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SADC unlawfully terminated Malawi judge's contract - Tribunal
SADC unlawfully terminated Malawi judge's contract - Tribunal

After the disappointing, politically expedient demise of the Southern African Development Community Tribunal, a new decision by its replacement Southern African Development Community Administrative Tribunal (Sadcat) shows how a top staffer of the defunct body was leaned on by SADC to make him go quietly. But SADC reckoned without the determination of Judge Charles Mkandawire, someone who has shown his mettle in contentious cases heard in his home of Malawi.

Seychelles: new Chief Justice announced, sworn in
Seychelles: new Chief Justice announced, sworn in

Supreme Court judge, Ronny Govinden, has been appointed as Chief Justice of Seychelles and was sworn in on November 9.

Constitution 'is the boss', Lesotho judge tells police
Constitution 'is the boss', Lesotho judge tells police

Respect for individual rights and the Rule of Law is collapsing in several states in this region – Zimbabwe being a prime example. So it is a welcome relief to find a decision by a high court judge that is dedicated to the preservation and protection of constitutional values. The judge concerned, Sakoane Sakoane of Lesotho’s high court, had some powerful words of warning for the police after finding that they had attacked and assaulted a man for no acceptable reason. The judge said the police had behaved ‘like terrorists in uniform’ and that the courts would no longer merely send ‘warnings’ to the police about respecting people’s constitutional rights. From now on, police should expect only ‘uncompromising judicial eradication of the pernicious culture of police brutality,’ Judge Sakoane said.

Freedom of speech supports good governance says President of Sierra Leone
Freedom of speech supports good governance says President of Sierra Leone

Things are looking up for the media in Sierra Leone. For decades journalists have been harassed by a colonial-era law that created the offence of criminal libel. And as recently as four months ago this section was used against a journalist and publisher who spent 50 days in detention before being freed on bail. Then, last week, the country’s President, Julius Maada Bio, signed the death certificate of the section used against the media, a step already begun in July when some members of parliament repealed this part of the law. At this official event, President Bio also announced that the government was determined to allow the development of a free and robust media.

A LIFE LIVED TO UPHOLD THE PROMISSORY NOTE CALLED THE CONSTITUTION
A LIFE LIVED TO UPHOLD THE PROMISSORY NOTE CALLED THE CONSTITUTION

This tribute records and celebrates the extraordinary life of a US Supreme Court Justice I held in high regard, and who, as law reports will show, has contributed immensely to a better world for all.

More than 20 Kenyan laws nullified after National Assembly disregards Senate
More than 20 Kenyan laws nullified after National Assembly disregards Senate

As the still-unresolved fight over the number of women in Parliament shows, Kenya’s constitution is very much a work in progress, with continuing disputes over what its text means exactly and how seriously to take clauses that some parties dismiss as merely ‘aspirational’. The latest case to be decided by the courts on gaps or possible ambiguities in the constitution concerns the very serious question of how the Senate and the National Assembly must relate to one another. In this case, in an almost unheard of development, the Senate and its top officials sued the Speaker of the National Assembly, as well as the National Assembly itself. Now three judges have produced a constitutional judgment finding that the Senate was right: in many cases the National Assembly ought to have worked with the Senate to pass legislation. The fact that the Senate was left out of the process means that no fewer than 23 laws, passed by the National Assembly, are unconstitutional and thus null and void.

Copyright & A2K Issues - 3 November 2020

This is a free online international Information Service covering various topics, including copyright, plagiarism and other IP matters, Open Access, open publishing, open learning resources, institutional repositories, scholarly communication, digitization and library matters, mobile technologies, issues affecting access to knowledge (A2K), particularly in developing countries; WTO and WIPO treaties and matters; Free Trade Agreements and TRIPS Plus; useful websites, conference alerts, etc. If you wish to unsubscribe, please email Denise.Nicholson@wits.ac.za .   Please note :  This information service will be closing down on Friday 11 December 2020, but you will still be able to access the Archives at:  https://africanlii.org/content/copyright-and-a2k-issues

Judge claims CJ instructs how cases must be decided
Judge claims CJ instructs how cases must be decided

The crisis in Zimbabwe heightened this week, with a spotlight now pointed at internal problems within the judiciary. First, a judge who was suspended on contested grounds has launched an urgent application to prevent a disciplinary tribunal from being set up to investigate her. In the course of her founding affidavit she made some grave allegations against the Chief Justice, for example, saying that he routinely intervened to ensure judges decided matters in a certain way. And then, as the people of Zimbabwe were digesting her claims, a second document was published, this time apparently put out by judges of the high court and the supreme court, making similar allegations about the role of the CJ and his irregular interventions.

Attorney loses battle with Chief Justice over dirty hands
Attorney loses battle with Chief Justice over dirty hands

Strange to say, there are two current cases in the region citing a Chief Justice as respondent in a civil matter. Apart from the grave issue involving the Chief Justice of Zimbabwe (see above), there is another case in which the respondent is a Chief Justice. This time it is the judicial head of Eswatini, Bheki Maphalala, who was sued as a respondent, along with the government of Eswatini and the attorney general. The applicant was a local attorney, Muzi Simelane, whose battle with the CJ over the issues raised in this judgment, has lasted for a number of years.

International honour for Malawi’s judges

When five of Malawi’s judges overturned that country’s presidential elections in 2019 because of 'grave irregularities', it seemed a brave and startling thing to do. Their decision led to fresh elections and then to a change in government. Now it has also caused them to win an international award, the Chatham House Prize, given to those the institute feels have made the most significant contribution to improved international relations.

Mapping legal impact of the African Court
Mapping legal impact of the African Court

As the number of decisions by the African Court on Human and Peoples’ Rights grows, legal scholars have become keen to track its influence. Now there’s a formal project dedicated to doing just that – and it needs your help.

Support rule of law – by sharing law books
Support rule of law – by sharing law books

A small charity based in the United Kingdom has been helping judges, lawyers and NGOs by providing them with law books. The books are free and must be requested online.

No evidence, no arrest - Kenya high court
No evidence, no arrest - Kenya high court

A prominent Kenyan legal academic and practising advocate, Professor Tom Odhiambo Ojienda, is in the midst of a running battle between himself and the country’s tax bosses and prosecution services. The authorities claim that he has not paid tax on payment for work in a series of cases. The claims are particularly damaging for Ojienda, given that his law company advertises itself as ‘a top-tier law firm comprising a dedicated team of advocates and support staff offering expert legal advice’. After he was arrested and detained by the prosecuting authorities, Ojienda asked the courts to intervene, and they have now done so, with the judge holding that Ojienda should not have been arrested as there had been no evidence to justify such a step. The judge said that the power to prosecute was like a ‘river’. It had to ‘flow within its course,’ he said. Anytime it left its path ‘it causes floods and untold human suffering’. The power of the prosecution services had to be confined ‘within the four corners of the constitution’, otherwise innocent citizens would suffer if the courts did not check the abuse of that power.

Elections for Africa's top human rights bodies should be transparent, merit-based
Elections for Africa's top human rights bodies should be transparent, merit-based

African Human Rights Day seems like a good time to reflect on an issue that affects all three of the continent’s premier human rights bodies: the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child. This issue is one that is raised in a new report by Amnesty International, and it’s an issue faced by each country separately as well, namely how the system of choosing judges is run, in order to ensure transparency, fairness and the best candidates.

A new anti-corruption hero – and a judge who holds the line
A new anti-corruption hero – and a judge who holds the line

A woman who held firm against a shady 'fronting' scheme has been vindicated by the high court in Mombasa. After Rachel Ndambuki refused to become part of the scheme she was demoted and sent to another office. However, she persisted with her legal action, saying her transfer and demotion had infringed a number of her rights and that she should be paid damages. The case also saw a prominent civil servant be declared in contempt of court, and be fined, after ignoring a court order not to effect Ndambuki's transfer until the court had heard full argument in the case.

World Mental Health Day highlights shackling, inadequate court response
World Mental Health Day highlights shackling, inadequate court response

Just as Human Rights Watch issued its horrific report on the shackling of people with mental illness in many countries around the world, so an equally horrific case has emerged in Namibia. The report and the case show that there is a great deal still to be done to sensitise ordinary members of communities round the world – and, sadly, this includes magistrates, whom one might expect to know better – about how to respond to mental illness and what the law and the constitution require in such cases. Judges of Namibia’s high court recently picked up on review that there had been a problem with the trial of a woman recognised as mentally ill by her community, but by the time the magistrate responded to their questions almost a year down the line, it was too late: though the judges set aside her conviction days before World Mental Health Day, she had already served the sentence in full.

A TRIBUTE TO GEORGE BIZOS - A LARGER THAN LIFE CRUSADER FOR JUSTICE
A TRIBUTE TO GEORGE BIZOS - A LARGER THAN LIFE CRUSADER FOR JUSTICE

On the 9th of September 2020 George Bizos, that unrelenting crusader for justice, succumbed to death at a ripe age of 92. His passing hit close to home. It left my brother, Mike (a former client of Bizos) heart-broken. I was similarly deeply saddened. He impacted on our lives in different ways. Mike wrote me soon after he learnt of his passing: “My intimates are falling in quick succession. Beginning to feel like I am in the queue”.  Not long time ago he lost another close friend – Andrew Mlangeni, an anti-apartheid campaigner, who, along with my brother and Nelson Mandela were imprisoned for furthering the aims of the African National Congress (ANC) and were sentenced to serve in Robben Island.

Will Acting Chief Justice swear in winner of Seychelles presidential election?
Will Acting Chief Justice swear in winner of Seychelles presidential election?

The five-year contract of Chief Justice Mathilda Twomey came to an end earlier this month, and a new judicial leader for Seychelles must now be appointed. That is the responsibility of the Constitutional Appointments Authority of Seychelles. In the meantime, however, an Acting Chief Justice has been named: Justice Melchior Vidot.

Don't view sexual offences only through traditional male perspective - Chief Justice
Don't view sexual offences only through traditional male perspective - Chief Justice

In one of her last decisions before ending a five-year contract as head of the judiciary in Seychelles, Chief Justice Mathilda Twomey came out strongly on the need for the country’s penal code to be modernised in relation to its definition of consent in sexual offences. The CJ said that at present it only defined ‘absence of consent’, and that it was time ‘to look beyond the traditional male perspective as the prism through which sexual offences must necessarily be viewed.’

Court dismisses bid to remove 'dirty money' report
Court dismisses bid to remove 'dirty money' report

As concern grows about enormous amounts of money unlawfully leaving Africa, two new reports and a significant court case highlight the growing problem. A new report by the UN Conference on Trade and Development, UNCTAD, 'Economic Development in Africa 2020', estimates that if illicit capital flight from Africa were stopped, it could virtually halve the financing gap of $200b that the continent faces if it is to achieve its Sustainable Development Goals. And while experts are unanimous that illicit financial flow must be stopped, another report gives a concrete example of what seems to have been going wrong. Entitled, 'The Golden Laundromat; the conflict gold trade from Eastern Congo to the United States and Europe', it is a report of an investigation into 'the dirty money connected to African war criminals and transnational war profiteers'. In particular, the report points to the Uganda-based African Gold Refinery (AGR), saying it has been refining gold from conflict areas of the eastern Democratic Republic of Congo, which is then exported through a series of companies to Europe and the United States. AGR is challenging the report in court in Uganda, claiming it is defamatory. Pending a full hearing, however, AGR asked the court for an interim order that the report has to be removed from the website. As readers will quickly see, however, there was no chance that the court would agree to silence the Laundromat: the two brothers running AGR were recently convicted in a court in Antwerp of both money-laundering and fraud.

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