The African Law Service

The African Law Service brings diverse commentary on legal developments from across our African continent. 

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Chapter 02: Criminal Law in 4D

Introduction

Criminal law can be confusing because conduct can be both reasonable and unreasonable, right and wrong, and things can exist or not, all at the same time. This might appear to be an indictment of criminal law as inherently contradictory, but it is not. It is an attempt to illuminate how all these things can be true at the same time - without contradiction.

Seychelles appoints leading Ugandan judge to its apex court

The Court of Appeal in Seychelles, that country’s highest judicial forum, has been joined by one of the continent’s leading judges who is also a prominent academic writer on the issues of gender-based violence. Judge Lillian Tibatemwa-Ekirikubinza of Uganda’s apex court, was sworn in at State House this week, where she will sit with three other members of that bench, along with the court’s president. Her appointment will give the highest court of Seychelles additional depth on issues of rape and femicide, subjects on which she is an acknowledged expert.

As Africa and many other parts of the world threaten to explode with anger over the rape of children and women, femicide and other forms of gender-based violence, the highest court of Seychelles has scored an important addition to its ranks. This judge brings a particular knowledge of and sensitivity to the growing problem of violence against women from her academic work as well as her experience on the highest court of her home country.

Society ‘crying out for miracle’ to end brutality against women - judge

Over the last fortnight, the media in South Africa has been filled with particularly terrible crimes involving gender-based violence. In one response, an enormous crowd of women and men, dressed in black, protested outside the parliament buildings, demanding they be addressed by the President. Many were urging that a state of emergency be declared because of on-going femicide and rape. But the problem is endemic in the whole SADC region. And occasionally even the courts are moved to speak strongly on the issue.

Husband's right to ‘rule over his wife’ – it's gone!

Women’s month may be over for 2019, but there is one new judgment that cannot be left out of consideration. It comes from Eswatini where a full bench of the high court - Principal Judge Qinqisele Mabuza with Judges Titus Mlangeni and N J Hlophe – has handed down a hugely significant decision: it delivers women from the power a husband has had to ‘rule over his wife’.

 

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This is a case with enormous implications for Eswatini women: three judges have spelled out the implications of the constitutional guarantee to equal treatment before the law. And they have definitively ruled that the common law doctrine of marital power discriminates against married women.

Among others, the now discredited marital regime offended the right of married women to dignity and to equality.

Withdrew

Tiny, remote Namibian clan claims world renowed Etosha National Park as ancestral land

Perhaps they didn’t realise it, but when eight members of Namibia’s Hai||om people went to court for what they claimed was their traditional land, they raised a number of other burning socio-political issues as well. The Hai||om live in a remote northern area of Namibia, overlapping the pristine Etosha National Park, environmentally sensitive and a major world tourist attraction for the country. Could the eight litigants claim the entire park as ancestral land, acting in a representative capacity for all the Hai||om people?

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The eight applicants wanted the court to agree that they could represent the minority Hai||om people. That established, they wanted to claim the entire world-famous Etosha National Park – all 23,150 sq kms of it – together with other significant tracts of land. They said this was their ancestral land, and they were being prevented from using it. Failing return of the land, they wanted compensation in land or money.

Appeal blocks far-reaching environmental ruling

Intrigues, illegalities and pollution involved in a sugar milling operation whose poisonous effluent eventually flows in Lake Victoria have been highlighted by Kenya’s environment and land court. In a far-reaching judgment, the court gave the company 120 days to sort out licences and environmental impact assessments for all their operations – or be closed down. But the Court of Appeal has now stepped in to overturn part of the lower court’s order, with a ruling that the mill may continue to operate as before until the appeal is heard.

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Judges from the Southern African Development Community (SADC) region met last week outside Cape Town for specialised judicial training in a growing field of law. The course, offered by the Judicial Institute for Africa (Jifa), was an introduction to environmental law, a subject many of the judges have not often needed to deal with before.

Magistrates in Lesotho introduce new deal for awaiting trial prisoners

Magistrates across Lesotho, concerned about the continuing conditions there that they believe impact negatively on the rule of law, judicial integrity and general confidence in the legal system, have taken a number of resolutions likely to impact on the courts and the public. Among others, they have resolved to release people being held awaiting trial if their cases ‘are not prosecuted within a reasonable time’. They have also resolved to dismiss criminal cases where ‘pending investigations’ have continued for an ‘unreasonably long time’.

Magistrates in Lesotho are clearly unhappy. This year they have already tried repeated strikes to highlight their concerns but without success - promises made to them have come to nothing. 

Then, this week, representatives of the magistracy from across Lesotho met in Maseru and took a number of decisions likely to impact on the functioning of the courts and the legal system throughout the country.

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