The African Law Service

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

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Lesotho’s acting chief justice slows pending litigation brought by sidelined Chief Justice

THE judicial crisis in Lesotho shows no signs of resolution. While the suspended Chief Justice waits in limbo for a tribunal to investigate government claims against her, the acting chief justice has stepped in to stamp her authority on the situation. Among others, the actions of the ACJ have slowed a planned constitutional court hearing scheduled to deal with the dispute between the government and the CJ.

IN the midst of the judicial crisis in Lesotho, that country’s new acting chief justice has moved swiftly to stamp her authority on the courts and on the processes that had been put in place to prevent the suspension of the beleaguered chief justice.

On Sunday afternoon, 16 September, the new ACJ, Judge Maseforo Mahase, granted an ex parte order against Lesotho’s Chief Justice, Judge Nthomeng Majara stipulating that the latter was barred from the precincts of the palace of justice. She also barred Judge Majara from any activities associated with the role of the CJ.

High court protection "doesn't filter down to the lower courts" so this Jifa Alum declared magistrates court processes unconstitutional

NAMIBIAN high court judge Shafimana Ueitele, has been dealing with a sensitive case of injustice: a woman lost her home because the Magistrates Court Act did not give her the protections she would have had under the High Court Act. What should a court do when – as here – the law results in such blatant inequality, causing suffering and injustice?

Glenda Hiskia works as a security consultant with the United Nations mission in Liberia. Though she is a Namibian, her work contract provides that she must live in Liberia for eight weeks at a time with only a brief break home before the next eight week stint begins.

During 2010 she bought a property in a Windhoek building named Urban Space. That was her Namibian base for a while but after unresolved issues with the body corporate she bought another property and moved there, intending to renovate and then let out her Urban Space accommodation.

When “straying” courts need to be “reined in"

HERE is a rare situation: three judges of Swaziland’s highest legal forum, the supreme court, confessing they are at a loss to understand what is happening in the courts below. This after two high court judges issued contradictory orders in relation to a bail hearing and the supreme court was asked to intervene and sort out the mess. Did the supreme court have the power to do so? It was a novel question, testing certain of its constitutional powers for the first time.

This story appeared first in LegalBrief.

When courts must be parents

SOMETIMES a court is called on to act as a parent might, and resolve the problems of difficult children. Seldom, though, will two courts in the same country, less than 100 km apart, both hand down such a decision on the same day. But this is exactly what happened in Kenya where two judges both had to deal with errant scholars. The judges found different solutions to the problems before them: one allowed the suspended scholar to write exams at the school, but under strict conditions; the other refused to let the boy involved back onto the campus at all. 

This story appeared first in LegalBrief.

THE two cases heard by the two Kenyan judges both concerned parents anxious about their children who were in trouble with the school authorities. The parents came to court to challenge the suspension or expulsion rulings of the school authorities.

Judges Kanyi Kimondo and Wilfrida Okwany delivered their separate decisions on the same day last month, with a mix of good news and bad, for the affected parents.

Lesotho, Namibia, SA judges in controversial recusal decisions

CONCERN and confusion about recusal decisions by judges in the region continued this week. Most significant of these cases was a startling high court order against the chief justice of Lesotho. It was granted by the judge appointed as acting chief justice in her place who, in other jurisdictions, might have been expected to recuse herself. Other cases involving controversial recusal decisions this week come from SA and Namibia.

WHEN the Chief Justice of Lesotho, Nthomeng Majara, was officially suspended on 12 September, government named an acting chief justice: Judge Maseforo Mahase.

The next day, through a letter from her legal team, the Chief Justice disputed the legality of the suspension, saying there were two court orders that specifically barred her suspension, and that when she returned from a conference in Australia she intended to return to her office and take up her normal work.

The eight allegations against Lesotho’s Chief Justice Nthomeng Majara, and their context

LIKE the former president of Lesotho’s highest court, the Chief Justice may be seen as a victim of the clash between two competing political interest groups: there is now an established pattern in terms of which one party or interest group makes a top judicial appointment and then, when the other grouping gets into power, it seeks to get rid of that jurist and put its own candidate in place.

AFTER it was voted into power the present Maseru government removed the president of the court of appeal, appointed by the previous government, and sought to replace him with Kananelo Mosito, the disgraced former head of the appeal court. However, earlier this year a full bench of judges declared the government acted unlawfully in removing the constitutionally appointed new head of the appeal court, SA Judge Robert Nugent. The court also found the re-appointment of Mosito was unlawful. Since then the court of appeal has effectively ceased to operate in Lesotho.

Recusals in Swaziland and Lesotho: cause for concern?

RECUSAL of judges – when they should stand down, when not and if judges are always properly deciding whether to hear a case – has emerged as a serious issue in both Lesotho and Swaziland. In both those jurisdictions, decisions about recusal have left litigants worried that, with no judges available to hear their matters, they could have no access to justice.

SEVERAL cases in Swaziland have come to a halt over the last weeks because judges have recused themselves. Their decisions raise the questions whether they were correct to do so in the circumstances, and how litigation can proceed when judicial officers decline to hear a matter.

Without a written judgment on recusal decisions it is not easy to know whether the thinking measures up to constitutional standards, but in at least one case, the judges concerned are to be formally asked for reasons in writing.

Why does Kenya’s Law School keep making the same legal mistake, asks judge?

IF anyone could be expected to understand judicial precedent it should surely be a country’s law school. After all, this is the body with responsibility for ensuring that the next generation of lawyers understands this crucial, basic concept. But the Kenya School of Law keeps getting it wrong.

WHEN Judge Chacha Mwita sounded just a little exasperated at the end of his decision in the case of Laura Lumbasio against the Kenya School of Law, no-one could blame him.