Statement on the failure by the authorities to fulfil court orders in Kenya

The Commonwealth Legal Education Association (CLEA), the Commonwealth Lawyers Association (CLA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) are concerned that in recent days Kenyan Government agencies have ignored a number of court orders so that the Chief Justice has been obliged to issue a public condemnation of such non-compliance.

A democratic State based on the rule of law cannot exist or function, if the government and other state authorities ignore their constitutional obligations and fail to abide by court orders. A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State, or a State official does not abide by Court orders the democratic edifice will be gravely undermined.

By virtue of its membership, Kenya is committed to the shared fundamental values and principles of the Commonwealth, at the core of which are the belief in, and adherence to, democratic principles including respect for the authority of an independent and impartial judiciary. Any measure on the part of the state authorities which is seen as eroding the authority and independence of the judiciary, is a matter of serious concern.

The Commonwealth (Latimer House) Principles on the Accountability of and the Relationship between the Three Branches of Government (2003) state: ‘Judges are accountable to the Constitution and to the law which they must apply honestly, independently and with integrity”……..’Best democratic principles require that the actions of governments are open to scrutiny by the courts, to ensure that decisions taken comply with the Constitution.’

We would urge Kenya state institutions to respect the authority of the judiciary and execute the court orders as they are legally bound by the Kenyan constitution and by Kenya’s international obligations.

14 February 2018

Commonwealth Lawyers Association (CLA)
Commonwealth Legal Education Association (CLEA)
Commonwealth Magistrates’ and Judges’ Association (CMJA)

Download a PDF version of the Statement on Kenya

NOTE TO EDITORS:
The Commonwealth Lawyers Association is an international non-profit organisation which exists to promote and maintain the rule of law throughout the Commonwealth by ensuring that an independent and efficient legal profession, with the highest standards of ethics and integrity, serves the people of the Commonwealth. www.commonwealthlawyers.com

The Commonwealth Legal Education Association is an international non-profit organisation which fosters and promotes high standards of legal education in the Commonwealth. Founded in 1971, it is a Commonwealth-wide body with regional
Chapters and Committees in South Asia, Southern Africa, West Africa, the Caribbean and the UK. www.clea-web.com

The Commonwealth Magistrates’ and Judges’ Association is a not for profit organisation, registered in the UK, whose aims are to promote judicial independence, advance education in the law, the administration of justice the treatment of offenders and the prevention of crime in the Commonwealth. It brings together judicial officers of all ranks from all parts
of Commonwealth and provides a forum for the promotion of the highest judicial standards at all levels. www.cmja.org

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2019 Conference

The CLEA’s next conference will be in 2019 and typically takes place around the same time as the Commonwealth Law Conference to facilitate the Commonwealth Moot Competition.  Following the recent press release of the Commonwealth Lawyer’s Association, whose conference will take place in Livingstone, Zambia 14-18 April 2019, the CLEA intend to host their legal education conference at or around the same time.

Updates on the CLEA’s conference will be on our conference website.

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New Journal Edition

A new edition of the Journal of Commonwealth Law and Legal Education has been published and available from our website.

It is an online, open access, peer-reviewed journal published in collaboration with the Open University School of Law and is the official journal of the Association.

Contents from this edition include:

Articles
A Tap into the Relationship Between Law and Economics in Resolving the Problems Associated with Cattle Grazing in Nigeria
Corruption and the Misuse of Public Office in the Commonwealth. The Preventative Role of Law Teachers in Nigeria and South Africa
Defining Legal Studies in Canada
Galvanising the Wholescale Adoption of Clinical Legal Education by Establishing Law Clinics in Nigerian Universities Law Faculties
Reflections on Practice and Recent Research to Enable Future Practitioners to Learn About Working Collaboratively Across Disciplines to Better Help the Community
Towards Effective Legal Writing in Nigeria

Opinion Pieces
Parliamentary Cannabalism
The Mass of Law

Tribute
Professor Gary Slapper A Tribute

Book reviews
Legal Education at the Crossroads
Positivity and Practicality. Developing the Debate on Well-Being in Law

Previous editions can be accessed from the CLEA website.

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Statement on the Threats Issued Against the Kenyan Judiciary following the Decision of the Supreme Court to annul the Presidential elections

The Commonwealth Legal Education Association (CLEA), the Commonwealth Lawyers Association (CLA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) are extremely concerned by reports attributed in the media to His Excellency President Uhuru Kenyatta and senior members of his party in relation to the Judiciary following the decision of the Supreme Court to annul the Presidential elections on 1 September 2017.

By virtue of its membership of the Commonwealth, Kenya is committed to the shared fundamental values and principles of the Commonwealth, at the core of which is a shared belief in, and adherence to, democratic principles including respect for the authority of an independent and impartial judiciary and “the individual’s inalienable right to participate by means of free and democratic political processes in framing the society in which he or she lives” (Harare Declaration 1991).

The Commonwealth (Latimer House) Principles on the Accountability of and the Relationship between the Three Branches of Government (2003) state: “Each Commonwealth Country’s Parliaments, Executives and Judiciaries are the guarantors of their respective spheres of the rule of law, the protection of fundamental human rights and the entrenchment of good governance based on the highest standards of honesty,
probity and accountability…Judges are accountable to the Constitution and to the law which they must apply honestly, independently and with integrity.” The Commonwealth Charter reaffirms both the political rights and a citizen’s rights to an independent judiciary.

The principles of judicial accountability and independence underpin public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible government relies. Any public threats or measures taken against the judiciary or individual judges which erode the authority and independence of the judiciary, are a matter of extremely grave concern.

The CLA, the CLEA and the CMJA urge all those involved in leadership roles to respect the independence of the judiciary in accordance with the Constitution of Kenya and by Kenya’s obligations as a member of the Commonwealth and to desist from undermining the authority of the judiciary and the courts whose decisions are binding on all persons and organs of the state.

Download a PDF of the Statement

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Statement on the Threats Issued Against the Kenyan Judiciary in relation to electoral dispute resolutions

The Commonwealth Legal Education Association (CLEA), the Commonwealth Lawyers Association (CLA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) are deeply concerned by reports attributed in the media to His Excellency President Uhuru Kenyatta and senior members of his party in relation to the Judiciary during the campaigning for the elections in Kenya.

By virtue of its membership of the Commonwealth, Kenya is committed to the shared fundamental values and principles of the Commonwealth, at the core of which is a shared belief in, and adherence to, democratic principles including respect for the authority of an independent and impartial judiciary and “the individual’s inalienable right to participate by means of free and democratic political processes in framing the society in which he or she lives”. Any measure on the part of the Executive which is capable of being seen as eroding the authority and independence of the judiciary, is a matter of serious concern.
The Commonwealth (Latimer House) Principles on the Accountability of and the Relationship between the Three Branches of Government (2003) state: “Judges are accountable to the Constitution and to the law which they must apply honestly, independently and with integrity…. Interaction, if any, between the Executive and the Judiciary, should not compromise judicial independence.” The Commonwealth Charter
reaffirms both the political rights and a citizen’s rights to an independent judiciary.

The principles of judicial accountability and independence underpin public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible government relies.

The CLA, the CLEA and the CMJA urge all those involved in leadership roles in upcoming elections in Kenya to respect the independence of the judiciary as guaranteed by Article 160 of the Constitution of Kenya and by Kenya’s obligations as a member of the Commonwealth and to desist from undermining the authority of the judiciary and the courts whose decisions are binding on all persons and organs of the state.

Download a PDF version of the Statement

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Statement on the Arrest and Detention of Lawyers and Judges in The Cameroon

The Commonwealth Lawyers Association (CLA), Commonwealth Legal Education Association (CLEA) and Commonwealth Magistrates’ and Judges’ Association (CMJA) are concerned about the recent arrest and detention of judges and lawyers in the North West and South West Cameroon under the Anti-Terrorism Act of 2015.

Where members of the judiciary and the legal profession are accused of criminal conduct the State is entitled to charge them with the relevant crimes, but the manner in which they are charged and arrested must be consistent with the rule of law and the constitutional safeguards that are afforded to everyone in the country concerned. The judiciary and legal profession, like other members of society, may not be subjected to violations of their fundamental human rights no matter what the charges are against them.

By virtue of its membership of the Commonwealth, the Cameroon is committed to the fundamental values and principles of the Commonwealth, at the core of which is a shared belief in, and adherence to, human rights and democratic principles including an independent and impartial judiciary and the independence of the legal profession.
Any measure on the part of the Executive which is capable of being seen as eroding the independence and impartiality of the judiciary, or the fundamental rights that they are entitled to as citizens or residents of the Cameroon is a matter of serious concern.

The existence of an independent and impartial judiciary and an independent legal profession is one of the cardinal features of any country governed by the rule of law and enhances economic development.

The CLA, CLEA and CMJA in particular note with concern, the arrest and detention of Justice Paul Ayah Abine who was arrested in violation of article 629 of the Code of Criminal Procedure which states that “Where a judicial or legal officer is likely to be charged with committing an offence the competent Procureur General shall request the President of the Supreme Court to appoint an investigating magistrate as well as three other magistrates of a grade at least equal to that of the magistrate incriminated and they shall hear and determine the matter at first instance…“. The CMJA calls upon the President to respect due process in relation to the judicial and legal officers that have been arrested.

The CLA, CLEA and CMJA call on the authorities to respect the independence of the legal profession and the judiciary and their right to exercise freedom of opinion and conscience.
The CLA, CLEA and CMJA express its support of members of the judiciary and the legal profession in the Cameroon in their efforts to maintain their independence and to promote democracy and the rule of law.

Download a PDF version of the  Statement

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CLEA President makes two interactive presentations at a Clinical Legal Education Conference for 11 African Commonwealth countries in Zimbabwe

zimbabwe-conferenceProfessor David McQuoid-Mason, President of CLEA, gave two interactive presentations at a Clinical Legal Education Conference for 11 African countries in Harare, Zimbabwe on 4 August 2016. McQuoid-Mason was invited to present the Keynote address to delegates from Namibia, Malawi, Zambia, Mozambique, Lesotho, Swaziland, Botswana, Kenya, Tanzania, Zimbabwe and South Africa at the Conference which was hosted by the Midlands State University in Zimbabwe. The other presenter at the Conference was Advocate Asha Ramgobin, a former Director of the UKZN Campus Clinic, and now Executive Director of the Human Rights Development Initiative in Pretoria.

McQuoid-Mason’s first interactive presentation was a Keynote dealing with ‘Establishing and managing law clinics’, during which he dealt with the different types of clinics; overcoming resistance to the establishment of law clinics; the skills, knowledge and experience required of law clinic staff; recruiting students for the clinic; obtaining credit for student work in the clinic; management of the clinic; and how law students, law staff,  the universities, clients and potential employers all benefit from a university law clinic and clinical legal education programme.

During the course of his presentation McQuoid-Mason used what he calls ‘The Violinist-technique’ he based on the award-winning movie in which the Director presents the cinema-viewers with a blank screen so that they can ponder what might happen before showing them the next scene.  In his presentation McQuoid-Mason exposed the delegates to a blank PowerPoint screen with just the topic heading, and invited them to reflect on their experiences of the topic in their own countries, before giving them his experience which was largely based on his founding of the UKZN law clinic. It was interesting to discover that even though the UKZN law clinic was established in 1973, many of the challenges experienced then were still relevant to the present experiences of most of the delegates from the countries outside of South Africa.

McQuoid-Mason’s second presentation was on ‘Community engagement through Street law’. This presentation included a definition of Street law; the objectives of Street law; the historical background to Street law; the teaching methods used in Street law; the teaching materials used in Street law; the types of work done by Street law students; how Street law can be integrated into the law curriculum; the community service component of Street law; Street law and social justice; and Street law beyond South Africa. Once again McQuoid-Mason used his ‘The Violinist-technique’ which evoked a lively discussion from the delegates and many of them indicated that they would like to introduce such programmes in their countries.

 

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Statement on the impeachment of Justices Dingake, Letsididi, Garakwe and Busang of the High Court of Botswana

Recalling that at its General Assembly on 19 September 2015, the Commonwealth Magistrates’ and Judges’ Association (CMJA) expressed its concern about the processes put in place to impeach the Justices of the High Court mentioned above.

Recalling the CMJA Statement issued on 3 October 2015 in relation to the suspension of Justices Dingake, Letsididi, Garakwe and Busang and the concerns expressed therein,

Recalling the provisions of the Commonwealth (Latimer House) Principles on the Accountability of and the Relationship between the Three Branches of Government (2003) which state that ‘Disciplinary proceedings which might lead to the removal of a judicial officer should include appropriate safeguards to ensure fairness”.

Whilst not wishing to comment on current court cases which will run their normal course, the CMJA is concerned that the authorities in Botswana seem to be treating some judges more favourably than others and this gives the impression that there is a lack of equality before the law.

Any measure which is capable of being seen as eroding the independence and impartiality of the judiciary, or the fundamental rights to which all citizens of Botswana are entitled to, is a matter of serious concern and could undermine the international standing of the Botswana judiciary.

We therefore call upon the Botswana authorities to ensure that all processes followed are dealt with in a just and equitable manner to resolve the issues quickly to safeguard the good reputation of the Botswana judiciary for independence and impartiality.

Download a PDF version of the Statement

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Scotland welcomed in London as new Commonwealth Secretary-General

On the 4th April 2016, in London, Rt Hon Patricia Scotland QC began her first day in office as Secretary-General of the Commonwealth of Nations. Nominated for the post by Dominica, she is the first woman to hold the post.

To the rhythm of a steel band, the sound of a gospel choir, and the flair of Quadrille dancers, hundreds of guests welcomed the new Secretary-General at Commonwealth headquarters in Marlborough House. They included well-known figures from the world of politics, sports and broadcasting. The event was hosted by Garth Crooks, the former English footballer, and included performances by singer Heather Small of M People, tenor Franz Hepburn and actor Hugh Quarshie.

“I am determined that we are going to work together on tackling violence against women and girls, deal with the existential threat of climate change, promote trade and good governance, champion the health, well-being and human rights of our citizens, and ensure young people have the opportunities they need for the future,” said the Secretary-General in her first official address in London.

Arriving straight from a visit to the Caribbean, she was escorted into Commonwealth Headquarters by the Caribbean High Commissioners and introduced by Dominica’s acting High Commissioner to the UK, Janet Charles.  The new Secretary-General shared her vision for the Commonwealth, stating “Working and acting as one people – one family – we can make a different future”.

In her speech, she described herself as “a classic child of the Commonwealth” – born in the Caribbean and brought up in London. She highlighted her journey of “firsts” – from the first black woman to join the Queen’s Counsel in the United Kingdom, the first woman to hold the position of UK Attorney General and the first woman Commonwealth Secretary-General. She said she had been “rather sad” at being first and looked forward to supporting new generations of female leaders.

She highlighted tackling domestic violence as one of her top priorities, a problem, she said, that is “literally stealing our futures”. She underscored that allowing women to be abused and disregarded would continue to hamper the health and wellbeing of societies.

Born in the small village of St Joseph in Dominica, she said she knew only too well about the threat of climate change. She urged members of the Commonwealth to work together and make good on commitments agreed at the global Paris Climate Conference last December. “We can show the world about building resilience and finding innovative solutions.”

Boosting Commonwealth trade and creating better opportunities for young people, who make up 60% of the Commonwealth population, she commented, would also be at the top of her agenda.

“I am confident that we can change things for the better. I want the Commonwealth to be a voice for everyone who shares our common values and hopes,” she concluded.

Read the speech in full.

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Book Review: Sivakumar & Lukose

Sivakumar book_Page_1Prof. S Sivakumar and Dr. Lisa P. Lukose’s s work ; Broadcasting Reproduction Right in India: Copyright and Neighbouring Right Issues, is a ground breaking effort in legal literature on a subject of great importance in the contemporary world, but little written about in South Asia.

Sports and performing arts take up substantial amount of broadcasting and TV time, attracting much commercial advertising, which in turn, generates an enormous amount of revenue for the media industry. Hence, the competition among these broadcasters to outdo the rivals and include these events in their programmes is very high. Consequently, allegations of the infringement of intellectual property rights, exercising monopoly rights, issues relating to public right to information and legal disputes often emerge, involving knotty constitutional, statutory and international treaty issues. The problems have got confounded due to numerous regulations, obsolete colonial era legislation still in force, extensive borrowings from the British Copyright Act of 1956, the monopoly rights enjoyed by the state owned broadcasters and India’s obligations under international treaties related to intellectual property rights. The authors have ventured out to make an exposition of this difficult and complex area of Indian law for the benefit of practitioners, academics and media personnel..

The authors commence their exposition with a brief introduction to the nature and scope of Intellectual Property. It would prove to be a very useful guide for those not familiar with this area in law. The reader gets a basic knowledge of the characteristic features of Intellectual Property, Copyrights, Patents, Trademarks, Industrial Designs, Geographical Indications, Integrated Circuits, Confidential/Undisclosed Information and Plant Varieties. Within the space of a few pages, the authors cover the main areas of intellectual property, with an account that is generally applicable to any jurisdiction in the world.

In the proceeding chapters, an in-depth study has been made of Copyright law and Neighbouring rights in India. Emphasis has been placed on the salient features of the Copyright Amendment Act of 2012. Chapters V and VI are devoted to Broadcasting and Reproduction Rights, the main focus of this book. The authors are here engaged in an incisive discussion, based on constitutional provisions, statutory law, international treaty provisions and judicial decisions. It has been   highlighted that the monopoly of media institutions, whether by state or private institutions, is detrimental to the rights of the citizens’ free speech, as guaranteed by the Constitution. The authors have cited the case of the state owned broadcaster, Doordharshan, using their clout with the government to enact a special piece of legislation compelling private channels, that had purchased rights to broadcast live cricket matches, to share live feeds with them.

The book is written in plain and lucid language, making it comprehensible to layman and legal practitioner alike. It carries a Foreword by the Chief Justice of India, honourable Altamas Kabir, who, in no uncertain words, expresses his appreciation of this phenomenal research carried out by the authors, and presents the book as a ‘milestone’ among the publications of the Indian Law Institute.

The book contains an appendix of relevant documents such as The Copyright Act 1957, Sports Boadcasting Signals (Mandatory Sharing with Prasar Bharati) Act 2007, The Cable Television Networks (Regulation) Act 1995, and International Treaties, which is an extremely useful source for any researcher who wishes to carry out further studies in this field.

The book is priced at US $15, and is available at the Indian Law Institute, New Delhi, 110 001, India.

Dr. H J F Silva
Vice President CLEA

 

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