The African Law Service

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

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Challenging culture of impunity in Kenya

Three former university professors have brought a claim in Kenya’s high court asking for restitution for human rights infringements. They seem to be part of a trend to end the culture of impunity in Kenya. The three had been detained and tortured under a previous government, and now, more than 30 years later, wanted recognition of what had happened, plus compensation for how their lives had been ruined by the unlawful action against them.

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The solemn opening remarks by Judges John Mativo and Pauline Nyamweya signaled the gravity of the decision they were about to give and the horrors the case would disclose: torture, unlawful abduction, years in illicit detention, lives wrecked, bodies broken.

Law is the “bloodline of every nation”, the judges said. “The end of law is justice. It gives justice meaning.” It was a shield or refuge from misery, oppression and injustice.

Don’t use “constitution” as a “mantra”, Malawi’s supreme court warns

Malawi’s former agriculture minister, George Chaponda, was a key figure in that country’s “Maizegate” scandal around the importation of maize from Zambia to replenish stocks that had allegedly fallen low. Public criticism of apparent corruption led to a presidential commission of inquiry and then to high court action to have Chaponda stand down during the inquiry. Though the high court initially ordered Chaponda’s suspension, the supreme court has just ruled that it was wrong to do so, and that the judge had ignored binding precedent.

Read the judgment on MalawiLII

When Malawi was gripped by a maize shortage scare a few years ago the government arranged to buy more from Zambia. But allegations of corruption soon followed against George Chaponda, then minister responsible for agriculture, as well as other officials in Malawi and in Zambia.

So great was the public outcry that a presidential commission of inquiry was established to investigate.  

Citing “canteen factor”, judge stops law firm from acting against its own client

WHEN a hacker found and used the password of bank employee Shakil Pathan Ismail he was short-paid for a year while police investigated. Then the bank went under and the financial institution that took over its assets and liabilities ended the staffer’s employment while denying they were responsible to sort out the problem of his hack-related short pay. So how was he to get his money? - He headed to Uganda’s Commercial Court where Judge David Wangutusi came to the rescue.

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For a year following a breach of cyber security at Uganda’s Crane Bank, staffer Shakil Pathan Ismail was drawn into the investigation. After his password and that of another member of staff were used in an electronic hacking fraud during August 2015, the investigators put his salary on hold, promising that it would be “reinstated” once the police inquiries were completed. But this never happened.

Judges on warpath against drug scourge

Two new decisions from the High Court in Namibia show judges on the warpath against drugs and drug dealing. The distinctly tougher line follows a watershed judgment late last year (2018). As I wrote at the time, through that strongly-worded landmark decision the Namibian courts gave notice that they were intent on a serious change to the way they handle cases involving drugs and drug dealing.

The two Namibian high court judges who heard the appeal by drug-accused Paul Umub did not mince their words. Upholding his 10-year sentence they said: “The courts must step in and impose severe sentences, never heard of before, as we are losing the battle against drug abuse. … The sentences … imposed must be so severe to deter the appellant and would-be offenders from committing such offences.”

Christmas is coming, so we're putting you in jail

In the midst of bad stories about the quality of justice being experienced in Zimbabwe’s courts comes a high court judgment that sees the accused as an individual – and that sets aside his trial sentence in the lower court as a shocking expression of the magistrate’s whims about burglars at Christmas.

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The judiciary in Zimbabwe is not enjoying a particularly good international reputation at the moment. News of bail applications routinely refused, of mass trials and sham prosecutions  – all have raised questions about the quality of justice being dispensed in that country during the current crackdown on opposition activists.

"Disgraceful abuse of legal authority" - attorney re-writes court's judgment before delivery

In what two high court judges have described as misconduct “unprecedented in the annals of SA judicial history”, a magistrate has been found to have allowed an attorney to re-write his judgment before delivery. Even worse, the attorney concerned had appeared for one side in the case that led to the judgment. The magistrate, who has since died, initially wrote a judgment four pages in length, but after the attorney’s re-write this increased to 10 pages.

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Just one sentence into the judgment, and you know this is a legal scandal of significant proportions: Judges Thembekile Malusi and Mbulelo Jolwana said the “misconduct which culminated in this review, to the best of our knowledge, is unprecedented in the annals of the judiciary in this country. We hope it will never be repeated by any judicial officer.”

Valentine's Day winner: New Tanzanian court rules improve experience of justice by vulnerable groups

Tanzania’s Chief Justice, Ibrahim Hamis Juma, has promulgated new rules that could greatly change how people from vulnerable groups experience courts and the justice system. That is why this is Jifa's winning Valentine's Day 2019 good news story: we like the care it shows for normally-forgotten people with no one else to champion their cause. The rules prioritise cases involving disadvantaged people, and set deadlines for finalizing matters in which they are involved.

Read the Rules on TanzLII

Court rules are often pretty boring to outsiders. Usually they are only of interest to lawyers who must obey them to the letter so they don’t get into trouble and make a mistake about filing deadlines, for example.

Court “stands tall”, rules that state violates evictees’ rights

The failure of Uganda’s Government to pass laws protecting people evicted from private and public land has come under the sharp eye of the high court. Following an application brought by a local human rights lawyer, the court has declared that failure to pass laws setting out proper procedures in the case of evictions violated the rights to life, dignity and property of those affected. Judge Musa Ssekaana ordered the government to report back within seven months on its progress towards such legislative guidelines.

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Hard to imagine in a country with a strong constitution that goes back almost 25 years, but Uganda has no legal provisions for the protection of some of its most vulnerable people: those evicted from private or public land.

Secularism in Ghana "obviously" encourages state accommodation of religion and religious identity - Supreme Court

A major challenge to Ghana’s planned national cathedral, brought on the basis of a challenge to alleged infringements of the country’s “secular” constitution, has just been dismissed by the supreme court. Ghana’s highest court found that secularism in Ghana “obviously” allowed and encouraged recognition and accommodation of religion and religious identity by the state. But this does not necessarily mean criticism is over – plenty of critics say it will be wasteful and an unjustified expense.

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As part of Ghana’s 60th anniversary celebrations in 2017, the president, Nana Akufo-Addo, turned the first sod for a major national symbolic structure – the Ghana National Cathedral. To be funded by individuals and organisations within the Christian community, the cathedral is said by the government to be a priority project. But it is not without its critics.

Court tells Ugandan Law Council: ad hoc decisions about admission to practice wrong and must stop

The council that oversees access to the legal profession in Uganda has just experienced a thorough defeat in the high court. A full bench found the council had not passed the regulations it should long ago have put in place regulating admission of candidates to the roll of advocates. Instead it made ad hoc decisions about admission, something that was “wrong and must stop”.

 

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At the heart of this case stands a forlorn, would-be advocate. Ugandan Tony Katungi is keen to join the profession but he found that the Law Council put obstacles in his way, delaying access to the profession and making it more difficult and more expensive.

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