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2017 saw many challenges for judiciaries in Africa, including a number of threats from the executive, electoral difficulties and political instability, as well as many examples of extraordinary judicial independence and courage. Some examples that come to mind are the Kenyan Constitutional Court’s decision to nullify the elections ; Zimbabwe’s Chief Justice and JSC’s fearless defence of the system of judicial appointments; The Seychelles Appeal Court judges speaking truth even when it involved one of their own; Malawi trying its first case under their new Gender Equality Act; Zambia grappling with balancing the rights of traditional culture, freedom of religion and international law and constitutional obligations and Uganda fleshing out the issue of the awarding of cost orders in Constitutional matters under the new constitution.
The undersigned organisations are gravely concerned about recent reports of events affecting the judiciary in the Seychelles. The developments in Seychelles have the potential to affect the actual and perceived independence of the court.
Multiple international guidelines and best practice standards highlight the crucial importance of the independence of the judiciary. The Latimer House Principles recognised that “an independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice.” This principle is reiterated in section 119 (2) of the Constitution of Seychelles which guarantees the independence of the judiciary and makes it subject only to the Constitution and laws of the country.
By Carmel Rickard
You could almost hear a sharp intake of breath around the world’s human rights community when news broke at the weekend of moves to impeach Kenya’s Chief Justice, David Maraga. Just days before, he had been one of a Bench of judges that found Kenya’s 8 August elections invalid and ordered a re-run. Now, a member of the disappointed political party – apparently trying to get his own back – claimed that the judge was part of an international ‘regime change’ conspiracy, and petitioned for an inquiry leading to dismissal.
The MP has subsequently agreed to withdraw his petition, at least for the moment. The content of his spurious complaint is worth examining in some detail, but for now it serves another purpose: it puts Kenya on the growing list of African countries in which the judiciary, judicial independence and the rule of law, are all under serious threat.
One of the most extraordinary of these stories concerning current threats to the judiciary comes from the Seychelles. Over the past months this column has noted the bizarre behaviour of a prominent judge from that jurisdiction, Judge Durai Karunakaran. He is a senior member of the Bench and was even acting Chief Justice for a period. But his judicial behaviour became increasingly inexplicable and ultimately even appeal judges, called on to revisit decisions he had made, found they had to comment and chide him.
On the 1st of September, 2017 the Supreme Court of Kenya annulled the Presidential election held on the 8th of August 2017 and ordered a re-run within 60 days. The ruling was made as a result of a petition by the leader of the opposition, Raila Odinga, in which he sought nullification of the results of the elections on the basis that it was marred by breaches of the law and many irregularities.
In annulling the elections, the court per, Maraga CJ writing the majority judgment in 4 - 2 decision said: "Taking the totality of the entire evidence, we are satisfied that the elections were not conducted in accordance to the dictates of the constitution".
In its ruling the court emphasised that the re-run be conducted " in conformity with the Constitution and the applicable laws". In so holding the court affirmed that the credibility of the Kenyan elections would be judged by the extent to which they comply with constitutional principles.
JIFA is running its 2nd "Introduction to Human Rights for Judges" course this week. There are 23 participants from 10 different SADC countries attending the course.
Click here to view the August 2017 newsletter
Vanja Karth participated in an experts meeting on Judicial Integrity hosted by the UNODC in Vienna 28-29 August 2017.
More information about the experts meeting and the UNODC can be found here.
JIFA will be hosting its first Judicial leaders retreat 24-28 July in Cape Town. It will be attended by 7 Chief Justices from SADC as well as 11 other senior judges. The faculty includes retired Justices Linda Dobbs ( DBE) ; Dikgang Moseneke; Kate O’Regan; the Chief Justice of Malawi and Supreme Court of Appeal of New York Judge Karen Peters. The Programme can be seen here.
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By Carmel Rickard
Cape Town — Twenty African High Court judges have had a taste of South Africa's complex political reality: their human rights training course was hurriedly moved after student protests closed the University of Cape Town (UCT) campus.
The judges, in South Africa to examine how to apply international human rights law in appropriate decisions, came from 10 different African countries for the event, presented by the UCT-based Judicial Institute for Africa (Jifa).
Though they should have met for their discussions in the law faculty's Kramer building, organisers moved the workshop off campus for the first few days due to the continuing protests that saw the campus, like others in South Africa, closed for classes.
In the course of the workshop, the judges were thrown even further into the South African situation by the hypothetical cases they were asked to consider, several of which related directly to dramatic events unfolding in the host country.
Thirty two judges from 12 African countries participated in the very first Core skills for judges course
Judge Dinnah Usiku from the Windhoek High Court in Namibia found the module on judgment writing and the interaction with her African peers particularly helpful. “This course should be held as often as possible to assist judicial officers who are newly appointed,” added Usiku, whose appointment to the bench was made eight months ago