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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.

Feb
24
2022

Citing separation of powers, Lesotho court refuses to order that national assembly vote on no confidence debate by secret ballot

By Carmel Rickard

Attempts by two MPs to bypass an investigation into possibly holding secret ballots in the Lesotho National Assembly have come unstuck: the High Court has rejected an application by the duo for the court to order that a no confidence ballot against the Prime Minister be held by secret ballot, saying this had to be decided by the assembly itself.

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Two members of Lesotho’s national assembly have brought a constitutional application to the high court, wanting the court to rule that a secret ballot could be used when a resolution of no confidence in the government is debated.

Feb
24
2022

Kenyan court rules presidential power to hold under-age offenders in prison indefinitely is unconstitutional, orders prisoner released at once

By Carmel Rickard

A Kenyan high court has declared that rights given to the head of government to detain certain convicted prisoners ‘at the pleasure of the president’ are unconstitutional. This is because the court found these powers usurp the power of the courts. But the case was not just a theoretical exercise; it concerned a very real matter in which a prisoner, convicted of a crime that attracted the death penalty at the time, was sentenced to jail ‘at the pleasure of the president’ because he was under age. That was well over 16 years ago.

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Known only by his initials, JMR, the man at the centre of this case, had been virtually forgotten as he languished in prison for an indefinite term.

Then he brought a challenge to the unthinkable situation in which he found himself.

Feb
18
2022

Innovative Kenyan judgment on Presidential inaction should be studied by other jurisdictions - Justice Mathilda Twomey

By Carmel Rickard

The decision of a Kenyan judge has won high praise from trainers at a recent judicial core skills workshop by the Judicial Institute for Africa (JIFA), held in Cape Town and attended by judges from 12 African countries. The decision, by high court judge Enoch Mwita, dealt with a situation in which the President of the country, Uhuru Kenyatta, was held to have ignored the constitution by failing to appoint a member of the Judicial Service Commission.

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One of the features of the core skills judicial training offered participants by the Judicial Institute for Africa (JIFA) is a one-to-one session in which a judge is offered feedback by a course faculty member on a decision he or she has already delivered.

The idea is to look at judgment structure and other issues covered during the workshops and, against that background, to offer constructive suggestions.  

Feb
17
2022

Wildlife vs cattle: unauthorised newcomers cause tensions in Namibian conservation areas

By Carmel Rickard

Land is a major source of tension and dissatisfaction in Namibia and the courts are increasingly asked to step in when communities feel they are being ‘invaded’ by outsiders whose livestock put unbearable pressure on already scarce grazing resources. The latest such case involves a community trying to reinvent itself as a base for wildlife tourism: members of this community asked the court to order the removal of a number of families, with their livestock.

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Community conflict over land and the best way to use it is still a major feature of Namibian litigation more than 30 years after independence.

The problem can be clearly seen in new decision by high court judge Shafimana Ueitele. This case is just one in a series that he and his colleagues have been asked to settle related to land use, particularly in the northern parts of the country.

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