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Botswana's highest court upholds decriminalisation of gay sex, AG undertakes to implement this decision

Botswana’s apex court has upheld a high court decision decriminalising gay sex. And the country’s attorney general has issued a special media release on the subject, saying that Botswana has an impressive post-independence record of observing human rights and the rule of law. Against this background, the government will ensure the new decision in the court of appeal’s judgment is implemented.

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Five judges of Botswana’s highest court have rejected an appeal by the country’s attorney general that challenged a high court decision decriminalising gay sex.

Outcry over rape decisions by Namibian magistrate

Decisions by a magistrate based at the Oshakati Regional Court in Namibia have led to strong community protest and concern by anti-rape activists who oppose sentences the judicial officer has passed in rape cases. They are also against him being asked to sentence a rapist in a case where he (the magistrate) had originally acquitted the accused. Now, following the state’s successful appeal against that acquittal, the magistrate must sentence the man whom he was originally sure was not guilty.

Namibian magistrate Leopold Hangalo is at the centre of community concern over his decisions in three unrelated rape matters.

In the most recent, he convicted teacher Itana Sakaria of repeatedly raping a 13-year-old learner in 2014 and fathering a child with her. The magistrate then went on to give the teacher – apparently still working at the same school – a completely suspended sentence, finding that there were compelling grounds for Sakaria to escape the prescribed 15-year sentence for raping a minor.

Mauritian lawyer, named in controversial drug trafficking report, wins case to expunge findings

The controversial report of an official inquiry into drug trafficking in Mauritius continues to cause waves in that state’s upper echelons. When it appeared in 2018, the report led to the resignation of the minister for gender equality as well as the deputy speaker in the national assembly. Both said they would contest the report, particularly its suggestion that they were implicated in drug scandals.

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Transgender victim of police unlawful arrest and assault awarded damages

Police in Namibia have yet again come in for some tough criticisms by the courts of that country. This time because of the unwarranted harassment, unlawful arrest, assault and abuse meted out against a transgender woman who was picked up and forced into a police van, for no good reason.

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What makes this story unusual is that the victim of the police assault was a transgender woman. Otherwise, however, the tale of police brutality, carried out with an apparent firm belief in the aggressor’s impunity, is a story that is becoming increasingly common in the Namibian courts.

Judge concerned about 'overcriminalisation' of teenage sex

Many teenagers are sexually active but, in its efforts to protect children and vulnerable young people, the law is not always able to act appropriately in response. A significant new decision from the high court in Malawi raises the issue squarely and, in a section headed, ‘Overcriminalisation of factually consensual sexual intercourse’ suggests that South Africa, among others, might have found a suitable approach for the law to take.

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Malawi’s high court judge Vikochi Chima has been reconsidering a case in which Charles Gondwe, charged with ‘defiling’ a girl a couple of years his junior, was acquitted. (‘Defiling’ is the term used in Malawi for rape of a child.)

Namibian government to appeal in gay fathers' surrogacy case

An important Namibian high court decision, seen as progressive and widely welcomed in the gay and lesbian community, is to be challenged in that country’s highest court. The high court had ordered the government to register a child, born of a surrogacy arrangement in South Africa, as a Namibian citizen by descent.

Twenty years is a lifetime in the law, especially when outdated laws and legal concepts have to be re-considered in the light of modern constitutional principles.

That’s one reason that a notice of appeal, filed by the Namibian government last week, points to a supreme court matter that could prove most interesting.

Court declares husband, charged with murdering his wife, 'unworthy' to bury her

A high court judge in Lesotho has found a husband ‘unworthy’ to bury his wife, because the evidence indicated that he had ‘brutalised her in what was plainly a ‘callous act of domestic violence’. Her birth family had asked that they be allowed to bury her instead, a move strongly opposed by the husband, charged with her murder and out on bail. He claimed that, as the heir, he had the right to bury her. Finding the husband responsible for the woman’s death, Judge Moroke Mokhesi said such behaviour offended public policy the world over.


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What does the 17thC legal writer Johannes Voet have to do with a dispute in modern-day Lesotho? Quite a lot, as it turns out. For it was Voet who wrote about the principles that must apply when deciding who has the ‘right’ to bury a deceased person, and Judge Moroke Mokhesi of the high court in Lesotho quoted that author to explain that a woman’s blood relatives had every right to ask for the right to bury her.

Judges ask: are ‘fraudulent leakages’ responsible for all those missing court records?

Three Ugandan judges have been wrestling with an increasingly common problem in the region: appeals that cannot be heard because vital court documents have gone missing. In this latest case the appeal judges said that as with other such cases it was not possible to know whether the documents had disappeared by way of ‘fraudulent leakages’, but that the appeal rights of the accused had been infringed as they had been waiting six years for the registrar to supply the record, without success.


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Ending childhood statelessness and dismantling barriers to birth registration in South Africa

A recent decision by South Africa’s apex court has put the focus on an antiquated law that prevented children of unmarried parents accessing birth registration in the same way that children of married parents do. It’s a crucial issue for the children affected and their families, because the law as it previously stood was a serious obstacle and the potential cause of statelessness for those denied birth registration.

"Children are vulnerable members of society, even more so when they are without valid birth certificates” - Victor AJ in Centre for Child Law v Director General: Home Affairs

 

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‘Foreigners everywhere, nationals nowhere’: Southern Africa’s changing response to UN campaign on statelessness

Statelessness, once a ‘forgotten human rights crisis’, has been put at the forefront of a global agenda with the UN’s #Ibelong campaign. Among the most tragic victims of statelessness are children found abandoned in a state and who, in most Southern African states, would as a result never have any nationality. Condemned to a life in a limbo that extends even to their adult years, and that may even be inherited by their children, these stateless persons illustrate how essential the right to nationality is to every person.

In the aftermath of World War II, hundreds of thousands of individuals found themselves stateless in a shattered Europe.

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