Constitutionalism and Human Rights

This channel aggregates information on constitutionalism, constitution-making, constitutional reform, human rights and democracy issues in Africa. We curate and feature legal developments, caselaw and legislation, scholarly commentary, blogs, and columns.

Current contributors

Carmel Rickard

Legal Columnist.
Editor in Chief of the Newsletter of the Judicial Institute for Africa at UCT

Since she began working as a journalist in 1981, Carmel Rickard has specialised in writing about legal affairs. She has won widespread recognition (local and international) as well as a number of awards for her work, and in 1992/3 was awarded a Nieman Fellowship to Harvard.

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You only have Rights if you are a Person: How Zambia is Legislating Away the Rights of Persons with Psychosocial Disabilities

“I cannot accept people to treat me like an animal. It hurts. It pains me. How can I survive if I cannot work?
To deny people their rights is to challenge their humanity.”

                                                                                                                     -               Golden Mwewa, 2018

Botswana: Criminalisation of Consensual Gay Sex is Unconstitutional

The High Court of Botswana has ruled that a ban on consensual gay sex is unconstitutional.  Read the full judgment below, which is reproduced here until such time as BotswanaLII is established.  The PDF of the judgment may be downloaded here.

 

IN THE HIGH COURT OF BOTSWANA HELD AT GABORONE

MAHGB-000591 16

In the matter between:

LETSWELETSE MOTSHIDIEMANG                                                        Applicant

And

ATTORNEY GENERAL                                                                              Respondent
LESBIANS, GAYS AND BISEXUALS OF                                                Amicus Curiae
BOTSWANA (LEGABIBO)

 

We’ll protect you, Brazil’s supreme court tells gays; we won’t, say Kenya’s judges

Kenya’s high court has dealt a serious blow to that country’s gay community, by ruling that penal code provisions punishing “gay sex” are constitutionally valid. But judges in other parts of the world are meanwhile playing a far more pro-active role in protecting gay people who come under attack merely because of their sexual orientation. The latest court to offer protection to gays and transgender people is Brazil’s Supreme Court.

 

Read the judgment on KenyaLaw

The judgment of the constitutional and human rights division of Kenya’s high court must have been a great disappointment to the gay community there. In the decision, the three judges give no sense that they understand the very real dangers that this community experiences, with the bench merely observing that no evidence of any such danger, threats or discrimination had been provided to the court.

Long delays in Ugandan justice system “no speculation” says Supreme Court judge – and grants bail

Faced with an application for bail pending a last appeal, how should a senior court approach the reality of this situation: long delays will mean that the accused could well have served his entire sentence by the time the appeal is heard? Here is what Uganda’s highest court had to say on the subject.

Read judgment

Jean Louis Sumbu did not gloss over the facts. When he asked Uganda’s Supreme Court to order that he be allowed out on bail pending his last-ditch appeal before that same court he had to explain the whole story.

Sumbu, “a male adult, Congolese, of sound mind”, is 64 and has had a stroke.

Challenging culture of impunity in Kenya

Three former university professors have brought a claim in Kenya’s high court asking for restitution for human rights infringements. They seem to be part of a trend to end the culture of impunity in Kenya. The three had been detained and tortured under a previous government, and now, more than 30 years later, wanted recognition of what had happened, plus compensation for how their lives had been ruined by the unlawful action against them.

Read judgment

The solemn opening remarks by Judges John Mativo and Pauline Nyamweya signaled the gravity of the decision they were about to give and the horrors the case would disclose: torture, unlawful abduction, years in illicit detention, lives wrecked, bodies broken.

Law is the “bloodline of every nation”, the judges said. “The end of law is justice. It gives justice meaning.” It was a shield or refuge from misery, oppression and injustice.

Don’t use “constitution” as a “mantra”, Malawi’s supreme court warns

Malawi’s former agriculture minister, George Chaponda, was a key figure in that country’s “Maizegate” scandal around the importation of maize from Zambia to replenish stocks that had allegedly fallen low. Public criticism of apparent corruption led to a presidential commission of inquiry and then to high court action to have Chaponda stand down during the inquiry. Though the high court initially ordered Chaponda’s suspension, the supreme court has just ruled that it was wrong to do so, and that the judge had ignored binding precedent.

Read the judgment on MalawiLII

When Malawi was gripped by a maize shortage scare a few years ago the government arranged to buy more from Zambia. But allegations of corruption soon followed against George Chaponda, then minister responsible for agriculture, as well as other officials in Malawi and in Zambia.

So great was the public outcry that a presidential commission of inquiry was established to investigate.  

Christmas is coming, so we're putting you in jail

In the midst of bad stories about the quality of justice being experienced in Zimbabwe’s courts comes a high court judgment that sees the accused as an individual – and that sets aside his trial sentence in the lower court as a shocking expression of the magistrate’s whims about burglars at Christmas.

Read judgment

The judiciary in Zimbabwe is not enjoying a particularly good international reputation at the moment. News of bail applications routinely refused, of mass trials and sham prosecutions  – all have raised questions about the quality of justice being dispensed in that country during the current crackdown on opposition activists.

“Ogoni 9” case back in the spotlight, this time in the Netherlands

The families of nine environment and human rights activists executed by the Nigerian government in 1995, have their hopes for justice pinned on a court in the Netherlands, where a preliminary round was argued this week.

The fight for justice for the “Ogoni 9” moved to the Hague this week where representatives of nine men, executed by Nigeria’s military government in 1995, argued that this was an appropriate forum to deal with their case and gave evidence of the trauma of the men's secret trial and execution.

The families want to sue Royal Dutch/Shell in the Netherlands and claim that the petroleum giant gave help to the Nigerian troops at the time. They say that Shell played a significant role in the “unlawful arrest, detention and execution” of their husbands.

Valentine's Day winner: New Tanzanian court rules improve experience of justice by vulnerable groups

Tanzania’s Chief Justice, Ibrahim Hamis Juma, has promulgated new rules that could greatly change how people from vulnerable groups experience courts and the justice system. That is why this is Jifa's winning Valentine's Day 2019 good news story: we like the care it shows for normally-forgotten people with no one else to champion their cause. The rules prioritise cases involving disadvantaged people, and set deadlines for finalizing matters in which they are involved.

Read the Rules on TanzLII

Court rules are often pretty boring to outsiders. Usually they are only of interest to lawyers who must obey them to the letter so they don’t get into trouble and make a mistake about filing deadlines, for example.

Court “stands tall”, rules that state violates evictees’ rights

The failure of Uganda’s Government to pass laws protecting people evicted from private and public land has come under the sharp eye of the high court. Following an application brought by a local human rights lawyer, the court has declared that failure to pass laws setting out proper procedures in the case of evictions violated the rights to life, dignity and property of those affected. Judge Musa Ssekaana ordered the government to report back within seven months on its progress towards such legislative guidelines.

Read judgment on ULII

Hard to imagine in a country with a strong constitution that goes back almost 25 years, but Uganda has no legal provisions for the protection of some of its most vulnerable people: those evicted from private or public land.

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