"Fiat Justitia Ruat Caelum"

EACJ: Procedure to elect Tanzanian MPs in EALA was flawed

Arusha. 

The East African Court of Justice (EACJ) declared in Arusha in a landmark decision that rules were openly broken in Parliament during the election of the nine MPs in the regional legislative assembly.

The future of Tanzania MPs in the East Africa Legislative Assembly (Eala) was thrown into uncertainty yesterday following a court decision that found that the procedure to elect them was flawed.

The East African Court of Justice (EACJ) declared in Arusha in a landmark decision that rules were openly broken in Parliament during the election of the nine MPs in the regional legislative assembly.

The EACJ decision wraps up a case filed by a senior member of the main opposition party, Chadema. 

Mr Anthony Calist Komu challenged the omission of the party’s MPs in 2012. Chadema, which has a superior number of legislators in the House in relation to other opposition parties, could not manage even a single slot in the regional assembly.

The EACJ yesterday agreed with the party’s lawyers that the omission of the party’s candidates in the contest was in flagrant violation of Article 50 of the Treaty for the Establishment of the East African Community (EAC).

The move now accords Chadema the evidence and momentum to push for the nullification of the election of the MPs in another case opened at the High Court in Dodoma seeking their nullification. The EACJ has no powers to throw out the MPs.

According to the court, Tanzania’s Parliament not only failed to comply with the principle of proportional representation in picking the Eala lawmakers but also allowed candidates from political parties not represented in the National Assembly to contest the polls.

Mr Komu filed the case on June 15, 2012, having unsuccessfully sought election as a Tanzania representative in Eala in elections held on April 17, 2012.

The EAC Treaty requires the national assembly of each partner state to elect nine Eala members to represent “as much as it is feasible”, the various political parties represented in the specific national assembly and other special interest groups.

According to Chadema, had the proper formula been applied, Candidate Komu--as the sole candidate offered by the party, would have been elected to the regional House.

Instead, he argued, skewed rules ensured that he was not elected, paving the way for candidates offered by “smaller” parties such as Civic United Front and NCCR-Mageuzi to get into the Eala.

The election of Tanzanian Eala lawmakers, he added, was in violation of Article 50 of the EAC Treaty when the Tanzania  Democratic Alliance was allowed to field a candidate despite having no representation in the House.

According to Mr Komu, Chadema had 49 MPs in the National Assembly while the ruling CCM had 258 and CUF 36 members. He argued that their representation in the Eala ought to have been mathematically calculated at 14 per cent, 74 per cent and 10 per cent respectively.

In that order, Chadema and CUF would have each managed to squeeze one legislator into the regional House, with seven seats going to the ruling CCM. But this was not the case as the election saw an NCCR-Mageuzi candidate win. In a ruling that lasted nearly an hour, Principal EACJ Judge John Bosco Butasi said Chadema, being the official opposition political party and Mr Komu its sole nominee to Eala, were both entitled to automatic representation in that Assembly.

“The election rules must enable the establishment of an electoral process that ensures equal opportunity to become a candidate, full participation and competition for specified groupings and, at the end of the process, their effective representation in the Eala,” he said.

Also in question was the fielding of Mr Lifa Chipaka whose party Tadea, has no representation in the National Assembly. The Attorney General wanted the matter dismissed on the grounds that the matters Mr Komu made were “lighthearted, insignificant and contrary to the Rules of Procedure of the court and also lacking merit”..

interest group as opposed to other opposition political parties, according to the AG.

“Our findings are clear and we reiterate that Article 50 of the EAC Treaty provides a right for representatives of the official opposition party in Parliament to an automatic chance of representation,” the Judge said.

Source: The Citizen

High Court says it has no powers to define CA limits

Dar es Salaam. 

The High Court ruled yesterday that it has no mandate to determine the nature and extent of changes the Constituent Assembly may make to the draft constitution.

The ruling was delivered by a panel of three judges comprising justices Augustine Mwarija, Aloyce Mujuluzi and Fauz Twaib in a petition filed by journalist Saed Kubenea, who sought the court’s interpretation of the assembly’s power.

They said review of the draft was essentially a political rather than legal question.

The panel further said that the Assembly to improve or amend the draft constitution and the functions of the now-disbanded Constitutional Review Commission (CRC) were limited only by national values and ethos provided for in Section 9(2) of the Constitutional Review Act.

“The Court has no mandate to determine the nature and extent of the improvement or amendment that the Constituent Assembly may make to the draft constitution as that is essentially a political rather than a legal question as long as the said improvements do not contravene the provisions of Section 9(2) of the Act,” the panel ruled.

Mr Kubenea, through his advocate, Mr Peter Kibatala, wanted the court to give clarification on whether the assembly could strike out proposals contained in the Second Draft Constitution tabled by the CRC.

The petitioner sought interpretation of the provisions of Section 25 (1) and Section 25 (2) of the Constitutional Review Act on whether the assembly powers to alter the contents of the Second Draft Constitution as presented to it by the CRC and to what extent.

According to the ruling by the panel, there is an ambiguity and inconsistency in the English version of Section 25 (2) of the Constitutional Review Act, Cap 83 Revised Edition 2014.

Speaking after the ruling, Mr Kibatala said they were happy with the ruling.

He added, however, that the court did not explain the limits to which the assembly could amend the draft constitution outside the provision of Section 9(2) of the Constitutional Review Act.

For his part, Deputy Attorney General George Masaju said the court performed its duty interpreting provisions of the law as requested.

An almost similar matter filed by the Tanganyika Law Society (TLS) is pending in the High Court.

TLS is seeking interpretation of the legality of the Constituent Assembly in the wake of sharp divisions among members over the manner in which amendments to the second draft were being made.

Source: The Citizen

Scotland votes 'no' to independence in historic referendum

By Laura Smith-Spark, Euan McKirdy and Nic Robertson CNN.

Glasgow, Scotland (CNN)

 -- Scotland will remain part of the United Kingdom -- along with England, Wales and Northern Ireland -- following a historic referendum vote.

A majority of voters rejected the possibility of Scotland breaking away and becoming an independent nation.

UK Prime Minister David Cameron welcomed Scotland's decision in a televised statement outside 10 Downing Street, saying it was a clear result.

"Like millions of other people, I am delighted," he said.

Cameron said he would have been heartbroken to see the United Kingdom broken up -- but paid tribute to the efforts of both sides in the campaign.

"We hear you," he said to those who voted for independence, adding this was an opportunity to change the way people in the United Kingdom are governed, and "change it for the better."

His government has delivered on devolution in the past and will deliver on it again, Cameron said.
A "new and fair settlement" will be created for Scotland and the other countries of the United Kingdom, he said.

Scottish First Minister Alex Salmond admitted defeat in an earlier televised statement -- and urged the rest of Scotland to do the same.

He thanked Scotland "for 1.6 million votes for Scottish independence" and said the turnout -- which electoral officials said was 84.6% from an electorate of more than 4.2 million -- was one of the highest in the democratic world for any such vote.

The final result in the referendum was 1,617,989 votes in favor of independence from the United Kingdom to 2,001,926 against.

This means the pro-union camp won by a margin of just over 10%, with 55.25% of the vote to 44.65% -- a much wider gap than than opinion polls in the final days leading up to the vote had suggested.

The result means the main political parties in Westminster -- and many people across the United Kingdom and Scotland -- can breathe a collective sigh of relief that the threat of a breakup of a centuries-old union is over. However, many on the "Yes" side will be bitterly disappointed.

Source: CNN

Why wasn't Oscar Pistorius convicted of murder?

After a six-month trial, Oscar Pistorius is cleared of murder but convicted of culpable homicide.

Oscar Pistorius was today convicted of culpable homicide by Judge Thokozile Masipa after being cleared of murdering Reeva Steenkamp.

The prosecution accused Pistorius of premeditated murder, claiming he had deliberately shot his girlfriend Steenkamp after an argument on Valentine's Day last year.

However, Judge Masipa told the court that the state had failed to prove "beyond reasonable doubt" that Pistorius is guilty of premeditated murder. "There are just not enough facts to support such a finding," she said.

Masipa said the evidence the state offered on the charge was "purely circumstantial".

Based on the objective facts, such as phone records, she accepted the defence's timeline of events that the shots were fired at around 3.12am. This meant that some of the state witnesses who claimed they heard a woman screaming after the time Steenkamp was shot must have been "genuinely mistaken", she said.

The judge also said that the WhatsApp messages between Pistorius and Steenkamp did not "prove anything" and the evidence suggesting Steenkamp had eaten two hours before she died was "inconclusive".

Masipa then turned to the lesser charge of murder. She said there was "no doubt" that when Pistorius fired shots at the door he "acted unlawfully".

However, she said that the evidence does not support the state's case that this was "murder dolus eventualis", a legal term for when the perpetrator foresees the possibility of his action causing death and persists regardless.

Masipa accepted that Pistorius believed Steenkamp was in the bedroom, noting that this part of his account had remained consistent since the moments after the shooting. It is "highly improbable the accused would have made this up so quickly", she said.

She described Pistorius as a "very poor" and "evasive" witness, but said it did not mean he was necessarily guilty. "Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door – let alone the deceased – as he thought she was in the bedroom," she said.

Yesterday, some legal experts suggested that the state might be able to appeal the murder ruling. Masipa explained why Pistorius did not foresee that he would kill Steenkamp, but did not "explain convincingly" why she believed he did not foresee that he would have killed the perceived intruder, says Pierre De Vos, who teaches constitutional law at the University of Cape Town.

Writing in South Africa's Daily Maverick, De Vos says: "Given all the evidence presented in court about Pistorius's knowledge of guns and what the bullets he used would do to a person, it is unlikely in the extreme that Pistorius did not foresee that the person behind the door (who he might have thought was an intruder) would be killed." 

Today, Masipa offered a legal explanation as to why she could only convict Pistorius on culpable homicide rather than murder. A "reasonable" person with Pistorius's disabilities would have foreseen that shooting into the door may have killed the person inside, she said. However, South African law warns against automatically assuming that because a perpetrator "should have" foreseen the consequences of his actions that he actually did.

She pointed to JM Burchell's General Principles of Criminal Law, which states that "the courts have warned against any tendency to draw the inference of objective foresight too easily". Following previous cases, the courts have been told to "guard against proceeding too readily from 'ought to have foreseen' to 'must have foreseen'".

The onus was on the state to prove beyond reasonable doubt that Pistorius foresaw the fatal consequences of his actions when he shot at the door. Masipa said the prosecution failed to do so.

Read more: http://www.theweek.co.uk/world-news/oscar-pistorius/60378/why-wasnt-oscar-pistorius-convicted-of-murder#ixzz3D5xbo7wO









Pistorius acquitted of premeditated murder

"Judge Thokozile Masipa says Oscar Pistorius was not guilty of premeditated murder, but culpable homicide has not been ruled out as a verdict."

South African Judge Thokozile Masipa said on Thursday that the state had failed to prove that Oscar Pistorius was guilty of premeditated murder when he shot and killed his girlfriend Reeva Steenkamp last year.

“The accused therefore cannot be found guilty of murder dolus eventualis [legal intent] ... that however is not the end of the matter as culpable homicide is a competent verdict,” she said, as Pistorius sobbed.

“The state has not proved beyond reasonable doubt that the accused is guilty of premeditated murder. There are just not enough facts to support such a finding,” she said.

‘Poor witness’

Masipa found that Pistorius was a “very poor witness” and contradicted himself on the stand.

“During his evidence, he seemed composed and logical ... [but] under cross-examination, he lost his composure ...[and it seemed] the accused was suffering by enormous emotional stress and was traumatised by reliving the incident,” she said.

“The accused was, among other things, an evasive witness.”

Masipa noted that he failed to listen properly to questions, and that certain parts of his testimony did not make sense. She questioned why four shots were fired instead of one, and said Pistorius was “clearly not candid” with the court. Masipa said it was understandable that a person with a disability such as Pistorius’s would feel vulnerable when threatened by danger.

“This court is satisfied that at the relevant time, the accused could distinguish between right and wrong,” she said.

Claim rejected

The claim that Pistorius made, that he did not think he could kill someone was rejected by the judge, and she said: “This assertion is inconsistent with someone who shot without thinking,” she read from her judgment. “I shall revert to this later.” 

She was referring to Pistorius’s evidence that “he never thought he could kill someone in the toilet”, and that this only occurred to him after Steenkamp had died. She was summarising Pistorius’s evidence. She read extracts from what he had told the court: “He did not have time to think”, “he fired shots at the door but did not do so deliberately” and “he did not aim at the door but the firearm was pointed at the door”. 

Masipa said Pistorius had told the court he was not ready to discharge his gun. However, the safety catch on his gun was off. 

Pistorius (27), is accused of murdering Steenkamp in his Pretoria townhouse on Valentine’s Day last year. He shot her through the locked door of his toilet, apparently thinking she was an intruder about to emerge and attack him. She was hit in the hip, arm and head. 

Cricket bat

Masipa said earlier it was clear the sounds most of the witnesses heard were Pistorius using his cricket bat to break down his toilet door to get to a dying Steenkamp, and not the shots he fired. “It is clear from the rest of the evidence that these were actually the sound of the cricket bat against the door,” she said. 

Defence witness and Pistorius’s immediate neighbour Eontle Hillary Nhlengethwa said she was woken by a man screaming, but did not hear shots fired. Masipa said witnesses heard three loud bangs, which was from the cricket bat, and this was “consistent with the version” of Pistorius. 

She rejected evidence from Pistorius’s neighbour Estelle van der Merwe. The court could not link what she had heard in the early hours of February 14 last year to the events at Pistorius’s home. –

Key quotes from Judge Masipa

AP has compiled a selection of key quotes from the judge:

• On the state's case

"The state clearly has not proved beyond reasonable doubt that the accused is guilty of premeditated murder."
"Viewed in its totality, the evidence failed to establish that the accused had the requisite intention to kill the deceased, let alone with premeditation."
"The accused therefore cannot be found guilty of murder."

• On Pistorius's actions

"He took a conscious decision, he knew where he kept his firearm and he knew where his bathroom was. This is inconsistent with lack of criminal capacity."
"The intention to shoot however does not necessarily include the intention to kill."
"Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door."

• On Pistorius's own testimony

"The accused was a very poor witness."
"The accused was, amongst other things an evasive witness."
"He failed to listen properly to questions put to him under cross-examination, giving the impression that he was more worried by the impact his answers might cause rather than the questions asked."

• On testimony from neighbours

"Most witnesses had their facts wrong."
"I am of the view that they failed to separate what they knew personally or what they heard from other people or what they gathered from the media."

On the relevance of documented rows and expressions of love between Pistorius and Steenkamp:
"Neither the evidence of the loving relationship or a relationship turned sour can assist this court to determine whether the accused had the requisite intention to kill the deceased."

NB: The judge in the Oscar Pistorius trial rules out murder, but leaves it to Friday to announce whether the athlete is guilty of culpable homicide.

Source: Reuters, The Telegraph, BBC, Sapa

Gambia lawmakers pass bill punishing homosexual acts with life imprisonment

[JURIST] Gambia's National Assembly passed a bill on Monday that imposes life imprisonment for some homosexual acts. 

The bill amends the criminal code to bring life sentences for "aggravated homosexuality," which encompasses repeat offenders, those living with HIV/AIDS, and where a minor is involved. The bill will become law pending the signature of President Yahya Jammeh, who is one of Africa's most vocal anti-gay leaders.

The bill is similar to Uganda's Anti-Homosexuality Act which was struck down last month. One week later Ugandan Attorney General Peter Nyomb appealed the constitutional court ruling. Many see the anti-homosexuality acts as a reaction to major legislative reforms in support of same-sex marriage in the US and other Western nations. Last November a Ugandan religious leader bolstered the law when it was still a bill. In February of that year Ugandan MP David Bahati announced that clauses mandating the death penalty for "aggravated homosexuality" would be dropped from the controversial bill. In 2010 US President Barack Obama and then-Secretary of State Hillary Clinton joined the US Congress in denouncing the bill. Roughly two-thirds of African nations criminalize homosexuality, according to an Amnesty International report published earlier this year.

African rights court elect new top judge

ARUSHA, Tanzania 

Judge Augustino Ramadhani of Tanzania was elected on Monday as the new President of the African Court on Human and Peoples' Right (AfCHPR).

Ramadhani, former Tanzanian Chief Justice, win the votes of seven of the court's 11 serving judges.

He replaced Sophia Akuffo of Ghana who led the Court for the past two years.

Apart from stepping down as court President, Akuffo and two other judges have completed their service at AfCHPR.

They were replaced by Solomy Balungi Bossa from Uganda, Rafaa Ben Achour from Tunisia and Angelo Vasco Matusse from Mozambique.

The AfCHPR, jointly established by African countries in 2006, is mandated with guaranteeing human rights on the continent.

Each of the court's judges, who hail from 11 different African countries, serves a six-year term and can only be re-elected once.

The court's president and vice-president, meanwhile, are each elected to two-year terms. They, too, can only stand for reelection one time.

Source: http://www.aa.com.tr/en/news/385938--african-rights-court-elect-new-top-judge

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