Carmel Rickard

Zambia’s constitutional court strongly backs judicial independence
Zambia’s constitutional court strongly backs judicial independence

Zambia’s constitutional court has found parliament in breach of the constitution by not passing legislation to ensure the full financial independence of the judiciary and that it is adequately funded. In a decision strongly underlining the principle of judicial independence, the court has ordered that until these laws have been passed and put into effect, the minister for finance should report to parliament every six months on what has been done to ensure financial independence of the judiciary. Ironically, the challenge was brought by Zambian counsel, John Sangwa. In March 2020, the chief court registrar informed all the country’s judges and magistrates that Sangwa was no longer allowed to appear in court because of a ‘malpractice complaint’ filed against him by the lawyers’ association of Zambia. This ‘complaint’ followed a ‘denunciation’ of Sangwa by several judges after Sangwa was critical of certain new judicial appointments. He had also criticised the government when the former president, Edgar Lungu, announced he would stand again for the presidency, even though, in Sangwa’s view, he was ineligible.

Church obtained land fraudulently, must give it back, with damages, court finds
Church obtained land fraudulently, must give it back, with damages, court finds

A high-profile Ugandan church and one of its senior pastors have been found to have obtained land by fraud. The high court in Kampala, which made that finding, has ordered that the church must quit the land that was fraudulently obtained, while the plots must be returned and the official title and registration deeds changed to reflect that order. In addition, the church and the pastor must pay a damages bill of UGX50m plus interest and legal costs.

Time to rethink Zambia’s law on ‘insulting language’?
Time to rethink Zambia’s law on ‘insulting language’?

An outspoken Zambian magistrate has criticised the country’s law against the use of insulting language, saying some people saw mere criticism as insults, and that the law ‘when misapplied’ could result in an authoritarian and controlling society. It could cause ‘contemporary intolerance’ and ‘when not well prosecuted’, represented ‘an intense desire to gag uncomfortable voices of dissent’. He was giving judgment in a case where the accused was charged with naming someone as a witch and with using insulting language. The magistrate said it was the actions taken in consequence of a belief in witchcraft that are a problem, rather than the belief itself – but that this belief ‘has been deeply entrenched in the Zambian psyche’. He said it increasingly seemed that ‘old age is synonymous with being a witch in many communities in Zambia’, and that many elderly men and women were forced to leave their ancestral villages because of being labelled witches.

Bank not liable for loss after clerk, mandated to operate a client’s accounts, steals money
Bank not liable for loss after clerk, mandated to operate a client’s accounts, steals money

Should banks allow staff to be given mandates so that they may operate the accounts of customers? It’s a question that has to be asked in the wake of a new decision by Namibia’s supreme court. The apex court had to consider the bank’s liability for funds misappropriated by a clerk who had been given a mandate by a customer to operate the customer’s accounts.

Court reviews bail conditions for Malawi’s deputy president, facing financial charges
Court reviews bail conditions for Malawi’s deputy president, facing financial charges

Malawi’s deputy president, Saulos Chilima, is facing charges in the financial crimes division of the high court. He was granted bail on the day of his arrest in November 2022, when the magistrate set conditions that Chilima has observed since then. This month, however, the high court had to consider an application for certain bail conditions to be changed. During his judgment on the issue, high court judge Redson Kapindu had to deal with some strange moments from argument during the hearing on bail. Like Chilima’s counsel quoting the case of United States v Donald Trump, dealing with the former US president’s release on bail without any conditions. It sounded on point, but since no-one could find a copy of the judgment text, the Malawian court could put no weight on it.

Court orders reporting shroud over upcoming divorce hearing
Court orders reporting shroud over upcoming divorce hearing

Uganda’s high court has been wrestling with the difficult question of how to balance three sometimes competing constitutional principles when it comes to reporting on divorce cases: the right to free expression claimed by the media, the parties’ privacy rights and the general principle that courts should be ‘open’ and the justice they dispense should be seen to be done. The need for a judicial balancing act was triggered when an advocate appearing for one of the parties in a divorce due to be heard by the high court, brought an unusual application. He asked the court to hear an ‘anonymous divorce’ in which the parties would be referred to only by ‘special pseudonyms’. The advocate said especially sensitive information would emerge from the case relating to the mental health of at least one of the parties. There was also a young child who should be protected from publication of the details of the divorce. Further, those involved in the ‘narration supporting the proposed divorce’ included current and/or retired judges who could be affected in their work by media reports of the petition. The judge who heard the application has now agreed to the use of pseudonyms, along with other strict conditions that bar the media from covering the case.

Uganda’s anti-gay laws: what will East African Court of Justice say?
Uganda’s anti-gay laws: what will East African Court of Justice say?

The lawfulness of Uganda’s ultra-punitive new legislation on homosexuality has been challenged by two applications filed at the East African Court of Justice. The first was filed in June by controversial Ugandan lawyer, Male Mabirizi. The second just made the court deadline when it was filed by a group of individuals and organisations. Both applications ask the court to declare the law null and void. The new challenge will argue that the principles of good governance were infringed because of an alleged absence of adequate public participation as well as bias and partiality on the part of the speaker of Uganda’s parliament. Further, these challengers say, enacting the law contravened the principles of good governance, including democracy, the rule of law, social justice, and the protection of human rights, in accordance with the African Charter on Human and Peoples’ Rights as well as provisions of the treaty that set up the East African Community.

Judgment upholds public ‘right to know’: Kenyan court orders government minister to provide information
Judgment upholds public ‘right to know’: Kenyan court orders government minister to provide information

Maverick Kenyan human rights litigator, Okiya Omtatah, has done it again. The engineer-turned defender of the rule of law brought a challenge related to a government decision exempting the instruments used in a major merger from the Stamp Duty Act. When Omtatah asked the reasons for the exemption, he was met with silence. So, he challenged that silence in the constitutional and human rights division of the high court. Now, via a judgment that reaffirms key constitutional values, presiding judge Lawrence Mugambi says the reasons should have been provided and has ordered the government to do so.

Judge orders damages against Namibia’s police who detained child overnight for no good reason
Judge orders damages against Namibia’s police who detained child overnight for no good reason

The conduct of Namibia’s police is under the spotlight once more, thanks to a high court case from which it emerged that they detained a group of people and held them overnight although they did not suspect them of any crime. Among those detained was a nine-year-old boy. The boy was travelling with a group of his relatives, one of whom was thought by the police to be a suspect in a housebreaking case. Police ordered that everyone in the car had to go the police station where they were held overnight. This included the child. When the boy and his father later sued the police, the court held that no attempt was made to contact the child’s family to inform them of his whereabouts. The judge also held that the child had been unlawfully detained and awarded damages to the boy as well as to his father, who had spent an anguished night not knowing what had happened to his child.

Tortured Ugandan wins award against intelligence operatives
Tortured Ugandan wins award against intelligence operatives

A year after Human Rights Watch issued a strongly-worded report on torture and illegal detention carried out by security officers in Uganda, a court in that country has awarded substantial damages to a man who was held and tortured for 17 months by the country’s Internal Security Organisation (ISO). The court also ordered that the damages, and legal costs, be paid by the members of the ISO involved.

Tanzania’s high court says constitution adequately protects Chief Justice
Tanzania’s high court says constitution adequately protects Chief Justice

A Tanzanian court has found there is no need to seek changes to that country’s constitution which says the president may dismiss the Chief Justice. The court says this does not infringe the independence of the judiciary, and that the procedure laid down for the dismissal of judges of the appeal court would apply, since the CJ is a member of that court. The court was responding to a petition which said giving the president the power to dismiss the CJ was wrong since it undermined the principle that the three arms of state were equal and independent.

Child marriage and the law: challenges, cautions and alarming statistics from new report
Child marriage and the law: challenges, cautions and alarming statistics from new report

Between them, Tanzania and Mozambique are estimated to have more than 10 million child brides. These and other alarming statistics emerge from a new report by Equality Now. The report examines the prevailing situation of child marriage in eastern and southern Africa, including the legal frameworks and potential gaps in legislation. Some of its conclusions are particularly important to note for judges and lawyers who may be faced with cases of intended or concluded child marriage.

Supreme court rules on Nigerian attorney’s struggles to practice in Namibia
Supreme court rules on Nigerian attorney’s struggles to practice in Namibia

Imafon Fiona Akpabio is a Nigerian lawyer. Living legally in Namibia, she wants to practice there – but she’s been having problems getting her qualifications recognised. Eventually her conflict on the issue with the relevant authorities – the minister of justice and the board for legal education – landed up in Namibia’s apex court, and three judges of that court have now given their decision.

Refugees could lose host country’s protection if they visit ‘home’
Refugees could lose host country’s protection if they visit ‘home’

The issue of refugees going ‘home’ for a visit and their asylum status then being revoked in the host country isn’t a common problem for African courts. At least not yet, judging by the absence of reported cases dealing with that question. But it’s very much a problem in some other jurisdictions as Turkish refugee to Canada, Ismail Kaya, for example, has discovered.

‘Once a refugee, always a refugee’: Uganda’s high court disagrees with passport control officer’s views
‘Once a refugee, always a refugee’: Uganda’s high court disagrees with passport control officer’s views

Uganda is Africa’s most generous refugee host and more than 1.5 million refugees and asylum seekers have been registered there. But despite this open-arms approach, there seem to be problems with local officials discriminating against refugees, as the case of Abucar v Attorney General illustrates. It was a matter brought by a group of plaintiffs who say they have met the requirements for citizenship, but that a senor passport official had issued a circular that effectively cancelled their right to citizenship status, thus making them permanent refugees.

Judges need a working knowledge of social media to handle certain refugee cases
Judges need a working knowledge of social media to handle certain refugee cases

When would-be refugees formally apply for asylum, it is standard in some countries for the authorities to examine the applicant’s social media record. There are possible benefits – and possible dangers – in doing so, and a new working paper from the International Association of Refugee and Migration Judges highlights some of these.

Dreadlocks may no longer prevent children from admission to Malawi’s schools – high court
Dreadlocks may no longer prevent children from admission to Malawi’s schools – high court

It has taken years to achieve, but the children of Malawi’s Rastafarian community may no longer be barred from going to state schools because of their dreadlocks. The new decision to this effect, written by high court judge Zione Ntaba, follows years of discrimination against children who have had to choose between obtaining education, or acting in a way that is contrary to their faith by cutting their hair. The judge found that a number of the children’s constitutional rights were infringed by a government policy – whether written or not – that learners would not be allowed to attend classes wearing dreadlocks.

Diplomatic immunity invoked in spat over collapsed Kampala wall
Diplomatic immunity invoked in spat over collapsed Kampala wall

From time to time, diplomats and other representatives of foreign governments become involved in legal disputes, both criminal and civil, in their host countries. At stake in all such cases is the important question of diplomatic or sovereign immunity, a principle that generally shields foreign diplomats and governments from legal action in their host country. The latest reported African judgment in which this issue has been raised comes from Uganda where the high court had been poised to hear a dispute over a collapsed neighbour’s wall, allegedly the result of repairs carried out by the British High Commission in Kampala to its own property. Now, however, thanks to a high court decision made last week, the question has become whether the action will be heard at all, rather than whose version of events is correct and whether the British High Commission must pay damages to its neighbour.

Seychelles and human trafficking: sinister new trend emerges from appeal
Seychelles and human trafficking: sinister new trend emerges from appeal

Seychelles is regarded as a state that is doing relatively well on the question of combatting human trafficking. It’s on the US state department’s global assessment register as at Tier 2: not fully meeting the minimum standards for the elimination of trafficking, but making significant efforts to do so. These efforts include establishing the country’s first anti-trafficking hotline and establishing a trafficking-specific shelter. Two recent appeal judgments, however, give a sense of the difficulty of the work that lies ahead. Both involved a worrying new development in human trafficking: the use of local men as ‘drug guarantees’. These are people trafficked to stand as hostages to ensure that money owed to drug suppliers will be paid.

Namibia’s top court on recognising foreign same-sex marriage: what did it actually say?
Namibia’s top court on recognising foreign same-sex marriage: what did it actually say?

In a decision with wide-reaching implications for the country’s gay and lesbian community, Namibia’s apex supreme court has held that same-sex marriages, properly concluded in countries where such unions are permitted, must be regarded as valid in Namibia. The new decision, made despite the fact that same-sex marriage is not allowed in this Southern African nation, brings to an end long-running litigation involving two couples whose relationship had been refused recognition.

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