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Doing well, but could do better: the judiciary and technology in Africa
Doing well, but could do better: the judiciary and technology in Africa

The theme of the 2021 Southern African Chief Justices’ Forum conference was ‘The judiciary and technology in Africa’. As readers might expect, there was considerable focus on the switch, in many jurisdictions, to virtual court hearings because of Covid-19. But that’s not all that was on the agenda.

Court finds Kenya’s new tax law unconstitutional; calls government’s ‘vaccine’ for ‘virus’ of non- tax payments, ‘inappropriate’
Court finds Kenya’s new tax law unconstitutional; calls government’s ‘vaccine’ for ‘virus’ of non- tax payments, ‘inappropriate’

Kenya’s high court has declared a controversial new tax law unconstitutional. The proposed new law would have seen taxpayers paying tax on gross turnover when they declared a loss or not enough profit to be billed for income tax. The government wanted the new law providing for a minimum tax to help state finances after Covid-19’s incursions on the fiscus. The decision is to go on appeal, but in the meantime the new tax cannot be levied.

Not all a bed of roses in Kenya’s flower export industry
Not all a bed of roses in Kenya’s flower export industry

A newcomer to Kenya’s trade union scene has been trying to have a more established trade union elbowed out of the way by the high court. The Kenya Export, Floriculture, Horticulture and Allied Workers Union says it should be the only union recognised by management. As a result, it said, the court should order that the cabinet secretary for labour must approve no further collective bargaining agreements related to floriculture and horticulture between the employer association and the established union.

Election case thrown out over advocate's expired practice certificate
Election case thrown out over advocate's expired practice certificate

When is an advocate not an advocate? The question has been raised in an application heard by the high court, Uganda, in a dispute related to elections held in that country earlier this year. The advocate concerned had commissioned an affidavit that formed the basis of the litigation, but the other side questioned whether the advocate was entitled to do so. It all came down to whether the advocate had renewed her annual practice certificate in time. If not, would the affidavit – and thus the petition – be valid?

Uganda’s anti-corruption court sentences international gold scammers
Uganda’s anti-corruption court sentences international gold scammers

Uganda’s anti-corruption court has been hearing an incredible story about a gang of scammers, headed by Lawrence Lual Malong of South Sudan, a high-living playboy, sometimes photographed lying in pools of US dollars and wearing shoes, clothes and watches worth a fortune. Malong and two co-accused were convicted of fraud in that they extracted huge sums from two Ethiopian businessmen, living in South Africa, for gold that did not exist. Malong has been named in a variety of articles and reports including one from movie star and activist George Clooney’s anti-corruption outfit, The Sentry. A 2016 report by The Sentry, “War Crimes Shouldn’t Pay”, says Malong junior creates the impression of having ‘immense wealth’, and as benefitting from close family connections to the enormously rich and powerful in South Sudan.

Namibia’s apex court ‘seriously censures’ police officers for malicious arrest and acting as though ‘beyond any level of accountability’
Namibia’s apex court ‘seriously censures’ police officers for malicious arrest and acting as though ‘beyond any level of accountability’

Namibia’s highest court has sternly reproved elements of the country’s police service for seriously abusing their power and acting ‘as if they were beyond any level of accountability’. In its official summary of the case, the supreme court wrote that the ‘highhanded conduct of the police officers called for serious censure by this court.’ The case concerns Bernhardt Lazarus who runs a bar in Windhoek and who was terrorised by some members of the police who repeatedly arrested him, without warrant or cause.

Apologising for delay, Sierra Leone’s highest court says appeal ‘beggars belief’ because based on ‘unsigned and undated’ documents
Apologising for delay, Sierra Leone’s highest court says appeal ‘beggars belief’ because based on ‘unsigned and undated’ documents

The highest court in Sierra Leone has dismissed an appeal by the losing candidate in an election for chieftaincy. The appeal was, however, based on provisions that only came into legal operation after the disputed election. Not just that, the provisions were also never shown to any witness nor, until they were attached as annexures in counsel’s final written address, were they even available to the court itself. The supreme court found that the grounds for appeal were so weak that, if leave to appeal had had to be obtained, it would never have been granted in this case. In fact, it was a good example of why there should not be an automatic right of appeal to the apex court, said the judges.

Uganda’s ‘forest people’ win judgment over land dispossession for gorilla parks
Uganda’s ‘forest people’ win judgment over land dispossession for gorilla parks

A little-known Ugandan tribe, evicted from their ancestral lands to make way for three internationally famous national parks that are home to endangered gorillas, have won an important legal victory. The constitutional court of Uganda has held they must be helped and compensated for the loss of their lands. The Batwa people lived in the forests that are now known as the Mgahinga Gorilla National Park, the Bwindi Impenetrable National Park and the Echuva Central Forest Reserve. When they were evicted for the formal proclamation of these reserves, however, they were not paid proper compensation and live under what the court called appalling conditions. The exact extent and nature of the ‘affirmative action’ that the state must now take to improve the condition of the Batwa is to be decided by the high court after hearing proper evidence on what is needed.

Test of judicial impartiality, independence, for Eswatini judges
Test of judicial impartiality, independence, for Eswatini judges

A case pending before the Supreme Court of Eswatini, and due for hearing at the end of August, could be a crucial test of judicial independence in the country. Lawyers involved in the case say at least three of the five judges due to preside when the case is called, are candidates for recusal. The appeal is due to deal with a high court’s declaration that key sections of Eswatini’s terrorism and sedition laws were unconstitutional. Even before the appeal is called, however, a prominent litigation organisation has also expressed its concerns about the composition of the bench. The Southern Africa Litigation Centre (SALC) says that two intended members of the supreme court bench, slated to hear the matter, were involved in the case at the high court level and could thus not sit in the appeal.

Case built on ‘a lie’ by investigators, prosecutors ‘gone rogue’ – judge clears former Botswana intelligence agent of charges
Case built on ‘a lie’ by investigators, prosecutors ‘gone rogue’ – judge clears former Botswana intelligence agent of charges

It will be a long time until the dust settles after this week’s sensational judgment in the case of Botswana’s former intelligence officer, Welheminah Maswabi. After a great deal of hype about the enormous sums of money that she was supposed to have stolen from the Botswana government – a total that was a good deal more than the country’s entire gross domestic product – the court found that the director of public prosecutions and the investigation team that worked on the case, had fabricated and deliberately falsified evidence. Those involved had ‘gone rogue’, committing a brazen criminal act, said the court. The prosecution of Maswabi involved other high profile people – Botswana’s former president, Ian Khama, and South African business woman, Bridgette Radebe – and Khama, for one, is planning to take action against those whom he believes are behind the extraordinary case.

Ugandan court guts anti-porn laws women say oppress, rather than protect, them
Ugandan court guts anti-porn laws women say oppress, rather than protect, them

Women’s organisations and several individual women in Uganda have challenged key parts of the country’s 2014 laws intended to deal with pornography. They claimed that, far from protecting women, the ‘overbroad’ laws had led to women being assaulted and literally undressed in public by men who claimed their dress was ‘too skimpy’. The constitutional court was unanimous in agreeing to much of the petition and finding the contested provisions unconstitutional.  This decision is particularly interesting since it was responding to an application by a number of women and women’s organisations and yet anti-pornography laws are usually justified by governments on the grounds that they are necessary to protect women and children.

Newly ‘perfected’ death penalty decision shows all is far from perfect on Malawi’s apex court
Newly ‘perfected’ death penalty decision shows all is far from perfect on Malawi’s apex court

It was an amazing glitch: though a majority of Malawi’s highest court was seen to have declared the death penalty unconstitutional in a decision delivered late April, the court now says this isn’t so. According to a ‘perfected’ version of the judgment, published this week, the lead writer of the April decision was expressing his own views on the death penalty, not those of his colleagues. In terms of explanations given by other members of the court in the new ‘perfected’ judgment, the lead writer was supposed to have expressed the majority view on the narrow question of whether the convicted prisoner whose appeal the court was considering, was entitled to a sentence re-hearing. Instead, however, he delivered a decision that was much more wide-ranging and committed the majority to a view it had not reached.

SADC loses appeal over unlawfully terminated contract with top tribunal official
SADC loses appeal over unlawfully terminated contract with top tribunal official

Claims by senior Malawian judge, Charles Mkandawire, that his position with the Southern African Development Community’s now defunct tribunal was unlawfully terminated have again been upheld. Three judges of the SADC Administrative Tribunal’s appeal panel have dismissed an appeal brought by SADC, testing last year’s decision in favour of Judge Mkandawire, the original tribunal’s first registrar. After SADC closed down the tribunal at the instance of Zimbabwe’s former President, Robert Mugabe, Judge Mkandawire ultimately returned to Malawi where he is now a member of the country’s apex court.

Justice for Memory
Justice for Memory

Reports from Zimbabwe that a 14-year-old girl, Memory Machaya, died giving birth last month have inflamed social media in that country. Memory, whose family is part of an indigenous apostolic sect, was ‘married’ at 13 after her family forced her to leave school. She was buried within hours of her death, without any official investigation. There are now calls for urgent action by police and for government to speed up changes to the legal minimal age for marriage to reflect a decision, delivered five years ago by the constitutional court, stipulating that neither boys nor girls may marry before they are 18.

Strong human rights judgment for prisoners in Lesotho
Strong human rights judgment for prisoners in Lesotho

In an important human rights judgment, the high court of Lesotho has held that a former army commander, Tlali Kamoli, now a prisoner, refused bail and standing trial for murder and attempted murder, may attend the funeral of his son who died recently. The decision is important because Chief Justice Sakoane Sakoane, who wrote the decision, stressed the principle that the human rights of prisoners had to be taken into account in making such a decision - and in fact did so in his judgment. He also criticised the commissioner of Lesotho’s correctional services for the obstructing role he played in the matter of Kamoli attending the funeral. And while it became clear from the argument on behalf of the commissioner that he had assumed Kamoli would have to attend the funeral in chains and leg irons, the court made it clear that such treatment infringed a prisoner's right to dignity, among other rights.

CONSTITUTIONAL COURT RULES THAT MARRIAGES OF BLACK WOMEN MARRIED IN TERMS OF SECTION 22(6) OF THE BLACK ADMINISTRATION ACT 38 OF 1927 ARE AUTOMATICALLY IN COMMUNITY OF PROPERTY

Historically marriages of black people were regulated exclusively by the Black Administration Act, 38 of 1927 (“BAA”). In terms of section 22(6) of the BAA, the default position for black couples was that their marriages were automatically out of community of property. This section was repealed by the Marriage and Matrimonial Property Law Amendment Act, 3 of 1998 (“Amendment Act”),  which deleted section 22(6) of the BAA and inserted of section 21(2)(a) and 25(3) into the Matrimonial Property Act 88 of 1984 (“MPA”) which provided black couples that were married under section 22(6) of the BAA with an “opportunity” to change their matrimonial property regimes within two years after the commencement of the MPA, from 2 December 1988.

Uganda prepares for new law on ‘human sacrifice’: here’s what a case of ‘human sacrifice’ looks like
Uganda prepares for new law on ‘human sacrifice’: here’s what a case of ‘human sacrifice’ looks like

Uganda’s President Yoweri Museveni has just signed a long-anticipated piece of legislation into law. The new legislation, aimed to deal with ‘human sacrifice’, was originally introduced as a private member’s Bill but won widespread support in parliament. Among other tough provisions, the new law prescribes life imprisonment for anyone found to unlawfully possess human body parts as well as ‘instruments associated with human sacrifice’. As the law becomes part of the state’s options for dealing with cases like this, a recent decision of Uganda’s court of appeal, involving just such a matter, brings home the horror it involves.

Major new development for law and rights related to African refugees, migrants
Major new development for law and rights related to African refugees, migrants

A new ‘centre of excellence’, focused on law that deals with refugees and migrants in Africa, was announced this week. Based at the University of Cape Town, the project has three major backers: the UNHCR (the UN’s refugee agency), the International Association of Refugee and Migration Judges and the Judicial Institute for Africa. Among its chief objects, the project will focus on university-certified training in refugee and migrant law for judges, magistrates and others working with refugees in Africa. It will also provide an immediately accessible, constantly updated database of relevant decisions, legislation and policy documents from around Africa that can be used by judges and magistrates as well as lawyers working with refugee and migrant clients, policy-makers and others.

Courts consider litigation by deaf drivers, TV viewers
Courts consider litigation by deaf drivers, TV viewers

The rights of deaf people have been considered by the courts in two recent decisions, one in Zambia and the other in the UK. In the first, the applicants challenged Zambian provisions in terms of which deaf drivers are not entitled to driving licences. In the second, a deaf woman claimed the UK government discriminated against her and others in her position by not providing a British Sign Language interpreter for government live briefings to the public about Covid-19.

Police act against two Kenyan high court judges, search chambers
Police act against two Kenyan high court judges, search chambers

Two judges of the high court in Kenya were questioned and their chambers searched last week, sparking widespread concern about whether this was a symptom of worsening relations between the judiciary and the executive. After the arrests – detectives now dispute that the judges were in fact ‘arrested’ – and questioning for several hours, the judges were released. Their lawyers said afterwards that the judges’ chambers had been searched, apparently for money that might have been evidence of bribery, but that nothing had been found. This week, however, the directorate of criminal investigations (DCI) claimed it had seized Ksh6million in the search. At this stage the situation is still confused – and confusing. But a useful article gives some guidance as to how the police ought to approach the question of arresting a judge and searching his or her chambers.

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