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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.

SADC and Covid-19: collective failure to meet human rights obligations says ICJ
SADC and Covid-19: collective failure to meet human rights obligations says ICJ

The International Commission of Jurists has brought out a briefing paper on access to Covid-19 vaccines in the Southern Africa Development Community states. The report is called, ‘The Unvaccinated: Equality not Charity in Southern Africa’. It finds a collective failure to ensure access to vaccines even though more than 60 000 people have died due to the virus and the lives of countless others have been affected. The failure was caused by a number of factors, according to the report. These include denialism (Tanzania and Madagascar) and the failure to share relatively greater resources (South Africa). Even though SADC’s chair, President Filipe Nyusi of Mozambique encourages a ‘regional pooling of resources’ to make it easier to procure vaccines and their distribution, ‘SADC has … taken no clear action towards this goal.’

Tough court sentence could mark shift on albinism murders in Malawi
Tough court sentence could mark shift on albinism murders in Malawi

A high court judge in Malawi has sentenced a gang who killed a man with albinism for his body parts, to life imprisonment, and recommended that they not ever be given sentence reduction by the country’s President. Judge Redson Kapindu said life imprisonment was perhaps an ‘even sterner’ punishment that the death penalty, since the prisoner had ‘only hopeless, painful years’ ahead of him, ‘… stretching out forever’. The murder of adults and children with albinism is a growing problem in many African countries, and some international organisations have criticised what they see as the inadequate response by government, police investigators, prosecutors and even the courts, which, in the view of these organisations, pass sentences that do not reflect the gravity of the crime or act as a deterrent. Perhaps the tough approach taken by Judge Kapindu, could mark a new phase in judicial response to this crime?

Tough new approach to sentencing in child rape cases
Tough new approach to sentencing in child rape cases

A significant development is under way in Malawi’s high court judgments on sentencing in child rape cases. Three new decisions by a couple of high court judges show a clear determination to treat such crimes with great seriousness and for sentencing to reflect the gravity of the crimes. The judges have also made significant critiques of aspects of defilement cases, with suggestions for what can be done to improve matters.

Ongwen sentenced by ICC: court’s intricate balancing task
Ongwen sentenced by ICC: court’s intricate balancing task

Dominic Ongwen, a former child soldier captured by the Lord’s Resistance Army in northern Uganda and forced to join that militia, has been sentenced as an adult for the more than 60 counts of which he had been convicted by the International Criminal Court. Ongwen, found guilty of war crimes and crimes against humanity among others, escaped life imprisonment because of his unique personal circumstances, a reference to his childhood abduction.

Malawi joins growing trend outlawing death penalty
Malawi joins growing trend outlawing death penalty

First, Malawi’s courts found it was unconstitutional for the death penalty to be mandatory in cases where the accused was convicted of murder. Now the apex court has found, by an overwhelming majority, that the death penalty itself is unconstitutional, and has ordered that everyone on death row must be re-sentenced. One member of the court dissented, without ever commenting on the issue of the constitutionality of the death penalty, finding that the route to resolving the appeal before the nine judges could be resolved in a different way.

Belated vindication for free speech, media, in African Commission decision

Two women journalists, released from prison in Rwanda after serving their full jail terms for writing and publishing articles that ‘endangered national security’, have been vindicated by the African Commission for Human and Peoples’ Rights. In its decision officially published last week, the commission found that Rwanda’s laws on defamation and freedom of expression violated the African Charter and should be amended. The two journalists, Agnes Uwimana-Nkusi and Saidati Mukakibibi, were charged in connection with articles published in 2010. They were originally sentenced to far longer prison terms, but on appeal this was reduced to four and three years respectively. While they were serving their sentences, international organisations helped mount a case before the African Commission, testing whether certain of Rwanda’s laws that impact on the media, including criminal defamation, were compatible with the African Charter. The commission has now officially found these laws violate the charter and have ‘requested’ that Rwanda amend its laws so that they comply with the rights guaranteed in the Charter.

Newborn twins born to gay parents, in maze over Namibian citizenship
Newborn twins born to gay parents, in maze over Namibian citizenship

The Namibian high court has ruled that it cannot order the government to issue emergency travel documents for newborn twins to come into the country. The babies were born to a South African surrogate mother. Their fathers, married in South Africa, are a Namibian and a Mexican. The babies have birth certificates, issued by the SA authorities, indicating that the Namibian is the father of the children. However, the Namibian minister of home affairs and immigration is insisting on a DNA test before any official documents will be issued for the twins. This would be to establish whether the Namibian man is the biological father, rather than the Mexican spouse. While the issue is fought in the courts and government offices, the Namibian father, with the two babies, is stuck in SA and cannot legally cross into Namibia with the twins.

Faced with 'wrongful allegations' of bribery, judge recuses herself
Faced with 'wrongful allegations' of bribery, judge recuses herself

A prominent judge of Malawi’s high court has announced her recusal from a case involving the death of a woman allegedly at the hands of her husband. Judge Fiona Mwale has recused herself from the trial following claims by the family of the dead woman that bribe money had been collected to pay the presiding officer in the matter. She said that there was no truth in the claim, but that she felt she had to quit the trial so that the bribery allegation could be investigated. The trial has now been adjourned so that another judge may be appointed to deal with the case.

Police rape spree: huge compensation awarded by Malawi court
Police rape spree: huge compensation awarded by Malawi court

Thanks to the determined efforts of the women involved, no fewer than three recent decisions in Malawi have dealt with sexual assault, harassment or rape under extremely troubling circumstances. The trio of cases will surely act as a boost to awareness of women’s constitutional rights in Malawi, to add pressure on the police to investigate and on employers to act in cases of workplace sexual harassment.

Judge stands down, citing 'intensity of insolence' from counsel
Judge stands down, citing 'intensity of insolence' from counsel

The search for Kenya’s new chief justice has reached a crucial point: an intensive fortnight of candidate interviews by the judicial service commission. But the battle over the future of the jurist leading the search, Kenya’s acting chief justice, Philomena Mwilu, is continuing in parallel. Most recently, the high court judge set to hear a petition that Justice Mwilu be removed as acting CJ and deputy CJ among other positions, because of graft allegations against her, has announced he will recuse himself. In his written decision on the question, the high court judge, Patrick Otieno, explained his recusal: given the line taken by Justice Mwilu’s counsel in the matter, he would be seen to have been ‘intimidated’ if he found for one side, or to have been ‘propelled by vengeance’ if he found for the other, he said. The judge further castigated counsel for the DCJ for making ‘preposterous accusations’ against him and for the ‘intensity of insolence’ he experienced from counsel in the case.

Dispute over sitting Ugandan judges appointed to head prosecution arm
Dispute over sitting Ugandan judges appointed to head prosecution arm

Is a sitting judge allowed to take a job as head of his or her country’s prosecution services? And if a court finds that it was unconstitutional for the judge to accept the second position, what is the status of the judge’s decisions as a prosecutor? These, and difficult, related questions, have been raised in Uganda, where a series of judges have been appointed to other government jobs, without first resigning from the bench. The initial answers to the questions around the DPP job were decided in a constitutional petition last month: it’s unconstitutional, the court said, and from now on decisions by any judge who takes another government position without first resigning as a judge, will be invalid. Faced with an uproar from the prosecution services, however, the supreme court, the country’s apex forum, is to reconsider the question.

Malawi's human rights commission recommends compensation for women sexually harassed by country's broadcasting boss

The women of Malawi had barely time to digest a landmark high court judgment ordering a company to pay ‘aggravated damages’ in a workplace sexual harassment matter, when a second, similar, high profile matter hit the news. This time it was a report from the Malawi Human Rights Commission which found the CEO of the country’s broadcasting corporation had sexually harassed women on the staff and recommended tough measures in response.

Landmark sexual harassment case in Malawi
Landmark sexual harassment case in Malawi

The women of Malawi have been handed a legal victory that will stand them in good stead when faced with sexual harassment and assault at the workplace. It involves a woman working as a time-keeper for construction company Mota-Engil, who went to court over her experience of sexual harassment. She claimed that because her employers did nothing about her complaints, and thus allowed the situation to continue, Mota-Engil was liable to pay ‘aggravated damages’ to her. During the trial it emerged that the company did not have a proper system in place in terms of which action would be taken immediately that a sexual harassment claim was made.

African Court’s existence threatened by lack of cooperation from AU states
African Court’s existence threatened by lack of cooperation from AU states

Africa’s premier regional human rights court, the African Court on Human and Peoples’ Rights, has released a detailed report on its activities and the challenges it faces. The report, published earlier this month, gives information about the difficulties and achievements of the court during 2020 as well as its plans for the immediate future.

Judges told not to make traditional rituals a condition of bail in sexual assault cases
Judges told not to make traditional rituals a condition of bail in sexual assault cases

The supreme court of India has slammed judges who impose ‘wholly inappropriate’ bail conditions in cases of sexual violence, like requiring that the accused visit the woman concerned and give her gifts. The court has also ordered that judges, lawyers and prosecutors must undergo gender sensitivity training to stop language and bail conditions that retraumatise victims. The decision, which comes during international women’s month, is likely to be well received by women’s organisations, professional law bodies and the courts in Africa where rulings from India are often quoted with approval.

Majority of Zambia's constitutional court: We are bound by this high court decision
Majority of Zambia's constitutional court: We are bound by this high court decision

When the constitution sets a minimum education level for members of parliament, what should be done about a candidate, accepted for nomination to parliament and ultimately voted in, who turns out not to have satisfied the requirements? Five judges of Zambia’s constitutional court split on this significant question, leaving the MP concerned, Lawrence Nyirenda, safely in his place.

Supreme Court judge's sensational claims against Chief Justice
Supreme Court judge's sensational claims against Chief Justice

What was meant to be the end of a high-profile political case intended to challenge the outcome of Uganda’s national elections earlier this year turned into something even more astonishing late this week: a senior member of the country’s Supreme Court claimed that Chief Justice Alfonse Owiny-Dollo had tried to gag her and stop her reading her minority decision in the matter until he had vetted her ruling. Justice Esther Kisakye went on to say that the CJ had used ‘barbaric methods’ in dealing with the matter and that he had given her unconstitutional orders that she felt she could not obey.

Uganda's Internet closure during elections challenged at East African Court of Justice
Uganda's Internet closure during elections challenged at East African Court of Justice

Uganda’s government, which closed down social media and Internet access during the country’s January 2021 elections, is far from the only state to take such action over the time of national polls. In fact, research indicates that Senegal recently became the 63 rd  country to restrict social media access since 2015. But in the case of Uganda, the East Africa Law Society has decided to take action, launching a challenge in the East African Court of Justice.

A women’s month win in Kenya – court finds ban on female genital mutilation constitutional
A women’s month win in Kenya – court finds ban on female genital mutilation constitutional

Since 2011 female genital mutilation has been illegal in Kenya – though too late for the 21 percent of girls and women in that country, aged between 15 and 49, estimated to have undergone the practice already. Though the ban was widely welcomed, and was introduced to the National Assembly as the brainchild of the cross-party Kenya Women’s Parliamentary Association, it has not been accepted by everyone. In fact, some traditionalists feel so strongly about it that they have gone to court with a claim that the law banning FGM is unconstitutional. Fortunately, in a judgment delivered this week, the high court has ruled that the law is valid – and has suggested that it should be further amended to close a gap that made proper enforcement difficult.

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