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State must take tougher steps to ensure people's fundamental rights are not violated - Kenya’s apex court
State must take tougher steps to ensure people's fundamental rights are not violated - Kenya’s apex court

The supreme court of Kenya has delivered a significant judgment on the right to shelter. It involved people who had been living in two informal settlements since the 1960s, when it was effectively public land. In 2013, they were forcibly evicted by a private entity, the Moi Educational Centre, with the help of the state via the police and others. The high court found in favour of the people who were evicted, saying there was an ‘unapologetic admission’ by the Moi Centre that it had evicted the people and had their homes demolished, all without a court order. The high court ruled that fundamental rights were indeed violated, and awarded damages to the petitioners. Much of this was set aside on appeal, and the petitioners then approached the supreme court for its view. The five supreme court justices unanimously ruled that the petitioners’ rights were infringed by the Moi Centre, the police and other arms of government, and affirmed the original high court finding as well as an award of damages.

No justiciable rights to shelter in Zimbabwe – supreme court
No justiciable rights to shelter in Zimbabwe – supreme court

Zimbabwe’s supreme court has confirmed that the country has no justiciable right to shelter, saying reference to shelter in the constitution was ‘essentially hortatory in nature’, operating merely as a kind of reminder or guideline to government in formulating policy. Given that shelter and housing is a major issue in Zimbabwe, this is an important decision that, along with the particular reasoning of the court, will impact on how human rights lawyers handle cases raising such issues in future.

Judge sued by counsel over behaviour that supreme court rules is ‘unacceptable’
Judge sued by counsel over behaviour that supreme court rules is ‘unacceptable’

One of the legally most distressing cases ever to be argued in the courts of Zambia has reached a crucial point: the scandalous matter of a senior advocate suing a high court judge with allegations that his constitutional rights had been infringed by the judge, has now been considered by the country’s highest court. The supreme court has ordered that the matter be properly heard in the high court, but with the judge no longer named as respondent. This part of the decision followed a reaffirmation by the court of the principle that judges cannot be sued in their personal capacity. But the three supreme court judges also used the opportunity to chastise the judge concerned for his behaviour, saying that to call his behaviour ‘unacceptable’ would be an ‘understatement’. And they then went on to change the court rules to prevent such behaviour in the future. The dispute originally started when the judge did not announce a time for handing down his original decision and left counsel waiting, as the client’s costs escalated, until an 11pm delivery.

Zambian statesman Kenneth Kaunda ‘not an ordinary person’ – high court
Zambian statesman Kenneth Kaunda ‘not an ordinary person’ – high court

The family of Zambia’s first president, Kenneth Kaunda, approached a high court judge with an application to set aside the government’s decision for a state funeral and a two-stage burial for Kaunda, who died in June. The judge, Wildred Muma, refused the application. Though most readers know that he said, as part of his decision, that Kaunda was ‘not an ordinary person’, little is known about the legal reasons he gave for rejecting the application.

School’s demand that Rasta boy cut his dreadlocks ‘unconstitutional’, court finds
School’s demand that Rasta boy cut his dreadlocks ‘unconstitutional’, court finds

The future of an academically gifted senior high school boy is in the balance again. The prestige school to which the boy had earlier won admission refused to enroll him unless he cut off his dreadlocks. Ghana’s high court recently declared that, in doing so, the school had infringed his rights and he had to be admitted. Almost immediately the decision was handed down, however, the school, which claimed its ultimatum in no way discriminated against the boy for his religious Rasta beliefs, said it would appeal against the high court’s decision.

Death penalty case re-visited by Kenya supreme court
Death penalty case re-visited by Kenya supreme court

Kenya’s supreme court has given special directions in relation to follow-up of its landmark 2017 decision in relation to the mandatory death penalty. At a special sitting of the court, its members questioned a number of court decisions delivered in the wake of the watershed case of Francis Muruatetu and said that the confusion that had arisen needed to be resolved. The special sitting also made clear that the national assembly, along with the senate, the attorney general and the Kenya law reform commission, had not met the court’s deadline to propose a new framework for such cases.

Under-age rape trial in Malawi results in steamy judgment by court
Under-age rape trial in Malawi results in steamy judgment by court

A magistrate in Malawi has produced a decision on a statutory rape case that, in part, reads like a racy novel. The magistrate was presiding in the trial of an 18-year-old, charged with ‘defilement’ – the Malawian version of rape when the complainant is underage. At issue was the defence of the accused who said he genuinely thought the girl involved was over 16 – and in dealing with that question, the magistrate rather sensationalised the sexual history of the girl concerned.

Litigant faces criminal investigation after telling court to ‘stick its apology in its arse’
Litigant faces criminal investigation after telling court to ‘stick its apology in its arse’

In a week that saw South Africa’s highest court order the country’s former President, Jacob Zuma, to serve a prison sentence for contempt of court, the second-highest court also had to deal with a litigant who expressed contempt, using language that must be unheard of in contemporary law reports. The five judges who heard this second matter said the litigant’s contempt would be referred to the national director of public prosecutions for action. The contempt took place in the context of a challenge to government anti-Covid-19 regulations, promulgated last year, and the litigant’s refusal to take part in a ‘virtual’ appeal hearing on the matter.

Time to end mandatory death penalty in Zambia?
Time to end mandatory death penalty in Zambia?

The courts of Zambia continue to pass and confirm the death penalty in alarming numbers, following a 2016 constitutional review in which the majority of voters expressed support for the existing laws on hanging. Presidents have periodically commuted large batches of death row prisoners. The most recent mass commuting of death penalty sentences occurred earlier this year, when President Edgar Lungu moved 225 men and 21 women off death row, ostensibly to reduce ‘overcrowding’ and create better conditions to protect against Covid-19. But in the months since then many more convicted people have been added to the numbers on death row - and judges keep adding to the number, thanks to the fact that the death penalty is mandatory for several offences in Zambia.

‘The law cannot be adhered to in part’ - Malawian court on dispute over police officer sacked for nude photos
‘The law cannot be adhered to in part’ - Malawian court on dispute over police officer sacked for nude photos

Could the law countenance a dismissal on the grounds that a recruit had nude photos taken of herself while she was at police training college? That is the unusual question posed to the high court in Malawi, when the woman concerned challenged her dismissal. Was it even illegal – under any Malawian law – for a police officer or recruit to have taken nude pictures of herself for private use? Read on to see how the court resolved the problem.

Media reports of unlawful home ‘invasion’ by private investigators amount to defamation – Eswatini supreme court
Media reports of unlawful home ‘invasion’ by private investigators amount to defamation – Eswatini supreme court

The Supreme Court of Eswatini has delivered judgment in a most extraordinary defamation case. It concerns the raid on a private home by operatives of a firm of private investigators. They broke into the house where they found a couple asleep, naked, in bed. Then they took distasteful photographs and video as the two people tried desperately to cover themselves. The firm said that they had been hired by the then minister of justice, who was, at the time, involved in a dispute with the man of the couple. But the media that published the first story about the ‘illegal raid’ on the house approached the story as though the couple had been caught doing something unlawful – which they were not. The supreme court has now confirmed the defamation finding of the high court, but has reduced the damages that must be paid.

'Integrity arm' of State given prominence in new Kenyan decision
'Integrity arm' of State given prominence in new Kenyan decision

On Valentine’s Day, 2020, Kenya’s President Uhuru Kenyatta issued an executive order than brought him no red roses from the country’s human rights bodies. In fact, the order – purporting to ‘re-organise’ government and put various judicial bodies and independent commissions under other state departments and ministries – was the subject of a constitutional challenge brought by the law society of Kenya. Now the high court has decided the petition, and declared that the executive order was unconstitutional and invalid.

Former Chief Justices join row over Kenya President’s appointment of selected judges only
Former Chief Justices join row over Kenya President’s appointment of selected judges only

Kenya’s President Uhuru Kenyatta has appointed or promoted a number of judges. But not the whole list of 40 nominated by the judicial service commission. Only 34 were sworn in during a ceremony last week, causing strong criticism and strong justification by the President himself. Now two former Chief Justices, Willy Mutunga and David Maraga, have weighed in on the issue as well. Their comments follow criticism by some observers of their successor in office, the new CJ, Martha Koome. That criticism centres round whether her response to the President’s move was adequate.

Judicial appointments’ problems spread like a virus
Judicial appointments’ problems spread like a virus

Like a rampaging judicial virus, political and other problems are infecting the process of appointing judges in a number of African countries. And there’s no vaccine or any other easy solution in sight. Developments in Lesotho, Zimbabwe, Kenya – and then, out of the blue last week, South Africa – all point to serious problems about the process of judicial appointments. Here’s a guide to the symptoms of this particular virus.

Magistrate correct to have woman imprisoned for contempt over child access - Lesotho high court
Magistrate correct to have woman imprisoned for contempt over child access - Lesotho high court

A mother was found to have committed contempt of court by disobeying an order about child-access, shared with her ex-husband, and she was sent to prison. She later claimed the magistrate had wrongly ordered her imprisonment and she demanded financial compensation for alleged constitutional damages. But the high court in Lesotho has now found the mother was the one in the wrong, not the magistrate, and applauded the magistrate for protecting the dignity and effectiveness of the courts.

Kenya court says no more 'jobs for pals', sets aside 130 appointments
Kenya court says no more 'jobs for pals', sets aside 130 appointments

Kenya’s President Uhuru Kenyatta has been dealt another blow by the country’s courts, this time by three members of the high court who found a raft of appointments he made in June 2018 was unconstitutional. As the media in Kenya have pointed out, the list of more than 100 appointments made at that time of people to head parastatal organisations or serve on those boards, was dominated by individuals who had failed to win election in the 2017 polls. Now those appointments have been set aside on the basis that the mechanism followed was not the transparent, merit- and competition-based process envisaged in the constitution. Instead, there was not even an attempt to show any ‘semblance of transparency and accountability’. Nor was there any evidence of ‘any form of competition’.

Scrap colonial era common law crime of sodomy, urges Namibia's law reform commission

Namibia’s law reform and development commission has released a detailed report on what it terms the ‘possibly obsolete’ common law crimes of sodomy and unnatural offences. It traces the origins of these offences as well as their applicability today and concludes that the laws should be repealed, in line with the similar moves in many other countries. This is partly because they are ‘victimless crimes that serve no practical purpose whatsoever’ and partly because to scrap these laws would help recognise the inherent dignity ‘of all members of the human family’.

Warnings offered by Zambian land expropriation case
Warnings offered by Zambian land expropriation case

As South Africa moves towards more stringent laws to allow expropriation of property without compensation, cases in other parts of the region show the pitfalls of expropriation even where compensation is paid. A new case from Zambia’s apex court concerns land expropriated from a farmer, ostensibly for development in the public interest. It turned out, however, that fraud was involved and that after a long period in which nothing was done with the land, it was sold off – at one stage for the development of a luxury hotel and golf course. When nothing came of that project either, the land was allocated to other developers who re-sold the property for private development purposes. One of the questions the judges of Zambia’s apex court had to consider was what the court’s attitude should be in such a case, given that the fraudulent misrepresentation came to light only after the supreme court’s earlier judgment that found the expropriation had been lawful.

Application that Zim’s former CJ be found in contempt of court
Application that Zim’s former CJ be found in contempt of court

The decision by Zimbabwe’s former Chief Justice, Luke Malaba, to return to work despite a high court declaratory order that his tenure of office ended when he turned 70, has been challenged in court with an application that the former CJ be found in contempt of court, fined and imprisoned, for acting in a way that precipitated a ‘constitutional crisis’. The contempt application was brought by a human rights lawyer involved in one of the two applications leading to a court finding that Judge Malaba could not stay on in office beyond his 70 th  birthday.

Tough questions asked about JSC’s role in extending tenure of Zim’s retired CJ
Tough questions asked about JSC’s role in extending tenure of Zim’s retired CJ

The drama of Zimbabwe’s ‘judicial amendment’ is far from over. This week, two separate letters demanding information were sent to the judicial service commission, asking for details about the JSC’s role in considering or facilitating the extension of retired Chief Justice Luke Malaba’s tenure. The week also saw the government trying some damage control in the wake of the extraordinary statement issued by the minister of justice after the high court declared that Judge Malaba’s extension of office was invalid and that his retirement had begun on his 70 th  birthday.

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