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.

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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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Secularism in Ghana "obviously" encourages state accommodation of religion and religious identity - Supreme Court

A major challenge to Ghana’s planned national cathedral, brought on the basis of a challenge to alleged infringements of the country’s “secular” constitution, has just been dismissed by the supreme court. Ghana’s highest court found that secularism in Ghana “obviously” allowed and encouraged recognition and accommodation of religion and religious identity by the state. But this does not necessarily mean criticism is over – plenty of critics say it will be wasteful and an unjustified expense.

Read the judgment

As part of Ghana’s 60th anniversary celebrations in 2017, the president, Nana Akufo-Addo, turned the first sod for a major national symbolic structure – the Ghana National Cathedral. To be funded by individuals and organisations within the Christian community, the cathedral is said by the government to be a priority project. But it is not without its critics.

Reaction to shock suspension of Nigeria's Chief Justice

THE decision by Nigeria’s president, Muhammadu Buhari, to suspend the country’s chief justice, Walter Onnoghen, has come under increasing criticism at home and abroad. Following the suspension of Nigeria’s judicial leader, his deputy as chief justice, Ibrahim Tanko Mohammed, was sworn in as replacement. But Buhari’s decision has sparked considerable criticism with commentators pointing out that it comes shortly before a critical election in which Judge Onnoghen could have played an important role.

International and local outrage has followed the shock suspension of Nigeria’s chief justice, Walter Onnoghen, by the country’s president, Muhammadu Buhari on January 25, 2019.

Lawyers across Nigeria held a two-day protest against what they termed the “illegal suspension” of the CJ, boycotting the courts for the duration of the demonstration. The protest was called for by the Nigerian Bar Association following a national emergency meeting called to consider the suspension, and it was widely observed.

Namibian lawyer tells national police chief: protect my client against abduction, rendition by Zim police  

As the crisis in human rights and the rule of law continues in Zimbabwe, its impact – and growing condemnation of the government crackdown – has spread elsewhere in the region and abroad. In Namibia, an opposition MP, visiting from Zimbabwe, fears for his life after receiving information that a squad of Zimbabwe’s Central Intelligence Organisation police have arrived in Namibia to abduct him. He believes the aim of the secret mission is to return him to Zimbabwe and put him on trial for treason.

A prominent legal firm in Namibia has written to that country’s inspector general of police asking for action to protect a senior Zimbabwe opposition figure, Chalton Hwende, on holiday in Namibia. Human rights lawyer, Norman Tjombe, told Jifa that his client, still safe in Namibia at the moment, had received credible information that members of Zimbabwe’s intelligence agency, the much-feared Central Intelligence Organisation, had arrived in Namibia intent on abducting him and taking him back to Zimbabwe.

Death penalty overturned for woman who murdered, dismembered husband

The appropriateness of the death penalty as a punishment for even extremely violent murder has been raised at the Supreme Court in Kampala. Members of Uganda’s apex court were considering the case of a 63-year-old woman who murdered and dismembered her husband. Though she was originally condemned to death, the five Supreme Court justices have replaced that sentence with a 30-year jail term.

Read judgment here

The facts of the case before Uganda’s Supreme Court were just about as bad as they could be.

The accused murdered her 65-year-old husband and when family and others asked where he was she pretended that she did not know. She even told their daughter that he “had other women” and might be with one of them.

Villagers' water pollution case should be heard in UK not Zambia, court hears

A major case on the environmental and human rights of villagers in Zambia was heard in the English courts over two days this week. The appeal concerns the question of where villagers, suing over the pollution of their water via mining action, may bring their dispute. They want the case heard in the UK while Vedanta, the parent company they are targeting, says the “natural forum” for the matter would be Zambia.

FOR almost 2000 villagers in Zambia’s Chingola region, this was a crucial week. A two-day hearing in the English courts could see them finally able to act against the mining outfit they claim has, since 2005, polluted their water and damaged their health, their lands and any prospect of earning a living.

Why Zambia's highest court found President Edgar Lungu eligible to serve another term

Zambia’s highest court has given the country’s president, Edgar Lungu, the go-ahead to serve a third term in office if he wishes. This judicial permission for the president to take a step regarded as contentious by many in Zambia, came by way of a judgment that had as its core the definition of a presidential “term”. The court found that a president may serve only two terms.

Read judgment on ZambiaLII here

 

IN a recent case testing whether Zambia’s President Edgar Lungu may lawfully stand for a third term in 2021, that country’s highest court had something to say about the problem of threats to the judiciary “related to matters before court” - though the judges did not say whom they had in mind.

Lesotho: New judgment reinstates Mosito

A DECISIVE new judgment by five acting judges of Lesotho’s highest court has found that the former president of the appeal court, Kananelo Mosito, who resigned to pre-empt his impeachment, has been validly reappointed by government. The new decision that will see the acting chief justice swearing in Mosito very soon does not, however, resolve Lesotho’s continuing judicial problems and in particular the alarming issue of ongoing political interference with the judiciary.

 

THE decision, delivered on Friday morning by the highest court in Lesotho, was entirely predictable given the tone of questioning and discussion in court during the hearing earlier in the week.

Lesotho’s Court of Appeal has not been operating for some time as the judicial crisis surrounding the head of that court has played out, but five acting judges, headed by former Zambian judge, Philip Musonda, were appointed to hear this matter.

Kenya: Time for courts to develop judicial review as “constitutional supervision of power” - judge

IN an ongoing battle over land compensation payment in Kenya, the high court has awarded both a win and a lose to the two sides in the bitter dispute. This particular part of the fight has seen the senate determined to show its authority by summonsing the companies that owned the contested land to appear before one of its committees and answer questions. The companies, on the other hand, claim a witch-hunt and say there is an attempt to coerce and blackmail them.

WHEN a court begins its decision with a hymn to the values of the constitution and the rule of law, I would expect to find the judge is about to do something unusual or significant.

Did this happen in the recently-decided case of the Speaker of the senate against two limited liability companies? You be the judge.

Before he even began to explain the facts of the case, though, Judge Mativo, who presided in the matter, spent three paragraphs on the significance of the law, justice and the rule of law in a modern, changing society.  

Somali "forced marriage" case poses headache for UK courts

AS the world becomes more aware of the need to protect children and young people from forced marriage, courts are faced with increasingly difficult cases on the issue. A new UK decision involving a family of children from Somalia illustrates the problems that judges could face. The children’s older sibling, who still lives in the UK, believed their mother was intent on the forced marriage of at least one of the children and tried to get the UK courts to act. In a series of hearings, the courts repeatedly extended protection orders over the children.

INCREASING awareness of the rights of children not to be forced into marriage led to this unusual trans-continental case, heard in the UK courts but involving an African family.

It concerns four young Somalis, formerly of the UK but now living in Somalia with their mother. The siblings’ sister, still in the UK, asked for help when she heard that their mother intended to force at least one of the younger siblings into marriage in Somalia.

When “straying” courts need to be “reined in"

HERE is a rare situation: three judges of Swaziland’s highest legal forum, the supreme court, confessing they are at a loss to understand what is happening in the courts below. This after two high court judges issued contradictory orders in relation to a bail hearing and the supreme court was asked to intervene and sort out the mess. Did the supreme court have the power to do so? It was a novel question, testing certain of its constitutional powers for the first time.

This story appeared first in LegalBrief.

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