In the past year, courts all over the world made judgments in cases that will have far-reaching consequences for countries.
In some cases, the monumental decisions will have effects beyond national borders, and will turn hitherto established social structures on their heads.
In Kenya, a magistrate’s court made a decision that may turn the essence of customary law marriages in a direction that many have never thought it would ever take.
The issue of payment of dowry or gifts as marriage settlement to the bride’s family by a man as a condition for marriage has been contentious in Kenya since a judge referred to it in 1917 as “wife purchase” rather than a marriage.
While the apologists for African customary law argue that the money, livestock and other property presented to the bride’s family is never a purchase but a mere token of appreciation to the bride’s family by the suitor, this case belies that claim.
A father-in-law sued a man for unpaid dowry. He sought 10 heads of cattle, two goats, Sh10,000 and two blankets from his son-in-law.
The court considered this as a debt and ordered that the man should pay the unpaid dowry.
This means that dowry can be a debt enforceable by court action. The overall impact here is that time may have run out for all men who owe their fathers-in-law. They will meet in court.
For me, the most monumental decision of the year was the case that struck a blow against misogyny in India and possibly worldwide.
In September, the Supreme Court of India struck down a ban that prevented females aged between 10 and 50 years from entering the Sabarimala Temple in the State of Kerala.
The reason for this ban was that the temple is dedicated to a Hindu deity considered to be an eternal celibate.
In striking down this ban, the judges held that the religious devotion cannot be subjected to gender discrimination.
The judges added that the use of a discriminatory principle of this kind was a denial of women of their right to worship and permitting such discrimination to continue would be to blink at the right to equal treatment irrespective of gender.
Interestingly, the only female judge in the Indian Supreme Court dissented!
Justice Indu Malhotra said it was not for the courts to determine which religious practices were permissible in a democracy.
She added that issues of deep religious connotation ought not to be tinkered with to force secularity in a country.
At the time of this writing, the issue remained contentious and there was a standoff at the temple by women’s endeavour to enter it and those opposed to their doing so.
There is a request for review of the decision which the Supreme Court will hear on January 22, 2019.
Misogyny was on the back foot in most courts around the world.
In Argentina, a court ordered a chauvinistic radio presenter to invite women to his radio shows and allow them to advocate their feminist views uninterrupted for at least 10 minutes in each show for the rest of the year.
Angel Etchecopar was charged with offensive attacks on feminists and for referring to them abusively during his radio show.
The charges against the presenter were suspended on the condition that he would change his attitude and would allow the feminists time on his show and refrain from their public criticism for a year.
There is an obvious lesson in these cases for Kenya, the failure by our Parliament to pass the laws to enforce the two-third gender rule will catch up with us when a court makes a similar order to the Speakers of the houses of parliament to admit such numbers of women as would achieve the constitutional balance until the law is passed.
And in the United Kingdom, a woman got away with what could normally be termed egregious fraud.
A man sued a provider of In-Vitro Fertilisation services seeking compensation for the cost of maintenance of a child who had been conceived by his former partner after they had separated.
The court was told that the man’s former partner had forged the man’s signature after they separated and presented it to the clinic for the purposes of having a previously frozen egg which had been fertilised by the man before separation.
The egg was implanted and the child was born without the man’s knowledge.
After birth of the child, the man was called upon to provide maintenance for his child.
The man’s claim was that the clinic was in breach of contract by failing to get his consent for the procedure.
The court in which the case was first heard concluded that although there was breach and the man’s partner had acted fraudulently, it would be against public policy to compensate a man for maintenance costs of his own child.
On appeal, the Court of Appeal affirmed the public policy rule that a parent should take responsibility for the upbringing of his child whatever the circumstances of the conception of that child.
This was in my view a reasonable decision but will give couples who decide to freeze fertilised eggs to think long and hard about the consequences of their action in the event of separation.
The case that takes the cake for 2018 is the Masterpiece Cakeshop.
In 2012, a same-sex couple went to the cake shop in Colorado, US, to make a cake for their wedding.
The owner of the shop refused to make a cake for them citing his religious objection to homosexuality and gay marriage.
He said by baking the cake for the same-sex couple, he would be condoning homosexuality, contrary to his rights of religious conscience and free speech.
The couple filed a suit against the shop in reliance upon a law in the State of Colorado, which prohibited discrimination by public service establishments on sexual orientation.
The Colorado Civil Rights Commission upheld the view of the couple and the shop appealed at the Supreme Court.
In June 2018, the US Supreme Court ruled in favour of the shop and stated that the commission had acted in a biased manner by ignoring the legitimate religious beliefs of the shop owner.
In November 2018, the High Court of South Africa also made a decision worthy of mention here on the rights of communities affected by environmental concerns in relation to development projects.
A community in Pondoland filed a suit against the Government of South Africa for giving rights to a company to mine titanium without the involvement of the locals.
The court was told that the project would be good for the nation generally as it was expected to generate well over US$3 billion over the 25-year-life of the mine.
The mine would have produced zircon, titanium and rutile – which are used for a lot of electronic equipment – among other industrial products.
The community’s complaint was that clearance of the dunes for the mining operations would destroy the culture, homes and the ecology of the Wild Coast region.
The court ordered the government to get prior community consent before granting mining rights in their respective localities, in spite of the economic windfall expected from the mining operations.
Earlier last year, the High Court of Kenya made a similar decision in the finding that the government’s decision to establish a Port in Lamu and further infrastructure projects under Lapsset be revised to include a clear programme for consultation with the fishermen and communities whose cultural rights and livelihoods could be affected.
The Aardhar case in India must be mentioned as a learning for Kenya’s executives taken up by techno-trance, that is, the obsession with technology and IT projects and equipment for the sake of it.
Aadhaar, a Hindi word meaning “foundation”, was to create an identification mechanism that would be difficult to forge and reduce fraudulent claims for government welfare programmes.
It involved the scanning of the fingerprints, irises and faces of every Indian and then using those unique biometric attributes to check identity when someone picked up subsidised rice or joined a government work programme.
It was originally intended to be compulsory for persons receiving government food programmes.
However, businesses and government of India soon saw other opportunities and uses for this system.
Laws and regulations were passed to require the digital identification registration for purposes like verifying the identity of students sitting exams.
Civil rights objectors challenged this compulsion as an infringement to privacy of individuals.
The Supreme Court of India in a judgment of 1,448 pages held that the system could be used for legitimate government matters such as distribution of benefits and tax collection but outlawed the use of the system for purely commercial and private matters such as opening of bank accounts or purchase of mobile phone lines.
The court went to great lengths to establish new protections meant to prevent the government from misusing the data in the name of national security.
This will be particularly poignant for Kenya, which like India at the time, is yet to pass data protection legislation.
The decisions all point to the fact that the courts remain the harbinger of liberty throughout the world.
The writer is Head of Legal, Nation Media Group
Source link : https://allafrica.com/stories/201901060043.html
Publish date : 2019-01-06 08:27:06