Law Commons^™

Isaac Mwanza And Zambia Civil Liberties Union (Zclu) V The Attorney General 2024/Ccz/008, Emmanuel Banda

SAIPAR Case Review

This contribution considers Isaac Mwanza and Zambia Civil Liberties Union (ZCLU) v Attorney General, a case challenging the constitutionality of longstanding penal provisions criminalising same-sex relations. The author takes issue with the Constitutional Court’s refusal to entertain the matter on jurisdictional grounds, arguing that it misconstrued the relationship between Articles 28 and 128 of the Constitution. By deferring entirely to the High Court on Bill of Rights issues, the author contends, the Constitutional Court has left a significant gap: legislation that may violate fundamental rights now lacks a clear constitutional forum for challenge. The piece underscores a persistent ambiguity in …

Volume 8, Issue 1 Table Of Contents

SAIPAR Case Review

No abstract provided.

Editorial Note, O'Brien Kaaba, Emmanuel Nyambe

SAIPAR Case Review

No abstract provided.

Coercing Virtue Or Superintending Constitutional Order? A Comment On Munir Zulu And Celestine Mukandila V Attorney General, O'Brien Kaaba, Emmanuel N. Nyambe

SAIPAR Case Review

In Munir Zulu and Celestine Mukandila v Attorney General, the Constitutional Court of Zambia intervened for the first time in a constitutional amendment process before a bill was tabled, asserting its authority to oversee executive conduct in line with constitutional principles. While the author commends the Court’s departure from a historically passive judiciary, a pointed critique is offered of the judgment’s conceptual shortcomings. The analysis highlights the Court’s conflation of constituent and constituted power, its reliance on an inaccurate historical account of past amendments, and the jurisdictional inconsistency it created with the earlier Bill 10 ruling, all of which weaken …

The Attorney General V Rajan Mahthani (Appeal No. 4 Of 2020) [2025] Zmsc (24 July 2025): Judicial Recusal And Why It Is Important To Strike A Balance, Mwami Kabwabwa

SAIPAR Case Review

This contribution examines The Attorney General v Rajan Mahthani, a Supreme Court ruling on judicial recusal. The author critically assesses the Court’s insistence on proving actual, extrajudicial bias as a prerequisite for recusal. Though the importance of shielding the judiciary from frivolous motions is acknowledged, the piece warns that the Court’s rigid stance, paired with its admonishing tone, may undermine the right to a fair hearing guaranteed under Article 18 of the Constitution. Drawing on South African and Kenyan jurisprudence, the author proposes adopting a “reasonable apprehension of bias” standard that respects judicial independence while safeguarding public confidence in the …

Strikes And The Struggle For Democracy, Angela B. Cornell, Ruth Dukes

Cornell Law Faculty Publications

The right to strike is fundamental to the development and maintenance of democratic forms of government. In struggles to construct and defend democratic regimes, strikes, including general strikes, are often an important weapon. In established democracies, the right to strike can aid the spread of democratic decision-making in workplaces and the wider economy, serving indirectly to strengthen participation and confidence in political processes and institutions. And it can underpin systems of collective bargaining that function to narrow income and wealth inequalities, in a manner that is conducive, if not necessary, to the maintenance of democratic government. Wherever the right to …

Volume 7, Issue 2 Title Page

SAIPAR Case Review

No abstract provided.

Volume 7, Number 2 Editorial Board

SAIPAR Case Review

No abstract provided.

Punishing Inciting Racial Hatred Through Social Media: A Review Of R V. Jordan Parlour [2024] Ewhc 2323 (Ch), Chaloka Beyani

SAIPAR Case Review

This article discusses the sentencing of Jordan Parlour for inciting racial hatred through social media posts that encouraged attacks on a hotel housing refugees and asylum seekers. The case highlights the serious implications associated with online hate speech and the legal framework set by Articles 19 and 20 of the International Covenant on Civil and Political Rights to be particular, which prohibit incitement to national, racial, or religious hatred. The commentary advocates for the need for harsher and stricter punishments to deter such incitement and calls for social media companies to strengthen and improve their content moderation practices. It also …

The Appeal Of The Apex Court In Botswana: The Case Of Carter Morupisi V. State, Muna B. Ndulo, Louis Koen, Samantha Smit

SAIPAR Case Review

This case note discusses the Botswana Court of Appeal's ruling in Carter Morupisi v State, which addressed the High Court's unprecedented attempt to review a decision of the Court of Appeal. The commentary highlights the fundamental principle of judicial hierarchy and the separation of powers in Botswana's constitutional framework. The Court of Appeal emphatically rejected the High Court's jurisdiction to review its judgments, reaffirming its position as the final arbiter (highest judicial authority). The authors emphasise that while the High Court may raise constitutional questions with regards to Apex courts decisions, it cannot adjudicate on them, reinforcing the concept of …

Volume 7, Issue 2 Table Of Contents

SAIPAR Case Review

No abstract provided.

Cran V. Mtc Ltd And Others (Sa 822022) 2024 Nasc 6 (13 March 2024), Dunia P. Zongwe

SAIPAR Case Review

This piece focuses on the Namibian Supreme Court's decision concerning the Communications Regulatory Authority of Namibia's (CRAN) discretionary powers to levy regulatory fees. The judgment upholds the constitutionality of the amended Section 23 of the Communications Act of Namibia, which provides guidelines for setting these fees. The commentary commends the Court's sophisticated understanding of regulatory governance, balancing legislative oversight with administrative expertise. However, it also points out inefficiencies in the current fee-setting mechanism, particularly the lack of collaborative input from stakeholders and the risk for potential regulatory costs being pased on to consumers in an already oligopolistic market. Legislative reforms …

Coca-Cola Beverages Africa (Pty) Ltd V. Competition Commission And Another [2024] Zacc 3, Dunia P. Zongwe, Adolf N. Gariseb

SAIPAR Case Review

This article examines the South African Constitutional Court's decision on the public interest considerations in merger control, specifically concerning employment effects. The case involved Coca-Cola's retrenchments post-merger and the Competition Commission's notice of apparent breach. The Court's ruling clarifies the review standards for regulatory enforcement of merger conditions and the causal link required between a merger and subsequent employment decisions. The commentary highlights the paradox in South Africa's competition law, emphasising employment protection, though well-intentioned, may constrain economic flexibility. It argues that this employment-centric approach can lead to inefficiencies, diminish consumer welfare, and obscure market competitiveness as a public interest.

Editorial Note, O'Brien Kaaba, Madrine Mukabili, Emmanuel Nyambe

SAIPAR Case Review

No abstract provided.

Adjudication Of Presidential Term Limits In Zambia: A Comment On Michelo Chizombe V. Edgar Chagwa Lungu And Others 2023/Ccz/0021, O'Brien Kaaba

SAIPAR Case Review

This piece examines the Zambian Constitutional Court's decision on former President Edgar Lungu's eligibility to contest future presidential elections. The Court ruled Lungu ineligible, based on the application of Article 35 of the Constitution of Zambia, which was in force during his first term. The authors highlight the national significance of this case, particularly its impact on the 2026 presidential elections and its potential to reshape opposition politics. The commentary further explores the power of an apex court to depart from its own precedents, affirming the Constitutional Court's inherent jurisdiction to do so under exceptional circumstances, aligning with practices in …

Innocence Lost: The Dangers Of Life Imprisonment For Children At Whose Pleasure: D.B. (A Juvenile) V. The People [2024] Zmca 339 (18 December 2024), Samantha Smit, Louis Koen

SAIPAR Case Review

This piece examines the Zambian Court of Appeal's decision to overturn a life imprisonment sentence imposed on juvenile offenders, replacing it with detention ‘at the President's pleasure.’ The commentary explores the legal implications of this discretionary sentence, drawing parallels with similar controversies in other African jurisdictions, particularly Kenya, where such sentences have been criticized for undermining constitutional rights and the doctrine of separation of powers. The authors argue that ‘detention at the President's pleasure’ can effectively amount to an indefinite sentence, raising concerns about the uncertainty of imprisonment duration for child offenders. They suggest that the Zambian court missed an …

Sydney Mwansa V. Director Of Public Prosecutions (Appeal No. 276/2012) (Dpp) And Non-Conviction Based Forfeiture Orders: A Case Comment, Muna Ndulo

SAIPAR Case Review

This piece critically analyses the Zambian Court of Appeal's decision regarding a non-conviction-based forfeiture order. The Court allowed the appeal, insisting on the need to identify a specific offence and establish a clear connection between the offence and the tainted property. The author argues that this decision is legally flawed as it misconstrues the fundamental principle of non-conviction forfeiture, which does not require proof of a criminal conviction or a specific offence. The commentary emphasises that unexplained wealth, where authorities show a disparity between legitimate earnings and accumulated assets, should be sufficient to trigger forfeiture, with the burden of proof …

Gendered Capital Punishment, Sandra L. Babcock

Cornell Law Faculty Publications

This Article, for the first time, grapples with the influence of gender on decision makers in women’s capital trials. Part I provides a brief overview of scholarship examining the experiences of women offenders in the criminal legal system. Part II explains how gender inflects the prosecutions of women charged with capital crimes, drawing on scholarly research as well as a data set comprised of the trial transcripts of every woman currently on death row in the United States. Part III explores how the gender of key decision makers could affect the quality of justice received by women capital defendants. I …

Boeing Ruling Is A Cautionary Tale For Trade Secret Litigants, Matthew D'Amore

Cornell Law Faculty Publications

On Aug. 14, a $72 million jury trial win by Zunum Aero Inc. against The Boeing Co. in the U.S. District Court for the Western District of Washington for trade secret misappropriation evaporated with the court's post-trial holding that Zunum had failed to identify its trade secrets sufficiently.

How did we get here after three years of litigation, eight days of trial and countless dollars spent? How can litigants — and courts — avoid this situation in the future?

Clear pretrial identification of trade secrets is key, and litigants can find a road map for this in the Sedona Conference's …

Fhfa Comment Letter Regarding Fhlbs Mission, David J. Reiss

Cornell Law Faculty Working Papers

The Federal Housing Finance Agency (the “FHFA”) has requested Input regarding the regulatory statement of the Federal Home Loan Bank System’s (the “System”) mission to better reflect its appropriate role in the housing finance system. I commend the FHFA for being realistic about the System in its Request for Input; it acknowledges that there is a mismatch between its mission and its current operations.

The System’s operations do not do nearly enough to support the System’s stated mission of supporting the financing of housing. The System should recommit to that goal in measurable ways or its name and/or mission should …

A New Reporter Confronts The Supreme Court’S Unpublished Decisions, Peter W. Martin

Cornell Law Faculty Publications

In late January 2021, the Supreme Court of the United States issued a long list of orders. It concluded with a single sentence: “It is ordered that Rebecca Anne Womeldorf be appointed Reporter of Decisions of this Court . . . , effective January 25, 2021, . . . charged with the duty of reporting the decisions of the present Term which have not been reported prior to January 25, 2021.” The order was silent about the immense challenge facing the new Reporter in the form of unpublished decisions from prior terms. Actions taken by Ms. Womeldorf and her staff, …

Volume 7, Issue 1 Title Page

SAIPAR Case Review

No abstract provided.

Volume 7, Issue 1 Table Of Contents

SAIPAR Case Review

No abstract provided.

Volume 7, Issue 1 Masthead

SAIPAR Case Review

No abstract provided.

Editorial Note, O'Brien Kaaba, Madrine Mukabili

SAIPAR Case Review

No abstract provided.

Sicelo Edgar Mpanza N.O V Jabulile Lucy Mpanza And Others (28/2023) [2023] Szsc 59 (18/122023), Phakama C. Shili, Simangele D. Mavundla

SAIPAR Case Review

This case note provides a critical analysis of the landmark Eswatini Supreme Court case of Mpanza v Mpanza as it pertains to nullification of colonial legislative provisions that discriminate against individuals who were married under customary law during their lifetime by exempting their estates from the jurisdiction of the Master of the High Court. Section 68 of the Administration of Estates Act of 1902 regulates the administration of the estates of Africans who die having contracted a customary marriage and encompasses specific clauses that establish the exclusion of the estates from the jurisdiction of the Master of the High Court. …

Pheluna Hatembo & Milton Hatembo V. Hakainde Hichilema (2020/Hp/1128), Muna B. Ndulo

SAIPAR Case Review

The case in question involved an application by the defendant to dismiss the matter as statute-barred, citing the Limitation Act of 1939. The High Court, in deciding the matter made reference to the Supreme Court's holding in the case of Daniel Mwale v. Njolomo Mtonga, which reiterated that, the limitation period begins when there is a party capable of suing and another capable of being sued, and all material facts have occurred. The court also emphasized that the statute of limitation can be raised at any stage of proceedings.

Chillerton Group Limited V Konkola Mineral Resources Limited And Konkola Copper Mines Plc Appeal No. 215/2023, Mwaba Chileya Mulenga

SAIPAR Case Review

This case highlights the legal complexity between surface rights holders and mining rights holders over the same land area. The Court of Appeal had an opportunity to address an important issue which is the relationship between these conflicting property rights, in a way that could clarify the interpretation of the Mines and Minerals Act with regards to surface rights law. However, it missed the chance to address the full scope of this tension, particularly the notion of ‘correlative rights’ between mining and surface rights holders. In this judgment, the Court maintained that surface rights disputes should be resolved under land …

Graduare Property Development Limited V A & J Interiors Limited Appeal No. 253/2023, Clement Ngoma

SAIPAR Case Review

This case underscores the importance of courts adhering to the well-established principle that issues not raised during the trial cannot be introduced as grounds of appeal. In this judgment, the Court of Appeal had an opportunity to clarify the legal implications of the non-registration of lease agreements, but it also highlighted the broader issue of raising legal points at any stage of proceedings, including on appeal. Despite the non-registration of the lease agreement, the Court of Appeal emphasized that such a legal issue could still be addressed during an appeal, reaffirming the flexibility of legal proceedings in protecting the rights …

A Botched Procedure For Removing A High Court Judge: A Critique Of Joshua Ndipyola Banda V Attorney General 2022/Ccz/0010, O'Brien Kaaba

SAIPAR Case Review

The judiciary performs a key role in implementing the constitution and safeguarding constitutional order. Democracy cannot thrive when the judiciary is pliant. An independent judiciary is fundamental to constitutional democracy. Not only should judges be appointed in a transparent and credible manner, but their removal should insulate the judiciary from potential reprisals. Certainly, incompetent, and professionally unfit judges should have no place in the judiciary and judges who grossly misconduct themselves should be held accountable and in extreme cases, must be removed from office. However, how judges are removed has an impact on the autonomy of the judiciary. If the …