The African Law Service

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

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Kenya: Time for courts to develop judicial review as “constitutional supervision of power” - judge

IN an ongoing battle over land compensation payment in Kenya, the high court has awarded both a win and a lose to the two sides in the bitter dispute. This particular part of the fight has seen the senate determined to show its authority by summonsing the companies that owned the contested land to appear before one of its committees and answer questions. The companies, on the other hand, claim a witch-hunt and say there is an attempt to coerce and blackmail them.

WHEN a court begins its decision with a hymn to the values of the constitution and the rule of law, I would expect to find the judge is about to do something unusual or significant.

Did this happen in the recently-decided case of the Speaker of the senate against two limited liability companies? You be the judge.

Before he even began to explain the facts of the case, though, Judge Mativo, who presided in the matter, spent three paragraphs on the significance of the law, justice and the rule of law in a modern, changing society.  

Somali "forced marriage" case poses headache for UK courts

AS the world becomes more aware of the need to protect children and young people from forced marriage, courts are faced with increasingly difficult cases on the issue. A new UK decision involving a family of children from Somalia illustrates the problems that judges could face. The children’s older sibling, who still lives in the UK, believed their mother was intent on the forced marriage of at least one of the children and tried to get the UK courts to act. In a series of hearings, the courts repeatedly extended protection orders over the children.

INCREASING awareness of the rights of children not to be forced into marriage led to this unusual trans-continental case, heard in the UK courts but involving an African family.

It concerns four young Somalis, formerly of the UK but now living in Somalia with their mother. The siblings’ sister, still in the UK, asked for help when she heard that their mother intended to force at least one of the younger siblings into marriage in Somalia.

Traditional leaders in Malawi win against property developer who hid information from court

TRADITIONAL leaders in Malawi’s Chikwawa district have won a significant court victory over a developer. This after he asked for judicial help in throwing a local community off land where they have lived for many years – but failed to disclose key facts to the court. An initial injunction against the local community was granted earlier this year, but then it emerged that he hid important facts in his original application, brought without notice to the traditional community.

Lesotho’s acting chief justice slows pending litigation brought by sidelined Chief Justice

THE judicial crisis in Lesotho shows no signs of resolution. While the suspended Chief Justice waits in limbo for a tribunal to investigate government claims against her, the acting chief justice has stepped in to stamp her authority on the situation. Among others, the actions of the ACJ have slowed a planned constitutional court hearing scheduled to deal with the dispute between the government and the CJ.

IN the midst of the judicial crisis in Lesotho, that country’s new acting chief justice has moved swiftly to stamp her authority on the courts and on the processes that had been put in place to prevent the suspension of the beleaguered chief justice.

On Sunday afternoon, 16 September, the new ACJ, Judge Maseforo Mahase, granted an ex parte order against Lesotho’s Chief Justice, Judge Nthomeng Majara stipulating that the latter was barred from the precincts of the palace of justice. She also barred Judge Majara from any activities associated with the role of the CJ.

High court protection "doesn't filter down to the lower courts" so this Jifa Alum declared magistrates court processes unconstitutional

NAMIBIAN high court judge Shafimana Ueitele, has been dealing with a sensitive case of injustice: a woman lost her home because the Magistrates Court Act did not give her the protections she would have had under the High Court Act. What should a court do when – as here – the law results in such blatant inequality, causing suffering and injustice?

Glenda Hiskia works as a security consultant with the United Nations mission in Liberia. Though she is a Namibian, her work contract provides that she must live in Liberia for eight weeks at a time with only a brief break home before the next eight week stint begins.

During 2010 she bought a property in a Windhoek building named Urban Space. That was her Namibian base for a while but after unresolved issues with the body corporate she bought another property and moved there, intending to renovate and then let out her Urban Space accommodation.

When “straying” courts need to be “reined in"

HERE is a rare situation: three judges of Swaziland’s highest legal forum, the supreme court, confessing they are at a loss to understand what is happening in the courts below. This after two high court judges issued contradictory orders in relation to a bail hearing and the supreme court was asked to intervene and sort out the mess. Did the supreme court have the power to do so? It was a novel question, testing certain of its constitutional powers for the first time.

This story appeared first in LegalBrief.

When courts must be parents

SOMETIMES a court is called on to act as a parent might, and resolve the problems of difficult children. Seldom, though, will two courts in the same country, less than 100 km apart, both hand down such a decision on the same day. But this is exactly what happened in Kenya where two judges both had to deal with errant scholars. The judges found different solutions to the problems before them: one allowed the suspended scholar to write exams at the school, but under strict conditions; the other refused to let the boy involved back onto the campus at all. 

This story appeared first in LegalBrief.

THE two cases heard by the two Kenyan judges both concerned parents anxious about their children who were in trouble with the school authorities. The parents came to court to challenge the suspension or expulsion rulings of the school authorities.

Judges Kanyi Kimondo and Wilfrida Okwany delivered their separate decisions on the same day last month, with a mix of good news and bad, for the affected parents.

Lesotho, Namibia, SA judges in controversial recusal decisions

CONCERN and confusion about recusal decisions by judges in the region continued this week. Most significant of these cases was a startling high court order against the chief justice of Lesotho. It was granted by the judge appointed as acting chief justice in her place who, in other jurisdictions, might have been expected to recuse herself. Other cases involving controversial recusal decisions this week come from SA and Namibia.

WHEN the Chief Justice of Lesotho, Nthomeng Majara, was officially suspended on 12 September, government named an acting chief justice: Judge Maseforo Mahase.

The next day, through a letter from her legal team, the Chief Justice disputed the legality of the suspension, saying there were two court orders that specifically barred her suspension, and that when she returned from a conference in Australia she intended to return to her office and take up her normal work.