Contextualising and Advocating for Sexual Minority Rights within Kenya’s Transformative Constitution

Author: Laureen Mukami Nyamu
Student, Kabarak University School of Law in Nakuru, Kenya

Human rights are inherent to all human beings regardless of race, ethnicity, nationality, religion or other status [1] moreover they are universal but the universality of human rights is not enjoyed by sexual minorities due to discrimination. This discrimination stems from religious, socio- cultural, institutional and discriminatory laws and policies. These factors hamper the full enjoyment of human rights by sexual minorities.

The Constitution of Kenya 2010 is transformative in the realm of human rights by recognising the bill of rights as an integral part of Kenya’s democracy, social, economic and cultural policies and by having an elaborate Bill of Rights that remedies the subversion of human rights which was a characteristic of the repealed constitution. [2] This article will contextualise and show advocacy of sexual minority rights within the constitutional framework and provide a way forward as regards sexual minority rights.

Contextualisation

The Constitution of Kenya 2010 (hereinafter referred to as the Constitution) contains the following provisions in the bill of rights that shall be contextualised in the realm of sexual minority rights.

Every person has the right to life.[3] The term ‘every person’ when interpreted includes sexual minorities. This provision protects sexual minorities from the arbitrary deprivation of their life on account of their sexual orientation.

Every person is equal before the law and has the right to equal protection and benefit of the law.[4]  Equality includes full and equal enjoyment of rights and fundamental freedoms.[5] Sexual minorities should enjoy equal protection of the law to the same extent as other persons who are not sexual minorities. The state [6] and any person[7] is prohibited from discriminating against any person a various grounds among them being sex. The constitution also obligates the state to take legislative and affirmative action measures to redress any disadvantage suffered by individuals or groups because of past discrimination.[8]

Every person is afforded dignity and the right to have that dignity respected[9]. Respect of human dignity includes the respect to the bodily integrity and autonomy of the person. Sexual minorities often face violations to their dignity through the use of violence against their bodies and use of derogatory language against them. [10]This provision therefor entrenches and protects the right to dignity of sexual minorities.

The right to Freedom and security of every person includes the right not to be subjected to any form of violence[11] and torture. [12]This provision protects sexual minorities who are often the victims of violence and brutalities from their communities.

Advocacy

The Constitution advocates for sexual minority rights by establishing duties of the state regarding human rights which include; the duty to protect, promote, respect and fulfill rights and fundamental freedoms. [13] The constitution also gives everyone the right to institute court proceedings when a fundamental right and freedom has been violated.[14] Further, the courts in the application of a fundamental rights and freedom are obligated to adopt the interpretation that most favors its enforcement[15] as seen in the case of Eric Gitari v Non-Governmental coordination organisations coordination board and 4 others [16] whereby the court held that the term every person under article 36(1)[17] does not exclude homosexuals and the petitioner who was intending to register the Gay and Lesbians Human Rights Council with the respondent falls within the ambit of article 36 (1) of the constitution. This position therefor demonstrates that sexual minorities are entitled to not only the freedom of association but also all fundamental rights and freedoms stipulated under the constitution regardless of their sexual orientation.

The Way Forward

To achieve and promote sexual minority rights, the existing constitutional provisions should be interpreted in a manner that favors their realisation. This could be achieved by the inclusion of the term ‘sexual orientation’ as one of the  protected grounds under article 27(4) [18] This would enlarge the scope of protection of sexual minorities by expressly prohibiting discrimination on account of sexual orientation. Additionally the right to marry should be accorded not only to persons of the opposite sex [19] but also to persons of the same sex. Family is the basic and most crucial unit of society. Recognising the right to marriage by persons of the same sex will lead to the realisation of their rights by granting their sexual orientation legitimacy and acceptance in the society. This will contribute towards ending the social stigma that often contributes to discrimination and the subsequent infringement of their rights.

[1] Professor Naresh Vats, Gender Equality-Human Rights violations against sexual minorities.

[2] Article19 (1) Constitution of Kenya 2010.

[3] Article 26(1) Constitution of Kenya 2010.

[4] Article 27(1) Constitution of Kenya 2010.

[5] Article 27(2) Constitution of Kenya 2010.

[6] Article 27(4) Constitution of Kenya 2010.

[7] Article 27(5) Constitution of Kenya 2010.

[8] Article27 (6) Constitution of Kenya 2010.

[9] Article 28 Constitution of Kenya 2010.

[10] J Osogo Ambani, a Triple Heritage of Regulating Homosexuality in Kenya.

[11] Article 29(c) Constitution of Kenya 2010.

[12] Article 29 (d) Constitution of Kenya 2010.

[13] Article 21(1)

[14] Article 22(1) Constitution of Kenya 2010.

[15] Article 20(2) (b) Constitution of Kenya 2010.

[16] 2015 eKLR

[17] Every person has the right to freedom of association which includes the right to form, join or participate in the activities of an association of any kind.

[18] Constitution of Kenya 2010.

[19] Article 45 (2) Constitution of Kenya 2010

About the Author:

Laureen Mukami Nyamu is a second year undergraduate student at the Kabarak University School of Law in Nakuru, Kenya. She is interested in examining how human rights can be used to remedy disadvantages experienced by minorities as a result of discriminative policies and norms and how the law can redress these disadvantages.

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Inclusive national dialogue and accountability for rights violations can heal Ethiopia from a culture of impunity

Author: Dunia Mekonnen Tegegn
Human Rights Lawyer and Gender equality advocate

On 3 November 2020, conflict broke out between the Tigray People Liberation Front and Ethiopia’s National Defense Forces when the Tigray People Liberation Front assaulted the Northern command. Due to the conflict in Ethiopia, women and girls continue to bear the brunt of the cruel and inhuman acts committed by all parties involved in the conflict for the last 17 months. Many have lost their lives, suffered sexual violence, been displaced, and starved. Young girls, women living with disability, older women, and refugee women have been the target of brutal sexual violence. These crimes are horrific in nature as they represent the level of vengeance and humiliation pursued by actors to the conflict. Reports have highlighted the extent of these violations and implicated all sides to the conflict in war crimes and crimes against humanity.    

Impunity has for long characterized Ethiopia’s transitions. Ethiopia went through different transitional periods beginning from the imperial regime to Derg in 1974, from Derg to EPRDF in 1991, and from EPRDF to Prosperity Party in 2018 and currently going through a period of transition that is accompanied by violence and conflicts. Ethiopia and Ethiopians missed the chance to reconcile with the past particularly as far as gross human rights violations are concerned. Replacing impunity with accountability and establishing rule of law in the country remains unfulfilled to date.

In the context of the ongoing conflict, in the Tigray region of Ethiopia, Ethiopia’s National Defense Force, Eritrean Defense Force as well as Amhara Special Force and its allied militia are reported to have committed widespread sexual abuse against Tigrayan women. In the initial stages of the conflict, rape cases were reported in Mekele, Ayder, Adigrat, and Wukro hospitals of Tigray. Investigations on human rights in Tigray indicate that Tigrayan women were subjected to attempted rape, gang rape, oral and anal rape, and insertion of foreign objects into the vagina; in addition, they were subjected to  ethnic slurs and  degrading comments. They were also exposed to unwanted pregnancy, and sexually transmitted diseases. Access to humanitarian aid including access to sexual and reproductive health services remains a challenge. Sexual violence was reported to have been used as a weapon of war and as a deliberate strategy to terrorize, degrade and humiliate the victims. In the most hideous way, Eritrean women and girls fleeing persecution in Eritrea were also reported to have been raped by members of Eritrean Defense Forces and forces allied to the Tigray People Liberation Front in the Tigray region of Ethiopia where they sought refuge. To date, women who were impacted by the conflict continue to be the subject of abduction while on the move.

The number of women who are subjected to sexual violence increased when the conflict expanded its horizon to Amhara and Afar regions of Ethiopia. In these two regions, Tigrayan forces were reported to have committed widespread sexual violence against Amhara and Afari women and girls. In Nifas Mewcha, vicinity in the Amhara region of Ethiopia, women were reportedly raped during a nine-day period. Women were subjected to gang rape including in front of their children, physically assaulted, called names and degraded with ethnic slurs, impregnated by their rapists and suffered mental health problems including anxiety and depression. They were also robbed and deprived of their source of income. Women were unable to access comprehensive post-rape care, including emergency contraception, post emergency prophylaxis for HIV and sexually transmitted infections. In these two regions, it was reported that  Tigray Forces used sexual violence to demoralize, dehumanize and punish communities. Sexual violence was used in a more premeditated and organized manner arbitrarily but also selectively for combat purposes.

Due to the nature of this crime, the tendency of survivors coming forward with what happened to them in the current context of Ethiopia is limited. There is a likelihood of under-reporting because of the nature of the Ethiopian polity where patriarchy is the dominant view.

Violations of Women’s Human Rights 

Conflicts exacerbate deep rooted inequalities in any country. The gender discrimination women and girls are subjected to in a society continues to amplify their victimization during the conflict. Outside situations of armed conflict, women in Ethiopia continue to face gender-based violence including marital rape and other evolving forms of violence such as acid attacks, gang rape, and abduction. In Ethiopia, the male is the traditionally acknowledged master of his family. Marriage is viewed as a means of strengthening the link between families and ethnic groups particularly in the rural parts of Ethiopia. Thus, the role of women in the society is that of cementing family ties through bride-wealth and producing children. The cultural perception of women as the property of men has led to a situation where all actors in the conflict used rape as a weapon. In most Ethiopian societies, at least until recently, men are the main breadwinners. This has facilitated the path for their dominance over domestic and public decisions and further shaped the view that any harm directed at women is harm to the honor of the men in their lives. In the current context of Ethiopia, women and girls continue to be the direct victims of the conflict as they were subjected to sexual violence. However, the attacks targeting women of a certain group also symbolize a desire to shame and degrade the men in their society and their community at large because of the status that is given to them in their society.

Ethiopia’s constitution provides full and equal rights for women under article 25, and 35. Ethiopia’s revised criminal code also provides an explicit prohibition of violence against women and girls, including rape.  It is important to note that Ethiopia’s criminal code also contains provisions related to crimes against humanity beyond sexual violence.  All members of the African Union including Ethiopia are bound to respect the rights protected under the African Charter on Human and People’s Rights. Article 5 of the African charter prohibits all forms of exploitation and degradation including, slavery, slave trade, torture, cruel, inhuman, or degrading punishment and treatment.

The African charter also promotes the liberty and security of a person under article 6.

Interpretations provided by the African Commission on Human and People’s Rights have directly referred to the application of Article 6 not only in promoting  physical safety in the context of arbitrary detention and torture , but also in the protection of women from sexual violence. In addition to the African Charter, article 3 of the International Covenant on Civil and Political Rights calls for the equal protection of women and girls with men in the context of enjoying both their civil and political rights. The same covenant under article 7 provides that women and girls should be protected from ‘torture or cruel, inhuman or degrading treatment or punishment’. Here, it has to be well understood that the human rights committee has defined torture to also include sexual violence.

As a result of the conflict, Ethiopian and Eritrean women and girls were deprived of the protections they had under national, regional, and international human rights law.

Credit to https://thejewishnews.com/2017/12/26/ending-silence-abuse/

It is important to understand that sexual violence is not and should not be considered as an unavoidable outcome of any conflict. It is a crime that is prohibited, preventable and punishable under International Humanitarian Law, International Criminal Law, and International Human Rights Law. Ethiopia is a party to the Convention on the Elimination of Discrimination against Women (CEDAW). Article 1 of CEDAW defines discrimination against women to include gender-based violence that is violence directed against a woman because she is a woman, or because it affects women excessively. In the context of this definition, rape during conflict is discrimination against women directed at them because of their gender.

CEDAW does not allow States to derogate from the Convention’s obligations even during periods of armed conflict or public emergency. State obligations linger during such periods, including due diligence obligations to prevent, investigate, punish and ensure remedy for violations of the rights of women. Under the convention, state parties are also required to control the activities of domestic non-State actors within their jurisdiction. On the other hand, when a state is in direct hostility with a non-state actor that deprives women and girls of their human rights, it is indulged to protect women and girls from right violations.

Under Article 2 of CEDAW, state parties are required to address all aspects of their legal obligation under the Convention to “respect, protect and fulfill” women’s rights. The obligation to protect extends the state’s obligation to defend women and girls from right violations by third parties including non-state actors. States also have an obligation to regulate non-State actors under the duty to protect, so they exercise due diligence to prevent, investigate, punish and ensure reparation for the acts of non-state actors. By depriving women of these protections, all actors to the conflict: Ethiopia’s Defense Forces, Eritrean Defense Forces, Tigray Special Forces and Tigrayan militia groups on the other and Amhara Special Forces (ASF) and Amhara militia groups/Fano committed war crimes.

In elaborating on article 2 of CEDAW, General Recommendation 30 clarifies the application of the Convention to situations of armed conflict including to complex peacebuilding and post-conflict reconstruction processes. It outlines the content of the obligations assumed by state parties and further highlights obligations of non-State actors such as the Tigray People Liberation Front and allied militia and that of Amhara Special Forces (ASF) and Amhara militia groups/Fano. Although non-state actors cannot become parties to women’s rights instruments in general, in the context they exist in Ethiopia, they have an identifiable political structure and exercised significant control over territory and population during the conflict. Hence, they are indebted to respect international human rights laws.

Under human rights law, it is increasingly acknowledged that, at minimum, armed non-state actors who take government-like actions or ‘de facto control’ over territory and people must adhere and safeguard the human rights of individuals and groups. Some special procedures and investigative mechanisms of the Human Rights Council have further recommended that armed groups have human rights obligations, for example, derived from their abilities. It is in this scenario that actors not affiliated with states can be included as subjects of international human rights law, without putting them in the same position as states.

On top of the obligations discussed above,  as it relates to  article 12 of CEDAW, General Recommendation 30 states that parties have an obligation to ensure psychosocial support; family planning services, including emergency contraception; maternal health services, including antenatal care, skilled delivery services, prevention of vertical transmission and emergency obstetric care; safe abortion services; post-abortion care; prevention and treatment of HIV/AIDS and other sexually transmitted infections, post-exposure prophylaxis including care to treat injuries such as fistula. Under the International Covenant on Economic Social and Cultural Rights (ICESCR), which Ethiopia ratified in 1993, pregnant women have the right to health and essential health services that are free when necessary as part of their right to the highest attainable standard of health. The documented limitations on access to essential health care services in conflict affected regions of Ethiopia tantamount to violation of both the CEDAW and the ICESCR.

The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (The Maputo Protocol) that was ratified by Ethiopia on July 18, 2018 elaborates on the right of women to security. The Maputo Protocol protects women from the violation of their human rights both in times of peace and conflict. The protocol also calls on states to protect women seeking asylum and refugee status in their territory. Even though under international law states primarily apply territorial jurisdiction, this obligation also applies equally to both citizens and non-citizens, including refugees, asylum-seekers, migrant workers and stateless persons, within their jurisdiction or active control.

In the context of the conflict in Ethiopia, Eritrean refugee women’s right was violated when members of Eritrea’s Defense Forces and Tigray Special Forces and Tigrayan militia groups subjected them to sexual violence. As a result, their right to be protected from sexual violence was violated. Through these actions, they were deprived of the rights they have under the 1951 refugee convention which Ethiopia acceded to in 1969. Ethiopia also ratified the Kampala Convention in February 2020.

Article 11(2) of the Maputo Protocol further underlines that women in whatever ethnic group they belong to in a conflict should be provided civilian protection. Despite this, women belonging to diverse ethnic groups: Tegaru, Erob, Amhara, Afari, Eritreans were subjected to sexual violence. Ethiopian National Defense Force, Eritrean National Defense Force, Tigray Special Forces and Tigrayan militia groups, Amhara Special Forces (ASF) and Amhara militia groups/Fano violated the right of each individual woman to be recognized as a civilian and be provided with such protection.

Impacts of the conflict on women and girls

In addition to the widely reported sexual violence, restricted humanitarian aid, food, and communication blackout particularly in Tigray negatively affected survivors of sexual violence. The lack of medical supplies and trauma kits further characterize the dire situation in all regions where the conflict took place. As investigation indicate, in all places the conflict took place, women who were raped have reportedly experienced mental health problems. A significant number of girls were also forced to leave their schools early. Access to lifesaving aid including treatment for HIV and STD transmission, contraception, post-exposure prophylaxis as well as psychosocial programs continue to be limited in Tigray. These problems spread widely to Afar and Amhara regions of Ethiopia after the conflict reached these places. Women’s livelihood and sources of income were highly impacted due to the conflict as many women were forced to abandon them.  Research discussing justice for women impacted by conflicts underline that women who survive rape experience trauma and are usually stigmatized by their own communities. As a result, many women could be reluctant to report rape. Limited safe spaces for women and girls also added misery to the negative experience they had to go through as a result of the conflict.

Tigrayan women who were subjected to sexual violence also fled to Sudan, where the conditions of women particularly in Darfur, the Nuba Mountains and along the Blue Nile are still impacted by the prolonged civil war and ongoing governance challenges. An increase in the number of women who migrated to Sudan was documented after the conflict expanded its reach to Amhara and Afar.

Calls to actions

As it stands now, Ethiopia’s priority should be women and girls caught in the conflict whose plights can only be addressed through broader efforts including a sit down with all concerned actors, an effective law enforcement, and criminal prosecution. It is also important that Ethiopia’s post conflict-justice priorities for women and girls focus not only on Civil and Political rights but also on Economic, Social, and Cultural rights.

In the short term, the following critical actions need to be taken:

  1. End the pain and suffering of women, and girls through pledging for unconditional ceasefire, and arms embargo; design effective disarmament, demobilization and reintegration processes and ban arms proliferation in the different regions of Ethiopia;
  2. Take appropriate legal and institutional measures to protect women and girls at risk of sexual violence, including internally displaced and refugee women belonging to affected ethnic groups;
  3. Take appropriate legal, institutional, and financial measures to ensure the provision of comprehensive services for survivors of sexual violence including but not limited to medical, psychological, and social services necessary for their rehabilitation and reintegration with their community;
  4. Establish multipurpose community centers that link immediate assistance to economic and social empowerment and reintegration, and mobile clinics in places where the conflict ensued;
  5. Mitigate the costs of the war on women and girls through collaboration with civil society.
  6. Avail women’s rights defenders and experts working with survivors of sexual violence with counseling services and on job trainings to help them cope with stress and trauma.

In the long term, the following actions need urgent attention:

  1. Collaborate with local and international fact-finding missions to ensure that all perpetrators of sexual and other violence against women during the conflict are properly identified and prosecuted. This task includes designing prosecutorial strategies and policies that help in identifying particularly those who face greater responsibility;
  2. Build the capacity of the judiciary in Ethiopia including in the context of transitional justice mechanisms, to ensure its independence, impartiality and integrity including through technical cooperation with experts and key stakeholders;
  3. When possible, constitute a separate court that can adjudicate cases of sexual violence, and design non-judicial remedies such as truth commissions and reparations. Despite the long-standing challenges within the Judiciary, Ethiopia never had special courts to investigate and prosecute human rights violations;
  4. Protect women’s rights defenders from state or non-state attacks that undermine their equal and meaningful participation in political and public space;
  5. Ensure that legislative, executive, administrative and other regulatory instruments do not restrict women’s participation in the prevention, management and resolution of the conflict. Increase the number and ethnic composition of women commissioners under the newly established Commission for National Dialogue;
  6. To promote inclusion and transparency under the National Dialogue Commission, the government must constitute an advisory committee for the newly established Commission for National Dialogue and include survivors of sexual violence in the discussions;
  7. Plan specific interventions to contribute to opportunities for women’s economic empowerment including through promoting their right to education.

About the Author:

Dunia Mekonnen Tegegn is a human rights lawyer who has been working with the American Bar Association’s Center for Human Rights where she coordinated the Center’s work on Ethiopia through close collaboration with Ethiopia’s Democracy and Human Rights CSOs to ensure human rights are prioritised and protected within the criminal justice system.  She has previously worked with Amnesty International USA as an Almami Cyllah Fellow, the UN OHCHR East Africa Regional Office, the United Nations Agency for Gender Equality and Women’s Empowerment and the United Nations Children’s Fund. Dunia also taught law at Haramaya University Law School other universities in Ethiopia. In 2016, she was named as the first Ethiopian/African woman to receive a National Security LLM with distinction from Georgetown University’s Women’s Law and Public Policy Program.  She holds a Bachelor of Laws degree from Bahir dar University, Ethiopia and a Master’s degree in Human Rights from Addis Ababa University. Dunia also co-manages an NGO called EmpowergirlsNow that focuses on raising awareness on FGM in Sub-Saharan Africa.

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Making sense of Africa’s massive abstentions during the adoption of the UNGA resolution on the Aggression Against Ukraine

Author: Sâ Benjamin Traoré
Assistant Professor of Law at the Faculty of Governance, Economics and Social Sciences of the Mohammed VI Polytechnic University, Rabat (Morocco).

Introduction

The ongoing Ukrainian crisis has shown profound divisions among African countries. The UN General Assembly’s voting on 2 March perfectly captures such a division. Resolution A/RES/ES-11/1, titled “Aggression against Ukraine”, was adopted by a vote of 141 in favour and 5 against, with 35 abstentions. Of these 35 abstentions, 17 were African states including Algeria, Angola, Central African Republic, Congo, Equatorial, Mali, South Africa, Tanzania, and Zimbabwe. This figure represents almost half of the abstaining states. Eight African countries did not even submit their votes (including Burkina Faso, Cameroon, Ethiopia, Morocco, and Togo) and Eritrea voted against the resolution. All in all, almost half of the African states did not vote in favour of the United Nations General Assembly (UNGA) resolution. The split between African states in the voting also reflects the divide in public opinion about the Ukrainian crisis across African countries. While the West has shown unfailing support for Ukraine, Africa and the rest of the world have adopted a more ambivalent position. The significant number of African abstentions has raised international concerns, especially in the West. This voting attitude of African states abstaining remained almost the same during the adoption of the UNGA resolution on humanitarian assistance to Ukraine on 24 March. South Africa had proposed a rival resolution that was not eventually discussed by the UNGA. On 7 April, more African countries abstained and many other voted against the resolution suspending Russia from the Human Rights Council. It is also well-known now that African countries have not adopted sanctions against Russia despite the avalanche of sanctions adopted by western countries.

About the Author:
Sâ Benjamin Traoré is an Assistant Professor of Law at the Faculty of Governance, Economics and Social Sciences of the Mohammed VI Polytechnic University, Rabat (Morocco). He holds a Doctorate in Law from the University of Neuchâtel and an LLM from the Geneva Academy of International Humanitarian Law and Human Rights. His academic works cover various subjects ranging from Public international law, the law of international organizations, the use of force in international law, human rights, international humanitarian law and Business and human rights. He is the author of a book on The Interpretation of United Nations Security Council Resolutions (Helbing, Basel, 2020).

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Sexual harassment in higher education institutions: the law and the practice

Author: Kebkab Sirgew Gelaw
International Human Rights Lawyer

Sexual harassment has been a fact of life ever since humans inhabited the earth.[1] Despite its existence, it has been ignored and the tradition has made women keep quite concerning the act as if nothing went wrong. It is hard to unthink what you know, but there was a time when the facts that amount to sexual harassment did not amount to sexual harassment, the facts amounting to the harm did not socially “exist,” had no shape, no cognitive coherence; far less did they state a legal claim.[2]

Sexual harassment is a manifestation of the male domination and has clearly indicated that the domination extended socially, economically, and politically. Women were socially expected to be passive about many activities, which the society believed to be challenging, and those challenges were passed on to men to be handled.

About the Author:
Kebkab Sirgew Gelaw (LL.B, MA, LL.M) is a senior legal researcher with more than 10 years of work experience in the field of law and International Human Rights. Kebkab has served in various Executive and Leadership positions. She also worked as a part time lecturer at the School of Law and Governance Studies at Addis Ababa University and others.

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War, global health and human rights: drawing inspiration from the Russia-Ukraine crisis

Author: Abasiodiong Ubong Udoakpan
Data Protection Advisor, Researcher and a Human Rights Lawyer

Introduction

The first principle of health is life and war is a direct threat to life. For millions of people worldwide, avoiding and not only surviving war is the predominant objective in their daily existence. Sadly, the situation in Eastern Europe creates a global crisis for public health, therefore, ending the war would be a major step towards the promotion of the health and well-being of persons in this region. The challenge presented by this ongoing regional conflict also marks a crucial opportunity to prioritize human rights and public health concerns in ongoing foreign policy and diplomatic efforts by concerned nation-states. Ergo, this article seeks to explore the human rights threats that are associated with the Russia-Ukraine conflict especially as it relates to public health.

Destruction/Lack of Access to Health Care Facilities and Displacement

The devastating effects of war can be very grievous to health care. The harsh realities of war range from damages to the health infrastructure to the displacement of citizens. During this crisis, Russian forces have begun indiscriminately bombing civilian targets, including in a missile strike that destroyed the Pavlusenko maternity hospital, killing at least two people.[1] This carnage puts more pressure on the health care system in Ukraine, which faces a possibility of total collapse if the war rages on. It is worthy of note that attacks on healthcare facilities and workers amount to a breach of medical neutrality and it is also a clear violation of International Humanitarian Law. We are also not left in doubt that access to health care will be extremely difficult in these times.

Globally, the latest figures from the UN estimate that around 70 million people are currently displaced due to war. However, as at 9 March 2022, about 2 million people have now fled Ukraine due to the Russian invasion, according to the United Nations. At this rate, the situation looks set to become Europe’s largest refugee crisis this century, and UNHCR is mobilizing resources to respond as quickly and effectively as possible.

This displacement can be incredibly detrimental to health, with no safe and consistent place to sleep, wash, and shelter from the elements. It also removes a regular source of food and proper nutrition. As well as impacting physical health, war adversely affects the mental health of both those actively involved in conflict and civilians. Forced migration creates further physical and mental health problems during transit, in an enforced encampment, and because of restricted entitlement to health care in countries hosting refugees.

Access to Food, Water and Sanitation

War inevitably reduces access to clean water, food, and sanitation which are critical for a country. According to a UN report on the conflict, Ukraine’s citizens have the most difficulty with accessing improved water sources, uninterrupted water access and materials for water purification. Additional issues that households experience include immediate access to trucked-in water and bottled water in kiosks and shops.[2] Of particular concern is the unhygienic storage of water, such as in bath tubs and containers without lids, which create additional health concerns. This could further increase the risk of contracting communicable diseases.

Mental Health

The negative impact on the mental health of both countries cannot be overemphasized. People who live through war face psychologically challenging situations, often being uprooted from their homes, facing food insecurity, and constant fear of death and injury to name a few. This inevitably causes damage to a person’s psychological well-being and can exacerbate existing problems. Sadly, protracted conflict in Ukraine could lead to negative consequences for the population’s wellbeing, and the need for mental health and psychosocial support remains paramount.

Recommendations- A Road to Peace

The Russia-Ukraine crisis is multi-faceted, however, peace may be reestablished in various ways. Negotiations between the two, with or without an intermediary, may resolve the situation. Peace may be reestablished by these negotiations or by the pressure of international diplomacy. A return to lasting peace depends not only on the cessation of hostilities but especially on a recognition of the causes that led to the conflict. In international conflicts, the solution is usually political, such as the Russia-Ukraine conflict, and the UN plays a primary role. In the longer term, the maintenance of a lasting peace will involve socioeconomic change. There is also a need for the UN to link emergency interventions to a long-term strategy based on development and rehabilitation.

It is also recommended that where the United Nations Charter and human rights are being violated such as in Ukraine, the United Nations should devote equal attention to all victims of the conflict irrespective of race. There is serious concern about the treatment given to African nationals and people of African descent at the borders of Ukraine, some of whom are not allowed to cross and move to safety. Thus, European countries should take steps to resolve this situation as all people have a right to cross international borders during times of conflict. African countries should also fast track measures to ensure that Africans who seek to return home are brought back safe and sound.

Finally, it is recommended that as international actors, including the United Nations, the donor organizations, the NGOs, and humanitarian groups weigh in on the situation in Ukraine, they should be preoccupied with peacemaking with sincerity of purpose and the rehabilitation of war-torn Ukraine. Measures should also be put in place to rehabilitate and also facilitate the reconstruction and development of Ukraine in the long run.

[1] Brian Till: ‘Is Russia targeting Ukraine’s Hospitals?’ https://newrepublic.com/article/165565/russia-bombs-ukraine-hospitals accessed 4 March 2022.

[2] Ukraine- Situation Reports, https://reports.unocha.org/en/country/ukraine/card/49C1na6B2J/ accessed 5 March 2022.

About the Author:
Abasiodiong Udoakpan is a Data Protection Advisor, Researcher and a Human Rights Lawyer with an LL.M in International Human Rights. His research blueprint centers on the intersection of International Law, Human Rights and Global Health & Policy with interests in Mental Health, Climate Change, Food & Drug.

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Questions at the Interface Between Automated Decision Making, Administrative Law and Socio‑Economic Rights: The Example of Access to Affordable Housing in Kenya

Author: Alexander Beyleveld
Senior Researcher at the Mandela Institute, University of the Witwatersrand

A number of African governments have begun to integrate automated decision-making (ADM) into processes that give effect to fundamental rights, which has given rise to a number of interesting questions about the manner in which different areas of law interact in ADM contexts.  ADM has thus far been most directly regulated by data protection legislation, such as the Kenya Data Protection Act (KDPA).  Automated decisions, however, also implicate administrative law, and constitutionally enshrined rights related to administrative action.  An additional layer of complexity is added in situations where automated decisions form part of the process governments have elected to use to give effect to fundamental rights, especially when a number of different rights are implicated.  Understanding the interface between ADM, data protection laws, administrative law and constitutional law, then, will only continue to grow in importance in assessing the extent to which governments are giving effect to certain fundamental rights – as well as for assessing the extent to which governments and individuals are actually reaping the potential benefits of ADM technologies in the first place.

About the Author:
Alexander Beyleveld is a legal, economics and policy professional with experience in the public, international public, private, NGO and academic sectors. Alex holds a PhD from the Graduate School of Economic Globalisation and Integration at the World Trade Institute, University of Bern, is an admitted legal practitioner of the High Court of South Africa (enrolled as an attorney) and is currently a senior researcher at the Mandela Institute (Wits Law School). Alex predominantly works on issues of economic law (international trade, competition and taxation for the most part), technology and public policy, with a particular focus on economic development, inequality and inclusion.

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Marital rape as a human rights violation of women in Ethiopia: a case study of Alumni association of the faculty of law of Addis Ababa University and Ethiopian Women Lawyers Association (EWLA)

Author: Kebkab Sirgew Gelaw
International Human Rights Lawyer

The concept of rape of a woman by her husband in marriage was not a transgression at all because a man was allowed to treat ‘his chattel as he deemed appropriate’; thus, women who were forced to have sex in their marriage did not even have the option of seeking criminal prosecution.[1] The first marital rape case to reach the US court system took place in 1978 in New Jersey, when Daniel Morrison was found guilty of raping his estranged wife. Six months later, in Oregon, John Rideout became the first husband charged with rape while living with his wife.[2]  Rideout was acquitted and brought attention to the concept that rape can exist within the context of marriage.

Many states in the US including Minnesota at that time defended forced sexual intercourse committed by a man against a woman and not his wife; though there have been subsequent prosecutions of marital rape, but in general, the cases were charged to win, primary because the question of consent is clouded by societal beliefs about marriage.[3]

In this regard, Sir William Blackstone expounded up on the English common law notion that:

About the Author:
Kebkab Sirgew Gelaw (LL.B, MA, LL.M) is a senior legal researcher with more than 10 years of work experience in the field of law and International Human Rights. Kebkab has served in various Executive and Leadership positions. She also worked as a part time lecturer at the School of Law and Governance Studies at Addis Ababa University and others.

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The Status of Women’s Reproductive Rights in Africa

Author: Satang Nabaneh
Post-doctoral Fellow, Centre for Human Rights, University of Pretoria

Sexual and reproductive health and rights has been recognized to be embodied in human rights instruments. The achievement of sexual and reproductive health relies on realizing sexual and reproductive rights. This means that States have general obligations to respect, protect and fulfill these rights. Despite these obligations, violations of women’s sexual and reproductive health and rights are evident, including denial of essential services such as obstetric care, lack of high-quality care, access to safe abortion, female genital mutilation (FGM), and early marriage. With regard to HIV infections, the WHO African region remains the most severely affected, with nearly 1 in every 25 adults (3.6%) living with HIV and accounting for more than two-thirds of the people living with HIV worldwide.

Meanwhile, many African countries’ maternal mortality ratios (MMR) remain very high. It is estimated that Sub-Saharan Africans suffer from the highest MMR – with an estimated 533 maternal deaths per 100,000 live births or 200,000 maternal deaths a year. Additionally, women in Africa continue to suffer from the consequences of unsafe abortion-related mortality. For instance, as of 2019, women from sub-Saharan Africa account for the highest incidence of deaths at 185 per 100,000 abortions, for a total of 15,000 preventable deaths every year. In addition, cultural practices such as child marriage and lack of information account for the high fertility rate in the region. Of the over 200 million girls that have under­gone FGM, the majority live in Africa.

While significant progress has been made in advancing sexual and reproductive health and rights since the 1994 International Conference on Population Development in Cairo and the 1995 Beijing Declaration, significant challenges remain with regard to realizing these rights. Against this background, the present blog post will emphasize the regional protection of women’s reproductive health and rights, focusing primarily on access to abortion.

The Protection of Women’s Reproductive Rights in Africa

The 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (‘Maputo Protocol’ or ‘Protocol’) is one of the most comprehensive and progressive women’s human rights instruments adopted by the African Union (AU)  and has been ratified by 42 Member States. This indicates the favorable reception that the Protocol enjoys in the continent as the foremost legal instrument on women’s rights. The Protocol guarantees extensive rights to women in Africa, as it covers the entire range of civil and political, economic, social, cultural, and environmental rights. However, it is important to note that some African countries (including Cameroon, Kenya, Uganda, and Rwanda) have entered reservations to the provision on abortion upon ratification.

The African Commission on Human and Peoples’ Rights (‘African Commission’) has provided further interpretive guidance for women’s rights in Africa by elaborating on specific rights while assisting states in fulfilling their obligations under the Maputo Protocol. In 2012, the African Commission adopted its first General Comment to clarify the scope of Article 14 (1) (d) and (e) of the Maputo Protocol (‘General Comment No 1’). The said Article is the first provision to address HIV as a human rights issue explicitly. States’ obligations, as clarified by the General Comment, include providing a conducive legal and political environment, ensuring access to information and education on HIV, and availability, accessibility and affordability of quality reproductive health procedures, technologies, and services.

General Comment No. 2 addresses the sexual and reproductive health provisions, including access to contraceptive services, safe abortion services, and age-appropriate sexuality education. In addition, the Joint General Comment on Child Marriage of the African Commission and the African Committee of Experts on the Rights and Welfare of the Child (‘ACERWC’) outlined that States should ensure access to comprehensive sexual and reproductive health services that are “integrated, rights-based, women-centered and/or youth-friendly and free of coercion, discrimination and violence.” The African Commission and the ACERW noted that girls in child marriages are at higher risk of pregnancy-related health complications and should be provided with safe abortion. Harmful practices such as FGM and child marriage are human rights violations and forms of gender-based violence that put women’s and adolescents’ sexual and reproductive health and rights at risk.

In addition, various regional efforts also culminated into the adoption of the revised Maputo Plan of Action 2016–2030 on universal access to sexual and reproductive health care services in Africa. The Plan of Action reaffirms the unfinished business of sexual and reproductive health and rights as articulated in Agenda 2063 ‘The Africa We Want’ and the Sustainable Development Goals (SDGs).

The African Commission, which can receive communications alleging violations on the African Charter and its subsequent protocols, and the African Court on Human and Peoples’ Rights have not yet had the opportunity to develop their jurisprudence on the sexual and reproductive rights provisions as stipulated in the Maputo Protocol. However, there have been critical national judgments that advance sexual and reproductive health and rights including, in Kenya, Zimbabwe, Uganda, and South Africa.

Access to Safe Abortion under the Maputo Protocol

The Maputo Protocol is the only human rights treaty that expressly recognizes access to safe abortion as a human right. Article 14(2)(c) of the Maputo Protocol permits abortion on the grounds of risks to the health or life of the pregnant women, the risk to the life of the foetus, sexual assault, rape, and incest. In 2014, the African Commission adopted General Comment No. 2, which focuses on promoting and protecting women and girls’ sexual and reproductive rights in the African region and particularly on access to safe abortion. General Comment No 2 serves as a valuable benchmark that consolidates international best practices on state’s obligation to respect, promote, protect, and fulfill rights specifically to the issue of abortion.

In the General Comment, the African Commission sets out the normative content of Article 14(1) (a), (b), and (c) under paragraphs 22-27. The Commission reiterated that women enjoy the right to make decisions about their fertility, whether to have children, the number of children, the spacing of children, and methods of contraception without interference from the State or non-State actors. Recognizing that the most significant barriers to women’s access to reproductive services are traditions and cultural or religious practices (paragraph 12), the General Comment obligates States to remove impediments to health services for women as provided under paragraphs 23 and 24. The General Comment further clarified Article 12.1 (f) on the right to family planning education to constitute women’s right to access information and education regarding their sexual and reproductive rights. Under paragraph 28, the General Comment obligates States to ensure that this information should be complete, available, reliable, and available in various forms accessible to community members using different languages and to all women and girls, including those with disabilities.

The Commission also expounded the normative content of article 14(2)(c), underscoring that all women have the right to access maternal health services and safe abortions in cases of sexual violence, incest, and emergency medical situation. It also further noted that these services must be consistent with current international standards, provided without discrimination, and made available. As noted elsewhere, “unprecedentedly, the Commission addressed states’ duty to adequately regulate the practice of conscientious objection in the reproductive health sphere.” Conscientious objection has been defined as “the refusal to participate in an activity that an individual considers incompatible with his/her religious, moral, philosophical, or ethical beliefs.” While health care providers may invoke conscientious objection to the direct provision of the required medical services, this would not be allowed in the case of a woman whose health is at serious risk or requires emergency care or treatment as provided for in paragraph 26. The Commission further obligates States in paragraph 48 to:

ensure that health services and health care providers do not deny women access to contraception/family planning and safe abortion information and services because of, for example, requirements of third persons or reasons of conscientious objection

Thus, States must ensure that women are referred to other health providers in a timely manner to obtain the necessary services. Paragraph 26 clearly stipulates that medical institutions cannot invoke conscientious objection.

Challenges and Opportunities

Despite African regional developments and domestic reforms culminating in at least more than half of the African countries now permitting abortion on the ground of the woman’s health, but also increasing recognition of the grounds of rape, incest, and danger to foetal health or life, this has not translated into real and tangible access to safe abortion services. Women in the African region can rarely access safe abortion, as inferred from the high prevalence of unsafe abortions in the region. The crime and punishment model, which regulates abortion, is still dominant in many African states. The Guttmacher Institute estimated that the majority of women of reproductive age in Africa live in countries with highly restrictive abortion laws. In addition, medical abortion continues to be highly regulated, including criminalization of self-use. Implementation of the Maputo Protocol has been admittedly slow as women continue to face barriers to access abortion services even in countries where abortion has been liberalized. For instance, in South Africa, the most common barriers to accessing abortion services include the lack of a legal framework to regulate conscientious objection, accessibility difficulties for poor or marginalized women, stigma and lack of information accessing safe abortion services.

The pressing challenges related to sexual and reproductive health and rights, as highlighted above, illustrate the urgent need to reform African abortion laws and policies. In addition, addressing persistent barriers requires ensuring access to family planning services, skilled attendance at birth, emergency obstetric care, post-partum care, safe abortion services, post-abortion care other sexual and reproductive health services. As noted elsewhere, “investing in women and girls’ empowerment is pivotal for reaching the goals of sustainable development,” which can only be fulfilled when women and girls enjoy the complete set of sexual and reproductive rights. The calls to action to #BreakTheBias for a gender-equal world free of prejudice, stereotypes, and discrimination for a sustainable tomorrow, must entail a commitment to the fulfilment of sexual and reproductive rights of women and girls.

About the Author:
Satang Nabaneh is a Post-doctoral Fellow at the Centre for Human Rights, Faculty of Law, University of Pretoria. She is the Programme Manager of the LLM/MPhil in Sexual and Reproductive Rights in Africa (SRRA) at the Centre. Satang holds the degrees LLD and LLM in Human Rights and Democratisation in Africa from the University of Pretoria and an LLB from the University of The Gambia. Her research interests include a broad range of issues related to international human rights, women’s rights, democracy, and constitutionalism.

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The decline of democracy and the rise of coup d’états in Sub-Saharan Africa: Reflections and lessons

Garang-Yach-JamesAuthor: Garang Yach J
South Sudanese Political and security analyst and PhD Student, University of Juba, South Sudan

 

Summary

Although coup d’états have been straddling the African continent since the 1960s, their recent resurfacing and rise is a reverse to the democratic consolidation in the Sub-Saharan African region. In this article I try to locate the trends of coups in the history of the region in order to showcase the existing susceptibility of the states in the region. I further advance the argument that militarisation of politics, the dominant military aristocracy and proclivity to change constitutions in order to extend term and age limits, delays in holding free and fair elections are among the reasons why democracy is declining, and coups are on rise in the region. I also present a compelling argument that failure to incorporate human security into governance is stifling democracy and resuscitation of coup tendencies. The article concludes that military metiers in the Sub-Saharan region have entrenched themselves and apply mock democracy to actuate militaristic propensity. Finally, the article gives four recommendations that would improve democratic governance and mitigate trends of unconstitutional change of government in the region.

The trends of coups in Sub-Saharan African region

It was not long ago when continental liberation fronts took down colonial powers with the hope of a better governance and prosperity for all. These fronts managed to unseat colonial regimes in most parts of Africa. But soon, these local breeds usurped power through military takeovers and ushered in dictatorship sustained by brute use of force. For instance, countries like Sudan in 1958, Congo in  1960, Togo in 1963, Ghana in 1966,  and Nigeria in 1966 were embroiled in military takeovers severally.

The post-colonialist change of governments and regimes was always through military coups in the 1960s to 1990s. Accordingly, since the 1950s-2010 the African continent witnessed 200 coups. African countries like their counterparts in the ‘third world’ were the battlefields where bi-polar proxy cold wars were fought. The prevalence of coups in Africa could be attributed to the cold war and colonial interferences that ensued in the post-colonial era.

In the early 1990s, the wave of democratic change took stage and the African continent saw semblance of democracy until 2010 when civil uprising came into fashion in what was later christened as the Arab Spring that quickly sent quakes to as far as the Middle East and Sub-Saharan sub-continent.

The Arab Spring wave of pro-democracy protest inspired civilians across North, Sub-Saharan Africa and the Middle East. The civil uprisings increased exponentially moving forward with fewer success cases. The pro-democratic civil uprising particularly in Egypt and Libya inspired and ignited dormant volcanic coup tendencies in the Sub-Saharan Africa. The civil uprisings transformed themselves into infectious coup tendencies that quickly spread to Sudan, Chad, Niger, Mali, Algeria, Burkina Faso and Guinea Bissau. These countries form what was erstwhile known coup belt. Out of 13 recorded coups since 2017 globally only 1 was staged outside the African continent in Myanmar. Accordingly, the epochs of 1960-69, 1980-89 and 2020-22 saw steady rise and execution of successful military coups in the Sub-Saharan region. Whereas the epochs of 1970-79, 1990-99, 2000-09 have seen sharp rise in the number of failed coups in the region as indicated in the bar graph below. In either case steady rise of coups was and is always the case in the region.

coups_africa

Source BBC  https://www.bbc.com/news/world-africa-46783600

Militarisation of politics and dominance of ‘Gun Class’

Compelling questions would then be asked as to why coups are rising and democracy is declining in Africa? Are there lessons to be learned? A number of factors can be attributed to the decline of democracy and rise of coup d’états among susceptible states in Africa. The fall of Colonel al-Gaddafi’s regime in Libya in 2011 spilled over conflicts Southward to Sub-Saharan countries and enhanced the armament of Islamists, Tuareg rebels and Boko Haram in the Sahel and Western African regions respectively. This has exacerbated militarisation in the regions and made the region susceptible to insurgencies and coups. On the other hand, the history of militarisation of politics in countries like Sudan, Chad, South Sudan, Uganda, Ethiopia, Burkina Faso et cetera has established a dominant military aristocrat who Majak D’Agoot calls the “gun-class.” The re-emergence of coups in the African continent through spate of the gun class in the continental coup belt is a precautionary signal to the susceptible states in the region. The militarisation of politics in Africa is not a recent development. Its extant post-dated independence days when the liberation leaders that led military cum political wings assumed presidency or premier to continue serving as politico-military leaders. Sudan, Somalia, Chad, Nigeria, South Sudan, Burundi, Ethiopia, Eritrea and Uganda are few of the countries whose militaries have dominated politics in history thereby susceptible to military takeovers. The UN-Secretary General, Mr Antonio Gutteres, concerned with the comeback of coups, calls it an “epidemic of coups”, and “blamed it on the lack of unity amongst the international community to respond to military intervention.” Militarism and militancy emboldened unconstitutional takeover of political power in countries where ethnic polarisation has taken root. Kakistocracy eventually becomes entrenched when militarism controls politics and stifles democracy.

south_sudan_military

However, South Sudan and Somalia present unique characterizations to other countries in the coup belt region and beyond. The South Sudan military is a fragmented institution short of professionalism and unity, the necessary components for a national military. As D’Agoot argues, the dominant gun class has successfully managed to play into ethnicity, politics and economic power to influence state power. The militarization of politics and entrenchment of the gun class is therefore a characteristic of the decline of democracy and rise of militarism that set a stage for coups.

Change of constitutions and failure to hold regular democratic elections

The main characteristics of the susceptible states are the proclivity of the incumbent to change the country’s constitution to cater for their quests to dishonour term limit prescribed in the erstwhile constitution. This act amounts to constitutional coups and it should be treated as such. The constitutional coups in recent history have been arguably executed in Uganda (Museven), Rwanda (Kagame), Burundi (Nkurunziza),Togo (Gnassingbé), Chad (Derby), Sudan (Bashir) and DRC (Kabila), In these states, military aristocrats stir up a state of disorder fostering political fiasco to justify their relevance hence extension of periodic elections. The effort to stifle democracy in these states is always met with resistance and civil uprising that unfortunately culminates into civil unrest as was the case with Ethiopia (2020) and Mali (2012). The relatively managed cases of constitutional changes with limited civil unrest were Uganda in 2005 and Sudan in 2015. So, such undemocratic constitutional changes did not lead to ultimate change of regimes but upset the social tranquillity with deadliest confrontation between the regimes and the civil uprisings. The public institutions such as judiciary, legislature and independent electoral commission are gradually attenuated and effectively designed to serve the executive by a ruling dominant military class that ascend to power through coup. This, in effect, does constrain the element of rule of law in any democratic dispensation. On its part, the security sector is deliberately weakened and highly bloated with low-ranking non-commissioned officers whose allegiances to their chiefs are indubitable in the susceptible states. The dominant military métier in these states coerce the population despite resistance to persevere with the new term limits as they appear in the amended constitutions. D’Agoot once again argues that “While African warlords may seek to legitimise their rule through the exercise of illiberal democracy and the holding of elections, they generally fail to secure the consent of the governed.”  The constitutions are changed to constitutionalize tyranny while disparaging the mandate of the governed.

Failure to adopt human security

Democracy provides a conducive environment for human security and development. Human security means freedom from fears of physical threats and freedom from wants. The former includes fears of physical violence emanating from conflict whereas the latter includes basic human needs such as food, shelter, health and poverty among others.

In stable democracies, human insecurities are minimised and structural inequalities responsible for deep-seated social problems are regulated thereby reducing conflict over livelihoods. In unstable states, the political violence and communal conflicts reigns, life is reduced to daily survival and human capacity to innovate on the environment in a bid to solve social predicaments responsible for human insecurities is inhibited. Violent conflict as Judith Large and Timothy D. Sisk argues “presents the most immediate and acute threat to human security and to human development.” Democracy mitigates threats to human security and it is therefore the best possible form of government in comparison to other forms such as authoritarianism and autocracy, tried so far in the region. It is worth noting that contemporary threats of human security present to democracy are internally generated and orchestrated by the locals within the national borders. Along the poverty line, countries that exhibit low per capita gross national income (GNI), economies heavily dependent on a single non-renewable source of income with high unemployment of youth are infested by human insecurities. Heavy spending on the defence articles and security sector has characterised the susceptible states, derailed their economies meant to alleviate poverty and exerted pressure on citizens and low-ranking military officers alike to seek alternative means of surviving. This means of survival could be a recourse to the military takeover or insurgency activities in order to address human security issues.

Political instability that translates into breakdown of law, order and governance structures continues to engender human insecurity which impacts on democracy. States where one ethnicity commands predominance of every sector of society and economy with extractive penchant are candidates for human insecurity. People’s freedoms from fear of threats and wants to become more pronounced and as such democracy cannot thrive in such a self-eating society. Violence too becomes inevitable as despair characterises society, meanwhile democracy dwindles offering an opportune intervention in the form of coups or insurgencies as it was the case with Mali, Ethiopia, Sudan and South Sudan. In such states the democratic governance jettisons giving way to militancy.  All these encapsulate the decline of democracy whose effects give rise to the militarism and militancy in which few militarists take a chance to stage unconstitutional change of governments.

Conclusion and recommendations

Learning from the experiences and history, it is worrisome to reckon the fact that coups have again resurfaced along the coup belt in Africa and their contagiosity would be exacerbated by the declining conditions of democracy in the susceptible states. The history of coup repeats itself among countries that are traditionally prone to coups. Countries such as Sudan, Chad, CAR, Niger, Mali, Burkina Faso, Guinea Bissau, Nigeria, Ethiopia, Eritrea, Uganda and DRC remain highly coup prone. While countries like South Sudan and Somalia, although highly fragile,  remain less coup prone because of ethnic contrariety and profundity of their militaries. The constitutional coups through unconstitutional changes of constitutions to accommodate term and age limits, failure to adopt human security, militarisation of politics and entrenchment of gun class have contributed to the rise of coups and decline of democracy in the Sub-Saharan Africa region.

Recommendations

  • Citizens across the Sub-Saharan African region should be politically and economically empowered to tackle the depreciating human security in order to mitigate their susceptibility to political and military enlistment that incentivises coups tendencies in the region.
  • That politics, ethnicity and economies should be “de-gunned”[1] and military métier civilly pressured to de-escalate constitutional coups, delay of periodic elections, and instead adhere to entrenchment of democracy to give it once again a chance to rise.
  • Lessons that are learned from experiences and history of coups in Sub-Saharan Africa should be precautions to susceptible states in the region. Sub-Saharan African countries should double their efforts to democratise their militaries and institutions of governance.
  • The regional organisations such as Economic Community of West Africa States (ECOWAS), The East African Peace and Security Mechanism (EAPSM), the Economic Community of Central African States (ECCAS) and Southern Africa Development Community (SADC) under the African Union (AU) must enhance the capacity of the four regional standby forces to treat coups as human insecurity and must therefore intervene militarily under responsibility to protect(R2P) on humanitarian grounds.

 

[1] Bromley Daniel, Feb 3, 2022 via Development Policy Group DPF@ebonycenter.org

 

About the Author:

Garang Yach J. is a South Sudanese Political and Security analyst and a PhD Student at the University of Juba. The title of his PhD thesis is “Human security transcends national security in the horn of Africa: A comprehensive analysis of state’s manning safety infrastructure in South Sudan” He can be reached on email: yachgarang1978@gmail.com

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UNCRC climate decision is a missed opportunity – A response to Muhumuza and Wepukhulu

Elsabe-BoshoffAuthor: Elsabé Boshoff 
 PhD Fellow, Norwegian Centre for Human Rights, University of Oslo

Samrawit-GetanehAuthor: Samrawit Getaneh Damtew
Human Rights Advisor, GIZ Ethiopia and Djibouti

The UN Children’s Rights Committee (CRC) received its first Communication on climate change-induced child rights violations in Sacchi, et al. v. Argentina, et al. In its admissibility decision, the CRC confirmed that climate change has child right impacts and states have extraterritorial responsibility for harmful effects of emissions. However, the Committee declared the Communication inadmissible for failing to exhaust local remedies. In their article on AfricLaw, Muhumuza and Wepukhulu argue that this decision was the right one. We argue why the Communication should have been admissible.

Criteria for exhausting domestic remedies

The above-mentioned article argued that the decision is in line with the settled rules of exhaustion of domestic remedies. While this may be a general rule, it has exceptions. The CRC Optional Protocol in article 7(3) provides that exhaustion of local remedies is not required where the remedy is “unreasonably prolonged or unlikely to bring effective relief”.

Unlikely to bring effective relief

The extraterritorial nature of climate change and the fact that those who stand to lose the most are the least polluters, raises the question of identification of the right forum for seeking relief. While the majority of historical and current emitters are in the global North, those who are most affected by the negative impacts of climate change are in the global South. So which forum is available and accessible for citizens of vulnerable countries to hold the perpetrators of climate change accountable? In Africa, where three of the Petitioners are from, national and regional courts would not have jurisdiction over the major emitters. 

The alternative would be to bring the cases before national courts in the respondent states. However, as argued by the children in this case, “separation of powers, standing, and other grounds” are some of the reasons why cases brought before the courts of the Respondent states are highly likely to be unsuccessful. Nationals of African countries are unlikely to have standing in some domestic tribunals of European countries. In the Sacchi case, the applicants from South Africa or Nigeria cannot make use of the local remedies available in Germany or Brazil. In some jurisdictions, because of separation of powers, courts are “unlikely or unable to order the legislative and executive branches to comply with their international climate obligations by reducing their emissions”. Treaty bodies of the UN system, and in particular the CRC where children have standing, may be the only forums in which the most vulnerable victims of climate change and the mighty polluters can meet, and victims find justice.

climate_change

Unduly prolonged 

By rejecting the Communication for not exhausting local remedies, the Committee is basically telling the children to litigate in the local courts of all the five respondent states. Besides the challenges already identified with this, if these children are to take on that task collectively, it may take them at least a decade, if not more, to actually seek justice in all the different territories. On the other hand the, science tells us that if urgent action is not taken to limit global warming to 1.5°C by 2030, devastating and possibly irreversible damage will take place. Because every year and every action matters when it comes to climate change, exhaustion of local remedies should be regarded as an unduly prolonged procedure.

A purposive reading

Exhaustion of local remedies is aimed at giving states the opportunity to address violations at their level, “lack of awareness of an alleged violation by the State deprives it the opportunity to address such a violation”. Hence a purposive reading of this requirement would suggest that where a state is aware of the violation and takes no steps to remedy it, the state was not deprived of an opportunity to address it and exhaustion of domestic remedies should not be required. This is the case with climate change – it is not that states do not know the human implications or do not know what is required of them, they just fail to do it.

Paris agreement and state sovereignty

The above-mentioned article argued that inline with state sovereignty and based on the approach informing the Paris Agreement, “states must be given latitude in designing, adjudicating and executing their climate response policies”. However, we are already seeing the failings of the Paris Agreement approach, in that as a result of each state setting their own goals, we are on course for at least 3-4°c of warming, which is much higher than the 1.5-2°c limit above which catastrophic consequences, including for human rights, are likely to arise. Thus the “flexible, bottom-up approach” of the Paris Agreement and arguments about state sovereignty do not counter human rights obligations arising from the effects of climate change. International human rights standards exist as independent standards against which state conduct can and should be measured. A decision on the merits from the CRC would have set important guidelines to states in their policies to follow a child rights based approach to climate policies, which does not infringe state sovereignty or ability to design their own policies.

No nation in the world can single-handedly reverse the existential threat posed by climate change. Hence the right forum to seek justice for such a planetary problem is on a global scale where there is a possibility to set global precedents. Nevertheless, the response given by the Committee screams “business as usual”. In our view, the procedures of the CRC provide for, and the circumstances necessitate that this case should have proceeded to the merits stage.

 

About the Authors:

Elsabé Boshoff is a PhD Candidate at the Norwegian Centre for Human Rights, University of Oslo, writing on the right to development and sustainable development in the African human rights system. Elsabé is an alumni of the Centre for Human Rights, University of Pretoria, LLM in Human Rights and Democratisation in Africa, class of 2016 

Samrawit Getaneh works as a human rights advisor at GIZ Ethiopia and Djibouti, where she focuses on ensuring the implementation of a human rights based approach in development cooperation projects, among other things. Samrawit is an alumni of the Centre for Human Rights, University of Pretoria, LLM in Human Rights and Democratisation in Africa, class of 2016 

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