Carmel Rickard

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.

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.

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.

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.

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.

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.

When women can’t confer nationality on their children equally with men, problems of statelessness grow – UNHCR

4 November 2022
Carmel Rickard

As the world’s states consider how to reduce the plague of statelessness, nationality laws come increasingly under the microscope. That’s because if a child can only take on the nationality of their father, and the father is unknown or dies or disappears before a child is officially registered as his, then the child could well be doomed to a life without nationality or citizenship. Thus, ensuring that there is equality between women and men when it comes to conferring nationality on children, would help greatly in reducing statelessness around the world. The UN High Commission for Refugees keeps a careful watch on developments towards equality in this important, but often forgotten, area in the struggle to eradicate statelessness. Among its other findings, this year’s report notes that the nationality laws in several African countries do not provide mothers equal rights with fathers to confer their nationality on their children.

Crucial high court statelessness case tests route out of legal limbo

4 November 2022
Carmel Rickard

A young man, stateless and unable to access even the basic rights that go with citizenship, has brought what could be a precedent-setting case in the high court of South Africa. The young man, who knows nothing of his father, and whose mother died when he was very young, wants the court to order that he be granted citizenship of SA, either by birth or through naturalisation. He has also urged the court to order that the relevant government department must establish regulations, as the law clearly says it must, providing a route for people in his position to acquire citizenship.

Being stateless is ‘not merely a state of mind, or a choice’ – judge

4 November 2022
Carmel Rickard

Some readers might wonder how statelessness is viewed by courts in other parts of the world. For them, the recent Canadian case of Davood Helalifar v Minister of Citizenship and Immigration will be an eye-opener. Helalifar’s application for permanent residence was refused by a senior official and so Helalifar approached the federal courts asking for judicial review of that decision. Helalifar, who has had several criminal convictions since arriving in Canada, is originally from Iran. With all that was counting against him, what weight would the federal court put on Helalifar’s statelessness?

Steep damages against Kenyan media house as five advocates win defamation awards

21 October 2022
Carmel Rickard

A Kenyan media company has been punished by a series of high court judgments ordering that it pay what amounts in total to more than US$535 000 in damages for defamation against a group of senior advocates. The awards followed reporting by the company’s titles on the involvement of the lawyers in some high profile cases. The lawyers claimed, among other problems, that the articles were misleading and insinuated that they had obtained briefs improperly. One complaint, heard as a test case, was decided first, in 2020. The judge in that matter held that the advocates had indeed been defamed and should be awarded damages. Now a group of judgments in relation to the other defamed lawyers has been delivered, and the total damages’ payout so far ordered by the courts has shot up to Kshs 64,800,000, plus interest and costs.

Serious court efforts brought to hold public officers, top members of the Zim government administration to account, curb corruption

21 October 2022
Carmel Rickard

Zimbabwe’s 2013 constitution requires a law to be passed to deal with accountability and transparency among public officers as well as top members of government. But virtually 10 years since the constitution was enacted, there is still no such law. Now, efforts are being made through the courts to ensure that something is, at last, done about this fundamental constitutional requirement.

Free speech restrictions stressed by Eswatini’s election body make 2023 polls a ‘sham’

14 October 2022
Carmel Rickard

Eswatini’s election body has been challenged over recent comments by its chairperson that are seen as threatening free expression, the right to self-determination – and as even making upcoming polls a ‘sham’.

Judge says law on witchcraft reflects ‘western’ norms, not those of Eswatini. Supreme court disagrees

14 October 2022
Carmel Rickard

A potentially divisive judicial dispute over witchcraft in Eswatini has been nipped in the bud by that country’s supreme court. The debate emerged when a high court judge, presiding in a witchcraft-related murder trial, questioned whether the present legally accepted position that witchcraft is unreasonable and irrational, reflected ‘western’ views rather than the norms of the people of Eswatini. The judge then referred a question to the country’s highest court asking if the time hadn’t come to change the way the matter is handled. Instead of belief in witchcraft being a possible extenuating circumstance after conviction, should it not provide a ‘complete defence’ to a witchcraft-related murder? (Exactly what he meant by this was not spelled out, but it seems he was suggesting that the accused would then be acquitted.) Now three supreme court judges have given their answer: there is no legal basis to change the current precedent, they said. The three judges said that though many in Eswatini practised and believed in witchcraft, murder remained a very serious crime.

Safeguarding wildlife can mean danger, sometimes death, for local communities – and seeking compensation can prove difficult

14 October 2022
Carmel Rickard

Kenya’s national environment tribunals have been busy dealing with families suffering the effects of living close to wildlife. A series of recent decisions make clear how complicated it has become to manage human settlements that intersect with land on which wild creatures are also at home.

In strong judgment, judge refuses 'sensitive' recusal application

7 October 2022
Carmel Rickard

A major new decision from Malawi’s high court on the vexed question of judicial recusal has laid down the law on the subject. It included strong words against the Anti-Corruption Bureau’s legal strategy – bringing a recusal application based on no arguments at all, but only a suggestion that the matter surrounding the appeal application was ‘too sensitive’ even to give reasons. Judge Kenyatta Nyirenda, who wrote the decision, also spoke more widely and slammed dissatisfied litigants who threaten ‘physical violence’ against judges or ‘resort to dastardly and primitive schemes of staging road accidents’ intended to cause judges grievous harm, or even to ‘assassinate’ them.