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May
19
2020

Malawi appeal court judges set new election standards

By Carmel Rickard

Malawi’s Supreme Court of Appeal has confirmed that Peter Mutharika was ‘not duly elected’ as President in last year’s national election. This is important news: many people had been holding their breath as they waited for the appeal outcome. But that is far from all that the judgment decided. It also made final rulings on other issues that will impact on government and elections into the future, well beyond the forthcoming re-run. In this case the appeal court was considering a decision by Malawi's constitutional court, handed down earlier this year.

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In its 142-page decision the seven judges, among them the Chief Justice, Andrew Nyirenda, are unanimous in upholding the finding of the constitutional court: the May 2019 elections failed in their aim of ‘duly electing’ a new President. In other words, President Peter Mutharika, who headed the country before the May polls and was declared re-elected in those elections, was not in fact ‘duly elected’.

May
14
2020

Courts should not give up their position as ‘last resort protection’ under COVID-19 regulations

By Carmel Rickard

Courts should beware of giving up their role of protecting fundamental rights during the COVID-19 pandemic, according to Tim Fish Hodgson, legal advisor with the International Commission of Jurists, Africa. Interviewed online on how COVID-19 regulations were impacting on socio-economic rights wordwide, he said that in many countries, courts were no longer as willing to consider cases involving infringements of rights. They took the view that, under an emergency situation, judges 'need to defer'.

Download the interview

In a new online interview, the International Commission of Jurists, Africa, legal advisor, Tim Fish Hodgson has warned of a developing trend among judges in many parts of the world under the current pandemic.

May
14
2020

Lawyers don't have to pay double tax, minister ought to consult next time - Uganda court

By Carmel Rickard

After a long and difficult battle with the relevant minister, Uganda's law society has staved off attempts to subject members to double taxation. The government had included lawyers on a schedule of professions and businesses that had to apply for local licences to 'trade', though they are already taxed via practice certification processes. Judge Ssekaana Musa had to deal with similar challenges to the schedule from members of Uganda's pharmaceutical association and organised members of the country's forwarding and clearing business.

Read judgment: law society    

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Read judgment: clearing and forwarding agents

What do lawyers, pharmacists and – wait for it – forwarding and clearing agents, all have in common?

May
13
2020

Changes to Dispensing Regulations pertaining to certain Schedules of Medicines during COVID-19

By Martha Smit

On 7 May 2020 the Minister of Health published a Government Notice (Gazette No 43294, Notice no. 514) relating to the dispensing of Schedule 2, Schedule 3 and Schedule 4 substances during the COVID-19 Pandemic.

According to the Notice, Schedule 2, Schedule 3 and Schedule 4 substances are excluded from certain provisions of the Medicines and Related Substances Act, No 101 of 1965 (“Medicines Act”) in so far it relates to the requirement in Section 22A(6)(f) that such substances may be dispensed for no  longer than six (6) months.

May
13
2020

Malawi case flags growing threats to human rights, role of African Court

By Carmel Rickard

Almost every country in the world is experiencing a narrowing of peoples’ rights and freedoms because of government restrictions imposed in the name of fighting the Covid-19 pandemic. But will these governments willingly give up their new powers as the contagion eases? And if not, where should the people of a state look for help, if their own courts uphold these infringements of fundamental rights? In Africa, the African Court on Human and Peoples' Rights would be the court to adjudicate serious rights issues like these.

Judgment of Supreme Court, Malawi, awarding costs against Charles Kajoloweka

Ruling by African Court on Human and Peoples' Rights on jurisdiction to hear Kajoloweka matter and staying enforcement of Malawi's order

May
08
2020

Conducting Court Hearings in Botswana under Covid-19 Restrictions: Hidden Feature of ‘extremely urgent applications’

By Lesedi Rammika

Quite unfamiliar territory it is to find one’s self emailing a Judge about their case before it is filed (let alone emailing a Judge entirely) and even more peculiar calling a magistrate directly, but such are the extents to which extreme social distancing has led our court system in Botswana.

Introduction to Prescribed Restricted Process with regard to Access to Justice

On the 31st March 2020 the President of Botswana declared a state of public emergency and a lockdown duly ensued as of the 2nd of April 2020. In response to the actions of the President, the Chief Justice issued Practice Directive No.2 of 2020 which was later revised on the 10th of April 2020. The key paragraph dealing with access to justice during lockdown is captured below from paragraph 2.1 of the said Directive:

May
07
2020

New head for SADC administrative tribunal

By Carmel Rickard

A member of Mozambique’s supreme court, Pedro Sinai Nhatitima, has been elected to head the SADC Administrative Tribunal. He succeeds Zimbabwe’s Justice Francis Bere who had reached the end of his term of office as president of the tribunal.

Judge Nhatitima was chosen as president of the SADC Administrative Tribunal this week, during an online plenary meeting of the members of the tribunal. He will serve as the tribunal’s president for a year.

May
06
2020

Teachers' body vicariously liable for rape, sexual assault at school - appeal judges

By Carmel Rickard

Whenever a judgment announces that it is dealing with ‘novel questions of law’, readers need to pay close attention. This is just such a case. It concerns Kenya’s Teachers Service Commission, a body that had employed a teacher who sexually abused some students. Was the TSC vicariously liable for those acts? Had the TSC failed in its constitutional and statutory duty to protect the two children named in the case as WJ and LN, as well as other children, from the teacher’s depredations? – Unusually, these questions were considered by four women judges.

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May
06
2020

Dying surrounded by family ‘a most fundamental right’ - court

By Carmel Rickard

In a case that has moved readers worldwide and that sparked a judge to comment on the rights of a dying person even during the Covid-19 pandemic, a court has ordered that a terminally ill Nigerian woman living in the UK be allowed to leave the care home where she had been staying, to spend her last days with her extended family. In her decision on the case, UK Judge Nathalie Lieven commented that the woman had ‘something between a few weeks and 3 – 6 months to live’ and that the question was whether she should be able to spend those last days with her family.

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The case, in which the woman was identified only as AO, was brought by her daughter, VE. In a decision delivered this week, the judge explained that VE asked the court to order that it was in her mother’s best interests to be allowed to leave the care home where she was then living, and move to stay with VE and her family.

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