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UK court hands "Africa's last colony" an unexpected win
UK court hands "Africa's last colony" an unexpected win

While two rival meetings were being held in Africa this week on the disputed future of Western Sahara, the territory – often referred to as Africa’s last colony – won an unexpected victory in court.

"You forged your salary increase letter" - now court awards damages for this allegation
"You forged your salary increase letter" - now court awards damages for this allegation

The case of Evans Mukolwe will not give much encouragement to anyone considering a job with Kenya Wildlife Service (KWS). Mukolwe was recruited from a senior job with considerable prestige at the World Meteorological Organisation in Geneva. He was appointed to head the KWS in October 2003 but though he was promised that the salary would be made comparable to that which he had enjoyed in Switzerland, he was repeatedly frustrated when salary increases failed to materialise. Finally, in June 2004, he received a letter from the board of trustees giving him the increase and associated perks he had wanted. The upgraded salary lasted only a couple of months, however. Then he was suddenly suspended, without pay. KWS claimed that the letter telling Mukolwe about his pay increase was forged; a very serious claim to make about anyone, let alone a scientist who had been hand-picked and persuaded to leave his position in the WMO Secretariat. Understandably, Mukolwe sued and he has just been awarded more than Kshs24m ($240 000) in damages, plus three months' salary in lieu of notice as well as other payments.

Collective Land Ownership in the 21st Century: Overview of Global Trends

Statutory recognition of rural communities as collective owners of their lands is substantial, expanding, and an increasingly accepted element of property relations. The conventional meaning of property in land itself is changing, allowing for a greater diversity of attributes without impairing legal protection. General identified trends include: (1) declining attempts to deny that community lands are property on the grounds that they may not be sold or are owned collectively; (2) increased provision for communities to be registered owners to the same degree as individual and corporate persons; (3) a rise in number of laws catering specifically to the identification, registration and governance of community property; and (4) in laws that acknowledge that community property may exist whether or not it has been registered, and that registration formalizes rather than creates property in these cases. The research examined the laws of 100 countries to ascertain the status of lands which social communities, either traditionally or in more contemporary arrangements, deem to be their own. Sampling is broadly consistent with numbers of countries per region. The constitutions of all 100 countries were examined. The land laws of 61 countries were scrutinized. Secondary sources were used for 39 countries, mainly due to laws not being available in English. The main secondary source used was LandMark, whose data is publicly available at  www.landmarkmap.org .

Copyright & A2K Issues - 26 March 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)

Spy-thriller fizzles as Ugandan court acquits suspect
Spy-thriller fizzles as Ugandan court acquits suspect

Official security networks in Uganda and neighbouring Sudan were set buzzing in 2013 when a Sudanese diplomat was expelled from Uganda. Shortly afterwards the story broke of the arrest of a Ugandan clerk in his country’s foreign intelligence agency, the External Security Organisation. Stephen Kisembo, a staffer of the ESO, had been found with secret documents, according to the story, and was to stand trial. He was alleged to have been delivering similar documents over several years to Sudanese diplomats, in a plan devised by the expelled envoy. However, six years later, and despite the apparently strong case against him, the high court has now found Kisembo not guilty.

Magistrates' recusal protests "insubordination" - Namibian Supreme Court

TWO regional magistrates who felt they were being badly treated by the authorities over promotion and then recused themselves in protest, have now been ordered back to work by Namibia’s top court. The magistrates stood down from several part-heard cases to highlight what they considered unfair treatment. The two, who held office in the district magistrates’ courts, had been asked to hear regional court cases in an acting capacity. But they were also informed by the magistrates’ appointment body that they were not suitable for full-time appointment to the regional court. This was because new regulations restricted regional court appointment to magistrates with certain qualifications only. According to the Supreme Court their protest actions were “sheer insubordination of great magnitude”, and though the justices expressed some sympathy with the magistrates, they reversed the recusals and ordered them to continue the delayed cases “with deliberate speed”.

Liberia’s “tardiness” over money laundering investigations “condemned” by West African regional court
Liberia’s “tardiness” over money laundering investigations “condemned” by West African regional court

Judges of the West African regional court have joined the fight against money laundering. They have delivered a major new decision permitting the Liberian government’s continued freezing of an account through which vast sums of money have been moving back and forth. This despite the account-holders allegedly not having carried out a single business activity. At the same time, however, the court was not afraid to hold that government to account, criticising it for tardy investigation of the matter. The new judgment is also significant for clarifying an ambiguity that has troubled the court’s jurisprudence for some time and has given rise to contradictory decisions.

Appeal court throws out one-sided racism case
Appeal court throws out one-sided racism case

Allegations of apartheid-style discrimination made by a group of doctors against an internationally-linked medical research institute have been questioned by Kenya’s court of appeal. The court overturned an earlier decision by the high court that found the Kenya Medical Research Institute (KEMRI) infringed the doctors’ rights to equality, dignity and property among others. The findings were particularly serious because, on the strength of them, the high court judge had also awarded significant damages against KEMRI to each of the doctors. The medics were involved as PhD candidates with the KEMRI Wellcome Trust Research Programme linked to Oxford University and their initial application alleged that local black doctors were providing the equivalent of intellectual slave labour to white researchers. The appeal court has now dismissed the original application and the damages award, saying the high court had considered the evidence of only one side in the matter, resulting in a “patent injustice”.

East African Law Society in plan to ease serious tensions between Rwanda, Uganda
East African Law Society in plan to ease serious tensions between Rwanda, Uganda

The 17 000-strong East African Law Society has this week thrown its weight behind efforts to reduce growing antagonism between Rwanda and Uganda. Under its new president, Willy Rubeya, the society has offered to help with mediation, so that the border between the neighbours may be fully opened again and tensions eased.

"Mind boggling" to resolve status of Swazi industrial courts
"Mind boggling" to resolve status of Swazi industrial courts

The Swazi courts have been battling to resolve the question of where the judges of the industrial court and the industrial court of appeal fit into the court hierarchy. In a long, complex and technical decision, that country’s highest court has laid down the law: the two industrial courts are inferior in the legal hierarchy to the high court and the supreme court, not equal to them. In a unanimous decision, five judges of the supreme court have sorted out the problem, but not without an immense struggle, for while they stress that the intention of the law makers has to be respected, that “intention” was clearly exceedingly difficult to fathom. “Mind-boggling”, in fact, to use the supreme court’s own words.

Copyright & A2K Issues - 8 March 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)

Eviction from communal land only by chief or traditional authority - court
Eviction from communal land only by chief or traditional authority - court

A small-scale farmer in the far north of Namibia wanted to evict his cousin from the same piece of land because the cousin was ignoring conditions aimed at protecting the highly-sensitive veld. But Judge Shafimana Ueitele found that the land occupation right did not give exclusivity – or the right to evict anyone from the land. Instead, that right belongs to the local chief or traditional authority.

Shock "advice" by International Court of Justice on another forgotten African colony
Shock "advice" by International Court of Justice on another forgotten African colony

For tourists and investors, particularly those from South Africa, Mauritius is often seen as a quiet paradise, politically stable and a model of both democracy and humane economic development. Now, thanks to a new advisory opinion of the International Court of Justice, Mauritius – geographically part of Africa – has also been placed right at the forefront of an international political row that has its origins in the period of high colonialism and that involves the USA and its crucial defence strategies, the UK and the United Nations. The bottom line? - the ICJ tells the UK that holding on to islands that rightly belong to Mauritius, is colonial and illegal. It cannot continue and all UN members are obliged to help implement a plan to end it.

Challenging culture of impunity in Kenya
Challenging culture of impunity in Kenya

Three former university professors have brought a claim in Kenya’s high court asking for restitution for human rights infringements. They seem to be part of a trend to end the culture of impunity in Kenya. The three had been detained and tortured under a previous government, and now, more than 30 years later, wanted recognition of what had happened, plus compensation for how their lives had been ruined by the unlawful action against them. The professors’ court challenge was not the first in Kenya in which compensation was demanded for human rights abuses under the previous regime and the courts now seem more comfortable about agreeing to hear matters arising from decades ago. Going on previous experience, however, I wonder how long the professors will have to wait for the damages awarded by the courts, to be paid.

Judges on warpath against drug scourge
Judges on warpath against drug scourge

Two new decisions from the High Court in Namibia show judges on the warpath against drugs and drug dealing. The distinctly tougher line follows a watershed judgment late last year (2018). As I wrote at the time, through that strongly-worded landmark decision the Namibian courts gave notice that they were intent on a serious change to the way they handle cases involving drugs and drug dealing. Judge President Petrus Damaseb and Judge Christie Liebenberg said in that earlier decision that crimes involving drugs and dealing would no longer be tolerated and that sentences would now be ‘appropriately severe’. The fruits of that decision can now be seen in two new cases, the first full judgments reported on the subject in 2019. In one, a man’s 10-year sentence for drug-related offices has been confirmed on appeal. And in a second case, the High Court has upheld a magistrate’s decision refusing bail to two accused in a high-profile case involving suspected drug importation.

Citing “canteen factor”, judge stops law firm from acting against its own client
Citing “canteen factor”, judge stops law firm from acting against its own client

WHEN a hacker found and used the password of bank employee Shakil Pathan Ismail he was short-paid for a year while police investigated. Then the bank went under and the financial institution that took over its assets and liabilities ended the staffer’s employment while denying they were responsible to sort out the problem of his hack-related short pay. So how was he to get his money? - He headed to Uganda’s Commercial Court where Judge David Wangutusi came to the rescue.

Don’t use “constitution” as a “mantra”, Malawi’s supreme court warns
Don’t use “constitution” as a “mantra”, Malawi’s supreme court warns

Malawi’s former agriculture minister, George Chaponda, was a key figure in that country’s “Maizegate” scandal around the importation of maize from Zambia to replenish stocks that had allegedly fallen low. Public criticism of apparent corruption led to a presidential commission of inquiry and then to high court action to have Chaponda stand down during the inquiry. Though the high court initially ordered Chaponda’s suspension, the supreme court has just ruled that it was wrong to do so, and that the judge had ignored binding precedent. The judgment was important for clarifying Malawi’s approach to judicial review. It has also taken an in-depth look at presidential prerogative among other issues.

Justice for Malawi's children

IN a “remarkable breakthrough”, the Malawi high court has come to the rescue of children illegally held in adult prisons. Some of the children were imprisoned in a jail where, according to an official 2016 parliamentary report, no food was available to inmates and where blankets were in short supply. As Carmel Rickard explains, the law says that children in trouble with the law may only be held in special places of safety or reformatories, and the court has now ordered the authorities to move the children within 30 days.

“You can’t charge me, I’m immune”: dismissed cabinet secretary

ANY judgment that concerns a country’s anti-corruption commission, is usually worth reading. But when it involves a case brought against the commission by a dismissed former cabinet minister now in the spotlight for abuse of office, it becomes just too tantalizing to miss – especially when the former top official claims he is untouchable.

Kenya: Judges’ law clerks and researchers take Judicial Service Commission to court over contracts

Eight young law clerks and researchers who help judges with research and writing for their decisions, say they are unhappy with changes to their employment conditions made by the Judicial Service Commission and have taken their dispute to court. Two of the eight won the first round when the employment and labour relations court found the JSC acted unlawfully in changing their service conditions and ordered the JSC to pay both the young lawyers damages for unfair labour practices. But the JSC wants to challenge the results, and has asked the court of appeal to excuse them from paying the damages, pending the outcome of the appeal.

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