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POPIA: Progress and Problems

The full implementation and enforcement of the Protection of Personal Information Act 4 of 2013 (or POPIA) will kick in on 1 July 2021. Both private and public organisations are rushing to get acquainted with its provisions to make sure that they don’t fall foul of the new legislation and risk incurring the infamous R10 million fine that POPIA imposes.

Scrap colonial era common law crime of sodomy, urges Namibia's law reform commission

Namibia’s law reform and development commission has released a detailed report on what it terms the ‘possibly obsolete’ common law crimes of sodomy and unnatural offences. It traces the origins of these offences as well as their applicability today and concludes that the laws should be repealed, in line with the similar moves in many other countries.

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Was the release of Namibia’s special report that recommended scrapping the common law crimes of sodomy and unnatural offences specially timed as a prelude to international Pride Month? Even if it was not, the report itself, and some of the high-profile reaction to it, will have been a cause of celebration to many in Namibia and elsewhere.

Kenya court says no more 'jobs for pals', sets aside 130 appointments

Kenya’s President Uhuru Kenyatta has been dealt another blow by the country’s courts, this time by three members of the high court who found a raft of appointments he made in June 2018 was unconstitutional. As the media in Kenya have pointed out, the list of more than 100 appointments made at that time of people to head parastatal organisations or serve on those boards, was dominated by individuals who had failed to win election in the 2017 polls.

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This was a petition brought by two Kenyan organisations that support constitutionalism and open governance: the Katiba Institute and the Africa Centre for Open Governance (AfriCOG). They sued the attorney general and the public service commission, saying that more than 120 appointments to a variety of state corporations made by President Uhuru Kenyatta and members of his cabinet, were unconstitutional.

Warnings offered by Zambian land expropriation case

As South Africa moves towards more stringent laws to allow expropriation of property without compensation, cases in other parts of the region show the pitfalls of expropriation even where compensation is paid. A new case from Zambia’s apex court concerns land expropriated from a farmer, ostensibly for development in the public interest. It turned out, however, that fraud was involved and that after a long period in which nothing was done with the land, it was sold off – at one stage for the development of a luxury hotel and golf course.

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This is an extraordinary case in many ways. The contested expropriation took place 33 years ago. And this judgment represents the sixth time a court has considered related issues - despite the relevant law saying that once an appeal court has decided the matter it can go no further. At 136 pages, the judgment is also extraordinarily long.

Application that Zim’s former CJ be found in contempt of court

The decision by Zimbabwe’s former Chief Justice, Luke Malaba, to return to work despite a high court declaratory order that his tenure of office ended when he turned 70, has been challenged in court with an application that the former CJ be found in contempt of court, fined and imprisoned, for acting in a way that precipitated a ‘constitutional crisis’.

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Zimbabwe human rights lawyer, Musa Kika, has launched an urgent high court application for the former Chief Justice, Luke Malaba, to be found in contempt of court. This follows Judge Malaba’s return to work despite a court finding that he could not legally continue in office after turning 70.

Tough questions asked about JSC’s role in extending tenure of Zim’s retired CJ

The drama of Zimbabwe’s ‘judicial amendment’ is far from over. This week, two separate letters demanding information were sent to the judicial service commission, asking for details about the JSC’s role in considering or facilitating the extension of retired Chief Justice Luke Malaba’s tenure.

What, exactly, was the part played by the judicial service commission in facilitating another five years in office for Zimbabwe’s controversial former Chief Justice, Luke Malaba? And, since he was a kingpin in the JSC, did he declare a conflict of interest and excuse himself from any discussions on the matter?

These and other potentially embarrassing questions have been asked of the JSC by two firms of lawyers this week.

Drama as Zim court finds Chief Justice must retire, confusion about an appeal

An urgent application, brought last weekend to stave off a constitutional crisis in Zimbabwe, may not achieve this aim, despite a court victory. The case challenged the extension of office of the country’s chief justice, Luke Malaba, for an additional five years beyond the constitutionally mandated retirement age of 70, thanks to a new constitutional amendment. Human rights lawyer Musa Kika, in whose name the case was brought, said that if Malaba were to stay on, unconstitutionally, then all decisions he made would be void.

It was a weekend of great courtroom drama in Zimbabwe. Three high court judges unanimously decided that the country’s chief justice, Luke Malaba, was constitutionally barred from continuing in office beyond his 70th birthday on 15 May. He is thus now out of a job.

Tough court sentence could mark shift on albinism murders in Malawi

A high court judge in Malawi has sentenced a gang who killed a man with albinism for his body parts, to life imprisonment, and recommended that they not ever be given sentence reduction by the country’s President. Judge Redson Kapindu said life imprisonment was perhaps an ‘even sterner’ punishment that the death penalty, since the prisoner had ‘only hopeless, painful years’ ahead of him, ‘… stretching out forever’.

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SADC and Covid-19: collective failure to meet human rights obligations says ICJ

The International Commission of Jurists has brought out a briefing paper on access to Covid-19 vaccines in the Southern Africa Development Community states. The report is called, ‘The Unvaccinated: Equality not Charity in Southern Africa’. It finds a collective failure to ensure access to vaccines even though more than 60 000 people have died due to the virus and the lives of countless others have been affected. The failure was caused by a number of factors, according to the report.

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The shock statistic with which this report begins puts the argument behind the briefing paper into stark perspective: by the start of May 2021, most Southern African Development Community (SADC) member states had fully vaccinated ‘no more than 0.6 percent of their population’.

Tough new approach to sentencing in child rape cases

A significant development is under way in Malawi’s high court judgments on sentencing in child rape cases. Three new decisions by a couple of high court judges show a clear determination to treat such crimes with great seriousness and for sentencing to reflect the gravity of the crimes. The judges have also made significant critiques of aspects of defilement cases, with suggestions for what can be done to improve matters.

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