Here we post news and developments from within, and affecting, Judiciaries in Africa
MORE than 40 former magistrates have taken another step in their fight against the Judicial Service Commission of Kenya. The magistrates have been contesting their 2003 dismissal, when they were “retired in the public interest”, a compulsory move made as part of “radical surgery” intended to deal with corruption in the judiciary at the time. They say they were wrongly dismissed and initially took their case to the high court’s constitutional division.
THE case of the 42 magistrates is another long-running legal battle aimed at reversing some of the “radical surgery” performed on the Kenyan judiciary in the years from 2002.
That was the year in which tough steps were taken to root out corruption within the judicial sphere and a number of judges and other judicial officers were let go.
SAJEI: A vehicle for the speedy delivery of quality justice to all our people by Mogoeng Mogoeng................................................................................... 1
Judicial training and the role of judges in a constitutional democracy by Heinz Klug.................................................................................................. 11
Judicial education in a transformative context by DM Davis................................. 25
To give and to gain: Judicial involvement in advocacy training by OL Rogers...... 31
JUST weeks after a top level judicial delegation visited Seychelles and offered help in resolving the conflict gripping the islands’ judiciary, there comes a significant new development: the constitutional court of Seychelles has dismissed the latest appeal of the suspended judge who is at the heart of the ongoing, tense situation.
ONE of Swaziland’s longest-serving attorneys has been banned by the chief justice from appearing in court or even lodging court papers. The chief justice says the attorney was in contempt of court because he disobeyed court orders to pay maintenance in a case where he was executor of an estate. Now the attorney has fired back, saying the move was unconstitutional and that he was denied a hearing: he wants the CJ investigated for misbehavior – and he wants to sue.
This is one of the most bizarre matters I have ever come across. First, it involves a decision by the chief justice of Swaziland effectively banning a lawyer from litigating in that country’s courts. And then, in response, the lawyer concerned has asked the minister of justice to convene an ad hoc committee to investigate whether the chief justice is guilty of serious misbehavior.
IN an extraordinary move, Kenya’s judicial service commission has tried to persuade virtually all of that country’s top judges, from the chief justice down, to recuse themselves from hearing a matter involving the JSC. The commission argued that as this would disqualify the supreme court from hearing the matter, the decision of the lower court should stand as the final word.
THIS is the latest episode in a long-running dispute between Gladys Shollei and Kenya’s Judicial Service Commission. However, what might have started as a straightforward appeal became something quite different with an application by the JSC that virtually all the supreme court judges recuse themselves from considering the matter.
LAY litigant Ronald Somaeb was in over his head when he attacked the right of any Namibian judge to hear the case in which he was suing the chief justice: all judges would be thinking “about (their) boss, the chief justice” and would be biased in favour of the CJ, he said. Somaeb's efforts came to nothing, however, and his case has been dismissed as vexatious and frivolous.
In Namibia the challenge to the chief justice came from lay litigant Ronald Mosementla Somaeb. The first round of his fight with the judiciary concerned a house, owned by the bank, from which he was evicted.
In this case the high court noted, “It has been the practice of this court to bend a little bit backwards in order to accommodate genuine lay persons as justice is for all ….”
WITH a reminder of what has at times been the unsavoury past of Kenya’s judiciary, the constitutional court has declined to intervene in the dismissal of a number of magistrates who served during the pre-constitutional era. As Carmel Rickard explains, the Kenyan courts are barred by an ouster clause from considering such dismissals. In this case the court deferred to the provision, at the same time spelling out the ouster’s limits and ensuring that in the case before it those limits were not transgressed.
THE timing of this judgment is particularly significant. It comes as tension builds between Kenya’s judiciary and other arms of government over judges’ powers to consider the meaning and application of statutes and to act when there are breaches of the constitution. Just a few days ago, for example, some MPs said judges should stop their “constant meddling” in the affairs of the legislature.
ONE of the most painful periods in Kenya’s judicial history has been re-opened, with an appeal by former judge Tom Mbaluto against his 2008 dismissal from the bench for corruption. As Carmel Rickard explains, the former judge was dismissed after a tribunal sat to hear allegations against him and recommended his removal from office. Dissatisfied with the outcome, however, he has brought two court challenges contesting his removal, the second of which has now been finalized by Kenya’s court of appeal.
Tom Mbaluto was a well-known figure in Kenyan legal circles. He sat in the Milimani commercial court in Nairobi and presided in several high-profile matters. But then the eye of the public and the media settled on him more critically when a tribunal was appointed to investigate corruption allegations against him.
FOR the second time this year, the political authorities in Lesotho are involved in major litigation that threatens the independence of the judiciary. As Carmel Rickard writes, the latest shock is the government’s determined efforts to get rid of Lesotho’s first woman chief justice, Nthomeng Majara.
THIS year is rapidly turning into one of the worst yet for judicial independence in Lesotho.
We have received a statement by the Chair of the Southern African Chief Justices Forum - the Hon. Chief Justice Shivute, on plans to remove the Hon. Chief Justice Majara of Lesotho, from office. The SACJF has called on the authorities of the Kingdom of Lesotho to uphold the rule of law and handle the matter in accordance with the principles of natural justice and due process. Read the full statement in attachment.