Law Commons^™

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.

Savenda Management Services Limited V Stanbic Bank Zambia Limited And Gregory Chifire Selected Judgment No. 47 Of 2018, Elliot Mfune

SAIPAR Case Review

The case of Savenda Management Services Limited v Stanbic Bank Zambia Limited and Gregory Chifire is significant in that it raises the question whether Zambian judges have virtually unbridled power to move on their own motion to punish for contempt of court any person who criticises their judgements. In addition, the case reinforces the traditional struggles associated with distinguishing civil from criminal contempt, the consequences of which are entirely based on the distinction. The case is also important as it exposes inadequate sentencing guidelines in Zambian contempt laws, the effect of which has led to excessive and unwarranted sentences. A …

Enock Kahale & 3 Others V The People [2021] Zmca 26, John Hatchard

SAIPAR Case Review

In both criminal and civil cases, the general rule is that a witness may only testify as to matters of fact of which they have personal knowledge. Thus, a witness may not draw inferences from the facts, speculate about the causes of the facts or make value judgments about those facts. The case of Kahale is unusual in that the expert who was required to give evidence, i.e., the ballistics expert, did not do so whilst PW7, a non-expert, was permitted to give evidence that required an expert in the relevant field. There was therefore a complete absence of expert …

The People V Attorney General & Energy Regulation Board [2020] Hp 0575, Chipasha Mulenga, Kangwa-Musole George Chisanga

SAIPAR Case Review

No abstract provided.

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 …

Measuring The Effectiveness Of The Proposal To Divest Military Commanders Of Disposition Authority For Sexual Assault Cases: A Comparative Quantitative Analysis, Brian L. Cox

Cornell Law Faculty Working Papers

As suggestions to modify the practice of the U.S. military justice system return to the fore of American political discourse, the perennial proposal to divest commanders of authority to convene courts-martial to adjudicate allegations of sexual assault is once again at the center of the debate. While reformists are adamant that the suggested revision would support efforts to end what has been characterized as an “epidemic of rape” in the U.S. military, the precise connection between the “reform” and the desired improved outcomes remains tenuous. An assessment of jurisdictions that have already divested commanders of such authority could provide persuasive …

Transnational Law As A Framework For Law Clinics, Sital Kalantry, Rachael E. Hancock

Cornell Law Faculty Publications

As the law becomes increasingly globalised and online education is increasingly emphasised, clinical legal education presents new opportunities for transnational collaboration. With more law schools introducing global clinical experiences into their curriculum, clinicians, students, clients, and practitioners are facing a host of new questions, challenges, and obstacles. These challenges are practical, logistical, ethical, and cultural. As research has found, finding a means of addressing these issues in ways that advance social justice has proven difficult. Striking a balance between client service and student learning, navigating relationships between different learning institutions, and setting ambitious but attainable goals are important elements of …

The Time Has Come For Disaggregated Sovereign Bankruptcy, Odette Lienau

Cornell Law Faculty Publications

The ongoing economic crisis caused by the COVID-19 pandemic has generated important proposals for addressing countries’ financial distress in the short to medium term. However, it has also made even more apparent the existing gaps in the global financial architecture writ large and highlighted the extent to which key actors pay closest attention to this infrastructure in situations of crisis. By then, of course, it is already too late.

This essay argues that the international community should use the energy generated in the current context to move toward ‘disaggregated sovereign bankruptcy’—which can be understood as a framework by which multiple …

Law’S Disaster: Heritage At Risk, Sara C. Bronin

Cornell Law Faculty Publications

Large-scale meteorological and geological events—including hurricanes, tropical storms, tornadoes, floods, blizzards, wildfires, earthquakes, extreme heat, and drought—have many consequences: loss of life, economic catastrophe, and destruction of homes among them. Perhaps less well-known are the threats to the historic and cultural sites that speak to human identity and create a sense of connection across generations. These sites are designated spaces of value, given their historical or cultural significance, and they are preserved to commemorate important moments in the story of the lived human experience. Yet hurricanes can destroy old buildings, especially ones that have not been structurally reinforced. Extreme heat …

Scorched Border Litigation, Briana Beltran, Beth Lyon, Nan Schivone

Cornell Law Faculty Publications

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from …

The Contested Boundaries Of Emerging International Migration Law In The Post-Pandemic, Ian M. Kysel, Chantal Thomas

Cornell Law Faculty Publications

One measure of how and whether the COVID-19 pandemic reshapes the emerging field of international migration law will be the extent to which transnational civil society and activist movements can counteract the intensification of state border controls that the pandemic has triggered. Before the pandemic, transnational efforts to establish a new normative framework for migration seemed to be accelerating. These efforts included new, if nonbinding, global compacts on refugees and migration, and new, if modest, efforts at facilitating global cooperation, alongside innovative approaches to scholarly engagement. Such developments arguably contributed to an emerging framework for protecting migrants under international law. …

Vol. 3, Issue 2 Table Of Contents

SAIPAR Case Review

No abstract provided.

Phinate Chona V Zesco Limited Caz Appeal No. 66/2019, Chanda Chungu

SAIPAR Case Review

No abstract provided.

Kelvin Hangandu V Law Association Of Zambia Scz Judgment No. 36 Of 2014, O'Brien Kaaba, Judith Kamoko

SAIPAR Case Review

The appellant, Kelvin Hang’andu, had been a member of the Law Association of Zambia (LAZ) since 15 November, 1996, when he was admitted to the Bar. On 24 May 2003, he converted from the Catholic Church to the Seventh Day Adventist (SDA) Church, which considers Saturday as a sacred day set aside for worship and complete abstention from work and other activities unrelated to religious practice. The essence of the appellant’s complaint was that the LAZ held its annual general meetings on Saturday, which was a violation of his religious freedom and discriminatory. His protests to the LAZ yielded no …

Prof. E. Clive Chirwa V Zambia Railway & Another (2018/Hp/0578), Kayula James

SAIPAR Case Review

No abstract provided.

Savenda Management Services Limited V Stanbic Bank Zambia Limited & Gregory Chifire (Alleged Contemnor) (Appeal No. 37/2017) [2018] Zmsc 11, Mwami Kabwabwa

SAIPAR Case Review

Adjudicators have a social responsibility. When the Judiciary/judges carry out their constitutional mandate of dispensing justice it is critical to bear in mind that judges carry a level of responsibility for the impact that their decisions have on society. For this reason, judges ought to be held responsible for every judgment they render either good or bad. Contempt is an exceedingly powerful instrument in the hands of the courts to tame the conduct and behaviour of lawyers and lay people who come into contact with judicial authority. Like any other power, the exercise of contempt power has to be checked. …

Vedanta Resources Holding Limited V Zccm Investment Holdings Plc And Konkola Copper Mines Plc Caz 08/249/2019, Muna B. Ndulo

SAIPAR Case Review

No abstract provided.

Okiya Omtatah Okoiti & 2 Others V Attorney General & 4 Others [2020] Eklr Civil Appeal No 13 & 10 Of 2015, Teddy J.O. Musiga

SAIPAR Case Review

Kenya’s Court of Appeal delivered the decision in Okiya Omtata Okoiti & 2 Others v Attorney General & 4 others on the 19th of June, 2020. This decision was an appeal arising from the High Court and it revolved around a dispute regarding the construction of the standard gauge railway in Kenya.

Editor's Note, O'Brien Kaaba

SAIPAR Case Review

No abstract provided.

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

SAIPAR Case Review

No abstract provided.

Vol. 3, Issue 2 Masthead

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.

Zccm Investment Holdings Plc V Konkola Copper Mines Plc And Vedanta Resources Holdings Ltd 2019/Hp/0761, Sangwani Patrick Ng’Ambi

SAIPAR Case Review

No abstract provided.

Vedanta Resources Holdings Limited V Zccm Investment Holdings Plc And Konkola Copper Mines Plc, Caz/08/249/2019, Sangwani Patrick Ng’Ambi, Chanda Chungu

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 …

Okafor V Nweke [2007] 10 Nwlr (Pt. 1043) 521, Oluwakemi A. Dowodu-Sipe

SAIPAR Case Review

No abstract provided.

The Capital Commons: A Plan For Building Back Better And Beyond, Robert C. Hockett

Cornell Law Faculty Working Papers

To build our Republic back better we must build our banks better. The overwhelmingly greater part of our investment capital is now publicly generated yet privately managed. But pervasive and still underappreciated recursive collective action predicaments endemic to all exchange economies, combined with the decoupling of profits from production made possible by stratified capital ‘markets’ in such economies, render this unsustainable.

The only way to get public capital allocation right, and thus to get credit modulation and long-term productive investment right, is to manage public capital publicly and private capital privately. This paper shows how to do that through the …

Harm To Border Irreparable, Sara C. Bronin

Cornell Law Faculty Publications

No abstract provided.

Recruiting For The Future: A Realistic Road To A Points-Tested Visa Program In The United States, Stephen W. Yale-Loehr, Mackenzie Eason

Cornell Law Faculty Publications

For over 40 years, lawmakers and academics have been debating whether the United States should adopt a merit-or skills-based approach to labor immigration and a points-based program for selecting foreign workers. Despite having bipartisan support, efforts to adopt such a program thus far have been unsuccessful.

This idea is now back at the center of public debate, having been given new life by President Trump. He has called for “merit-based” immigration reforms that would make the United States more effective at attracting the world’s “best and brightest” and make it more competitive in the global marketplace for highly skilled foreign …