Carmel Rickard

Eswatini’s highest court reverses itself; holds customary marriages are ‘lawful’

10 January 2024
Carmel Rickard

It’s rare for any country’s apex court to reverse an earlier decision it had made and say it was wrongly decided. But Eswatini’s supreme court has recently done just that. In fact, it went even further, and declared that elements of two of its own decisions needed to be set aside as made in error. The key issue in the case was the status of marriages in Eswatini, made in terms of local customary law. Both the two earlier decisions had upheld the consequences of a 1902 colonial law, and concluded that such marriages were not ‘lawful’. The particular result of that finding in the new case was to question the jurisdiction of the master of the high court to deal with the deceased estate of someone married under customary law.

Power of attorney: does it give non-lawyers the right to litigate?

8 December 2023
Carmel Rickard

Complaints about ‘fake lawyers’ have been surfacing in several African jurisdictions. But what about people who don’t even pretend to be lawyers? What if they claim instead that even though aren’t legally qualified, they have the right to represent a ‘client’ in court, via a power of attorney? A new Zambian judgment makes clear that the courts in that country at least, will take a tough line should they be faced with such a claim.

Kenyan magistrate loses court battle against judge co-contender for top job at law body

8 December 2023
Carmel Rickard

Kenyan magistrate Derrick Kuto made headlines in December 2021 when he became the first magistrate to head the Kenya Magistrates and Judges Association. After outvoting high court judge Patrick Otieno, by 290 votes to 113, Kuto took over as president of the association. The term of office is for two years, renewable once. Kuto has clearly expected a second two years in office, but his bid hasn’t been straightforward. It has taken a detour through the high court’s constitutional and human rights division, where the judge who heard the dispute, Enock Mwita, has now delivered a judgment dismissing Kuto’s petition.

Nasty Supreme Court surprise for Namibian man who hid properties from ex-wife to avoid child maintenance increases

8 December 2023
Carmel Rickard

Namibia’s supreme court has given a scathing judgment in the case of a man who resorted to fraud or attempted fraud to hide his new property acquisitions so his ex-wife couldn’t access them for child maintenance. Instead, the properties were bought in the name of his then-fiancée so that they would appear not to belong to him. The judges have held that such an agreement was against public policy, ‘morally reprehensible’ and thus unenforceable. The man, who has since walked out on his fiancée and married someone else, was trying to get the properties back from his fiancée now that their relationship had ended. The supreme court ordered that he should get 60% of the two properties and his former fiancée, 40%. The judges also approved the high court’s order that the former fiancée be paid N$5 000 for breach of his promise to marry her.

Successful human trafficking prosecution could see Namibia’s ratings improve

24 November 2023
Carmel Rickard

Namibia’s high court has convicted four people in relation to the trafficking of two young girls, one of them from Angola. Their convictions include infringement of immigration laws, not sending children to school, kidnapping, common assault and rape. In its 2022 global report on trafficking in persons, the US state department rated Namibia as Tier 1 because of its continued commitment to deal with trafficking. However, Namibia was downgraded to Tier 2 in the 2023 report, because of several problems like ‘inappropriately’ penalizing trafficking victims by imprisoning or deporting them, for offences ‘solely committed as a direct result of being trafficked.’ The investigation and prosecution in this new case will likely be among the factors that the US state department considers when ranking Namibia in its next report.

Kenyan lawyer must personally repay funds received from ‘corrupt deal’

24 November 2023
Carmel Rickard

A prominent Kenyan lawyer has been ordered personally to pay Kshs10 million to the country’s Ethics and Anti-Corruption Commission (EACC). In a decision handed down last week, high court judge Esther Maina said Joseph Owino Kojwando had acted to conceal the source of funds and that he was not entitled to keep any part of the money as ‘instruction fees’, since this would unjustly benefit him. The case dealt with land acquired by the then city council of Nairobi to use as a cemetery, in a deal that has since been held by several high court judges to have been fraudulent. According to the EACC, Kojwando was paid Kshs10 million as part of the cemetery deal. The judge also ordered that Kojwando pay the legal costs of the case plus interest at 12% from the date he received the money until it’s paid, in full, to the EACC

Zambia's constitutional court upholds judge's dismissal

24 November 2023
Carmel Rickard

Five judges of Zambia’s constitutional court have rejected an application by a former member of the high court bench, Joseph Banda, challenging the decision of the country’s president, Hakainde Hichilema, to remove him from office in May 2022. The action against Banda is part of the current government’s declared push to fight corruption. However, in addition to upholding the decision to remove Banda, the judgment also shows that the process of holding Zambian judges to account on matters of misconduct is not operating as it should.

Explained: why the UK’s highest court declared Rwanda agreement unlawful

24 November 2023
Carmel Rickard

A combination of factors led the UK’s apex supreme court to hold that the government’s deal with Rwanda wasn’t lawful. Among them was Rwanda’s poor human rights record, and the Rwandan judiciary’s lack of independence. The deal, outsourcing the management of asylum-seekers to Kigali, is a key element of the UK government’s policy. But it has also been hotly contested, both in political debate and in the UK courts. Initially, the divisional court dismissed a challenge to the deal, but that approach has now been twice rejected, first by the court of appeal and more recently, by the UK’s supreme court. Here’s what the top court found.

Passionate about justice for ‘invisible’ people

9 November 2023
Carmel Rickard

Many readers will have seen reports quoting Thandeka Chauke, a staffer with Lawyers for Human Rights in South Africa, and one of the forces behind efforts to address statelessness in Southern Africa. We wanted to know more about her and her work, and to ask for a heads-up about litigation in this field that could be important for the region.

Major citizenship strides for stateless in Kenya, Tanzania, Republic of Congo

9 November 2023
Carmel Rickard

As the UNHCR marks another year of working towards a world where every person has a nationality and all the rights that go along with it, important results have been reported during 2023 so far. Here we take a look at three of the top achievements in Africa, as listed by the UN’s refugee agency. The agency is behind a 10 year programme, aimed at ending statelessness in every part of the world.

Namibia’s Fishrot scandal: fishing crew sue over non-payment for court-ordered dismissal compensation

27 October 2023
Carmel Rickard

Until recently, the public story of Namibia’s massive corruption scandal, nicknamed ‘Fishrot’, has focused on legal action brought against the big-name role-players. The scam involves a major Icelandic company as well as top Namibians, in a sleazy operation featuring kickbacks paid for procuring fishing quotas in Namibian waters. With prominent politicians including two former Namibian cabinet members, along with wealthy business people among the accused, the vulnerable victims of one aspect of the scandal were often overlooked. But now they are fighting back. One group of men who worked on a fishing vessel that was part of the scandal were suddenly dismissed from their jobs at the end of 2018. When they challenged their dismissal before the labour commissioner, they won an award declaring that they were unlawfully sacked and ordering that they be paid compensation. Despite many efforts, however, they have never been paid. Now they are headed to court with a personal claim against an Icelandic official allegedly involved in the scandal, and against one of the companies similarly impugned.

Did Malawi’s ‘hyena’ have a fair trial – or was he ‘taking a hit’ for embarrassing local cultural practices?

27 October 2023
Carmel Rickard

The story of Eric Aniva and his extraordinary occupation made world headlines after a BBC interview in July 2016. He said he was a ‘hyena’, someone whose job, in the culture of southern Malawi, involved having sex with girls at puberty and with new widows, as a ritual sexual cleansing. Soon after that interview was published, and in the wake of a public outcry in Malawi and elsewhere, he was arrested, charged, convicted and then sentenced to two years hard labour. But now a senior legal academic is questioning whether Aniva had a fair trial, or whether he simply took a hit for local cultural practices that embarrass Malawi.

Recusal in high court matter follows letter, ‘vitriolic outbursts’, ‘intensive negative energy’

26 October 2023
Carmel Rickard

The question of when judges should recuse themselves is a fraught one in many jurisdictions. In a new decision from the high court in Mombasa a judge has decided to recuse himself after a letter of complaint was delivered to his chambers. The judge even comments that the applicant in the case appeared to be ‘stalking’ him and had sent yet another letter. Yet despite these inappropriate actions by one of the parties, the judge felt he had to stand down. It’s the kind of situation where readers could well wonder what they would have done in the circumstances.

Top court gives strong support to ‘wellness’ programmes and prioritising mental health in Zambia

13 October 2023
Carmel Rickard

Zambia’s top court has strongly urged the government to make support for mental health a priority. In a case brought by disability activists, testing whether the country’s legal regime for people with mental illness was constitutional, the judges found that though the provisions of Zambia’s legislation challenged in the case were constitutional, other aspects weren’t adequate. The judges said the government should provide the same care and treatment to patients with mental illness as it does in relation to people suffering from other kinds of sickness. But this was not the case, and Zambia’s public mental health institutions provided ‘very poor medical services’. ‘This must change,’ the court said.

Mauritius supreme court upholds gay rights, sets aside ‘discriminatory’ penal code provision

12 October 2023
Carmel Rickard

The supreme court of Mauritius has delivered a landmark judgment that effectively decriminalizes gay sex. The judges declared that a section of the island state’s penal code is unconstitutional in that it violates the right of gay men not to be discriminated against. Their decision has been widely welcomed, particularly since it comes at a time when many East African states are promulgating extraordinarily harsh legislative measures against gay people, some even proposing the death penalty for certain related ‘crimes’.

Zambian human rights lawyers support chief justice: ‘constitutional rights also apply to gay people’

29 September 2023
Carmel Rickard

A growing number of human rights lawyers in Zambia have come out in support of their country’s chief justice, Mumba Malila. He has caused consternation in some quarters because of his recent remarks, in response to a question on a public occasion, that gay people do not lose their humanity because of their sexuality. The lawyers say that the CJ was stating the current position on constitutional rights in Zambia, and that this is the basis on which ‘rights are celebrated and enjoyed everywhere else in the world.’

Tanzania’s high court continues ‘hands off’ approach to parliament, despite ‘inadequate’ timetable

29 September 2023
Carmel Rickard

Three judges of Tanzania’s high court have dismissed a petition to set aside an agreement between that country and Dubai over management of Tanzania’s ports. It’s a dispute that has strongly divided people in Tanzania, and the country’s authorities have detained or threatened at least 22 people who criticised the national assembly’s ratification of the plan, with a lawyer among three people now threatened with prosecution for treason, a crime that carries the death penalty. A second petition against the port management deal, based on similar grounds to the first, but brought by other parties, was struck out by the court last week on the basis that the matter had now been decided.

Appeals against inquiry findings by judges inquiring into Sierra Leone’s rampant corruption

28 September 2023
Carmel Rickard

Two recent judgments from Sierra Leone, delivered on the same day, though they produced different outcomes, remind readers of the role played by judges in that country who headed inquiries into allegations of corruption. The current appeals were brought by top officials who complained about the findings made against them by the judges who headed two inquiries. One inquiry dated from 2018 under Justice Bankole Thompson, and the other, set up in the same year, was presided over by Justice Biobele Georgewill from Nigeria as the chair and sole commissioner. Both had to examine the assets of top state officials from Sierra Leone between 2007 and 2018 to see whether these assets were acquired lawfully and whether the officials had a standard of living that was ‘commensurate to their official emoluments’. This was part of a major effort at the time to deal with corruption in Sierra Leone, a country that has consistently been listed as one of the most corrupt in the world.

Crucial African Court decision follows Ivory Coast environmental disaster

28 September 2023
Carmel Rickard

Judges and lawyers in increasing numbers of African countries are dealing with cases involving environmental or climate change issues. A significant new decision by the African Court on Human and Peoples’ Rights will give those who work in these fields some important additional jurisprudence. The court was dealing with a case, sensational at the time, concerning a load of highly toxic waste, off loaded in Abidjan, Ivory Coast in 2006. After the waste was dumped in various sites around Abidjan, 17 people died from toxic gas inhalations, the health of an estimated 100 000 others were affected to various degrees, while environmental experts said there had also been severe groundwater contamination. The applicants, human rights organisations in Ivory Coast, asked the African court to find that rights were violated by the government, and to order a series of reparations. Though the government of Ivory Coast protested about the entire application, the court has now made a slew of findings about the state’s violation of rights in relation to the scandal and has issued several orders against the state. They include an order giving Ivory Coast a year to implement legislative reforms that will enforce a ban on the import and dumping of hazardous waste in compliance with the international conventions to which the state is a party.

New deal for awaiting trial prisoners in Namibia

15 September 2023
Carmel Rickard

Namibia’s highest court has delivered a judgment that could see a new era for awaiting trial prisoners in that country. Most fundamentally, it has struck down, as unconstitutional, the definition of the word ‘offender’ which had previously included awaiting trial prisoners. The court said that to call people ‘offenders’ when they hadn’t been convicted, struck at the heart of the constitutionally guaranteed presumption of innocence, because it suggested they had already been found guilty. The court also held certain other practices in relation to awaiting trial prisoners were unconstitutional.