FIVE FAMOUS AFRICAN LEGAL CASES

From the last century in the cradle of humanity, there had been many legal cases which had an impact on improving the African legal system, most of them was controversial but are now receiving   a standing ovation on the motivation of the judges, most of them depicts independence of the judiciary in Africa, there are many exemplary cases but in this article we are seeing top five cases that every lawyer refer to from cape town up to cape bon in Tunisia.

1. The Kenyan supreme court Overturning the presidential results in kenya after presidential election of 2017 It was the first time for an African supreme court of any country to decide that because of illegality and irregularity the election result are declared null and void this judgement presented that the judiciary is independent and trustworthy in Kenya, and it will remain a monument in the whole African legal system. 
2.   MUTIKILI Vs federal republic of Tanzania this case was started by a Tanzanian reverend called Christopher MTIKILI in 1994 due to the constitutional amendment of Tanzania in1992 and was closed after 12 years, whereby an individual Could contest on presidential candidacy only when he or she is a member and sponsored by the any registered party On 24 October 1994 the Mtikili lodged his first claim before Tanzanian High Court that found in favour of Mtikili and declared the amendments unconstitutional. But later the Tanzanian government restored the ban on independent candidates. In 2005, Mtikili brought another case before the Tanzanian High Court, again arguing that the ban on independent candidates was unconstitutional. Again, the Tanzanian High Court found in his favour and allowed independent candidates.  In 2009 following the appeal of the Tanzanian Attorney General before the independent candidates were once again banned. In 2011 Mtikili brought his case before the African court of human and people’s right, which ruled in his favour and he claimed around 4 billion shirring as compansation on the account of his right violated with a further ruling on reparations on 13 June 2014.
3. OSCAR PISTOLIUS: Oscar PISTOLIUS is a famous South African athlete with disability for he uses manmade limbs in athletics, he is serving the conviction after murdering his girlfriend Reeva STEENKAMP in 2013 where he testified that he confused her with intruder then he shot at her four times dead. He was convicted three times, firstly by 5 years for culpable homicide, secondly by 6 years of murder and now by 13 years and 5 months for the intentional killing of his girlfriend, this case took 5 years to be concluded the last appeal took a place in March 2018.
4. Prosecutor v Akayesu: Jean Paul Akayesu was a bourgmestre (mayor) of Taba Commune in former Gitarama , south province in Rwanda, Akayesu was indicted on Feb.13.1996 and a verdict was issued against him two years later, this case is essential in development of the international criminal law and it is credited with establishing many “firsts” in international criminal law such as;

•       Firstly, this case put to an end discussion by proving that in Rwanda took place genocide against Tutsi of 1994
•     it resulted in the first adversarial conviction under international criminal law on genocide since the adoption of the treaty on genocide in 1948
• ·  It established a number of important jurisprudential precedents concerning the law of incitement, complicity, cumulative charging, individual criminal responsibility in non-international armed conflicts,
• ·         The judges affirmed that even incitement that fails to produce the results intended by the perpetrator warrants punishment because of the high risks such actions pose for society.
• ·         It was specifically recognized that sexual violence, including rape, when committed as part of a widespread or systematic attack on a civilian population on a discriminatory basis constitutes a crime against humanity.
• ·          it had been well established that civilians may be held responsible for violations of international humanitarian law.
• ·         It highlighted the role that advocacy played in encouraging the Tribunal to consider genocidal rape in Rwanda.
• ·         Development of the Coalition amicus Brief also suggested that the Prosecutor consider charging rape as genocide, The Coalition’s Amicus Brief recently made an appearance before the ICTY. In June 2008, the Prosecution moved to amend the indictment against cousins Milan and cited akayesu case
• ·         The great example of punishable omission Witness JJ testified that she never saw the Accused rape anyone, but she, like Witness H, believed that he had the means to prevent the rapes from taking place and never even tried to do so.
• ·         Developing the wide Definition of rape and ethnic group.

The list is not exhaustive but this case left a precedent that situated the concept of genocidal rape within the international criminal law framework, and right away, Akayesu is the only case which provided rape as genocide.

5. MADONNA and Adoption of Malawian children

Ms. Madonna Louise veronica Cicoone is a famous American singer from the early seventies between 2005-2010 starred in Malawian media and African for her heartfelt process of adopting Malawian children and having many other projects there such as building hospitals and so forth.

In 2006 she first adopted temporarily an eighteen months child called David BANDA which became permanent in 2008, later in 2009 the high court of Malawi prevented her from adopting a second child on two grounds which are the issue of residence and the welfare of the child. But this decision turned down at appeal before the Supreme Court which granted MADONNA the adoption of Mercy JAMES.

Fast forward in 2017 Ms Madonna adopted twin girls after the death of the mother in their one week and desert of the father to remarry, By affirming that separating twins would affect their mental and physical development the court ordered that The twins would keep their Malawian birth names and the adoptive mother would take a Malawian carer back to the US to ‘ease the transition into their new life’. The carer would also help the two older adopted children learn Chichewa.

This case is regarded as the most influential when it comes to the inter-country adoption that when a foreigner has the ability and the willingness to foster the adoptees as their own children.

Finally, There are many African cases which are impressive but those five broke through for different reason and motivations asserted by judges.

Law of civil, commercial, labour and administrative procedure in Rwanda

The adaptability principle is the hallmark of a stable legal system, there are many laws enacted recently or some years back which are being repealed thus they can be able to cope with current legal issues and abrogate obsolete. today it is a turn of  a law governing civil,commercial, labour and administrative procedures in RWANDA ( referred to as law of CCLAP ).

Before, there had been the Law of CCLAP No 18/2004 of 20/06/2004 repealed by that of No 21/2012 of 14/06/2012 repealed by the very recent one No 22/2018 of 29/04/2018 adopted by the session of lower chamber the 25/04/2018.

The former law contained 376 articles, while the new contained 283 articles.

The current law has brought new features which were absent in the ex law, one can mention article two on definitions which was missing on the former law of 376 articles.

The current law provides for conciliation as well as mediation in pretrial phase which was informal in the ex law.

The current law provides that a claim is filed electronically.

The powers of the court clerks have been established namely applying for a free advocates, conducting conciliation, settling disputes on value of subject matter and the like which is also not in the ex law.

Currently, when parties share interest in a case they pay one filing court fees i.e a joint claim whereas in the former law, each was paying separately.

In the current law of CCLAP a Court can sit on a matter not falling in their rationae materiae in case of the offence of contempt of court.

The duration for the exparte application is 2 days from 48 hours of the former law.

Claims under 5 MILLIONS Rwfs adding those related to negotiable instruments are in primary court.

Notwithstanding the law no 12/2013 of 22/03/2013 on BAILIFFS, the current law of CCLAP provides their competence, protection and sanctions.

In case the plaintiff is discharged to pay court fees and win, the respondent will pay court fees for public treasury, children defiled are exempted from court fees.

Technically, it is full of appreciation on how well it is presented and tabled.

The current law on CCLAP is  standing as a brief and concise even though some doctrinaires and civil society are showing that electronic filling of cases is not bringing equity in legal system and this service is still expensive to the vulnerable members of the Rwandan community.

ABUNZI Committe, function and jurisdiction in Rwanda.

Like many other African countries, Rwandan laws stem their source from custom, inter alia ABUNZI law, ABUNZI traditionally were integral member of the tribe who would be consulted to unify and restore relationship among families and relatives.

Recently this word was translated in English as mediators or conciliators but were not fitting in the sense of the country, conclusively it remained ABUNZI.

In actuality, as the new law no 37/2016 of 08/09/2016 determining organization, jurisdiction, competence and functioning of ABUNZI committee, this committee comprises seven(7) people of integrity and conciliation skills elected with the jurisdiction of a cell and a sector to sit over limited civil and criminal matters, their service is free of charge and they are not REMUNERATED.

When it comes to competence, In civil matters they decide over claims that don't exceed three millions (3,000,000 Rwf) i.e property, contract, succession and family issues except those regarding civil status.

A loophole lies in criminal competence for it looks like ABUNZI are not concerned or competent;  while the former law vested with them authority which is no longer a case.

It is a prerequisite for any person lodging a claim to have an interest, capacity and the standing.

Furthermore, the recourses of appeal are available such as opposition in case of default and appeal to the ABUNZI committee of sector, if the dispute persist the the concerned party proceed in judicial courts.

Three ABUNZI who sit over a given claim  are chosen mutually, parties choose two then those two elect themselves a third one if they choose one, he or she chooses others two as assistants.

ABUNZI's decision is called a VERDICT on a basis of laws, custom and consciousness.

A verdict is enforced on the mutual agreement of both parties. However, a winning party can apply before the primary court the enforcement of that verdict when all appeal are exhausted.

As far as reduction of claims which are taken before judicial court is concerned,  ABUNZI Committee plays an important part; therefore remunerating their volunteering expenses would suffice when giving justice.

On the other side of the coin, the ABUNZI committee don't have a competence to hear a case where government, its parastatals, private entities and organisation are involved even if the subject matter does not exceed 3 millions which tend people to speculate that their trustworthy is limited to unprofessional claims.

Secondly, for they use laws, they should be provided with documents easily and training on all laws falling under their jurisdiction and special training in case a new law is adopted.