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Goal 16 of the Sustainable Development Goals: Perspectives from Judges and Lawyers in Southern Africa on Promoting Rule of Law and Equal Access to Justice

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Goal 16 of the Sustainable Development Goals: Perspectives from Judges and Lawyers in Southern Africa on Promoting Rule of Law and Equal Access to Justice Sylvester A. Kalembera J i Goal 16 of the Sustainable Development Goals: Perspectives from Judges and Lawyers in Southern Africa on Promoting Rule of Law and Equal Access to Justice NATIONAL ASSOCIATION REPUBLIC SOUTHERN AFRICA OF WOMEN JUDGES AND OF MALAWI LITIGATION CENTRE MAGISTRATES (Botswana) JUDICIARY Goal 16 of the Sustainable Development Goals: Perspectives from Judges and Lawyers in Southern Africa on Promoting Rule of Law and Equal Access to Justice December 2016 Goal 16 of the Sustainable Development Goals: Perspectives from Judges and Lawyers in Southern Africa on Promoting Rule of Law and Equal Access to Justice © 2016 Southern Africa Litigation Centre (SALC), Judiciary of Malawi, National Association of Women Judges and Magistrates of Botswana (NAWABO) ISBN 978-0-620-74263-4 (print) ISBN 978-0-620-74264-1 (e-book) About the Southern Africa Litigation Centre The Southern Africa Litigation Centre (SALC), established in 2005, aims to provide support to human rights and public-interest initiatives undertaken by domestic lawyers in Southern Africa. SALC supports these lawyers in a variety of ways, as appropriate, including providing legal research and drafting, training and mentoring, and monetary support. SALC works in Angola, Botswana, Democratic Republic of Congo, Lesotho, Malawi, Mozambique, Namibia, Swaziland, Zambia and Zimbabwe. Acknowledgements This collection of papers is a culmination of discussions held at the Judicial Colloquia on Goal 16 of the Sustainable Developments Goals which were held in Botswana, Malawi and Zambia in January and April 2016. As such, this publication is a joint initiative by the Judiciary of Malawi, the National Association of Women Judges and Magistrates of Botswana, and SALC. The purpose of the colloquia and this publication is to encourage discussion and honest reflection on the myriad ways in which the judiciary and legal profession can work towards achieving the objectives of Goal 16 of the Sustainable Development Goals. Accordingly, the views expressed in this publication are those of the individual authors and should not be attributed to their individual workplaces, the Judiciary of Malawi, the National Association of Women Judges and Magistrates of Botswana, or SALC. We would like to thank all those who contributed to the colloquia and this publication. We are grateful to the authors who offered their valuable time, on short notice, to contribute papers. This publication was edited by Anneke Meerkotter, Litigation Director at SALC, and Tyler Walton, and designed by Limeblue. It was made possible through the generous support of the United States Department of State, Bureau of Democracy, Human Rights and Labor. Southern Africa Litigation Centre Second Floor, President Place, 1 Hood Avenue, Rosebank, Johannesburg, South Africa, 2196 e-mail: [email protected], tel: +27 (0) 10 596 8538 http://www.southernafricalitigationcentre.org, twitter: @follow_SALC For hard copies of the report, please contact the Southern Africa Litigation Centre. Electronic copies of this report can be found at http://www.southernafricalitigationcentre.org Table of Contents Introduction 1 Anneke Meerkotter Judicial Independence as an Essential Aspect of the Rule of Law 3 Thomas S. Masuku J The Importance of Promoting Judicial Independence in the 10 Southern African Region Kaajal Ramjathan-Keogh Judicial Integrity and Independence: The South African 16 Omar Al Bashir Matter Angela Mudukuti Women’s Economic Rights: Removing Barriers to Women’s 22 Access to Justice in Malawi Rachel S. Sikwese J Beyond Symbolism and Rhetoric: The Role of the Legal 31 Community in Advancing Access to Justice and Development for Persons with Disabilities Chipo Nkhata, Johnson Jasson and Annabel Raw Protecting Rural Zambian Communities from Displacement 43 Resulting from Land-Based Investment Brigadier Siachitema Access to Complaints Mechanisms for Victims of Healthcare 57 Discrimination: A Developmental Imperative Annabel Raw The Death Penalty in Botswana: Time for a Re-Think? 65 Dr Elizabeth Macharia-Mokobi The Role of the Judiciary in Safeguarding and Ensuring 77 Access to Criminal Justice: The Case of Zambia Anderson Ngulube The Role of the Judiciary in Safeguarding and Ensuring Access 86 to Criminal Justice during the Pretrial Stage: The Case of Malawi Dorothy nyaKaunda Kamanga J Sustainable Development Goal 16 and Access to Justice: 96 The Case of Lay Magistrates in Malawi Zione Ntaba J Jurisdictional Limits for Magistrates are Hindering Access to 103 Justice in Malawi Sylvester A. Kalembera J Considering the Best Interests of the Child in Decisions on 112 Incarceration of Care-Givers in Malawi Chikondi Chijozi and Nyasha Chingore Some Thoughts on Effective Strategies for Combatting Corruption 122 in the Malawi Judiciary Rezine R. Mzikamanda SC JA The Court’s Role in Contributing to a Culture of Accountability 132 for Corruption Caroline James Legal Identity for All - Ending Statelessness in SADC 140 Liesl H. Muller Free Access to the Law in Africa 146 Mariya Badeva-Bright and Dr Oluwatoyin Badejogbin Access to Information in Malawi: The Journey to Date and a 156 Quick Survey of the ATI Bill of 2016 Mandala Mambulasa Towards Freedom of Association and Universality of Rights: 167 The Botswana Court of Appeal Decision in Attorney General v Rammoge and 19 Others Tashwill Esterhuizen and Brynne Guthrie The Ambit of Prohibited Grounds of Discrimination in Botswana’s 177 Employment Act Galesiti G. R. Baruti J The Right to Equality in Malawi: Recent Developments in Family Law 187 Kenyatta Nyirenda J Balancing National Security and Human Rights: International and 195 Domestic Standards Applying to Terrorism and Freedom of Speech Professor Jeremy Sarkin Anneke Meerkotter 1 Introduction Goal 16 of the Sustainable Development Goals (SDGs) seeks to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”.1 During 2016, the Southern Africa Litigation Centre, in conjunction with the National Association of Women Judges and Magistrates, the Malawi judiciary and the International Commission of Jurists, convened colloquia in Botswana, Malawi, Zambia and Zimbabwe to encourage discussion on the role of the judiciary in achieving Goal 16. This publication seeks to further broaden these discussions so that the achievement of Goal 16 moves from the conceptual to impactful initiatives. Target 16.3 of Goal 16 strives to promote the rule of law at national and international levels. The papers of Justice Masuku from the Namibia High Court, and Kaajal Ramjathan-Keogh and Angela Mudukuti from SALC reflect on the necessity of judicial independence to ensure the maintenance of rule of law. Target 16.3 further seeks to ensure equal access to justice for all. Several authors contribute to this discussion: Justice Sikwese from the Malawi High Court highlights the necessity to reform the composition of the bench itself and to develop mechanisms to address limitations to women’s access to the courts. Chipo Nkhata, Johnson Jasson and Annabel Raw deal with the barriers to access to courts faced by persons with disability. Brigadier Siachitema from SALC focuses on the challenges faced by rural women to access justice in a context of rampant land dispossession in Zambia. Annabel Raw from SALC looks specifically at the barriers faced by vulnerable groups in obtaining redress for healthcare discrimination. She makes the point that the issue of access to justice extends beyond the courts and includes a range of complaints mechanisms. A number of authors focus on the specific problems around access to criminal justice. Dr Elizabeth Macharia-Mokobi from the University of Botswana considers the arguments in favour and against the death penalty. Anderson Ngulube, Director of Legal Aid in Zambia and Justice Kamanga from the Malawi High Court look at the limitations in access to justice for accused persons in Zambia and Malawi respectively. Justice Ntaba and Justice Kalembera follow with a critical examination of the jurisdictional limits of magistrates’ courts in Malawi and the consequent limitations on access to justice, especially in rural areas. Finally, Chikondi Ngwira and Nyasha Chingore consider the imperative for courts to take into account the best interests 1 “Transforming our world: the 2030 Agenda for Sustainable Development” Resolution adopted by the General Assembly on 25 September 2015, A/RES/70/1. 2 • GOAL 16 OF THE SUSTAINABLE DEVELOPMENT GOALS of the child when sentencing care-givers in Malawi. Target 16.5 of Goal 16 aims to substantially reduce corruption and bribery. In this respect, Justice Mzikamanda from the Malawi Supreme Court of Appeal considers strategies to reduce corruption within the judiciary, whilst Caroline James from SALC evaluates the role played by the courts in discouraging corruption in State institutions. Target 16.9 of Goal 16 aims to provide a legal identity for everyone, including birth registration. Liesl Muller from Lawyers for Human Rights provides an overview of recent developments in the SADC region to end statelessness for children. Target 16.10 of Goal 16 seeks to ensure the public’s access to information. Mariya Badeva-Bright and Dr Oluwatoyin Badejogbin from AfricanLii explore the challenges in accessing law reports and legislation in Southern Africa and the imperative to improve such access in order to further the objectives under Goal 16. Mandala Mambulasa, a legal practitioner from Malawi,
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