Namibia’s top court has delivered a decision giving notice to the country’s intelligence services that they, too, fall under the aegis of a constitutional democracy. The case concerned material collected by an investigative journalist that appeared to show the Namibia Central Intelligence Service (NCIS) was involved in corruption. But when he asked for comment he was informed that publication of his proposed story was unlawful, and the NCIS then went to court to enforce that prohibition. This week’s judgment gave the Supreme Court an opportunity to explain that even the NCIS was bound by the values of an open and democratic society and could not count on the courts’ blindly agreeing to banning publication even where ‘not a scintilla of evidence’ was provided to show that prohibition was necessary. If genuine grounds to prevent publication existed, however, these could be raised with a court behind closed doors.
TWO regional magistrates felt they were being badly treated over promotion and recused themselves in protest. Now they have been ordered back to work by Namibia’s top court. The magistrates stood down from several part-heard cases to highlight what they considered unfair treatment. But the Supreme Court called their actions “sheer insubordination of great magnitude”. Setting aside the recusals, the judges ordered the magistrates to continue with the delayed cases immediately.
Recusal has become a political football in a number of African jurisdictions during the past months, but Namibia has produced a completely new scenario: magistrates who refused to continue a case because of a workplace grievance, and recused themselves in protest.
The Swazi courts have been battling to resolve the question of where the judges of the industrial court and the industrial court of appeal fit into the court hierarchy. In a long, complex and technical decision, that country’s highest court has laid down the law: the two industrial courts are inferior in the legal hierarchy to the high court and the supreme court, not equal to them. In a unanimous decision, five judges of the supreme court have sorted out the problem, but not without an immense struggle, for while they stress that the intention of the law makers has to be respected, that “intention” was clearly exceedingly difficult to fathom. “Mind-boggling”, in fact, to use the supreme court’s own words.
Who would have thought that judges needed to be warned to watch their language!
Supreme Court, Zambia
Some months before their contracts came to an end, the contracts of the two appellants were terminated. The trial court found these terminations neither unfair nor wrongful and the appellants challenged that outcome in the supreme court.
Writing for a three-court bench of Zambia’s Supreme Court, Justice Jane Kabuka noted that the terms “wrongful”, “unlawful” and “unfair”, as applied to termination of employment, were “persistently” used as interchangeable, even though these terms did not mean the same thing.
Malawi’s former agriculture minister, George Chaponda, was a key figure in that country’s “Maizegate” scandal around the importation of maize from Zambia to replenish stocks that had allegedly fallen low. Public criticism of apparent corruption led to a presidential commission of inquiry and then to high court action to have Chaponda stand down during the inquiry. Though the high court initially ordered Chaponda’s suspension, the supreme court has just ruled that it was wrong to do so, and that the judge had ignored binding precedent. The judgment was important for clarifying Malawi’s approach to judicial review. It has also taken an in-depth look at presidential prerogative, among other issues.