, and that the grant of immunity undermined the powers of the prosecuting authorities. Argument on this crucial issue has been heard over a number of days by Lesotho’s constitutional court, and the three judges who presided have now given their decision.

Bail for death row prisoner after long appeal delay
Bail for death row prisoner after long appeal delay

Normally a reader might have little sympathy for someone convicted of murder who is serving time in prison. But the case of Malawian Charles Khoviwa is rather different. Sitting on death row for many years, Khoviwa has been trying to have sentence in his case reconsidered, now that the courts have decided that the mandatory death penalty, in force at the time of his conviction, is unconstitutional. His appeal, asking for a re-sentencing hearing, was argued nearly three years ago before a full bench of the Supreme Court – and still judgment has not been delivered. Now a single judge of that court has decided to grant him bail, saying it was not the fault of Khoviwa that ‘the judgment he awaits has been pending for so long’. After serving 18 years in prison, Khoviwa may now wait at home for the decision on whether he will be granted a re-hearing on sentence.

‘Unstable arithmetic’ indicates corrupt deal – judge
‘Unstable arithmetic’ indicates corrupt deal – judge

When a Tanzanian court clerk appealed against his conviction and sentence for corruptly demanding payments from a would-be litigant at court, he did not realise that his faulty sums would help confirm his guilt. What Judge Amour Khamis would later describe as ‘unstable arithmetic’ convinced the court that there was no truth in the explanation given for the payments and that conviction and sentence should be confirmed.

Senior African judge wins second term on top world court
Senior African judge wins second term on top world court

Justice Julia Sebutinde of Uganda is set for a second term on the UN’s International Court of Justice, one of a 15-member bench drawn from jurists round the world. She had faced competition for the slot from contenders put up by Nigeria, Croatia and, because of tensions between the two countries, from Rwanda as well. Justice Sebutinde has extensive international and African experience. She is regarded as probably Africa's most senior woman judge, and her re-appointment last week was widely expected.

Constitution 'is the boss', Lesotho judge tells police
Constitution 'is the boss', Lesotho judge tells police

Respect for individual rights and the Rule of Law is collapsing in several states in this region – Zimbabwe being a prime example. So it is a welcome relief to find a decision by a high court judge that is dedicated to the preservation and protection of constitutional values. The judge concerned, Sakoane Sakoane of Lesotho’s high court, had some powerful words of warning for the police after finding that they had attacked and assaulted a man for no acceptable reason. The judge said the police had behaved ‘like terrorists in uniform’ and that the courts would no longer merely send ‘warnings’ to the police about respecting people’s constitutional rights. From now on, police should expect only ‘uncompromising judicial eradication of the pernicious culture of police brutality,’ Judge Sakoane said.

Seychelles: new Chief Justice announced, sworn in
Seychelles: new Chief Justice announced, sworn in

Supreme Court judge, Ronny Govinden, has been appointed as Chief Justice of Seychelles and was sworn in on November 9.

SADC unlawfully terminated Malawi judge's contract - Tribunal
SADC unlawfully terminated Malawi judge's contract - Tribunal

After the disappointing, politically expedient demise of the Southern African Development Community Tribunal, a new decision by its replacement Southern African Development Community Administrative Tribunal (Sadcat) shows how a top staffer of the defunct body was leaned on by SADC to make him go quietly. But SADC reckoned without the determination of Judge Charles Mkandawire, someone who has shown his mettle in contentious cases heard in his home of Malawi.

Freedom of speech supports good governance says President of Sierra Leone
Freedom of speech supports good governance says President of Sierra Leone

Things are looking up for the media in Sierra Leone. For decades journalists have been harassed by a colonial-era law that created the offence of criminal libel. And as recently as four months ago this section was used against a journalist and publisher who spent 50 days in detention before being freed on bail. Then, last week, the country’s President, Julius Maada Bio, signed the death certificate of the section used against the media, a step already begun in July when some members of parliament repealed this part of the law. At this official event, President Bio also announced that the government was determined to allow the development of a free and robust media.

More than 20 Kenyan laws nullified after National Assembly disregards Senate
More than 20 Kenyan laws nullified after National Assembly disregards Senate

As the still-unresolved fight over the number of women in Parliament shows, Kenya’s constitution is very much a work in progress, with continuing disputes over what its text means exactly and how seriously to take clauses that some parties dismiss as merely ‘aspirational’. The latest case to be decided by the courts on gaps or possible ambiguities in the constitution concerns the very serious question of how the Senate and the National Assembly must relate to one another. In this case, in an almost unheard of development, the Senate and its top officials sued the Speaker of the National Assembly, as well as the National Assembly itself. Now three judges have produced a constitutional judgment finding that the Senate was right: in many cases the National Assembly ought to have worked with the Senate to pass legislation. The fact that the Senate was left out of the process means that no fewer than 23 laws, passed by the National Assembly, are unconstitutional and thus null and void.

Judge claims CJ instructs how cases must be decided
Judge claims CJ instructs how cases must be decided

The crisis in Zimbabwe heightened this week, with a spotlight now pointed at internal problems within the judiciary. First, a judge who was suspended on contested grounds has launched an urgent application to prevent a disciplinary tribunal from being set up to investigate her. In the course of her founding affidavit she made some grave allegations against the Chief Justice, for example, saying that he routinely intervened to ensure judges decided matters in a certain way. And then, as the people of Zimbabwe were digesting her claims, a second document was published, this time apparently put out by judges of the high court and the supreme court, making similar allegations about the role of the CJ and his irregular interventions.

International honour for Malawi’s judges

When five of Malawi’s judges overturned that country’s presidential elections in 2019 because of 'grave irregularities', it seemed a brave and startling thing to do. Their decision led to fresh elections and then to a change in government. Now it has also caused them to win an international award, the Chatham House Prize, given to those the institute feels have made the most significant contribution to improved international relations.

Attorney loses battle with Chief Justice over dirty hands
Attorney loses battle with Chief Justice over dirty hands

Strange to say, there are two current cases in the region citing a Chief Justice as respondent in a civil matter. Apart from the grave issue involving the Chief Justice of Zimbabwe (see above), there is another case in which the respondent is a Chief Justice. This time it is the judicial head of Eswatini, Bheki Maphalala, who was sued as a respondent, along with the government of Eswatini and the attorney general. The applicant was a local attorney, Muzi Simelane, whose battle with the CJ over the issues raised in this judgment, has lasted for a number of years.

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