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Magistrates are judicial officers, not civil servants - Joasa
Magistrates are judicial officers, not civil servants - Joasa

The proper place of magistrates within a constitutional state came under the spotlight again at the closing ceremonies of the International Association of Judges’ African region conference, held in Cape Town. It had been a recurring theme throughout the conference, with delegates from a number of countries complaining that magistrates were often treated as civil servants, and their judicial independence ignored or undermined by government.

Bucking regional trend, Zim court gives go-ahead to sue for adultery
Bucking regional trend, Zim court gives go-ahead to sue for adultery

Flaring political passions in the region continue to make news headlines, but the courts have been hearing about other kinds of passion as well. While Zimbabwe is alight with raging political conflict, and while citizens die at the hands of the police and security forces, the judiciary has been dealing with the burning issues of sex, adultery and maintaining the country’s “moral standards”. In a recent decision, the high court in Harare has held that a damages claim for adultery may go ahead. Judge Alfas Chitakunye decided a special plea by the woman with whom the husband in the case allegedly had an affair. While the woman claimed that for a number of legal reasons the court should not hear the matter, Judge Chitakunye said that public views and “the community’s general sense of justice” would not permit doing away with the delictual claim for adultery. In Swaziland, meanwhile, a magistrate and a court president have made headlines about their private lives. In a sensational case one accused the other of having an affair with his wife. After a child, now 15, was born of the affair, the matter was dealt with in the traditional way, with the royal kraal fining the offending man seven cattle.

Courts get wise to Big Tobacco strategies
Courts get wise to Big Tobacco strategies

Africa’s courts are getting wise to the strategy of Big Tobacco in trying to fight off strict control over issues such as the size of health warnings on packaging. Uganda’s Constitutional Court has just dismissed a major attack brought by British American Tobacco (BAT) on laws that increase the size of health warnings, impose tough restrictions on where smoking is lawful, and hold tobacco company officials personally responsible when certain sections of the law are infringed. In its judgment, the court referred to a report on how such companies fight tobacco control, and the list of strategies included many that were in evidence in this case. Dismissing the petition, the court said it was “part of a global strategy” by BAT and its tobacco-selling peers to undermine laws in order to increase profits despite the risk of tobacco to the health of the “human population”.

It's not just sex: sexual orientation discrimination no longer allowed by Botswana’s constitution
It's not just sex: sexual orientation discrimination no longer allowed by Botswana’s constitution

Botswana has become the latest African country to decriminalize sexual relations between same-sex male couples, a particularly sweet victory after last month’s flat rejection of a similar application by Kenya’s constitutional court. What makes the decision from the court in Botswana even more significant is that the judges have effectively included sexual orientation as a ground on which discrimination in that country is now unconstitutional.

Dame Linda Dobbs and the Russian connection

Judges who have been part of the training offered by the Judicial Institute for Africa (Jifa), will have been fortunate enough to meet Dame Linda Dobbs, Jifa's head of training. But few will know much more about her: though Dame Linda is outgoing and extremely helpful with her advice, she is not given to talking about herself. However, she is profiled in a recent edition of Counsel Magazine, the monthly journal of the Bar of England and Wales. And from the discussion between Dame Linda and her interviewer, barrister and diversity champion Desiree Artesi, readers will see that the UK suffers many of the same problems as certain African countries when it comes to diversity and the promotion of women to judicial office.

Botswana: Criminalisation of Consensual Gay Sex is Unconstitutional

The High Court of Botswana has ruled that a ban on consensual gay sex is unconstitutional.  Read the full judgment below, which is reproduced here until such time as BotswanaLII is established.  The PDF of the judgment may be downloaded here .

Local shooting club targets Namibian defence force

In a bizarre case, due to be heard in the Namibian courts next week, the country’s defence force is alleged to have taken over the premises of a private shooting club outside the town of Rehoboth just before Christmas. The club says the army changed the locks and warned that the site is now off limits to the public as it is a “military zone” – all of this without notice or warning. The club is fighting back against this military might, by making an application for a spoliation order. Members say unless the dispute is heard urgently, their charitable work in the local community will be decimated and their other club activities will also be halted. The club’s officials claim that the defence force has taken the law into its own hands and that the club’s rights are being violated.

Copyright & A2K Issues - 7 June 2019

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.  Archives are available at:  http://www.africanlii.org/content/copyright-a2k-information .  If you would like to subscribe to, or unsubscribe from, this newsletter, please do so at:  http://lists.wits.ac.za/mailman/listinfo/copyrightanda2kinfo    or email  Denise.Nicholson@wits.ac.za  only (N.B. PLEASE DO NOT SEND TO WHOLE MAILING LIST)

Death sentence or 7 years for the same offence? – Kenya’s conflicted Penal Code
Death sentence or 7 years for the same offence? – Kenya’s conflicted Penal Code

When a death row prisoner has his date with the executioner commuted and starts a lifelong relationship with the inside of a prison instead, he will usually continue to explore every avenue to escape a prolonged life behind bars. Those explorations seldom amount to anything, but in the case of two prisoners waiting out their life-term in a jail in Kenya, luck – and a failure of Parliament to sort out a conflict of laws – was on their side.

We’ll protect you, Brazil’s supreme court tells gays; we won’t, say Kenya’s judges
We’ll protect you, Brazil’s supreme court tells gays; we won’t, say Kenya’s judges

Kenya’s high court has dealt a serious blow to that country’s gay community, by ruling that penal code provisions punishing “gay sex” are constitutionally valid. But judges in other parts of the world are meanwhile playing a far more pro-active role in protecting gay people who come under attack merely because of their sexual orientation. The latest court to offer protection to gays and transgender people is Brazil’s Supreme Court.

Diplomatic immunity challenge for five-state Southern African Customs Union
Diplomatic immunity challenge for five-state Southern African Customs Union

The Southern African Customs Union is the world’s oldest. Based in Windhoek, its origins date back to 1889. It was formally established in 1910 and forms a crucial commercial link between South Africa and all its immediate neighbours: Botswana, Namibia, eSwatini (formerly Swaziland) and Lesotho. It is also a union liable to stir strong commercial and other feelings. Most recently, it was the subject of an international law dispute, heard in the high court, Namibia, involving not just the union, but most of its individual members as well. As this analysis from Legalbrief Africa explains, the case concerns the claim by Clear Enterprises (CE), a transport outfit based in Botswana, that South Africa does not honour its obligations towards other members of the union. CE wanted to bring an action against the union, forcing it to make SA act towards its members as CE believes it should. But how could CE do so, when the customs union has been granted absolute immunity by the host state, Namibia?

Meet the people behind Jifa's judicial training courses
Meet the people behind Jifa's judicial training courses

Have you never been on a course offered by the Judicial Institute for Africa (Jifa), though you would like to? Do you read Jifa’s weekly newsletter and wonder at the people and the organization behind it? Would you like to know how to get more involved in the work of the Institute? The upcoming conference of the Africa regional bloc of the International Association of Judges being held in Cape Town next week gives you the perfect opportunity to meet us and have all these questions answered.

How a star liquidator fell from his perch
How a star liquidator fell from his perch

The fortunes of one of South Africa’s most prominent and successful liquidators, Enver Motala, have suddenly and rapidly declined, with his business ethics and behaviour called into question. Now the Supreme Court of Appeal has made it clear: his “disgraceful and dishonest” conduct means that its judges will not overturn the decision by the Master of the High Court to remove him from the panel of liquidators appointed to settle the affairs of companies in liquidation. Here is a story about his rise and fall, seen through the lens of the new court decision, from which readers may well conclude that he would be wasting his time to appeal any further.

Crucial meeting on judicial independence in Africa: June 2 - 6, 2019
Crucial meeting on judicial independence in Africa: June 2 - 6, 2019

Leading members of the judiciary across Africa will be gathering in Cape Town, 2 – 6 June 2019, and their focus will be on a crucial issue challenging judges from virtually every part of the continent: judicial independence and everything that promotes or hinders it.

End of the road for Ghana Bank official, sacked after taking King’s cash by cab for depositing
End of the road for Ghana Bank official, sacked after taking King’s cash by cab for depositing

When you are summoned by His Majesty, Ghanaian King Otumfuo Osei Tutu II, courtesy demands that you attend as quickly as you can. But how could London banker Mark Frank Arthur, second most senior official of Ghana International Bank, have known that the summons, via the king’s wife, would lead to his dismissal from the bank – and, he now fears, to his becoming unemployable in the financial sector?

High-ranking accused in "scurrilous" bid to remove foreign judges from Lesotho cases
High-ranking accused in "scurrilous" bid to remove foreign judges from Lesotho cases

When Judge Charles Hungwe from Zimbabwe arrived in Lesotho earlier this year to start work on a series of controversial trials, he was given a warm reception in the local media. But since then the accused in some of the cases over which he was due to preside proved rather less than welcoming. In fact, 16 accused initially due to stand trial before him, led by Lesotho's former defence minister, Tseliso Mokhosi, have brought an application for his appointment – and the appointment of all other foreign judges who might hear the pending cases – to be declared unconstitutional.

Against all advice, prisoner appears for himself in a fourth trial for murder – and wins
Against all advice, prisoner appears for himself in a fourth trial for murder – and wins

The words we bring you this time are not the words of a court. Instead, they are the words of Hassan Bennett, a man from Philadelphia, USA. What makes his story unique is that, with the spectre of a mandatory life sentence before him, and having already spent 13 years in prison, he appeared for himself, in full prison garb, to argue a fourth trial on the same count – and he won.

Malawi police will be investigated for suspect's torture death
Malawi police will be investigated for suspect's torture death

The Malawi Human Rights Commission this week released a report finding police responsible for the death, by torture, of a man unlawfully arrested on suspicion of being involved in the abduction and killing of a child with albinism. This is just the latest development in the horror of Malawi's increasingly endangered albino people, murdered for their body parts to satisfy occult beliefs, and it follows just days after a high court judge passed the death sentence on the convicted killer of a man with albinism (see separate story below).

Bank 'secrecy' ruling a blow for transparency, media freedom
Bank 'secrecy' ruling a blow for transparency, media freedom

The High Court of Eswatini (formerly Swaziland) has upheld and defended the secrecy surrounding that country's central bank. The court had been asked by the governor of the central bank for an interdict preventing a local newspaper from reporting on a leaked confidential document relating to Farmer Bank, Eswatini's newest financial institution. When the  Times  asked the governor a number of questions relating to the central bank's investigations on whether to grant the banking licence, he demanded an undertaking that 'the report' would not be published. And when the undertaking was not given, the bank went to court. The judge accepted that strict confidentiality had to be preserved 'at all costs' and that any leak could upset the country's financial stability and impact on central banks 'worldwide'.

'Devilish', 'primitive' murder of man with albinism warrants death sentence – Malawi judge
'Devilish', 'primitive' murder of man with albinism warrants death sentence – Malawi judge

The last court-imposed execution was carried out in Malawi during 1992. Some 15 people were on death row at the end of 2017, and though the number has increased since then there have been no further hangings. However, the question of whether the death penalty will ever actually be carried out has now been given a new urgency, following the sentence of a man convicted for murdering a fellow villager with albinism in the apparent belief that this would make him rich. Sentencing the accused, the judge reasoned that the whole country lived in fear because of “devilish, primitive” crimes against albino people, and that the courts had a duty to impose the ultimate sentence as a deterrent.

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