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Kenya's apex court confirms 'novel' rights of victim's counsel

A man accused of murdering a student has helped make new law. That's because of the significant judgment issued by Kenya's Supreme Court after he tried to stop counsel for the deceased student becoming involved in the trial. Joseph Waswa, charged with killing Mitch Kibiti Barasa, said that his fair trial rights were infringed when the trial court allowed counsel for Barasa to play a role in the matter. But the Supreme Court has now put him right.

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High-flying Kenya socialite Joseph Waswa, 33, is facing charges of widespread fraud and corruption. But it is his murder trial that will ensure his name lives on in the law reports.

Controversial Ugandan retired military officer loses court bid to prevent arrest during election run-up

An increasingly contentious figure in Uganda, retired military general Henry Tumukunde, has just tried – and failed – to invoke judicial help against persistent police action targeted at him. Tumukunde, a once close ally of Uganda’s President Yoweri Museveni, plans to contest the presidential position in next year’s elections. But during the run-up to the elections, he has become a person of considerable interest to the police and the army, and he has been arrested several times.

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For some years, a now-retired Ugandan military officer, Henry Tumukunde, has featured repeatedly in the news and in court judgments.

Sewage is ‘not a public friend’

A broken sewerage pipe in the capital of Malawi has led to a successful claim for damages under the country’s consumer protection legislation. The pipe broke but when it was not initially fixed by the authorities, sewage found its way into the pipe that supplied clean water for drinking and other household use. Consumers then formed a neighbourhood action group to monitor the quality of the drinking water, and to bring legal action for compensation.

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To the best of my memory it has not happened before that I have had to apologise in advance for the content of a story about a court decision. This, however, is the exception proving the rule.

No one will find the content of the judgment pleasant, while the detailed complaint of the applicants is not for sensitive stomachs.

You have been warned!

Litigation in Lesotho as King declines to appoint judges

Many people in the legal world will be aware of the looming constitutional crisis in Kenya where the President, Uhuru Kenyatta, has refused to appoint a number of judges whose names were presented to him by the Judicial Service Commission. Fewer, however, will have been aware that a similar problem has arisen in Lesotho and that litigation is now pending to test whether the King – Lesotho is a constitutional monarchy – may refuse to approve the appointment of candidates proposed by the commission.

No-one disputes that Lesotho has a serious shortage of judges. And with some having recently retired and two recent deaths, the situation has now become critical.

Towards the end of August, the Judicial Service Commission met to consider new appointments. There were five vacancies, and after the commission’s consideration, five names were finalised and sent to the King for appointment.

Court finds against ‘back door emergency’ in Malawi

A constitutional court in Malawi has delivered an unequivocal condemnation of that country’s Covid-19 lockdown regulations. In its decision last week, the three judges found that the rules were unconstitutional as they were made in terms of a law that did not permit such rules to be made. They also criticised the government for imposing a lockdown without concern for the poor of Malawi who would not have access to food and other essentials if they could not leave their homes.

Kenya pressurised by big oil to backtrack on plastic ban

An alarming new series of reports in the international media claims that the US oil and petro-chemical lobby is putting considerable pressure on Kenya to roll back its environmental protections related to plastic waste. The report has led to strong reaction by the African Commission on Human and Peoples’ Rights. Kenya has played a leading anti-pollution role in Africa, for example with its 2017 ban on the manufacture, sale and distribution of plastic bags.


Read statement by African Commission on Human and Peoples’ Rights

For years Africa, and Kenya in particular, has played a central role for businesses involved in the manufacture of plastic. And while conservation activists have been urging that the world should move away from plastic, major oil companies want to make more plastic – and they need new markets for their products.

High Court grants bail to Zimbabwe opposition leader, journalist

Two prisoners in one of Zimbabwe’s most notorious jails have been making international headlines as the courts repeatedly denied them bail. This week, however, as South Africa prepared to send a delegation to discuss the deteriorating situation in Zimbabwe, and as the number of international political and legal statements critical of the continued imprisonment continued to grow, the two men were released on the orders of the high court.

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After more than a month in jail, two of Zimbabwe’s most high-profile prisoners were released on bail this week. Both had been refused bail by the same magistrate, and both were finally released on bail on the orders of two different judges on grounds that were remarkably similar.

Change company law to allow virtual AGMs, Uganda high court urges

The high court in Uganda has urged that the government change the law to make it easier for businesses to hold their annual general meetings online, or via a mixture of a physical and electronic meeting. This is to take account of the restrictions on gatherings, due to Covid-19, imposed by the government on the one hand, and, on the other, the legal requirement that companies must hold AGMs. For the last few months in Uganda, individual companies have been coming to court asking for judicial authorisation to hold electronic meetings.

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It is not often that a judge’s obiter remarks are the most significant part of a decision – after all, the whole point of flagging remarks as ‘obiter’ is to indicate that they are made merely in passing. But the case of Uganda Clays, heard by Judge Ssekaana Musa and with judgment delivered on August 17, might just be the exception that proves the rule.

SCA cases show up long delays in delivering judgments

Two new decisions by Malawi’s highest court show that at least some of the country’s judges are still not delivering decisions within a reasonable time. In one case a group of people convicted of murder and sentenced to 30 years in prison were still waiting to hear the outcome of an appeal heard more than five years before. In the other, a man convicted of robbery had still not heard the result of his appeal over 37 months later.

Read Mekiseni judgment (August 2020):

Read Mthawanji judgment (July 2020): 

Malawi’s Chief Justice Andrew Nyirenda is something of a folk hero. He enjoyed that profile even before the then-President, Peter Mutharika, tried to fire him.

For Kenya: celebration of its 10-year-old constitution, a growing crisis – and a forthright judge speaks

As Kenya celebrated the 10th anniversary of its constitution, with virtual seminars, webinars and other discussions, one of the most serious challenges yet brought under the constitution is making its way through the courts. That problem is the failure of the country’s President, Uhuru Kenyatta, to appoint more than 40 judges nominated by the Judicial Service Commission. And, equally significant, his failure to abide by a court order that the judges be appointed.

Read judgment, August 2020

Read judgment, February 2020

 

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