Law Commons^™

Bizwayo Newton Nkunika V Lawrence Nyirenda And Electoral Commission Of Zambia 2019/Ccz/005 (1 March 2021), O'Brien Kaaba

SAIPAR Case Review

No abstract provided.

Toyota Motors South Africa (Pty) Ltd V Numsa Obo Njini And Others (D 692/19 [2022] Zalcd 12 (14 July 2022), Stephen Nkosi

SAIPAR Case Review

This was an application in terms of s 145 of the Labour Relations Act 66 of 1966. Toyota sought to have the decision of the CCMA, ordering the re-instatement of Mr Lungile Njini - then an employee of Toyota for 17 years – be set aside, and that his dismissal be declared fair. The case represents an interesting interplay between the quest for discipline and productivity in the workplace and the right to exercise one’s constitutional right to culture as provided for in s 30 of the Constitution of the Republic of South Africa Act. This note is divided into …

Chapter One Foundation Limited And 2 Others V The Attorney General 2020/Ccz/0013 [2021], Florence Chumpuka, Mbaka Wadham

SAIPAR Case Review

If Zambia is to achieve gender parity and the representation of youth and persons with disabilities in politics, the Constitutional Court must be committed to: a) interpreting the Constitution in a manner which aligns with the principles and values set out in the Constitution, and b) Constitutional Court needs to offer extensive well-reasoned analysis of the Constitution within context of the laws’ purpose.

Mubita Mwananuka V Armaguard Security Caz Appeal No. 201/2021, O'Brien Kaaba

SAIPAR Case Review

The Court of Appeal of Zambia, in the case of Mubita Mwananuka v Armaguard Security CAZ Appeal No. 201/2021, delivered a Ruling on 3rd August 2022 to divest the High Court General List of jurisdiction over employment matters. I argue that this decision is in clear violation of the Constitution and demonstrates bewildering disregard of precedents by the Supreme Court and the Constitutional Court, which bind the Court of Appeal.

George Mwanza And Melvin Beene V Attorney General Select Judgment No 33 Of 2019, O'Brien Kaaba

SAIPAR Case Review

The case came to the Supreme Court by way of appeal from the High Court. The two appellants were inmates at Lusaka Central Prison. It turned out that the appellants were HIV positive and were on Anti-Retroviral Treatment (ART). The medical condition and treatment required that they be provided with food of a balanced diet in line with their medical condition.

The prison authorities, however, only provided limited quantities of maize sump for breakfast; maize meal (nshima) with dry sardines for lunch and super.2 The food was often rotten and contained foreign particles. Not only was it of of poor …

Dipak Patel V. The Attorney General [2020] Ccz 005, Josiah Kalala

SAIPAR Case Review

In 2016, the Constitution of Zambia was amended, introducing a provision that required the National Assembly to approve all debt before it was contracted. The Constitutional amendment also introduced a requirement that legislation relating to the contraction and guaranteeing of debt should provide the category, nature and other terms and conditions of a loan, grant or guarantee that will require approval by the National Assembly before the loan, grant or guarantee is executed. Unfortunately, since the constitutional amendment in 2016, the government of Zambia acquired numerous loans without the approval of the National Assembly of Zambia. The Petitioner, a former …

Dipak Patel V. The Minister Of Finance And The Attorney General Ccz 5 Of 2020 [2021], Chanda Chungu

SAIPAR Case Review

The Constitutional Court judgment of Dipak Patel v. The Minister of Finance and the Attorney General dealt with an application by Dipak Patel who sought, inter alia, a declaration that the failure by the Minister of Finance to bring all public debt that was contracted by the Executive to the National Assembly for approval was contrary to the Constitution. This case review seeks to provide a lucid and clear analysis of the Constitutional Court judgment, discussing the soundness of the court’s reasoning and approach to the issue of how public debt should be contracted.

Baby ‘A’ And Another V Attorney General And Others [2014] Eklr, Samiselo Kayombo

SAIPAR Case Review

On or about 3rd May 2009, Baby A (1st Petitioner) was born as an intersex child.2 On 10th May 2009, Kenyatta National Hospital (2nd Respondent) conducted various medical tests on the 1st Petitioner and on one of the documents that captured the 1st Petitioner’s details, inserted a question mark ‘?’ in the column that indicated the child’s sex. The Petitioners claimed that the entry of a question mark to indicate the sex of Baby A violated the rights of the child to legal recognition, dignity and freedom from inhuman and degrading treatment. These rights were guaranteed in Section 4 of …

New Nation Movement Npc And Others V President Of The Republic Of South Africa And Others 2020 (6) Sa 257 (Cc), Dunia P. Zongwe

SAIPAR Case Review

This case will impact constitutional law, constitutional interpretation, and electoral law in the sense that it will likely remain for a long time the leading case on independent candidates in South Africa. This is an important question that has also been raised elsewhere, like it did recently in Namibia. In both South Africa and Namibia, the question was raised as to the desirability of independent candidates. With the decision in NNM, the Constitutional Court has enabled South Africa to join nations like Namibia in permitting independent candidates.

Prosecutor-General Of Namibia V Namoloh And Others 2020 (3) Nr 839 (Sc), Dunia P. Zongwe

SAIPAR Case Review

Namoloh is the leading case on the definition of an accused in Namibia. It is true that, so far, there have been quite some confusion on the definition of ‘accused.’ For instance, the Criminal Procedure Act does not describe the accused and actually refer to the person through the sentencing process ‘the accused’ even if the accused has already been ‘convicted’. The Namoloh case therefore stabilizes criminal law in Namibia by clarifying who does and who does not qualify as an ‘accused’.

Nonetheless, the way in which the Supreme Court resolved the question of permanent stays of prosecution contradicts the …

Is The Constitutional Court Fanning The Flames Of Potential Unrest? A Review Of Recent Political Cases, O'Brien Kaaba, Felicity Kayumba Kalunga, Pamela Towela Sambo

SAIPAR Case Review

The cases we discuss in this article raise fundamental questions about access to justice. Inefficient delivery of judgments, issuance of unreasoned or thinly reasoned rulings, inordinate delay in hearing matters, and awarding of unwarranted costs in public interest matters all militate against access to justice. Access to justice is important in maintaining law and order and promoting the rule of law. As US Supreme Court Judge, Stevens, stated in Bush v Gore 531 US 98 (2000), ‘It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law.’ Where …

Public Protector V South African Reserve Bank 2019 (6) Sa 253 (Cc), Dunia P. Zongwe

SAIPAR Case Review

No abstract provided.

Mutembo Nchito V Attorney General 2016/Cc/0029 (27 October 2020), O'Brien Kaaba, Pamela Towela Sambo

SAIPAR Case Review

No abstract provided.

Itula And Others V Minister Of Urban And Rural Development And Others 2020 (1) Nr 86 (Sc), Dunia P. Zongwe

SAIPAR Case Review

At the heart of this electoral case lies deep questions about what it means exactly to ‘know’ something and about a few steps that judges should avoid when reasoning from unknowns. In short, the court refused to cancel a presidential election because those who challenged that election in court failed to prove that the absence of verifiable paper trail changed the outcome of the election. If a judge lacks evidence of any claim put forth by the parties, they cannot lean on the absence of evidence to arrive at any conclusion, except to conclude that they do not know whether …

Bill 10, If Enacted, Will Install A Constitutional Dictatorship And Undermine Democracy In Zambia, Muna B. Ndulo

Southern African Journal of Policy and Development

Zambia has made several attempts to elaborate a democratic constitution that promotes good governance, inclusiveness, citizen participation, accountability, and the separation of powers between the three arms of government-parliament, the judiciary, and the executive. Success has been elusive largely because the processes used have been inappropriate for consensus building. The latest attempt, the Constitution Amendment Bill No. 10 of 2019, which came out of a ruling party dominated constitutional conference, is presently before parliament. The constitutional conference excluded key stake holders such as the main opposition party and civil society. The paper critically examines the contents of Bill 10 and …

Law Association Of Zambia And Chapter One Foundation Limited V Attorney General 2019/Ccz/0013/0014, Pamela T. Sambo, O'Brien Kaaba

SAIPAR Case Review

The Constitutional Court of Zambia on 29th November 2019 rendered its highly anticipated (abridged) judgment in the case of Law Association of Zambia and Chapter One Foundation Limited v Attorney General 2019/CCZ/0013/0014. In June 2019 the Minister of Justice introduced into the National Assembly the Constitution of Zambia (Amendment) Bill No. 10 (generally referred to as Bill 10) intended to extensively amend the Constitution. The Bill had been criticized by many stakeholders as it is seen as an attempt to enhance executive powers and undermine constitutionalism. In August 2019, the Law Association of Zambia and Chapter One Foundation Limited commenced …

Daniel Pule And Others V Attorney General And Others Selected Judgment No. 60 Of 2018, James Kayula

SAIPAR Case Review

No abstract provided.

Executive Privilege - With A Catch: How A Crime-Fraud Exception To Executive Privilege Would Facilitate Congressional Oversight Of Executive Branch Malfeasance In Accordance With The Constitution's Separation Of Powers, Anthony W. Wassef

Cornell Law Review

A crime-fraud exception to assertions of executive privilege in response to congressional subpoenas would help level the playing field between the two branches in those moments when Congress is most needed to serve as a check and balance on the executive branch. A crime-fraud exception would signal to executive branch officials that executive privilege will not conceal their malfeasance; would counteract hyperpartisanship as a force that insulates executive branch officials from the consequences of their actions; and would rein in the expansive reach of protective assertions of executive privilege. For years, Congress has surrendered power to the executive branch. A …

Chishimba Kambwili V Attorney General 2019/Cc/009, O'Brien Kaaba, Pamela T. Sambo

SAIPAR Case Review

The Constitutional Court on 18th February 2020 rendered its judgment in the case of Chishimba Kambwili v Attorney General 2019/CCZ/009. The petitioner, then an estranged Member of Parliament for the ruling Patriotic Front (PF), had his seat declared vacant in February 2019 by the Speaker of the National Assembly, Patrick Matibini, on the ground that by acting as a consultant for an opposition party (under which he was not elected to Parliament), he had crossed the floor.

The Constitutional Court found the action of the Speaker to have been unconstitutional as the office is not vested with power to interpret …

George Peter Mwanza And Melvin Beene V Attorney General Appeal No. 153/2016 Sc Selected Judgment No. 33 Of 2019, Ellah T.M. Siang’Andu

SAIPAR Case Review

On the 9th December 2019, the Supreme Court of Zambia delivered a landmark decision changing the human rights jurisprudence in the context of protecting and preserving the fundamental human rights of prisoners. The appellants were HIV positive and were both in custody at the Lusaka Central Prison. They petitioned the High Court contending breach of their rights to life and protection from inhuman treatment contrary to the Republican Constitution. The argument of the appellants was that the State’s failure to consider their dietary and health needs, due to the budgetary and logistical restraints, fell short of all prescribed standards for …

A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko

Cornell Law Review

This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine- learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate (1) that constitutional discourse has grown increasingly polarized over the past four decades; (2) that polarization has grown faster in constitutional discourse than in nonconstitutlonal discourse; (3) that conservative-leaning speakers have driven …

The People V The Patents And Companies Registration Agency Ex-Partes Finsbury Investment Limited And Zambezi Portland Cement Limited 2017/Ccz/R003 Selected Judgment No. 28 Of 2018, Chanda Chungu

SAIPAR Case Review

The dispute related to how to commence judicial review proceedings in Zambia. The applicant in this matter commenced judicial review proceedings in the High Court of Zambia by way of applying for leave. In between the period after the High Court granted leave to hear the merits of the judicial review and the hearing date, the Patents and Companies Registration Agency (PACRA), the Respondent filed an application to discharge the leave granted. It was at this point that the Applicants filed summons, to have the matter referred to the Constitutional Court to determine whether or not the requirement for leave …

The People V The Patents And Companies Registration Agency Ex-Partes Finsbury Investment Limited And Zambezi Portland Cement Limited 2017/Ccz/R003 Selected Judgment No. 28 Of 2018, O'Brien Kaaba

SAIPAR Case Review

The matter came to the Constitutional Court by referral from the High Court. The Applicant applied for leave to issue judicial review process and leave was granted by the High Court. While the main application for judicial review was still pending, the Respondent filed an application to discharge the leave granted to the Applicant. The Applicant opposed this motion and then applied to have the matter referred to the Constitutional Court.

Traveling While Hispanic: Border Patrol Immigration Investigatory Stops At Tsa Checkpoints And Hispanic Appearance, Pablo Chapablanco

Cornell Law Review

No abstract provided.

The Endogenous Fourth Amendment: An Empirical Assessment Of How Police Understandings Of Excessive Force Become Constitutional Law, Osagie K. Obasogie, Zachary Newman

Cornell Law Review

If the Fourth Amendment is designed to protect citizens from law enforcement abusing its powers, why are so many unarmed Americans killed? Traditional understandings of the Fourth Amendment suggest that it has an exogenous effect on police use of force, Le., that the Fourth Amendment provides the ground rules for how and when law enforcement can use force that police departments turn into use-of-force policies that ostensibly limit police violence. In this Article, we question whether this exogenous understanding of the Fourth Amendment in relation to excessive force claims is accurate by engaging in an empirical assessment of the use-of-force …

Daniel Pule And Others V Attorney General And Others 2017/Ccz/004 Selected Judgment No. 60 Of 2018, Elias C. Chipimo

SAIPAR Case Review

In a case brought to determine the eligibility of President Edgar Lungu to stand as a presidential candidate in 2021, having served less than three years in his first term, the Constitutional Court determined that: ‘…the presidential tenure of office that ran from January 25, 2015 to September 13, 2016 and straddled two constitutional regimes, cannot be considered as a full term.’

In doing so, the Constitutional Court effectively backdated the application of the ‘New Clauses’ to a time when there was already a law governing: (a) the eligibility of a person to stand again as a presidential candidate who …

The Thirteenth Amendment: Modern Slavery, Capitalism, And Mass Incarceration, Michele Goodwin

Cornell Law Review

Slavery's preservation in the United State can-in part-be explained by its fluid transformations, which continuously exacted economic gains, preserved southern social order, and inured benefits to private parties as well as the state. These transformations did not outpace law. Rather, the rule of law in the south and lawlessness among local law enforcement frequently accommodated these transformations and innovations. Historically, efforts to stamp out the myriad forms of slavery-convict leasing, peonage, contract transfers, so-called "apprenticeships," and chain gangs-frequently fell short because of local collusion and complicity, weak federal interventions and protections, and violence. The specter of lynching, which included the …

Nelson Chamisa V Emmerson Dambudzo Mnangagwa And Others Ccz 42/18 (August 2018), O'Brien Kaaba

SAIPAR Case Review

Zimbabwe held its first post-Mugabe general elections on 30th July 2018. On 3rd August 2018, the Zimbabwe Electoral Commission (ZEC) declared Emmerson Dambudzo Mnangagwa as the candidate who received the requisite ‘more than half the number of votes cast’ and declared duly elected President of Zimbabwe. Aggrieved by this development, Nelson Chamisa, the main opposition contender, challenged the validity of the election of Mnangagwa in the Constitutional Court. After hearing the case, the Constitutional Court unanimously: 1) Dismissed the application with costs; and 2) Declared Emmerson Dambudzo Mnangagwa as duly elected President of Zimbabwe.

Local Evidence In Constitutional Interpretation, Brandon L. Garrett

Cornell Law Review

The Supreme Court frequently relies on state law when interpreting the U.S. Constitution. What is less understood is the degree and manner in which the Supreme Court and other federal courts look to local law. Although it has gone largely unnoticed, there is a robust practice of acknowledging and accounting for local law in the course of constitutional interpretation. Local evidence may inform the decision whether to recognize a constitutional right, it may inform the interpretation of the right, and it may inform the remedies for a constitutional violation. For example, the Supreme Court has examined local enforcement patterns to …

Rethinking "Just" Compensation: Dignity Restoration As A Basis For Supplementing Existing Takings Remedies With Government-Supported Community Building Initiatives, Alyssa M. Hasbrouck

Cornell Law Review

Longstanding calls for the Supreme Court to revisit the Takings Clause's just compensation requirement are especially relevant in light of urban renewal's destructive history. However, the just compensation requirement should be viewed as a floor, not as a ceiling. Even in the absence of formal action by courts, legislatures and local governments can act to fulfill the government's constitutional obligation of "full and perfect" compensation. By taking preemptive action to support community-based initiatives, financially as well as politically, the same legislatures that seized and destroyed urban neighborhoods can begin to set things right. Court-ordered investments in the longterm well-being of …