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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Statement: Shining a light on the urgency of implementing the Regional Action Plan on Albinism in Africa

On 13 June, every year the world commemorates the International Albinism Awareness Day. This year the International Albinism Awareness day is commemorated under the theme ‘shining our light to the world’, providing an opportunity to reflect on progress and challenges facing persons with albinism.  SALC makes the following statement. 

On 13 June, every year the world commemorates the International Albinism Awareness Day. This year the International Albinism Awareness day is commemorated under the theme ‘shining our light to the world’, providing an opportunity to reflect on progress and challenges facing persons with albinism.

Ugandan judge slashes “ridiculously” high legal costs in public interest case

AS African jurisdictions embrace powerful, forward-looking constitutions and the possibility of litigation to protect rights, one question will inevitably arise: how should a court manage the question of legal costs in such litigation? An important new decision from the constitutional court of Uganda lays down clear guidelines. Carmel Rickard writes that the dispute over legal costs in this case followed a high-profile challenge to parliament’s decision that corruption allegations against leading members of government should be investigated.  

UGANDAN advocate Twinobusigye Severino was in parliament the day a row broke out over claims of bribery in the oil sector. He heard hecklers calling government ministers “thieves” and “thugs”, and he listened to an MP saying – to great applause – that if he had Idi Amin’s powers he would publicly execute those accused of corruption. When those same angry hecklers then voted to set up an inquiry into the alleged corruption, Severino went to court with a constitutional petition. 

Justice for Malawi's children

IN a “remarkable breakthrough”, the Malawi high court has come to the rescue of children illegally held in adult prisons. Some of the children were imprisoned in a jail where, according to an official 2016 parliamentary report, no food was available to inmates and where blankets were in short supply. As Carmel Rickard explains, the law says that children in trouble with the law may only be held in special places of safety or reformatories, and the court has now ordered the authorities to move the children within 30 days.

WHEN one of Malawi’s best-known judges, and someone particularly passionate about the needs of children, Fiona Mwale, addressed dignitaries at the opening of the Child Justice Court in Lilongwe 18 months ago, she raised an issue close to her heart: deep concern about the number of children detained in adult prisons rather than in specialised homes for youngsters in conflict with the law.

Victory for asylum seekers in Constitutional Court

The Constitutional Court has ruled that asylum seekers’ temporary permits must automatically be extended while their case is being reviewed.

Court rules on extension of temporary permits

By Ohene Yaw Ampofo-Anti

30 May 2018

In an important victory for the rights of asylum seekers, the Constitutional Court has found that their temporary permits must automatically be extended while their case is under judicial review.

Court orders tribal authority to act democratically

Do traditional leaders have to consult with their community before litigating on their behalf? On 9 March 2018, a Mahikeng High Court judgment answered this question: yes, they do.

By Ohene Yaw Ampofo-Anti

28 May 2018

Background

The Royal Bafokeng Nation (RBN) is a tribal community of approximately 300,000 people. RBN applied to court for an order declaring that it is the owner of 60 properties in North-West Province.

RBN asked for this order because, according to the title deeds, the properties are being held by the Minister of Land Affairs “in trust for” the RBN. RBN contended however, that there was no trust relationship between it and the Minister and it was the outright owner of the properties.

Judicial independence is critical to protecting press freedom in Africa

In this opinion piece, Anneke Meerkotter, Litigation Director of the Southern Africa Litigation Centre (SALC), discusses a recent High Court of Lesotho (sitting as a Constitutional Court) judgment which declared the offence of criminal defamation unconstitutional. She takes the opportunity to also reflect more generally on the extent to which judiciaries have created the space for constitutional jurisprudence to be exercised in a manner that facilitates social transformation. 

 

Lesotho Constitutional Court Repeals Criminal Defamation and Reaffirms Freedom of the Press

FREEDOM of the press and other media, as well as the safety of journalists, were all given a boost this week with a major new decision by Lesotho’s constitutional court. Three judges sitting in the high court’s constitutional division – Moroke Mokhesi, ‘Maseforo Mahase and Teboho Moiloa – have found that criminal defamation, long used as a threat against journalists and the media, is unconstitutional. This decision adds Lesotho to the growing list of African jurisdictions where criminal defamation has been repealed.

WHEN award-winning journalist and media owner Basildon Peta wrote and published a story about the supposed power of the then-commander of Lesotho’s defence force to boss the cabinet around, no-one missed his point. Using the verbal equivalent of a political cartoon, he pictured the general, Tlali Kamoli, interrupting a cabinet meeting and ordering that the ministers strip to their bare chests and do press-ups in the grounds of State House.

The Complexity of Land Expropriation

TO an outsider, the case might at first sight seem no more than a relatively simple dispute over ownership of the land on which a shopping mall is being built. But the case of Stantoll v Johannes involves far more complex issues than that. It is also about the difficulties surrounding state expropriation of land and subsequent expectations of compensation, at a time when this is a hot issue in many African countries.

THE case that initially sparked all the trouble involves a property developer and members of an extended family clan that used to live on the site where the development is taking place.

The disputed land lies in Ongwediva, part of Namibia’s remote, far north, an area where communal land rights are a hot issue and where the country’s ruling party has its stronghold. It’s also an area ripe for development.

Principles that Govern Matters of General Public Importance 

What types of appeals lay from the Court of Appeal to the Supreme Court

What were the principles to determine whether a matter was of general public importance

Whether a matter that would affect fundamental freedoms amounts to a matter of general public importance

 

Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture, Horticulture and allied Workers’ Union (Kefhau) Represented By Its Promoters David Benedict Omulama & 9 oythers [2018] eKLR
Civil Application No. Sup. 5 of 2017
Court of Appeal at Nairobi
M. Warsame, W. Ouko & K. Murgor, JJA
February 23, 2018
Reported by Kakai Toili

Dismissal of cases that raise issues of breach of fundamental rights and freedoms at an interlocutory stage

The ex parte Applicants were elected Members of the National Assembly representing various constituencies and were all members of the Jubilee Party having been elected on its ticket. The Applicants were nominated and consequently approved by the House as members of the Labour and Social Welfare Committee, Agriculture and Livestock Committee, Environment and Natural Resources Committee and Parliamentary Broadcasting and Library Committee in the National Assembly.

Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex-parte Alfred Kiptoo Keter & 3 others [2018] eKLR
High Court at Nairobi
Miscellaneous Civil Cause No. 706 Of 2017
G V Odunga,J
February 26, 2018.
Reported by Kakai Toili

 

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