The African Law Service

The African Law Service brings diverse commentary on legal developments from across our African continent. 

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Newspaper report leads to judge’s intervention

POLITICAL leaders often refuse to act on the basis of “mere” newspaper reports. But not Zimbabwean judge Alphas Chitakunye. He spotted a story in the media about a magistrates court trial and immediately asked for the record in the case as he feared an injustice had been done.

THE story that caught the eye of Judge Alphas Chitakunye concerned trainee nurse, Elizabeth Kalenga. The young woman had begged the court for mercy when she stood trial in connection with using forged papers to gain entrance to the training course. She pleaded with the Harare magistrate who heard her case not to impose a jail sentence as she has two young children.

Judge lays down the law for psychologists to testify

FOR as long as anyone can remember psychologists from SA, called to give expert evidence in the courts of their Namibian neighbours, have been able to do so without a problem. But no longer. A new high court decision, delivered as part of what appears to be a bitterly-contested divorce dispute, has held that no psychologist may give expert evidence in court unless registered with Namibia’s professional council – and that includes practitioners from just over the border.

This article first appeared in LegalBrief.

WHEN an unnamed couple began divorce action in Namibia no-one could have foreseen that it would result in new law, changing long-standing norms about who may give expert psychological evidence in that country.

At the heart of this particular element of the couple’s dispute was the question: when a psychologist from another country gives evidence in Namibia, does it amount to ‘practising’ there?

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

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

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

“You can’t charge me, I’m immune”: dismissed cabinet secretary

ANY judgment that concerns a country’s anti-corruption commission, is usually worth reading. But when it involves a case brought against the commission by a dismissed former cabinet minister now in the spotlight for abuse of office, it becomes just too tantalizing to miss – especially when the former top official claims he is untouchable.   

IN this new decision from Kenya, former cabinet secretary for transport and infrastructure, Michael Kamau, had asked the court of appeal to find nine individuals in contempt of court for alleged willful disobedience of a judgment issued in July last year by that same court.

Crucial Seychelles fact-finding mission by Southern African Chief Justices’ Forum issues report

WHEN the Southern African Chief Justices’ Forum heard that one of their members, Chief Justice Mathilda Twomey of Seychelles, was to face an inquiry and possible removal for alleged misconduct the forum asked the government of Seychelles to allow a fact-finding mission. The investigation into the chief justice was particularly troubling as this as it was the second current investigation into a senior judge in Seychelles.

Led by the SACJF chair, Namibian Chief Justice Peter Shivute and deputy chair, Malawi Chief Justice Andrew Nyirenda, the mission noted that Seychelles moved from a one-party state, to a multi-party democratic constitutional state in 1993.

During their visit they met a wide range of stakeholders who shared with them the dominant perceptions about the charges against the two senior judges: that they were politically motivated investigations, but from opposite sides of the political divide.

JIFA Newsflash #21 - Editorial - 31 August 2018

THE arrest and intended prosecution of Kenya’s deputy chief justice, Philomena Mwilu, reflects some of the painful and difficult strands in that country’s legal and political story. On the one hand there is the problem of restoring the reputation of the judiciary after a long period in which corruption on the bench was an acknowledged fact. On the other, the government in Kenya is not known for showing respect to the now-reformed judiciary and its decisions.

Long battle by 42 magistrates heads to employment and labour relations court

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.

Traditional king ordered to appear in court and testify about his decisions

High court judge, Maphios Cheda, was faced with a tricky issue earlier this month. A group of Namibian traditional leaders, ousted by the King after allegations of misconduct and other “transgressions”, challenged the King’s decision to remove them and appoint other traditional leaders in their place. The suspended leaders said the King was of advanced age and no longer able to make decisions on his own.

The unusual court case was the result of a long-running feud within Namibia’s Ondonga traditional authority and involves senior traditional leaders and advisers to the King, the “Omukwaniilwa” of Ondonga. At some stage six of these advisers were sacked and they then asked the court to intervene.

“Radical surgery” cutting off this judicial employee was unlawful – court

WHEN Edward Asitiba was sacked as Chief Supplies Officer in the Kenyan judiciary, he was told it was “in the public interest” that he should go. But Asitiba did not agree – and now he has a judgment backing his complaint, as well as a large payout due to him as compensation.

Edward C. Asitiba v Attorney General [2018] eKLR

EDWARD Asitiba was one of very many judicial employees, from clerks to judges, who lost their jobs as a result of Kenya’s “radical surgery” dating back to 2002.

Some have tried unsuccessfully to get their jobs back, a few others – like Asitiba – have been more lucky.

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

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

This article first appeared in LegalBrief

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

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