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. 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.
By Carmel Rickard
IN a “remarkable breakthrough”, the Malawi high court has come to the rescue of children unlawfully held in adult prisons. Some of the children were imprisoned in a jail where, according to an official 2016 parliamentary report, no food was available to inmates and where blankets were in short supply. Both the Constitution and statue say that children in trouble with the law may only be held in special places of safety or reformatories, and the high court has now ordered the authorities to move the children within 30 days.
FOR everyone involved in or affected by land claims in South Africa, May 2018 must go down as one of the most disastrous months yet in the history of attempted restitution: in every one of the decisions by the land claims court during that month those communities who brought cases to court lost out. So what happened?
By Carmel Rickard
MANY thousands of land claims are still unresolved, and they come only very slowly to court. So it is a striking statistic that of the four cases in which judgment was given last month, the land claims court should, in all of them, find the claimants on the wrong side of the law.
WHEN the statutory authority supposed to protect an entire country’s capital market including the stock exchange is found to have acted “in total violation of the principles of natural justice” it must mean, at the very least, that the judgment concerned is worth reading.
And indeed it was. This is a case brought against the capital markets authority (CMA) of Kenya by the former chief financial officer of a major supermarket chain, Uchumi. A long-established business, with a wide range of offerings, it is in deep financial trouble, at least in part because of the pressure from new stores out of South Africa and elsewhere.
A TOP SADC-Lawyers’ Association official says this week’s high court case on President Jacob Zuma’s role in removing legal rights from millions of people living in SADC countries, presents “a unique opportunity” for SA judges to defend constitutionalism and the rule of law in the region.
FOR years I have wondered whether “real” anchovies tasted significantly different from those in little tins and glass pots: would they be as different as fresh asparagus is from the tinned sort?
When I spotted a new-look variety of the little fish in Woolworths the other day, larger and white rather than the usual small dark pink, it seemed my chance – short of a holiday in Portugal – to find out.
Then two things happened. When I got home I turned over the packaging and found it was labelled “product of Morocco”. The same afternoon I read a major new opinion by the advocate general of the European Union’s court of justice on a dispute referred by the UK courts. The dispute concerns a fishing contract between Morocco and other EU countries, now under scrutiny because the Western Sahara Campaign, a UK lobby group, claims the contract is unlawful.
The task of an EU advocate general is to consider submissions to the court in all matters that raise a new point of law, and then to write an impartial opinion by way of advising the court on the legal way forward. The judges are not obliged to accept these decisions, though they most often do.
In this case, advocate general Melchoir Wathelet, formerly a judge of the European court of justice, concluded that the fishery agreement between the EU and Morocco was invalid. The dispute is part of a larger fight over self-determination for Western Sahara, occupied by Morocco since the mid-1970s. While Morocco claims the territory as its own, the International Court of Justice held, in 1975, that the evidence had not established “any tie of territorial sovereignty” between Western Sahara and Morocco.
Just last year, South Africa was drawn into this continuing international argument when a ship loaded with phosphate, mined in Western Sahara by a government-owned Moroccan company, stopped here. The Saharawi Arab Democratic Republic (Western Sahara) won an order for the cargo to stay in South Africa while the issue of ownership of the phosphate is sorted out.
At the time, officials of the Moroccan mining company were scathing about the decisions of the local courts that the cargo should stay in South Africa, but the opinion of the advocate general in the fishing case is even stronger in finding that Morocco has acted unlawfully. And the UK judges who referred the dispute to the EU court consider that even though Morocco claims Western Sahara as part of its sovereign territory, this “continued occupation” by Morocco amounts to an unlawful occupation by another state.
The estimated annual value of the disputed fishing contract was EUR40-million, to be paid to the Moroccan treasurer-general, with the Moroccan authorities having full discretion as to how the funds would be used. But virtually all the fish – more than 90 percent – were to be caught in the waters off Western Sahara. In other words, the natural resources of that territory were being economically developed and disposed of by Morocco.
EU decisions had to respect human rights in order to be lawful, Wathelet pointed out. But the situation in Western Sahara has been recognized as a grave breach of the rights of the people of that territory and Morocco’s occupation was not lawful. The EU was thus not entitled to have contracted with Morocco to use the resources of Western Sahara and the fishing agreement was invalid.
Wathelet’s conclusion will now be considered along with other documentation by the court itself in deciding the fishing contract dispute.
That decision isn’t expected any time soon, certainly long after the sell-by date of the anchovies. To me, though, Wathelet’s opinion is so persuasive that the anchovies will have to be returned, along with a copy of that opinion to explain why.
CONVICTED Dutch millionaire war criminal and arms smuggler Guus Kouwenhoven is sitting in Cape Town, determined to resist extradition to Holland where a 19-year jail terms waits for him. He has been convicted in his absence of crimes relating to Liberia’s decades-long civil war. But the SA courts are not the only ones to become involved in the aftermath of this war: thanks to the help of an NGO that coordinates international lawyers and investigators, war criminals from Europe and Africa have been caught, tried and sentenced for technical immigration offences including lying and perjury as they try to escape their just deserts at home. Now a much-feared Liberian warlord, “Jungle Jabbah”, awaits his sentence in the USA.
IMAGINE this: a country’s attorney-general comes to the highest court claiming, in effect, that this self-same court was complicit in “slavery and forced labour” via an unjust and flawed judgment, and therefore ought to reconsider and change that decision.
Though it sounds fantastical, it is exactly the argument outlined by the Zambian attorney general in a case brought to get the constitutional court to change its mind and decide it had made a mistake.
The case, and the AG’s argument, were born out of furious response to the constitutional court’s August 2016 judgment in which the five judges held that, under the constitution, Zambia’s more than 60 ministers and deputy ministers were not legally entitled to hold office after parliament was dissolved. Payment they had received while unlawfully acting in office had to be repaid.
Though the constitutional court’s sensational decision was delivered more than a year ago, the repayment question is still being hotly contested as the ministers have tried to avoid putting their hands in their pockets.
Most recently the affected ministers tried to persuade the court to reconsider the repayment question via a petition brought on their behalf by the AG.
In that challenge the AG filed papers saying that, even though it was the apex court, the constitutional court was entitled to overturn its own decisions when justice demanded. And what situation more obviously cried out for justice than a decision ignoring provisions barring slavery and forced labour, and ordering that people not be paid for work they had done?
But the AG never had the chance to make this part of his case in oral argument. The ground was cut from under his feet when, in one of its most recent decisions, the court found he had no legal standing to represent the ministers.
During the run-up to the nationally divisive and hotly contested elections of August 2016 the court was asked to consider the position of the country’s provincial and national ministers and their deputies. Did the constitution provide for their term of office to end when parliament dissolved ahead of the elections? If so, should they have received any payment after parliament ended?
The five-person constitutional court was unanimous in its decision: the constitution did not provide for the ministers to continue in office once parliament was dissolved, and all they had been paid after that date had to be repaid.
Zambia’s AG, Likando Kalaluka, faced a major hurdle when he went back to the court on their behalf. The constitutional court is the end of the road for litigation, so he had first to persuade the court to consider the possibility of an appeal against the earlier decision. To back his position that the court had erred he made reference in the papers filed before the hearing, to the August 2016 judgment producing an injustice like that of slavery.
Two others intervened in the same case, however, the Law Association of Zambia (LAZ) and an opposition party official. Between them they raised several preliminary issues, the most important of which was to question the AG’s authority to act for the unhappy ministers.
In its long-awaited judgment – it took a year to complete and deliver and was the second last decision handed down in 2017 – the court dealt extensively only with the preliminary question of the AG’s legal standing.
As the former ministers were now private persons, the court had to decide if the AG was allowed to participate in private proceedings and/or represent private persons.
From the functions of the AG listed under the constitution the judges concluded that the AG “had only one client, the government of the republic of Zambia”. If the AG had any role in private litigation it was only as an “intervener, in order to protect the public interest”.
The AG had argued that he was motivated to act in the public interest in this case and that the fact that private individuals would benefit as a result should not be held to prevent him acting.
But the judges found that while the action would benefit the former ministers “substantially”, it would not “further the interests of government in any foreseeable way”. If the AG were allowed to act in the matter he would be “representing the interests of the ministers in their capacity as private persons”. The AG’s connection to the ministers ended when the court concluded that they had to vacate their offices. No matter how “well-meaning” his intentions might be, he had no legal standing to act on behalf of the ministers.
In view of this decision, the court said there was no need for it to consider any of the other issues raised by the AG, for example, whether the constitutional could consider an appeal against its own decisions.
Despite the extensive delay, for which no reason was given, the case is clearly important for several reasons, most obviously in clarifying the powers of the AG.
It is also significant as the judgment appears to speak from a position of judicial strength, unwavering in holding to the court’s earlier decision. This is important since the appointment of at least one of the court’s members was strongly criticized because of her direct family relationship to President Edgar Lungu: while she recused herself on one occasion from deciding a case in which he was involved, citing that relationship, she has also given a judgment favouring him in an inter-party dispute. If the court were seen to waver on its strong initial finding it could well be interpreted as evidence of internal cracks over the court’s independence.
As to the other issues raised, the court has, for the moment at least, avoided having to consider whether it has the power to reconsider its own decisions: this is just as well since the fledgling court is still establishing its authority in Zambia where it has been in existence for less than two years.