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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"We Are Not Animals to be Hunted or Sold"

EXECUTIVE SUMMARY

Since November 2014, Malawi has seen a sharp increase in human rights abuses against people with albinism, including abductions, killings and grave robberies by individuals and criminal gangs. At least 18[1] people have been killed and at least five have been abducted and remain missing. According to the Malawi Police Service, at least 69 cases involving crimes related to people with albinism have been reported since November 2014.[2]

Top judges of world’s largest democracy strike down anti-gay sex law

INDIA’S highest court has struck down the country’s anti-gay sex law as unconstitutional. The decision, widely welcomed as conforming to a modern understanding of constitutionality and rights, was the result of India’s highest court, the supreme court, reconsidering the validity of Section 377 of the Indian Penal Code. The judgment, likely to be hugely influential worldwide, followed a 2013 decision of the same court when two judges upheld the Code. Earlier this year, however, the supreme court decided to revisit the issue, but with a larger bench.

FIVE judges of India’s supreme court, including the chief justice, heard the challenge to Section 377 of the Indian Penal Code in July this year, and since then their decision has been eagerly anticipated.

JIFA alum, Judge Derrick Mulenga of Zambia, delivers important workers' rights decision

WHEN does a union dispute become, fair and square, an issue of human rights and a test of the constitution? A recent decision by Judge Derrick Mulenga in Zambia’s high court makes a strong statement about this question: the court said the right of workers to belong to a union of their choice involved fundamental rights. These were constitutionally protected and part of an employee’s human rights.

This article first appeared in LegalBrief

THE case landed in court because management of the company concerned refused to give official recognition to an additional trade union, and raised a number of reasons why it would not allow workers to join.

Lone judicial voice in runup to Zimbabwe's elections

In Zimbabwe elections on 30 July were followed by violence in which soldiers opened fire on people protesting against what they claimed were “rigged” election results, killing at least six people.  During the months before the elections, however, many court applications tried to ensure broader democracy and a more transparent election process – almost all without success. Read here about the solitary exception in which a judge ordered the ruling party to stop misusing schools and school children for party rallies, only to be overturned on appeal.

OF all the many pre-election cases heard by Zimbabwe’s courts, only one resulted in a judicial decision that broadened and protected democracy. And even in this case, the outcome was overturned on appeal.

The stand-out case was heard by Judge Joseph Martin Mafusire. In Amalgamated Rural Teachers Union of Zimbabwe v Zanu-PF he was asked for an interim order to prevent school pupils, teachers, school buses and buildings from being used as though they were resources belonging to the ruling party.

Judges stress "sanctity" of constitution as tension mounts over rule of law

AT 814 pages, this critically important constitutional court decision was never going to be easy to digest. Five judges, headed by the deputy chief justice, Alfonse Chigamoy Owiny-Dollo, contributed to its length and they all had a lot to say.

AT 814 pages, this critically important constitutional court decision was never going to be easy to digest. Five judges, headed by the deputy chief justice, Alfonse Chigamoy Owiny-Dollo, contributed to its length and they all had a lot to say.

Between abduction and contempt of court: children left without parents

A NIGERIAN father of three, serving time in a UK jail, says the English judges who heard his case are “racist” and “biased”, and that his imprisonment amounts to slavery. Levi Egeneonu is in prison for contempt of court, after he refused to return his three sons to the UK, where their mother – who has not seen her children since 2013 – is desperate about their fate. The man also claims that he cannot obey the orders of the UK courts since they conflict with the orders of the Nigerian courts.

A NIGERIAN father of three sons, Levi Egeneonu, claims his imprisonment in the UK for contempt of court is unjust because he is caught between conflicting judgments in the UK and in Nigeria and cannot obey both. Egeneonu, also known as Bernard Nkem, has been before UK judges at least a dozen times over his 2013 absconding with the children while the family was on holiday in Nigeria. His wife, Ijeoma Egeneonu, has not seen her children since then.

Court rejects international arrest warrants in African trafficking case

VULNERABLE girls and young women trafficked from Nigeria, South Africa, Senegal, Sierra Leone and Ghana will have to wait even longer before they know whether they will ever get justice. The couple accused of trafficking them, referred to only as M and B, because they have children who may not be identified, are the subject of extradition attempts. An Italian court in Naples has asked the UK courts to respond to two European arrest warrants (EAWs) and extradite M and B, now in the UK.

COMMENTING on the documentation before the UK court in the extradition case, judge Andrew Nicol said, “Nothing about these warrants is straightforward”.

The couple were tried and convicted in their absence, and the Italian courts now want them brought to Naples for sentencing. Despite the confusion and inadequacy in the documentation referred to by the UK court during the appeal, however, a number of significant details emerged.

“Tainted” judicial history remembered in new Kenya judgement

WITH a reminder of what has at times been the unsavoury past of Kenya’s judiciary, the constitutional court has declined to intervene in the dismissal of a number of magistrates who served during the pre-constitutional era. As Carmel Rickard explains, the Kenyan courts are barred by an ouster clause from considering such dismissals. In this case the court deferred to the provision, at the same time spelling out the ouster’s limits and ensuring that in the case before it those limits were not transgressed.

THE timing of this judgment is particularly significant. It comes as tension builds between Kenya’s judiciary and other arms of government over judges’ powers to consider the meaning and application of statutes and to act when there are breaches of the constitution. Just a few days ago, for example, some MPs said judges should stop their “constant meddling” in the affairs of the legislature.

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