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High court protection "doesn't filter down to the lower courts" so this Jifa Alum declared magistrates court processes unconstitutional

NAMIBIAN high court judge Shafimana Ueitele , has been dealing with a sensitive case of injustice: a woman lost her home because the Magistrates Court Act did not give her the protections she would have had under the High Court Act. What should a court do when – as here – the law results in such blatant inequality, causing suffering and injustice? For Judge Ueitele, a JIFA alum, the answer was obvious: declare the relevant part of the law unconstitutional . The existing system meant that not all litigants were equal, he reasoned, and the only way to end the injustice was to ensure that the system itself was changed.

Lesotho’s acting chief justice slows pending litigation brought by sidelined Chief Justice

THE judicial crisis in Lesotho shows no signs of resolution. While the suspended Chief Justice waits in limbo for a tribunal to investigate government claims against her, the acting chief justice has stepped in to stamp her authority on the situation. Among others, the actions of the ACJ have slowed a planned constitutional court hearing scheduled to deal with the dispute between the government and the CJ.

Sick miners to get up to R500k
Sick miners to get up to R500k

Historic settlement reached in silicosis case.

PEN Report: Criminal Defamation is Used to Stifle Dissent in Africa

JUDICIAL independence and media freedom are usually linked. In countries where judges feel unacceptable levels of government pressure it is probable that journalists will be experiencing the same thing.

African Court awards compensation for rights violations to Rwanda’s “Nelson Mandela”, Victoire Ingabire

When Victoire Ingabire was released from jail during September 2018, some of her many followers described her as the “Nelson Mandela” of Rwanda. She immediately called for other political prisoners to be freed in addition to those released with her. She said she was prepared to return to prison if that was the price to be paid to win freedom of speech and human rights in Rwanda. This week the African Court on Human and Peoples’ Rights awarded Ingabire significant reparations for the infringement of her rights by Rwanda and ordered that state to pay the reparations in full within six months or face escalating interest.

“Astute and thorough” judgment on trafficking by Namibia’s Judge President
“Astute and thorough” judgment on trafficking by Namibia’s Judge President

ATTENTION judges who attended Jifa’s advanced course on international human rights law in Cape Town earlier this month. During the training week, Jifa discussed a recent decision by Namibia’s Judge President Petrus Damaseb with expert course trainer, Peter Carter QC. We asked for Carter’s comments on the judgment in the context of the course, namely that any judge – not just a specialist court – might find themselves in a position to consider applying international Protocols. What would other judges be able to learn from the judgment, we wondered. Take a look at the judgment – the accused was charged with rape and trafficking – and at how Judge Damaseb invoked the Palermo Protocol of 2000 (the UN Protocol to Prevent, Suppress and Punish Trafficking in Person, especially Women and Children). Then see the trainer’s comments.

Traditional leaders in Malawi win against property developer who hid information from court

TRADITIONAL leaders in Malawi’s Chikwawa district have won a significant court victory over a developer. This after he asked for judicial help in throwing a local community off land where they have lived for many years – but failed to disclose key facts to the court. An initial injunction against the local community was granted earlier this year, but then it emerged that he hid important facts in his original application, brought without notice to the traditional community. When Judge Kenyatta Nyirenda discovered the full story, he commented on the “sheer effrontery” of the application, and threw it out.

Seychelles CJ Mathilda Twomey cleared of all charges by top tribunal

AFTER many months of unpleasantness, uncertainty and threat of impeachment, Chief Justice Mathilda Twomey of Seychelles – the first woman to hold this position in her country – has been completely exonerated by a tribunal of inquiry. The tribunal’s report, published on Friday, was written by three prominent jurists: recently retired Australian judge Michael Adams, SA judge John Murphy and Nigerian judge Olufunmilayo Atilade. Their report closely examines the complaints against her made by her fellow judge, Durai Karunakaran, and unanimously concludes that his complaints are entirely baseless. They find her actions were all proper, professional and, in the circumstances, even what was required of her.

Essentials of Akamba customary marriage

Customary Law  – Akamba customary law – Akamba customary marriages – existence of Akamba customary marriages – when was Akamba customary law marriages deemed to be in existence – ntheo ceremony - whether a woman whose ntheo had not been paid could receive ntheo for her daughter Jurisdiction  - jurisdiction of Magistrates Court - burial disputes - whether the magistrate Courts had the jurisdiction to hear and determine burial disputes -  Magistrate’s Court Act No. 26 of 2015 Section 7(3)(b)

Somali "forced marriage" case poses headache for UK courts

AS the world becomes more aware of the need to protect children and young people from forced marriage, courts are faced with increasingly difficult cases on the issue. A new UK decision involving a family of children from Somalia illustrates the problems that judges could face. The children’s older sibling, who still lives in the UK, believed their mother was intent on the forced marriage of at least one of the children and tried to get the UK courts to act. In a series of hearings, the courts repeatedly extended protection orders over the children. But then the court was faced with a new dilemma – lawyers asked the judge to order that the family should trek from Somalia to Ethiopia for a welfare check, even though the court had no idea how, and even whether, the family would be able to make that long journey.

Why Zambia's highest court found President Edgar Lungu eligible to serve another term
Why Zambia's highest court found President Edgar Lungu eligible to serve another term

Zambia’s highest court has given the country’s president, Edgar Lungu, the go-ahead to serve a third term in office if he wishes. This judicial permission for the president to take a step regarded as contentious by many in Zambia, came by way of a judgment that had as its core the definition of a presidential “term”. The court found that a president may serve only two terms. However, sections of the constitution provided that a third term of less than three years, served as a stand-in president when the previous president could no longer function, did not count in computing the two terms. According to the court, a president would thus normally serve a maximum of 10 years but a full term of office could vary between eight and 13 years, depending on the circumstances. Though this was the main work of the court in this matter, the judges also issued a stiff warning to people not to “attack” judges “related to matters before the court”, adding that if they did so, they could face serious consequences.

Kenya: Time for courts to develop judicial review as “constitutional supervision of power” - judge

IN an ongoing battle over land compensation payment in Kenya, the high court has awarded both a win and a lose to the two sides in the bitter dispute. This particular part of the fight has seen the senate determined to show its authority by summonsing the companies that owned the contested land to appear before one of its committees and answer questions. The companies, on the other hand, claim a witch-hunt and say there is an attempt to coerce and blackmail them. Though both the parties may feel dissatisfied with the outcome, the interesting decision by Judge John Mativo shows there was in fact a clear victor: the rule of law has won.

Challenges to Judicial independence in Seychelles

WITH mounting international concern about the open conflict on the Seychelles judicial bench, a delegation of the Southern African Chief Justices’ Forum has visited the country and offered its help in resolving the situation. It has also volunteered its professional expertise with the legal reforms that are clearly needed in the Seychelles.

Women Chief Justices in Africa: why are they under threat?

VERY, very few women in Africa hold the position of Chief Justice or deputy Chief Justice. On the last count, just five women hold these posts in the southern and east African countries we most regularly write about.  And yet two of these five women are under threat of prosecution or impeachment, while a third who has been facing an impeachment tribunal emerged unscathed last week. Against this background, the story of the inquiry into the Chief Justice of Seychelles, Mathilda Twomey, makes sober reading for the general public. For her female CJ colleagues, however, the report must be ringing alarm bells.

Ghana’s Supreme Court orders chief’s name reinstated in national register of traditional leaders
Ghana’s Supreme Court orders chief’s name reinstated in national register of traditional leaders

With Ghana’s constitution limiting the role of the courts in certain matters related to traditional leadership, judges are not always sure of when they may intervene to right wrongs. But in the case of Nana Abor Yamoah II, and a dispute about his name being removed from the register of chiefs, the supreme court has made something very clear: there has to be justification for action like expunging names, the process has to be fair and involve a hearing, or else the courts would be entitled to intervene and impose their “supervisory authority”.

When a high court judge and counsel litigate against each other – the Zambian experience

A full-on fight between judge and counsel is never good to see, and if it spills over into angry and frustrated litigation against each other, it is far worse. When just such a fight broke out earlier this year between a high court judge in Zambia and a prominent Lusaka lawyer, the local media was full of the scandalous story. Realizing the significance of the matter for the judiciary, its independence and public perceptions, the Chief Justice appointed a team of three high court judges to hear the latest round in the dispute. Jifa alum, Judge Edward Musona, was tasked with chairing the full bench, and the three judges have now given their decision. This is not yet the end of the matter, however, as the dispute is headed for appeal.

High time to overhaul Lesotho’s offensive colonial-era laws

A SIGNIFICANT new decision from the high court in Lesotho has found that a widow is entitled to inherit according to the joint will that she and her husband made. The court also found that her deceased husband’s family could not contradict the wishes expressed in that will and use customary law to decide for themselves how to dispose of the estate. Judge Keketso Moahloli further spelled out that a couple may make a joint will, even if they are unmarried and, just as important, that someone is “competent to make a will” if their lifestyle is “predominantly modern” rather than “predominantly customary”. The judge also strongly criticized Lesotho’s lawmakers for not long ago having got rid of offensive, colonial era laws that he had to cite in the judgment.

Swazi court makes news – by giving reasons for recusal

FOR some time, courts in Swaziland have been raising puzzled eyebrows over controversial recusal decisions made without explanation to the litigants involved. In one such case the en masse decision of a court’s members to recuse themselves has left litigants with nowhere to go, raising concerns that the right to access a legal forum to hear and decide a matter has been infringed. But now that country’s courts have made news of a more positive kind. A judge in Swaziland has done what is normal practice in other jurisdictions: he has actually given written reasons for his decision on recusal. Judge Mzwandile Fakudze’s formal recusal judgment involves a case disputing the election of an MP.

SA’s Constitutional Court slates ex-President Jacob Zuma over protocol replacing SADC Tribunal with a toothless body
SA’s Constitutional Court slates ex-President Jacob Zuma over protocol replacing SADC Tribunal with a toothless body

SA’s ex-president, Jacob Zuma, already in hot water with pending corruption charges and a court order that he must personally pay some of his massive legal costs, has again become the target of serious criticism from SA’s Constitutional Court. This time the country’s highest court was considering an application to set aside Zuma’s decision backing the dissolution of the SADC Tribunal, a crucial regional rights forum, based in Windhoek, Namibia. The application also asked that his agreement to a “protocol” establishing an effectively toothless body, barred from considering petitions from individuals, be declared invalid. The court said Zuma had the duty to uphold rights, not abandon them, as he had done in this case, and ordered that his presidential ratification of the “protocol” be withdrawn.

Lesotho: New judgment reinstates Mosito

A DECISIVE new judgment by five acting judges of Lesotho’s highest court has found that the former president of the appeal court, Kananelo Mosito, who resigned to pre-empt his impeachment, has been validly reappointed by government. The new decision that will see the acting chief justice swearing in Mosito very soon does not, however, resolve Lesotho’s continuing judicial problems and in particular the alarming issue of ongoing political interference with the judiciary.

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