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Kenyan government put the ‘cart before the house’ on data protection and must live with the consequences, says court

The high court in Kenya has taken a strong line on protection of personal data related to the government’s new ‘huduma’ identity cards. The cards are meant to do away with the need for many cards related to various government services – ID, passport, clinic cards, driving licences and others. Collection and collation of the data needed for the new, all-encompassing cards has already taken place and the cards are now available for collection.

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Top government officials in Kenya have acted with anger to a high court decision throwing doubt on the validity of the country’s new all-encompassing huduma (“service”) identity cards.

The rollout of data collection began in December 2020, and millions of the new cards have already been collected. The government has, however, expressed concern that people are taking so long to collect the balance of the cards.

Malawi paralegal investigation given go-ahead by court

The Malawi law society has lost the first round in its battle over turf: it had asked the high court to squash an investigation being planned by the legal affairs committee of the national assembly. The investigation could see a recommendation that paralegals be allowed to defend certain cases in the magistrates’ courts. However, Judge Mike Tembo refused to stop the inquiry, and said the action reminded the court ‘of the colonial days … in which the law severely limited black people’s political participation’.


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The case was brought by the Malawi law society (MLS) that asked the high court to consider whether hearings planned by the legal affairs committee (LAC) of parliament were legal. The hearings would be to investigate proposed law amendments that might allow paralegals to appear and play a limited role in the lower courts.

Fairness at divorce

Two new judgments from the courts in Kenya and Zimbabwe underline changing judicial views about the role of women in building up a family home and the contribution that women, as wives and mothers, may be said, on divorce, to have made. One stresses with new urgency that women who work in the home should stand up for their rights and, at divorce, be prepared to give evidence in court about the significance of their contribution to the home.

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Women facing divorce settlements are often particularly vulnerable to claims that they are not entitled to equal shares of matrimonial property because their financial contributions to the property had been less than the contributions of their former husbands.

Charged and found guilty of ‘being pregnant’, school learners now awarded damages in compensation

A group of pregnant school learners, the boyfriends by whom they were pregnant, and the parents of some of them, have been awarded damages for their ‘arrest’ and conviction under community by-laws. Sentenced to pay fines, they were kept in police cells until the fines were paid in full. Now, however, the fines must be repaid, along with damages. The exact amount of damages due was finalised last week by the assistant high court registrar who also warned that community by-laws did not amount to formal law.

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Five years after being arrested, charged, convicted and fined for ‘being pregnant’, a group of what were, at the time of the arrests, primary school girls, along with boys allegedly responsible for the pregnancies and the parents of some of the youngsters, have been awarded damages.

Long struggle for justice after failed Kenya coup

Reverberations from Kenya’s 1982 coup attempt were felt once again last week, this time in a high court case brought by former members of the armed forces, tortured in the wake of the failed coup. The plotters had tried to get rid of the then president, Daniel Moi. After being held for more than a year, one of the former members of the armed forces involved in the litigation was subsequently let go without any charges.

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Almost 40 years after a coup attempt that shook Kenya to its foundations, ten former officers have won a long battle for compensation. This followed their detention and torture in the wake of the failed attempt to overturn the government.

The Forum at Mosi-oa-Tunya: Judiciaries and the Fourth Industrial Revolution in Africa

Just like the inevitable thunder of the "smoke" of the Zambezi at Victoria Falls, where this year's Southern African Chief Justices Forum conference took place, so is the flood of the Fourth Industrial Revolution engulfing the African justice sector. The theme of the conference was The Judiciary and Technology in Africa. In my presentation to the Forum, I proposed that African judiciaries have an opportunity to engage with the technologies shaping the Fourth Industrial Revolution now.

The Southern African Chief Justices Forum (SACJF) provides a formal platform, structure and framework through which the Chief Justices of Eastern and Southern Africa can collectively reflect on critical issues on justice delivery and adopt action plans to address those issues in a systematic and sustained way to strengthen justice delivery in the region.

Doing well, but could do better: the judiciary and technology in Africa

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.

Court finds Kenya’s new tax law unconstitutional; calls government’s ‘vaccine’ for ‘virus’ of non- tax payments, ‘inappropriate’

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.

Not all a bed of roses in Kenya’s flower export industry

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.

Election case thrown out over advocate's expired practice certificate

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.

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