DOCSLIB.ORG

Journal of the Commonwealth Lawyers' Association

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Journal of the Commonwealth Lawyers' Association THE COMMONWEALTH LAWYER Journal of the Commonwealth Lawyers’ Association December 2017 Vol 27, No 3 Mediation and the Rule of Law Sundaresh Menon Forum Competition in Religious Conversion Cases in Malaysia Arun Kasi Armed Drones and International Law Human Rights Institute, International Bar Association When to Recuse and When Not Austen Morgan CLA President with Chief Justice of Rwanda Brexit Bernardand Asylum McCloskey Law THE COMMONWEALTH Hon Life Presidents Colin Nicholls QC (England & Wales) LAWYER Dato’ Dr Cyrus Das (Malaysia) Soli Sorabjee (India) Journal of the Commonwealth Lawyers’ Association President R Santhanakrishnan (India) ISSN: 0265-8100 Vice President Brian Speers (Northern Ireland) Editor: Venkat lyer, Barrister-at-Law Honorary Treasurer Laurie Watt (England & Wales) Council Nene Amegatcher (Ghana) David Bekker (South Africa) David Greene (England and Wales) The Commonwealth Lawyers’ Association exists to Venkat Iyer (Northern Ireland – ex officio) Gordon Jackson QC (Scotland) maintain and promote the rule of law throughout the Fiona McLeod SC (Australia) Commonwealth by ensuring that the people of the Peter Maynard (Caribbean) Commonwealth are served by an independent and Saima Nambinga (Namibia) Vimbai Nyemba (Zimbabwe) efficient legal profession. Laurie Pawlitza (Canada) For more information about the CLA please visit the Steven Thiru (Malaysia) Association’s website at: Michael Todd QC (England and Wales) Alexander Ward, Past President (ex-officio) <www.commonwealthlawyers.com> Mark Woods (Australia) Executive Committee Katherine Eden Haig (CEO & Secretary General) Mia Essien Ron Heinrich Mohamed Husain Mickael Laurens The Commonwealth Lawyer is published thrice a year. Members of the Jamie Millar Tim Otty QC CLA receive it free of charge. Annual subscription for non-members (3 R Santhanakrishnan (President) issues) - £25. Subscription enquires must be addressed to the Secretary Peter Slinn General in London. Brian Speers (Vice President) Mark Stephens CBE Comments and contributions are welcome. These should be sent to the Alexander Ward Laurie Watt (Hon. Treasurer) Editor at the following address: The Commonwealth Lawyer Dr Venkat lyer Dr Venkat Iyer (Editor) School of Law Ulster University at Jordanstown CEO and Secretary General Katherine Eden Haig Newtownabbey, BT37 OQB, United Kingdom Phone: (44-28) 90368876 Commonwealth Lawyers Association Fax: (44-28) 90366847 88 Kingsway, London WC2B 6AA E-mail: [email protected] Phone: +44 20 7841 1075 E-mail: [email protected] THE COMMONWEALTH LAWYER Journal of the Commonwealth Lawyers’ Association December 2017 Message from the President 4 R Santhanakrishnan Editor’s Note 5 Venkat Iyer Articles Mediation and the Rule of Law 6 Sundaresh Menon Brexit and Asylum Law 13 Bernard McCloskey Forum Competition in Religious Conversion Cases in Malaysia 19 Arun Kasi Armed Drones and International Law 33 Human Rights Institute, International Bar Association When to Recuse and When Not 48 Austen Morgan Book Reviews 50 News and Announcements 55 [Cover photo: R. Santhanakrishnan, President of the CLA, with Sam Rugege, Chief Justice of Rwanda] Message from the President The Opening of the Legal Year in London at the beginning and lawyers representing law firms from across East Africa of the October 2017 was an opportunity to meet Bar Leaders who were meeting separately to discuss issues affecting them, from across various Commonwealth jurisdictions. The formal under the umbrella of EALS. This conference was another discussions and informal interactions centred around issues opportunity for a good interaction with the legal fraternity concerning the legal fraternity, including the topics like gender, from across the jurisdictions of East Africa. appointment of judges, independence of the judiciary etc. During the last week of November I attended the Meeting the President of Pan African Lawyers Union and the 20th Annual Conference of the Rwanda Bar Association. representatives of the Law Society of England and Wales during Inaugurating the conference, the Law Minister of Rwanda the event led to my visit to Commonwealth jurisdictions in traced the history of the Bar, post the 1994 genocide. The Bar East Africa later in October and subsequently in November. Leaders of yesteryears were felicitated for their contribution in shaping the profession. I had fruitful interactions with the Presidents of the Law Societies in Kenya and Uganda, as also the President of the There was formal acknowledgement of my presence Rwanda Bar Association and the CEO of the Tanganyika as President of the CLA at the beginning of both these Law Society. The rule of law is an issue of concern in these conferences. jurisdictions, inasmuch as the verdict of the Supreme Court of Kenya in regard to election to the post of President of What came out at the meeting with the Chief Justice of the country faced rough weather from the executive wing of Rwanda was an action-oriented programme that had been put the State. Earlier the CLA had issued a statement expressing in place for a campaign against corruption and an expression of its concern since such acts affects the independence of the happiness about the support for this from the Bar. Judiciary. I met the Chief Justice of Kenya during my visit and Lawyers in all the four jurisdictions of East Africa are expressed our support while reiterating the contents of our active not only in relation to the affairs of the legal profession statement. and independence of the judiciary, but they are also no less At a Nairobi hospital, the President of the Law Society of concerned with issues of rule of law. What I also got to see was Tanzania, Tinda Lissu (who is also a Member of Parliament), the proactive participation of a number of women lawyers. I was recovering from bullet injuries he received during an attack found lawyers espousing the regional aspirations of East Africa. on him when he reached home from Parliament one day. They also wanted the political class to play a proactive role. Along with the President of the Law Society of Kenya, I met There is, besides, a statutory flavour to the concept of the Mr Lissu at the hospital and expressed our anguish about the region called Africa, inasmuch as issues concerning human incident. Later on I spoke to the Press condemning such an act rights in the region are being dealt with by a Regional Court and about the squeezing of the democratic space in Tanzania. located at Arusha, Tanzania, where the headquarters of both East Africa Law Society & Pan African Lawyers Union are I visited Entebbe, Uganda, in middle of November to located. attend the Annual Conference of the East Africa Law Society. - R Santhanakrishnan “Future Proofing of the Legal Profession in East Africa” was the theme of the three-day conference. An interesting feature of the conference was to see young lawyers, women lawyers 4 © Commonwealth Lawyers’ Association and Contributors 2017 Editor’s Note The keener-eyed among readers will have noticed that this in particular on issues of compatibility with protected human journal is returning after a lengthy hiatus. This is because rights … and common law protections”. Whether this we had to, for pressing reasons, skip our last (April 2017) prediction will come to pass remains to be seen, but the article issue. I am sorry as well that the current issue is also making is a valuable contribution to a debate whose importance cannot a late appearance. It will be my endeavour to resume the be underestimated. journal’s normal production cycle soon. We appreciate the understanding and forbearance of our readers. By coincidence, this issue also features a brief but powerfully argued article which refers to a decision made by Mr Justice That said, there is much in this issue that I hope you will McCloskey, sitting as the senior judicial review judge, in the find interesting and instructive. We carry a thoughtful article High Court in Belfast. The decision concerned an application by the Chief Justice of Singapore, Sundaresh Menon, on the for recusal made under particularly contentious circumstances importance of mediation to the rule of law. Menon argues and which has generated strong views from diverse quarters. that access to justice (which mediation as a method of dispute Austen Morgan, a London-based practising barrister with close resolution promotes) is an aspect of the rule of law which links to Northern Ireland, looks at the circumstances under has not been given the attention it deserves. He believes that which a judge should recuse himself, and argues that decisions changing times call for a wider focus and he expresses the such as the one involving Mr Justice McCloskey should also hope that, “having regard to our evolving social, economic be looked at from a more important perspective, namely the and political circumstances, we might subject the conventional risk of politicisation of the judiciary which, in jurisdictions like theory of the Rule of Law, which places the adjudicative Ulster, is ever present. process in the centre of attention, to renewed scrutiny so that the centre-stage might also be shared by other non-adjudicative Moving away from domestic concerns, we carry an abridged processes.” His remarks are likely to have a deep resonance in version of a paper adopted recently by the International Bar many Commonwealth jurisdictions where access to justice for Association on the legality of armed drones as viewed through ordinary people remains a major challenge. an international law lens. This paper offers much food for thought on a subject which has polarised opinions in many We are also fortunate in getting a contribution on another countries and which will continue to be debated for a long topical issue, namely the implications of the United Kingdom’s time to come. proposed exit from the Europe (Brexit) on asylum law. This has become quite controversial, for reasons which are not Finally, as this issue was about to go to press, the Federal difficult to understand.
Load more

Recommended publications
  • The Appointment, Tenure and Removal of Judges Under Commonwealth
    The The Appointment, Tenure and Removal of Judges under Commonwealth Principles Appoin An independent, impartial and competent judiciary is essential to the rule tmen of law. This study considers the legal frameworks used to achieve this and examines trends in the 53 member states of the Commonwealth. It asks: t, Te ! who should appoint judges and by what process? nur The Appointment, Tenure ! what should be the duration of judicial tenure and how should judges’ remuneration be determined? e and and Removal of Judges ! what grounds justify the removal of a judge and who should carry out the necessary investigation and inquiries? Re mo under Commonwealth The study notes the increasing use of independent judicial appointment va commissions; the preference for permanent rather than fixed-term judicial l of Principles appointments; the fuller articulation of procedural safeguards necessary Judge to inquiries into judicial misconduct; and many other developments with implications for strengthening the rule of law. s A Compendium and Analysis under These findings form the basis for recommendations on best practice in giving effect to the Commonwealth Latimer House Principles (2003), the leading of Best Practice Commonwealth statement on the responsibilities and interactions of the three Co mmon main branches of government. we This research was commissioned by the Commonwealth Secretariat, and undertaken and alth produced independently by the Bingham Centre for the Rule of Law. The Centre is part of the British Institute of International and
    [Show full text]
  • Measuring the Integrity of Young People Political Participation: Psychometric Analysis of Media Literacy
    International Journal of Academic Research in Business and Social Sciences Vol. 10, No. 2, Feb, 2020, E-ISSN: 2222-6990 © 2020 HRMARS Measuring the Integrity of Young People Political Participation: Psychometric Analysis of Media Literacy Mohd Sufiean Hassan, Siti Nurshahidah Sah Allam, Abdul Mutalib Mohamed Azim, Maizatul Haizan Mahbob, Mohd Afendi Daud To Link this Article: http://dx.doi.org/10.6007/IJARBSS/v10-i2/6857 DOI:10.6007/IJARBSS/v10-i2/6857 Received: 11 January 2020, Revised: 22 January 2020, Accepted: 29 January 2020 Published Online: 08 February 2020 In-Text Citation: (Hassan et al., 2020) To Cite this Article: Hassan, M. S., Allam, S. N. S., Azim, A. M. M., Mahbob, M. H., & Daud, M. A. (2020). Measuring the Integrity of Young People Political Participation: Psychometric Analysis of Media Literacy. International Journal of Academic Research in Business and Social Sciences, 10(2), 12–33. Copyright: © 2020 The Author(s) Published by Human Resource Management Academic Research Society (www.hrmars.com) This article is published under the Creative Commons Attribution (CC BY 4.0) license. Anyone may reproduce, distribute, translate and create derivative works of this article (for both commercial and non-commercial purposes), subject to full attribution to the original publication and authors. The full terms of this license may be seen at: http://creativecommons.org/licences/by/4.0/legalcode Vol. 10, No. 2, 2020, Pg. 12 - 33 http://hrmars.com/index.php/pages/detail/IJARBSS JOURNAL HOMEPAGE Full Terms & Conditions of access and use can be found at http://hrmars.com/index.php/pages/detail/publication-ethics 12 International Journal of Academic Research in Business and Social Sciences Vol.
    [Show full text]
  • (Hanruh) on the Social Media Usage 馬來西亞政府在國防
    西 南 交 通 大 学 学 报 第 56 卷 第 2 期 Vol. 56 No. 2 JOURNAL OF SOUTHWEST JIAOTONG UNIVERSITY 2021 年 4 月 Apr. 2021 ISSN: 0258-2724 DOI：10.35741/ issn.0258-2724.56.2.47 Research article Social Sciences THE READINESS OF MALAYSIAN GOVERNMENT IN TOTAL DEFENSE (HANRUH) ON THE SOCIAL MEDIA USAGE 馬來西亞政府在國防（社交）使用中對國防的準備 Jessica Ong Hai Liaw *, Fadzil Ahmad, Nora Ibrahim, Ariffin Ismail, Noor Azmi Mohd Zainol Faculty of Defense Studies and Management, National Defense University of Malaysia 57000 Kuala Lumpur, Malaysia, jessicа@upnm.еdu.my Received: January 16, 2021 ▪ Review: February 26, 2021 ▪ Accepted: April 6, 2021 ▪ Published: April 30, 2021 This article is an open-access article distributed under the terms and conditions of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0) Abstract HANRUH is an idea of Total Defense implemented by Malaysia in which the National Security Committee presented it in May 1986 to plan solid obstruction procedures and all-encompassing. This article examines the usage of social media on the readiness of the Malaysian Government in Total Defense. The primary and secondary data were collected through the qualitative research methodology using the ethnography research design to get the study's data and information. The findings found that it is the issue of virtual life of today where it has been seen from a terrible perspective. However, in making sure of a ton of utilization of the electronic long-range casual correspondence life, it is undeniable that the Malaysian Armed Forces can essentially harm the use of online platforms today.
    [Show full text]
  • Toward a Rule of Law Culture: Practical Guide
    TOWARD A RULE OF LAW CULTURE Exploring Effective Responses to Justice and Security Challenges PRACTICAL GUIDE Leanne McKay TOWARD A RULE OF LAW CULTURE Exploring Effective Responses to Justice and Security Challenges PRACTICAL GUIDE Written by Leanne McKay and edited by Adewale Ajadi and Vivienne O’Connor With contributions by Adewale Ajadi, Diane de Gramont, Hamid Khan, Rachel Kleinfeld, George Lopez, Tom Parker, and Colette Rausch UNITED STATES INSTITUTE OF PEACE Washington, D.C. United States Institute of Peace 2301 Constitution Avenue, NW Washington, DC 20037 www.usip.org © 2015 by the Endowment of the United States Institute of Peace. All rights reserved. First published 2015 To request permission to photocopy or reprint materials for course use, contact the Copyright Clearance Center at www.copyright.com. For print, electronic media, and all other subsidiary rights e-mail [email protected] Printed in the United States of America The paper used in this publication meets the minimum requirements of American National Standards for Information Science—Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984. This guide is available in English, Arabic, and French at www.usip.org. The views expressed in this publication are those of the author alone. They do not necessarily reflect the views of the United States Institute of Peace. ii TOWARD A RULE OF LAW CULTURE A RULE OF LAW TOWARD Contents List of Figures .............................................................................................................................
    [Show full text]
  • Border Security Report
    BORDER SECURITY REPORT VOLUME 8 FOR THE World’s border prOTECTION, MANAGEMENT AND SECURITY INDUSTRY JANUARY/FEBRUARY 2018 POLICY-MAKERS AND PRACTITIONERS COVER STORY THE Body Cavity BOMBER SPECIAL REPORT AGENCY NEWS SHORT REPORT INDUSTRY NEWS Artificial Intelligence p.16 A global review of the The World’s Deadliest Latest news, views and latest news and challenges Border p.4 innovations from the from border agencies and industry. p.18 agencies at the border. p.10 2 COMMENT Brexit and the Irish Border As the United Kingdom and European Union finally reached spot the patterns and arrest the bad guys. what looks like a fudged agreement to move on to the next It will be difficult, expensive and will require a good deal of phase of the Brexit talks, Britain seems to have agreed that flexibility but overall, I’m optimistic that it can be made to work. there will be no hard border between the Republic of Ireland Who knows, if they get it right, it may become the blueprint for and (EU) and Northern Ireland (UK). The UK is proposing a border management. technological solution to the issue, which, in essence means some sort of digital self-declaration of goods passing between Tony Kingham Ireland and Northern Ireland. Editor Experts say that this will be very difficult to achieve without harmonization of customs controls and regulation i.e. N. Ireland (NI) stays in the Customs Union. But this is an anathema to Unionists in NI believing as they do that this will be a major step towards unification.
    [Show full text]
  • Decolonising Accidental Kenya Or How to Transition to a Gameb Society,The Anatomy of Kenya Inc: How the Colonial State Sustains
    Pandora Papers: The Kenyatta’s Secret Companies By Africa Uncensored Published by the good folks at The Elephant. The Elephant is a platform for engaging citizens to reflect, re-member and re-envision their society by interrogating the past, the present, to fashion a future. Follow us on Twitter. Pandora Papers: The Kenyatta’s Secret Companies By Africa Uncensored President Uhuru Kenyatta’s family, the political dynasty that has dominated Kenyan politics since independence, for many years secretly owned a web of offshore companies in Panama and the British Virgin Islands, according to a new leak of documents known as the Pandora Papers. The Kenyattas’ offshore secrets were discovered among almost 12 million documents, largely made up of administrative paperwork from the archives of 14 law firms and agencies that specialise in offshore company formations. Other world leaders found in the files include the King of Jordan, the prime minister of the Czech Republic Andrej Babiš and Gabon’s President Ali Bongo Ondimba. The documents were obtained by the International Consortium of Investigative Journalists and seen by more than 600 journalists, including reporters at Finance Uncovered and Africa Uncensored, as part of an investigation that took many months and spanned 117 countries. Though no reliable estimates of their net worth have been published, the Kenyattas are regularly reported to be one of the richest families in the country. The Kenyattas’ offshore secrets were discovered among almost 12 million documents, largely made up of administrative paperwork from the archives of 14 law firms and agencies that specialise in offshore company formations.
    [Show full text]
  • Develop the Court Practice Directions on Children Cases. 8
    Published by: National Council on the Administration of Justice (NCAJ) Supreme Court Building, City Hall Way, Nairobi P. O. Box 30041 – 00100, Nairobi Tel. +254 20 2221221 [email protected] www.judiciary.go.ke Copyright © 2019 by National Council on Administration of Justice (NCAJ) Report writers: Dr. Sheila P Wamahiu, Jaslika Consulting, Kieya Kamau (Advocate) and Roselyne Kabata (Advocate) Cover design by: John Muriuki, Directorate of Public Affairs and Communications, Judiciary Design and Layout: Davies Mbinji, Artful Eyes Productions Copyright in the volume as a whole is vested in the NCAJ. Permits free production of the extracts from any of its publication provided that due acknowledgment is given and a copy of the publication carrying the extracts is sent to the publisher’s offices. Disclaimer: This publication has been developed with financial support from the United Nations International Children’s Emergency Fund (UNICEF). The views expressed herein do not necessarily reflect the views or policies of UNICEF. Creating a Culture of Justice International Development Law Organization Status Report on Children in the Justice System in Kenya By: The National Council on the Administration of Justice (NCAJ) Special Task Force on Children Matters Status Report on Children in the Justice System in Kenya 3 About the NCAJ The National Council on the Administration of Justice (NCAJ) is established under Section 34 of the Judicial Service Act (No. 1 of 2011). It is a high-level policy making, implementation and oversight coordinating mechanism as reflected in its membership comprising State and Non-State Actors from the justice sector. Its mandate is to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system.
    [Show full text]
  • Human Rights, Separation of Powers and Devolution in the Kenyan Constitution, 2010: Comparison and Lessons for Eac Member States
    HUMAN RIGHTS, SEPARATION OF POWERS AND DEVOLUTION IN THE KENYAN CONSTITUTION, 2010: COMPARISON AND LESSONS FOR EAC MEMBER STATES ∗∗∗ By Prof. Christian Roschmann, Mr. Peter Wendoh & Mr. Steve Ogolla Abstract This paper is essentially a study of the new governance system in Kenya and an explanation why constitutional democracy holds the key to the promotion of human rights; entrenchment of the rule of law and the realisation of good governance. The paper suggests that the concept of constitutional democracy is not the same thing as constitutional government; accordingly, to achieve constitutional democracy, a government must be both constitutional and democratic. Further, this paper focuses on the structures, powers and organizing principles of the devolved governance and explores the challenges that lie ahead to ensure that constitutional democracy endures and is strengthened. The Constitution of Kenya, 2010 seeks to establish a society permeated by the spirit of liberty and democracy, the spirit of the laws and the habit of order. This paper proceeds from the assumption that although the constitutional models across the East Africa Community vary considerably, they share common themes that led to the demise of constitutional democracy, human rights violations and weaker institutions of government. The design and architecture of Kenya’s new constitution may, therefore, herald the beginning of the return of the East Africa Community to constitutional democracy. A. Introduction A historical inquiry of the foundations of Kenya’s political system, traceable to the colonial rule, underscores the very political basis of Kenya’s Constitution. Lord Delamere, a pioneer European farmer in Kenya believed the extension of European civilisation was desirable 1.
    [Show full text]
  • ICJ Kenya Memorandum
    MEMORANDUM TO THE JUDICIAL SERVICE COMMISSION ON THE RECRUITMENT OF THE CHIEF JUSTICE AND SUPREME COURT JUSTICE OF THE REPUBLIC OF KENYA March 2021 SUBMITTED BY: The Kenyan Section of the International Commission of Jurists ICJ Kenya House, Off Silanga Road, Karen P.O. Box 59743-00200, Nairobi, Kenya Office Tel: +254-20-2084836/8 | +254 720 491549 Email: [email protected] 1 Introduction The Kenyan Section of the International Commission of Jurists (ICJ Kenya) is a non-governmental, non- profit, non-partisan, and member-based organisation founded in 1959. ICJ Kenya is registered as a Society under the Societies Act, Chapter 108, Laws of Kenya, and has a membership drawn from the Bar and the Bench. ICJ Kenya promotes human rights, democratic governance, justice, and the rule of law in Africa. ICJ Kenya believes in and is guided by Inclusivity, Integrity, Commitment, and Professionalism ideals. In furthering our vision and mission, ICJ Kenya submits this memorandum to the Judicial Service Commission (JSC) on the Chief Justice and Supreme Court Justice of Kenya's recruitment process. Our views are premised on the principles and best practices of international and regional instruments on judges' appointment and selection.1 Whereas the First Schedule to the Judicial Service Act, 2011 has outlined the criteria for recruitment of the Chief Justice and Supreme Court Judge, this memorandum has highlighted the salient priority issues for JSC's consideration during the current recruitment process, which are informed by public consultations and dialogues forums. Background On October 19, 2016, retired Chief Justice Maraga was sworn in as the Republic of Kenya's fifteenth Chief Justice.
    [Show full text]
  • Critical Infrastructure Protection Special Issue the US, Russia and ‘The Great Game’
    Official Magazine of JANUARY / FEBRUARY 2018 www.worldsecurity-index.com FEATURE: FEATURE: FEATURE: Managing Resilience in CyberSecurity Predictions Protecting critical utility Critical Grid Situations - for 2018 - Threats via social infrastructure Success & Challenges media and Wireless networks PAGE 16 PAGE 4 will dominate next year PAGE 12 CRITICAL INFRASTRUCTURE PROTECTION SPECIAL ISSUE THE US, RUSSIA AND ‘THE GREAT GAME’ For those not familiar with it the term ‘The Great Game’ refers to the confrontation between the British and Russian Empires played out right through the 19th Century. Britain and Russia were not the only players but also drew in other players like Turkey, France and Iran (Persia as was). It involved diplomacy, espionage and war over a vast area of the globe, from the Bosphorus in the West to the Hindu Kush in the East. There was a war in the Crimea and two wars in Afghanistan. Now it might start to sound a bit more familiar. For the British, the driving factor back then was the defence of India, the jewel of the Empire. For the Russians it was the expansion of their Empire and influence south into the Caucasus, the Near East and Central and Southern Asia, and the need to secure a warm water port. Jump forward 100+ years and whilst the geographical focus of the game has shifted West to the Middle East and Central Asia, the game continues but with some important changes to the line-up of players. Whilst post-Soviet Russia is still a central antagonist, the USA has taken over the lead role for the Western powers with UK, France, Turkey and Iran still in the game, but with new players like Israel having taken the field.
    [Show full text]
  • Joint Statement on the Threats Against the Independence of Judges in Malawi
    AI Index: AFR 36/2519/2020 15 June 2020 JOINT STATEMENT ON THE THREATS AGAINST THE INDEPENDENCE OF JUDGES IN MALAWI We note with grave concern, the recent notice issued by the Chief Secretary to the Government of Malawi, announcing that the Chief Justice Hon Andrew K.C Nyirenda is with immediate effect going on leave pending his retirement. The statement reads as follows: “Government wishes to inform the general public that the Right Honourable Andrew K. C. Nyirenda, S.C., Chief Justice of Malawi, will proceed on leave pending retirement with immediate effect. The Honourable Chief Justice has accumulated more leave days than the remainder of his working days to retirement date. In accordance with the Constitution, the most senior Justice of Appeal will act as Chief Justice until such time as His Excellency the President will appoint a successor.” We understand that a similar communication has been issued in respect of another Judge of the Supreme Court-Justice Edward Twea. We note that Chief Justice Andrew Nyirenda’s tenure is meant to end in December 2021, while the tenure of Hon. Justice Edward Twea is meant to end in April 2021, when they reach the constitutionally stipulated retirement age. Whilst it is appropriate for a Chief Justice or any judicial officer to go on leave pending their retirement, the decision to do so must be made voluntarily by the concerned judicial officer in consultation with the Judicial Service commission. Furthermore, in light of the separation of powers doctrine, such a decision cannot be communicated by the executive on behalf of the judges or the judiciary.
    [Show full text]
  • Codifying Criminal Law in East Africa During the Interwar Period
    Stichproben. Wiener Zeitschrift für kritische Afrikastudien / Vienna Journal of African Studies No. 37/2019, Vol. 19, 93‐113. Doi: 10.25365/phaidra.251 Codifying Criminal Law in East Africa during the Interwar Period Paul Swanepoel Abstract By the time the East Africa Protectorate was proclaimed in 1895, Indian penal and criminal procedure codes had been in effect in the region for nearly 30 years, having first been introduced in Zanzibar. The codes had developed as a result of the difficulties faced by administrative officers in India of applying uncodified English law. Jurists responded by drafting codes that were more suited to local conditions. They were applied throughout East Africa until 1930 when the Colonial Office introduced new codes based on the Queensland Code of 1899. These became the basis of enactments applied in colonies throughout the Empire, such as The Gambia, Cyprus and Fiji. Based on primary sources housed in the Kenya National Archives, the article explores the wider implications of these streams of criminal codification as well as their impact on the administration of criminal justice in East Africa. The competing codes provide a clear example of the transfer of legal knowledge around the Empire, and the dominant position of the global over the local. In addition, the story of the replacement of the Indian codes provides an example of jurisdictional manoeuvering by competing authorities, which was a central characteristic of the colonial world. Introduction Codification – the process of collecting and arranging laws into a code – was a central feature of the British Empire. Although the famous English jurist Jeremy Bentham coined the term “codification”, its prospects proved far better in the colonies than in Britain.
    [Show full text]