Carmel Rickard


‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Executive interference in Ugandan court decisions continues – this time by the justice minister

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Major court decision on image rights benefits Ugandan soccer players

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Is rape by family members treated too lightly by the law?

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

Two prominent South African advocates have just lost their last hope of squashing  their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.

Are the courts out of touch with the ordinary, and often poor, people they serve?

This is a question that readers can’t help asking, based on a contempt of court conviction and sentence by the magistrate’s court in Namibia. The case raises concerns about a lack of sensitivity and awareness of that court to the daily difficulties of poor people it serves. The accused in the case, Festus Shimmy, was sent to prison for three months because he wore ‘short pants’ to a court hearing and the magistrate convicted him of contempt of court for doing so. Explaining his attire, Shimmy told the court that his long trousers were very dirty and so he had worn the shorts. To make matters worse, his case was not sent to the high court on review ‘without delay’, as the law requires in contempt of court matters, but only arrived for review well after the three-month sentence had expired. This meant that even though the high court set aside his conviction and sentence, this came too late for Shimmy. Further, the high court pointed out that the magistrate imposed a fine of N$500, though the law clearly states the maximum is N$100.

Where officials, authorised to take decisions themselves, instead insist on unnecessary litigation before overcrowded courts, they could face costs orders – judge

Faced with growing court backlogs, judges around the world are looking for new ways to reduce delays experienced by litigants. A new decision from Canada shows a judge warning that he would have been willing to order costs against officials who could have resolved a problem themselves, but who instead insisted that the court should do so.

Uganda’s president chastises chief justice over litigation outcome, orders action to rectify matters: profession divided over response

It took time to get going, but a letter by Uganda’s president Yoweri Museveni (pictured) to the country’s chief justice has sparked a row that shows no sign of blowing over. The letter complained about a court decision and urged that the CJ should take action in the wake of that decision. The letter, written in December 2023, dealt with a visit to Museveni by one of the parties to a court case, and castigated the CJ for the decision taken by a member of the judiciary in relation to the case. Though there was initially no public reaction from the CJ, the judiciary and other members of the profession, the matter blew up more than a month later, in a way that adds to growing concern about the health of judicial independence in Uganda.

Changes needed on how Zim police deal with vernacular witness statements – court

A controversial Zimbabwean high court judge, Munamato Mutevedzi, has strongly criticised the way police handle statements by potential witnesses. In a recent judgment, Mutevedzi discussed what he said was a matter of concern arising from ‘many criminal trials handled in the courts’.  He said witnesses would make statements in the vernacular. These were then translated into English by the police, with the witness signing the English version, even though he or she had no idea of what the English statement said or meant. This was a ‘misrepresentation’ that could amount to an ‘illegality’, Mutevedzi said. Sometimes, the police even signed the statement themselves, purporting to be the witness. He said the frequency with which witnesses came to court and claimed ‘misrepresentations’ of their statements to the police, had convinced the courts that ‘something untoward’ was happening during the recording of statements. Among his suggestions for dealing with the problem, Mutevedzi urged that police keep the original vernacular statements by witnesses, and that statements in the vernacular be translated by certified translators or interpreters.

Kenya’s judicial leaders issue strong re-statement of judicial independence

Judicial independence in Kenya has been under some serious threats recently, particularly from the president, William Ruto, and other members of government. Threats to judicial independence are a problem in other countries as well and the judiciary sometimes seems to take refuge in silence on this issue. However, this week, following a consultative meeting involving the heads of all the country’s courts, Kenya’s top judges issued a wide-ranging statement, dealing with judicial independence, as well as claims of corruption in the judiciary, and ways in which the courts could improve to offer a better service to the public.

Top court of Seychelles delivers major environmental law decision on state responsibility for pollution cleanup

An environmental law decision by the highest court in Seychelles has found that the state has a constitutional responsibility to clean up pollution of public places like rivers and beaches and that it might be liable for damages in some cases. The decision, likely to be hugely influential, was delivered by the court of appeal in response to a claim by private applicants that the state had not acted to deal with the serious E.coli pollution of a river. While the state argued that it was not constitutionally obliged to act in such a case, the court of appeal has declared that it does indeed have such an obligation, and that failure to act could lead to claims for damages.

Misreporting could add to tensions between judiciary, executive in Kenya

A recent high court decision in Kenya about the government’s failure to make a decision on whether to grant a citizenship application, has been incorrectly reported in some of the media in that country. The case concerned a man who lost his Kenyan citizenship when he took UK citizenship as a child. Now that the law has changed to allow dual citizenship he has applied for Kenyan citizenship. But after sitting with the matter for five years, the authorities have still not made their decision. The court held it did not have power itself to grant citizenship to the applicant, but gave the authorities six months to make their decision and inform the applicant of the outcome. However, reports in the media say the court ordered the grant of citizenship. It’s a serious mistake, particularly at this time when dangerous tension exists between Kenya’s judicial and executive arms.

WhatsApp message exchange constitutes a valid contract – Ugandan court

A new judgment from the commercial division of the high court in Uganda has held that an exchange on WhatsApp amounted to a binding contract. In this case, the contract was concluded between a surgeon and a hospital that had called him in to carry out two operations. The court held that their WhatsApp exchange amounted to an offer made and accepted, and that the hospital and its director were liable for the unpaid bills for the operations and follow-up visits and services.

Outcry in Uganda over early release of prisoners convicted of defilement

More than a dozen organisations concerned with the rights of women and children in Uganda have expressed dissatisfaction and concern about the decision to pardon and release 13 convicted prisoners. Their concern was based on the fact that 11 of those released were serving sentences for defilement (child rape), and the organisations questioned the commitment of the authorities to protecting girls and women from rape and sexual assault. They have urged more transparency around such decisions in the future and want the current list of pardoned convicts to be reviewed.

Traditional healer dupes woman into quitting her home; supreme court comes to the rescue

A desperate woman who says she was duped by a local Namibian traditional healer into selling him her house at a small fraction of its true value, has been helped by the supreme court to keep her case alive. Elizabeth Neis, a retired nurse, consulted the healer because she had landed in financial trouble. He agreed to help her, but told her that her house was inhabited by evil spirits who would cause the death of someone from her family if they stayed on in the house. He proposed that Neis should sell him her house and said he would buy her another place. He did not buy her another house however, and Neis, homeless and by now quite desperate, took the matter to the high court. There, the court granted an application brought by the traditional healer’s legal team for absolution from the instance, meaning that the case was essentially thrown out for not having been proved. But Neis appealed, and, in one of its final decisions of 2023, the supreme court held that Neis had been unduly influenced by the traditional healer and set aside the absolution order. This means that the case will continue before the high court, with the court now having to consider the supreme court findings on such issues as the mental state of Neis at the time and the undue influence over her by the traditional healer.

Where should a country’s leader sleep at night?

Should Zambia’s president live in his own home? It’s a question that was raised in the constitutional court recently by Sean Tembo, head of a Zambian opposition party. The seven judges of that court had been asked by Tembo to find that the country’s president, Hakainde Hichilema, should have been living in state house instead of his own home. Tembo cited the cost and inconvenience to the public of the daily presidential cavalcade from his private home to his offices in state house, and asked the court to find that the expense was unjustified and unconstitutional.

New challenges to judicial independence in Uganda

Indications are growing of a worrying trend to weaken judicial independence in Uganda. This week, the Ugandan judiciary issued a statement entitled ‘Interference of court processes undermines judicial independence’ in which it expressed misgivings about a government district commissioner who had been ‘meddling in court matters’. But just last month, the country’s president, Yoweri Museveni, ‘meddled’ even more dramatically, writing a letter to the chief justice, saying the CJ should investigate a controversial judicial decision authorising the auctioning of the national mosque, even implying the CJ should ensure the decision was overturned.

Landmark Gaza case at the International Court of Justice

No conflict has divided world opinion like the war now being waged in Gaza. But supporters of both sides have been caught up in the drama of this week’s historic sessions of the International Court of Justice.

Tensions high in Kenya as President attacks judiciary

The health of judicial independence in Kenya has come under scrutiny since the start of this new year. That’s ever since the president, William Ruto, launched a reinvigorated war of words on the judiciary. He called the judiciary ‘corrupt’ and threatened to ignore court orders that delayed his planned public development projects. As the row continues, the CJ has urged her judicial colleagues to continue doing their work as usual and promised her support to them. The judiciary has also been given backing from both local and international supporters of the courts and judicial independence. Among others, members of the legal profession planned to protest at the supreme court to show their support for the judiciary.

Eswatini’s highest court reverses itself; holds customary marriages are ‘lawful’

It’s rare for any country’s apex court to reverse an earlier decision it had made and say it was wrongly decided. But Eswatini’s supreme court has recently done just that. In fact, it went even further, and declared that elements of two of its own decisions needed to be set aside as made in error. The key issue in the case was the status of marriages in Eswatini, made in terms of local customary law. Both the two earlier decisions had upheld the consequences of a 1902 colonial law, and concluded that such marriages were not ‘lawful’. The particular result of that finding in the new case was to question the jurisdiction of the master of the high court to deal with the deceased estate of someone married under customary law.

Crucial case on judicial independence unfolds in Seychelles

While many readers were enjoying a well-deserved year-end break, the apex court of Seychelles was deciding another phase in what appears to be a crucial case on judicial independence. Three petitioners – the Seychelles human rights commission, ombudsman and bar association – are jointly challenging the lawfulness of a controversial constitutional amendment, saying it undermined the rule of law. But before the main case was argued, the petitioners asked the judges hearing the matter to recuse themselves. That’s because an official government statement, issued at the time the amendment was ratified, indicated that ‘the judiciary’ had helped finalise the amendment. The notice particularly named the supreme court and the appeal court. Since the judges hearing the challenge were thus included, they should step down, said the petitioners. In addition, the chief justice was believed to have received land from the state at a price lower than its true value, and a reasonable person might thus question the CJ’s ability to adjudicate impartially in matters involving the interests of government. When the supreme court judges hearing the matter refused to recuse themselves, or to grant leave to appeal, the petitioners turned to the apex court of Seychelles. In record time, the appeal court has now given its decision.

Kenyan magistrate loses court battle against judge co-contender for top job at law body

Kenyan magistrate Derrick Kuto made headlines in December 2021 when he became the first magistrate to head the Kenya Magistrates and Judges Association. After outvoting high court judge Patrick Otieno, by 290 votes to 113, Kuto took over as president of the association. The term of office is for two years, renewable once. Kuto has clearly expected a second two years in office, but his bid hasn’t been straightforward. It has taken a detour through the high court’s constitutional and human rights division, where the judge who heard the dispute, Enock Mwita, has now delivered a judgment dismissing Kuto’s petition.

Power of attorney: does it give non-lawyers the right to litigate?

Complaints about ‘fake lawyers’ have been surfacing in several African jurisdictions. But what about people who don’t even pretend to be lawyers? What if they claim instead that even though aren’t legally qualified, they have the right to represent a ‘client’ in court, via a power of attorney?  A new Zambian judgment makes clear that the courts in that country at least, will take a tough line should they be faced with such a claim.

Nasty Supreme Court surprise for Namibian man who hid properties from ex-wife to avoid child maintenance increases

Namibia’s supreme court has given a scathing judgment in the case of a man who resorted to fraud or attempted fraud to hide his new property acquisitions so his ex-wife couldn’t access them for child maintenance. Instead, the properties were bought in the name of his then-fiancée so that they would appear not to belong to him. The judges have held that such an agreement was against public policy, ‘morally reprehensible’ and thus unenforceable. The man, who has since walked out on his fiancée and married someone else, was trying to get the properties back from his fiancée now that their relationship had ended. The supreme court ordered that he should get 60% of the two properties and his former fiancée, 40%. The judges also approved the high court’s order that the former fiancée be paid N$5 000 for breach of his promise to marry her.

Zambia's constitutional court upholds judge's dismissal

Five judges of Zambia’s constitutional court have rejected an application by a former member of the high court bench, Joseph Banda, challenging the decision of the country’s president, Hakainde Hichilema, to remove him from office in May 2022. The action against Banda is part of the current government’s declared push to fight corruption. However, in addition to upholding the decision to remove Banda, the judgment also shows that the process of holding Zambian judges to account on matters of misconduct is not operating as it should.

Successful human trafficking prosecution could see Namibia’s ratings improve

Namibia’s high court has convicted four people in relation to the trafficking of two young girls, one of them from Angola. Their convictions include infringement of immigration laws, not sending children to school, kidnapping, common assault and rape. In its 2022 global report on trafficking in persons, the US state department rated Namibia as Tier 1 because of its continued commitment to deal with trafficking. However, Namibia was downgraded to Tier 2 in the 2023 report, because of several problems like ‘inappropriately’ penalizing trafficking victims by imprisoning or deporting them, for offences ‘solely committed as a direct result of being trafficked.’ The investigation and prosecution in this new case will likely be among the factors that the US state department considers when ranking Namibia in its next report.

Explained: why the UK’s highest court declared Rwanda agreement unlawful

A combination of factors led the UK’s apex supreme court to hold that the government’s deal with Rwanda wasn’t lawful. Among them was Rwanda’s poor human rights record, and the Rwandan judiciary’s lack of independence. The deal, outsourcing the management of asylum-seekers to Kigali, is a key element of the UK government’s policy. But it has also been hotly contested, both in political debate and in the UK courts. Initially, the divisional court dismissed a challenge to the deal, but that approach has now been twice rejected, first by the court of appeal and more recently, by the UK’s supreme court. Here’s what the top court found.

Kenyan lawyer must personally repay funds received from ‘corrupt deal’

A prominent Kenyan lawyer has been ordered personally to pay Kshs10 million to the country’s Ethics and Anti-Corruption Commission (EACC). In a decision handed down last week, high court judge Esther Maina said Joseph Owino Kojwando had acted to conceal the source of funds and that he was not entitled to keep any part of the money as ‘instruction fees’, since this would unjustly benefit him. The case dealt with land acquired by the then city council of Nairobi to use as a cemetery, in a deal that has since been held by several high court judges to have been fraudulent. According to the EACC, Kojwando was paid Kshs10 million as part of the cemetery deal. The judge also ordered that Kojwando pay the legal costs of the case plus interest at 12% from the date he received the money until it’s paid, in full, to the EACC

Major citizenship strides for stateless in Kenya, Tanzania, Republic of Congo

As the UNHCR marks another year of working towards a world where every person has a nationality and all the rights that go along with it, important results have been reported during 2023 so far. Here we take a look at three of the top achievements in Africa, as listed by the UN’s refugee agency. The agency is behind a 10 year programme, aimed at ending statelessness in every part of the world.

Passionate about justice for ‘invisible’ people

Many readers will have seen reports quoting Thandeka Chauke, a staffer with Lawyers for Human Rights in South Africa, and one of the forces behind efforts to address statelessness in Southern Africa. We wanted to know more about her and her work, and to ask for a heads-up about litigation in this field that could be important for the region.

Did Malawi’s ‘hyena’ have a fair trial – or was he ‘taking a hit’ for embarrassing local cultural practices?

The story of Eric Aniva and his extraordinary occupation made world headlines after a BBC interview in July 2016. He said he was a ‘hyena’, someone whose job, in the culture of southern Malawi, involved having sex with girls at puberty and with new widows, as a ritual sexual cleansing. Soon after that interview was published, and in the wake of a public outcry in Malawi and elsewhere, he was arrested, charged, convicted and then sentenced to two years hard labour. But now a senior legal academic is questioning whether Aniva had a fair trial, or whether he simply took a hit for local cultural practices that embarrass Malawi.

Namibia’s Fishrot scandal: fishing crew sue over non-payment for court-ordered dismissal compensation

Until recently, the public story of Namibia’s massive corruption scandal, nicknamed ‘Fishrot’, has focused on legal action brought against the big-name role-players. The scam involves a major Icelandic company as well as top Namibians, in a sleazy operation featuring kickbacks paid for procuring fishing quotas in Namibian waters. With prominent politicians including two former Namibian cabinet members, along with wealthy business people among the accused, the vulnerable victims of one aspect of the scandal were often overlooked. But now they are fighting back. One group of men who worked on a fishing vessel that was part of the scandal were suddenly dismissed from their jobs at the end of 2018. When they challenged their dismissal before the labour commissioner, they won an award declaring that they were unlawfully sacked and ordering that they be paid compensation. Despite many efforts, however, they have never been paid. Now they are headed to court with a personal claim against an Icelandic official allegedly involved in the scandal, and against one of the companies similarly impugned.

Recusal in high court matter follows letter, ‘vitriolic outbursts’, ‘intensive negative energy’

The question of when judges should recuse themselves is a fraught one in many jurisdictions. In a new decision from the high court in Mombasa a judge has decided to recuse himself after a letter of complaint was delivered to his chambers. The judge even comments that the applicant in the case appeared to be ‘stalking’ him and had sent yet another letter. Yet despite these inappropriate actions by one of the parties, the judge felt he had to stand down. It’s the kind of situation where readers could well wonder what they would have done in the circumstances.

Top court gives strong support to ‘wellness’ programmes and prioritising mental health in Zambia

Zambia’s top court has strongly urged the government to make support for mental health a priority. In a case brought by disability activists, testing whether the country’s legal regime for people with mental illness was constitutional, the judges found that though the provisions of Zambia’s legislation challenged in the case were constitutional, other aspects weren’t adequate. The judges said the government should provide the same care and treatment to patients with mental illness as it does in relation to people suffering from other kinds of sickness. But this was not the case, and Zambia’s public mental health institutions provided ‘very poor medical services’. ‘This must change,’ the court said.

Mauritius supreme court upholds gay rights, sets aside ‘discriminatory’ penal code provision

The supreme court of Mauritius has delivered a landmark judgment that effectively decriminalizes gay sex. The judges declared that a section of the island state’s penal code is unconstitutional in that it violates the right of gay men not to be discriminated against. Their decision has been widely welcomed, particularly since it comes at a time when many East African states are promulgating extraordinarily harsh legislative measures against gay people, some even proposing the death penalty for certain related ‘crimes’.

Zambian human rights lawyers support chief justice: ‘constitutional rights also apply to gay people’

A growing number of human rights lawyers in Zambia have come out in support of their country’s chief justice, Mumba Malila. He has caused consternation in some quarters because of his recent remarks, in response to a question on a public occasion, that gay people do not lose their humanity because of their sexuality. The lawyers say that the CJ was stating the current position on constitutional rights in Zambia, and that this is the basis on which ‘rights are celebrated and enjoyed everywhere else in the world.’

Tanzania’s high court continues ‘hands off’ approach to parliament, despite ‘inadequate’ timetable

Three judges of Tanzania’s high court have dismissed a petition to set aside an agreement between that country and Dubai over management of Tanzania’s ports. It’s a dispute that has strongly divided people in Tanzania, and the country’s authorities have detained or threatened at least 22 people who criticised the national assembly’s ratification of the plan, with a lawyer among three people now threatened with prosecution for treason, a crime that carries the death penalty. A second petition against the port management deal, based on similar grounds to the first, but brought by other parties, was struck out by the court last week on the basis that the matter had now been decided.

Appeals against inquiry findings by judges inquiring into Sierra Leone’s rampant corruption

Two recent judgments from Sierra Leone, delivered on the same day, though they produced different outcomes, remind readers of the role played by judges in that country who headed inquiries into allegations of corruption. The current appeals were brought by top officials who complained about the findings made against them by the judges who headed two inquiries. One inquiry dated from 2018 under Justice Bankole Thompson, and the other, set up in the same year, was presided over by Justice Biobele Georgewill from Nigeria as the chair and sole commissioner. Both had to examine the assets of top state officials from Sierra Leone between 2007 and 2018 to see whether these assets were acquired lawfully and whether the officials had a standard of living that was ‘commensurate to their official emoluments’. This was part of a major effort at the time to deal with corruption in Sierra Leone, a country that has consistently been listed as one of the most corrupt in the world.

Crucial African Court decision follows Ivory Coast environmental disaster

Judges and lawyers in increasing numbers of African countries are dealing with cases involving environmental or climate change issues. A significant new decision by the African Court on Human and Peoples’ Rights will give those who work in these fields some important additional jurisprudence. The court was dealing with a case, sensational at the time, concerning a load of highly toxic waste, off loaded in Abidjan, Ivory Coast in 2006. After the waste was dumped in various sites around Abidjan, 17 people died from toxic gas inhalations, the health of an estimated 100 000 others were affected to various degrees, while environmental experts said there had also been severe groundwater contamination. The applicants, human rights organisations in Ivory Coast, asked the African court to find that rights were violated by the government, and to order a series of reparations. Though the government of Ivory Coast protested about the entire application, the court has now made a slew of findings about the state’s violation of rights in relation to the scandal and has issued several orders against the state. They include an order giving Ivory Coast a year to implement legislative reforms that will enforce a ban on the import and dumping of hazardous waste in compliance with the international conventions to which the state is a party.

Zambia’s constitutional court strongly backs judicial independence

Zambia’s constitutional court has found parliament in breach of the constitution by not passing legislation to ensure the full financial independence of the judiciary and that it is adequately funded. In a decision strongly underlining the principle of judicial independence, the court has ordered that until these laws have been passed and put into effect, the minister for finance should report to parliament every six months on what has been done to ensure financial independence of the judiciary. Ironically, the challenge was brought by Zambian counsel, John Sangwa. In March 2020, the chief court registrar informed all the country’s judges and magistrates that Sangwa was no longer allowed to appear in court because of a ‘malpractice complaint’ filed against him by the lawyers’ association of Zambia. This ‘complaint’ followed a ‘denunciation’ of Sangwa by several judges after Sangwa was critical of certain new judicial appointments. He had also criticised the government when the former president, Edgar Lungu, announced he would stand again for the presidency, even though, in Sangwa’s view, he was ineligible.

New deal for awaiting trial prisoners in Namibia

Namibia’s highest court has delivered a judgment that could see a new era for awaiting trial prisoners in that country. Most fundamentally, it has struck down, as unconstitutional, the definition of the word ‘offender’ which had previously included awaiting trial prisoners. The court said that to call people ‘offenders’ when they hadn’t been convicted, struck at the heart of the constitutionally guaranteed presumption of innocence, because it suggested they had already been found guilty. The court also held certain other practices in relation to awaiting trial prisoners were unconstitutional.

Church obtained land fraudulently, must give it back, with damages, court finds

A high-profile Ugandan church and one of its senior pastors have been found to have obtained land by fraud. The high court in Kampala, which made that finding, has ordered that the church must quit the land that was fraudulently obtained, while the plots must be returned and the official title and registration deeds changed to reflect that order. In addition, the church and the pastor must pay a damages bill of UGX50m plus interest and legal costs.

Time to rethink Zambia’s law on ‘insulting language’?

An outspoken Zambian magistrate has criticised the country’s law against the use of insulting language, saying some people saw mere criticism as insults, and that the law ‘when misapplied’ could result in an authoritarian and controlling society. It could cause ‘contemporary intolerance’ and ‘when not well prosecuted’, represented ‘an intense desire to gag uncomfortable voices of dissent’. He was giving judgment in a case where the accused was charged with naming someone as a witch and with using insulting language. The magistrate said it was the actions taken in consequence of a belief in witchcraft that are a problem, rather than the belief itself – but that this belief ‘has been deeply entrenched in the Zambian psyche’. He said it increasingly seemed that ‘old age is synonymous with being a witch in many communities in Zambia’, and that many elderly men and women were forced to leave their ancestral villages because of being labelled witches.

Bank not liable for loss after clerk, mandated to operate a client’s accounts, steals money

Should banks allow staff to be given mandates so that they may operate the accounts of customers? It’s a question that has to be asked in the wake of a new decision by Namibia’s supreme court. The apex court had to consider the bank’s liability for funds misappropriated by a clerk who had been given a mandate by a customer to operate the customer’s accounts.

Court reviews bail conditions for Malawi’s deputy president, facing financial charges

Malawi’s deputy president, Saulos Chilima, is facing charges in the financial crimes division of the high court. He was granted bail on the day of his arrest in November 2022, when the magistrate set conditions that Chilima has observed since then. This month, however, the high court had to consider an application for certain bail conditions to be changed. During his judgment on the issue, high court judge Redson Kapindu had to deal with some strange moments from argument during the hearing on bail. Like Chilima’s counsel quoting the case of United States v Donald Trump, dealing with the former US president’s release on bail without any conditions. It sounded on point, but since no-one could find a copy of the judgment text, the Malawian court could put no weight on it.

Uganda’s anti-gay laws: what will East African Court of Justice say?

The lawfulness of Uganda’s ultra-punitive new legislation on homosexuality has been challenged by two applications filed at the East African Court of Justice. The first was filed in June by controversial Ugandan lawyer, Male Mabirizi. The second just made the court deadline when it was filed by a group of individuals and organisations. Both applications ask the court to declare the law null and void. The new challenge will argue that the principles of good governance were infringed because of an alleged absence of adequate public participation as well as bias and partiality on the part of the speaker of Uganda’s parliament. Further, these challengers say, enacting the law contravened the principles of good governance, including democracy, the rule of law, social justice, and the protection of human rights, in accordance with the African Charter on Human and Peoples’ Rights as well as provisions of the treaty that set up the East African Community.

Court orders reporting shroud over upcoming divorce hearing

Uganda’s high court has been wrestling with the difficult question of how to balance three sometimes competing constitutional principles when it comes to reporting on divorce cases: the right to free expression claimed by the media, the parties’ privacy rights and the general principle that courts should be ‘open’ and the justice they dispense should be seen to be done. The need for a judicial balancing act was triggered when an advocate appearing for one of the parties in a divorce due to be heard by the high court, brought an unusual application. He asked the court to hear an ‘anonymous divorce’ in which the parties would be referred to only by ‘special pseudonyms’. The advocate said especially sensitive information would emerge from the case relating to the mental health of at least one of the parties. There was also a young child who should be protected from publication of the details of the divorce. Further, those involved in the ‘narration supporting the proposed divorce’ included current and/or retired judges who could be affected in their work by media reports of the petition. The judge who heard the application has now agreed to the use of pseudonyms, along with other strict conditions that bar the media from covering the case.

Judgment upholds public ‘right to know’: Kenyan court orders government minister to provide information

Maverick Kenyan human rights litigator, Okiya Omtatah, has done it again. The engineer-turned defender of the rule of law brought a challenge related to a government decision exempting the instruments used in a major merger from the Stamp Duty Act. When Omtatah asked the reasons for the exemption, he was met with silence. So, he challenged that silence in the constitutional and human rights division of the high court. Now, via a judgment that reaffirms key constitutional values, presiding judge Lawrence Mugambi says the reasons should have been provided and has ordered the government to do so.

Tortured Ugandan wins award against intelligence operatives

A year after Human Rights Watch issued a strongly-worded report on torture and illegal detention carried out by security officers in Uganda, a court in that country has awarded substantial damages to a man who was held and tortured for 17 months by the country’s Internal Security Organisation (ISO). The court also ordered that the damages, and legal costs, be paid by the members of the ISO involved.

Judge orders damages against Namibia’s police who detained child overnight for no good reason

The conduct of Namibia’s police is under the spotlight once more, thanks to a high court case from which it emerged that they detained a group of people and held them overnight although they did not suspect them of any crime. Among those detained was a nine-year-old boy. The boy was travelling with a group of his relatives, one of whom was thought by the police to be a suspect in a housebreaking case. Police ordered that everyone in the car had to go the police station where they were held overnight. This included the child. When the boy and his father later sued the police, the court held that no attempt was made to contact the child’s family to inform them of his whereabouts. The judge also held that the child had been unlawfully detained and awarded damages to the boy as well as to his father, who had spent an anguished night not knowing what had happened to his child.

Tanzania’s high court says constitution adequately protects Chief Justice

A Tanzanian court has found there is no need to seek changes to that country’s constitution which says the president may dismiss the Chief Justice. The court says this does not infringe the independence of the judiciary, and that the procedure laid down for the dismissal of judges of the appeal court would apply, since the CJ is a member of that court. The court was responding to a petition which said giving the president the power to dismiss the CJ was wrong since it undermined the principle that the three arms of state were equal and independent.

Child marriage and the law: challenges, cautions and alarming statistics from new report

Between them, Tanzania and Mozambique are estimated to have more than 10 million child brides. These and other alarming statistics emerge from a new report by Equality Now. The report examines the prevailing situation of child marriage in eastern and southern Africa, including the legal frameworks and potential gaps in legislation. Some of its conclusions are particularly important to note for judges and lawyers who may be faced with cases of intended or concluded child marriage.

Supreme court rules on Nigerian attorney’s struggles to practice in Namibia

Imafon Fiona Akpabio is a Nigerian lawyer. Living legally in Namibia, she wants to practice there – but she’s been having problems getting her qualifications recognised. Eventually her conflict on the issue with the relevant authorities – the minister of justice and the board for legal education – landed up in Namibia’s apex court, and three judges of that court have now given their decision.

Refugees could lose host country’s protection if they visit ‘home’

The issue of refugees going ‘home’ for a visit and their asylum status then being revoked in the host country isn’t a common problem for African courts. At least not yet, judging by the absence of reported cases dealing with that question. But it’s very much a problem in some other jurisdictions as Turkish refugee to Canada, Ismail Kaya, for example, has discovered.

‘Once a refugee, always a refugee’: Uganda’s high court disagrees with passport control officer’s views

Uganda is Africa’s most generous refugee host and more than 1.5 million refugees and asylum seekers have been registered there. But despite this open-arms approach, there seem to be problems with local officials discriminating against refugees, as the case of Abucar v Attorney General illustrates. It was a matter brought by a group of plaintiffs who say they have met the requirements for citizenship, but that a senor passport official had issued a circular that effectively cancelled their right to citizenship status, thus making them permanent refugees.

Judges need a working knowledge of social media to handle certain refugee cases

When would-be refugees formally apply for asylum, it is standard in some countries for the authorities to examine the applicant’s social media record. There are possible benefits – and possible dangers – in doing so, and a new working paper from the International Association of Refugee and Migration Judges highlights some of these.

Dreadlocks may no longer prevent children from admission to Malawi’s schools – high court

It has taken years to achieve, but the children of Malawi’s Rastafarian community may no longer be barred from going to state schools because of their dreadlocks. The new decision to this effect, written by high court judge Zione Ntaba, follows years of discrimination against children who have had to choose between obtaining education, or acting in a way that is contrary to their faith by cutting their hair. The judge found that a number of the children’s constitutional rights were infringed by a government policy – whether written or not – that learners would not be allowed to attend classes wearing dreadlocks.

Diplomatic immunity invoked in spat over collapsed Kampala wall

From time to time, diplomats and other representatives of foreign governments become involved in legal disputes, both criminal and civil, in their host countries. At stake in all such cases is the important question of diplomatic or sovereign immunity, a principle that generally shields foreign diplomats and governments from legal action in their host country. The latest reported African judgment in which this issue has been raised comes from Uganda where the high court had been poised to hear a dispute over a collapsed neighbour’s wall, allegedly the result of repairs carried out by the British High Commission in Kampala to its own property. Now, however, thanks to a high court decision made last week, the question has become whether the action will be heard at all, rather than whose version of events is correct and whether the British High Commission must pay damages to its neighbour.

Seychelles and human trafficking: sinister new trend emerges from appeal

Seychelles is regarded as a state that is doing relatively well on the question of combatting human trafficking. It’s on the US state department’s global assessment register as at Tier 2: not fully meeting the minimum standards for the elimination of trafficking, but making significant efforts to do so. These efforts include establishing the country’s first anti-trafficking hotline and establishing a trafficking-specific shelter. Two recent appeal judgments, however, give a sense of the difficulty of the work that lies ahead. Both involved a worrying new development in human trafficking: the use of local men as ‘drug guarantees’. These are people trafficked to stand as hostages to ensure that money owed to drug suppliers will be paid.

Namibia’s top court on recognising foreign same-sex marriage: what did it actually say?

In a decision with wide-reaching implications for the country’s gay and lesbian community, Namibia’s apex supreme court has held that same-sex marriages, properly concluded in countries where such unions are permitted, must be regarded as valid in Namibia. The new decision, made despite the fact that same-sex marriage is not allowed in this Southern African nation, brings to an end long-running litigation involving two couples whose relationship had been refused recognition.

Court orders more learning space for law students

Desperate law students at the University of Zambia have taken the council of the university to court: the students were distressed about the shortage of lecture halls and study space on campus due to an unprecedented number of students signed up after the government changed its policy on admissions. The court heard of students facing ‘near stampede circumstances’ in trying to attend lectures, with jostling for seats and many standing outside the lecture rooms.

‘No judgment attains perfection’: Tanzania's top court, considering major wildlife crime

Two men, found guilty of being in possession of almost two tons of elephant tusks, have just lost a third challenge in their case. The matter was brought before Tanzania’s court of appeal for a second time, with counsel urging the court, on review, to change its earlier decision on sentence. But the judges weren’t persuaded. They called the review a disguised appeal against sentence. The accused claimed the original appeal decision showed a ‘manifest error’ resulting in a miscarriage of justice. Not so, said the judges. No judgment could be perfect, but the grounds the accused raised were fundamental and would require reconsidering the entire decision, something not permitted in a review.

Lesotho's CJ bemoans police impunity & its effect on rule of law

The frustration of Lesotho’s Chief Justice Sakoane Sakoane at continuing police brutality against ordinary citizens of that country is plainly evident in a new decision. Just as disturbing for him is the fact that police mostly commit these acts with impunity – seldom are they investigated and prosecuted – and the attorney general often fights against complainants if they ever bring a claim for damages, even in the face of completed medical reports that put the matter beyond doubt. The CJ found the case of Kabelo Khabanyane against the police particularly egregious since Khabanyane is an elderly man who has a visual impairment. Thus, he was highly vulnerable to police assault. In addition, their assaults against him came at dawn, after police found him sleeping.

Unconstitutional for Uganda’s tax authority to demand banks supply sensitive information on every single client

In March 2018, the Commissioner General of the Ugandan Revenue Authority (URA) sent notices to Uganda’s banks requiring them to supply key information about every single client. The banks in turn challenged whether this move was lawful, and the country’s constitutional court has now declared that it was not.

New Kenyan judgment shows difficulties for courts when adjudicating environmental matters

A cohort of judges has been carefully trained by Jifa to deal with environmental and climate change cases. But what if those who bring petitions to court, even those who may have a genuine case, don’t present evidence that measures up? The latest decision from Kenya’s environment and land court illustrates the problem.

Magistrate wins defamation case against accused

A Namibian magistrate has been awarded damages of N$20 000 after an accused, appearing in court before her, handed up a document in which he defamed her. Among other claims, the document, hand-written by the accused, said she was paid by the family of the complainant in the criminal case before her. The magistrate then brought a defamation action in the high court. Now she has won her case and the judge who heard the matter ordered that if the man who defamed her didn’t make her a written apology, the damages award would jump to N$30 000.

Funeral business loses bid to enforce contract, claim damages, from Zim mining group

Doves Funeral Assurance hoped to persuade the high court in Harare that it had a valid agreement with Zimplats to provide an employee funeral scheme, and that after Zimplats cancelled, it should pay the funeral company more than US $4m in damages for lost profit. But Judge Amy Tsanga wasn’t convinced.

Overhaul essential elements of Malawi’s adoption laws, high court urges

The Malawian judge who some years ago authorised singer Madonna’s adoption of two girls has now delivered a thorough-going critique of the legislation surrounding adoptions in that country, with strong recommendations for parliament about changes that should be made urgently, to protect the many vulnerable babies who need new homes and families through the adoption process.

Former payment officer sued after Namibian national student funds go missing

When money in a Namibian national student assistant fund went missing, siphoned off into the bank accounts of someone who was not registered as a beneficiary of the fund, alarm bells rang. An internal investigation pointed to a payments officer being responsible for the fraud, but he resigned before a disciplinary hearing could be finalised. The fund then sued the former employee and this case has begun in the high court, Namibia. However, when the fund closed its case after two witnesses had given evidence, the former employee applied for absolution from the instance – but the judge, Boas Usiku, wasn’t persuaded.

Huge corruption challenge for sub-Saharan Africa - latest Transparency International index

The 2022 report from Transparency International, ranking the world’s states according to their perceived levels of corruption, has a few surprises. This latest index from TI lists Denmark as the least corrupt country in the world – but several states in Western Europe have scored markedly worse than before. In Sub-Saharan Africa, Seychelles once again tops the score-sheet for the region, while Somalia scores the lowest not just in the region, but in the world. Apart from its index, the report also discusses the role that factors such as conflict play in a country’s level of corruption.

Death penalty confirmed by Zambia’s court of appeal days before capital punishment scrapped. What happens now?

Zambia’s court of appeal has dealt with a sensational murder and arson case in a recent decision that highlights two problems. First, the court’s judgment of 16 December 2022 upheld the death penalty imposed on a woman accused of murdering her gym instructor boyfriend by setting him alight. Just days after the appeal court’s decision, however, Zambia’s President Hakainde Hichilema finally abolished the death penalty, leading the justice minister to comment that from now on, no court could impose the death penalty. The new appeal judgment thus highlights the problem of death row convicts whose sentences must be reconsidered now that the death penalty has been scrapped. The second issue relates to when a mandatory life sentence may be imposed for arson. In this case, the appeal court used the opportunity to explain to other courts the circumstances under which such a sentence may be imposed. The appeal court said this was the first time an appellate court had interpreted this section, and it had thus deliberately analysed the provisions to provide guidance to trial courts for the future. Apart from these technical issues, the judgment also laid to rest the claim of the woman convicted of murder in the case – namely, that her boyfriend had set himself alight, angry over her refusal to end a pregnancy that medical tests subsequently showed did not exist.

Magistrate stages obscene event as part of rape case; high court orders a retrial

A magistrate in Malawi, who presided over a sordid sexual scene in his office, has been taken to task by a high court judge. Judge Zione Ntaba ordered that the rape trial being heard by the magistrate, and of which the office scene had ostensibly formed part, should start again under a different presiding officer. The behaviour of the initial magistrate has also been reported to the judicial service commission. Judge Ntaba used the opportunity presented by the case she was reviewing, to spell out best practice in relation to gender stereotypes, judicial bias and other key issues.

Maseko killed by ‘demented enemies of justice’, independent inquiry demanded

A flood of shocked, sometimes angry, sometimes despairing, often challenging, responses has followed the murder of Eswatini human rights lawyer, Thulani Maseko, last weekend. From embassies to human rights defenders in remote parts of the continent, all have paid tribute to this extraordinary man and his dedication to the task of ensuring justice and democracy for the people of his home country.

Claiming potential conflict, Malawi Law Society wants its members barred from joining specialist law bodies

Malawi’s legal community is braced for a major court battle between the Malawi Law Society (MLS) – it bills itself as ‘the voice of the legal profession in Malawi’ – and two other professional legal bodies, the Corporate Lawyers Association (CLA) and the Commercial Bar Association (CBA). This follows an attempt by the MLS to have the court prevent MLS members from joining the ‘objects and business’ of the CLA and the CBA. The proposed ban, which would stop all Malawi’s registered lawyers from joining the two specialist legal bodies, must now be fully ventilated in court as a constitutional issue since it could affect the constitutionally guaranteed right to freedom of association.

Court says accused in double witchcraft murder a ‘suitable candidate’ for death penalty, imposes lesser sentence because of sincere beliefs

The high court in Zimbabwe has been grappling with the question of how to deal with witchcraft-related murder, and the role that such beliefs should play in a trial. It’s an on-going issue for courts in a number of African countries, and in this case, the presiding judge, Lucy Mungwari, looked at a variety of approaches by other courts. The case she was considering was particularly horrific, as the accused murdered his own father and his aunt, both of whom were well over 80 years old.

Tough sentences follow terrorism convictions by Tanzanian court

Six men, including three from the same family, have been convicted of terrorism by the high court in Tanzania and sentenced to a total of 50 years each. The prosecution said the six were members of a larger group that had met in the Tunduru district, as part of a conspiracy to start a religious war linked to Al-Shabaab. They planned to convince young people to join in the overthrow of the government and establish an Islamic state. The presiding judge, Yose Mlambina, heard argument that the offence was a transnational matter, with potential to harm Tanzania and its neighbours. Passing sentence, he said terrorism was ‘a complex national and international plague.’ For Tanzania, troubled by continuing terrorism linked to Al-Shabaab, this new decision is a significant moment in efforts to halt the training of young people for terrorist activity.

New journal on democracy, governance and human rights for Zimbabwe

A new, scholarly journal focused on democracy, governance and human rights in Zimbabwe, has just published its first edition online. Coordinator of the journal, Musa Kika, says the journal is partly a response to Zimbabwe’s lack of scholarly publications dealing with legal and other issues, and that this is a lack that the judiciary itself has commented on. The first edition, featuring five articles focused on elections, election practices and disputes, is particularly timely given that a general election is expected to be held in Zimbabwe by mid-year.

Free speech gets a huge boost in Uganda

A key freedom of expression law, used in Uganda to arrest, detain and hamper the work of journalists, along with other writers and political activists, has been declared unconstitutional by that country’s constitutional court. Five judges held that the law, dealing with ‘computer misuse’, imposed curbs that were incompatible with the constitution. The court said that prosecuting people for the content of their communication amounted to a violation of what ‘falls within guarantees of freedom of expression in a democratic society’.

Judges applaud African states’ efforts in hosting refugees, suggest much work remains to be done

At a recent meeting in Arusha, Tanzania, the Africa Chapter of the International Association of Refugee and Migration Judges (IARMJ) applauded the solidarity and efforts of many African states in hosting refugees. Their work in finding collective solutions for the situation of refugees, sometimes under the auspices of the African Union, was also appreciated. The judges have now issued a formal declaration, covering a wide range of issues related to refugees, asylum-seekers and stateless people.

Circumcised without their parents’ consent: now two young boys win judgment for damages

Two young boys, circumcised without their parents’ knowledge or consent, and who later developed complications, have won their high court action against Population Services International (PSI) Malawi, and will now be entitled to damages. The two boys claimed for assault and battery as well as pain and suffering, and they want damages for ‘deformity’ and violation of their right to personal security as well as bodily integrity. The judge of the Malawi high court who heard the matter, Dingiswayo Madise, said that PSI had abused the legal process and should be ‘ashamed’ that it defended the case, rather than settling the matter out of court.

Uganda’s constitutional court finds 16 high court two-year, acting appointments unconstitutional

When Uganda’s judicial service commission (JSC) announced earlier this year, that 16 high court judges had been appointed – for a two-year acting stint – it prompted two legal academics to bring a petition challenging the constitutionality of these appointments. Now the country’s constitutional court has given its decision: by four to one, the court ruled that the appointments were unconstitutional, and gave the JSC six months to rectify the situation.

Health activist loses court battle for complete tobacco ban in Kenya

A spirited fight for tobacco to be completely banned on tobacco in Kenya has gone up in smoke: the constitutional and human rights division of the high court has refused a petition brought to overturn the existing laws controlling the production and sale of tobacco in Kenya. Instead, the unsuccessful litigant wanted tobacco to be outlawed completely to safeguard the health of that country’s people. Ibrahim Mahmoud Ibrahim, who brought the application, argued that tobacco actively contributed to lowering the standard of health of Kenyans, since it killed up to half of its users and was the world’s single biggest cause of preventable death.

Crucial role for Africa's courts in preventing electoral violence

As judicial interest grows in the role that judges and courts should play relative to elections, the president of the African Court on Human and Peoples’ Rights has addressed a conference of the International Commission of Jurists (ICJ), Kenya on the issue. Among other questions, Justice Imani Aboud discussed the contribution that courts can make, through their work as arbiters of the law, that would help assure voters, and politicians, that elections are fair, and thus help reduce the likelihood of violence related to polls.

Judge from Botswana fights off transfer, takes CJ to court

A most extraordinary story emerged this week of an attempt by the Chief Justice of Botswana, Terrence Rannowane, to transfer a senior judge from the high court in Gaborone to Francistown, and of the judge’s response. The CJ is alleged to have justified the sudden transfer on the basis that a judge in Francistown, recently appointed to head the country’s independent electoral commission, needed to be based in Gaborone. The judge sought to be moved, Gabriel Komboni, now plans a judicial review of the CJ’s transfer decision. In the meantime, he has been granted an urgent interim interdict stopping the CJ’s attempted transfer of the case from one high court seat to another. The order further declared that the CJ’s appointment of three named judges to hear part of this dispute, ‘undermines judicial independence’ and is inconsistent with the constitution.

Uganda's appeal court in new approach to division of marital property on divorce

Uganda’s Court of Appeal has handed down a decision that could prove a turning point on the question of how marital property should be divided on divorce. The judges seem to have rejected what some have seen as a growing tendency in divorce matters, namely granting women half share of a property. Instead, these judges say equality doesn’t automatically mean equity, and that a claim for half of the property must be backed by facts if it is to succeed. In this case, they said, the facts did not warrant an equal split and the wife should get just 20% of the property.

Colonial era police powers to effect indiscriminate mass arrests in Malawi declared unconstitutional

Police in Malawi, like those in other post-colonial African countries, have long enjoyed wide powers to round up, hold and threaten anyone with prosecution under the guise of crime prevention. Typically, these powers are exercised by way of mass arrests, locally known as ‘sweeping exercises’, targeting people the police regard as vagrants or who seem out of place. Though first enacted under colonial rule, these powers have remained on the statute books even after independence. Human rights activists consider these powers unconstitutional because of their blatant disregard for the rights of those rounded up, but now these ‘sweeping exercises’ have been officially condemned by Malawi’s high court.

Crucial Lesotho court decision nullifies disputed contract that could cripple the mountain kingdom

A new decision by Lesotho’s high court could prove key in a developing crisis over a disputed contract, that could bring the mountain kingdom to its knees. A full bench has found that the contract, between Lesotho and Frazer Solar, a German company that provides alternative energy systems and that would have involved Lesotho in finding funding of €100m, was null and void. Lesotho has repudiated the contract, and as a result, Frazer Solar is claiming compensation that could cripple Lesotho. Now, the Lesotho court has found the contract flouted the constitution as well as public procurement provisions and key legislation. It also fingered the minister who had signed the contract, apparently on a frolic of his own, without cabinet authorisation. The decision could help Lesotho fight off claims for compensation by Frazer Solar. These are sizeable claims amounting to a significant part of Lesotho’s annual budget.

Kenya’s independent electoral commission boss faces possible jail over contempt of court

The head of Kenya’s independent electoral and boundaries commission has been found in contempt of court and will be staring some serious punishment in the face when he appears in court for sentencing. An office technology company brought an application against commission CEO, Marjan Hussein Marjan, asking that he be fined and/or jailed for six months for having ‘deliberately disobeyed’ earlier court orders and a 2016 judgment to pay the company. The judge who heard the company’s application had some tough words for Marjan about heeding court orders.

Death penalty for convicted HIV rapists unconstitutional – Lesotho court

A decision by the constitutional division of Lesotho’s high court has found controversial provisions in that country’s sexual offences law, unconstitutional. In particular, the court held that stipulating the death penalty for a convicted rapist, held to have known he was HIV positive at the time of the crime, infringed the constitutional right to freedom from discrimination and to a right to equality before the law.

Crucial high court statelessness case tests route out of legal limbo

A young man, stateless and unable to access even the basic rights that go with citizenship, has brought what could be a precedent-setting case in the high court of South Africa. The young man, who knows nothing of his father, and whose mother died when he was very young, wants the court to order that he be granted citizenship of SA, either by birth or through naturalisation. He has also urged the court to order that the relevant government department must establish regulations, as the law clearly says it must, providing a route for people in his position to acquire citizenship.

Being stateless is ‘not merely a state of mind, or a choice’ – judge

Some readers might wonder how statelessness is viewed by courts in other parts of the world. For them, the recent Canadian case of Davood Helalifar v Minister of Citizenship and Immigration will be an eye-opener. Helalifar’s application for permanent residence was refused by a senior official and so Helalifar approached the federal courts asking for judicial review of that decision. Helalifar, who has had several criminal convictions since arriving in Canada, is originally from Iran. With all that was counting against him, what weight would the federal court put on Helalifar’s statelessness?

When women can’t confer nationality on their children equally with men, problems of statelessness grow – UNHCR

As the world’s states consider how to reduce the plague of statelessness, nationality laws come increasingly under the microscope. That’s because if a child can only take on the nationality of their father, and the father is unknown or dies or disappears before a child is officially registered as his, then the child could well be doomed to a life without nationality or citizenship. Thus, ensuring that there is equality between women and men when it comes to conferring nationality on children, would help greatly in reducing statelessness around the world. The UN High Commission for Refugees keeps a careful watch on developments towards equality in this important, but often forgotten, area in the struggle to eradicate statelessness. Among its other findings, this year’s report notes that the nationality laws in several African countries do not provide mothers equal rights with fathers to confer their nationality on their children.

Steep damages against Kenyan media house as five advocates win defamation awards

A Kenyan media company has been punished by a series of high court judgments ordering that it pay what amounts in total to more than US$535 000 in damages for defamation against a group of senior advocates. The awards followed reporting by the company’s titles on the involvement of the lawyers in some high profile cases. The lawyers claimed, among other problems, that the articles were misleading and insinuated that they had obtained briefs improperly. One complaint, heard as a test case, was decided first, in 2020. The judge in that matter held that the advocates had indeed been defamed and should be awarded damages. Now a group of judgments in relation to the other defamed lawyers has been delivered, and the total damages’ payout so far ordered by the courts has shot up to Kshs 64,800,000, plus interest and costs.

Serious court efforts brought to hold public officers, top members of the Zim government administration to account, curb corruption

Zimbabwe’s 2013 constitution requires a law to be passed to deal with accountability and transparency among public officers as well as top members of government. But virtually 10 years since the constitution was enacted, there is still no such law. Now, efforts are being made through the courts to ensure that something is, at last, done about this fundamental constitutional requirement.

Free speech restrictions stressed by Eswatini’s election body make 2023 polls a ‘sham’

Eswatini’s election body has been challenged over recent comments by its chairperson that are seen as threatening free expression, the right to self-determination – and as even making upcoming polls a ‘sham’.

Safeguarding wildlife can mean danger, sometimes death, for local communities – and seeking compensation can prove difficult

Kenya’s national environment tribunals have been busy dealing with families suffering the effects of living close to wildlife. A series of recent decisions make clear how complicated it has become to manage human settlements that intersect with land on which wild creatures are also at home.

Judge says law on witchcraft reflects ‘western’ norms, not those of Eswatini. Supreme court disagrees

A potentially divisive judicial dispute over witchcraft in Eswatini has been nipped in the bud by that country’s supreme court. The debate emerged when a high court judge, presiding in a witchcraft-related murder trial, questioned whether the present legally accepted position that witchcraft is unreasonable and irrational, reflected ‘western’ views rather than the norms of the people of Eswatini. The judge then referred a question to the country’s highest court asking if the time hadn’t come to change the way the matter is handled. Instead of belief in witchcraft being a possible extenuating circumstance after conviction, should it not provide a ‘complete defence’ to a witchcraft-related murder? (Exactly what he meant by this was not spelled out, but it seems he was suggesting that the accused would then be acquitted.) Now three supreme court judges have given their answer: there is no legal basis to change the current precedent, they said. The three judges said that though many in Eswatini practised and believed in witchcraft, murder remained a very serious crime.

Namibian judge calls out police, army, impunity for assaults on the public

The Namibian police – long criticised for arbitrary brutality towards members of the public – have come in for some strong rebukes in a new decision by the high court. Dealing with the damages claim of a woman who was assaulted in an incident where she merely came out of her home to see the cause of a commotion, the court has slammed an ‘intolerable’ situation involving ‘prevalent’ assaults by police and members of the defence force on members of the public in Namibia. The court also questioned why the individual perpetrators were allowed to ‘disappear into the undergrowth’ instead of being held accountable for their actions.

In strong judgment, judge refuses 'sensitive' recusal application

A major new decision from Malawi’s high court on the vexed question of judicial recusal has laid down the law on the subject. It included strong words against the Anti-Corruption Bureau’s legal strategy – bringing a recusal application based on no arguments at all, but only a suggestion that the matter surrounding the appeal application was ‘too sensitive’ even to give reasons. Judge Kenyatta Nyirenda, who wrote the decision, also spoke more widely and slammed dissatisfied litigants who threaten ‘physical violence’ against judges or ‘resort to dastardly and primitive schemes of staging road accidents’ intended to cause judges grievous harm, or even to ‘assassinate’ them.

Ugandan forest dwellers still struggling for compensation, 21 years later, after being forcefully evicted from land given them by Idi Amin

The spectre of Uganda’s former president, Idi Amin, hangs over a case involving 2500 forest dwellers who are in continuing dispute over compensation for their eviction from forest land. They have been trying to get satisfaction from the courts since 2001, so far without success, even though the high court made a significant compensation award in 2019. Now the appeal court has refused the attorney general’s application to be allowed to introduce new evidence for the appeal due to be heard against the high court’s order. Turning down the application, the appeal court said it was clear that the AG wanted to use the application to put up evidence which ought to have been produced before the high court, but which wasn’t brought to that court, despite the AG being given ample time and opportunity to do so. One of the noteworthy features of the case is that the validity of the claim hangs at least partly on whether Amin granted the villagers the land from which they were later evicted.

Former minister refused bail pending appeal after conviction, sentence, over theft of laptops destined for poor schools

A new judgment from the high court in Zimbabwe shows the country struggling with corruption, even at the highest level. But it also highlights a loophole in the law that has seen many people, once convicted and sentenced, apply for bail pending appeal, only to disappear and never hand themselves over, if they lose on appeal.

Congolese woman convicted and sentenced for smuggling immigrants into Namibia

A former refugee from Congo has been found guilty on three charges relating to smuggling immigrants into Namibia. Abigail Bashala, who gave the court a list of illnesses with which she is afflicted as part of her evidence in mitigation, took money from desperate people to help them get into Namibia and to travel to Canada, though the flights to Canada never materialised. The court found she was part of a syndicate that preyed on people desperate to escape from war and start a new life.

Convictions overturned after 'merciless' torture finding by Ugandan high court

Elements of the Ugandan state have been found by the high court’s anti-corruption division to have been responsible for brutal torture aimed at extracting confessions from two employees of the Uganda Revenue Authority. Judge Lawrence Gidudu, head of the country’s anti-corruption court, awarded compensation and punitive damages for the torture, but also asked some questions about the handling of the two tortured detainees that the authorities will find uncomfortable and difficult to answer. The judge further ruled that the conviction of the two men be set aside on the basis that no conviction may result in a case where torture has been used to extract a confession.

State of emergency can't be used to resurrect legislative corpses - Lesotho's high court

Lesotho’s political leaders have been given a firm message by that country’s high court: don’t try to use state of emergency powers in a sleight of hand to pass legislation that wasn’t finalised during Parliament’s normal sessions.

Non-punishment principle for trafficking victims: here’s how you can help a new research project

Victims of trafficking are sometimes brought to court themselves, charged with offences they are thought to have committed, even though this may have been in the course of being trafficked. Will you help with research into this problem?

Activist for women’s rights called ‘violent’ because she used local word for vagina on protest placard

A women’s rights activist in Malawi, Beatrice Matweyo, found by the high court to have been wrongly arrested during an anti-gender-based violence protest, has now been slammed for having carried a placard with a slogan including the local word for vagina. Lilongwe’s high court assistant registrar said the use of this word amounted to violence against women, and thus awarded her merely a nominal amount for her claim for punitive damages. Mateyo had claimed damages for false imprisonment and punitive damages as well as compensation for the violation of her constitutional rights. The registrar had the task of assessing the damages she should be awarded.

Ugandan lawyer, serving time for contempt, loses bid for bail release

A Ugandan lawyer with a reputation for strongly criticising judges and demanding the recusal of those presiding in cases where he is involved, has lost his bid to be freed from prison pending an appeal. The lawyer, Male Mabirizi (pictured), was sentenced to an 18-month jail term for contempt of court by a high court judge whom he repeatedly slandered and pilloried. Though he sought release from prison pending an appeal, he had not yet filed any appeal and so the appeal court judges turned him down.

Courses on climate change law, environmental law, open judges’ eyes to the coming storm

New awareness of climate change and litigation associated with it, has dramatically changed the perception of over 20 judges who attended a training course on environmental law and climate change law under the auspices of Jifa last month. Almost all of them started out unsure of what climate change law actually is, and doubting whether they would ever be involved in litigation concerning climate change. But after a week’s training with a University of Cape Town expert, including two days intensively focused on climate change, they now have a very different perspective. As the judges put it, ‘Our eyes have been opened; now we have a massive responsibility to implement what we have learnt.’

Kenya’s supreme court election petition rules set aside by high court

Kenya’s supreme court has been given a lesson on observing the separation of powers and not ‘usurping’ the legislative power of parliament. Strangely enough, this lesson has come from the high court which had been asked to consider the constitutional validity of new rules promulgated by the supreme court. The disputed rules effectively prevented litigants, advocates and advocates’ agents from commenting on the merits, or otherwise, of a presidential election challenge from the time the hearing of the matter begins until the decision is given. Though the Chief Justice strongly defended the rules, the high court found they did not pass constitutional muster and has set them aside.

Malawi court finds against judge’s claim for appeal court seat

A judge in Malawi has found himself in the unusual position of having to consider a colleague’s complaint, made before him in litigation, that the other judge had been unfairly passed over for appointment to a higher court.

Court ruling poses Lesotho elections dilemma

Lesotho’s October 7 election date suddenly appears at risk. The date was announced by the country’s Independent Electoral Commission in July, but a new decision of the constitutional court has found that the delimitation of 20 constituencies doesn’t pass constitutional muster, because the range in voter numbers is larger or smaller than the 10% variation constitutionally prescribed. The decision, delivered on August 8, puts the IEC under enormous pressure and it might not be possible to redraw constituencies in time for the elections. This is particularly so since it will not be a question of just adjusting the 20 voter boundaries: tinkering with any boundary will necessarily also affect even those constituencies that are now compliant.

No proof of grade 12 school certificate, so re-election of Zambian former minister declared invalid

When President Edgar Lungu lost the elections in Zambia in August 2021, one of the members of his party who was re-elected as an MP was Joseph Malanji, a former foreign minister. But that re-election was disputed by a rival for his seat who claimed Malanji did not meet the criteria because he did not have a grade 12 certificate, a requirement for election. The high court decided that the election was not valid. Malanji then appealed and the constitutional court of Zambia has now given its decision on the matter.

Last minute Kenyan court order overturns ban on manual voters’ register for polls

Kenya’s high court stepped in, just days before that country’s presidential polls of 9 August, to overturn a decision of Kenya’s Independent Electoral Boundaries Commission, the body that runs elections. The commission had decided to bar the use of printed registers of voters as a backup to the electronic system by which the elections will be run. That decision was contained in a letter that the commission had written to one of the contending parties. The judge found that the decision violated the constitution because some voters could be refused the right to vote if they weren’t identified due to a malfunction of the technology, and declared that the decision, contained in the letter, was null and void.

Kenya’s constitutional court puts job interviews on hold after ads for 600 new posts

As tensions rise in many African countries over inadequate service delivery and development, Kenya’s Baringo County administration is being asked to explain its advert for 600 new posts. Human rights activist, Isaiah Biwott, has successfully argued that the constitutional court should grant an interim interdict preventing the county from going ahead with interviews for more than 600 new staff. Biwott said that the constitution and other legislation caps the percentage of a county government’s total revenue that may be spent on wages at 45%, and that the county would be way over that limit if the proposed posts were filled. The money should be spent on development instead of an inflated wage bill, he said.

Judges refused appointment suffer ‘unlawful discrimination’ says Kenyan high court

The blunt refusal of Kenya’s President Uhuru Kenyatta to appoint or promote six judges of the more than 40 recommended during 2019 by the Judicial Service Commission, has unleashed a storm of ligitation, with human rights and constitutional groups determined that the law should intervene to give effect to the JSC decision. The latest in that litigation is a petition decided last week by three judges of the high court, after it was brought by a Kenyan doctor, Benjamin Magare. The judges held that certain of Magare’s petitions couldn’t be decided at this stage as they had already been determined by another bench or were up for appeal. It was, however, appropriate to resolve his petition on the question of whether the six nominees were treated differently from the rest of the 40, in a way that amounted to unlawful discrimination. They were indeed unlawfully discriminated against, said the judges, and moreover the six had a legitimate expectation that they would have been appointed, along with the rest of those recommended by the JSC.

Top Namibian court slams capital’s municipality over rule of law transgressions

Unlawful action by the municipality of Namibia’s capital city, Windhoek, has been slammed by the Supreme Court, whose judges said the municipality’s ‘resort to self-help’ transgressed the country’s commitment to the rule of law. They were deciding an appeal related to the municipality’s actions against Paratus, a licensed telecommunications company that was installing fibre optic cables in the city. The company’s claim – uncontested by the municipality – was that the municipality was harassing Paratus because it wanted to commercialise the network via a partnership with another company, use the new infrastructure without payment, and then operate in opposition to Paratus.

Considering the world’s response to human trafficking: the annual report

The annual report by the US state department on the efficacy and commitment of the world’s nations to fighting human trafficking is always a moment for reflection. A particular focus of the report this year is the role that should be played by people who have had personal experience of being trafficked. But most of the report, as usual, deals with how different states are shaping up in the struggle to curb trafficking and the particular challenges that they should address in the future.

African Court orders Malawi to compensate victim of oppressive pre-democracy laws

A judgment of the African Court has brought the promise of justice to a Malawian family, victim of the country’s one-party, undemocratic and often brutal past, and that has been unable to obtain redress through Malawi’s own courts.

Namibia’s apex court confirms new trend in media freedom cases

In a new judgment of extraordinary importance for freedom of expression and media freedom in Namibia, that country’s highest court has confirmed the development of the common law to give greater protection to the Namibian media so that, as the court put it, its ‘important democratic role of providing information to the public is not imperilled by the risk of defamation claims.’

Major new global research shows judges under stress – and without help to cope

A significant new report on judicial well-being has been published by the Global Judicial Integrity Network. It’s the result of a survey involving 758 judges from 102 countries across all parts of the globe. The high response rate is seen as indicating that the topic is one of great interest to judges generally. The report gives important data about the causes of stress among judges and the consequences of that stress; judicial responses to the changes forced by Covid-19, and what could be done to ensure better mental well-being among judges in the future.

Law imposing three-year wait for divorce found unconstitutional by Kenya’s appeal court

With five forms of marriage from which to choose, couples in Kenya could find it easy enough to tie the knot. It might be a different story for some if they want an early divorce, however. That’s because those opting for a civil marriage must wait a minimum of three years before they may start divorce proceedings. Claiming this provision is unconstitutional, a Kenyan advocate has brought legal action to test the three-year limitation. The high court upheld his petition, but the national assembly subsequently appealed and judgment in that appeal has now been delivered.

African Court orders that Kenya pays reparations to Ogiek people of Mau Forest

One of Kenya’s most vulnerable communities, the Ogiek people of the Mau Forest, have been awarded more than USD 1.3m by the African Court on Human and Peoples’ Rights for breaches of their rights under the African Charter. The court found the breaches were committed by the Kenyan government, which has tried to remove the Ogiek from the forest to allow other undertakings there. According to the Kenyan government, much of its activity in the forest was to protect the local water sources which are of great importance to the rest of the country. The new decision, spelling out the reparations to be undertaken by Kenya, was delivered last week, and follows a judgment in 2017 in which the court found that at least seven separate Charter rights of the Ogiek had been breached by Kenya.

‘Cry-baby’ politician should not have brought party political case to court – judge

When Malawian politician Shadrick Namalomba asked for judicial intervention on the question of where he should sit in the national assembly, Judge Mzonde Mvula set him straight. Such issues were not appropriate for the courts to consider, he said. It was clearly an issue related to conflict within the official opposition, and for a variety of reasons, it should never have been brought to court.

Eswatini supreme court calls delayed trial ‘a form of torture’

Eswatini’s highest court has strongly criticised that country’s prosecution service for how long it took to bring a murder case to trial. Writing a review judgment in that case, the court called the 13 years it took to begin the trial ‘a form of torture’ for the accused in the matter, adding that the delays were unconstitutional. A full bench of the supreme court confirmed the revised 23-year sentence imposed on appeal, adding that if the question of the prosecution’s delays had been raised during the hearing of the review, it could have ‘seriously considered’ reducing the sentence by at least five years.

Nigeria’s top judges in public spat over disputed benefits - CJ says it's 'dancing naked in the market place'

Members of Nigeria’s apex court have come out strongly against the leader of the country’s judiciary, Tanko Muhammad. In the first letter of its kind, they have written to him, as Chief Justice of Nigeria to complain about a variety of issues related to conditions at court as well as conditions under which the judges operate. They moan about a memo informing them that electricity will operate at court only between 8 and 4 due to a diesel shortage, about amended court rules that have not been finalised, and about not being able to take ‘accompanying persons, due to age’ when they travel for training. The CJN in turn has responded with a statement that, by implication, criticises the judges for their initial letter, saying it amounted to ‘dancing naked in the market square’. In the letter he makes assurances, however, that everyone at court is getting on with their work and doing their normal duty.

Don’t trade people fleeing war ‘like commodities’ – UNHCR

The UN High Commission for Refugees has issued a strongly-worded statement condemning attempts by the UK government to fly asylum-seekers to Rwanda. And while the UK courts have rejected attempts to halt the flights, the European Court of Human Rights has unexpectedly intervened to halt the first scheduled removal of asylum-seekers at least until July. The result has been to raise the international profile of the dangers and difficulties involved in asylum-seeking.

Asylum-seekers should be dealt with under refugee law, says Kenyan court – not under immigration legislation

The Kenyan courts regularly hear cases related to people claiming to be asylum-seekers. The latest, decided three months ago, led to a judgment pointing out that the men at the heart of the matter, flagged for deportation, had the right to access Kenya’s elaborate new system designed to inquire into the validity of someone’s claim for refugee status. The two men were convicted of being illegally in Kenya and were to have been deported once they had served their term of imprisonment. Judge Joseph Kamau, however, set aside their conviction and sentence and ruled they were to be handed over to the Department of Refugee Affairs immediately for processing as asylum seekers.

What about the children?

This year, World Refugee Day focuses particularly on the right of displaced people to be safe. But what does that mean for children? Laura Buffoni, senior community-based protection officer of the UNHCR’s regional bureau for Southern Africa, sat down for an interview with Justice in Africa to share some ideas and information with readers, starting with this statistic: globally, as well as in this region, women and children make up some 80% of the displaced population.

Desperate Afghan judges ask UK high court for review of government’s refusal to allow them entry

The alarming case of two Afghan judges, refused entry into the UK after the Taliban took over Afghanistan, is instructive. The two face the very real possibility that they will be found and executed by the Taliban, and yet the UK government has flatly refused to allow them in. Among other things, this illustrates how vulnerable judges, as a group, sometimes are, persecuted precisely for the work that they do as judges. When they seek asylum, it is difficult to say that they are simply ‘making things up’, an accusation often levelled at other would-be refugees. At the same time, however, the case shows how incredibly difficult it must be for ordinary people to gain legal entry into a country as asylum-seekers, if even judges, clearly committed to promoting the rule of law, are turned down.

Impact on asylum seekers of South Africa’s tardy officialdom

For many reasons, South Africa is not an easy place to seek asylum, and new research by human rights lawyer Jacob van Garderen highlights some of the difficulties faced by asylum seekers as well as other migrants. Among the worst issues he found were ongoing problems over access to safe housing, difficulties around documentation because of a government system that doesn’t appear to be working – and the ever present threat of xenophobia.

Malawi high court judge on anti-graft unit’s powers

In a major new decision, the high court in Malawi has clarified a number of issues critical to the country’s criminal justice system. The decision comes in the wake of attempts by a former cabinet minister, Kezzie Msukwa, dismissed because of corruption charges against him, to challenge the basis on which investigations into his alleged wrong-doing were carried out. Among other questions, Msukwa argued that the anti-corruption authorities in Malawi ought not to have made a cooperation arrangement with their counterparts in other states without going through Malawi’s attorney-general, and that the material gathered for use as evidence as a result of that cooperation, ought to be rejected by the court.

Zambian high court scraps lawyer from the roll of practitioners for dishonesty

A Zambian legal practitioner who failed to pay over money from his client intended to settle a bank loan, has been disciplined by the Law Association of Zambia (LAZ) and has now been struck off the roll of practitioners by the high court. This was despite the disgraced lawyer’s claim that his client had settled matters amicably and that there was now no dispute between them. The court held that this did not matter: the court and the LAZ were obliged to investigate the lawyer’s behaviour regardless of whether the original complaint was withdrawn or not.

Jifa in talks for proposed new African association of judicial training organisations

Jifa (the Judicial Institute for Africa) has for some time been aware of the need to establish an African association of judicial training organisations, and co-hosted a three-day meeting in Dakar, Senegal, earlier this month to investigate the possibility. A group of anglophone and francophone training institute directors and representatives attended. Jifa director, Vanja Karth, said afterwards that the meeting, sponsored by the German development agency, GIZ, had been a great success and led to the group (pictured) formulating the ‘Dakar Declaration’. This declaration 'concretised the shared vision of an African body, and committed the parties to a validation meeting in November.’

Court chides counsel for ‘scurrilous allegation’ against newly-appointed judge

Counsel for a former presidential adviser on strategy, charged under Malawi’s anti-corruption laws, has come in for a tongue-lashing over the argument he put up in a judicial review application. During the course of the corruption trial so far, the presiding magistrate, Patrick Chirwa (pictured), was appointed as a judge of the high court. Counsel for Chris Banda, the accused, wanted a different magistrate to take over the corruption trial, but the magistrate, now a judge, said he would continue hearing the matter to completion. Counsel suggested this was improper and that the magistrate, now a judge, was refusing to ‘let go’ of the matter as he had a ‘personal interest’ in the case. The high court said it was ‘deeply troubled’ by this suggestion and roundly criticised counsel for this ‘scurrilous allegation’.

Top court delivers major victory for Zimbabwe’s children

A new decision by Zimbabwe’s constitutional court (a separate chamber of the supreme court), has found sections of the criminal law unconstitutional because it completely fails to protect children aged 16 – 18 from sexual exploitation. The judgment also found sections that permit child marriage, involving children under 18, unconstitutional. The new judgment contains a harsh critique of an earlier high court decision that found the criminal law was valid, even though it did not conform to the constitution.

Lesotho’s CJ fights back after apex court’s critical judgment

The Chief Justice of Lesotho, Sakoane Sakoane, has reacted sharply to a judgment by the country’s appeal court that found he ought to have recused himself from presiding in a major treason and murder trial. The court found that the prosecution’s claim to have a reasonable apprehension of bias by the CJ was well founded, and ordered that another judge take over the trial. But in reaction, the CJ has questioned whether ‘foreign’ judges ought any longer to preside over cases heard in Lesotho. He has also raised questions over the legality of part of the appeal court’s order.

Amnesty International death penalty report: a time for judges to reflect

In prisons across Africa, many thousands of prisoners sit on death row, uncertain whether they will be allowed to live. But as the numbers of condemned prisoners climb, with an estimated 5 843 awaiting execution in prisons all over Africa, debate over the death penalty is also growing. The newest report from Amnesty International, released this week, shows some stark contrasts. While, for example, Botswana is often considered to be a country that respects human rights, it is the only state south of the Sahara to have carried out executions (three in 2021, the year considered by Amnesty’s latest report). And while Kenya and Malawi have seen vigorous judicial discussion about mandatory death sentences, in Nigeria at least 3 036 people are imprisoned under the death sentence, one of the highest numbers recorded for any nation, worldwide.

Judges recall when their lives were threatened during contentious legal challenge in Malawi

Two participants at a human rights training course for judges from 11 African countries, held in Cape Town mid-May, have first-hand experience of what making a bold human rights decision may sometimes demand. Judges Michael Tembo and Redson Kapindu were both on the bench, part of a five-judge panel in what they say was, without doubt, the most significant case in Malawi’s history. It was a case that left them physically shaken and traumatised, but all the wiser from the experience and more determined than ever to live up to the demands of their judicial oath of office. Pictured in their bulletproof vests are (left to right) Justice Dingiswayo Madise, Justice Ivy Kamanga, Justice Healey Potani, Justice Michael Tembo and Justice Redson Kapindu.

Lesotho CJ ‘wrong’ to punish lead counsel in high profile murder, treason case – appeal court

A new decision from Lesotho’s highest court has made some uncomfortable findings about the country’s Chief Justice, Sakoane Sakoane. Three judges from outside Lesotho, brought in to hear the matter to ensure there could be no allegations of partiality given those involved, found that the Director of Public Prosecutions was not unreasonable in her apprehension of bias on the part of the CJ. The judges also found he had wrongly ‘punished’ controversial advocate Shaun Abrahams, lead counsel in the trial over which the CJ was to preside, both by finding that he had acted improperly, and by imposing a punishment not prescribed by the law. The high-profile trial, involving charges of murder and treason, must now continue before another judge.

Another ‘No’ for Eswatini’s LGBTI community

A new judgment from Eswatini’s high court effectively supports a decision by the registrar of companies who refused to register an association called Eswatini Sexual and Gender Minorities. Two judges of the three-court bench held that the registrar’s decision had been properly made. In a dissenting decision, the third judge approached the question very differently. He found that in terms of the law, the registrar of companies should have taken the decision whether to register the association, but that the ministry of commerce and industry made the decision instead. As this was a misuse of administrative power, the decision should be set aside and the registration of the association should be allowed. But there was a glimmer of light for Eswatini’s sexual minorities: despite its conclusion on the registration issue, the court’s majority wrote that members of the LGBTI community had ‘a right to life, liberty, privacy or dignity’ among other rights.

State of the judiciary: new report on Malawi, Namibia, South Africa

For many judges it will come as a relief to hear some good news for once, in the form of largely positive public perception about the judiciary and its role in society. The good news emerges from a just-published report on the state of the judiciary in Malawi, Namibia and South Africa. Every member of the bench in those three countries will be only too well aware of the short-comings of their own judicial system, exacerbated by the restrictions imposed by the Covid pandemic, among a number of other problems. But the three-part report by the Democratic Governance and Rights Unit of the University of Cape Town’s law school found generally positive views by court users about how judges in these jurisdictions are doing their work. Another key finding is that perceptions of corruption in the court are significantly lower in the closely-targeted court user surveys, than had been found in opinion surveys of the general public.

Key rulings have major implications for lawyers

Two recent decisions from the courts in Zambia have serious implications for lawyers. In one, the appeal court rescued legal practitioners from a decision of the high court that found lawyers in private practice weren’t allowed to accept full-time employment. In the other, the appeal court had strong words for lawyers representing clients on trial for criminal offences: they should be sure that fee arrangements were recorded in writing and that there was genuine negotiation between the two sides over what would be charged.

Judge orders at least two years of state-funded therapy for 10-year-old raped by her uncle

A South African judge has ordered that a child, raped by a close family member, must be provided with state-funded counselling for at least two years to help her recover from the trauma of the sexual attacks. Further sessions may be added at the end of the two years, depending on whether the child needs more help at that stage. Despite an epidemic of child and adult rape in South Africa, such an order, made in this case as part of judgment on sentence, is extremely rare.

African Commission finds judicial dismissal by Eswatini violated African Charter on Human and Peoples' Rights

Since 2011, Thomas Masuku has been in a kind of judicial limbo following a decision by the authorities in Eswatini to remove him from office as a judge. He was, however, welcomed with open arms in Namibia, where he serves on the high court bench. Now, in an extraordinary development, the African Commission on Human and Peoples’ Rights has found that his removal from office by Eswatini violated key articles of the African Charter. The commission has also urged that the government of Eswatini compensate Masuku for the violation of these rights and that it take other steps to amend the situation.

One case, two high court judgments: Namibian supreme court concern about ‘grave irregularity’

The supreme court in Namibia was busy preparing a written judgment in a rape case appeal when it discovered something was very wrong. Unknown to it at the time the case was argued, there had actually been two high court decisions on the same matter. The first of the two had refused leave to appeal as part of an unsuccessful application for condonation of late filing, with the court holding there were no prospects of success on appeal. Three months later, the same applicant had brought another application, for appeal. This time the court found there were indeed prospects of success on appeal and gave leave for the matter to be heard at the supreme court. What made the conflict between these two high court decisions even more remarkable was that one of the two judges in the first decision also sat in the second application and in fact wrote the judgment that, this time, came to a completely different conclusion from what had been found in the initial decision. Now the supreme court has decided that the second application to the high court was wrongly brought and that it amounted to a ‘grave irregularity’ for the second high court to overrule the order given by the high court the first time round. Making the story even more controversial is the fact that the convicted man, Vincent Likoro, was appointed as to a high-level ‘think tank’ of the ruling Swapo party after his rape conviction, a decision that was stoutly defended by a top Swapo official at the time.

Reproductive rights win in Botswana after woman’s nightmare hysterectomy experience at hands of state healthcare providers

Women’s reproductive rights include more than access to safe, affordable abortion and contraceptives. These rights are also about proper state care for any associated surgical procedure, for example, along with state obligations not to deny access to services that only women require, and to ensure the good quality of such services. The high court in Gaborone, Botswana, has just delivered an important decision related to this question, holding the state accountable for the shoddy treatment of a women who underwent a hysterectomy. Her treatment, both during the operation and afterwards, has caused serious physical and mental problems. The court found there was medical negligence and lack of proper post-operative care and, with some strongly-worded criticism of the way she was treated, awarded her P400 000.

Judgment highlights ambiguity of abortion provision in Kenya’s constitution

In a judgment already welcomed by many, but likely to prove hugely controversial, the high court in Kenya has decided a constitutional petition centred on the question of whether – and under what circumstances – abortion is lawful in that country. The case involved a teenage girl who presented herself to a health centre because she was experiencing pregnancy ‘complications’. Diagnosing a partial abortion, the clinical officer completed the abortion, but both the patient and the clinic officer were subsequently arrested and charged. They later brought a wide-ranging petition to the high court contesting the lawfulness of the action taken against them. In his decision, Judge Reuben Nyakundi said that it was a woman’s right to access a safe abortion and that legal action taken against the girl and the clinical officer was ‘marked with irregularities from the outset’. However, the case once again illustrates a problem, stressed a few years ago in another high court constitutional petition on abortion: the constitution’s provision on abortion is ambiguous, and no guidelines or legislation are in place to clarify under what conditions an abortion would be legal. As a result, both the women who might seek an abortion, and the doctors or clinical officers who could offer the procedure, are unsure about what is allowed. The situation is so uncertain that a woman could be arrested and charged even if the abortion was spontaneous rather than procured, while a doctor or clinical officer could also be charged even if they are merely attending to the aftermath of an abortion.

Dispute over Facebook post brings major free speech decision by Eswatini high court

The case of an airline accountant who posted a comment on his Facebook page that his employers have interpreted as being critical of the Eswatini government and the system of governance it operates has given the high court the opening to make an unusually strong defence of free expression. In his FB post, made at the time criticism over the government purchase of a number of luxury vehicles was making headlines, the accountant, Godfrey Exalto, included the word, ‘dictatorship’. His bosses said that by doing so he was bringing the airline company into ‘gross disrespect’.

Concerns over climate change stalemate court decision on UK financial support to Mozambique

A major decision by a senior UK court has split down the middle on whether that country should be financially backing a massive liquefied natural gas discovery in Mozambique. The case revolved around environmental questions and the climate change undertakings reached in terms of the 2015 Paris agreement. The Mozambique gas field is exceptionally rich and has the potential to catapult that country onto the list of the top five global suppliers of a growing international demand.

Major court victory against ‘deadly air’ in South Africa’s most polluted region

One of the most important recent South African judgments on environmental law has delivered by the high court in Gauteng province. The case concerns a region of SA where high levels of air pollution risk the health of all the people living there. This is well-known to the government, but very little has been done about it. Now, environmental organisations have challenged the government’s inertia, and have won a major victory, with the court declaring that constitutional rights were breached by the failure to act. The court has also given the minister of environmental affairs a strict deadline to produce effective regulations for managing the problem of air pollution.

Problems over legal standing to claim N$4billion plus world-famed game reserve for Namibian ethnic group

Legal efforts by several members of a Namibian ethnic group to prepare for litigation contesting ownership rights to one of the world’s best known game reserves, the Etosha National Park, have met with mixed results at the country’s supreme court. Eight members of the Hai||om said that the park was originally the group’s ancestral land but that the Hai||om had been dispossessed before Namibian independence. The post-independence Windhoek government had further neglected the needs of the Hai||om and had not acted to correct historic wrongs. Now the eight wanted the highest court to rule on the plan they had devised to give themselves standing to run a vast land claims case, given that Namibian law does not permit class actions. The supreme court said it disagreed with the narrow approach taken by the high court. While it, like the high court, dismissed the plan put forward by the eight, it noted a couple of other options available to them if they wanted to go ahead with their litigation.

Report shows proportion of women judges varies strongly

A report by the United Nations’ Special Rapporteur women judges and prosecutors finds that the proportion of women on the bench varies a great deal from one country to another, and that in some jurisdictions women, if they are in fact appointed to the bench, serve on family or juvenile courts, rather than on commercial or criminal courts, where the bench tends to be reserved for male judges. The report makes a number of recommendations about how to improve the current situation.

Violence against women: on International Women’s Day, 2022, consider these two cases

Two random, recent cases from Namibia answer the question why there is the need for an annual marking of women’s day round the world. Both show how the vulnerability of girls and women make them easy targets for violence. And how, at crucial moments when they face the most danger, they may be completely deserted and left alone with their attackers.

Consider tax payer loss when deciding on bail in white-collar crime appeals – Uganda Supreme Court

Employees of a country’s tax collector represent a potential weak point for any revenue authority. South African police announced at the end of February that two staffers of the SA Revenue Service had been arrested after they allegedly demanded R150 000 from a tax payer. The money was to cancel an outstanding tax bill. It’s a problem repeated almost every year, with SA officials arrested over similar allegations, often having taken bribes to make a taxpayer’s problems ‘go away’. And with most countries in the region reporting cases of alleged involvement by revenue collection staff, it’s clearly not a problem peculiar to SA. One of the most recent judgments dealing with such an issue comes from Uganda where the Supreme Court was asked to authorise the grant of bail to two Uganda Revenue Authority (URA) staffers, convicted of causing financial loss to the fiscus, and of other offences under the Anti-Corruption Act.

Once-powerful Malawian political figure ‘lied’ to court in divorce settlement case – senior magistrate

Nicholas Dausi has had a full and chequered career as a political figure in Malawi. He’s held significant positions under the governments of Bingu and Peter Mutharika, for example, becoming head of intelligence services as well as an MP. But nothing will have been as challenging as his court battle with V, his now-divorced wife. In theory, she is someone who should cause Dausi no problems: since their divorce in December 2021, she lives a completely separate life and earns a small salary as a shop assistant. But when V brought an application to the principal resident magistrate’s court for distribution of matrimonial property acquired while they were wed, things changed very quickly.

Court orders unusually high damages for defamatory allegations made against Namibia’s First Lady

An opposition political party figure in Namibia has been found to have defamed the wife of the President, Hage Geingob, and was ordered to pay damages at a very significant level to First Lady, Monica Geingos. The high court found that Abed-Nego Hishoono had actually intended to target Geingob with his defamatory social media claims and that Hishoono’s claims that he merely repeated rumours already circulating about Geingos did not lessen the seriousness of his actions.

Kenyan court rules presidential power to hold under-age offenders in prison indefinitely is unconstitutional, orders prisoner released at once

A Kenyan high court has declared that rights given to the head of government to detain certain convicted prisoners ‘at the pleasure of the president’ are unconstitutional. This is because the court found these powers usurp the power of the courts. But the case was not just a theoretical exercise; it concerned a very real matter in which a prisoner, convicted of a crime that attracted the death penalty at the time, was sentenced to jail ‘at the pleasure of the president’ because he was under age. That was well over 16 years ago. Now the man, known only by his initials, ‘JMR’, can no longer be held in what amounts to indefinite imprisonment, and must be released immediately, said the court.

Citing separation of powers, Lesotho court refuses to order that national assembly vote on no confidence debate by secret ballot

Attempts by two MPs to bypass an investigation into possibly holding secret ballots in the Lesotho National Assembly have come unstuck: the High Court has rejected an application by the duo for the court to order that a no confidence ballot against the Prime Minister be held by secret ballot, saying this had to be decided by the assembly itself. The court also took the opportunity to restate the boundaries between the executive, legislature and judiciary, and to urge ‘political honesty’ from MPs, saying ‘political morality is the hygiene that is needed to embed and sustain citizens’ faith’ in Lesotho’s ‘young democracy’.

Innovative Kenyan judgment on Presidential inaction should be studied by other jurisdictions - Justice Mathilda Twomey

The decision of a Kenyan judge has won high praise from trainers at a recent judicial core skills workshop by the Judicial Institute for Africa (JIFA), held in Cape Town and attended by judges from 12 African countries. The decision, by high court judge Enoch Mwita, dealt with a situation in which the President of the country, Uhuru Kenyatta, was held to have ignored the constitution by failing to appoint a member of the Judicial Service Commission. Justice Mohamed Warsame was elected by the judges of the Court of Appeal as their representative on the JSC, but Kenyatta did not officially appoint Justice Warsame even though he was obliged to do so by the constitution. What should be the court’s response, faced with the President’s continuing failure to act in terms of the constitution and appoint the commissioner? Judge Mwita’s decision, to ‘deem’ that Justice Warsame was appointed to the JSC, was highly praised by trainer Justice Mathilda Twomey, former Chief Justice of Seychelles and JIFA’s academic director. She said the deeming decision was recognition that new judicial tools need to be designed to fit circumstances in which the executive refuses to obey and enforce court orders.

Wildlife vs cattle: unauthorised newcomers cause tensions in Namibian conservation areas

Land is a major source of tension and dissatisfaction in Namibia and the courts are increasingly asked to step in when communities feel they are being ‘invaded’ by outsiders whose livestock put unbearable pressure on already scarce grazing resources. The latest such case involves a community trying to reinvent itself as a base for wildlife tourism: members of this community asked the court to order the removal of a number of families, with their livestock. They claim these outsiders and their animals are living on and grazing areas set aside for community wildlife conservation projects.

Training Tanzania’s judiciary on gender issues - the struggle, and the partial success

Training of judges and magistrates is an accepted tool to deal with built-in opinions and prejudices. In the same way, training can also be crucial in highlighting inaccurate preconceptions about gender issues. In her chapter forming part of the new work,  Gender, Judging and the Courts in Africa , Juliana Masabo (a Tanzanian high court judge and former academic) takes readers through the difficulties in ensuring training for judges, magistrates and others who play a role in the court processes of Tanzania.

Wiser to restrain ongoing activity than risk irreparable damage to the environment – Zambian judge

Two Tanzanian-owned entities operating on the edge of a significant national park in Zambia, have been ordered to stop cutting down trees, clearing vegetation or putting up constructions at least until the dispute between them and the trust running the reserve is resolved. The judge hearing the application for an interim order against the two entities said that the status quo ‘should not be maintained. It would be wiser to restrain ongoing activity rather than risk irreparable damage to the environment.’

Dismissal of staffer who refused Covid-19 vaccine ruled ‘fair’

Is mandatory workplace vaccination constitutional? Is it even a fair workplace practice? These are questions being asked in many jurisdictions as employers try to ensure safe work environments. The issue is also beginning to filter into the court system, as those who do not want to be vaccinated challenge employers who have made vaccination mandatory. In what seems to be the first such case to reach the Commission for Conciliation, Mediation and Arbitration (CCMA) in South Africa, the commissioner hearing the matter has decided that the company concerned did not act unfairly in dismissing an employee who refused to be vaccinated.

Controversial South African advocate barred by Lesotho CJ from prosecuting treason, murder case

Controversial advocate, Shaun Abrahams, forced from his top prosecution job in South Africa, has been hauled over the coals by Lesotho’s Chief Justice Sakoane Sakoane for his behaviour in a bitterly contested trial, and has been barred from further participation in the matter. Since he was dropped as the national prosecuting boss in SA, Abrahams has also had a not very successful stint prosecuting in Botswana. He was brought in to help the prosecuting authorities in Lesotho with a series of high-profile, politically sensitive murder and treason cases.

Gay 'spouses' case: Namibia's high court urges supreme court to change its mind

In a most unusual judgment, a full bench of Namibia’s high court has spelled out its strong disagreement with a decision made 21 years ago by that country’s highest court – and has urged the presently constituted Supreme Court to reconsider its views on the matter. The case, crucial for the country’s LGB community, and for human rights more broadly, concerned two same-sex couples (both couples involved one Namibian and one non-Namibian partner) ranged against the immigration authorities. The majority in a 2001 supreme court judgment had held that same-sex relationships were deliberately not recognised by the constitution, but the high court has now said while it was bound by this decision, it could not agree with it, and urged that the Supreme Court reconsider the matter.

The tale of an elephant in the room, by the supreme court of Seychelles

What does the tale of an on-again, off-again, children’s day-care centre in Seychelles have to say to readers from other legal jurisdictions? The case is apparently about how a court might approach what seems to be a valid lease that the government appears desperate to cancel. While that sounds unexceptional, here’s the catch: there are suggestions that the original deal to award the lease might have been finalised as a political favour and the government, caught out by the opposition, wanted to renege on the deal so as not to appear corrupt. Against this strained background, the judgment looks at what a court is to do about a valid lease and the government’s stratagems to have it cancelled.

Legal first for Zimbabwe as court orders damages for workplace sexual harassment

A ground-breaking judgment from the high court in Zimbabwe has held that a woman, sexually harassed at work, is entitled to damages. It is understood to be the first time that such an order has been made in Zimbabwe. The decision comes after the woman experienced sexual harassment by her employer in 2002/3. According to evidence, her whole life changed as a result of the harassment: she lost her job, her marriage broke up and her personality has changed dramatically.

Ugandan court puts widow's rights ahead of cultural practices

In a judgment that strikes a blow for women’s equality in the face of strong cultural practices, the Ugandan high court has ordered that a widow may decide where her deceased husband may be buried. This despite the wishes of the man’s family, who wanted him laid in an ancestral burial ground and who wanted the woman to be barred from in any way ‘interfering’ with the burial. Before making its decision, the court asked for expert witnesses to provide evidence about the burial traditions of the Ndiga clan. And, in its conclusion, the court urged that ordinary members of the public should be encouraged to adopt a culture of writing wills indicating their preferences about property distribution and burial preferences. The judge said this would reduce the number of cases handling burial dispute matters, and would promote peaceful relations between families.

Mauritian lawyer, named in controversial drug trafficking report, wins case to expunge findings

The controversial report of an official inquiry into drug trafficking in Mauritius continues to cause waves in that state’s upper echelons. When it appeared in 2018, the report led to the resignation of the minister for gender equality as well as the deputy speaker in the national assembly. Both said they would contest the report, particularly its suggestion that they were implicated in drug scandals. The report went even wider in its reach, however: as well as linking politicians to drug traffickers, it suggested certain police officers and lawyers were involved as well, and recommended further inquiries in relation to them. Now the supreme court of Mauritius has decided an application arising from the report, brought by a prominent member of the legal profession who objected to the several pages dealing with allegations against him. What makes the case even more noteworthy is that the lawyer is Abdool Raouf Gulbul, whose wife, Rehana Bibi Mungly-Gulbul, has just been appointed Chief Justice of Mauritius. One of the allegations against Gulbul in the report was that during the 2014 elections, when he stood unsuccessfully as a candidate, he had used his wife’s phone to make calls that he did not want recorded. Another is that, given the income of the couple at the time, they could not have afforded to buy the properties they own.

Outcry over rape decisions by Namibian magistrate

Decisions by a magistrate based at the Oshakati Regional Court in Namibia have led to strong community protest and concern by anti-rape activists who oppose sentences the judicial officer has passed in rape cases. They are also against him being asked to sentence a rapist in a case where he (the magistrate) had originally acquitted the accused. Now, following the state’s successful appeal against that acquittal, the magistrate must sentence the man whom he was originally sure was not guilty. Protesters, however, say the magistrate should have nothing more to do with the case as he will not bring an open mind to the matter.

Botswana's highest court upholds decriminalisation of gay sex, AG undertakes to implement this decision

Botswana’s apex court has upheld a high court decision decriminalising gay sex. And the country’s attorney general has issued a special media release on the subject, saying that Botswana has an impressive post-independence record of observing human rights and the rule of law. Against this background, the government will ensure the new decision in the court of appeal’s judgment is implemented.

Transgender victim of police unlawful arrest and assault awarded damages

Police in Namibia have yet again come in for some tough criticisms by the courts of that country. This time because of the unwarranted harassment, unlawful arrest, assault and abuse meted out against a transgender woman who was picked up and forced into a police van, for no good reason. A video that captured the continuation of the abuse and assault once the police van arrived at the station was shown to the court, and the judge quoted with approval comments in another case that ‘despicable conduct’ should not be associated with a professional police service in a constitutional state.

Judge concerned about 'overcriminalisation' of teenage sex

Many teenagers are sexually active but, in its efforts to protect children and vulnerable young people, the law is not always able to act appropriately in response. A significant new decision from the high court in Malawi raises the issue squarely and, in a section headed, ‘Overcriminalisation of factually consensual sexual intercourse’ suggests that South Africa, among others, might have found a suitable approach for the law to take. The judgment was delivered after the court reviewed the decision of a magistrate in a case where a teenage boy was charged with defilement for having had sex with a teenage girl a couple of years younger than he was. The magistrate acquitted the young man, but wrote a decision in a way that sensationalised the young woman’s sexual history and in so doing trivialised the problem faced by the courts, parents – and teenagers themselves. In her review of that decision, Judge Vikochi Chima suggested that this was not the style for judicial officers to adopt, but approved the magistrate’s finding that the young man should be acquitted.

Judges ask: are ‘fraudulent leakages’ responsible for all those missing court records?

Three Ugandan judges have been wrestling with an increasingly common problem in the region: appeals that cannot be heard because vital court documents have gone missing. In this latest case the appeal judges said that as with other such cases it was not possible to know whether the documents had disappeared by way of ‘fraudulent leakages’, but that the appeal rights of the accused had been infringed as they had been waiting six years for the registrar to supply the record, without success. The only light at the end of the tunnel was the hope that with digitalisation of Ugandan court records, the ‘spate’ of lost court records would come to an end, said the judges. They also urged the Principal Judge to ensure that leaks were ‘sealed’.

Namibian government to appeal in gay fathers' surrogacy case

An important Namibian high court decision, seen as progressive and widely welcomed in the gay and lesbian community, is to be challenged in that country’s highest court. The high court had ordered the government to register a child, born of a surrogacy arrangement in South Africa, as a Namibian citizen by descent. Complicating the decision in Namibia, where gay and lesbian rights are still contested terrain, is that the father, a Namibian, who brought the application for his child to be given Namibian citizenship by descent, is married to another man, in terms of South Africa law. The notice of appeal discloses that the government wants to challenge the outcome on a number of grounds including references by the high court to anti-gay discrimination in Namibia. But the supreme court might decide to deal with the matter on grounds related to the surrogacy agreement and its implications for Namibian citizenship law, rather than getting to the question of gay discrimination.

Court declares husband, charged with murdering his wife, 'unworthy' to bury her

A high court judge in Lesotho has found a husband ‘unworthy’ to bury his wife, because the evidence indicated that he had ‘brutalised her in what was plainly a ‘callous act of domestic violence’. Her birth family had asked that they be allowed to bury her instead, a move strongly opposed by the husband, charged with her murder and out on bail. He claimed that, as the heir, he had the right to bury her. Finding the husband responsible for the woman’s death, Judge Moroke Mokhesi said such behaviour offended public policy the world over. The abuse and brutalising of women was frowned on and it would ‘offend a sense of what is right’ to allow him to bury her merely because he was the heir.

Kenyan government put the ‘cart before the house’ on data protection and must live with the consequences, says court

The high court in Kenya has taken a strong line on protection of personal data related to the government’s new ‘huduma’ identity cards. The cards are meant to do away with the need for many cards related to various government services – ID, passport, clinic cards, driving licences and others. Collection and collation of the data needed for the new, all-encompassing cards has already taken place and the cards are now available for collection. However, a court challenge to the government’s failure to put in place any screen that would protect the privacy of the individual, has just been finalised in the high court, Nairobi. The presiding judge, Ngaah Jairus, has held that the government put the cart before the horse and that it was unconstitutional to have collected data without first ensuring the constitutional right to privacy would be protected.

Namibian judge delivers landmark ruling on gay rights and the rights of a child born of gay parents

The case involves a same-sex couple where only one of the couple is a Namibian. They have had a child by surrogacy, and now applied for the child to be granted Namibian citizenship by descent. The minister of home affairs and immigration objected, saying there should first be a paternity test to establish whether the biological father was in fact the Namibian man rather than his partner. Now the court has found against the minister, saying there is no requirement in law for a ‘biological link’ between child and parent. The judge also used the opportunity to speak strongly against official discrimination saying it was unconstitutional and should not be allowed to flourish.

Malawi paralegal investigation given go-ahead by court

The Malawi law society has lost the first round in its battle over turf: it had asked the high court to squash an investigation being planned by the legal affairs committee of the national assembly. The investigation could see a recommendation that paralegals be allowed to defend certain cases in the magistrates’ courts. However, Judge Mike Tembo refused to stop the inquiry, and said the action reminded the court ‘of the colonial days … in which the law severely limited black people’s political participation’.

Fairness at divorce

Two new judgments from the courts in Kenya and Zimbabwe underline changing judicial views about the role of women in building up a family home and the contribution that women, as wives and mothers, may be said, on divorce, to have made. One stresses with new urgency that women who work in the home should stand up for their rights and, at divorce, be prepared to give evidence in court about the significance of their contribution to the home. The other notes that despite progressive decisions by the courts, at divorce most men still undervalue the contribution of women and are unwilling to agree to an equal share in the matrimonial property.

Long struggle for justice after failed Kenya coup

Reverberations from Kenya’s 1982 coup attempt were felt once again last week, this time in a high court case brought by former members of the armed forces, tortured in the wake of the failed coup. The plotters had tried to get rid of the then president, Daniel Moi. After being held for more than a year, one of the former members of the armed forces involved in the litigation was subsequently let go without any charges. The others pleaded guilty to coup-related offences and served time, but now claim that they were forced into the guilty pleas by threats of continued torture. The high court declared all ten officers had been victims of unconstitutional treatment and they were awarded damages plus legal costs and interest.

Charged and found guilty of ‘being pregnant’, school learners now awarded damages in compensation

A group of pregnant school learners, the boyfriends by whom they were pregnant, and the parents of some of them, have been awarded damages for their ‘arrest’ and conviction under community by-laws. Sentenced to pay fines, they were kept in police cells until the fines were paid in full. Now, however, the fines must be repaid, along with damages. The exact amount of damages due was finalised last week by the assistant high court registrar who also warned that community by-laws did not amount to formal law. They could thus not be enforced through the formal legal system which did not, in any event, recognise pregnancy as an ‘offence’.

Doing well, but could do better: the judiciary and technology in Africa

The theme of the 2021 Southern African Chief Justices’ Forum conference was ‘The judiciary and technology in Africa’. As readers might expect, there was considerable focus on the switch, in many jurisdictions, to virtual court hearings because of Covid-19. But that’s not all that was on the agenda.

Court finds Kenya’s new tax law unconstitutional; calls government’s ‘vaccine’ for ‘virus’ of non- tax payments, ‘inappropriate’

Kenya’s high court has declared a controversial new tax law unconstitutional. The proposed new law would have seen taxpayers paying tax on gross turnover when they declared a loss or not enough profit to be billed for income tax. The government wanted the new law providing for a minimum tax to help state finances after Covid-19’s incursions on the fiscus. The decision is to go on appeal, but in the meantime the new tax cannot be levied.

Election case thrown out over advocate's expired practice certificate

When is an advocate not an advocate? The question has been raised in an application heard by the high court, Uganda, in a dispute related to elections held in that country earlier this year. The advocate concerned had commissioned an affidavit that formed the basis of the litigation, but the other side questioned whether the advocate was entitled to do so. It all came down to whether the advocate had renewed her annual practice certificate in time. If not, would the affidavit – and thus the petition – be valid?

Not all a bed of roses in Kenya’s flower export industry

A newcomer to Kenya’s trade union scene has been trying to have a more established trade union elbowed out of the way by the high court. The Kenya Export, Floriculture, Horticulture and Allied Workers Union says it should be the only union recognised by management. As a result, it said, the court should order that the cabinet secretary for labour must approve no further collective bargaining agreements related to floriculture and horticulture between the employer association and the established union.

Namibia’s apex court ‘seriously censures’ police officers for malicious arrest and acting as though ‘beyond any level of accountability’

Namibia’s highest court has sternly reproved elements of the country’s police service for seriously abusing their power and acting ‘as if they were beyond any level of accountability’. In its official summary of the case, the supreme court wrote that the ‘highhanded conduct of the police officers called for serious censure by this court.’ The case concerns Bernhardt Lazarus who runs a bar in Windhoek and who was terrorised by some members of the police who repeatedly arrested him, without warrant or cause.

Uganda’s anti-corruption court sentences international gold scammers

Uganda’s anti-corruption court has been hearing an incredible story about a gang of scammers, headed by Lawrence Lual Malong of South Sudan, a high-living playboy, sometimes photographed lying in pools of US dollars and wearing shoes, clothes and watches worth a fortune. Malong and two co-accused were convicted of fraud in that they extracted huge sums from two Ethiopian businessmen, living in South Africa, for gold that did not exist. Malong has been named in a variety of articles and reports including one from movie star and activist George Clooney’s anti-corruption outfit, The Sentry. A 2016 report by The Sentry, “War Crimes Shouldn’t Pay”, says Malong junior creates the impression of having ‘immense wealth’, and as benefitting from close family connections to the enormously rich and powerful in South Sudan.

Uganda’s ‘forest people’ win judgment over land dispossession for gorilla parks

A little-known Ugandan tribe, evicted from their ancestral lands to make way for three internationally famous national parks that are home to endangered gorillas, have won an important legal victory. The constitutional court of Uganda has held they must be helped and compensated for the loss of their lands. The Batwa people lived in the forests that are now known as the Mgahinga Gorilla National Park, the Bwindi Impenetrable National Park and the Echuva Central Forest Reserve. When they were evicted for the formal proclamation of these reserves, however, they were not paid proper compensation and live under what the court called appalling conditions. The exact extent and nature of the ‘affirmative action’ that the state must now take to improve the condition of the Batwa is to be decided by the high court after hearing proper evidence on what is needed.

Apologising for delay, Sierra Leone’s highest court says appeal ‘beggars belief’ because based on ‘unsigned and undated’ documents

The highest court in Sierra Leone has dismissed an appeal by the losing candidate in an election for chieftaincy. The appeal was, however, based on provisions that only came into legal operation after the disputed election. Not just that, the provisions were also never shown to any witness nor, until they were attached as annexures in counsel’s final written address, were they even available to the court itself. The supreme court found that the grounds for appeal were so weak that, if leave to appeal had had to be obtained, it would never have been granted in this case. In fact, it was a good example of why there should not be an automatic right of appeal to the apex court, said the judges.

Test of judicial impartiality, independence, for Eswatini judges

A case pending before the Supreme Court of Eswatini, and due for hearing at the end of August, could be a crucial test of judicial independence in the country. Lawyers involved in the case say at least three of the five judges due to preside when the case is called, are candidates for recusal. The appeal is due to deal with a high court’s declaration that key sections of Eswatini’s terrorism and sedition laws were unconstitutional. Even before the appeal is called, however, a prominent litigation organisation has also expressed its concerns about the composition of the bench. The Southern Africa Litigation Centre (SALC) says that two intended members of the supreme court bench, slated to hear the matter, were involved in the case at the high court level and could thus not sit in the appeal.

Case built on ‘a lie’ by investigators, prosecutors ‘gone rogue’ – judge clears former Botswana intelligence agent of charges

It will be a long time until the dust settles after this week’s sensational judgment in the case of Botswana’s former intelligence officer, Welheminah Maswabi. After a great deal of hype about the enormous sums of money that she was supposed to have stolen from the Botswana government – a total that was a good deal more than the country’s entire gross domestic product – the court found that the director of public prosecutions and the investigation team that worked on the case, had fabricated and deliberately falsified evidence. Those involved had ‘gone rogue’, committing a brazen criminal act, said the court. The prosecution of Maswabi involved other high profile people – Botswana’s former president, Ian Khama, and South African business woman, Bridgette Radebe – and Khama, for one, is planning to take action against those whom he believes are behind the extraordinary case.

Ugandan court guts anti-porn laws women say oppress, rather than protect, them

Women’s organisations and several individual women in Uganda have challenged key parts of the country’s 2014 laws intended to deal with pornography. They claimed that, far from protecting women, the ‘overbroad’ laws had led to women being assaulted and literally undressed in public by men who claimed their dress was ‘too skimpy’. The constitutional court was unanimous in agreeing to much of the petition and finding the contested provisions unconstitutional.  This decision is particularly interesting since it was responding to an application by a number of women and women’s organisations and yet anti-pornography laws are usually justified by governments on the grounds that they are necessary to protect women and children.

Newly ‘perfected’ death penalty decision shows all is far from perfect on Malawi’s apex court

It was an amazing glitch: though a majority of Malawi’s highest court was seen to have declared the death penalty unconstitutional in a decision delivered late April, the court now says this isn’t so. According to a ‘perfected’ version of the judgment, published this week, the lead writer of the April decision was expressing his own views on the death penalty, not those of his colleagues. In terms of explanations given by other members of the court in the new ‘perfected’ judgment, the lead writer was supposed to have expressed the majority view on the narrow question of whether the convicted prisoner whose appeal the court was considering, was entitled to a sentence re-hearing. Instead, however, he delivered a decision that was much more wide-ranging and committed the majority to a view it had not reached.

SADC loses appeal over unlawfully terminated contract with top tribunal official

Claims by senior Malawian judge, Charles Mkandawire, that his position with the Southern African Development Community’s now defunct tribunal was unlawfully terminated have again been upheld. Three judges of the SADC Administrative Tribunal’s appeal panel have dismissed an appeal brought by SADC, testing last year’s decision in favour of Judge Mkandawire, the original tribunal’s first registrar. After SADC closed down the tribunal at the instance of Zimbabwe’s former President, Robert Mugabe, Judge Mkandawire ultimately returned to Malawi where he is now a member of the country’s apex court.

Strong human rights judgment for prisoners in Lesotho

In an important human rights judgment, the high court of Lesotho has held that a former army commander, Tlali Kamoli, now a prisoner, refused bail and standing trial for murder and attempted murder, may attend the funeral of his son who died recently. The decision is important because Chief Justice Sakoane Sakoane, who wrote the decision, stressed the principle that the human rights of prisoners had to be taken into account in making such a decision - and in fact did so in his judgment. He also criticised the commissioner of Lesotho’s correctional services for the obstructing role he played in the matter of Kamoli attending the funeral. And while it became clear from the argument on behalf of the commissioner that he had assumed Kamoli would have to attend the funeral in chains and leg irons, the court made it clear that such treatment infringed a prisoner's right to dignity, among other rights.

Justice for Memory

Reports from Zimbabwe that a 14-year-old girl, Memory Machaya, died giving birth last month have inflamed social media in that country. Memory, whose family is part of an indigenous apostolic sect, was ‘married’ at 13 after her family forced her to leave school. She was buried within hours of her death, without any official investigation. There are now calls for urgent action by police and for government to speed up changes to the legal minimal age for marriage to reflect a decision, delivered five years ago by the constitutional court, stipulating that neither boys nor girls may marry before they are 18.

Courts consider litigation by deaf drivers, TV viewers

The rights of deaf people have been considered by the courts in two recent decisions, one in Zambia and the other in the UK. In the first, the applicants challenged Zambian provisions in terms of which deaf drivers are not entitled to driving licences. In the second, a deaf woman claimed the UK government discriminated against her and others in her position by not providing a British Sign Language interpreter for government live briefings to the public about Covid-19.

Major new development for law and rights related to African refugees, migrants

A new ‘centre of excellence’, focused on law that deals with refugees and migrants in Africa, was announced this week. Based at the University of Cape Town, the project has three major backers: the UNHCR (the UN’s refugee agency), the International Association of Refugee and Migration Judges and the Judicial Institute for Africa. Among its chief objects, the project will focus on university-certified training in refugee and migrant law for judges, magistrates and others working with refugees in Africa. It will also provide an immediately accessible, constantly updated database of relevant decisions, legislation and policy documents from around Africa that can be used by judges and magistrates as well as lawyers working with refugee and migrant clients, policy-makers and others.

Uganda prepares for new law on ‘human sacrifice’: here’s what a case of ‘human sacrifice’ looks like

Uganda’s President Yoweri Museveni has just signed a long-anticipated piece of legislation into law. The new legislation, aimed to deal with ‘human sacrifice’, was originally introduced as a private member’s Bill but won widespread support in parliament. Among other tough provisions, the new law prescribes life imprisonment for anyone found to unlawfully possess human body parts as well as ‘instruments associated with human sacrifice’. As the law becomes part of the state’s options for dealing with cases like this, a recent decision of Uganda’s court of appeal, involving just such a matter, brings home the horror it involves.

State must take tougher steps to ensure people's fundamental rights are not violated - Kenya’s apex court

The supreme court of Kenya has delivered a significant judgment on the right to shelter. It involved people who had been living in two informal settlements since the 1960s, when it was effectively public land. In 2013, they were forcibly evicted by a private entity, the Moi Educational Centre, with the help of the state via the police and others. The high court found in favour of the people who were evicted, saying there was an ‘unapologetic admission’ by the Moi Centre that it had evicted the people and had their homes demolished, all without a court order. The high court ruled that fundamental rights were indeed violated, and awarded damages to the petitioners. Much of this was set aside on appeal, and the petitioners then approached the supreme court for its view. The five supreme court justices unanimously ruled that the petitioners’ rights were infringed by the Moi Centre, the police and other arms of government, and affirmed the original high court finding as well as an award of damages.

Police act against two Kenyan high court judges, search chambers

Two judges of the high court in Kenya were questioned and their chambers searched last week, sparking widespread concern about whether this was a symptom of worsening relations between the judiciary and the executive. After the arrests – detectives now dispute that the judges were in fact ‘arrested’ – and questioning for several hours, the judges were released. Their lawyers said afterwards that the judges’ chambers had been searched, apparently for money that might have been evidence of bribery, but that nothing had been found. This week, however, the directorate of criminal investigations (DCI) claimed it had seized Ksh6million in the search. At this stage the situation is still confused – and confusing. But a useful article gives some guidance as to how the police ought to approach the question of arresting a judge and searching his or her chambers.

Judge sued by counsel over behaviour that supreme court rules is ‘unacceptable’

One of the legally most distressing cases ever to be argued in the courts of Zambia has reached a crucial point: the scandalous matter of a senior advocate suing a high court judge with allegations that his constitutional rights had been infringed by the judge, has now been considered by the country’s highest court. The supreme court has ordered that the matter be properly heard in the high court, but with the judge no longer named as respondent. This part of the decision followed a reaffirmation by the court of the principle that judges cannot be sued in their personal capacity. But the three supreme court judges also used the opportunity to chastise the judge concerned for his behaviour, saying that to call his behaviour ‘unacceptable’ would be an ‘understatement’. And they then went on to change the court rules to prevent such behaviour in the future. The dispute originally started when the judge did not announce a time for handing down his original decision and left counsel waiting, as the client’s costs escalated, until an 11pm delivery.

No justiciable rights to shelter in Zimbabwe – supreme court

Zimbabwe’s supreme court has confirmed that the country has no justiciable right to shelter, saying reference to shelter in the constitution was ‘essentially hortatory in nature’, operating merely as a kind of reminder or guideline to government in formulating policy. Given that shelter and housing is a major issue in Zimbabwe, this is an important decision that, along with the particular reasoning of the court, will impact on how human rights lawyers handle cases raising such issues in future.

Zambian statesman Kenneth Kaunda ‘not an ordinary person’ – high court

The family of Zambia’s first president, Kenneth Kaunda, approached a high court judge with an application to set aside the government’s decision for a state funeral and a two-stage burial for Kaunda, who died in June. The judge, Wildred Muma, refused the application. Though most readers know that he said, as part of his decision, that Kaunda was ‘not an ordinary person’, little is known about the legal reasons he gave for rejecting the application.

Death penalty case re-visited by Kenya supreme court

Kenya’s supreme court has given special directions in relation to follow-up of its landmark 2017 decision in relation to the mandatory death penalty. At a special sitting of the court, its members questioned a number of court decisions delivered in the wake of the watershed case of Francis Muruatetu and said that the confusion that had arisen needed to be resolved. The special sitting also made clear that the national assembly, along with the senate, the attorney general and the Kenya law reform commission, had not met the court’s deadline to propose a new framework for such cases.

School’s demand that Rasta boy cut his dreadlocks ‘unconstitutional’, court finds

The future of an academically gifted senior high school boy is in the balance again. The prestige school to which the boy had earlier won admission refused to enroll him unless he cut off his dreadlocks. Ghana’s high court recently declared that, in doing so, the school had infringed his rights and he had to be admitted. Almost immediately the decision was handed down, however, the school, which claimed its ultimatum in no way discriminated against the boy for his religious Rasta beliefs, said it would appeal against the high court’s decision.

Under-age rape trial in Malawi results in steamy judgment by court

A magistrate in Malawi has produced a decision on a statutory rape case that, in part, reads like a racy novel. The magistrate was presiding in the trial of an 18-year-old, charged with ‘defilement’ – the Malawian version of rape when the complainant is underage. At issue was the defence of the accused who said he genuinely thought the girl involved was over 16 – and in dealing with that question, the magistrate rather sensationalised the sexual history of the girl concerned.

Litigant faces criminal investigation after telling court to ‘stick its apology in its arse’

In a week that saw South Africa’s highest court order the country’s former President, Jacob Zuma, to serve a prison sentence for contempt of court, the second-highest court also had to deal with a litigant who expressed contempt, using language that must be unheard of in contemporary law reports. The five judges who heard this second matter said the litigant’s contempt would be referred to the national director of public prosecutions for action. The contempt took place in the context of a challenge to government anti-Covid-19 regulations, promulgated last year, and the litigant’s refusal to take part in a ‘virtual’ appeal hearing on the matter.

‘The law cannot be adhered to in part’ - Malawian court on dispute over police officer sacked for nude photos

Could the law countenance a dismissal on the grounds that a recruit had nude photos taken of herself while she was at police training college? That is the unusual question posed to the high court in Malawi, when the woman concerned challenged her dismissal. Was it even illegal – under any Malawian law – for a police officer or recruit to have taken nude pictures of herself for private use? Read on to see how the court resolved the problem.

Time to end mandatory death penalty in Zambia?

The courts of Zambia continue to pass and confirm the death penalty in alarming numbers, following a 2016 constitutional review in which the majority of voters expressed support for the existing laws on hanging. Presidents have periodically commuted large batches of death row prisoners. The most recent mass commuting of death penalty sentences occurred earlier this year, when President Edgar Lungu moved 225 men and 21 women off death row, ostensibly to reduce ‘overcrowding’ and create better conditions to protect against Covid-19. But in the months since then many more convicted people have been added to the numbers on death row - and judges keep adding to the number, thanks to the fact that the death penalty is mandatory for several offences in Zambia.

'Integrity arm' of State given prominence in new Kenyan decision

On Valentine’s Day, 2020, Kenya’s President Uhuru Kenyatta issued an executive order than brought him no red roses from the country’s human rights bodies. In fact, the order – purporting to ‘re-organise’ government and put various judicial bodies and independent commissions under other state departments and ministries – was the subject of a constitutional challenge brought by the law society of Kenya. Now the high court has decided the petition, and declared that the executive order was unconstitutional and invalid.

Media reports of unlawful home ‘invasion’ by private investigators amount to defamation – Eswatini supreme court

The Supreme Court of Eswatini has delivered judgment in a most extraordinary defamation case. It concerns the raid on a private home by operatives of a firm of private investigators. They broke into the house where they found a couple asleep, naked, in bed. Then they took distasteful photographs and video as the two people tried desperately to cover themselves. The firm said that they had been hired by the then minister of justice, who was, at the time, involved in a dispute with the man of the couple. But the media that published the first story about the ‘illegal raid’ on the house approached the story as though the couple had been caught doing something unlawful – which they were not. The supreme court has now confirmed the defamation finding of the high court, but has reduced the damages that must be paid.

Magistrate correct to have woman imprisoned for contempt over child access - Lesotho high court

A mother was found to have committed contempt of court by disobeying an order about child-access, shared with her ex-husband, and she was sent to prison. She later claimed the magistrate had wrongly ordered her imprisonment and she demanded financial compensation for alleged constitutional damages. But the high court in Lesotho has now found the mother was the one in the wrong, not the magistrate, and applauded the magistrate for protecting the dignity and effectiveness of the courts.

Former Chief Justices join row over Kenya President’s appointment of selected judges only

Kenya’s President Uhuru Kenyatta has appointed or promoted a number of judges. But not the whole list of 40 nominated by the judicial service commission. Only 34 were sworn in during a ceremony last week, causing strong criticism and strong justification by the President himself. Now two former Chief Justices, Willy Mutunga and David Maraga, have weighed in on the issue as well. Their comments follow criticism by some observers of their successor in office, the new CJ, Martha Koome. That criticism centres round whether her response to the President’s move was adequate.

Judicial appointments’ problems spread like a virus

Like a rampaging judicial virus, political and other problems are infecting the process of appointing judges in a number of African countries. And there’s no vaccine or any other easy solution in sight. Developments in Lesotho, Zimbabwe, Kenya – and then, out of the blue last week, South Africa – all point to serious problems about the process of judicial appointments. Here’s a guide to the symptoms of this particular virus.

Scrap colonial era common law crime of sodomy, urges Namibia's law reform commission

Namibia’s law reform and development commission has released a detailed report on what it terms the ‘possibly obsolete’ common law crimes of sodomy and unnatural offences. It traces the origins of these offences as well as their applicability today and concludes that the laws should be repealed, in line with the similar moves in many other countries. This is partly because they are ‘victimless crimes that serve no practical purpose whatsoever’ and partly because to scrap these laws would help recognise the inherent dignity ‘of all members of the human family’.

Kenya court says no more 'jobs for pals', sets aside 130 appointments

Kenya’s President Uhuru Kenyatta has been dealt another blow by the country’s courts, this time by three members of the high court who found a raft of appointments he made in June 2018 was unconstitutional. As the media in Kenya have pointed out, the list of more than 100 appointments made at that time of people to head parastatal organisations or serve on those boards, was dominated by individuals who had failed to win election in the 2017 polls. Now those appointments have been set aside on the basis that the mechanism followed was not the transparent, merit- and competition-based process envisaged in the constitution. Instead, there was not even an attempt to show any ‘semblance of transparency and accountability’. Nor was there any evidence of ‘any form of competition’.

Application that Zim’s former CJ be found in contempt of court

The decision by Zimbabwe’s former Chief Justice, Luke Malaba, to return to work despite a high court declaratory order that his tenure of office ended when he turned 70, has been challenged in court with an application that the former CJ be found in contempt of court, fined and imprisoned, for acting in a way that precipitated a ‘constitutional crisis’. The contempt application was brought by a human rights lawyer involved in one of the two applications leading to a court finding that Judge Malaba could not stay on in office beyond his 70 th  birthday.

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. When nothing came of that project either, the land was allocated to other developers who re-sold the property for private development purposes. One of the questions the judges of Zambia’s apex court had to consider was what the court’s attitude should be in such a case, given that the fraudulent misrepresentation came to light only after the supreme court’s earlier judgment that found the expropriation had been lawful.

Tough questions asked about JSC’s role in extending tenure of Zim’s retired CJ

The drama of Zimbabwe’s ‘judicial amendment’ is far from over. This week, two separate letters demanding information were sent to the judicial service commission, asking for details about the JSC’s role in considering or facilitating the extension of retired Chief Justice Luke Malaba’s tenure. The week also saw the government trying some damage control in the wake of the extraordinary statement issued by the minister of justice after the high court declared that Judge Malaba’s extension of office was invalid and that his retirement had begun on his 70 th  birthday.

Drama as Zim court finds Chief Justice must retire, confusion about an appeal

An urgent application, brought last weekend to stave off a constitutional crisis in Zimbabwe, may not achieve this aim, despite a court victory. The case challenged the extension of office of the country’s chief justice, Luke Malaba, for an additional five years beyond the constitutionally mandated retirement age of 70, thanks to a new constitutional amendment. Human rights lawyer Musa Kika, in whose name the case was brought, said that if Malaba were to stay on, unconstitutionally, then all decisions he made would be void. The matter should be heard urgently to stave off a constitutional crisis, he argued. After a marathon hearing, the three high court judges agreed that Malaba had to step down at 70 and that the deputy chief justice should now become the acting CJ. This provoked a furious reaction from the minister of justice who claimed that the judiciary had been ‘captured’ by foreign elements. But the outcome of the case creates a problem for those who wish to appeal. As all the supreme court judges have been cited in the case – they too are affected by the amendment that grants an additional five-year tenure – who is to hear an appeal?

Tough court sentence could mark shift on albinism murders in Malawi

A high court judge in Malawi has sentenced a gang who killed a man with albinism for his body parts, to life imprisonment, and recommended that they not ever be given sentence reduction by the country’s President. Judge Redson Kapindu said life imprisonment was perhaps an ‘even sterner’ punishment that the death penalty, since the prisoner had ‘only hopeless, painful years’ ahead of him, ‘… stretching out forever’. The murder of adults and children with albinism is a growing problem in many African countries, and some international organisations have criticised what they see as the inadequate response by government, police investigators, prosecutors and even the courts, which, in the view of these organisations, pass sentences that do not reflect the gravity of the crime or act as a deterrent. Perhaps the tough approach taken by Judge Kapindu, could mark a new phase in judicial response to this crime?

SADC and Covid-19: collective failure to meet human rights obligations says ICJ

The International Commission of Jurists has brought out a briefing paper on access to Covid-19 vaccines in the Southern Africa Development Community states. The report is called, ‘The Unvaccinated: Equality not Charity in Southern Africa’. It finds a collective failure to ensure access to vaccines even though more than 60 000 people have died due to the virus and the lives of countless others have been affected. The failure was caused by a number of factors, according to the report. These include denialism (Tanzania and Madagascar) and the failure to share relatively greater resources (South Africa). Even though SADC’s chair, President Filipe Nyusi of Mozambique encourages a ‘regional pooling of resources’ to make it easier to procure vaccines and their distribution, ‘SADC has … taken no clear action towards this goal.’

Tough new approach to sentencing in child rape cases

A significant development is under way in Malawi’s high court judgments on sentencing in child rape cases. Three new decisions by a couple of high court judges show a clear determination to treat such crimes with great seriousness and for sentencing to reflect the gravity of the crimes. The judges have also made significant critiques of aspects of defilement cases, with suggestions for what can be done to improve matters.

Ongwen sentenced by ICC: court’s intricate balancing task

Dominic Ongwen, a former child soldier captured by the Lord’s Resistance Army in northern Uganda and forced to join that militia, has been sentenced as an adult for the more than 60 counts of which he had been convicted by the International Criminal Court. Ongwen, found guilty of war crimes and crimes against humanity among others, escaped life imprisonment because of his unique personal circumstances, a reference to his childhood abduction.

Malawi joins growing trend outlawing death penalty

First, Malawi’s courts found it was unconstitutional for the death penalty to be mandatory in cases where the accused was convicted of murder. Now the apex court has found, by an overwhelming majority, that the death penalty itself is unconstitutional, and has ordered that everyone on death row must be re-sentenced. One member of the court dissented, without ever commenting on the issue of the constitutionality of the death penalty, finding that the route to resolving the appeal before the nine judges could be resolved in a different way.

Belated vindication for free speech, media, in African Commission decision

Two women journalists, released from prison in Rwanda after serving their full jail terms for writing and publishing articles that ‘endangered national security’, have been vindicated by the African Commission for Human and Peoples’ Rights. In its decision officially published last week, the commission found that Rwanda’s laws on defamation and freedom of expression violated the African Charter and should be amended. The two journalists, Agnes Uwimana-Nkusi and Saidati Mukakibibi, were charged in connection with articles published in 2010. They were originally sentenced to far longer prison terms, but on appeal this was reduced to four and three years respectively. While they were serving their sentences, international organisations helped mount a case before the African Commission, testing whether certain of Rwanda’s laws that impact on the media, including criminal defamation, were compatible with the African Charter. The commission has now officially found these laws violate the charter and have ‘requested’ that Rwanda amend its laws so that they comply with the rights guaranteed in the Charter.

Newborn twins born to gay parents, in maze over Namibian citizenship

The Namibian high court has ruled that it cannot order the government to issue emergency travel documents for newborn twins to come into the country. The babies were born to a South African surrogate mother. Their fathers, married in South Africa, are a Namibian and a Mexican. The babies have birth certificates, issued by the SA authorities, indicating that the Namibian is the father of the children. However, the Namibian minister of home affairs and immigration is insisting on a DNA test before any official documents will be issued for the twins. This would be to establish whether the Namibian man is the biological father, rather than the Mexican spouse. While the issue is fought in the courts and government offices, the Namibian father, with the two babies, is stuck in SA and cannot legally cross into Namibia with the twins.

Faced with 'wrongful allegations' of bribery, judge recuses herself

A prominent judge of Malawi’s high court has announced her recusal from a case involving the death of a woman allegedly at the hands of her husband. Judge Fiona Mwale has recused herself from the trial following claims by the family of the dead woman that bribe money had been collected to pay the presiding officer in the matter. She said that there was no truth in the claim, but that she felt she had to quit the trial so that the bribery allegation could be investigated. The trial has now been adjourned so that another judge may be appointed to deal with the case.

Judge stands down, citing 'intensity of insolence' from counsel

The search for Kenya’s new chief justice has reached a crucial point: an intensive fortnight of candidate interviews by the judicial service commission. But the battle over the future of the jurist leading the search, Kenya’s acting chief justice, Philomena Mwilu, is continuing in parallel. Most recently, the high court judge set to hear a petition that Justice Mwilu be removed as acting CJ and deputy CJ among other positions, because of graft allegations against her, has announced he will recuse himself. In his written decision on the question, the high court judge, Patrick Otieno, explained his recusal: given the line taken by Justice Mwilu’s counsel in the matter, he would be seen to have been ‘intimidated’ if he found for one side, or to have been ‘propelled by vengeance’ if he found for the other, he said. The judge further castigated counsel for the DCJ for making ‘preposterous accusations’ against him and for the ‘intensity of insolence’ he experienced from counsel in the case.

Police rape spree: huge compensation awarded by Malawi court

Thanks to the determined efforts of the women involved, no fewer than three recent decisions in Malawi have dealt with sexual assault, harassment or rape under extremely troubling circumstances. The trio of cases will surely act as a boost to awareness of women’s constitutional rights in Malawi, to add pressure on the police to investigate and on employers to act in cases of workplace sexual harassment.

Malawi's human rights commission recommends compensation for women sexually harassed by country's broadcasting boss

The women of Malawi had barely time to digest a landmark high court judgment ordering a company to pay ‘aggravated damages’ in a workplace sexual harassment matter, when a second, similar, high profile matter hit the news. This time it was a report from the Malawi Human Rights Commission which found the CEO of the country’s broadcasting corporation had sexually harassed women on the staff and recommended tough measures in response.

Dispute over sitting Ugandan judges appointed to head prosecution arm

Is a sitting judge allowed to take a job as head of his or her country’s prosecution services? And if a court finds that it was unconstitutional for the judge to accept the second position, what is the status of the judge’s decisions as a prosecutor? These, and difficult, related questions, have been raised in Uganda, where a series of judges have been appointed to other government jobs, without first resigning from the bench. The initial answers to the questions around the DPP job were decided in a constitutional petition last month: it’s unconstitutional, the court said, and from now on decisions by any judge who takes another government position without first resigning as a judge, will be invalid. Faced with an uproar from the prosecution services, however, the supreme court, the country’s apex forum, is to reconsider the question.

Landmark sexual harassment case in Malawi

The women of Malawi have been handed a legal victory that will stand them in good stead when faced with sexual harassment and assault at the workplace. It involves a woman working as a time-keeper for construction company Mota-Engil, who went to court over her experience of sexual harassment. She claimed that because her employers did nothing about her complaints, and thus allowed the situation to continue, Mota-Engil was liable to pay ‘aggravated damages’ to her. During the trial it emerged that the company did not have a proper system in place in terms of which action would be taken immediately that a sexual harassment claim was made.

Majority of Zambia's constitutional court: We are bound by this high court decision

When the constitution sets a minimum education level for members of parliament, what should be done about a candidate, accepted for nomination to parliament and ultimately voted in, who turns out not to have satisfied the requirements? Five judges of Zambia’s constitutional court split on this significant question, leaving the MP concerned, Lawrence Nyirenda, safely in his place.

African Court’s existence threatened by lack of cooperation from AU states

Africa’s premier regional human rights court, the African Court on Human and Peoples’ Rights, has released a detailed report on its activities and the challenges it faces. The report, published earlier this month, gives information about the difficulties and achievements of the court during 2020 as well as its plans for the immediate future.

Judges told not to make traditional rituals a condition of bail in sexual assault cases

The supreme court of India has slammed judges who impose ‘wholly inappropriate’ bail conditions in cases of sexual violence, like requiring that the accused visit the woman concerned and give her gifts. The court has also ordered that judges, lawyers and prosecutors must undergo gender sensitivity training to stop language and bail conditions that retraumatise victims. The decision, which comes during international women’s month, is likely to be well received by women’s organisations, professional law bodies and the courts in Africa where rulings from India are often quoted with approval.

Uganda's Internet closure during elections challenged at East African Court of Justice

Uganda’s government, which closed down social media and Internet access during the country’s January 2021 elections, is far from the only state to take such action over the time of national polls. In fact, research indicates that Senegal recently became the 63 rd  country to restrict social media access since 2015. But in the case of Uganda, the East Africa Law Society has decided to take action, launching a challenge in the East African Court of Justice.

Supreme Court judge's sensational claims against Chief Justice

What was meant to be the end of a high-profile political case intended to challenge the outcome of Uganda’s national elections earlier this year turned into something even more astonishing late this week: a senior member of the country’s Supreme Court claimed that Chief Justice Alfonse Owiny-Dollo had tried to gag her and stop her reading her minority decision in the matter until he had vetted her ruling. Justice Esther Kisakye went on to say that the CJ had used ‘barbaric methods’ in dealing with the matter and that he had given her unconstitutional orders that she felt she could not obey.

A women’s month win in Kenya – court finds ban on female genital mutilation constitutional

Since 2011 female genital mutilation has been illegal in Kenya – though too late for the 21 percent of girls and women in that country, aged between 15 and 49, estimated to have undergone the practice already. Though the ban was widely welcomed, and was introduced to the National Assembly as the brainchild of the cross-party Kenya Women’s Parliamentary Association, it has not been accepted by everyone. In fact, some traditionalists feel so strongly about it that they have gone to court with a claim that the law banning FGM is unconstitutional. Fortunately, in a judgment delivered this week, the high court has ruled that the law is valid – and has suggested that it should be further amended to close a gap that made proper enforcement difficult.

Dangers of policing Malawi's 'green', off-season fishing ban

At the heart of this unusual decision by Malawi’s senior magistrates’ court lies a dramatic account of the dangers involved in trying to protect the fragile ecosystem of the country’s fish-rich Lake Chilwa. Apart from ecological concerns the court also speaks with some anxiety about the way police put their members in unnecessary danger by sending them to deal with well-armed, illegal fishing people while hopelessly outnumbered. They were provided with just a paddle boat – against the engine-powered boats used by the fishermen – and were not adequately armed. The police also failed to send reinforcements, even when their members sent desperate pleas for help.

‘Run for your lives’, judge urges partners in abusive relationships

In a most unusual judgment from Kenya, one that fits perfectly with March marking international women’s month, a judge has found that a woman who killed her husband acted in self-defence after years of violent abuse at his hands. The judge sentenced the woman to prison until the rising of the court and ordered that she should receive counselling to help her recover from the trauma of the long-term abuse inflicted by her husband. Judge Roselyn Aburili also urged members of the public suffering in abusive relationships to leave and ‘find an escape route to safety’.

Covid-19 a further set back to fight against child marriage

Two major new reports have been released by the United Nations, both timed for international women’s month, and both pointing to the dire situation of many young woman around the world.

Is 'sting' of saluting former subordinates sufficient punishment, high court asked

When a formerly high-ranking Namibian prison official won a high court battle over his salary it was a wake-up call for governments keen to ensure that corruption and other crime is properly punished within the ranks of the civil service. The message is: check your legislation because it might not be as water-tight as you thought. In this case, the assistant commissioner of correctional services pleaded guilty to the theft of a mobile phone at a disciplinary inquiry and was demoted to the rank of senior superintendent as a punishment. When he was informed later that his salary would be reduced to that of senior superintendent, Kahimise challenged the decision. The high court has now found in his favour, saying the law as its stands did not provide for a reduction in salary in such a case and that the demotion in rank – and having to salute officers who previously had to salute him – was punishment enough.

Judicial disciplinary body tells Chief Justice to retract, apologise for pro-Israel comments critical of government policy

South Africa’s Chief Justice Mogoeng Mogoeng has been told to issue an apology and a retraction for a series of highly controversial comments he made in the middle of last year, criticising Pretoria’s policy on Israel. The decision plus the ‘remedial steps’ of apology and retraction were issued this week by the Judicial Conduct Committee of SA’s Judicial Service Commission. After a mid-2020 interview and subsequent comments defending the views he expressed, several official complaints were made to the JSC. Judge Phineas Mojapelo, newly-retired deputy judge president of the South Gauteng high court, Johannesburg, wrote the decision on behalf of the JCC.

Shock report by Malawi's ombud finds maladministration, corruption behind decision to bring in SA legal team

In a report handed down with commendable promptness, Malawi’s ombudsperson, Martha Chizuma, has found that the procurement of a team of South African lawyers to handle a crucial election appeal by the then-government of Malawi in 2020, amounted to maladministration and an abuse of power. Her shock report made a number of significant findings on this issue, with orders of tough remedial action – but also dealt with several unexpected additional findings of maladministration that had crept into official government appointment practice.

Court finds award of two Namibian farms, aimed at land reform, tainted by corruption and irregularities

An official decision awarding two farms to a business venture that had not even applied to be allotted them, has been set aside by Namibia’s high court. Judge Harold Geier said that the original decision had to be scrapped because one of the decision-makers had not recused himself even though he had an interest in the matter, being a manager of one of the business entities under consideration. It was an offence not to declare one’s interest in such a case, and recuse oneself, and could result in a fine and prison sentence.

Int'l law firm suggests expelling Tanzania from Commonwealth over Covid denialism

As local and international concern grows over the Tanzanian government’s handling of Covid-19, a major international law firm has written to the Commonwealth Secretariat, suggesting that the time had come to consider expelling Tanzania from the Commonwealth. International human rights specialist firm, Amsterdam & Partners, said this was because, due to the policies of its president, John Magufuli, Tanzania was not living up to its undertakings as a member of the Commonwealth. It had committed to fight against communicable disease but was instead endangering the lives of people in Tanzania and other Commonwealth countries. These concerns are shared by others as well and last weekend alone, both Human Rights Watch and the World Health Organisation also raised alarm about the effect of government policies on the health of Tanzanians.

Lesotho’s Minister of Law and Justice sues over allegations he helped fabricate evidence in murder case against former PM, Thomas Thabane

It has been a very busy few weeks in Lesotho. Included in these developments was a major cabinet reshuffle by Prime Minister Moeketsi Majoro, as well as the launch of new politically-charged court cases. Among the most interesting of these cases is a defamation action brought by the minister of law and justice,  Nqosa Mahao. In a newly-filed case he seeks to challenge a newspaper story that carried allegations against him made by a senior police officer. The allegations were that he, Mahoa, was involved in deliberately trying to ensure that Lesotho’s former Prime Minister, Thomas Thabane, was wrongfully accused of murder.

Which set of lawyers has the duty of care when an ‘impersonator’ makes off with the money paid by a would-be buyer?

Suppose a law firm draws up a land sale agreement between a client ‘well known to them’ and an outside party, and one of its lawyers witnesses the agreement, accompanies the parties to the bank and witnesses the payment of the funds to that same client. If that sale goes bad because the ‘seller’ (the client well known to the firm) was actually only impersonating the seller and previous owner of that land, and has since disappeared with the funds without giving over the land, where does that leave the firm in a negligence claim by the disappointed, not to mention aggrieved, would-be buyer? If the legal firm argued it had ‘no duty of care’ to the would-be buyer, would the court agree?

'Catastrophic' Nigerian oil pollution case may be heard in the UK - Supreme Court

Two Nigerian communities, hard hit through the devastation of their environment by oil spills, have won a legal victory in the UK supreme court that could have wide-reaching effects not only on their own situation, but in similar cases in future. The communities have been trying to sue Royal Dutch Shell for alleged negligence in Nigeria that has led to the severe pollution of their traditional lands. Overturning a court of appeal decision, the supreme court judges held that the appeal court was mistaken in finding that a parent company could never incur a duty of care in respect of the activities of a subsidiary, merely because the parent company maintained ‘group-wide policies and guidelines’. Rather, the issue was how far the parent took over or shared management of the dispute activity, with the subsidiary. The most immediate consequence of the judgment is that it will allow the Nigerian claimants to litigate their negligence case in the UK courts.

Hotel owners refused another ‘bite at the cherry’ by Zambia’s supreme court

The supreme court of Zambia, involved in a dispute about damages following a bizarre defamation, have refused to consider an application brought under the slip rule. The court said the rule was intended to fix minor problems like dates, not allow litigants with a long list of complaints about the original judgment to have a ‘second bite at the cherry’ aimed at attempting to secure a more favourable outcome. The initial dispute was over allegations, carried in the local media, that a prominent political figure had said a hotel should be closed as it was being 'run as a brothel'.

Judge sets new Malawi benchmark in child rape case

Against the background of a sharp and disturbing rise in the rape of children in Malawi (a problem in a number of other jurisdictions as well), a prominent high court judge has delivered a decision setting a new benchmark for sentence and judicial comment in response to such crimes. His important new judgment comes as police in Malawi have released new rape statistics showing that the number of young girls raped (or ‘defiled’ in terms of Malawi’s law) is far higher than the number of adult women raped. Police have speculated that this was due to ‘superstitious beliefs’ that raping a child brought luck or wealth.

Making history, Intl Criminal Court convicts former Uganda militia leader of war crimes, crimes against humanity

Dominic Ongwen, a former commander with the Lord’s Resistance Army that terrorised areas of northern Uganda for decades, has been convicted by the International Criminal Court of war crimes and crimes against humanity. Sentence is yet to be passed. The judgment broke new ground in several ways, both in terms of the crimes of which he was convicted, and the involvement of communities in East Africa, affected by the long-running civil war, who had been helped to feel involved in the process of the trial and who listened to the court’s decision via a radio or television link in sometimes far-flung areas.

'Global jurist of the year': prestige award goes to Kenya’s Justice Mumbi Ngugi

One of the most prominent judges in Kenya has been given a major reward in recognition of her work in support of human rights. Judge Mumbi Ngugi, who sits on the anti-corruption and economic crimes division of the high court in Kenya, is also a world advocate for the rights of people with albinism at a time when, in certain parts of the world such as Kenya, people with albinism are targeted and sometimes even killed for ritual purposes. The award to Judge Ngugi is to be made later this month by the Centre for International Human Rights, based at the law school of Northwestern University.

UK hold on Chagos archipelago declared unlawful

Most inland countries would ignore decisions of the world’s maritime court, the International Tribune for the Law of the Sea (Itlos). But this decision is different. It sheds important light on one of the few places in the world still regarded by many (including the United Nations) as a colony that should be returned to its original people. This time the ‘colony’ is the Chagos Archipelago – a group of islands and atolls in the Indian Ocean. Mauritius says the islands are a part of its territory. But the UK denies this. Despite a key opinion by the ICC and a crucial resolution by the UN general assembly both saying that the UK was unlawfully in occupation, the UK has held fast to its position – and to the archipelago. Following the Itlos judgment, however, will its hold be quite so secure?

Crisis averted in the Kenyan judiciary – for now at least

Kenya’s deputy chief justice, Philomena Mwilu, has been under pressure since she was arrested and charged in connection with corruption and tax related offences in 2018. But that has only increased since former chief justice, David Maraga, left office to take leave, pending retirement, late last year. Early in January 2021, an application, ultimately unsuccessful, was made for her to be prevented from taking over as Acting Chief Justice. And last week, a different application was granted, on an interim basis, for a similar order. As a result, she was temporarily suspended as Deputy Chief Justice, as a member of the supreme court and as part of the Judicial Service Commission. Initially, it seemed the court’s order would throw the judiciary into disarray, but that order was quickly set aside following an urgent application just a couple of days later.

Intl Criminal Court to announce verdict on notorious Lord’s Resistance Army leader

It will be a crucial moment for international justice as well as for justice in Uganda when the International Criminal Court gives its verdict on 4 February 2021 in the case of Dominic Ongwen, a much-feared commander of the Lord’s Resistance Army (LRA). It's so important that Human Rights Watch has prepared a special briefing explaining the background and significance of the case.

Human rights 'upside' of the Trump years

Human Rights Watch has released its 2021 report on the state of the world in 2020. And though it is upfront about the hostility of former USA president, Donald Trump, to human rights at home and in the rest of the world, the organisation finds some unexpected reasons for optimism arising from this hostility. The report summarises the state of human rights in almost 100 countries across the world in 2020. Among them are a number from Africa starting from Algeria, Angola, Burkina Faso, Burundi and Cameroon, then taking in other countries right across the continent (and the alphabet), and winding up with reports on Uganda and Zimbabwe.

Uganda’s security forces wait 24 hours before obeying court order to end opposition leader’s house arrest

Uganda’s high court has encouraged many with its ruling that opposition leader Bobi Wine should be freed from what has effectively been a period of house arrest, during which security forces outside his home refused to let anyone go in or out. Given the atmosphere of tension and fear in the country, there was keen public interest in how the court would handle a matter which so obviously involved crossing the government and acting independently.

Zim's top court clarifies bequeathed property dispute

After a decade of legal uncertainty, the supreme court of Zimbabwe has clarified a contentious problem relating to whether spouses are legally obliged to bequeath their property to each other. The courts have been divided over the issue for some time. Some have taken the view, now upheld by the supreme court, that a spouse, not married in community of property, has testamentary freedom. Others said that a will effectively disinheriting the other spouse was unlawful. Moreover, it had a disproportionate effect on women and would thus be unconstitutional. A judgment written by Chief Justice Luke Malaba and with the unanimous agreement of four of his colleagues, has brought certainty to the question. They found that a will is not invalid merely because the testator bequeaths property to someone other than the surviving spouse. Where there was no will, however, or where the couple were married in community of property, a different law and a different legal regime apply.

International lawyers’ body announces its new president: Zimbabwean Sternford Moyo

The International Bar Association has announced Zimbabwean lawyer, Sternford Moyo, as the new president of the influential organisation. Harare-based Moyo is the chairman and senior partner at Scanlen and Holderness, a firm he joined in 1982 and where his particular specialties are mining, corporate and commercial law. He is the first lawyer from Africa to head the organisation.

Legal row over Kenya's acting Chief Justice

The appointment of a new Chief Justice for Kenya is turning into the nightmare that court-watchers had predicted – and the process still has a long way to go. Former CJ David Maraga officially stood down last week, having taken his outstanding leave from mid-December 2020. He leaves behind a number of unresolved conflicts between the judiciary on the one hand and the executive and legislature on the other. For example, President Uhuru Kenyatta still refuses the appointment of more than 40 judges selected by the Judicial Service Commission – apparently part of his retribution for the court holding in September 2017 that elections in the previous month were invalid. The latest problem, however, concerns the Deputy Chief Justice, Philomena Mwilu, set to take over as Acting Chief Justice pending the new appointment. However, a legal activist has been making determined efforts to stop her from taking the acting appointment, saying that she is not constitutionally entitled to such a post, and that corruption charges pending against her also disqualify her from serving as ACJ. Now the high court’s constitutional and human rights division has refused to consider this controversial petition. But it has set new deadlines for amendments to be made to the original petition after which the matter could return to court.

Religious freedom the winner in Zim school flag salute dispute

Attempts to establish a compulsory daily ceremony for schoolchildren to salute the national flag have come unstuck in Zimbabwe. The education authorities intended the ceremony to ‘inculcate patriotism’ and other values, according to the justification their lawyers argued before the constitutional court. But not everyone was impresssed. One parent went to court with a claim that the ceremony was not constitutionally acceptable and saying that his right, and the right of his children, to freedom of religion was infringed by the compulsory requirement of flag-saluting. He argued that the ceremony, which included words directed at ‘Almighty God’, infringed the religious freedom of others as well. Nine judges including the Chief Justice sat as a constitutional court to hear the matter. They have agreed with the father, finding the ceremony unconstitutional because it was made compulsory, and because there was no provision for those who found it in conflict with their religious beliefs. The judges were, however, less forthcoming about why it took nearly four years for them to finalise and deliver the judgment.

Benin taken to task by African Court for Charter failures – not even constitutional court escapes censure

Seldom does Africa’s premier regional court find that laws or practices relating to a state’s court violate rights enshrined in the African Charter. But in a new decision, delivered by the African Court on Human and Peoples’ Rights, the judges declared that Benin violated its obligation to guarantee the independence of the country’s constitutional court. The judges were equally clear that recent changes to the constitution should have involved far more consultation with the people. Among other decisions they declared that the state of Benin had violated the Charter right to information, as well as the right to economic, social and cultural development.

Diplomatic immunity defence in Kenya's maintenance case

The tragic story of young Harry Dunn, knocked over and killed last year allegedly by the wife of a member of the US diplomatic corps in the UK, was a reminder of the conundrums that can sometimes be caused by diplomatic immunity. She left the UK after the accident and the US government has refused her return, citing immunity. Now a poignant new case is being decided in Kenya, a case that raises just as complex a conflict between rights and immunity. It concerns a senior diplomat from Sierra Leone, stationed in Kenya. A woman, claiming to be a former girlfriend of his, has gone to court asking that he be ordered to pay maintenance for a child born of their relationship. But despite the court’s order he has refused to do so, citing the Vienna Convention to justify his inaction. As the case winds its way through many hearings, the sum he owes in maintenance is mounting steeply. And the high court is unimpressed.

'Help us', Tanzania's opposition urges African Court

Elections in Tanzania at the end of October passed with little comment from outside that country. And since the declaration of John Magufuli as president, Tanzanian politics have been relegated to a non-issue in most other parts of the world. But not for long: disputed aspects of the polls are about to be ventilated in court even though legal challenges to aspects of the election are not allowed in Tanzania’s own courts. Activists have taken their dispute over the way the elections were conducted to the African Court on Human and Peoples’ Rights. It promises to be a landmark case: given the inability of people inside Tanzania to bring a meaningful test of the polls’ validity, the African court could prove an alternative forum - and one drawing an international audience; further, in a politically poignant development, this will also be the last case from Tanzania that the court will hear.

Even refugees have a right to be heard on voting issues – high court

Key organisations working with Kenya’s vast refugee community want them to elect leaders based on where they live now, rather than where they came from. They say this will reduce ethnic tension and will fall in line with the general approach to elections in Kenya. To implement these changes, the country’s refugee affairs secretariat and the United Nations refugee agency have been working on new guidelines for how refugee community leaders will be chosen. But it turns out that these guidelines were not discussed beforehand with the affected communities. Enter one of Kenya’s most prominent human rights activists, on a mission to ensure justice is done – and that the voices of the most vulnerable communities in the country are heard.

‘Unprecedented levels of political interference with courts’ – Chief Justice

The leader of the judiciary in England and Wales has reacted sharply to continuing attempts by politicians to interfere with the judiciary, judicial appointments and judicial decisions. In fact, he has even suggested that politicians should be taught about the boundaries that should exist between parliament and the judiciary and that a short course could be drawn up for new members, to explain these ‘boundaries’ and why they should be observed.

Remembering the first woman to argue before the US Supreme Court

The first woman to argue a matter before the US Supreme Court, Belva Lockwood, was also directly responsible for ensuring that the first black lawyer was able to argue in the Supreme Court some time later. Belva Lockwood's landmark first case, Kaiser v Strickney, was argued 140 years ago this week.

Former President, Judge, both ordered to pay legal costs from their own pockets

In a further stunning reversal for Malawi’s former President, Peter Mutharika, he and a former high court judge, Lloyd Muhara, have been ordered personally to pay the legal costs of a case brought to reverse a major decision taken by them just before the elections at which Mutharika was voted out of office. By that decision they hoped to force the Chief Justice to go on leave, pending retirement, in retaliation for a judicial decision finding that the May 2019 elections were invalid. Muhara, who had moved from the bench to government offices as a secretary to cabinet, wrote official letters on behalf of government, announcing the decision about the CJ, a decision the courts have since found to have been unconstitutional and made in bad faith.

Release police review report, urge more than 20 South African civil society organisations

Dozens of civil society organisations have urged the government to release a report into South Africa's police methods, conducted by a panel of experts set up in the wake of the 2012 Marikana massacre - when police fired into groups of striking miners, killing 34 and leaving more than 70 injured. The report closely examined police methods and related issues and could have played an important role in relation to a pending Bill related to the police. But though it was to have been released this week, it has now been indefinitely blanketed, prompting urgent calls for the secrecy to be lifted.

Lesotho amnesty deal unconstitutional – apex court

Relatives of people murdered allegedly on the orders of prominent politicians in Lesotho have gone to court to challenge a new agreement brokered by the Southern African Development Community (SADC). Under this agreement, all parties have been urged to join talks on the way forward for the country, and those now in exile out of fear of being charged with murder and other crimes, have been assured no action would be taken against them if they returned for the talks. Bereaved relatives, however, told the court this was an unlawful step, and that the grant of immunity undermined the powers of the prosecuting authorities. Argument on this crucial issue has been heard over a number of days by Lesotho’s constitutional court, and the three judges who presided have now given their decision.

Senior African judge wins second term on top world court

Justice Julia Sebutinde of Uganda is set for a second term on the UN’s International Court of Justice, one of a 15-member bench drawn from jurists round the world. She had faced competition for the slot from contenders put up by Nigeria, Croatia and, because of tensions between the two countries, from Rwanda as well. Justice Sebutinde has extensive international and African experience. She is regarded as probably Africa's most senior woman judge, and her re-appointment last week was widely expected.

‘Unstable arithmetic’ indicates corrupt deal – judge

When a Tanzanian court clerk appealed against his conviction and sentence for corruptly demanding payments from a would-be litigant at court, he did not realise that his faulty sums would help confirm his guilt. What Judge Amour Khamis would later describe as ‘unstable arithmetic’ convinced the court that there was no truth in the explanation given for the payments and that conviction and sentence should be confirmed.

Bail for death row prisoner after long appeal delay

Normally a reader might have little sympathy for someone convicted of murder who is serving time in prison. But the case of Malawian Charles Khoviwa is rather different. Sitting on death row for many years, Khoviwa has been trying to have sentence in his case reconsidered, now that the courts have decided that the mandatory death penalty, in force at the time of his conviction, is unconstitutional. His appeal, asking for a re-sentencing hearing, was argued nearly three years ago before a full bench of the Supreme Court – and still judgment has not been delivered. Now a single judge of that court has decided to grant him bail, saying it was not the fault of Khoviwa that ‘the judgment he awaits has been pending for so long’. After serving 18 years in prison, Khoviwa may now wait at home for the decision on whether he will be granted a re-hearing on sentence.

Seychelles: new Chief Justice announced, sworn in

Supreme Court judge, Ronny Govinden, has been appointed as Chief Justice of Seychelles and was sworn in on November 9.

SADC unlawfully terminated Malawi judge's contract - Tribunal

After the disappointing, politically expedient demise of the Southern African Development Community Tribunal, a new decision by its replacement Southern African Development Community Administrative Tribunal (Sadcat) shows how a top staffer of the defunct body was leaned on by SADC to make him go quietly. But SADC reckoned without the determination of Judge Charles Mkandawire, someone who has shown his mettle in contentious cases heard in his home of Malawi.

Constitution 'is the boss', Lesotho judge tells police

Respect for individual rights and the Rule of Law is collapsing in several states in this region – Zimbabwe being a prime example. So it is a welcome relief to find a decision by a high court judge that is dedicated to the preservation and protection of constitutional values. The judge concerned, Sakoane Sakoane of Lesotho’s high court, had some powerful words of warning for the police after finding that they had attacked and assaulted a man for no acceptable reason. The judge said the police had behaved ‘like terrorists in uniform’ and that the courts would no longer merely send ‘warnings’ to the police about respecting people’s constitutional rights. From now on, police should expect only ‘uncompromising judicial eradication of the pernicious culture of police brutality,’ Judge Sakoane said.

Freedom of speech supports good governance says President of Sierra Leone

Things are looking up for the media in Sierra Leone. For decades journalists have been harassed by a colonial-era law that created the offence of criminal libel. And as recently as four months ago this section was used against a journalist and publisher who spent 50 days in detention before being freed on bail. Then, last week, the country’s President, Julius Maada Bio, signed the death certificate of the section used against the media, a step already begun in July when some members of parliament repealed this part of the law. At this official event, President Bio also announced that the government was determined to allow the development of a free and robust media.

More than 20 Kenyan laws nullified after National Assembly disregards Senate

As the still-unresolved fight over the number of women in Parliament shows, Kenya’s constitution is very much a work in progress, with continuing disputes over what its text means exactly and how seriously to take clauses that some parties dismiss as merely ‘aspirational’. The latest case to be decided by the courts on gaps or possible ambiguities in the constitution concerns the very serious question of how the Senate and the National Assembly must relate to one another. In this case, in an almost unheard of development, the Senate and its top officials sued the Speaker of the National Assembly, as well as the National Assembly itself. Now three judges have produced a constitutional judgment finding that the Senate was right: in many cases the National Assembly ought to have worked with the Senate to pass legislation. The fact that the Senate was left out of the process means that no fewer than 23 laws, passed by the National Assembly, are unconstitutional and thus null and void.

Judge claims CJ instructs how cases must be decided

The crisis in Zimbabwe heightened this week, with a spotlight now pointed at internal problems within the judiciary. First, a judge who was suspended on contested grounds has launched an urgent application to prevent a disciplinary tribunal from being set up to investigate her. In the course of her founding affidavit she made some grave allegations against the Chief Justice, for example, saying that he routinely intervened to ensure judges decided matters in a certain way. And then, as the people of Zimbabwe were digesting her claims, a second document was published, this time apparently put out by judges of the high court and the supreme court, making similar allegations about the role of the CJ and his irregular interventions.

Attorney loses battle with Chief Justice over dirty hands

Strange to say, there are two current cases in the region citing a Chief Justice as respondent in a civil matter. Apart from the grave issue involving the Chief Justice of Zimbabwe (see above), there is another case in which the respondent is a Chief Justice. This time it is the judicial head of Eswatini, Bheki Maphalala, who was sued as a respondent, along with the government of Eswatini and the attorney general. The applicant was a local attorney, Muzi Simelane, whose battle with the CJ over the issues raised in this judgment, has lasted for a number of years.

Mapping legal impact of the African Court

As the number of decisions by the African Court on Human and Peoples’ Rights grows, legal scholars have become keen to track its influence. Now there’s a formal project dedicated to doing just that – and it needs your help.

International honour for Malawi’s judges

When five of Malawi’s judges overturned that country’s presidential elections in 2019 because of 'grave irregularities', it seemed a brave and startling thing to do. Their decision led to fresh elections and then to a change in government. Now it has also caused them to win an international award, the Chatham House Prize, given to those the institute feels have made the most significant contribution to improved international relations.

Elections for Africa's top human rights bodies should be transparent, merit-based

African Human Rights Day seems like a good time to reflect on an issue that affects all three of the continent’s premier human rights bodies: the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child. This issue is one that is raised in a new report by Amnesty International, and it’s an issue faced by each country separately as well, namely how the system of choosing judges is run, in order to ensure transparency, fairness and the best candidates.

No evidence, no arrest - Kenya high court

A prominent Kenyan legal academic and practising advocate, Professor Tom Odhiambo Ojienda, is in the midst of a running battle between himself and the country’s tax bosses and prosecution services. The authorities claim that he has not paid tax on payment for work in a series of cases. The claims are particularly damaging for Ojienda, given that his law company advertises itself as ‘a top-tier law firm comprising a dedicated team of advocates and support staff offering expert legal advice’. After he was arrested and detained by the prosecuting authorities, Ojienda asked the courts to intervene, and they have now done so, with the judge holding that Ojienda should not have been arrested as there had been no evidence to justify such a step. The judge said that the power to prosecute was like a ‘river’. It had to ‘flow within its course,’ he said. Anytime it left its path ‘it causes floods and untold human suffering’. The power of the prosecution services had to be confined ‘within the four corners of the constitution’, otherwise innocent citizens would suffer if the courts did not check the abuse of that power.

Support rule of law – by sharing law books

A small charity based in the United Kingdom has been helping judges, lawyers and NGOs by providing them with law books. The books are free and must be requested online.

World Mental Health Day highlights shackling, inadequate court response

Just as Human Rights Watch issued its horrific report on the shackling of people with mental illness in many countries around the world, so an equally horrific case has emerged in Namibia. The report and the case show that there is a great deal still to be done to sensitise ordinary members of communities round the world – and, sadly, this includes magistrates, whom one might expect to know better – about how to respond to mental illness and what the law and the constitution require in such cases. Judges of Namibia’s high court recently picked up on review that there had been a problem with the trial of a woman recognised as mentally ill by her community, but by the time the magistrate responded to their questions almost a year down the line, it was too late: though the judges set aside her conviction days before World Mental Health Day, she had already served the sentence in full.

A new anti-corruption hero – and a judge who holds the line

A woman who held firm against a shady 'fronting' scheme has been vindicated by the high court in Mombasa. After Rachel Ndambuki refused to become part of the scheme she was demoted and sent to another office. However, she persisted with her legal action, saying her transfer and demotion had infringed a number of her rights and that she should be paid damages. The case also saw a prominent civil servant be declared in contempt of court, and be fined, after ignoring a court order not to effect Ndambuki's transfer until the court had heard full argument in the case.

Will Acting Chief Justice swear in winner of Seychelles presidential election?

The five-year contract of Chief Justice Mathilda Twomey came to an end earlier this month, and a new judicial leader for Seychelles must now be appointed. That is the responsibility of the Constitutional Appointments Authority of Seychelles. In the meantime, however, an Acting Chief Justice has been named: Justice Melchior Vidot.

Don't view sexual offences only through traditional male perspective - Chief Justice

In one of her last decisions before ending a five-year contract as head of the judiciary in Seychelles, Chief Justice Mathilda Twomey came out strongly on the need for the country’s penal code to be modernised in relation to its definition of consent in sexual offences. The CJ said that at present it only defined ‘absence of consent’, and that it was time ‘to look beyond the traditional male perspective as the prism through which sexual offences must necessarily be viewed.’

Court dismisses bid to remove 'dirty money' report

As concern grows about enormous amounts of money unlawfully leaving Africa, two new reports and a significant court case highlight the growing problem. A new report by the UN Conference on Trade and Development, UNCTAD, 'Economic Development in Africa 2020', estimates that if illicit capital flight from Africa were stopped, it could virtually halve the financing gap of $200b that the continent faces if it is to achieve its Sustainable Development Goals. And while experts are unanimous that illicit financial flow must be stopped, another report gives a concrete example of what seems to have been going wrong. Entitled, 'The Golden Laundromat; the conflict gold trade from Eastern Congo to the United States and Europe', it is a report of an investigation into 'the dirty money connected to African war criminals and transnational war profiteers'. In particular, the report points to the Uganda-based African Gold Refinery (AGR), saying it has been refining gold from conflict areas of the eastern Democratic Republic of Congo, which is then exported through a series of companies to Europe and the United States. AGR is challenging the report in court in Uganda, claiming it is defamatory. Pending a full hearing, however, AGR asked the court for an interim order that the report has to be removed from the website. As readers will quickly see, however, there was no chance that the court would agree to silence the Laundromat: the two brothers running AGR were recently convicted in a court in Antwerp of both money-laundering and fraud.

Article 8363

Bail for arrested government critics and others is becoming an increasingly common legal issue in countries of the Southern African Development Community. But a new decision from Kenya’s high court, written by Judge Joel Ngugi, is a model of how the problem should be approached. He was faced with a magistrate’s decision to approve the continuing detention of government critic Oscar Sudi, against whom no charges, not even so-called ‘holding charges’, had yet been formulated. The magistrate accepted the police argument that continuing his detention would allow the authorities to investigate and formulate exactly what charges they wanted to bring against Sudi. But in his reconsideration of the magistrate’s ruling, Ngugi delved into the Constitution and concluded that there was no way that Sudi’s continued detention was constitutional. Instead, he granted bail, but stipulated conditions that would allow the police to continue their investigation unhindered. The decision is one that should interest judges elsewhere in the region; many other courts could profit from the Ngugi approach, namely to uphold the constitution and protect the rights of the individual while allowing investigations to proceed.

Twomey steps down as Seychelles CJ but continues on Court of Appeal – and joins us at Jifa!

No-one could ever call Justice Mathilda Twomey of Seychelles a ‘usual’ kind of person. She has spent the last five years as the highly-successful Chief Justice of Seychelles and a member of the country’s apex Court of Appeal. But she had only accepted the post on condition that she would stand down as CJ at the end of five years. Now she has reached the end of that contract period, and is about to start a new phase in her life, one that could greatly benefit a wider community than just Seychelles.

High court judge finds 'no place' for sexual offences corroboration rule in Malawi

Many women and men have long felt uncomfortable with the corroboration requirement attached to trials of sexual offences. This requirement, whether a matter of law or practice, appears increasingly unjustifiable, unconstitutional even. It is inevitably, and almost exclusively, directed against women who are the overwhelming targets of sex crimes. Malawi now appears to have joined the list of jurisdictions where the corroboration rule will be regarded with suspicion and discarded. The latest decision is by Judge Fiona Mwale, but it builds on an earlier judgment by another judge from Malawi, Maclean Kamwambe, as well as legal and academic critiques of the corroboration rule. Perhaps, with two clear decisions against the corroboration requirement, other Malawian courts will adopt this approach as well, without having to wait for the supreme court of appeal to speak?

Controversial Ugandan retired military officer loses court bid to prevent arrest during election run-up

An increasingly contentious figure in Uganda, retired military general Henry Tumukunde, has just tried – and failed – to invoke judicial help against persistent police action targeted at him. Tumukunde, a once close ally of Uganda’s President Yoweri Museveni, plans to contest the presidential position in next year’s elections. But during the run-up to the elections, he has become a person of considerable interest to the police and the army, and he has been arrested several times. His latest court action was for a temporary interdict to prevent the police from arresting him and violating his constitutional rights.

Sewage is ‘not a public friend’

A broken sewerage pipe in the capital of Malawi has led to a successful claim for damages under the country’s consumer protection legislation. The pipe broke but when it was not initially fixed by the authorities, sewage found its way into the pipe that supplied clean water for drinking and other household use. Consumers then formed a neighbourhood action group to monitor the quality of the drinking water, and to bring legal action for compensation.

Kenya's apex court confirms 'novel' rights of victim's counsel

A man accused of murdering a student has helped make new law. That's because of the significant judgment issued by Kenya's Supreme Court after he tried to stop counsel for the deceased student becoming involved in the trial. Joseph Waswa, charged with killing Mitch Kibiti Barasa, said that his fair trial rights were infringed when the trial court allowed counsel for Barasa to play a role in the matter. But the Supreme Court has now put him right. The country's highest court has ruled that the Victim Protection Act, the constitution and international law all support the right of victims to be represented by counsel in court - and that counsel may even be allowed to ask questions of the witnesses.

Kenya pressurised by big oil to backtrack on plastic ban

An alarming new series of reports in the international media claims that the US oil and petro-chemical lobby is putting considerable pressure on Kenya to roll back its environmental protections related to plastic waste. The report has led to strong reaction by the African Commission on Human and Peoples’ Rights. Kenya has played a leading anti-pollution role in Africa, for example with its 2017 ban on the manufacture, sale and distribution of plastic bags. Now the African Commission is urging Kenya’s President Uhuru Kenyatta not to give into pressure that seeks to link the US trade deal he desires with freer access to Kenya by US plastics manufacturers.

Court finds against ‘back door emergency’ in Malawi

A constitutional court in Malawi has delivered an unequivocal condemnation of that country’s Covid-19 lockdown regulations. In its decision last week, the three judges found that the rules were unconstitutional as they were made in terms of a law that did not permit such rules to be made. They also criticised the government for imposing a lockdown without concern for the poor of Malawi who would not have access to food and other essentials if they could not leave their homes. The judge urged parliament to pass new legislation as soon as possible, that would allow the regulations needed in a national health emergency such as the current pandemic.

Litigation in Lesotho as King declines to appoint judges

Many people in the legal world will be aware of the looming constitutional crisis in Kenya where the President, Uhuru Kenyatta, has refused to appoint a number of judges whose names were presented to him by the Judicial Service Commission. Fewer, however, will have been aware that a similar problem has arisen in Lesotho and that litigation is now pending to test whether the King – Lesotho is a constitutional monarchy – may refuse to approve the appointment of candidates proposed by the commission.

High Court grants bail to Zimbabwe opposition leader, journalist

Two prisoners in one of Zimbabwe’s most notorious jails have been making international headlines as the courts repeatedly denied them bail. This week, however, as South Africa prepared to send a delegation to discuss the deteriorating situation in Zimbabwe, and as the number of international political and legal statements critical of the continued imprisonment continued to grow, the two men were released on the orders of the high court.

Change company law to allow virtual AGMs, Uganda high court urges

The high court in Uganda has urged that the government change the law to make it easier for businesses to hold their annual general meetings online, or via a mixture of a physical and electronic meeting. This is to take account of the restrictions on gatherings, due to Covid-19, imposed by the government on the one hand, and, on the other, the legal requirement that companies must hold AGMs. For the last few months in Uganda, individual companies have been coming to court asking for judicial authorisation to hold electronic meetings. Now, says the court, the time has come to change the law and make electronic meetings the new normal.

SCA cases show up long delays in delivering judgments

Two new decisions by Malawi’s highest court show that at least some of the country’s judges are still not delivering decisions within a reasonable time. In one case a group of people convicted of murder and sentenced to 30 years in prison were still waiting to hear the outcome of an appeal heard more than five years before. In the other, a man convicted of robbery had still not heard the result of his appeal over 37 months later. The judge who heard applications for release on bail in both cases, said he had no idea when the judges involved in the appeal would hand down their decisions. He spoke of the ‘suffering’ of the appellants as they awaited the outcome, wondering if they would ultimately be imprisoned for longer than the appeal court would find they should spend in jail. The judge finally agreed to grant conditional bail in both cases. Two years ago the country’s Chief Justice, Andrew Nyirenda, undertook to ensure judgments were up to date on pain of disciplinary hearings at the Judicial Service Commission, but not all judges seem to have been caught in that net.

New head of judiciary for Uganda

Following the retirement of Uganda’s chief justice, Bart Katureebe, the country’s judiciary has a new leadership team. The new Chief Justice and Deputy Chief Justice were announced by Uganda's President Yoweri Museveni. His official decision came as no surprise as the names had been openly known and discussed for some time before the official announcement.

For Kenya: celebration of its 10-year-old constitution, a growing crisis – and a forthright judge speaks

As Kenya celebrated the 10 th  anniversary of its constitution, with virtual seminars, webinars and other discussions, one of the most serious challenges yet brought under the constitution is making its way through the courts. That problem is the failure of the country’s President, Uhuru Kenyatta, to appoint more than 40 judges nominated by the Judicial Service Commission. And, equally significant, his failure to abide by a court order that the judges be appointed.

'Judicial independence on trial’ in case involving Malawi’s Chief Justice

Malawi’s high court has decided that attempts by the country’s former President, Peter Mutharika, to get rid of the Chief Justice and other senior judges by placing them on enforced leave pending retirement, were illegal and unconstitutional. The decision, delivered this week, followed major local and international support for the judiciary of Malawi, after the announcement of the former President’s steps against its leadership.

Victory for pregnant women after rethink by Constitutional Court

Uganda’s constitutional court has delivered a major victory for the health of pregnant women. The case was brought by the Centre for Health, Human Rights and Development, along with a health law expert and the relatives of two women who had died in childbirth because of Uganda’s inadequate maternal healthcare conditions. Five constitutional court judges found that the government was underfunding maternal healthcare to the extent that it was unconstitutional. To ensure that this improved, they ordered that the court had to be provided with an audit report on the status of maternal health in Uganda over the next two financial years. The judges further awarded general damages to two of the applicants, relatives of pregnant women who had died because of the violation of their rights to life and health. While the decision has been widely hailed for taking the rights of pregnant women seriously, and ensuring the issue has the protection of the constitution, it also shows that Uganda’s constitutional court is seeing its own role in a changing light: in 2012 the same case had come before the constitutional court but the court refused to hear it on the basis that it amounted to consideration of political issues, namely government allocation of funds to maternal health. However, an appeal to the Supreme Court – Uganda’s apex court – resulted in an order that the constitutional court should consider the issue. Back before a now-differently composed constitutional court, the matter fared rather better second time round.

Shock judgment bars Zimbabwe human rights lawyer from crucial human rights case

The legal world was stunned this week by the news that Harare magistrate, N Nduna, had ruled that a lawyer appearing in a case before him was ‘disqualified’ from continuing to act in the matter. Whatever the case, this would have caused concern because of the drastic nature of the step. But this is not just any case. The accused person is an award-winning investigative journalist, Hopewell Chin’ono, who had been researching government corruption questions before his arrest. And his lead counsel is internationally-acclaimed human rights lawyer, Beatrice Mtetwa. The state’s determined prosecution of Chin’ono, refusing him bail, not allowing him to consult with his lawyer in private and insisting that he appear in court in leg irons, all indicate that he is being made an example of, to frighten off other critics. The case comes amid growing community opposition to the government in Zimbabwe. Nduna's judgment will inevitably be criticised as reflecting the court’s failure to respect the Rule of Law. And questions will be asked about whether it is the magistrate, rather than the lawyer, who has become so identified with a cause as to lose ‘impartiality and detachment’.

Judge Key Dingake in new top post

A long-standing member of faculty of the Judicial Institute for Africa, Justice Key Dingake, has been sworn in as a member of the Seychelles Court of Appeal.

Some justice at last for girls, women, raped by police in Malawi

It was a major scandal at the time, but nothing had been done about it until now. Last October, a number of police raped and sexually abused at least 18 girls and women outside Lilongwe, Malawi. The attacks by police were in apparent retaliation for a political protest that had led to one police officer being killed. Since then there was complete inaction by the police, with neither investigation nor arrest. Now, however, Judge Kenyatta Nyirenda has put the police on notice. He has issued a number of declaratory orders spelling out the rights of the girls and women attacked by the police. Finding that compensation was appropriate in this case, flowing from ‘the state’s responsibility to remedy human rights violations’, he further ordered that the registrar must ‘deal with’ and assess the amount of compensation to be paid, within 21 days. It is, however, far from the only such case in Malawi, with other similar occurrences over the past year involving police and/or soldiers.

Two Ugandan judges, two attorneys, sanctioned by US state department over bribery, corruption & adoption scam

Two Ugandan judges and two attorneys have been named and sanctioned by the US State Department for their role in bribery and corruption related to an adoption scam. One of the two judges retired last year; the other is a sitting judge. A statement on behalf of the judiciary said that there had been awareness of these allegations for some time and that they were being investigated. However, there seems to be little doubt in the legal profession that the investigations will show the judges and the attorneys were involved as the US authorities claim.

Support grows for Zimbabwe protesters

A number of legal and human rights organisations have expressed support for the people of Zimbabwe and for lawyers who are struggling on behalf of clients arrested by the government of Emmerson Mnangagwa. The past few weeks have been marked by violent attacks on protesters by members of the Zimbabwe police, by the arrest of journalists on trumped up charges and their detention after the courts refused bail, and by growing international concern at the stance taken by Manangagwa and his government, now widely regarded as ‘probably worse than (former President) Robert Mugabe’ whose regime became an international by-word for corruption, intolerance of dissent and the violent abuse of political opponents.

Court stalls moves by Kenya's President putting judiciary under executive control

The Law Society of Kenya has succeeded in putting at least a temporary brake on the government’s plan to transfer the judiciary and a number of independent bodies to the direct control of the executive. In May President Uhuru Kenyatta signed Executive Order No 1/2020, making these changes, and the law society responded by filing a petition shortly afterwards. Last week the high court’s constitutional and human rights division considered that petition and granted an interim order in terms of which the executive order is put on hold, pending full argument of the case. Judge James Makau said this was a suitable case for the court to intervene against ‘the excesses of the Executive’ which was using administrative processes to extend its powers.

Far-reaching symposium on ‘spectacular recent efforts’ at undermining judicial independence in Africa

Potentially far-reaching decisions about strengthening support for judicial independence in Africa were taken at a two-day online symposium held last week. Nine organisations hosted the event, illustrating the kind of joint action in support of judicial independence that participants said was essential. Speakers described judicial independence as ‘the last line of defence for the rule of law, human rights and democracy in East and Southern Africa’. They said it was crucial that legal organisations worked with civil society to protect judicial independence. Recent experiences had also shown the importance of support from organisations, regional and international, that were representative of judges and Chief Justices.

Parents dispute paying private school fees during lockdown

Parents of children at a private school in Kenya have won an interim high court order in what promises to be a significant constitutional dispute related to Covid-19. The parents say they should not have to pay full fees for the third term of the 2020 school year and that the school may only charge for the services offered, namely for ‘virtual class or digital calls’. For its part, the Sabis International School, Runda, objected to the legal action brought against it by parents of children attending the school on the grounds that the parents had signed a contract with the school that was ‘private’, and that the court ought thus ‘not to intervene in these private matters’. Last month Kenya’s education secretary George Magoha said that the rest of the 2020 school year ‘will be considered lost’ because of the pandemic and that schools would only re-open in January 2021. Those due to write final exams would sit them next year.

Tanzania’s apex court rules bail-ban law is constitutional

Tanzania’s Criminal Procedure Act includes provisions that automatically refuse bail to people charged with certain offences. Earlier this year the high court found that mandatory prohibition of bail was unconstitutional. The court's decision restored discretion to the judiciary and meant that the question of whether to grant bail, whatever the alleged offence, would have been a matter for the individual judge to decide. But the high court finding was overturned by the Court of Appeal this week. Five judges of the appeal court said mandatory barring of bail did not amount to an ouster clause, and that the constitution was not infringed by making certain offences ‘unbailable’.

Libel case fails: court finds election was at stake and media had ‘duty to publish’

Issues around elections continue to be heard by the courts. This time the case concerned a scandal that was brewing in 2002, about the malfunctioning IT system that was supposed to compile a national voters’ register for Uganda’s then pending election. Members of the consortium that seemed unable to sort out the register brought a defamation action against the publication that broke the story. But the court found the report was truthful and accurate and that the public needed to know the information as the success of the election was at stake.

Laptop left on, so private conversation in judge's chambers heard in courtroom

This is a case that offers a warning lesson to every reader, judge, counsel and litigant. And it is particularly relevant to everyone struggling to come to terms fully with the ways that the coronavirus pandemic affects the practice of law. The UK judge at the heart of this matter was dealing with a difficult case of possible child abuse arising from the death of a baby, and had to decide what arrangements should be made for the care of the remaining child. She decided to hear some of the trial remotely by Zoom, and some of it with witnesses physically present in court. But problems arose at the end of a 'live' court session when the judge, thinking her laptop had been switched off, had a conversation with someone in her chambers about the parties – and a number of people still in court were able to hear what she said as the computer had not been disconnected. The result was an application for her recusal on the basis of remarks critical of the mother and, after she refused to stand down, the issue went on appeal.

‘Barred and interdicted’

The Young Lawyers Association of Zimbabwe scored a victory of note this week. The Zimbabwe Republic Police had issued a press statement on 25 July, listing in minute detail the documents that would be required at checkpoints throughout the country, with immediate effect. But the legal organisation challenged the lawfulness of the police action and were granted an interim order barring the police from demanding the documents listed in the press statement.

Sacking of 14 judges by South Sudan President unconstitutional: East African Court of Justice

When a government removes one judge from office in a way that flouts the constitution and judicial independence it would be bad enough. But a case brought to the East African Court of Justice (EACJ) by Justice Malek Mathiang Malek against South Sudan’s President Salva Kiir for dismissing him, was just the tip of the iceberg. In fact, Justice Malek was one of more than a dozen judges dismissed by the government in 2017. But Justice Malek, who has had more than 20 years’ experience on the bench, decided he was not simply going to accept the situation. Instead, he brought an action against the Attorney General of South Sudan before the EACJ. And, last week, that court decided in his favour, ruling that the dismissal of the judges was unconstitutional, against the law of South Sudan – and amounted to a violation of the East African Community Treaty.

'Not merely a department of state’: new Commonwealth statement of principles on funding the judiciary

An important new set of principles on the proper financing and resourcing of the judiciary has been issued by the Commonwealth Magistrates’ and Judges’ Association (CMJA). The principles, issued this month, are likely to prove just as influential as the Commonwealth (Latimer House) principles dealing with the accountability of and relationship between the three branches of government. They are a timely contribution to the debate on judicial funding, given that the judiciary in a number of African countries is struggling to obtain the funding needed – and the number of judges required.

Dream job in Seychelles

The Chief Justice of Seychelles, Justice Mathilda Twomey, is stepping down from the position, and a search has begun to fill the post. Among other responsibilities, the Chief Justice sees to the discipline of legal practitioners in Seychelles and sits on the Supreme Court, the Constitutional Court and, ex officio, on the Court of Appeal.

More work needed on Ivory Coast's election commission - African Court

For the second time, Ivory Coast has been taken to the African Court on Human and Peoples’ Rights over whether the country’s electoral commission is sufficiently independent and impartial. In 2016, the court found the then electoral commission seriously lacking, and in 2017 it gave a further decision spelling out and interpreting its earlier decision. The commission has been reworked since then but a different group of challengers have tested the new body, claiming it was still not sufficiently independent or impartial. In its decision given last week, the African Court found the applicants had not shown that the new electoral body was made up of members who were not independent and impartial. Nor had they shown that it was clearly balanced in favour of the ruling party. However, there were other issues that needed to be addressed. For example the court found that Ivory Coast had not fully complied with its obligations because of a ‘manifest imbalance’ in the number of chairpersons of the local electoral commissions proposed by the ruling party. The court ordered Ivory Coast to take the steps needed to remedy these shortcomings in its electoral commission ‘before any election’ is held. As national presidential elections are scheduled for the end of October this year, the court’s decision means urgent attention will have to be given to the issue or the polls will be susceptible to criticism for non-compliance with this ruling.

Concern about CJ's instruction that heads of court should 'see and approve' all judgments before delivery

A storm broke over the head of Zimbabwe's Chief Justice Luke Malaba when he issued a memo to heads of court on 16 July, 2020. Among others, the memo instructed that before a judgment was delivered by any judge, 'it should be seen and approved by the head of court'. The instruction led to a major furore, with critics at home and abroad saying it infringed judicial independence. They asked what would happen if a head of court disagreed with and declined to 'approve' a judgment that a member of the judiciary was about to deliver. This lead to statements of support for judicial independence being published on social media, along with messages expressing alarm about the situation. Subsequently, on 21 July, the Chief Justice issued a revised memo. On that day, via the Judicial Service Commission, there was also a reply to a letter of concern sent to the Chief Justice by the Law Society of Zimbabwe.

Two judges of the region die as a result of pandemic. RIP

The judiciary in Lesotho and South Africa has been shaken by the death of colleagues as a result of the Covid-19 pandemic. Both Judge Patrick Jaji of SA’s Eastern Cape bench, and Judge Lisebo Chaka-Makhooane of Lesotho’s commercial court, had been confirmed as having contracted the virus, and died of associated complications.

Allowing birth certificates for voter ID would be a ‘retrograde step’ – Ghana’s Supreme Court

Two combined applications testing decisions of Ghana’s attorney general and related to the national elections scheduled for 7 December 2020, have been decided by that country’s Supreme Court. Determined to clean up Ghana’s voter register, the AG gazetted new regulations. Among them was the decision not to allow the old (current) voter identification cards to be used to identify people wanting to register as voters on the new, updated list. The other contentious decision was that birth certificates would also not be accepted to prove identity for that purpose.

Courts’ differing views on whether independent candidates may contest elections

The role of independent candidates in elections is contested in many African countries. The Constitutional Court in South Africa issued a landmark decision on the question during June 2020. It held that the law had to be changed so that independent candidates may contest seats in elections. When a similar complaint was brought to the courts in Nigeria, however, the result was the opposite: there the courts upheld laws permitting candidates to contest political elections only via established political parties. Seven Nigerians subsequently asked the Court of Justice of the Economic Community of West African States (ECOWAS), for its view. Now, three ECOWAS judges have handed down their decision. They found against the seven, and held that the Nigerian system, with its bar on independent candidates, was valid, lawful and not an infringement of rights in the African Charter.

New book points to solutions for civil case backlogs

When the deputy chief justice of Namibia writes a book on court-managed civil procedure in that country’s high court, then judges in many countries should pay attention. That's because it is written by the judge who is widely regarded as the architect of Namibia's new and highly successful system, and he has made sure that his book will be informative and helpful for other countries wanting to follow the same path - towards judicial case management and a dramatic reduction in civil case backlogs.

Woman candidate from Malawi’s 2019 elections wins court order for fresh polls in her constituency

A new round of national elections was held in Malawi during June, after courts in that country held that the polls of May 2019 had been invalid because of the extent of the irregularities during the elections. But not all the polling is done: last month, just as fresh national elections were taking place, the high court declared that the May 2019 elections in one constituency was invalid. The judge said he was satisfied that the parliamentary elections in Phalombe North were affected by various irregularities. He declared that the candidate previously held to be the winner was not validly chosen and he ordered that another election had to be held for that constituency within 60 days.

Preserve your independence, court urges Namibian election commission

A full bench of Namibia’s high court has found that the country’s electoral commission acted unlawfully when it removed certain approved names from the list of candidates supplied by a political party and allowed other party members to replace them and be sworn-in, instead. Two members of Namibia’s Popular Democratic Movement brought the application when the electoral commission permitted a number of PDM members, not on the PDM list approved by the electoral commission before the polls, to replace those who had been approved by the commission. In its decision, the court said the commission acted beyond its powers in allowing the party to substitute names after the elections. It could not allow parties to ‘parade’ candidates for election and then after the polls, ‘put up totally different persons who were never “marketed” to voters as candidates.’

African Court tells Tanzania: your constitution violates basic rights

Africa’s premier regional court, the African Court on Human and Peoples’ Rights, has found that Tanzania’s constitution is in breach of the African Charter and other international law. This is because it provides that no one may test the results of Tanzania’s presidential elections in court. Tanzanian advocate, Jebra Kambole, brought the litigation in the African Court saying his rights under the African Charter had been violated. Finding in favour of Kambole’s application, the court ordered that Tanzania amend its constitution to remove this violation. Tanzania was also given 12 months to submit a report on what had been done to implement the terms of the judgment, and was ordered to publish the court’s decision on the websites of the Judiciary, and of the Ministry for Constitutional and Legal Affairs. The judgment text is to remain on these websites for at least a year after publication.

High Court in Zimbabwe orders woman be recommended for Mvuthu chieftainship vacancy

When their chiefly father died leaving only three daughters, the eldest of them, Silibaziso Mlotshwa, might have seemed the obvious choice to succeed to the Mvuthu chieftainship. But instead her uncle, Saunders Mlotshwa, got the nod from the government's district administrator. This followed a meeting of the Mlotshwa men at which they said a female chief ‘would be an insult’. Now, however, the high court in Bulawayo has ordered that the administrator propose the daughter’s name for the vacant position. The judge said it was unconstitutional to discriminate against her and that the earlier recommendation that the uncle should take the throne was unlawful.

Court slams father's attempt to avoid maintenance for his daughter, 6

An apparently wealthy property owner, politically well-connected and a major player in Zimbabwe's guest accommodation industry, is in trouble with the Harare high court. That's because he has been doing all he can to make sure his 6 year old daughter does not get the maintenance the mother says she needs. The man - unnamed to protect the child's identity - 'divested himself of assets' to defeat the mother's claim for a maintenance increase. He formed a trust to which he donated all his income-generating properties. Though the child was listed as a beneficiary, the 'trustees' resolved at a board meeting that she would not receive maintenance 'to the disadvantage of other beneficiaries'. The trustees also decided that during the current year 'no beneficiary was to ... benefit from the trust, including the minor child'. According to the judges, the 'inescapable conclusion' from the facts was that the father formed the trust to ensure the child did not get maintenance. The problem of men who go to extraordinary lengths, including legal stratagems to avoid their financial responsibilities to wives and children, is not uncommon but rarely surfaces in court.

Man, criticised by court for not being open about his wealth, leaves divorce empty-handed

A man who walked out of his family home 20 years ago, after having a number of affairs and giving his wife an incurable sexually-transmitted infection, has emerged empty-handed from their divorce. This, after the high court ruled that he had made no contribution to the support of his family since he quit the matrimonial home. The man had demanded half of the house in which his now former wife lived, even though he is a well-to-do international business man. She, on the other hand, has no property to her name apart from the house in which she has been living since their marriage in 1983.

Congratulations to Namibia on its achievements in preventing human trafficking

Namibia has become the only African country to make it to the world’s top-ranking list, ‘Tier 1’, in the fight against human trafficking. This has brought the number of countries worldwide, recognised as Tier 1, to 34 in 2020. Countries at this level have fully met the international standards for the elimination of human trafficking.

Apex courts in two African countries try to avoid ‘absurd results’ in labour matters

Time limits on filing appeals and reviews can bring litigation to an abrupt end when they are not observed. But what is a court to do if it is not clear when the time limits actually start. The apex courts of two African jurisdictions have found themselves dealing with exactly this question – when do the days of a time limit begin to run? And the question was made even more complicated because the high courts in both countries had produced two contradictory positions from which the apex courts had to choose.

Judge slams Kenya's 'shameful' treatment of diplomat

The High Court in Nairobi has strongly criticised the government’s action in deporting from Kenya a diplomat representing Niger. Ali Oumarou, who has been recognised by Kenya as honorary consul for Niger, was summarily deported in August 2019. Oumarou has since challenged his deportation in the Kenyan courts from outside the country. The High Court in Nairobi has now given its judgment on the matter, with a scathing assessment of the government’s failure to adhere to the constitution. Judge James Mukau said the court would not tire of reminding the government that the constitution was Kenya's supreme law. ‘It has life and it has teeth,’ he said. The way Oumarou had been treated was ‘unbearably shameful’ for a democracy, said the judge. He granted a slew of orders, including one that stopped the government preventing Oumarou from returning to Kenya without proper cause and without following due process.

Uganda's Chief Justice Bart Katureebe retires, heads for his 'village'

One of the most recognisable of Africa's Chief Justices - partly because of his height - Bart Katureebe, has retired on reaching 70, the mandatory age for judges to quit in Uganda. The former Chief Justice had a wide-ranging career before becoming a member of Uganda's Supreme Court, and his legacy includes introducing an electronic case management system for the country.

Namibian President must sign affidavit on exercise of his ‘formidable powers’ – high court

A full bench of Namibia’s high court has found certain of the country’s Covid-19 regulations unconstitutional and invalid. These include regulations aimed at preventing employers from dismissing staff or from forcing them to take leave during the pandemic. The decision made clear to the Namibian authorities that, even during an emergency situation like the present, the constitution must be respected. It also stressed that in a case such as this, the President is expected to sign an affidavit on his reasons for regulations: ‘reverence’ for his office cannot be an excuse not to do so.

Supply doctors, health workers with protection, court tells Lesotho government

Doctors in Lesotho have won a major constitutional battle. They brought a case against the country’s minister of health, the minister of finance and the minister of public service, among others, claiming that their constitutional rights had been infringed in a number of ways. In particular they said they were not being provided with proper personal protective equipment (PPE). They were also unhappy because long-established supplementary payments to them had been cut off by government, all in the name of shortage of funds. On both issues the court has declared their constitutional rights were violated, and the judges also ordered the government parties to provide doctors and health workers with PPE ‘within a reasonable time’.

'Indeed the dead have rights' - Kenyan high court in Covid exhumation case

Relatives of a Kenyan man who died shortly after the outbreak of the Coronavirus pandemic, have asked that his hurriedly-buried body be exhumed, tested for Covid-19 and then re-buried with proper traditional rites. They complained that during a late-night burial, the body of James Onyango was put into a shallow grave wrapped in a plastic bag, while a ‘battalion of police officers’ and local government officials surrounded the family house. This was contrary to custom and had caused stigma in their traditional village. Government authorities, however, said post-mortem tests showed that Onyango had Covid-19 and thus he had been buried hastily, according to the practice prevalent in April, with very few attending. The family was particularly worried that wild animals could dig up the body as it was not buried in a coffin, nor in a grave of the normal depth. They said the dead man had a right to human dignity ‘even in death’. In a lengthy judgment, Judge Rosemary Aburili concluded that exhumation was not advised given the health hazards involved, but ordered the grave site be properly cemented to prevent animals from digging it up.  She also spoke about the fear and stigma, even at present, if someone in the family was suspected of having Covid-19. She said such a person was ‘surrounded by an army of public health officials, accompanied by heavy security teams, captured like a stray monkey [and] taken to quarantine at the suspect’s own cost.’

Judge murdered while presiding in massive DRC corruption trial

Judge Raphael Yanyi, presiding in the high-profile trial of a senior Democratic Republic of Congo official facing corruption charges, died on May 26. Three successive versions of the cause of his death have now been given – a heart attack, poisoning and stab wounds to the head. His family is calling for an independent autopsy to be conducted by international experts who are independent of the DRC government. Sentence is likely to be imposed on the three accused in the case on June 20, by another judge who stepped in to continue the case after Judge Yanyi died.

A war against the nation's women and children - Ramaphosa

In his most recent address to the country on the Covid-19 situation, President Cyril Ramaphosa of South Africa has spoken about easing the restrictions imposed on the country since March 27. But he took his audience by surprise when he deviated from his usual format to speak strongly – even with some passion – about the terrible increase of killings and abuse of women and children that has characterised the period of restrictions imposed to curb the Coronavirus.

Malawi's judicial crisis deepens: resistance to gvmt moves placing CJ on immediate leave

Malawi remains tense after last weekend’s shock government announcement of action against the country’s Chief Justice, Andrew Nyirenda. The government said that, with immediate effect, it was sending him on leave ‘pending retirement’. That announcement galvanised the local and international community and led to protests in a number of Malawian cities. It also led to many statements of support for Malawi’s judiciary, including from other African Chief Justices. In response to the action taken against the Chief Justice, the Malawian judiciary issued a statement of its own saying that the Chief Justice and other judges - whose immediate departure from office ‘on leave pending retirement’ had also been announced by the government - would all be back at work as usual in the week that followed. All of this legal drama took place as the country prepared for new elections on June 23, following the Supreme Court’s judgment, upholding the Constitutional Court, to the effect that the elections of 2019 were invalid.

Major decision on gay rights by US Supreme Court

The US Supreme Court this week delivered a judgment in which the majority held it was unlawful, under the Civil Rights Act of 1964, to dismiss anyone on grounds of ‘sex’ – and that this included firing anyone because they were gay or transgender. Three judges disagreed, saying the law dealt with ‘sex’ – not ‘sexual identity’ or gender.

Costs order a lesson about 'frivolous' Covid-19 claims - labour court

The first case testing whether sufficient protection was available for medical staff working on the front line against the coronavirus in South Africa, has resulted in an ignominious conclusion for the union that brought the legal action. The National Education Health and Allied Workers Union (Nehawu) launched its challenge as a matter of urgency in the Labour Court, alleging that the government was not providing adequate protective gear to Nehawu members working in particular hospitals. In the end, however, it was unable to provide any evidence of a lack of personal protective equipment (PPE) at any of the medical facilities mentioned in its claim, and withdrew its case. But despite that withdrawal the court gave a full judgment, reciting information provided by the government about the stocks of PPE available in the hospitals or ordered. The judge said it was necessary to evaluate the union's claims in a formal, written decision so that the public was assured about the situation. The case led to the national Minister of Health giving a clear statement of the preparedness of SA's medical facilities for dealing with Covid-19 in relation to health workers' protective gear. It is also important because the judge spelled out that a court could adjust the 'standard of what constitutes frivolous and vexatious conduct' in litigation so that parties who pursued 'obviously untenable legal points' or used the court as 'part of power-play', or made allegations they could not substantiate, would know that they risked a cost order if they should lose. In other words, the judge gave notice of how a court might consider the question of costs in a case brought at a critical time like this, when the case involved serious claims that could not be backed up.

Coronavirus fears hit law firms, courts; plans for containment

Law firms around the world are considering how best to help contain the spread of coronavirus among staff and clients. Some legal offices have closed their corporate premises, requiring their staff to work from home. And in some countries even the courts have been affected or are making plans for possible shut-down.

Covid-19 and the justice and legal sector

Covid-19, the viral threat that is sweeping across the world, is not exempting the judicial and legal sector. It raises problems for the operation of courts and legal practices as well as posing novel legal dilemmas. Here is a glimpse of some of the challenges being dealt with internationally in relation to the law, reported over the last week.

Human rights fightback as security forces take abusive action under cover of COVID-19 regulations

As the security forces of some African countries take abusive action against people under cover of Covid-19 lockdown regulations, human rights groups have begun to fight back. Prompted by complaints of serious constitutional rights' violations – beatings, torture and other humiliating treatment – Kenya’s law society has brought a petition to the courts, and a human rights organisation in South Africa has done the same. In Kenya the court has agreed to part of the petition, with other issues still to be argued at a later date, possibly even today, while the SA case could be called later this month.

No protection in Zim for pangolin, alleged trigger of world's coronavirus pandemic

Scientists increasingly believe that pangolin meat might have been part of the trigger for the deadly coronavirus. In this case the pangolin would have been bought in a typical Chinese market where illegally obtained wildlife has been an everyday element. But though that news has given new impetus to wildlife protection, it turns out that there is no proper legal protection for the pangolin in Zimbabwe. Cabinet ministers have not added it to the list of protected species whose possession is unlawful - despite being urged to do so in a recent judicial decision.

Judge rejects bid to stop upgrade of 'elite' hospital in Zimbabwe

The High Court in Zimbabwe has rejected an attempt to stop the refurbishment of an incomplete and deserted hospital and make it available for patients ill with Covid-19. The Rock Foundation Medical Centre, sometimes called the Arundel Mediclinic and Arundel Hospital, has been at the centre of a major row, with many government opposition members saying the ruling party was renovating the place for the use of the political elite. Government response to these claims has been equivocal and there is still a strong and widespread belief that the upgraded facilities would be available only to fee paying patients. Since the vast majority of people in Zimbabwe would not be able to afford treatment at such centres, and must rely on public facilities that lack even the most basic equipment, the Rock Foundation hospital and a second facility that is also being upgraded for fee-paying patients, have both become touchstones for public protest.

Court slams lawyers for not having COVID-19 permits to appear in case

A South African judge has strongly criticised a group of lawyers who appeared in an urgent case that, among other things, dealt with access to water by residents of a municipality affected by a political dispute. The judge said that the lawyers were irresponsible and unprofessional because they had not obtained the permits required to attend a court case under COVID-19 lockdown regulations. The court further ordered that the lawyers were not allowed to charge their fees for the day, and that the question of their lack of proper permits should be reported to the Legal Practice Council.

Fix laws or face huge damages claims – judge warns Malawi lawmakers on the state of Covid-19 disaster legislation

In a long and highly unusual judgment, a judge of Malawi’s high court has shown that the country’s legislation is completely unprepared to manage the coronavirus pandemic, and without the appropriate regulations or, in some cases, even appropriate laws. The judge made these findings in a case that concerned 10 Chinese nationals visiting the country. In a series of steps by officials of Malawi’s immigration and citizenship services some were deported, while the remaining four are still in Malawi although attempts were made to send them back to China. Official action against them appears, however, to have been taken without the proper legal basis: officials were unable to use the present health law that dates back to 1948, and so decided on action based on a 'resolution'. In deciding the interim questions raised in the first part of the case, the judge examined laws essential for the state of disaster declared to deal with the coronavirus and found the laws ‘archaic’, ‘obsolete’ and in a ‘total shambles’. The judge also strongly resisted claims that appear to be circulating in Malawi, that judges who demand that official action must be taken in terms of some law or regulation, are ‘unpatriotic’. He warned that unless laws and regulations were urgently fixed so that they are fit for purpose and will stand up in court, the state as well as local authorities could find themselves facing massive claims for damages in relation to actions that are not lawful.

Controversial Lesotho PM prorogues Parliament, gets taken to court

Lesotho’s Prime Minister, Tom Thabane, has signed papers suspending parliament for three months. He cited the coronavirus pandemic to explain his decision. Ironically, a full-on legal application contesting the validity of his Covid-19-based decision, was heard in a virtually empty court due to steps aimed at containing spread of the disease. But the case also marked a significant step for the country’s broadcaster which, for the first time, carried a court hearing live on national television and radio.

Malawian law students lose their challenge to Covid-19 university closure

A group of four students studying law in Malawi have lost their high court case challenging the validity of the President's Covid-19-related directives. They also lost their challenge to the closure of their university in terms of those directives. But it was not all bad news for them – at least the students won commendation from the presiding judge for ‘taking their future seriously’.

As ‘moral Covid-19’ infects Namibia, even legal profession touched by Fishrot bribery scandal

The ‘Fishrot’ corruption scandal engulfing Namibia seems set to choke the country’s legal profession as well: while the Law Society of Namibia tries to access the records of one of its prominent members, suspected of being involved in the scandal and to have used his trust account for money-laundering, it has become clear that a number of the society’s council members face problems of a conflict of interest in the matter. In fact, so many of the council are hampered in one way or another, that local media speculate the society’s attempts to investigate involvement by members of the profession in the scandal could be compromised.

Kenya’s Covid-19 restrictions invalid, unlawful – law society

Kenya’s law society has launched a court application challenging the validity of the country’s Covid-19 restrictions because they have not been approved by parliament. The law society also claims they are invalid because they discriminate against the poor, in that they make wearing masks compulsory while those living in poverty will not be able to afford them. Further, the society argues that the regulations go further than the laws from which they derive their power, will allow.

Judge orders curfew exemption for Kenya’s lawyers

Kenya's High Court has declared as unconstitutional the 'unreasonable use of force' by police since a dusk to dawn curfew came into effect in that country on 26 March. The court has also ordered that the authorities must include lawyers and members of the police oversight authorities on the list of those exempt from the provisions of the curfew, established as a response to the coronavirus. The curfew was implemented because the government was reluctant to impose a lockdown as has been the case in a number of other countries.

'Just not good enough' - get up to speed for electronic hearings: UK court

Like it or not, the coronavirus is forcing lawyers – judges, magistrates, prosecutors, advocate and attorneys – to play catch up with technology. Many courts are now operating through the lockdown or other social distancing restrictions via electronic hearings, and judges have to be up to speed. A number of recent cases show the courts wrestling with the question of how much extra time should be allowed to parties for preparation when the case is to be heard electronically. And under what circumstances should a court agree to postpone a matter until it is possible that lockdown will be lifted, so that the case may be heard as in the past? If ever there was a case that illustrated the problems involved with Covid-19 regulations and their impact on hearings in legal matters, it is this one.

Suspension of Lesotho's parliament 'irrational', 'unlawful' - court

It was a transparent attempt to avoid a vote of no-confidence by parliament, hiding behind a claim to be protecting MPs from Covid-19. And now the controversial Prime Minister of Lesotho has had his come-uppance from the country’s high court which ruled his prorogation of parliament was invalid. Just another blow for the soon to be ex-PM, Thomas Thabane, a man under suspicion of involvement in the murder of his estranged second wife. Just how soon is far from clear, however, with defiant Thabane saying he will choose how and when to make his exit.

Security forces sowing terror in Lesotho, Lawyers for Human Rights tells courts

Lawyers of yet another SADC country have turned to the courts for help with security force brutality against ordinary people in the community, carried out under cover of Covid-19 regulations. This time it is Lesotho Lawyers for Human Rights that is asking the high court’s constitutional panel to stop the security forces from torturing, killing and abusing people. The organisation also wants the court to order that all members of the security forces who have assaulted or tortured members of the public should be arrested and charged. The lawyers claim that ‘terror and consternation’ is sweeping through the nation, and that the judges should act urgently to stop the unlawful brutality and to protect people against further ‘inhuman and degrading treatment’.

Lockdown on hold, AG taken to task: latest from Malawi high court

In this week’s round of an ongoing dispute over the validity of Malawi’s Covid-19 restrictions, the high court has ruled that the government's planned regulations may still not be put into effect. The court has referred these challenges to the Chief Justice who will consider setting up a high court constitutional panel that would hear the problem and find a way forward. At its heart, the dispute is about whether the proposed restrictions have a valid legal base and/or contravene the constitution. But this week’s judgment also took on the attorney general’s office for having made no appearance in court when the matter was argued. The court called this a ‘snub’ and ‘astounding effrontery’.

Dying surrounded by family ‘a most fundamental right’ - court

In a case that has moved readers worldwide and that sparked a judge to comment on the rights of a dying person even during the Covid-19 pandemic, a court has ordered that a terminally ill Nigerian woman living in the UK be allowed to leave the care home where she had been staying, to spend her last days with her extended family. In her decision on the case, UK Judge Nathalie Lieven commented that the woman had ‘something between a few weeks and 3 – 6 months to live’ and that the question was whether she should be able to spend those last days with her family. ‘The ability to die with one’s family and loves ones seem to me to be one of the most fundamental parts of any right to private or family life,’ the judge wrote.

Lessons for Covid-19 from HIV response: don’t forget vulnerable groups - women, the unemployed – and sexual minorities

In a webinar this week, arranged by UNAIDS and the SADC-Lawyers Association, speakers teased out what could be learned from the response to HIV as countries struggled to manage the impact of Covid-19 on people’s safety.

Malawi case flags growing threats to human rights, role of African Court

Almost every country in the world is experiencing a narrowing of peoples’ rights and freedoms because of government restrictions imposed in the name of fighting the Covid-19 pandemic. But will these governments willingly give up their new powers as the contagion eases? And if not, where should the people of a state look for help, if their own courts uphold these infringements of fundamental rights? In Africa, the African Court on Human and Peoples' Rights would be the court to adjudicate serious rights issues like these. But the question is whether, come the end of the pandemic, the court will be in a position to help. Very few of the 55 members of the African Union have fully signed up to the court in the sense of allowing individuals and NGOs to bring cases of human rights violations for adjudication by that forum. And those numbers have dropped in the past few months, weakening the court further. The case of Malawi human rights activist Charles Kajoloweka should, however, persuade people of the need to protect the African Court from any further withdrawals - and of the need to lobby for more countries to submit to its jurisdiction.

A win for all of South Africa against brutality by security forces

In a major victory for human rights delivered by the high court in South Africa, the family of Collins Khosa and their neighbours have won a court application for orders against the security forces and their bosses. And they will no doubt be awarded significant damages when that part of the litigation is eventually heard. But they are not the only winners: everyone in South Africa has won because of this restatement by the courts of the obvious: that the government and the security forces will be held to account for how they behave - even during restrictions aimed at curbing the spread of Covid-19 - and that their behaviour will be measured against the standards of the Constitution and the Bill of Rights. The judgment is a reminder to everyone in the region that judges and courts are able to act in protection of human rights, and that they can truly make a difference.

Tanzania must overhaul its oppressive media law after court scraps appeal

The Tanzanian government has suffered yet another blow to its efforts at curbing free expression: it has lost its appeal against a declaration of invalidity of key elements of a law that had given it wide-ranging powers to stifle the media. Earlier this week, the appellate tribunal of the East African Court of Justice dismissed the government’s attempts to appeal, saying the appeal had not been filed within the time limits set by the court.

Regional court upholds freedom of expression, media freedom

The Tanzanian government, seen as oppressive in its attitude to a number of democratic freedoms including freedom of expression and free media, has lost a significant battle at the East African Court of Justice. The EACJ, which resolves disputes involving the East African Community and its member states, was approached by the newspaper, Mseto, after the Tanzanian government suspended it from all operations for three years. First, the EACJ trial court held that the suspension was unlawful. Now, the EACJ appeal tribunal has set aside the government’s appeal application and refused it an extension of time to file the appeal. The Tanzanian government recently announced that it will no longer allow its citizens to bring cases against it in the African Court on Human and Peoples’ Rights, the continent’s human rights court. In view of this new defeat at the EACJ, might Dodoma be considering how to prevent another embarrassing recurrence at the EACJ as well?

Justice Modibo Tounty Guindo of Mali and the African Court RIP

A veteran of the African Court on Human and Peoples’ Rights, Judge Modibo Tounty Guindo, has died. He was among the group of judges that first set up the African Court when it began operations in 2006, and he served as that court’s first Vice President. At the time of his death he was a member of the constitutional court in his home country of Mali.

Judge Chifundo Kachale's appointment to head Malawi electoral commission welcomed

Regional media are falling over themselves to praise and welcome the appointment of Judge Chifundo Kachale as the new head of Malawi’s electoral commission. Judge Kachale was named by President Peter Mutharika last weekend along with the rest of the commission – some new names and some old. Judge Kachale takes over from Judge Jane Ansah whose commission came in for scathing criticism by the country’s supreme court for its handling of the now-discredited 2019 elections.

‘Limping and irrational’ decision overturned on appeal by East African Court

A strange application brought to the East African Court of Justice by Burundi has completely unraveled. Burundi had argued that the Speaker of the East African Legislative Assembly was not properly elected. Failing before the trial court, Burundi challenged the court’s decision - only to have its legal team slated on appeal. Not just that: the initial costs order was overturned and Burundi must now pay the legal costs of both the trial and the appeal.

Judiciary in Malawi under threat – strong support offered

Growing animosity expressed by Malawi’s President Peter Mutharika against the country’s judiciary has provoked shocked reaction by two major legal bodies in Malawi, the Malawi Law Society and the Magistrates and Judges Association of Malawi. Both strongly criticised the President’s comments. Now several leading international legal organisations have issued a statement supporting the judiciary and restating the need for its independence to be respected.

Namibian paralegal's 'naked failure' to be admitted as attorney

A Namibian paralegal is rapidly notching up entries in the index of his country's law reports. In May alone, Alex Mabuku Kamwi featured in two decided cases. In one he was given leave to appeal because of a recusal issue. In the other he tried, a fourth time, for admission as an attorney - only to meet with what Judge Thomas Masuku called, a 'naked failure'. This was because the qualifications on which he bases his fight for admission are not recognised for this purpose by the Namibian law. He was also warned that if he makes another application based on 'spurious grounds' he could well be met with the court's 'ire' as well as a punitive costs order.

Court orders huge payout for former CEO of Zambia Railways

One of Zambia’s internationally best-known figures has been awarded huge damages by the high court following his sacking by the late Zambian President, Michael Sata. Clive Chirwa had been head-hunted by Sata to return to Zambia and take over as CEO of Zambia Railways. Just three months into the five-year contract, however, he was fired. He was told that he was being ‘retired in the public interest’. But Chirwa’s contract stipulated he was to be paid for the full five years if the contract were to be terminated for any reason other than ‘disciplinary’. The court awarded Chirwa, who has been fighting the matter since 2013, the full balance of his contract payments, plus interest.

Judge Lebohang Aaron Molete of Lesotho RIP

A senior member of the judiciary in Lesotho, Lebohang Aaron Molete, has died. He was 61. In 2010 Judge Molete was appointed as a member of the commercial court. He also sat in several significant cases as a member of a specially constituted three-person constitutional panel. He died following a stroke that had left him suffering significant complications.

Bail grant to former First Lady of Lesotho: court finds 'gross irregularities'

Lesotho's former first lady, Maesaiah Thabane, third wife of the country's former Prime Minister Thomas Thabane, has been charged with murdering her predecessor, the former PM's second wife. Though Maesaiah was granted bail by the country’s Acting Chief Justice, an Appeal Court bench – consisting of three ‘outside’ judges – has now found the bail decision tainted by ‘gross irregularities’. After a virtual hearing due to the Covid-19 pandemic, the three judges declared the bail decision invalid and ordered that a further bail hearing be urgently convened to resolve the issue. In its decision the court stressed the importance to Lesotho, as a 'constitutional democracy under the rule of law', of the dispute over the validity of the grant of bail in this case. The judges took note of the ‘high status’ and political power wielded by Maesaiah, urged that matters such as this should take place in open court rather than in judicial chambers as has become the norm in Lesotho, and that transparency should characterise such hearings in the interests of the people of the country and the rule of law. In particular, the judges expressed concern that well-established key issues for consideration in bail matters such as the likelihood of interference with witnesses and the prospects of convictions were not taken into account before bail was granted. Nor were any reasons provided by the Acting CJ for her decision to grant bail.

Police officers cannot escape responsibility for rights abuse by citing ‘higher orders’ – Ugandan court

A judge of Uganda's high court has ruled that individual members of the police and other security forces may not rely on 'higher orders' or claims that they were waiting for orders 'from above', to justify human rights violations. Judge Margaret Mutonyi ordered significant damages as compensation to a number of applicants after she found police had abused their rights. In one of the two applications she dealt with, a number of people were unlawfully arrested and detained for participating in a legal protest against the raising of Uganda's presidential age limit. In the other case, the two wives of a man being investigated for murder were both arrested. Between them they had about a dozen children, including babies under a year old and still breast feeding. All the children were taken away by the police after the mothers were detained. The police caused the mothers severe stress by refusing to tell them what had happened to the children, even saying they had been given away and that they would never see them again. The arrested children were held for 51 days. The question of whether following 'higher orders' is a valid excuse for rights abuse in the security forces is a long-standing issue in international law, and the International Military Charter (Nuremberg), for example, states: 'The fact that the Defendant acted pursuant to orders of his Government or of a superior, shall not free him from responsibility.' It may however be considered in mitigation.

Two state entities overseeing Kenyan land administration fight over their respective rights, duties

Two Kenyan state entities are not seeing eye to eye about how crucial land issues should be handled. The National Land Commission and the Ministry of Lands and Physical Planning both claim that tasks where they should be in charge, are wrongly being carried out by the other entity. Not even a supreme court advisory opinion has resolved the problem, and each continues to interpret that opinion in a way that favours its own interests, escalating conflict between them. There are also now two ‘live’ petitions that ask for judicial help in solving the disputes. The country’s appeal court has just given a decision on the way forward.

Parliament’s ‘contempt’ raised in challenge to Tanzania’s bail-ban laws

Tanzania’s bail laws have been brought into line with the country’s constitution, following an application by a member of the legal profession. But in the aftermath of the decision there’s confusion and concern, mostly related to the appeal noted by the government the day after judgment was delivered this week. The high court judgment by three judges deals with the problem that the law makes certain offences ‘unbailable’. How does this square with judicial discretion, the petitioner asked.

Help secure African Court’s future: here’s your chance

One of the continent’s most precious and prized institutions, the African Court on Human and Peoples’ Rights, is under immense pressure. Its very existence as a human rights court for the continent is at stake – and now you can join in doing something about it. The court is asking for input on its next five-year plan and we urge you to take this plea for helpful ideas very seriously. Celebrate Africa Day by ensuring your voice is heard on the court’s future role!

Malawi appeal court judges set new election standards

Malawi’s Supreme Court of Appeal has confirmed that Peter Mutharika was ‘not duly elected’ as President in last year’s national election. This is important news: many people had been holding their breath as they waited for the appeal outcome. But that is far from all that the judgment decided. It also made final rulings on other issues that will impact on government and elections into the future, well beyond the forthcoming re-run. In this case the appeal court was considering a decision by Malawi's constitutional court, handed down earlier this year. It had reached the shock conclusion that Mutharika was not in fact ‘duly elected’ in the May 2019 polls, and the constitutional court ruled new elections had to be held within 150 days. Mutharika and the Malawi Electoral Commission appealed against this decision, and it was in response to this appeal that the seven Appeal Court judges have now delivered their decision, from which there can be no further challenge. Important though the Appeal Court’s eagerly-anticipated decision has been in relation to the validity of the last polls and the requirement of a re-run, it also decided a number of other, related, issues that will impact on government and elections in the future as well.

Lawyers don't have to pay double tax, minister ought to consult next time - Uganda court

After a long and difficult battle with the relevant minister, Uganda's law society has staved off attempts to subject members to double taxation. The government had included lawyers on a schedule of professions and businesses that had to apply for local licences to 'trade', though they are already taxed via practice certification processes. Judge Ssekaana Musa had to deal with similar challenges to the schedule from members of Uganda's pharmaceutical association and organised members of the country's forwarding and clearing business. In all three cases, he found the 2017 proposals would introduce a system that amounted to double taxation. This was impermissible and the minister's actions were thus declared invalid. In an obiter note at the end of his judgment on the law society's challenge, Judge Musa urged that the government consult with the law society to avoid 'further litigation'.

Courts should not give up their position as ‘last resort protection’ under COVID-19 regulations

Courts should beware of giving up their role of protecting fundamental rights during the COVID-19 pandemic, according to Tim Fish Hodgson, legal advisor with the International Commission of Jurists, Africa. Interviewed online on how COVID-19 regulations were impacting on socio-economic rights wordwide, he said that in many countries, courts were no longer as willing to consider cases involving infringements of rights. They took the view that, under an emergency situation, judges 'need to defer'. Urging courts not to take this stance, Hodgson said judges around the world need to make sure that court systems operate as fully as possible, especially in response to people's claims about right's protection.

Posthumous win for Kenyan human rights activists

Many decades after they were detained and tortured, two prominent Kenyan activists who campaigned for multi-party democracy and human rights have been awarded posthumous compensation related to their detention and torture under previous repressive governments. The court that awarded compensation to them also made formal declarations that the fundamental freedoms of the two, Charles Rubia and John Serony, had been violated, as had their right not to be subject to torture and other unlawful abuse. Though it had been many years since the two were detained and tortured, the presiding judge said it was 'not too late to peer into the past and correct injustices that may have occurred in our history.'

New head for SADC administrative tribunal

A member of Mozambique’s supreme court, Pedro Sinai Nhatitima, has been elected to head the SADC Administrative Tribunal. He succeeds Zimbabwe’s Justice Francis Bere who had reached the end of his term of office as president of the tribunal.

Teachers' body vicariously liable for rape, sexual assault at school - appeal judges

Whenever a judgment announces that it is dealing with ‘novel questions of law’, readers need to pay close attention. This is just such a case. It concerns Kenya’s Teachers Service Commission, a body that had employed a teacher who sexually abused some students. Was the TSC vicariously liable for those acts? Had the TSC failed in its constitutional and statutory duty to protect the two children named in the case as WJ and LN, as well as other children, from the teacher’s depredations? – Unusually, these questions were considered by four women judges. One, Judge Mumbi Ngugi, heard the original case in the high court. Then three more women presided when the case was considered on appeal.

Totality principle in 'harrowing' Seychelles online sexual abuse case

From the holiday islands of Seychelles comes a new judgment with a warning for all of us on lockdown with kids spending too much time online. It is a horrifying reminder of the dangers lurking on Facebook and other seemingly innocent platforms: even in a paradise like Seychelles, children may fall victim to evil that stalks them. The judgment, from the Supreme Court of Seychelles is important because of this warning, but it is also important for lawyers because of the sentencing system used by the court. Given the 'shocking' nature of the crimes, the judges concluded that sentencing in the matter had to be decided using what had come to be known as 'the totality principle', most developed and applied in Australia, the UK and Canada. It was a common law principle that required a judge, in a case where the accused was convicted on several offences, to ensure that the 'aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.'

RIP Justice Augustino Ramadhani

Justice Augustino Ramadhani, who died this week at the Aga Khan Hospital in Dar es Salaam, had been the Chief Justice of both Zanzibar and of the United Republic of Tanzania. He had also served as a judge on the African Court on Human and Peoples’ Rights from 2010 to 2016, and for the last two years of his term had been President of that court. That was not his only appointment to a regional court, however, and he had served as a judge on the East African Court of Justice from 2001 to 2007.

First-class vs economy-class access to the law: what the US Supreme Court says

A new decision from the US Supreme Court has a strong message for other courts, lawyers and everyone who works with court documents and with legislation, annotated or otherwise. The judgment restates the principle that no-one may claim copyright on decisions of the courts because the law belongs to 'the people' who have a right to know its content. But the judgment goes further and holds that government-commissioned annotations, like headnotes made on legislation, are also not subject to copyright. It’s an important decision for courts everywhere now that increasing numbers of lawyers and legal activists demand access to court judgments in electronic format. It’s also important because of the likely influence of the US court’s newly-articulated thinking on the copyright status of annotated legislation.

Thai judge dies after second suicide attempt

The Thai judge who attempted suicide in court during October 2019 , has died after shooting himself in the heart. Judge Khanakorn Pianchana was protesting at what he said was interference in a politically-charged trial over which he presided. His death last month has been marked by statements of sympathy and concern by a number of international human rights organisations. Before his second, successful, suicide attempt, the judge wrote about his despair over structural problems in the judiciary that allowed for interference in decisions. He also wrote about his sadness at losing a job he loved.

Sentencing pregnant women in Malawi – judge lays down the law

The case of a heavily pregnant woman accused of stealing at a shopping centre has given one of Malawi’s judges the chance to re-state the law on sentencing first offenders and pregnant women. The judge quoted international law on the subject, as well as Malawi’s own legislation and prison inspection reports, some of which she had written herself. She pointed out that the country’s prisons did not have proper health care facilities for dealing with pregnant women or infants and that the infant and maternal mortality rates in prison were a matter of concern.

Sierra Leone scraps ban on pregnant schoolgirls going to school

In a major policy shift, the government of Sierra Leone this week announced that it had agreed to change the law and allow pregnant schoolgirls to continue attending school. The issue has divided society in that country, with the previous government taking a strong stand against mothers-to-be being permitted to go on attending lessons in mainstream schools. However, the new government that took office about two years ago has shown itself willing to make changes on the issue. Pressure to change the law has been mounting, most recently in December 2019, with a decision of the ECOWAS Court holding that the ban was discriminatory and should be scrapped.

Repressive policing law: scathing judgment by Uganda's constitutional court

One of Uganda’s most contentious laws has come under fire by that country’s constitutional court. A particularly repressive section giving the police power to prohibit all public gatherings and protest has been declared unconstitutional and the court’s majority took the opportunity to criticise the way police hound and harass any political gathering not called by the ruling party.

Chaotic land ownership records shock Ghana's supreme court

A recent dispute over the rightful owner of a plot of land in Ghana has led the country's highest court to ask why people who sell the same land to several buyers in fradulent deals, are not prosecuted. The judges also expressed their shock at the state of Ghana's records from which it is often impossible to tell the rightful owners of plots of land. They said such chaos, combined with uncertainty about whether property deals are valid, would deter also foreign investors.

Damage to the environment resides in a hallowed place - Zambian judge

Eight senior Zambian headmen and a traditional princess have challenged the behaviour of the government’s private-public partnership company, Zambia Airforce Projects Ltd, in relation to a building project in an environmentally critical area. Now they have been rewarded by a tough court response in their favour. A Court of Appeal judge who heard the application by the traditional leaders has issued an order stopping any further work in the area until key environmental law issues have been satisfied and the court gives the company the go-ahead to continue.

Banks helped rob Uganda of millions of US dollars – constitutional court

Like sunlight shining into dark spaces, Uganda’s constitutional court has named names and pointed fingers at those responsible for a mega-scam that has shocked the country. The court’s majority found several banks played a key role in a taxpayer loss of almost US37m. Now the banks involved have each been fined US10m and other parties to the scam will also have to pay up, though the exact amounts are yet to be decided by the high court. The scam involved a prominent Ugandan business leader and politician, several of his companies and four banks. The court also pointed a finger at a former minister of finance and a former attorney general.

Senior Zimbabwean judge, Francis Bere, at misconduct tribunal

A respected senior member of Zimbabwe's judiciary is being investigated for alleged misconduct, for the second time in little over a year. President Emmerson Mnangagwa has appointed a tribunal to investigate the allegations against him and, surrounded by considerable publicity, the tribunal members have been sworn in. The allegations against the judge concern a phone call he made to a lawyer. While the lawyer says the call included remarks to the effect that he should settle a civil dispute involving relatives of the judge, the judge himself says the call was 'purely social.'

Just 34, but he has already spent over half his life in a Kenyan jail

The case of Thomas Odede, arrested for murder aged just 12, illustrates how easy it is for children to be forgotten once they land in jail. Following his conviction he was detained in prison ‘at the President’s pleasure’. But after 19 years he asked the courts for help, claiming such an open-ended ‘sentence’ was unconstitutional.

Judicial independence infringed when Uganda's Chief Justice has to 'plead' for funds - constitutional court

Uganda’s constitutional court has found that the independence of the country’s judiciary is in jeopardy because of the way the budget of this arm of government is handled. In one of its most significant decisions under the present constitution, the court said the system made the judiciary very much the junior branch in the three arms of government, and often reduced the Chief Justice ‘to pleading for funds from the executive’. A unanimous court of five judges set time-tables for major changes to the present situation so as to protect judicial administrative independence. The court also had strong criticism for the other arms of government whose argument, presented in court, seemed to ‘trivialise the importance of the judiciary’.

African lawyers protest as colleagues targeted by police, judiciary

International lawyers’ organisations have reacted with shock to news that colleagues in four African countries have been targeted by the judiciary, the police or other state officials, in a way that has stopped them carrying out their work -  all without a proper opportunity to be heard.

Should South Africa's top court hear a torture dispute implicating Equatorial Guinea's vice president?

Teodorin Obiang, vice president of Equatorial Guinea (EG), a country regarded as one of the most corrupt in the world, wants South Africa’s top court to halt a R70m legal claim being brought against him there. The claim, by a South African businessman, is for damages relating to his wrongful arrest and detention in EG between 2013 – 2015, under conditions so appalling that they amount to torture under international law. Obiang is asking the Constitutional Court to hear his challenge to a decision of a full bench of the high court in SA after three judges said the damages claim against him could go ahead.

New website of the Seychelles' judiciary to 'help ensure open justice'

The judiciary of Seychelles has launched a new website, providing access to the judgments of its courts as well as giving the judiciary a more human face. It is intended to help the public with provide resources as well as information. Everything the public needs to know about accessing legal aid, for example, can be found there, while for lawyers all the Practice Directions now become available in a single place

Record mysteriously disappears: what should a court do?

Out of the blue, and after serving nearly 16 years of his 30-year sentence, a prisoner in one of Zimbabwe’s maximum security jails applied for bail pending an appeal. But there were two problems: there was no appeal pending - and there could be no appeal since all the records had mysteriously disappeared. Not even the name of the trial magistrate could be found. What was the high court to do?

Angolan lawyer’s arrest, torture condemned by SADC Lawyers’ Association

Angolan lawyers are in uproar over an incident in which one of their profession was detained, tortured and charged by police. According to a statement by the Southern African Develoment Community Lawyers' Association, the lawyer, Eugenio Marcolino, had been appearing in court when the police detained him.

Eritrea 'slave labourers' - Canada's highest court allows claim to be heard in Canada

In a widely-hailed new decision, Canada’s supreme court has ruled that Eritrean workers, allegedly forced by the state to provide slave labour to a Canadian-owned mine in Eritrea, may sue the mining company in the Canadian courts. Vancouver-based company, Nevsun, has been operating a mining outfit in Eritrea, using local workers. In terms of the new supreme court decision, these miners may now sue Nevsun, in Canada and under Canadian law, for the conditions under which they say they were made to work. The three Eritreans claiming against Nevsun say they worked in the mine against their will. They claim they constantly feared torture and other punishment. One of the three said he was ‘abducted at gunpoint’ from the mine, held in solitary confinement, tortured, and given electric shocks.  Apart from the impact on the workers (who must now prove their working conditions and that Nevsun was aware of these conditions) the decision is also important because it shows the highest court in Canada developing the law of that country to take account of customary international law. The court’s majority said there were no Canadian laws that conflicted with the adoption of customary international law as part of Canada’s common law. On the contrary, the government had adopted policies to ensure that ‘Canadian companies operating abroad respect these norms’. ‘In the absence of any contrary law, the customary international law norms raised by the Eritrean workers form part of the Canadian common law and potentially apply to Nevsun,’ said the court.

Indian widow’s plight ‘shocks conscience of the court’

In Africa, as in India, land rights, access to and ownership of land are a major concern. It is often the most poor and vulnerable that suffer the worst when these rights are not respected. And if you are an unlettered woman, on your own, you could find yourself and your rights disappearing altogether. Take the case of Vidya Devi who lives in India’s Himachal Pradesh state. More than half a century ago, the state took her land away from her for a road – but to this day she has been paid not a cent for it, even though the state was legally obliged to pay compensation. It is cases like that this that we need to remember when marking International Women's Day.

Africa's women struggle to gain abortion rights; USA women struggle to keep them

Most African states still struggle over the right to an early, safe, legal abortion and as a result the number of women dying from illegal terminations continues to increase at an alarming rate. However, in the United States, where women thought that this right had been established decades ago, it is now under serious threat, with the principle established in Roe v Wade under systematic attack in the courts and the states' legislatures. Just last week the Supreme Court heard argument in the latest state bid to undermine that right.

Namibia's anti-graft body targets counsel from South Africa

Namibia’s Anti-Corruption Commission, already sharply censured by the high court for going beyond powers allowed it by law (see 'When the Shepherd becomes a Wolf' on this website), is now coming in for even wider criticism. This time it’s for serving a summons on counsel for the accused – in court and during a hearing related to the ‘Fishrot’ scandal that has stunned Namibia. The scandal involves allegations of international bribery and corruption for access to Namibian fishing waters. Last week, South African counsel, Tembeka Ngcukaitobi, appearing in the high court, Windhoek, on behalf of suspects in the matter, was served with a summons from the ACC demanding that he explain a payment he had received from Namibia’s national fishing corporation, Fishcor, in 2018, and given just an hour to answer. The SADC-Lawyers Association has issued a strongly worded statement on the incident, and the Namibian government has subsequently apologised to Ngcukaitobi. It is not the first time that counsel for the Fishrot accused have run into trouble with the Namibian authorities: late last year, two South African advocates were arrested, held in police cells and prevented from appearing to argue in court as they did not have the required work permits.

Sudan: does it care a damn?

The highest court in the United States has just heard argument in a case that could have far-reaching implications for Sudan and perhaps for other countries said to be sponsoring terrorism. It concerns amendments to a key piece of US legislation and whether these amendments could apply retroactively, in this case to Sudan. That state has withdrawn from the litigation, refusing to participate in any way. However, if the court finds the law applies, Sudan could be liable to damages running into billions of US dollars for compensation to victims of terror bombings and their families. Judgment on the question has been reserved, but in the course of argument when the matter came to the US Supreme Court last week, counsel appearing for Sudan let slip an ‘utterance’ seldom heard in such a conservative, formal environment: he said ‘damn’. A quick check shows that a member of South Africa’s highest court has gone even further, putting the word into a formal decision of that court.

When the shepherd becomes a wolf

Top-ranking Namibians implicated in international corruption related to the country’s lucrative fishing industry, have failed to have the search and seizure warrants issued against them set aside. Among the targets of the warrants applied for by the anti-corruption commission were the former minister of fisheries and marine resources and the former minister of justice. But the judge hearing the matter was highly critical of aspects of the commission’s behaviour. One of the complaints against the commission in relation to the warrants was that certain of the documents were ‘privileged and confidential’. The anti-corruption commission said the documents were ‘confidential but not privileged’ and there was thus no reason for them not to be seized and used in the matter – an attitude that the judge said ‘horrified’ him. The judge said it ‘boggles the mind’ that the commission did not follow the law that applied in a case where privilege was claimed. The commission’s behaviour amounted to ‘a shepherd becoming a wolf’ and in this regard, the commission’s officers acted ‘despicably’.

Three decades later, former Kenyan air force member may sue for torture – appeal court

In a major new decision, Kenya’s court of appeal has ruled that a claim alleging torture under a previous regime may be heard – even though it is more than 30 years since the events involved. The case concerns Michael Kibuti, a previous member of the armed forces, who was tortured and then discharged after a court martial following a failed coup in 1982. It was originally heard in the employment and labour relations court as Kibuti wants the court to recognise that various of his constitutional rights were violated by the torture meted out to him, and he also claims the terminal benefits due to him when he was discharged. However, that court dismissed the petition saying his claim was disqualified. Kibuti then turned to the appeal court for help and the judges of that court have held the matter must be properly heard by a trial court.

Prisoner, jailed for indecent assault, loses civil action over extended imprisonment

A prisoner, convicted of indecent assault by the Eswatini courts, has tried to sue the magistrate who presided in his case, claiming he was kept in prison five months longer than his sentence. And indeed, he was kept in prison for extra time. But this was in terms of a high court review of his original sentence. Moreover, as the high court hearing the civil case pointed out, the magistrate who ordered the additional time in prison was acting in her official capacity, and the constitution stipulates that a judicial officer is immune from claims for anything done in the exercise of the judicial power. It’s an important reminder about judicial power. But why did it require a year for the court to deliver its decision?

Democracy an expensive business - Malawi court

Malawi’s judicial decision that the country’s ‘Tippex’ election be re-run, has survived its first crucial challenge. The original dispute, heard as a constitutional matter by the high court, concerned the validity of national polls held in May 2019. Earlier this month, five judges ordered that the elections be held again because of widespread irregularities including the blanking out of official records with correction fluid. Last week the court heard and decided an application for this judgment to be suspended, pending a challenge in the Supreme Court of Appeal. Peter Mutharika, who emerged from the now discredited elections as Malawi’s President, gave a number of reasons for why the decision should be put on hold until the apex court has re-considered the judgment. His legal team said it would waste a lot of money to prepare and perhaps even hold a second round of elections, only to find that the appeal court overturned the original decision. Refusing the application for suspension, the judges commented: ‘The view of this court is that democracy is an inherently expensive process.’

Relatives of Lesotho's PM appeal bail granted to his 3rd wife, charged with murdering wife number two

The decision by Lesotho’s Acting Chief Justice to grant bail to the wife of that country’s Prime Minister, Tom Thabane, is to be challenged as an urgent matter in the apex court of appeal. Relatives of Thabane, including a grandson who shares his name, have lodged the appeal claiming the ACJ granted bail under ‘suspicious circumstances’. Thabane’s wife, Maesaiah Thabane, has been arrested by the police in connection with the murder of Thabane’s previous wife, Lipolelo. When she was asked to report to police for questioning, Maesaiah fled Lesotho to South Africa but later returned. The Thabane relatives are joined in their appeal by the survivor of the shooting, Thato Sibolla, who was in the vehicle with Lipolelo at the time that unknown gunmen open fire on it.

Uganda judiciary to hold court in refugee camps; warn police on judicial independence

It has been a busy time for Uganda's judiciary, in the media for contrasting reasons. The judiciary put its collective foot down after police summonsed a magistrate in connection with a case he had heard and which the police were also investigating. In a strongly-worded statement the judiciary said that such actions were ‘irregular’ and that the police ‘cannot summon judicial officers to explain how they handle court cases.’ Another, more positive development, has seen the judiciary in discussion with the Refugee Law Project over holding court sessions in refugee camps starting as soon as next month. Uganda hosts about 1.4 milllion refugees, more than any other African country, and this step is seen as highly significant in offering refugees in camps better access to justice.

Top court reigns in Kenya's President over judicial appointments

Kenya's President Uhuru Kenyatta has violated the constitution by not appointing judicial candidates whose names were given him by the Judicial Service Commission in the middle of last year. That's according to a finding of the country's Constitutional Court, which has held that the President plays only a ceremonial part in judicial appointments and was constitutionally obliged to enroll those chosen by the JSC. The judges said Kenyatta had no constituitonal power to 'review, reconsider or decline to appoint' those recommended by the JSC.  The significant new decision follows many months of silence from the President in the wake of the JSC's recommendations for appointment. According to Kenyatta, who argued that he had the right and the duty to decide for himself whether the JSC nominations were appropriate, questions were raised about some of the candidates by the country's intelligence services. Rejecting this justification, the court said the appointment of judges 'should be immediate and as soon as recommendations are forwarded to him' by the JSC, and suggested that the process should take no longer than 14 days. The strongly-worded decision is the latest in an ongoing struggle between the President and the judiciary dating from at least 2017 when the Supreme Court annulled national elections and ordered a fresh round of voting across the country

'Inescapable conclusion': Malawi polls fatally flawed, say concourt judges

Malawi’s constitutional court has found the May 2019 national elections awarding presidential victory to Peter Mutharika, invalid. One of the most interesting aspects of this landmark judgment is the sense of judicial confidence that comes through in each of the well over 400 pages. There is no tentative digging in corners to find possible technical infringements. By the time they had gone through the evidence led by all the parties, the five judges of Malawi’s high court constitutional division were ready to bring out the big guns and find the integrity of the elections had been fatally undermined. This was not because of bribery and corruption (though alleged, these claims were not proved, said the court) but because of the way the checks and balances had been skewed, final reports constantly changed and over-written and voting records duplicated, to name just a few issues.

Judges' scandal in South Africa raises questions over Judicial Service Commission

In many African countries a special ceremony is held during January to mark the start of the official court year. No such tradition has yet developed in South Africa. But the 2020 legal year got off to a spectacular start all the same: the deputy judge president of the high court in one of SA's biggest provinces issued an affidavit making sensational claims against the judge president and his wife, who is also a judge in the same division. Now their battle has spread to other parts of the judiciary as well as the Judicial Service Commission which is supposed to deal with complaints involving judges. There are two major issues to note: first, the judge concerned already has an unresolved serious complaint against him from more than 10 years ago, with no sign that it might be heard, let alone finalised, any time soon; second, the JSC has a growing reputation for being unwilling or unable to manage disciplinary issues involving judges.

This woman is supposed to be a leader, not a 'flower-girl'

The controversial new head of Kenya’s National Employment Authority (NEA) board has already lost her job. This after the high court found Mary Wambui Munene did not qualify for the position. The NEA is intended to help with the serious unemployment problem among young people in Kenya. But Wambui was 'handpicked' for the job, without the selection process laid down for positions of public office. The judge hearing the dispute over her appointment said he could find not one iota of evidence in Wambui’s CV to suggest she had any experience in human resource management, let alone the seven years required for the post. Government lawyers argued that her appointment should stand since she would be little more than a ‘ceremonial steward’ on the board. But the judge retorted, ‘As a chairperson (she) is not expected to be a flower-girl in the NEA, but the person to provide leadership to the board … to ensure that it achieves its functions.’ Under Kenya’s new constitutional dispensation, government had to ensure that taxpayers got their money’s worth from appointees to public office, he added.

Lesotho’s King urged: don't appoint ACJ as Chief Justice

While the police continue to search for the current wife of Lesotho’s head of government, Tom Thabane, in connection with the murder of his former wife, Thabane has announced that he is to quit office on a date still to be announced. Thabane, whose ruling All Basotho Convention is riven with splits, is also of interest to the police, who say that Thabane’s personal phone was used at the scene of his second wife’s murder. His current wife disappeared when police said they wanted her for questioning. But while he mulls his departure date, and reflects on where his wife might be, Thabane has not been taking life easy: he has been busy pushing for the Acting Chief Justice to be appointed Chief Justice.

Speedy justice puts brakes on attempted fraud

A company set on pulling a fast one on the government of Malawi has just had a quick lesson on the impact of speedy justice. Asked to supply a number of tyres and tubes for the country's prison service, the company obliged (before a price had been agreed on) and then billed the authorities for more than double the going rate for tyres a year later when the case was heard. To add insult to injury, the company then demanded payment with interest at 10% more than the bank rate. President of Malawi's Specialised Commercial Court Judge John Katsala was, however, having none of it.  Noting that the two sides had been disputing the sum owed ever since the invoice arrived, he found there had been no prior agreement about the price and set a rate that appeared fair to him. Then, throwing out the interest rate demanded by the company, he gave the government 14 days to settle the bill he had approved.Remarkably, the case came to court, was argued fully and a written judgment delivered, all less than two years after the government made its original request for the tyres.

'Silent', 'curt', law society admonished by Namibian high court

When the high court of Namibia asked the country’s law society what it thought about a candidate for admission as a lawyer, the judge had a ‘curt reponse’. The court was anxious to hear from the society as the candidate had frankly admitted to having a criminal record. Did this mean he was not a ‘fit and proper’ person for admission? Or did the society have reason to believe he could be admitted after all? Faced with the law society’s lack of response, the judge asked the society of advocates to help the court instead. But, he warned, the ‘silence of the NLS’ is ‘totally out of order and must not be allowed to take root or be repeated.’

Should recalcitrant county officials pay for environmental restoration from their own pockets?

Judging from a recent case decided by Kenyan judge Dalmas Ohungo, working in the environment and land court can be a truly soul-destroying job. Virtually two years after the court delivered a judgment against a local county government for violating the right to a clean and healthy environment of the people in its area, the local authorities have done absolutely nothing to fix the situation – and they have consistently ignored the court’s orders.

Judge Mathilda Twomey of Seychelles to step down as Chief Justice

Unlike many presidents who seek extensions of a constitutionally-mandated limited term of office, the chief justice of Seychelles, Mathilda Twomey, has honoured her commitment to just one five-year term and will step down later this year. Speaking at the opening of the supreme court’s 2020 legal year, the chief justice spoke passionately about judicial independence and the courage required to exercise true independence. She also urged the establishment of a law reform commission, saying efforts to make the legal changes needed in Seychelles were hindered by ‘outdated, unreformed laws’. When Judge Twomey leaves her post as chief justice, she will remain a member of the judiciary, but will focus on her work as part of the Seychellois court of appeal.

The Gambia wins first round in genocide case

One of the most extraordinary recent developments in international law has been the so-far successful challenge by The Gambia to the policies and practices by Myanmar against its minority Muslim Rohingya people. The Gambia took the matter to the International Court of Justice, where it alleges these practices amount to genocide, a claim denied by Myanmar. In the latest round, The Gambia has won a series of provisional orders against Myanmar. The unanimous decision by the 17 judges of the International Court of Justice, delivered yesterday, 23 January 2020, included four interim measures to be taken by Myanmar to protect the Rohingya from any acts of genocide and to retain evidence that might be needed when the court gets to hearing the merits of the case.

HIV+ prisoners' victory opens door to rights-based legal action

Two HIV+ prisoners held in Lusaka's central prison, have won a case against the prison authorities that could have widespread repercussions for other prisoners and for rights-based litigation more broadly. They claimed their rights to life and dignity were infringed by conditions in the cells. In response, Zambia's highest court has ordered the government to ensure they are provided with a balanced diet and access to the medicine and treatment they need given their condition. They must also be housed in cells that are neither a health risk, nor in such a condition that they constitute inhuman and degrading treatment or additional punishment. The court has further ordered that the prison authorities must provide the courts with regular updates on what has been achieved by way of reducing overcrowding and improving conditions in the cells. A part from its important orders related to prison conditions, the judgment is also crucial from a legal perspective: the High Court had found that though the prisoners had proved the terrible conditions under which they were housed, there was nothing the courts could do about the situation as the rights infringed were not justiciable. The Supreme Court overturned that finding, leaving the way open for other challenges on issues previously thought out of bounds for the judiciary.

Citing outdated colonial attitudes, Zambia's Con Court dumps laws on chiefs

Contemporary Zambian laws allowing the President to regulate traditional chiefly appointments have been declared unconstitutional. The laws, based on colonial-era ordinances, were tested when a prominent traditional leader disputed the President’s power to legitimise a chief’s appointment through ‘recognition’. The court found that these presidential powers infringed the amended constitution saying ‘no law’ could allow anyone the right to ‘recognise or withdraw the recognition of a chief’. Given the promises of the constitution and its supremacy over all other law, provisions of the Chiefs Act allowing the President a say in the choosing of chiefs and other traditional leaders were unconstitutional and were to be ‘expunged’ from the statute books.

‘Remarkable African jurist, judge and scholar’ – Jifa faculty member lauded

When the Judicial Institute for Africa (Jifa) schedules training for African judges, one of the most important preparatory issues is who to invite as faculty. Then follows an anxious time of discussion to ensure that the invited jurist will be available and willing to assist. Among those who regularly offers enthusiastic help and expertise is Justice Oagile ‘Key’ Dingake, originally from Botswana’s high court but now enjoying an international judicial career. Justice Dingake's remarkable writing, teaching and judicial life thus far – he is in his mid-50s - has been the centre of a new media profile that we are delighted to share with you.

Top judge given human rights award in Zambia

Zambian Supreme Court Judge, Mumba Malila, has been honoured for his human rights work. Earlier this week, Justice Malila was the 2019 recipient of the Zambian Human Rights Commission Award, given in recognition of his contribution to the field of human rights both in Zambia and, more broadly, across Africa.

Regional court overturns Sierra Leone ban on pregnant girls attending school, writing exams

For years organisations and individuals have urged the government of Sierra Leone to re-think its 2015 ban on pregnant girls attending mainstream schools and writing exams. But they had no success. Eventually some of these organisations approached the Court of Justice of the regional Economic Community of West Africa States (ECOWAS), arguing that important rights of such girls were violated by the bar on attending school. Today, the court noted its decision: the ban was discriminatory and had to be overturned, said the judges.

Judiciary runs out of words for 'barbaric' gender violence

As the international community marks its annual 16 days of activism to end gender-based violence, judges are running out of words to describe the horrific cases of femicide that regularly come before them for trial. A case in point was recently heard by Namibia's high court and concerns the butchery of a woman by the man with whom she had been in a romantic relationship. From the remarks by the judge in this case, it seems the courts are 'exhausted' by the horror they see and struggle to find the right words for the 'barbarism' involved in the cases before them.

Former Rwandan Chief Justice Jean Mutsinzi RIP

Rwanada’s first post-genocide Chief Justice, Jean Mutsinzi, died last week after a short illness. He was 81. Justice Mutsinzi served as Chief Justice in Rwanda between 1995 and 1999, and was later a member of both the Common Market for Eastern and Southern Africa (Comesa) Court of Justice and the African Court on Human and Peoples’ Rights, including a two-year term as president of this court.

How judges can help court reporters - plea from 2019 Judicial Dialogue

Unesco’s invitation to speak at an event associated with the Judicial Dialogue in Uganda last month included a request for practical ways in which the judiciary could ‘make life easier’ for members of the media who write about the courts. Here are some of the suggestions put to senior judges, and that made for interesting discussion.

Zim judge gives stunning human rights decision in transgender case

A member of Zimbabwe’s Supreme Court has just delivered a landmark decision in a case heard while he was still a member of the high court in Bulawayo. It concerns a transgender Zimbabwean subjected to appalling infringements of her constitutional rights at the hands of the police and a high profile member of the ruling ZANU-PF's Youth League. Although she has now been awarded damages by the court, she has already left the country after claiming asylum in the USA on the grounds of Zimbabwe’s shocking treatment of LGBTI people.

The power of law to challenge injustice

One of Namibia’s senior judges, David Smuts of that country’s Supreme Court, has just published a book on his work during the 1980s when Namibia was still virtually a province of South Africa. At that time, Smuts was a young lawyer determined to make a difference by exposing and curbing the shocking human rights atrocities he knew were taking place in Namibia on the orders of the SA government or its security arms. It’s a book full of thrilling stories about his work in that period, reminding readers of the power of law – and lawyers – to challenge injustice. As Smuts puts it himself in the sub-title of the book, it is the story of ‘a lawyer’s battle to hold power to account in 1980s Namibia’.

Med Kaggwa, Ugandan human rights defender RIP

One of Uganda’s most prominent human rights defenders, Med Kaggwa, died unexpectedly this week, aged 64.

Tanzanian judges: nowhere to hide under-performance

A new electronic system intended to promote citizens’ rights to access justice and introduced in Tanzania a few months ago, will allow anyone to read decisions almost immediately after delivery. The country’s Chief Justice explained how the system worked to newly-appointed judges at the start of their induction training in Dar Es Salaam this week. In addition to e-filing, the new system will see judgments loaded onto TanzLII immediately they have been handed down.

Attorney, fugitive from justice, sues Chief Justice but loses

The case of Siboniso Clement Dlamini has caused ructions in Eswatini’s legal circles for some time. Now three members of the high court have laid down the law. Dlamini, one of the country’s longest-serving attorneys, has been fighting to have the Chief Justice investigated for misconduct because the CJ barred Dlamini from appearing in any court until he submitted himself to prison as punishment for contempt of court. At the heart of the matter is Dlamini’s handling of a deceased estate – and a widow who is clamouring for her inheritance.

Kenyan judge upholds dismissal of alcohol-addicted senior magistrate

How far must an employer go to help a staffer with alcohol addiction? At what point is dismissal appropriate? Kenya’s high court had to consider this problem in relation to a senior magistrate who was given his marching orders by the Judicial Service Commission after he had been drunk on duty.

South African Police refuse to act against criminals targeting 'foreign truck drivers' - top judge wants action

The South African Police Service has been taken to task by a senior judge over persistent complaints that they fail to act and enforce the law. In an astonishing claim, the police are said to refuse to intervene, even faced with clearly criminal activity, ‘until a court directs them to take action’. The judge president of the Mpumalanga division of the high court, Frans Legodi, said litigants raised similar difficulties in court every week. Photographs from the two latest matters showed police standing by but doing nothing to prevent crimes involving in protest against 'foreign truck drivers'. One of the parties in these two cases said when he asked the SAPS for help, he was told that he should ‘firstly procure a court order to enable the SAPS to come to (their) assistance.’ The JP said it was not clear whether the problem lay with the training given to the police or whether it was ‘just dereliction of duty’ by individuals. Problems experienced with police inaction were often reported in areas ‘where mining activities are very high’. He had therefore written a judgment on the behaviour of the police that would be sent to the provincial police commission to consider a proper investigation.

Why has Uganda’s important new human rights law not been officially promulgated?

Hailed as a hugely significant step in promoting and protecting human rights, Uganda’s new law looked set to be an example for other African countries. But despite the hope and the hype around the new legislation, the law has not yet taken effect. This despite presidential assent eight months ago. Now the failure to publish this important new law is being challenged in court.

'Satan did it', claims rape accused

Mothers have been warned by a senior judge from Sierra Leone to be ‘doubly careful’ about the safety of their daughters. They should be ‘less trusting’ of others and should ‘prod on with love’ if they notice any change in their children, to find out the reason for the altered behaviour. This might help avert would-be rapists. Judge Reginald Fynn made these comments after finding a man guilty of raping a six-year-old who had been left in his care by the girl’s mother.

Convicted of genocide, former Rwandan cabinet minister loses last attempt to stay out of jail

It has been a busy couple of months for one of the lesser-known – but critically important – courts in Arusha, Tanzania. Arusha houses a number of significant judicial bodies apart from the African Court of Human and Peoples’ Rights. Among these is a United Nations tribunal: the International Residual Mechanism for Criminal Tribunals, Rwanda (IR-MCT). In a momentous ongoing case, a former Rwandan minister of planning, Augustin Ngirabatware, already convicted on several genocide-related charges, asked that the IR-MCT appeal chamber consider his claim that he had acquired sensational new evidence. This evidence was that four key witnesses who testified against him had recanted and now claimed they had not told the truth during his trial. At special hearings in September and October, the IR-MCT in Arusha considered Ngirabatware’s claims and related matters. The outcome, however, did him no good at all.

Widow's rights upheld in customary law dispute

Customary law, at its best, is said to ensure that orphans and widows are cared for. But this is not always the case. That, at least, has been the experience of an elderly widow in Eswatini. Though she married into a royal household, when her husband died her circumstances became dire. She found her brother-in-law had his eye on her late husband’s property and he would not even allow her to construct a new outside toilet for her homestead. Now, however, three judges of Eswatini’s supreme court have granted her an interim interdict against her brother-in-law. Pending the resolution of their dispute by the traditional authorities, the brother-in-law must allow her to build the toilet and must restore possession of a field she was given on her marriage. He must also re-fence the field after he had his staff tear down the barbed wire fence that she was installing to protect herself.

Kenya's Chief Justice shines YouTube light on tension with government

Tension is high between the judiciary and the government in a number of African countries at the moment. But so far only one – Kenya – has seen the Chief Justice come out with a full public statement exploring these problems. The statement, read by CJ David Maraga to a number of media houses, has been added toYouTube, and can now be accessed by anyone interested in the situation. Most of the CJ’s complaints related to the massive cuts to the budget of the judiciary and the impact of those cuts. He also pointed out the contemptuous ways in which he and other judges were treated by the government.

Cabinet Minister ignored 'God-given blessing' - Lesotho court

The Lesotho courts, already embroiled in a scandal-ridden series of cases involving the Acting Chief Justice, the Prime Minister and others, have now had to intervene in what has been held to be the unlawful action of the Minister of Local Government and Chieftainship. At the end of July,  Litsoane Litsoane disbanded the Maseru City Council’s tender board, citing certain ‘irregularities’. But Judge Molefi Makara has now set aside the decision because the tender board members, including Maseru’s mayor and her deputy, had not been given a chance to put their views on the issue. The judge described this as ‘disregarding the God-given blessing upon (all) mankind that a person should be heard before any adverse decision is taken.’ This dispute, and the action involving the ACJ, come as the judiciary struggles with a widespread perception that certain politicians feel entitled to have judges ‘on their side’ in the decisions they make.

No more child brides says Tanzania's highest court

Children’s rights and the rights of girls in particular took a major step forward in Tanzania this week: The Court of Appeal has delivered a judgment upholding a 2016 landmark high court decision holding that neither girls and boys may marry before 18. The appeal court also agreed that provisions to the contrary in the Law of Marriage Act were unconstitutional. It is a particularly important step for the courts as the number of child brides in Tanzania is among the highest in the world.

Zambia's human rights defender, Laura Miti, awarded Scottish university fellowship

Long-time Zambian human rights defender, Laura Miti, has joined a Russian human rights activist, Konstantin Baranov, for a three-month fellowship at the University of Dundee. It's intended to give fellows a break from constant work at the forefront of human rights struggles. Instead, they take time-out for research, reflection on what they have been doing and interaction with students and staff of the university as well as government officials and members of Scottish civil society.

Don’t like a court judgment? Just change the law, why don’t you?

Everyone who attended the Jifa training course on environmental law earlier this year will remember Judge Brian Preston. Chief judge of the New South Wales land and environment court, he had remarkable insights into the subject of environmental law and the role of the courts in making environmental rights real. But now the NSW government is taking on a major decision he gave earlier this year in which he cited climate change, among other issues, for turning down a planned coal mine. In reaction, the NSW government has decided to introduce a new law saying that greenhouse gas emissions can’t be considered by the courts in deciding whether to approve mines.

All three top posts in Zambia’s judiciary held by women – Chief Justice Irene Mambilima

As many African states struggle to increase the number of women on the bench and in leadership positions, one country in particular can boast of the substantial progress it has made in this area. Zambia’s Chief Justice Irene Mambilima spoke about the issue in a speech she delivered last week. She disclosed that all of the three top judicial posts are now held by women.

Champion of Ugandan judicial independence dies

A champion of judicial integrity and independence in Uganda, retired Supreme Court justice, Wilson Nattubu Tsekooko, has died. He was 76.

15 y.o. jailed for life. Now African Court orders reparations for 'lost youth'

Two cases involving convictions and heavy sentences for rape have been heard by the African Court on Human and Peoples’ Rights. Both cases originate in Tanzania and both show that legal rights of the accused were not observed by the state. In one, the accused was not given free legal representation though he faced a mandatory 30 years behind bars. In the other, an appeal was filed three days after sentence, but it took almost 16 years before the authorities provided the records needed for the appeal.

Tanzania's court of appeal overturns decision that found parts of electoral law invalid

A landmark High Court judgment on Tanzania’s electoral law has just been set aside by five judges of the country’s Court of Appeal. At stake was a provision that allowed officials appointed by the President to become returning officers, acting on behalf of the electoral agency, during elections. Earlier this year, three High Court judges found the provision unconstitutional, saying it infringed the independence of the National Electoral Commission, the body intended to oversee elections in an impartial manner. Now the Court of Appeal has overturned the original decision, saying there are enough safety measures in place to make sure that the officers act with independence.

We can’t change death penalty - Tanzanian high court

A full bench of three high court judges has re-affirmed that the mandatory death penalty in Tanzania is constitutionally valid. No new factors had been given to the court to indicate that anything had changed since the last time the issue was considered by the judiciary, said the judges, so they could not vary the previous decisions or rehear the issue ‘on the same facts’. But, they said, the issue could be taken to the highest court via review if the petitioners felt strongly about the matter.

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.

Witchcraft trial adds 7 more to Tanzania's death row

A recent witchcraft trial in Tanzania has led to a further seven people being added to the well over 500 convicts believed to be on death row. The case illustrates the difficult position in which Tanzanian courts find themselves: the death penalty is still applicable to murder and a few other serious offences and just three months ago the high court declared it was unable to change the law in relation to the death penalty. This despite the country’s president, John Magufuli, declaring that he would be unable to sign the documents required for anyone to be actually executed. He would find it just too difficult to do so, he said. So, while capital punishment has not been carried out for the last 25 years, the courts continue to pass the death penalty, and the numbers of condemned prisoners continues to grow.

Thai judge shoots himself in court: protest at ‘political interference’

When Thai judge Khanakorn Pianchana reached the end of the judgment in a case he had been hearing, he read out a statement. He next walked from the bench to bow before a portrait of Thai King, Maha Vajiralongkorn. Then he took a pistol from his pocket and shot himself. He was immediately rushed to hospital where he is now reported as out of danger. But what caused the judge to take such dramatic and potentially fatal action?

Both Lesotho's top judges facing suspension

Lesotho continues to prove itself highly unstable in relation to the judiciary and its tenure of office. More threats of suspension, inquiries related to impeachment and other disciplinary steps against top judges have been issued in Lesotho than in any other country in the region. This week, new action was launched against the Acting Chief Justice as well as against the President of the Court of Appeal (for the second time in two months this year, and following a successful impeachment process in 2016 from which he bounced back). All this while the Chief Justice continues in a state of limbo following her suspension a year ago on grounds widely suspected to relate to politics.

Statute vs Statue: when judges become art critics

Kenya’s constitution says that the currency of that country ‘shall not’ bear the 'portrait' of any individual. So, when new bank notes were issued earlier this year, depicting the Kenyatta International Convention Centre with Kenya’s first president, Jomo Kenyatta, clearly distinguishable, seated alongside the building, the question arose whether the new notes were constitutional. Two of the presiding judges felt they had to solve the legal conundrum by deciding whether the bank notes bore a ‘portrait’ of Kenyatta  - or if it was just a picture of a statue.

Judges critical of Lesotho Parliament's work, punt constitutional changes

Lesotho’s current political bosses – and the country’s economy – have been dealt a new blow. The high court of Lesotho, sitting as a constitutional court, has ruled that plans for dealing with repayment of generous government-guaranteed loans made to two categories of officials, are discriminatory and unconstitutional. Everyone who was given such a loan will now have to be treated in the same way, with the government paying all remaining loans back to the bank, in full. The court also made a strong but unexpected call for constitutional changes that would ‘more meaningfully’ separate the legislature from the executive. The three judges further complained about the escalating number of cases that came before the courts challenging the validity of regulations. It was so bad that the judiciary was justified in feeling sceptical about whether parliament did its work properly in overseeing such regulations, the court said.

Poaching case victory highlights prosecution challenges

Three judges of Tanzania’s highest court have confirmed conviction and sentence of a Chinese national, Song Lei, after 11 rhino horn were found in a ‘secret chamber’ of his Toyota Hilux. However, the court upheld the acquittal of three other men who were with him at the time. This follows the widely welcomed arrest, trial and initial conviction of all four as well as the tough sentences imposed on them in 2016. Among those most elated by the initial conviction were members of the Lusaka Agreement Task Force (LATF). That task force, from seven countries in the region, had worked with Interpol to bring the four men to trial. Since then, however, two appeals have reduced the success of the LATF operation in relation to the four accused, underlining just how difficult it is to secure convictions in such cases.

Don’t expect judges to do your work for you, counsel told

Ethical and procedural issues have been strongly taken up by Ghana’s Supreme Court in an important and wide-ranging new decision – along with a pronouncement that an offer and acceptance via electronic communication makes for a contract just as valid as if it had been put in writing and signed.

Girl power in action at court

Three daughters have gone to court to fight for their right to inherit from their father. This, after their brothers had divided the estate among themselves, deliberately withholding from Kenya's high court the fact that the sisters even existed.

Tanzanian lawyers in uproar after judge suspends their immediate past president from practice  

When prominent Tanzanian legal counsel, Fatma Karume, argued a recent case in the high court of Tanzania, she could not have anticipated the full outcome. Sure, she lost the case, but this is something all lawyers must assume may happen at any time and in any case. But how could she have known she would also raise the anger of her court opponents and the presiding judge? Citing argument by opposing counsel that her argument had been rude and 'inappropriate', the judge decided to suspend Karume from practice, and ordered the registrar of the high court to refer a ‘professional misconduct matter’ to the advocate’s disciplinary committee.

Lesotho's Acting Chief Justice names fellow judges likely biased against her

The Acting Chief Justice of Lesotho, the woman who recently brought a hall full of African judges to their feet with applause as she explained the difficult circumstances under which judges and magistrates in that country operate, is on notice that she is fighting for her professional life. Judge Maseforo Mahase says 'powerful forces' in Lesotho want her impeached. Though three local judges have been appointed to hear the case that will decide whether an impeachment tribunal should be set up to investigate allegations against her, she says the three - plus the entire high court bench of judges - should recuse themselves and that foreign judges should be asked to hear the matter.

Judge & applicant instructed same legal counsel: grounds for recusal?

In this most unusual set of circumstances, a Namibian acting judge, while still in his permanent post as principal magistrate, needed to bring an insurance claim. His insurance company sent formal instructions to counsel. Now, as acting judge, he has an applicant before him represented by the same counsel. Are these good grounds for the applicant’s recusal application?

Demolish unlawful sewerage works - environmental tribunal

Kenya’s National Environmental Management Authority (NEMA) has been given a tough lesson in obeying the country’s environmental laws by the National Environmental Tribunal. The NEMA had given the go-ahead for a major sewerage works to be built close to a stream and a natural wetland, all of this despite objections by the local community. Now the tribunal has found that the NEMA and other parties had not properly followed the law before the project was started. The tribunal has ordered that everything related to the project must be demolished and removed, while the local soil, plants and other natural features must be restored.

Good news - and bad - for African judiciary charged with wrong-doing

For two senior African judges, this is a particularly momentous month. Justice Joseph Wowo of Nigeria, former Chief Justice of Gambia, has been effectively exonerated by a regional court after his humiliating treatment at the hands of the courts in Gambia and his dismissal by the then-President, Yahya Jammeh. Justice Wowo has also been awarded significant damages for the way he was treated. But though his trials and tribulations may now be over, serious trouble is only just starting for a member of Kenya’s Supreme Court, Justice Jackton B. Ojwang’. Chief Justice David Maraga is reported to have written to President Uhuru Kenyatta, recommending that a special tribunal be established to consider the impeachment of his suspended colleague, Justice Ojwang’.

‘Neglect, dereliction of duty’ by prosecution – and father convicted of child rape goes free

Three judges of Zambia’s supreme court have set free a father who was convicted of raping his young daughter and sentenced to 35 years with hard labour. How did it happen that what appeared a secure conviction was set aside? How will the three judges feel about their decision which, setting the father free, could place the daughter at risk again?

Fight over defence fees in controversial Lesotho trial

The Zimbabwean judge due to preside in Lesotho over a series of high-profile murder and attempted murder cases, has begun to stamp his authority on the matter. This week, Judge Charles Hungwe showed his patience was running out with the constant delays preventing the case proper from getting under way. Dealing with an application in the high court, Maseru, he held that that a decision by the high court registrar to allocate state-funded pro deo counsel to the accused, was not properly made and should be declared invalid.

Seychelles appoints leading Ugandan judge to its apex court

The Court of Appeal in Seychelles, that country’s highest judicial forum, has been joined by one of the continent’s leading judges who is also a prominent academic writer on the issues of gender-based violence. Judge Lillian Tibatemwa-Ekirikubinza of Uganda’s apex court, was sworn in at State House this week, where she will sit with three other members of that bench, along with the court’s president. Her appointment will give the highest court of Seychelles additional depth on issues of rape and femicide, subjects on which she is an acknowledged expert.

Society ‘crying out for miracle’ to end brutality against women - judge

Over the last fortnight, the media in South Africa has been filled with particularly terrible crimes involving gender-based violence. In one response, an enormous crowd of women and men, dressed in black, protested outside the parliament buildings, demanding they be addressed by the President. Many were urging that a state of emergency be declared because of on-going femicide and rape. But the problem is endemic in the whole SADC region. And occasionally even the courts are moved to speak strongly on the issue. In one recent decision from Eswatini, for example, the judge hearing the matter spoke out more strongly than is usually the case against gender-based violence - and the need for a miracle to end it.

Contempt confirmed against former top Seychelles judge

Controversial former top Seychelles judge, Durai Karunakaran, has done it again. The disgraced jurist, embroiled in yet another legal dispute relating to his behaviour, has lost his appeal against a contempt of court finding. The contempt relates to a highly offensive insult he whispered into the ear of the public prosecutor during proceedings related to another matter involving the former judge. Karunakaran quit the bench earlier this year to avoid being impeached over misbehaviour, but judgments in pending cases involving him had not yet all been finalised.

Concern over impact of Botswana's appeal decision on 'refugees'

When Botswana’s Court of Appeal delivered its recent decision on 709 people from Caprivi, living in the Dukwi refugee camp, the judgment came as a serious blow to the hopes of the refugees. It has also raised questions by the refugees and their supporters, local and international, about whether the court was correct in its approach. Less theoretically, the refugees are deeply concerned about the dangers that they believe await them once they are returned to Caprivi, something that now seems inevitable - as well as the impact on their children's education.

Taking pleasure in making justice accessible to the powerless – Judge Thomas Masuku

WHEN Judge Thomas Masuku was effectively expelled as a judge in Swaziland during 2011, human rights organisations said he had been the victim of a kangaroo court that breached international standards on fair trial. His sacking, at the instance of the then-Chief Justice Michael Ramodibedi – since himself dismissed in disgrace – had huge potential to be a chilling effect on other members of the judiciary in that country. Why would any judge risk writing honest decisions when the chances of summary dismissal were so strong? But that expulsion was far from the end of the road for Judge Masuku, who is now a respected member of the high court in Namibia. His story should give courage to others faced with the dilemma of dispensing justice on the one hand, and fear of dismissal on the other. This month he had an interview with a journalist of the The Swaziland News, and reflected on judicial independence as well as the crucial role played by an honest, impartial judiciary in society.

Environmental law in action: Jifa training course

When prominent global warming scientists hail a legal decision as a ‘watershed’ for climate change action, you know that judgment must, at the very least, make for good reading. But the judges attending last week’s environmental law training offered by the Judicial Institute for Africa (Jifa), took one step further – they met, listened to and discussed environmental law issues with the very author of that decision, Australian judge Brian Preston, chief judge of the New South Wales land and environment court.

Husband's right to ‘rule over his wife’ – it's gone!

Women’s month may be over for 2019, but there is one new judgment that cannot be left out of consideration. It comes from Eswatini where a full bench of the high court - Principal Judge Qinqisele Mabuza with Judges Titus Mlangeni and N J Hlophe – has handed down a hugely significant decision: it delivers women from the power a husband has had to ‘rule over his wife’.

Tiny, remote Namibian clan claims world renowed Etosha National Park as ancestral land

Perhaps they didn’t realise it, but when eight members of Namibia’s Hai||om people went to court for what they claimed was their traditional land, they raised a number of other burning socio-political issues as well. The Hai||om live in a remote northern area of Namibia, overlapping the pristine Etosha National Park, environmentally sensitive and a major world tourist attraction for the country. Could the eight litigants claim the entire park as ancestral land, acting in a representative capacity for all the Hai||om people?

Appeal blocks far-reaching environmental ruling

Intrigues, illegalities and pollution involved in a sugar milling operation whose poisonous effluent eventually flows in Lake Victoria have been highlighted by Kenya’s environment and land court. In a far-reaching judgment, the court gave the company 120 days to sort out licences and environmental impact assessments for all their operations – or be closed down. But the Court of Appeal has now stepped in to overturn part of the lower court’s order, with a ruling that the mill may continue to operate as before until the appeal is heard. Judging from the long delays common in hearing appeals in Kenya, the sugar mill and the associated paper mill and distillery could continue polluting almost indefinitely.

Wife "charged" 15 cows by traditional court after husband commits suicide

A woman whose husband committed suicide after he assaulted her and she laid a complaint with the police, has been “charged” by a traditional court in Namibia for causing her husband’s death. The woman, Kathova Shiputa, was told she should not have gone to their joint home where she had found her husband in bed with another woman, and that she should not have complained to the police after her husband threatened her with a knife. “Convicted” and sentenced to pay 15 cows or N$30 000 as punishment, she was told that if she did not pay by the end of May 2019, the “village police” would come to collect the cattle. This is far from the only example of traditional courts in Namibia acting beyond their powers. In this particular case, Shiputa has asked the high court to intervene and set aside the proceedings as well as the decision of the headmen and their “court”.

Keen interest in Jifa's first environmental law training course

Judges from across the African continent have been attending the first specialist course offered by the Judicial Institute for Africa (Jifa) on environmental law. The week-long course has brought together specialists in the field and already the participating judges have been asking for a further in-depth course as they have now become aware of how many of the matters they will hear could involve issues of environmental law.

‘Hear the voices speaking on behalf of the dead’ – court

At the centre of most murder trials are two people: the attacker and the deceased. During evidence in mitigation of sentence, the court and the public hear something about the person on trial. But when, if ever, is the voice of the deceased person heard? Who speaks for him or her? This decision, last of our special Women’s Month focus on decisions affecting women, is by Judge Christie Liebenberg of Namibia’s high court. He said he saw no reason why the family of a murdered person should not lead evidence about him or her as a person and the impact of that death on the family. Once the family evidence had been led, it could be considered when the court decided on aggravating circumstances. Given the horrifying number of gender-based killings, this approach is to be welcomed: it would, in theory at least, allow such a woman a voice in court.

Self-confessed poachers acquitted after prosecution’s mistake

Two Tanzanian poachers, who admitted they shot two animals in a national park, have been acquitted and set free on a second appeal. The country’s chief justice and two other appeal court judges found the prosecution had made crucial mistakes in the trial of the two men. The poachers had initially pleaded guilty to tracking and killing an impala and a kudu in the Ruaha National Park.

Conservation victory as Kenyan judge rules against Ministers

One of Kenya’s fabled national parks and the most remote of them all, is allegedly under threat by the actions of two cabinet ministers and the neglect of the country’s wildlife service. That is according to claims made in litigation before the environmental and land court. The case concerns the Malka Mari national park along the Daua River forming the border with Ethiopia in the far north east of Kenya and near the boundary with Somalia. Granting an urgent interim order to prevent the ministers allocating any further land to squatters or offering tenders for any further buildings or infrastructure, the judge said the matter was in the public interest and that the ministers and other respondents had not challenged any of the allegations against them.

Magistrates in Lesotho introduce new deal for awaiting trial prisoners

Magistrates across Lesotho, concerned about the continuing conditions there that they believe impact negatively on the rule of law, judicial integrity and general confidence in the legal system, have taken a number of resolutions likely to impact on the courts and the public. Among others, they have resolved to release people being held awaiting trial if their cases ‘are not prosecuted within a reasonable time’. They have also resolved to dismiss criminal cases where ‘pending investigations’ have continued for an ‘unreasonably long time’.

Daughters: 'children of a lesser god’

This case is the third in our Women’s Month series on how courts deal with matters involving women. The case includes 13 invisible daughters and a fraudulent attempt by the estate administrator to cut out all the other sons and direct family from inheriting. So when Judge William Musyoka, of Kenya's high court - the third to become involved in the matter - found out, he put his foot down. He referred to the law on succession and to the constitution. Both make clear that discrimination against daughters and wives would not be tolerated. When sons and conniving chiefs tried to prevent daughters and wives from inheriting, the court was obliged to stop it, he said. Because Judge Musyoka bothered to give the papers and previous court orders very close scrutiny, he picked up the problem. Then he insisted that the daughters, along with the widows, had to be involved. And that is why his decision is our judgment of the week.

Former judge Michael Ramodibedi RIP

The most controversial judge in the SADC region over the last several decades, Justice Michael Ramodibedi, has died. Judge Ramodibedi, 74, died in Johannesburg but the cause of death has not been confirmed. He leaves his wife and five children. Among other positions, the judge served as Chief Justice of what is now known as Eswatini, and as president of the court of appeal in his home country, Lesotho. He left the bench in both countries under a cloud of disgrace.

A challenge for women in Kenya: get this law changed

Our Women’s Month judgment this week comes from Kenya’s Judge William Musyoka. What makes his decision stand out is that he has found and highlighted an anomaly in the law dealing with rape, a particularly traumatic crime that is all too prevalent. He explained that the same set of facts could be considered under either of two provisions, but one could attract a much lighter sentence than the other. He said he did not understand why there should be two provisions and why, as in this case, the state would choose to charge the accused under the section that would result in a lesser sentence. It is a welcome and important step when judgments pay such close attention to the laws that affect so many – most of them women and children; when they challenging anomalies that see perpetrators walking away with ‘a slap on the wrist’, as Judge Musyoka put it. His judgment is a challenge to the legislature to reconsider the law and close the escape route that could see a rapist spending very little time in prison despite the horrendous nature of the crime.

Swazi court refuses bail for suspected human trafficker

With the eyes of the world now more sharply focused on human trafficking, all attempts by African courts to help stamp it out are important and will be reflected in annual international surveys. Though cases of trafficking are still something of a rarity, a Swazi judge, Mzwandile Fakudze, recently heard a bail application by a suspected trafficker and turned him down.

Mentally ill man can’t be returned to Sierra Leone – UK courts

There might be widespread agreement that mental illness should be de-stigmatised, but that does not make it any easier for courts dealing with people who show signs of serious psychological ill-health and who are liable to mistreatment because of their illness. In this case, the UK courts were faced with the problem of a man from Sierra Leone, who believed he was the son of legendary Jamaican reggae singer Bob Marley and had absolutely no understanding of his mental condition. He has been fighting to stay on in the UK, saying the government of Sierra Leone would victimize him on his return because Marley, his father, had started a local war there. The government would also ‘want to recruit him’, again because Marley was his father.

Judge slams domestic violence, femicide and urges tougher sentences

The first judgment chosen as part of Jifa’s Women’s Month focus is from Eswatini. It deals with the murder of a young woman who had a young child, now an orphan. What makes this judgment on sentence different from many others we read each week, is the comments by the presiding judge, Titus Mlangeni. Many judges handle cases of violence against women as though they were traffic offences, with no comment on the impact of such crimes on the whole of society. Judge Mlangeni, however, speaks about the prevalence of domestic violence and the need for men to learn that they should walk away from disappointments in love rather than physically acting out their anger. He also says the time has come to increase sentences in such cases because domestic violence has become such a problem. If you were a member of the girl’s family, or a woman or girl living in Eswatini, and you heard this judgment, you would feel the judge understood the constant pain and the fear you suffered. If you were a man, you would also feel the impact of his words.

Unilateral salary hike by Uganda's MPs ‘unconstitutional' - highest court

Uganda’s highest court says MPs act unconstitutionally when they give themselves salary hikes. Instead, the government is supposed to introduce proposals for increases, as the costs of the increases are charges on the country's Consolidated Fund. The court’s seven judges said a section of the law that appears to let MPs decide these issues without government involvement, is unconstitutional. It had to be removed because, if left on the statute book, ‘it is bound to be used by Parliament to violate the constitution.’

Planned changes to Zambia’s constitution ‘infringe judicial independence’

Zambia’s ruling Patriotic Front government is in the process of piloting wide-ranging changes to the country’s constitution into law. The proposed amendments have drawn considerable criticism from political opponents of the PF on grounds of poor drafting, infringement of individual and community rights and of threatening judicial independence, among others. They are also under fire from local and international legal and human rights organisations.

RIP Seychelles Justice Prithviraj Fekna

Justice Prithviraj Fekna, who served on the Seychelles Court of Appeal, died unexpected this week. He had been sworn into office as a non-resident member of the appeal court on 27 June this year. Previously he had been a member of the Supreme Court of Mauritius.

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.

Raped child not sworn in properly: life sentence, conviction set aside

The child in this case claimed she had been raped by a relative of her father’s, starting from when she was nine years old. The case against the accused seemed strong, and the regional (senior) magistrate convicted him and sentenced him to life imprisonment. But when he appealed, the high court found the child had not been properly sworn in: conviction was set aside, along with his life sentence, and the man walked free. This case, from the KwaZulu Natal province of South Africa, is replicated in many countries, every day, because legal technicalities related to fair trial are so often ignored. As SA observes Human Rights Day, 2019, here's a plea: could the courts at least pledge to ensure they get the technicalities right? It would make a great impact of the human rights of every person brave enough to go through the trauma of reporting rape and giving evidence in a trial.

Against background of “judicial martyrs to the rule of law”, Ghana’s top court considers political interference in judicial independence

IN a sensational new case, Ghana’s highest judicial forum has been considering whether it was lawful for the country’s president to reverse contempt of court sentences. This, after three men were sent to prison for effectively inciting people listening to a radio show to kill judges if they did not like the outcome of a then-pending case. The whole matter, referred to as “Montie 3” after the radio station involved, has touched a raw nerve in Ghana: no one has forgotten the three high court judges who were executed in 1982 on orders of the then political establishment. A memorial to these judicial “martyrs to the rule of law” stands not far from where the panel of judges has been considering the crucial questions of judicial independence and presidential power under the constitution prompted by the Montie 3 case.

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.

Top Malawi officials face jail after contempt of court finding

Two top government officials will be sentenced on 5 August 2019 for disobeying an order of Malawi’s Supreme Court. They had been told by the highest court to apologise to the nation for their role in the ‘Tractorgate’ scandal that has gripped the country – but they failed to do so. Now the high court has called this a ‘mockery of justice’ and found them guilty of contempt of court.

Who won this battle of judge vs judges in Seychelles?

For the last four years, the Seychelles judiciary has suffered division and disruption over the behaviour of a senior member of the bench, Durai Karunakaran. Recommended for dismissal by a tribunal that inquired into his behaviour, he resigned in March 2019, forestalling any action against him by the country’s President. But before he left, he had launched an appeal against one of the many court decisions against him. The outcome of newly released decision, likely to be the last in a very long series of cases under his name, is however not completely clear.

Army officers keep their 10 parliamentary seats in Uganda

Over the last few months Uganda’s courts have delivered a series of decisions that extended democratic practices. Judges have declared restrictive legislation unconstitutional and ordered compensation for a detainee killed by police. No wonder some observers hoped that the constitutional court would rule in favour of an application to find army representation in parliament unconstitutional. No fewer than 10 parliamentary seats are reserved for ‘serving officers’ chosen by the Army Council, headed by President Yoweri Museveni. A human rights organization challenged the continuation of this practice, but last week the constitutional court turned down the application.

Malawi's national broadcaster refused permission for "live" coverage of major trial: here's why

Malawi's high court judge Zione Jane Veronica Ntaba is no stranger to controversy. Among her decisions she found her country's Chief Justice, Andrew Nyirenda and the whole of the Malawi Judicial Service Commission had acted irregularly, illegally and unconstitutionally. Now she has made another noteworthy decision, turning down a request to have the second half of a potentially sensational trial broadcast by the Malawi Broadcasting Corporation. Here’s the background – and her reasons.

Human trafficking reports show sub-Saharan Africa a global player

The UN has just released its latest reports on human trafficking around the world. It shows that while most African countries now have proper laws in place, some countries do not use these laws and report no investigations and no prosecutions. One study quoted by the UN report estimated that 357 million children lived in conflict areas in 2016. Every one of them would have been at risk of exploitation by armed groups or other traffickers.

Dispute between top judges and political leaders in Lesotho hots up

The ongoing drama involving open conflict between political and judicial leaders in Lesotho continued this week and there is no sign that anyone is about to relent. Three potentially explosive challenges have been brought to court over the last few days, one of them a late-night urgent application. Two are for appeal while one is to be heard in the high court. All of them involve the judiciary probing highly sensitive political and judicial issues and raise questions of judicial independence. And in the meantime, a court of appeal judgment that has now been reported, throws more light on the dispute between Lesotho’s beleaguered Prime Minister, Tom Thabane, and the president of the court of appeal, Kanenelo Mosito.

Abortion conundrum for court

Imagine you are an appeal judge in a country that permits abortion under certain conditions. One day, you hear the case of a young woman unable to give consent to a termination due to her permanent mental disability and behavioural problems. Doctors who assessed her were unanimous that an abortion would be in her best interests. Her adoptive mother however was strongly against the idea. The judge in the high court declared that the young woman lacked legal capacity to consent to an abortion, but that it would be lawful and in her best interests for doctors to terminate the pregnancy. As an appeal court judge, what would you say?

Last minute 'settlement' in Lesotho's shock judicial disputes

As fresh elections in Lesotho seem increasingly likely because of splits in the ruling party, a last minute settlement means the judicial disputes that have shocked the legal world over the last month are, at least for now, off the table. The settlement came shortly after new details emerged of barbed correspondence between the President of the Court of Appeal, the Acting Chief Justice and the Prime Minister, Thomas Thabane. The correspondence formed part of the founding affidavit in papers filed by the law society of Lesotho in litigation aimed at preventing the appeal court president's suspension. It is widely believed that Thabane wants to get rid of the appeal court president, formerly a judicial favourite of his, because the Prime Minister no longer perceives the judge to be on his side in the ruling party's continuing leadership struggle.

Uganda’s courts ‘too westernized to handle cultural, customary issues’ – high court judge

Prominent Ugandan high court judge Ssekaana Musa has told litigants in dispute over traditional leadership that they should ‘always’ refer such quarrels ‘to the King or traditional or cultural leaders’. Judge Musa was considering two disputes about traditional leadership positions. He said that courts should discourage ‘petty issues’ like who was the rightful heir, family head or chief prince, from being ‘dragged to court’. These matters would be better dealt with by the established mechanism of a particular community, he said.

Landmark defamation ruling clarifies standard for media

A Zambian TV journalist has won his defamation case against his own bosses, 10 years after the station carried repeated broadcasts showing his arrest outside the studio for allegedly raping a teenager. The judgment by the country’s highest court gives legal finality to the matter, but also provided an opportunity for the court to re-state the standards by which it will consider a defence against defamation. The case involved a young girl, who claimed she desperately needed overnight accommodation. The journalist offered her space for the night, but the next day she told the station bosses that he had raped her. Without calling him in to ask his side of the story, officials contacted the police and stage-managed his arrest on camera. The court also heard that the girl was taken for a medical examination by another journalist but though the results could have been obtained, the TV station either did not do so, or knew the results – showing the girl had not been raped – and did not mention this in its report on the arrest.

Should these judges have spoken out?

Three women judges of Zambia’s court of appeal have dismissed a young man’s appeal against his sentence of 30 years imprisonment with hard labour for violently raping his 12-year-old cousin three times. He maintained he took the girl as part of a Tonga custom in terms of which, as the judges put it in their decision, ‘one can abduct a woman ... have sexual intercourse with her and later formalize the marriage’. But though they dismissed his appeal against sentence, the judges did not take the opportunity to criticize the custom. They simply rejected this justification of his actions, because the trial record did not mention any agreement between the accused and the girl’s father for her to be abducted for the purposes of marriage. Why don’t judges speak out and condemn barbarities such as rape carried out in the name of custom and traditional marriage?

Lesotho’s PM threatens top judge with second impeachment

Judicial politics in Lesotho, highly fraught for some time, must now be the despair of the continent. For the fourth time in just a few years, a cloud hangs over a top judge of this mountain kingdom, with threats of suspension and impeachment. The latest development has been laid bare for the whole country to see, with the leaking of two letters indicating the struggle going on behind the scenes - and judicial independence, along with the Rule of Law, is very much the victim.

Foreigner's health issues insufficient to halt deportation

How poor must a country's medical facilities be before the UK courts may bar government from returning an illegal foreigner there? It is a question UK judges are increasingly having to grapple with, most recently in the case of 'PF', a Nigerian who has a serious, chronic disease. He also has a lengthy criminal record for which the UK authorities want to deport him.  PF suffers from sickle cell disease and his lawyers say to send him back to Nigeria would condemn him to an early, painful death. They also argued that the distress to his children if he were deported would infringe the European Convention on Human Rights. Though PF won an earlier round in his battle to stave off deportation, the Appeal Court has now found it has no evidence that he would not be able to access morphine and other medicines he needs in Nigeria. Deportation would thus not cause a 'serious, rapid and irreversible decline in health resulting in intense suffering', the current standards a deportee must meet before UK judges may set aside a deportation order on the grounds of illness.

Uganda’s human rights law takes enforcement to new level

What must surely be one of the most significant laws passed by the present administration in Uganda is being used for the first time in a pending court case – and the police officers involved in the case must be worried about the outcome as well as its possible impact on their pockets. That’s because they could be held liable if they are found to have infringed the new law by violating the human rights of the applicants. They could also be ordered to pay part of any damages that might be awarded, and might also be dismissed.

Top Namibian Minister quits after corruption conviction

It is not common to read of a high court finding a government minister guilty of corruption but, this week, what might be unthinkable in many countries came to pass in Namibia: the Minister of Education, Arts and Culture was convicted under anti-corruption laws for actions taken when she was still a district Governor. Katrina Hanse-Himarwe has since resigned, getting in first as it became clear that President Hage Geingob planned to dismiss her.

What is a life worth in Uganda's courts?

Two recent decisions from the civil division of Uganda’s high court provide an interesting contrast. International media have picked up on one of them, in which a man was arrested by police, “violently beaten” by them and then taken to the cells where he was found dead next morning. The other, given virtually no publicity, concerns a man who was unlawfully held for four days in detention and then spent the next four years, on bond, forced to report regularly to police, before his bond was cancelled and the whole issue collapsed. Which case do you think won the higher damages award by the court?

"Contemptuous" report on planned major coal power plant dismissed by Kenya's environmental tribunal

In one of the most significant victories ever won by Kenya’s community and environmental activists, the National Environmental Tribunal has cancelled the licence for a controversial Chinese-funded coal power plant due to be erected near the town of Lamu, next to the sea. Among the sharp criticisms of the developers by the Tribunal was its failure to carry out proper community consultations.

Hearing obligatory before police are transferred  – Lesotho’s Court of Appeal

Is there a legal principle granting a hearing before a decision is made to transfer police officers in Lesotho? It was a topic of some heated discussion in that country when two officers – one of whom had been transferred eight times in a 17-year career