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Crucial Seychelles fact-finding mission by Southern African Chief Justices’ Forum issues report

WHEN the Southern African Chief Justices’ Forum heard that one of their members, Chief Justice Mathilda Twomey of Seychelles, was to face an inquiry and possible removal for alleged misconduct the forum asked the government of Seychelles to allow a fact-finding mission. The investigation into the chief justice was particularly troubling as this as it was the second current investigation into a senior judge in Seychelles. The SACJF wanted to inquire into the state of judicial independence, accountability and security of tenure among other issues involving judicial officers in that country. Now the forum has released its report into that visit, with a useful summary of the contesting views they were given and a number of significant recommendations.

Appeal judges set aside staggering USD30m high court order against Tanzanian bank

TANZANIA’s largest private bank, CRDB Bank, has won an important appeal against a high court order that it pay USD30m in damages and lost business opportunities to a dissatisfied customer. Three court of appeal judges, including chief justice Ibrahim Hamis Juma, said the damages order had been wrongly made and that the customer could not escape the consequences of standing guarantor for a loan.

Lost in the system: court admits it is to blame for man’s indefinite detention in mental asylum

IT sounds like a Kafka novel: a man found criminally insane and thus not responsible for a murder he committed, sent to an asylum for observation. Then he was forgotten for years. Now, he says the doctors have ruled he is sane and he wants to be released. But the minister who has to decide whether to release him was never informed he was there in the first place. This month, however, Uganda’s Court of Appeal admitted it was at fault for not informing the right authorities of the man’s hospitalization as it should have done, and that his fundamental rights might thus have been seriously infringed.

Top judges of world’s largest democracy strike down anti-gay sex law

INDIA’S highest court has struck down the country’s anti-gay sex law as unconstitutional. The decision, widely welcomed as conforming to a modern understanding of constitutionality and rights, was the result of India’s highest court, the supreme court, reconsidering the validity of Section 377 of the Indian Penal Code. The judgment, likely to be hugely influential worldwide, followed a 2013 decision of the same court when two judges upheld the Code. Earlier this year, however, the supreme court decided to revisit the issue, but with a larger bench.

JIFA alum, Judge Derrick Mulenga of Zambia, delivers important workers' rights decision

WHEN does a union dispute become, fair and square, an issue of human rights and a test of the constitution? A recent decision by Judge Derrick Mulenga in Zambia’s high court makes a strong statement about this question: the court said the right of workers to belong to a union of their choice involved fundamental rights. These were constitutionally protected and part of an employee’s human rights. As a result, the mining company’s refusal to give official recognition to an additional trade union, and the several reasons it gave for not allowing workers to join, were all forcefully dismissed by the judge. Mbewe v Lumwana Co. Ltd. (IRC/SL/03/2018) [2018] ZMIC 292 (27 July 2018);

Judicial independence is critical to protecting press freedom in Africa

In this opinion piece, Anneke Meerkotter, Litigation Director of the Southern Africa Litigation Centre  (SALC), discusses a recent High Court of Lesotho (sitting as a Constitutional Court) judgment which declared the offence of criminal defamation unconstitutional. She takes the opportunity to also reflect more generally on the extent to which judiciaries have created the space for constitutional jurisprudence to be exercised in a manner that facilitates social transformation.

JIFA Newsflash #21 - Editorial - 31 August 2018
Court orders tribal authority to act democratically

Do traditional leaders have to consult with their community before litigating on their behalf? On 9 March 2018, a Mahikeng High Court  judgment  answered this question: yes, they do. The Court found that the kgosi (king) of the Bafokeng Nation had to consult broadly with the community before going to court against the Minister of Land Affairs. This was because of the customary law principle of “kgosi ke kgosi ka morafe” (a king is a king by virtue of the people). Phrased differently: sovereignty resides with the people.

“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.

“Radical surgery” cutting off this judicial employee was unlawful – court

WHEN Edward Asitiba was sacked as Chief Supplies Officer in the Kenyan judiciary, he was told it was “in the public interest” that he should go. But Asitiba did not agree – and now he has a judgment backing his complaint, as well as a large payout due to him as compensation. Edward C. Asitiba v Attorney General [2018] eKLR

Landmark Ugandan decision highlights judicial accountability

TWO crucial judicial principles, independence and accountability, have clashed with each other in a landmark judgment by Uganda’s highest court. Unusually, the case produced seven separate decisions, one a dissenting judgment – and it has also sparked strong criticism from outside the court. The case concerned the right of the judicial disciplinary body to charge a registrar, someone who exercises judicial powers in Uganda, with misconduct in relation to an action she took in the course of her judicial duties.

Major precedent set for communities affected by mining

Constitutional Court judge quotes Fanon: to “strip someone of their source of livelihood, then you strip them of their dignity too”

Oops! We Blew it! Zimbabwe’s supreme court backtracks earlier international law decision

TOP courts rarely revisit their own decisions and own up to being wrong. But Zimbabwe’s supreme court has done exactly that, finding that a key section of a 2004 judgment was wrong. Not just that: the mistake has had to be admitted under the watchful eye of the world’s international organizations, all of whom were potentially affected by the outcome. To make matters even more sensitive, one of the judges who concurred in the earlier decision has now been the author of the correction, none other than the president chief justice, Luke Malaba.

Firearms verdict a victory for rule of law

THE high court in Kenya has declared that the firearms licensing board acted unconstitutionally when it revoked the licence of a controversial politician. The letter informing Senator Johnson Muthama that he could no longer legally possess a firearm was part of a crack-down on opposition figures who protested after the results of last year’s second national elections were confirmed. But the board gave no reasons for its decision and did not allow Muthama an opportunity to put his view on the proposed ban. After an interim order preventing the board from revoking the licence, the high court has now given a full judgment upholding Muthama’s rights to fair administrative action. While some of the tension between the ruling party and the opposition appears to have eased in the meantime, the decision is still important as it shows the courts prepared to hold everyone to constitutional standards of decision-making.

Canada: Supreme Court ruling around religious versus equality rights

WHEN Trinity Western University in Canada wanted to establish a new law school, it ran into unusual difficulties with three law societies in that country. TWU insists that all staff and student must sign a “community covenant” agreeing that the only healthy form of sexuality is in marriage. And only in marriage between a man and a woman. No sexual intimacy outside marriage would thus be tolerated on campus, and no same-sex relationship in or out of marriage. The law societies challenged the idea of such a law school saying it would not be in the public interest to accredit a school with a discriminatory admission policy such as this. Among the witnesses heard in the lower courts were students who described the oppressiveness of such a policy. On appeal to the highest court the law societies prevailed, with that court finding that, since they had a mandate to protect public interest, the law societies were obliged to protect equality and human rights. Their objectives included ensuring equal access to the profession, diversity at the bar and the prevention of harm to LGBTQ students.

Communal land victory confirms state’s ‘social obligations'
Communal land victory confirms state’s ‘social obligations'

In an important decision clarifying the law for people claiming rights over communal land, Namibia’s highest court has found in favour of a woman in the remote Zambezi region. Agnes Kashela claimed she had inherited the right to part of the communal land held by the Mafwe Traditional Authority. At independence however all communal land became the property of the state, and part of the Mafwe land had been transferred to the local town council at Katima Mulilo. Four individuals or businesses then leased and later bought sections of the land over which Kashela claimed a right and she sued the council for damages and unjustified enrichment. The supreme court had to decide whether she had lost her rights over the communal land initially allocated to her father. The judges found in her favour saying the state had “social obligations” to use land for the public good, and that the court was obliged to find a remedy to meet the facts. Now that her rights have been established, the case will return to the high court to consider whether she has proved the damages she claims.

Give senior lawyer his current tax compliance certificate, high court orders

A PROMINENT senior lawyer in Kenya, Professor Tom Odhiambo Ojienda, has persuaded the high court in Nairobi to order that the country’s tax bosses give him a current tax compliance certificate, despite their earlier refusal to do so. The revenue authorities say the lawyer owes them a lot of money and so they won’t issue the certificate. But Ojienda told the judge he needed the certificate so that he could contest a seat he wants to keep – on Kenya’s Judicial Service Commission, the body that helps select the country’s judges. Though he won the interim order, the revenue authorities have noted an appeal.

“Tainted” judicial history remembered in new Kenya judgement

WITH a reminder of what has at times been the unsavoury past of Kenya’s judiciary, the constitutional court has declined to intervene in the dismissal of a number of magistrates who served during the pre-constitutional era. As Carmel Rickard explains, the Kenyan courts are barred by an ouster clause from considering such dismissals. In this case the court deferred to the provision, at the same time spelling out the ouster’s limits and ensuring that in the case before it those limits were not transgressed.

Billionaire advocate makes new law - on tax amnesty

WITH his flashy style, enormous wealth and handy political connections, billionaire Kenyan lawyer and businessman, Kenneth Kiplagat, regularly makes headlines. Now he is also making new law. In a major case against the country’s top financial officials he has won an order setting aside attempts to charge him interest and penalties for unpaid back tax. He has won a declaration that a particular aspect of the law on tax amnesties is unconstitutional. And, in a coup for members of the legal profession, he has also successfully argued that it is unfair for an advocate to be charged interest at 14 % for outstanding payments under the Income Tax Act (like every other taxpayer) when the maximum that an advocate may recover from a client is 9 %.

“Dangerous” for politician to head Seychelles Human Rights Commission - judges
“Dangerous” for politician to head Seychelles Human Rights Commission - judges

WHEN prominent Seychellois lawyer and political figure, Alexia Amesbury, decided to contest a seat on the country’s human rights commission, she came up against an apparently immovable obstacle: the law disqualifies candidates who hold office in or are employed by political parties from sitting on the HRC. Undeterred, she contested the constitutionality of the relevant sections of the law in the constitutional court of Seychelles. There the judges found it international best practice for such commissions to be "impartial" and without overt party political presence and so Amesbury lost her challenge to all but one of the sections she targeted. The government, however, is appealing even that small victory and so the case is now headed back to court.

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