Author: Rodger Owiso
LLB – Nairobi, PGD Law – KSL
If the drama that was Hakainde Hichilema v Edgar Chagwa Lungu (2016/CC/0031) has any lessons for the continent, it is how not to adjudicate upon a presidential election petition. Three judges of the court effectively succeeded in making an unfortunate mockery of their bench and risking the otherwise good image Zambia’s electoral process has enjoyed for a few decades now. We should, however, not be too quick to cast aspersions on the court and the learned judges. In order to understand what transpired in the Constitutional Court of Zambia, we have to look at the relevant legal provisions guiding presidential election petitions.
On July 13, 2016, the Constitutional Court of Zimbabwe (ConCourt) found that life imprisonment without the possibility of parole was unconstitutional as it violated the rights to equal protection and human dignity and the prohibition on cruel and degrading punishment. The decision, Makoni v. Commissioner of Prisons, is undoubtedly a victory for human rights, due to the dismal state of prison conditions in Zimbabwe and the emotional and psychological harm caused by indeterminate sentences. In its decision, the ConCourt cited a wide range of jurisprudence from foreign and international courts, including the European Court of Human Rights, South African Constitutional Court, Supreme Court of Namibia, and the Judicial Committee of the Privy Council in London to discern a global trend toward rehabilitative criminal sentences. Many of these foreign and international legal sources were brought to the ConCourt’s attention by transnational human rights lawyers themselves in their Heads of Argument, underscoring the important role that advocates play in the diffusion of international human rights norms.
Author: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)
Leopold Sedar Senghor said: emotion is African. This emotion has been channeled to constitutions. Happiness is a core value in many African constitutions. It was explicitly mentioned in Liberia, Namibia, Ghana, Nigeria, Swaziland, and Egypt.
Article 1 of the Constitution of Liberia, 1986, proclaims that all free governments are instituted by the people’s authority, for their benefit, and they have the right to alter and reform it when their safety and ‘happiness’ require it. The preamble of the Egyptian Constitution, 2014, cites ‘a place of common happiness for its people’. The Namibian Constitution, 1990, assures the right ‘to the pursuit of happiness’. In this regard, Frederick Fourie defends the preamble of the Namibian Constitution, explaining that it is coloured by the struggle against colonialism and racism; that it is built around the denial of the ‘right of the individual life, liberty and the pursuit of happiness’ by colonialism, racism and apartheid.