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Newsletter #22/2019
13 June 2019
African Judges in Action

It's not just sex: sexual orientation discrimination no longer allowed by Botswana’s constitution

Botswana has become the latest African country to decriminalize sexual relations between same-sex male couples, a particularly sweet victory after last month’s flat rejection of a similar application by Kenya’s constitutional court. What makes the decision from the court in Botswana even more significant is that the judges have effectively included sexual orientation as a ground on which discrimination in that country is now unconstitutional.  

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Dame Linda Dobbs and the Russian connection

Judges who have been part of the training offered by the Judicial Institute for Africa (Jifa), will have been fortunate enough to meet Dame Linda Dobbs, Jifa's head of training. But few will know much more about her: though Dame Linda is outgoing and extremely helpful with her advice, she is not given to talking about herself. However, she is profiled in a recent edition of Counsel Magazine, the monthly journal of the Bar of England and Wales. And from the discussion between Dame Linda and her interviewer, barrister and diversity champion Desiree Artesi, readers will see that the UK suffers many of the same problems as certain African countries when it comes to diversity and the promotion of women to judicial office.

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Courts get wise to Big Tobacco strategies 

Africa’s courts are getting wise to the strategy of Big Tobacco in trying to fight off strict control over issues such as the size of health warnings on packaging. Uganda’s Constitutional Court has just dismissed a major attack brought by British American Tobacco (BAT) on laws that increase the size of health warnings, impose tough restrictions on where smoking is lawful, and hold tobacco company officials personally responsible when certain sections of the law are infringed. In its judgment, the court referred to a report on how such companies fight tobacco control, and the list of strategies included many that were in evidence in this case. Dismissing the petition, the court said it was “part of a global strategy” by BAT and its tobacco-selling peers to undermine laws in order to increase profits despite the risk of tobacco to the health of the “human population”.   

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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”.

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In their own words ...

Discovered through a dream

R v Barasa

High Court of Kenya, Busia

Judge Kiarie Waweru Kiarie
 
This was a murder trial in which the accused was charged with murdering his wife whose body was found in a shallow grave behind their house. According to the prosecution, he killed her and then secretly buried her before disappearing from their home.
 
Judge Kiarie: Sad as this case is, it had its lighter moments. The discovery of her body in a shallow grave can aptly be describe as stranger than fiction. Jackeline Aol (PW1) was removing some cattle when her foot entered a “hole”. She did not give it much attention and went on to complete her mission.  When she was asleep at night, the deceased appeared to her in a dream. In the dream, the deceased told her to go and dig where her leg had entered a hole. She revisited the scene. She however did not dig as instructed in the dream.  She noticed some flies and on closer scrutiny, she highly suspected that it was a grave and she therefore called other people who were of the same opinion.  The matter was reported to the police and exhumation was done. The body of the deceased was recovered and to her, Jackeline Aol (PW1), surprise the deceased was in the same clothes she appeared to her in the dream. I do not know how to explain this phenomenon.
 

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Open Access Special Issue Journal of African Law: The African Charter on Democracy, Elections and Governance at 10+

Journal of African Law

The Editorial Board of the Journal of African Law has put together a special issue on the African Charter on Democracy, Elections and Governance. This treaty has a number of unique features that attest to its importance some 12 years after its adoption in 2007. It sets out key concepts at the interface between law and politics, such as “unconstitutional changes of government”, and provides a yardstick to guide, assess and monitor state parties’ adherence to agreed standards of political conduct. The African Court on Human and Peoples’ Rights has recognized the charter as a human rights instrument in its jurisprudence; the charter has also played a major role in framing responses to national political crises. Unsurprisingly, it has become, in the short time of its existence, an integral part of the African Union's African governance architecture, informing the approach taken by a cross-section of actors in the field.

This issue is a rich blend of conceptual inquiry, legal analysis and interrogation of evolving practices relating to the African Charter on Democracy, Elections and Governance.

Click here to read more

About Carmel Rickard

Carmel Rickard has written about the law, human rights, justice, judgements and judicial matters for many years. A former legal editor of The Sunday Times, South Africa's biggest newspaper, she is now a columnist on legal issues.

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JIFA is a partnership between the DGRU at UCT, the SACJF and ICJ-AFRICA, which provides university-certified short courses to judges in Africa.
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