ouster clause

Warnings offered by Zambian land expropriation case

As South Africa moves towards more stringent laws to allow expropriation of property without compensation, cases in other parts of the region show the pitfalls of expropriation even where compensation is paid. A new case from Zambia’s apex court concerns land expropriated from a farmer, ostensibly for development in the public interest. It turned out, however, that fraud was involved and that after a long period in which nothing was done with the land, it was sold off – at one stage for the development of a luxury hotel and golf course.

Read judgment

This is an extraordinary case in many ways. The contested expropriation took place 33 years ago. And this judgment represents the sixth time a court has considered related issues - despite the relevant law saying that once an appeal court has decided the matter it can go no further. At 136 pages, the judgment is also extraordinarily long.

“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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