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Apr
08
2022

Judgment highlights ambiguity of abortion provision in Kenya’s constitution

By Carmel Rickard

In a judgment already welcomed by many, but likely to prove hugely controversial, the high court in Kenya has decided a constitutional petition centred on the question of whether – and under what circumstances – abortion is lawful in that country. The case involved a teenage girl who presented herself to a health centre because she was experiencing pregnancy ‘complications’. Diagnosing a partial abortion, the clinical officer completed the abortion, but both the patient and the clinic officer were subsequently arrested and charged.

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The first thing that strikes anyone reading this judgment is what happened to the two people in whose name the application was brought.

Mar
31
2022

Concerns over climate change stalemate court decision on UK financial support to Mozambique

By Carmel Rickard

A major decision by a senior UK court has split down the middle on whether that country should be financially backing a massive liquefied natural gas discovery in Mozambique. The case revolved around environmental questions and the climate change undertakings reached in terms of the 2015 Paris agreement. The Mozambique gas field is exceptionally rich and has the potential to catapult that country onto the list of the top five global suppliers of a growing international demand.

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The plan that has been approved is for the UK government to invest more than $1billion in the massive offshore gas project scheduled for Mozambique’s Rovuma Basin. It is said that this is one of the largest single financing packages ever offered by the UK government to a foreign fossil fuel project.

Mar
31
2022

Dispute over Facebook post brings major free speech decision by Eswatini high court

By Carmel Rickard

The case of an airline accountant who posted a comment on his Facebook page that his employers have interpreted as being critical of the Eswatini government and the system of governance it operates has given the high court the opening to make an unusually strong defence of free expression. In his FB post, made at the time criticism over the government purchase of a number of luxury vehicles was making headlines, the accountant, Godfrey Exalto, included the word, ‘dictatorship’.

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Eswatini is not usually associated with strong support for freedom of expression. Yet here is the high court doing exactly that, and coming to the conclusion that remarks by an employee of the Royal Eswatini National Airways (Renac,) to the effect that the country’s government was a ‘dictatorship’, amounted to a constitutionally protected, legitimate opinion under the constitution and international law.

Mar
24
2022

Problems over legal standing to claim N$4billion plus world-famed game reserve for Namibian ethnic group

By Carmel Rickard

Legal efforts by several members of a Namibian ethnic group to prepare for litigation contesting ownership rights to one of the world’s best known game reserves, the Etosha National Park, have met with mixed results at the country’s supreme court. Eight members of the Hai||om said that the park was originally the group’s ancestral land but that the Hai||om had been dispossessed before Namibian independence. The post-independence Windhoek government had further neglected the needs of the Hai||om and had not acted to correct historic wrongs.

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A new supreme court decision, delivered just in time for Namibia’s March 21 Independence Day, deals with preliminary problems in a major land claim that, if successful, would impact on the entire country. The problems, related to legal standing, were identified by eight members of the Hai||om tribal group who want to litigate an extraordinarily wide-ranging list of claims.  

Mar
24
2022

Major court victory against ‘deadly air’ in South Africa’s most polluted region

By Carmel Rickard

One of the most important recent South African judgments on environmental law has delivered by the high court in Gauteng province. The case concerns a region of SA where high levels of air pollution risk the health of all the people living there. This is well-known to the government, but very little has been done about it. Now, environmental organisations have challenged the government’s inertia, and have won a major victory, with the court declaring that constitutional rights were breached by the failure to act.

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This is a major environmental judgment, about whether air pollution is a violation of constitutional rights, and whether the court is entitled to issue orders to deal with the problem. Answering ‘yes’ to both these key questions, Judge Colleen Collis has written a long (130 pages) and tightly-framed decision.

Mar
11
2022

Report shows proportion of women judges varies strongly

By Carmel Rickard

A report by the United Nations’ Special Rapporteur women judges and prosecutors finds that the proportion of women on the bench varies a great deal from one country to another, and that in some jurisdictions women, if they are in fact appointed to the bench, serve on family or juvenile courts, rather than on commercial or criminal courts, where the bench tends to be reserved for male judges. The report makes a number of recommendations about how to improve the current situation.

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The proportion of women on the judicial bench varies widely between countries according to a report by the Special Rapporteur on the independence of judges and lawyers, Diego Garcia-Sayan.

Mar
10
2022

Violence against women: on International Women’s Day, 2022, consider these two cases

By Carmel Rickard

Two random, recent cases from Namibia answer the question why there is the need for an annual marking of women’s day round the world. Both show how the vulnerability of girls and women make them easy targets for violence. And how, at crucial moments when they face the most danger, they may be completely deserted and left alone with their attackers.

Read judgment S v John

Read judgment S v Mutuka

From birth until death, women face danger from attackers who might well be men they count as their closest family. These two cases from Namibia illustrate the point.

Mar
03
2022

Consider tax payer loss when deciding on bail in white-collar crime appeals – Uganda Supreme Court

By Carmel Rickard

Employees of a country’s tax collector represent a potential weak point for any revenue authority. South African police announced at the end of February that two staffers of the SA Revenue Service had been arrested after they allegedly demanded R150 000 from a tax payer. The money was to cancel an outstanding tax bill. It’s a problem repeated almost every year, with SA officials arrested over similar allegations, often having taken bribes to make a taxpayer’s problems ‘go away’.

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The two arrested Uganda Revenue Authority officials, Dominic Mugerwa and Abias Muhwezi, were working in the domestic taxes department of the URA, one as a supervisor and the other as revenue officer. They were charged with falsely and fraudulently auditing, verifying and approving a claim for the VAT refund of a tax payer. In all, the actions led to a loss to the fiscus of UGX 6.5 billion.

Mar
03
2022

Once-powerful Malawian political figure ‘lied’ to court in divorce settlement case – senior magistrate

By Carmel Rickard

Nicholas Dausi has had a full and chequered career as a political figure in Malawi. He’s held significant positions under the governments of Bingu and Peter Mutharika, for example, becoming head of intelligence services as well as an MP. But nothing will have been as challenging as his court battle with V, his now-divorced wife. In theory, she is someone who should cause Dausi no problems: since their divorce in December 2021, she lives a completely separate life and earns a small salary as a shop assistant.

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A reader of this unusual judgment is given early, clear warning that there could be unexpected developments in the case: the magistrate, Peter Kandulu, spends some initial paragraphs on the question of perjury, its meaning and its possible punishments, including fines and a prison sentence.

Feb
24
2022

Court orders unusually high damages for defamatory allegations made against Namibia’s First Lady

By Carmel Rickard

An opposition political party figure in Namibia has been found to have defamed the wife of the President, Hage Geingob, and was ordered to pay damages at a very significant level to First Lady, Monica Geingos. The high court found that Abed-Nego Hishoono had actually intended to target Geingob with his defamatory social media claims and that Hishoono’s claims that he merely repeated rumours already circulating about Geingos did not lessen the seriousness of his actions.

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Abed-Nego Hishoono may be a teacher and an office bearer of the Namibian political party, Independent Patriots for Change, but he didn’t know one of the most basic lessons of using social media until it was too late.

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