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Jun
17
2021

Media reports of unlawful home ‘invasion’ by private investigators amount to defamation – Eswatini supreme court

By Carmel Rickard

The Supreme Court of Eswatini has delivered judgment in a most extraordinary defamation case. It concerns the raid on a private home by operatives of a firm of private investigators. They broke into the house where they found a couple asleep, naked, in bed. Then they took distasteful photographs and video as the two people tried desperately to cover themselves. The firm said that they had been hired by the then minister of justice, who was, at the time, involved in a dispute with the man of the couple.


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It is difficult to decide what is the most shocking element of this story. Each new paragraph seems to show another, more alarming, piece of the picture.

Jun
17
2021

'Integrity arm' of State given prominence in new Kenyan decision

By Carmel Rickard

On Valentine’s Day, 2020, Kenya’s President Uhuru Kenyatta issued an executive order than brought him no red roses from the country’s human rights bodies. In fact, the order – purporting to ‘re-organise’ government and put various judicial bodies and independent commissions under other state departments and ministries – was the subject of a constitutional challenge brought by the law society of Kenya. Now the high court has decided the petition, and declared that the executive order was unconstitutional and invalid. 


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Jun
11
2021

Former Chief Justices join row over Kenya President’s appointment of selected judges only

By Carmel Rickard

Kenya’s President Uhuru Kenyatta has appointed or promoted a number of judges. But not the whole list of 40 nominated by the judicial service commission. Only 34 were sworn in during a ceremony last week, causing strong criticism and strong justification by the President himself. Now two former Chief Justices, Willy Mutunga and David Maraga, have weighed in on the issue as well. Their comments follow criticism by some observers of their successor in office, the new CJ, Martha Koome.

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Former Chief Justice Willy Mutunga's open letter, published this week, was a detailed four-page critique of President Uhuru Kenyatta’s appointments. Those sworn in included just 34 of the 40 names given to Kenyatta by the judicial service commission for appointment and the decision to exclude six jurists has caused an uproar.

Jun
10
2021

Judicial appointments’ problems spread like a virus

By Carmel Rickard

Like a rampaging judicial virus, political and other problems are infecting the process of appointing judges in a number of African countries. And there’s no vaccine or any other easy solution in sight. Developments in Lesotho, Zimbabwe, Kenya – and then, out of the blue last week, South Africa – all point to serious problems about the process of judicial appointments. Here’s a guide to the symptoms of this particular virus.

Lesotho

Jun
10
2021

Magistrate correct to have woman imprisoned for contempt over child access - Lesotho high court

By Carmel Rickard

A mother was found to have committed contempt of court by disobeying an order about child-access, shared with her ex-husband, and she was sent to prison. She later claimed the magistrate had wrongly ordered her imprisonment and she demanded financial compensation for alleged constitutional damages. But the high court in Lesotho has now found the mother was the one in the wrong, not the magistrate, and applauded the magistrate for protecting the dignity and effectiveness of the courts.

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The facts that gave rise to this case speak of a woman who flagrantly disobeyed the court and refused to back down. (Because a child is involved, the mother, who was the applicant in this case, is not being named here, being merely referred to by her initials.)

Jun
09
2021
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POPIA: Progress and Problems

By Staff writer

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.

Jun
03
2021

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

By Carmel Rickard

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.

Jun
03
2021

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

By Carmel Rickard

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.

May
27
2021

Warnings offered by Zambian land expropriation case

By Carmel Rickard

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.

May
27
2021

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

By Carmel Rickard

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.

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