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Jul
29
2021

Police act against two Kenyan high court judges, search chambers

By Carmel Rickard

Two judges of the high court in Kenya were questioned and their chambers searched last week, sparking widespread concern about whether this was a symptom of worsening relations between the judiciary and the executive. After the arrests – detectives now dispute that the judges were in fact ‘arrested’ – and questioning for several hours, the judges were released. Their lawyers said afterwards that the judges’ chambers had been searched, apparently for money that might have been evidence of bribery, but that nothing had been found.

The two judicial officers at the centre of this drama are Judges Said Chitembwe and Aggrey Muchelule both of whom are based at Milimani law courts in Nairobi.

A week ago, detectives arrived at the court building and went to the chambers of the two judges which were then searched. Though there were widespread reports by the media and others that the two judges were arrested, the directorate of criminal investigations (DCI) now claims this never happened.

Jul
23
2021

Judge sued by counsel over behaviour that supreme court rules is ‘unacceptable’

By Carmel Rickard

One of the legally most distressing cases ever to be argued in the courts of Zambia has reached a crucial point: the scandalous matter of a senior advocate suing a high court judge with allegations that his constitutional rights had been infringed by the judge, has now been considered by the country’s highest court. The supreme court has ordered that the matter be properly heard in the high court, but with the judge no longer named as respondent.

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The supreme court of Zambia was only too well aware of the drama of the situation at the heart of this case: a well-known and highly-respected legal practitioner sued a judge before whom he had appeared in a matter, and claimed that the judge had infringed the constitutional rights of the lawyer concerned.

Jul
23
2021

No justiciable rights to shelter in Zimbabwe – supreme court

By Carmel Rickard

Zimbabwe’s supreme court has confirmed that the country has no justiciable right to shelter, saying reference to shelter in the constitution was ‘essentially hortatory in nature’, operating merely as a kind of reminder or guideline to government in formulating policy. Given that shelter and housing is a major issue in Zimbabwe, this is an important decision that, along with the particular reasoning of the court, will impact on how human rights lawyers handle cases raising such issues in future.

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A crucial judgment with wide-ranging implications for Zimbabwe has been delivered by Zimbabwe’s supreme court – but very few are aware of it and there’s been no comment from the legal, academic or human rights communities even though the decision was handed down in June.

Jul
09
2021

Death penalty case re-visited by Kenya supreme court

By Carmel Rickard

Kenya’s supreme court has given special directions in relation to follow-up of its landmark 2017 decision in relation to the mandatory death penalty. At a special sitting of the court, its members questioned a number of court decisions delivered in the wake of the watershed case of Francis Muruatetu and said that the confusion that had arisen needed to be resolved.

Read court’s special directions

 

The case of Francis Muruatetu and another convict made world headlines in December 2017 when Kenya’s highest court declared that the mandatory death penalty for murder, imposed in the case of the two men, was unconstitutional.

Jul
08
2021

Zambian statesman Kenneth Kaunda ‘not an ordinary person’ – high court

By Carmel Rickard

The family of Zambia’s first president, Kenneth Kaunda, approached a high court judge with an application to set aside the government’s decision for a state funeral and a two-stage burial for Kaunda, who died in June. The judge, Wildred Muma, refused the application. Though most readers know that he said, as part of his decision, that Kaunda was ‘not an ordinary person’, little is known about the legal reasons he gave for rejecting the application.

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Judge Wilfred Kopa Muma, appointed to the high court in 2019, heard the matter in his chambers, even as preparations for the official burial in Embassy Park were being completed.

Jul
08
2021

School’s demand that Rasta boy cut his dreadlocks ‘unconstitutional’, court finds

By Carmel Rickard

The future of an academically gifted senior high school boy is in the balance again. The prestige school to which the boy had earlier won admission refused to enroll him unless he cut off his dreadlocks. Ghana’s high court recently declared that, in doing so, the school had infringed his rights and he had to be admitted. Almost immediately the decision was handed down, however, the school, which claimed its ultimatum in no way discriminated against the boy for his religious Rasta beliefs, said it would appeal against the high court’s decision.

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When I first heard about the boys who were refused entry to Ghana’s posh Achimota Senior High School because of their Rasta dreadlocks, I found it difficult to believe that an educational institution could still be unaware that constitutional rights were not just theoretical, but applied to their own pupils as well.

Jul
02
2021

Litigant faces criminal investigation after telling court to ‘stick its apology in its arse’

By Carmel Rickard

In a week that saw South Africa’s highest court order the country’s former President, Jacob Zuma, to serve a prison sentence for contempt of court, the second-highest court also had to deal with a litigant who expressed contempt, using language that must be unheard of in contemporary law reports. The five judges who heard this second matter said the litigant’s contempt would be referred to the national director of public prosecutions for action.

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During the early days of South Africa’s lockdown and associated government regulations, a then little-known organisation, the Liberty Fighters Network (LFN), took the government to court, challenging the constitutionality of the regulations.

Jul
01
2021

Under-age rape trial in Malawi results in steamy judgment by court

By Carmel Rickard

A magistrate in Malawi has produced a decision on a statutory rape case that, in part, reads like a racy novel. The magistrate was presiding in the trial of an 18-year-old, charged with ‘defilement’ – the Malawian version of rape when the complainant is underage. At issue was the defence of the accused who said he genuinely thought the girl involved was over 16 – and in dealing with that question, the magistrate rather sensationalised the sexual history of the girl concerned.

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This has to be one of the most bizarre judicial decisions I have ever read. The senior Blantyre magistrate who wrote it, Elijah Blackboard Dazilikwize Pachalo Daniels, seems to have believed that if perhaps he wrote his decision in a salacious style, it would add weight to his criticism of Malawi’s youth in general, and in particular of the young woman involved in the matter before him.

Jun
24
2021

‘The law cannot be adhered to in part’ - Malawian court on dispute over police officer sacked for nude photos

By Carmel Rickard

Could the law countenance a dismissal on the grounds that a recruit had nude photos taken of herself while she was at police training college? That is the unusual question posed to the high court in Malawi, when the woman concerned challenged her dismissal. Was it even illegal – under any Malawian law – for a police officer or recruit to have taken nude pictures of herself for private use? Read on to see how the court resolved the problem.

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Esther Chiunjiza, whose activities while at police training school came under scrutiny by the high court, started her training in 2016. During the period of training, she had nude photographs taken of herself by a colleague at the school. In November of that year she was deployed as a constable, and by February 2017 the photographs were being circulated on social media.

Jun
24
2021

Time to end mandatory death penalty in Zambia?

By Carmel Rickard

The courts of Zambia continue to pass and confirm the death penalty in alarming numbers, following a 2016 constitutional review in which the majority of voters expressed support for the existing laws on hanging. Presidents have periodically commuted large batches of death row prisoners. The most recent mass commuting of death penalty sentences occurred earlier this year, when President Edgar Lungu moved 225 men and 21 women off death row, ostensibly to reduce ‘overcrowding’ and create better conditions to protect against Covid-19.

Never will I forget the first time I sat in court, watching and listening as a judge passed the death sentence on a convicted person. In the years after that, before South Africa’s new apex court found the death penalty unconstitutional, I witnessed that scene on a number of other occasions, but each time it was a shock, a jolt to the soul: how could it be that this person, whom everyone in court had somehow got to know through the hours or days of the trial, who was alive and well, would be put to death by hanging on the orders of this judge?

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