The theme of the 2021 Southern African Chief Justices’ Forum conference was ‘The judiciary and technology in Africa’. As readers might expect, there was considerable focus on the switch, in many jurisdictions, to virtual court hearings because of Covid-19. But that’s not all that was on the agenda.
Read SACJF conference opening address (PDF) by Professor Richard Susskind
Kenya’s high court has declared a controversial new tax law unconstitutional. The proposed new law would have seen taxpayers paying tax on gross turnover when they declared a loss or not enough profit to be billed for income tax. The government wanted the new law providing for a minimum tax to help state finances after Covid-19’s incursions on the fiscus. The decision is to go on appeal, but in the meantime the new tax cannot be levied.
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Kenya’s high court judge, David Odunga, had already suspended the newly introduced law, saying in April that it should be kept on ice until the dispute over its unconstitutionality had been argued and decided.
A newcomer to Kenya’s trade union scene has been trying to have a more established trade union elbowed out of the way by the high court. The Kenya Export, Floriculture, Horticulture and Allied Workers Union says it should be the only union recognised by management. As a result, it said, the court should order that the cabinet secretary for labour must approve no further collective bargaining agreements related to floriculture and horticulture between the employer association and the established union.
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Perhaps it was because they are newcomers to the organised labour scene, but the new Kenya Export, Floriculture, Horticulture and Allied Workers Union (KEFHAWU) has made some strong demands for court action – all without the legal basis to do so.
When is an advocate not an advocate? The question has been raised in an application heard by the high court, Uganda, in a dispute related to elections held in that country earlier this year. The advocate concerned had commissioned an affidavit that formed the basis of the litigation, but the other side questioned whether the advocate was entitled to do so. It all came down to whether the advocate had renewed her annual practice certificate in time. If not, would the affidavit – and thus the petition – be valid?
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Uganda’s high court has been extremely busy in August and September, but not with the cases you might expect. Every one of the nine decisions so far recorded for these two months has arisen from the elections held in Uganda earlier this year.
Not that the elections petitions always end up dealing with problems raised by the elections.
Namibia’s highest court has sternly reproved elements of the country’s police service for seriously abusing their power and acting ‘as if they were beyond any level of accountability’. In its official summary of the case, the supreme court wrote that the ‘highhanded conduct of the police officers called for serious censure by this court.’ The case concerns Bernhardt Lazarus who runs a bar in Windhoek and who was terrorised by some members of the police who repeatedly arrested him, without warrant or cause.
The decision of the supreme court in this case has been well over a year in the making, and one of the three judges who heard the matter, Justice Elton Hoff, noted at the top of the judgment that the litigants were due an apology for the delay in delivering the decision. It has to be said that for the courts to acknowledge when they don’t deliver timely decisions is a welcome development and fair to all the parties involved.
Uganda’s anti-corruption court has been hearing an incredible story about a gang of scammers, headed by Lawrence Lual Malong of South Sudan, a high-living playboy, sometimes photographed lying in pools of US dollars and wearing shoes, clothes and watches worth a fortune. Malong and two co-accused were convicted of fraud in that they extracted huge sums from two Ethiopian businessmen, living in South Africa, for gold that did not exist.
The highest court in Sierra Leone has dismissed an appeal by the losing candidate in an election for chieftaincy. The appeal was, however, based on provisions that only came into legal operation after the disputed election. Not just that, the provisions were also never shown to any witness nor, until they were attached as annexures in counsel’s final written address, were they even available to the court itself.
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Sierra Leone’s supreme court has set its face against a candidate who failed to be elected as a paramount chief in 2003. In the process of finding against P C Mohamed Kailondo Banya, the five judges who heard his appeal apologised for the role that the judiciary might have played in the almost unheard-of delays in finalising the issue.
The court said it was ‘extremely regrettable’ that a matter filed in May 2011 should only have been heard ‘at the tail end of 2020’.
A little-known Ugandan tribe, evicted from their ancestral lands to make way for three internationally famous national parks that are home to endangered gorillas, have won an important legal victory. The constitutional court of Uganda has held they must be helped and compensated for the loss of their lands. The Batwa people lived in the forests that are now known as the Mgahinga Gorilla National Park, the Bwindi Impenetrable National Park and the Echuva Central Forest Reserve.
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Uganda’s Batwa people, forced out of their traditional lands when some of the world’s last reserves for mountain gorillas were declared, are now to be given compensation and a chance at a decent life again.
It will be a long time until the dust settles after this week’s sensational judgment in the case of Botswana’s former intelligence officer, Welheminah Maswabi. After a great deal of hype about the enormous sums of money that she was supposed to have stolen from the Botswana government – a total that was a good deal more than the country’s entire gross domestic product – the court found that the director of public prosecutions and the investigation team that worked on the case, had fabricated and deliberately falsified evidence.
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A case pending before the Supreme Court of Eswatini, and due for hearing at the end of August, could be a crucial test of judicial independence in the country. Lawyers involved in the case say at least three of the five judges due to preside when the case is called, are candidates for recusal. The appeal is due to deal with a high court’s declaration that key sections of Eswatini’s terrorism and sedition laws were unconstitutional.
Read the high court decisions
At issue in the pending appeal is a crucial majority decision in the high court, finding that essential elements of Eswatini’s terrorism and seditions laws were unconstitutional.
But the appeal against that judgment, originally made in 2016, has not been able to be heard because of the shortage of supreme court judges in Eswatini.