Compensation for damage caused by space debris – just pie in the sky?

Jaymion-HendricksAuthor: Jaymion Hendricks
Attorney

Space launches have increased significantly in recent years and despite the global pandemic, the year 2020 (together with 2018) marked one in which the most orbital launches took place (114 launches, 104 of which were successful flights). In the past, space activity was mainly undertaken by a handful of well-resourced countries. With the increasing commercialisation of space, there has been a proliferation of private and public space activity. It follows that heightened space activity results in frequent launches which may increase the risk of accidents on the surface of the earth or to aircraft in flight. The risk, however, remains negligible if space actors adhere to the highest technical, safety and environmental standards. The minimal risk is generally outweighed by the economic value and social benefit of outer space activity (scientific knowledge, weather forecasting, telecommunications and earth observation etc.).

According to the The Economist, as at August 2019, no one is known to have been killed by re-entering space junk into the earth’s atmosphere. However, there are a number of recorded cases in which compensation was paid for injury, death or damage to property due to failed rocket launches. For example, the USA paid Cuba USD$2 million in 1960 when the second stage of the Thor Ablestar rocket plummeted to earth in the south of Cuba and parts of its fuselage landed on and killed a grazing cow, named Rufina.

Who is liable in the event of falling space debris?

International law governs liability for accidents arising from space activity. International treaties such as the Outer Space Treaty (1967) and Liability Convention (1972) outline States’ liability for damage caused by space objects. They hold launching State(s) absolutely liable to pay compensation for damage caused by space objects on the surface of the earth, or to aircraft in flight.

Under international law, private space actors such as SpaceX cannot be held directly liable as the relevant international treaties merely recognise the role of the State which bears international responsibility for national space activity. Domestic space legislation usually requires private space companies to maintain insurance cover which is ordinarily capped at a certain amount or set at the maximum probable loss; fully indemnifying the State in the event of a damages claim (i.e. the state has a right of recourse against the private company should the State have to pay compensation to a claimant).

Claim to be lodged via the diplomatic channels

If a claimant wishes to pursue a claim for damages to property, injury or death, it must approach its government which, in turn, presents the claim on the national’s behalf to the launching State through the diplomatic channels.

It is not necessary for local remedies to have been exhausted before the claim is presented (pursuing a domestic legal case would raise issues of state immunity). A claimant is not precluded from instituting a claim in a court or tribunal of the State whose space debris caused the damage; although the costs would be prohibitive, a number of jurisdictional hurdles would have to be overcome and the claimant would not enjoy the gravitas of having their State pursue the claim on their behalf. A claim cannot be presented via the diplomatic channels if the same claim is being pursued in any other court or tribunal. In the past, most claims have been settled through the diplomatic channels.

space_debris

Amount of compensation

The amount of compensation will be determined in accordance with international law and the principles of equity and justice. Compensation can be claimed for “damage” defined in the relevant treaty as “loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical…”. The States may agree to another form of compensation other than monetary compensation.

Establishment of a Claims Commission

If within one year of notification of the claim no settlement of a claim is arrived at through diplomatic negotiations, the respective parties must establish a Claims Commission at the request of either party. The Claims Commission must be composed of three members: one appointed by the claimant State, one appointed by the launching State and the third member, the chairperson, to be chosen by both parties jointly. In this event, States are likely to approach the Permanent Court of Arbitration, an intergovernmental organisation based in The Hague, Netherlands, which provides a variety of dispute resolution services to States (and private parties) arising out of treaties.

The Claims Commission will decide the merits of the claim for compensation and determine the amount of compensation payable, if any. The decision of the Commission is final and binding if the parties have so agreed; otherwise the Commission shall render a final and recommendatory award, which the parties shall consider in good faith. It shall also deliver a certified copy of its decision or award to the Secretary-General of the United Nations.

In over 60 years of space exploration, there have only been a few third party liability claims arising from space activity and a substantial claim is yet to test the parameters of a space insurance policy. States’ absolute liability for national space activities ensures that they register and supervise national space activity which promotes overall safety and minimises the risk of space debris falling on your ceiling, or cow.

About the Author

Jaymion Hendricks is an admitted attorney (non-practising) and has a keen interest in international space law. He holds an LLM International Air, Space and Telecommunications Law (University of Pretoria). Born and raised on the Cape Flats, he is currently on assignment to The Hague, Kingdom of the Netherlands. He writes in his personal capacity.

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The Role of ICT in Promoting the Rule of Law in Ethiopia: The Impact of Social Media

Henok-KebedeAuthor: Henok Kebede
Lecturer, School of Law at Hawassa University, Ethiopia

The Role of ICT in Promoting the Rule of Law

Various scholars have defined the phrase from different perspectives, therefore, defining rule of law in a universally agreeable manner is not an easy task. The most known definition is the one provided by Aristotle: Rule of law is an absence of rule of man. But this definition is very general with the need for elaboration. A more elaborated, perhaps understandable, definition of rule of law is by Lord Bingham, essentially said that “…all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts

In rule of law, there is no discrimination based on anything; all should abide by the enacted laws and whoever disobeys it must bear the consequence. In this regard, Trevor Allan, a 20th century political philosopher, stated that the law, always, has to safeguard the governed from the governor by shielding the individual from hostile discrimination by the holders of political power. Furthermore, rule of law is one of the manifestations of good governance. In this regards, the Organization for Economic Cooperation and Development (OECD) has indicated that good governance is characterized by participation, accountability and transparency, rule of law, effectiveness, and equity. So, ensuring rule of law is vital in bringing accountable, transparent, participatory and effective governance system which in turn could bring overall development.    

There are different means to promote rule of law, including the use of ICT. The OECD highlights that ICT plays a significant role in the respect of rule of law so that good governance will be achieved. There are different ways by which ICT plays this role in the respect of rule of law. ICT makes laws easily accessible, flexible, easily applicable and coordinately implementable so that rule of law will be enhanced. In essence, ICT makes legal rule visible to the public through online availability of relevant legislation. Recently, it is easy to access laws enacted by parliaments on the internet, which helps people to understand the consequence of their actions; so that they may be deterred if the acts are unlawful. In addition, ICT also provides citizens access to information about court procedures. In this regard, using ICT, citizens easily understand the jurisdiction, power and function of courts which is as important as knowing substantive rights. Furthermore, it is believed that judicious and well-informed decision-making is dependent on the quality and timeliness of information.  ICT also makes the law flexible by assisting the legislator or executive to gather information about the possible implication of enacted laws in the society. ICT will significantly reduce time and energy in the study of the impacts of enacted laws. ICT also make laws easily applicable. There are laws which need technologies to be implemented; for instance, the tax laws need computerized system to cope with the change in the system of tax related frauds, traffic rules of speed limits also needs new technologies to be effectively implemented.

The other importance of ICT in the respect of rule of law is the fact that it helps various laws to be implemented in coordinated manner. For instance, ICT can help create mega data systems necessary for inventory taking of property for the purpose of assessing property tax.  In addition, ICT can help in identifying crime suspects by designing systems which loads various information of individuals like crime record and other important information.

internet_ethiopia

Rule of Law in Ethiopia: The Impact of Social Media

Rule of law is central for democratic order and respect for human rights. It is also important to establish law and order. The existence of rule of in a country shows the legitimacy of government by making all the stakeholders subject to laws.  When citizens believe the government is legitimate, they demonstrate it by respecting the laws enacted by its organs. This illustrates that legitimacy of government is a cornerstone of good governance. If the government’s laws are not respected, there would definitely be use of unnecessary force to compel citizen to follow legal orders which will create instability. The instability is, however, the source of ‘bad government’ i.e. violations of citizens basic rights, corruption and crime.    

The role of ICT in general and internet in particular in promoting rule of law in Ethiopia is therefore immense. There are two ways by which Internet will help on this regard. The first is by serving as a medium of communication to enlighten citizens about the laws of the country. In law, there is a well-known principle that ‘ignorance of law is not an excuse’ for a person to escape punishment/liability.  Even though this principle makes a person liable despite not knowing about the law which prohibits the act, for the purpose of good governance knowing about the law is very crucial. This is because it helps citizen to understand the existence of laws and the consequence thereof. Thus, various law blogs, websites, and social media pages can play important roles in awareness creation about legal rules in Ethiopia. In addition, they will also help in informing the public about any changes regarding the existing legal order. Furthermore, ICT can serve as a medium through which a draft bills can be discussed for possible input from the society. In this instance, we can take the recent process on certain legislations after the government’s reform measures as an example. For example, the committee established by the government to facilitate the revision of civil society proclamation and anti-terrorism proclamation received comments from social media, letting people known about the process, conducting public discussion and transmitting it on TV and Radio.     

The other way by which internet plays a positive role in promoting rule of law in Ethiopia is by creating a means on which citizens report illegal activities. With the introduction and growth of internet service, citizens and to a very large extent, civil society representatives like NGOs, human right activists, and various political actors have developed the habit of reporting activities of rule of man. Massive illegal activities which resulted for massive human right violations, like the internal displacement of Gedeo people, the internal displacement of Oromos following the inter-communal conflict between Somalis and Oromos, and more recently, the various human right violation in most part of the county particular in Benishangul-Gumuz, Tigray, Oromia, and Amhara regions have been reported using ICTs. 

However, ICTs, particularly the internet, has also had a negative impact on the promotion of rule of law in Ethiopia. For instance, following the recent political changes, most government institutions have lost their legitimacy. As a result, mass atrocities and internal disturbances have become common in Ethiopia. The negative role played by social media through the dissemination of hate speech about the people targeted is immense in this regard. The emergence of various extreme informal groups in different parts of the country has also exaggerated the situation. In some instances, the groups have been seen taking over the natural duty of government by directly and indirectly forcing government officials towards their goals. Consequently, this led to the conflict between individual rights with group rights which in the meantime resulted in annihilation of rule of law.

Conclusion

ICT plays a great role, both positive and negative, in the respect of rule of law in Ethiopia. By serving as a medium of communication to enlighten citizens about the laws of the country and the changes thereof, by creating a platform through which a draft bills can be discussed for possible input from the society, and by creating a means on which citizens report illegal activities, ICT plays positive role in the promotion of rule of law. However, care must be taking to ensure that the same media are not weaponized to undermine rule of law in Ethiopia.

About the Author

Henok Kebede is a Lecturer in the School of Law at Hawassa University, Ethiopia who teaches Laws, Jurisprudence and IHL. He holds an LLB from Hawassa University and an LLM in Public International Law under the program option of International Criminal and Humanitarian Law from the University of Oslo, Norway.

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The Cost of Separating Powers

Chris HimsworthAuthor: Chris Himsworth

University of Edinburgh, United Kingdom 

It was reported on 28 April 2021 that authorities in Lesotho could not appoint a new High Court judge because of a lack of funds. While this might have come as a shock to most people, this will not have surprised the authors of the Report on the Independence of the Judiciary in the Kingdom of Lesotho, published only a month earlier in March. Chaired by Justice Zak Yacoob, former South African Constitutional Court Judge, a Working Group of the Southern African Development Community (SADC) Lawyers’ Association had aired a trenchant critique of the current condition of judicial independence in Lesotho.

Opening with some general propositions on the principles of judicial independence and the separation of powers, the threats to the realisation of these principles in Southern Africa and the post-independence historical background in Lesotho, the Report moved on to the presentation of constitutional provisions which “speak to judicial independence”. There is, inter alia, commentary on the fragility of the Court of Appeals (including its substantial reliance on foreign judges and its lack of permanence) ( pp 14 and 50-57), the unsatisfactorily insecure status of the “Constitutional Court” (p 14), the executive domination (by King and Prime Minister) of the judicial appointments processes (pp 14-15), and the capacity for political manipulation of judicial appointments during the events of 2013-15 (pp 22-23, 49-50).

The Report then reverts to general considerations in an elaboration of “Best Practices and Guidelines”, principally by reference to the Lilongwe Principles, the Latimer House Guidelines and the Bangalore Principles; and some comparative material from Zambia, Zimbabwe and South Africa; before closing with an itemisation of the “Most Prevalent Threats” identified in Lesotho.

What is most striking about the Report is that, whilst judicial independence may, of course, be threatened by political abuse, the dominant theme throughout is the threat posed by the lack of resources. The impermanence of the Court of Appeals derives from payment of judges by stipend or sitting allowance rather than salaries, in part at least, to save money (pp 14, 57). There is a lack of proper facilities and resources, and poor salaries for High Court judges, one consequence of which has been a failure to attract private sector applicants but instead compelling reliance on registrar and magistrate applicants (p 15). Section 5(4) of the Report on “Funding of the Judiciary” exposes the lack of a guaranteed level of funding provision – “the fact that the judiciary is solely reliant on the Executive for its funding and at the mercy of the Executive for the allocation of its budgets negates the independence of the judiciary” (p 21).  “Best Practices” include the need for adequate judicial resources including security of tenure, conditions of service and remuneration “to utterly secure economic independence” (p 30).

lesotho_court

The Report recommends that “[t]he State must provide the Judiciary with the means necessary to equip itself properly to perform its functions. To do so, the judiciary must be able to advocate for, and motivate its needs in terms of budget, material and human resource needs. The funds allocated to the judiciary must be properly utilised and safeguarded from alienation or misuse. The availability of funding to the judiciary should not become a weapon to be used [sic] as a means of exercising improper control over the institution” (p 39).

In the light of those overall conclusions suggesting a systemic under-resourcing of the judiciary in Lesotho, it is no great surprise that, as reported, according to the Lesotho authorities: “Appointing a judge for Tšifa-li-Mali means that judge needs a place to stay in Leribe, transport for the judge and other senior staff and that all needs money which we currently do not have. That is why we had to stop the process so we can seek the funds.”

As the SADC Report demonstrates, the consequences of under-funding spread much more widely across the system and impinge directly on the features impacting on independence. To an extent this is merely to demonstrate a wider truth. No rules and institutions intended to secure constitutional rights and standards are cost free and their realisation will also depend on funding Separating powers and creating institutional autonomy cost money.

But it has also to be wondered whether even more fundamental questions are posed by the example of Lesotho? Is it possible to go beyond the generalities of an insistence on “satisfactory” or “adequate” funding and to specify with more precision minimum funding standards in particular jurisdictions? In the absence of such specificity, will it ever be possible to analyse the consequences of funding failures or to be seen to be applying internationally ordained standards at all? In conditions of crisis for the funding of all public services – by no means always the case where state funds (world-wide) are diverted from the judiciary in the pursuit of (sometimes malign) political choices – can judicial independence ever be funded?

About the Author

Chris Himsworth is Emeritus Professor of Administrative Law at the University of Edinburgh, United Kingdom and author, with Christine O’Neill, of the fourth edition of Scotland’s Constitution: Law and Practice (Bloomsbury Professional, 2021). During 1970-73 he was a lecturer in law at the University of Botswana, Lesotho and Swaziland.

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The ACtHPR: From the Politics of Gender to the Gender of Politics? Why Women’s Representation on the Bench is not Enough

Dawuni-AdjolohounAuthors: J. Jarpa Dawuni & Sègnonna H. Adjolohoun

In September 2018, the African Court on Human and Peoples’ Rights (ACtHPR or the Court) made history by swearing in two female judges, thereby bringing the Court’s composition to six women out of its 11 judges. The Court had thus achieved a female majority bench for the first time since its inception in 2006. The symbolic representation of women judges made the bench the most gender-balanced of all times. While women currently make up 55% of judges on the ACtHPR, they account for 35% of all judges since the Court was established, and only 20% of the leadership in the institution (i.e., two women have served in the Bureau versus eight men). In the following discussion, we analyse why women’s symbolic representation has not translated into their substantive leadership within the Court. We query whether the changes introduced to the Rules of Court in 2020, will be a catalyst for a sustainable women’s representation in the Court’s Bureau in the elections slated for 31 May 2021.

Achieving Gender Parity

The women majority bench of the Court is an achievement of an electoral policy adopted within the political sphere of the African Union, including at the helm, by the Assembly of Heads of State and Government (AHSG). The policy is firstly grounded in treaty law as reflected in Article 14(3) of the Court Protocol, which provides that “In the election of the judges, the Assembly shall ensure that there is adequate gender representation”. This statutory commitment was subsequently translated into a Decision of the Executive Council of the African Union, which expressly prescribing that, in addition to the geographical representation, “at least one member from each region should be a woman” and further directing that “the modality shall become effective immediately”. In implementing this Decision during the July 2016 summit held in Kigali, Rwanda, the policy organs postponed the elections of judges for the southern and eastern regions after nominating Member States had filed male candidatures for the concerned seats.

The African Union Commission thereafter put these norms into practice under procedural electoral rules as consistently stated in the Notes Verbale transmitted to Member States by the Office of the Legal Counsel ahead of every election of judges to the Court. Prior to achieving gender parity by statutory requirement as earlier explained, the ACtHPR itself had portrayed a predisposition to gender sensitivity by electing two women judges to the Bureau. Justice Sophia A. B. Akuffo of Ghana was first elected as Vice-President in 2008, reelected in 2010, and then as President in 2012; while Judge Elsie Nwanwuri Thompson of Nigeria was elected as Vice-President in 2014.

The Bureau

Established under Article 21 of the Court Protocol, the Bureau of the Court shall consist of a President and a Vice-President, each elected among current judges for a two-year term, renewable once for another two years. The Bureau is responsible for the administrative components of the Court. Since the 2016 Executive Council’s equal representation decision was applied, only male judges have been elected to serve in the Bureau of the ACtHPR despite the growing number of women joining the Court’s bench.

Pursuant to Rule 11(6) of the 2020 Rules of Court, the next election of members of the Bureau is scheduled to take place on 31 May 2021, which is the first day of the 61st Ordinary Session of the Court. Will the female majority of the bench translate into a gender-balanced leadership within the Bureau? In other words, has the politics of achieving gender parity led to a stagnation in women’s (non)representation in the Bureau rather than promoting their substantive and sustainable representation as could have been expected?

Figure 1. Presidents of the Court (2006-2021)

NAME

COUNTRY

YEARS

SEX

Gérard Niyungeko

Burundi

2006-2008; 2010-2012

M

Jean Mutsinzi

Rwanda

2008-2010

M

Sophia A. B. Akuffo

Ghana

2012-2014

F

Augustino Ramadhani

Tanzania

2014-2016

M

Sylvain Oré

Côte d’Ivoire

2016-2018; 2018-2021

M

Figure 2. Vice-Presidents of the Court (2006-2021)

NAME

COUNTRY

YEARS

SEX

Modibo Tounty Guindo

Mali

2006-2008

M

Sophia A. B. Akuffo

Ghana

2008-2010

2010-2012

F

Fatsah Ouguergouz

Algeria

2012-2013

M

Bernard Makgabo Ngoepe

South Africa

2013-2014

M

Elsie Nwanwuri Thomspon

Nigeria

2014-2016

F

Ben Kioko

Kenya

2016-2018; 2018-2021

M

Beyond gender representation

Hanna Pitkin’s seminal work on the Concept of Representation has directed much of the discourse on our understanding of women’s representation—formalistic, descriptive, symbolic and substantive. The 1995 United Nations Conference on Women in Beijing emphasized a 30% floor benchmark for women’s representation for meaningful change to happen. It is argued that at 30%, there is a critical mass of women to set in motion institutional cultural change towards having gender inclusive policies and outcomes. A plethora of existing international frameworks such as Goal # 5 of the UN SDGs,  and Article 8 of CEDAW provide  a normative basis for the right of women to participate in international organisations.

female_judges

Crucial to the African context is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which provides in Article 9(2) for the right of women to hold leadership positions, to “ensure their effective representation at all levels of decision-making”. In a more strategic commitment, the African Union Agenda 2063, specifically Goal #5, has a target to achieve “an Africa whose development is people driven, relying on the potential offered by people, especially its women and youth and caring for children.”

Through these international instruments, women’s representation must be guaranteed and all efforts made to ensure the realization of their leadership potential in all institutions including judicial ones such as the ACtHPR. Representation must therefore mean much more than just presence. Consequently, we argue that the empirical analysis of women’s representation in international courts must involve their substantive representation in leadership positions including in the ACtHPR.

The International Criminal Court (ICC) showed that it is possible to have women in leadership—including an all-female presidency in 2015 with Judge Silvia Fernández de Gurmendi of Argentina as President, Judge Joyce Aluoch of Kenya as First Vice-President and Judge Kuniko Ozaki of Japan as Second Vice-President. The African Commission on Human and Peoples’ Rights, and the African Committee of Experts on the Rights and Welfare of the Child have both achieved women majority compositions of 7 out 11 members; and the Commission has so far had two all-female Bureaux.

In an earlier article, Beyond the Numbers: Gender Parity on the African Court on Human and Peoples’ Rights — A Lesson for African Regional Courts?, it was argued that the gains made in reaching a gender balanced bench at the ACtHPR should not be seen at the penultimate goal to achieving gender equality within the institution, including at the highest level. Similarly, in a cautious celebration of the gender parity of the ACtHPR in 2017, emphasis was placed on the need to take women’s representation “beyond the political discourse.” We believe that this ultimate goal of moving from a mere symbolic presence to substantive representation can be achieved through a corresponding presence of women in the Bureau.

The ACtHPR must be commended for achieving gender balance within a relatively short span of a decade since it was established, compared to the International Court of Justice for instance, which, in 75 years, still has only 3.7% of women represented on its bench. In fairness, credit should first be apportioned to the African Union for designing a revolutionary gender policy. Having said that, credit should also go to judges of the Court for giving life to the policy by electing the two women judges who have so far led the institution as president and vice-president respectively.

Noteworthy, the Court had its only two women judges in leadership positions at times when their men counterparts held the bench majority. Arguably, this trend was reinforced in the recent normative standards of the Court. In its 2010 Rules, the Court only took a formalistic approach to gender by repeatedly referring to the Bureau members as “he/she”.[1] However, under the 2020 Rules, a full provision is devoted to prescribing that “in the composition of the Bureau, the principles of gender parity, … and a rotation system shall, as far as possible, be observed”.[2]  Notwithstanding these commendable developments, there is an urgent need to move the discussion further by examining whether the statutory standards will expand opportunities for sustainable women leadership in practice.

Women in leadership – What the numbers tell us

Since the ACtHPR began its operation in 2006, women have accounted for only 20% of the judicial leadership positions, one time as president, and three times in the vice-president role. The fact that leadership involvement in the Court may not be limited to its Bureau is not overlooked. Thus, while women judges could preside over any of the committees or working groups that the Court may establish to facilitate its work, the bench level majority should be the standard for measuring substantive leadership representation. Notably, and arguably due to limitations in the Court Protocol, deliberations of any such committees are subject to the adoption of the plenary.[3]

Figure 3. Women on the Bench

Name

Country

Years at the Court

Leadership

Sophia A. B. Akuffo

Ghana

2006-2014

President

(2012-2014)

Vice-President

(2008-2010); (2010-2012)

Kellelo Mafoso-Guni

Lesotho

2006-2010

Elsie Nwanwuri Thompson

Nigeria

2010-2016

Vice-President

(2014-2016)

Solomy Balungi Bossa

Uganda

2014-2016

Marie-Thérèse Mukamulisa

Rwanda

2016-2022

Ntyam Ondo Mengue

Cameroon

2016-2022

Tujilane Rose Chizumila

Malawi

2017-2023

Chafika Bensaoula

Algeria

2017-2023

Stella Isibhakhomen Anukam

Nigeria

2018-2024

Imani Aboud

Tanzania

2018-2020

2021-2027

Expanding opportunities for leadership

The gender inequity in leadership in the ACtHPR can be viewed by assessing election practices in two eras. Under the first era governed by the 2010 Rules of Court, women’s representation did not translate into the internal governance of the institution arguably because the Court’s Protocol only provided for “adequate gender representation”.[4] The African Union AHSG was therefore neither bound by equality nor by equity, and the Court itself therefore likely took a minimalist approach to women’s representation in leadership rules. However, as earlier discussed, the then men majority Court took a progressive approach by electing women in leadership positions.

The second era of what we call the ‘politics of gender’ began, we argue, with the adoption of the 2020 Rules of Court. The prescription for “gender parity” of the Bureau under Rule 10(2) of the said Rules is unprecedented in the operation of the Court. The first post-2020 Rules election is the one slated to be held on the first day of the 61st Ordinary Session of the Court (May-June 2021) and one therefore awaits to see whether the politics of gender will translate into a gender of politics.

One of the most significant developments under the 2020 Rules of Court, is the nomination process under Rule 11. Judges will now be notified of the vacancies 45 days prior to the election, and may nominate fellow colleagues while nominees are required to formally accept nomination and submit an undertaking to take up the post should they be elected. The list of candidates is then circulated 15 days to the election arguably for sufficient notice, and engagement, ahead of the poll date. Although none of these provisions is expressly gender framed, they introduce processes that strongly purport commitment, publicity, and campaigning. Such processes are channels that may serve in advocating for a purposive implementation of the new “gender parity” trend brought by the 2020 Rules of Court.

 

Why women in leadership matters

Institutional cultures develop over time. Dynamic institutional cultures are critical to the development and advancement of any institution. The ACtHPR started off with what appeared to be a gender-inclusive leadership culture, which must now be capitalised into a systematic and sustainable institutional practice.

While we can spend our time detailing the legal and moral arguments why women in leadership positions matter, we argue that women in leadership matter for the simple yet profound reason that women must not carry the burden of justifying their right to leadership. Judge Julia Sebutinde makes a strong argument in the context of symbolic representation:

For over seventy years there have been predominantly male judges serving on the International Court of Justice, yet nobody ever asks those kinds of questions when it comes to men. Why should the female judges serving on the Court have to justify or validate their presence or role on the Court? As long as we meet the statutory qualifications and are duly elected, we have as much right to sit on that Bench and to participate in the settlement of State disputes, without having to validate or justify our presence there with “value addition,” period.[5]

Merit does not have to have a male face. A socio-legal approach requires an expansive definition of merit to include the broad range of skills and talent women bring to the table. If women judges have the merit to be on the bench, they must have the merit to serve in leadership roles, without having to justify the “difference” they will make in those positions of leadership.

In 2006, Justice Sophia A. B. Akuffo of Ghana was among the first batch of five judges appointed to the ACtHPR. From Akuffo’s account of the initial interactions among the judges, gender sensitivity appeared to be an issue within the Court from its genesis:

As operations of the Court progressed, issues of gender equality came to the fore. Akuffo noticed that the male judges were uncomfortable with how confidently the female judges expressed themselves – particularly when they disagreed with the male judges on pertinent issues (p. 103).[6]

To address these challenges, and to create a critical mass of women on the ACtHPR, Justice Akuffo made it a point to call on governments to search for, and nominate women to the Court:

As President of the Court, Akuffo consistently impressed upon the Member States of the African Union to fulfil the protocols relating to gender parity by nominating more women to the Court. Oftentimes, the Member States chose to nominate male judges instead of female judges. In Akuffo’s final report for the Court, she encouraged the Member States to fill her position, when vacated, with a female judge as there were many highly qualified female judges on the continent (p. 103).[7]

Her plea has certainly been heard as witnessed by the increasing number of women elected to the ACtHPR over the years. Besides, the Court appears to have evolved notably with respect to the participation of women judges. If women judges’ contribution to the Court’s jurisprudence is anything to go by, the significance of separate and dissenting opinions filed by them speaks for itself.[8]

 

Conclusion

The election of the next president and vice-president of the ACtHPR will no doubt mark a true test of whether the principles and norms of gender equality are having a real impact in transforming the institutional culture of the Court. Gender equality on the bench of the ACtHPR must move beyond symbolic representation of women, to more substantive representation evidenced in the leadership roles they play within the administration of the Court.

Noteworthy, the current female majority could shift to a male majority in 2022 with the next election of judges, given that the rotating seat that helped achieve female majority is based on geographical equity and attributed without any mandatory adherence to a gender rule. Thus, the judges on the Court should seize the upcoming election as an opportunity to advance women’s representation in leadership roles in the institution.

Against the foregoing discussion, we examine in our forthcoming article, whether the current gender capital of the ACtHPR is an end or a means to addressing gender related issues as far as human rights justice in Africa is concerned. In other words, three years after gender parity was achieved, has the female majority bench led to a gender-inclusive institution?  

[1] See e.g., Rules 9, 10, 11 and 12 of the 2010 Rules of Court.

[2] See e.g., Rule 10(2) of the 2020 Rules of Court.

[3] See Art 26 of the 2020 Rules of Court.

[4] See Art 14(3), African Court Protocol.

[5] See Nienke Grossman. (2018). Julia Sebutinde: An Unbreakable Cloth. In Dawuni, J and Kuenyehia, A (eds.), International Courts and the African Woman Judge: Unveiled Narratives. Routledge Press.

[6] See, Kuukuwa Andam and Sena Dei-Tutu (2018), “Sophia Akuffo: Balancing the Scales of Justice”, in Dawuni, J and Kuenyehia, A (eds.), International Courts and the African Woman Judge: Unveiled Narratives. Routledge Press.

[7] Idem.

[8] The authors offer a deeper analysis on this question in their forthcoming article.

About the Authors

J. Jarpa Dawuni, Ph.D. is Associate Professor of Political Science at Howard University and the founder and Executive Director of the Institute for African Women in Law.

Sègnonna H. Adjolohoun, LL.D. is Extraordinary Lecturer and Visiting Professor of Human Rights and Comparative Constitutional Law, University of Pretoria & Central European University (The analyses made in this article are only the academic views of the author).

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Using evidence in the time of COVID-19 to reduce health inequalities for Persons with Psychosocial Disability in South Africa

Linda-AjembaAuthor: Linda Ajemba

LLD candidate, Centre for Human Rights, Faculty of Law, University of Pretoria

The ongoing coronavirus (COVID-19) pandemic has had an unparalleled impact on all spheres of life globally. As with other disasters, evidence shows that while the impact of the COVID-19 pandemic threatens all members of the society, it disproportionately affects persons with psychosocial disabilities. Persons with psychosocial disability refers to individuals suffering from a spectrum of mental conditions that influence their feelings, perceptions and behaviors. A psychosocial disability arises when someone with a mental health condition interacts with a social environment that presents barriers to their equality with others. Persons with psychosocial disabilities are greatly impacted by diverse response measures employed by governments across the globe to curb the pandemic.

Despite the fact that universal inclusion is a basic principle of the Sustainable Development Goals (SDGs), inclusion of persons with psychosocial disabilities in humanitarian interventions and development policies during disasters remains obscure. In March 2020, the government of South Africa declared the outbreak of the coronavirus a national disaster, effectively implementing stringent and militarized measures to curtail the spread of the virus. Imposed measures which include nationwide lockdown, social distancing and limited access to social and health services, failed to include vital health services for people with psychosocial disabilities as they were not regarded as ‘essential services’. Evidence shows that these rigid response actions markedly increase emotional distress and cause extreme threats to survival, thereby substantially increasing the risk for psychosocial disability as well as exacerbating the severity and duration of psychiatric morbidity in people with psychosocial disabilities. They pose huge threats to South Africa’s public mental health in a society where one in three individuals develop a psychiatric disorder during their lifetime, and in a country defined by its preexisting racial and economic inequity.

The limiting responses to the COVID-19 pandemic in South Africa stem from inequalities that were established during the apartheid regime. In addition to widespread prejudice related to race, gender and socio-economic factors, people with psychosocial disabilities experience stigma and discrimination based on their disabilities. This includes lack of access to healthcare, lack of access to education or appropriate support within schools, lack of access to employment opportunities, and social seclusion. Amidst the high rates of mental illness in South Africa, only 27% of patients with severe mental illness receive treatment. The barriers to accessing care despite the high prevalence of mental illness in South Africa suggests that mental healthcare must be a priority in emergency response plans.

mental_health

Stigma plays a major role in persistent and prolonged suffering of people with psychosocial disabilities. In the context of the coronavirus pandemic, the gross undermining of the human rights protection and mental health needs of vulnerable populations in South Africa’s emergency response policy and management further fortified the already existent attitudinal, environmental and institutional barriers. Response efforts to contain the spread of the virus through restricting movements and limiting social interactions posed unintended consequences which additionally restrict access to social support structures, treatment, and medications for people with preexisting mental health challenges. Previous global studies on the consequences of these measures report elevated risk for mental illness and suicide. Thus, for millions of South Africans with psychosocial disability, the impact of stigma mediates the association between psychosocial disability and poorer health outcomes attributable to heightened risk of developing comorbid illnesses and poor treatment compliance. In a statement mad by the Mental Health Portfolio Manager at Pharma Dynamics in South Africa, he noted that:

We are likely to see much higher rates of mental illness among South Africans post the pandemic and need to increase psychosocial support efforts to avoid a COVID-19 related mental health crisis. He also stated that those with pre-existing mental health conditions have reported their symptoms getting worse as a result of the pandemic.

While the lockdown measures imposed by the government of South Africa effectively curtailed the rapid spread of COVID-19 infections and associated morbidity and mortality risk, the mental health implications intensified by these measures cannot be overlooked in a country with significant psychiatric morbidity and inequity in accessing the limited mental health care infrastructure. The multiple levels of inequality which stem from stigma towards persons with psychosocial disability invariably depicts that COVID-19 responses have unequal impacts within diverse contexts and amongst a varied range of South Africans. It exposes disparities in inclusion of the needs of persons with psychosocial disabilities, particularly in emergency policy responses.

Regarding vulnerable and at-risk populations, the issues arising in South Africa may be broadly applicable to other countries, particularly low and medium-income countries. These issues emphasize ethical discourse on ameliorating the conditions that produce vulnerability, offering unique opportunities to prioritize the expansion and improvement of mental health services and support to ensure a rights-based approach in such services so the rights of persons with psychosocial disabilities are adequately respected.

The Bill of Rights, which forms part of the Constitution of the Republic of South Africa (1996), states that all persons, including persons with disabilities are equal; that everyone has the right to access healthcare services; that everyone has inherent dignity and the right to have their dignity respected and protected; and that everyone has the right to life. In order to achieve these, measures that consider the reality of persons with psychosocial disabilities and allow for reasonable accommodation of their needs must be developed with their involvement and implemented.

There is need for the government of South Africa to rethink priorities and revisit structural discrimination in mental healthcare policies to move towards human rights compliant and sustainable mental health systems that encompass the whole community. Comprehensive long-term strategies to mitigate the health and socio-economic consequences of the current crisis on people with psychosocial disabilities urgently need to be developed and implemented. This includes consistent mass media psycho-educational interventions and continued eased access to psychosocial support and care for people with psychosocial disabilities and people experiencing mental distress. This means providing measures that allow for flexible service provision, peer support, helplines and online psychosocial support.

About the Author

Linda Ajemba is an LLD candidate at the Centre for Human Rights, Faculty of Law, University of Pretoria. She is involved in research, monitoring and evaluation at the Centre for Human Rights, University of Pretoria. She is also pursuing her Master’s in Public and Development Sector, Monitoring and Evaluation at the University of Witwatersrand.

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Seventeen years of the Pan-African Parliament: taking stock and reimagining its future

Bonolo-Makgale-Tariro-Sekeramayi
Authors: Bonolo Makgale and Tariro Sekeramayi

Introduction

Dr. John Henrik Clarke once remarked, “History is not everything, but it is a starting point. History is a clock that people use to tell their political and cultural time of day. It is a compass they use to find themselves on the map of human geography. It tells them where they are, but more importantly, what they must be.”

The 18th of March 2021 marked the commemoration of the Pan-African Parliament’s (PAP) 17th year anniversary. The Midrand, South Africa based Parliament was established by the Abuja Treaty as one of the organs of the African Union (AU). At the time of its establishment, the PAP was earmarked as an organ of the AU that will provide a platform for increased public participation and for the Africans to participate in decision-making processes that affect the continent. The Parliament consists of representatives nominated by local legislatures and currently represents all of AU member states, with the exception of Eritrea. The PAP aims to foster development and economic integration on the continent, espousing the principle of “batho pele”, a Southern African political principle that translates to ‘people first’. The core of the PAP’s mandate is to promote citizen engagement and representation as democratic ideals. As we mark this incredible milestone, we take stock of how far the PAP has come and what its prospects  are for improvement as we advance.

Reflection & Opportunities for Improvement

As we reflect, a pertinent question to ask is the extent to which the PAP has created avenues to engage with African citizens effectively. The PAP has recognised Civil Society Organisations (CSOs) as essential partners in efforts to promote human rights, legislative reforms, and other initiatives that further good governance and democracy in Africa. One such strategic partnership is between the PAP and the Centre for Human Rights at the University of Pretoria through its Democratic and Civic Engagement Unit. This partnership aims to ensure CSO engagement with the PAP. It has done so through various initiatives such as the CSO forum that capacitates African CSOs across the continent  to engage with the PAP and involvement with the PAP advocacy and outreach initiatives. However, a criticism levelled against the PAP is the lack of genuine engagement with the citizens of the states they represent and the lack of a framework that guides the interactions between the Parliament and non-state actors. This is one area where  the formal mechanisms established to strengthen public participation and inclusion should be enhanced. 

In 2021 as we celebrate the anniversary of the PAP amid COVID-19 and against the backdrop of the AU’s 2020 theme of Silencing the Guns, it is prudent to look at the PAP’s performance in times of crisis and reflect on what we would imagine the role of the PAP to be in these situations.  One of the PAP’s objectives is to ‘promote peace, security and stability’ on the continent. Nevertheless, in 2020 there was an increase of citizens’ human rights violations by states that threatened peace, security, and stability in many ways. We saw increased police brutality in Nigeria, which culminated in the #ENDSARS movement, which was met with more violence from the state, leading to loss of life. We also saw an increase in excessive use of force by security forces in South AfricaUganda and Zimbabwe. Amid the lockdowns necessitated by COVID-19, the Southern African region saw a spike in gender-based violence (GBV), with Amnesty International reporting that women were most unsafe in their homes during the lockdowns. 

PAP-17

Most of the civil unrest that occurred in Africa was in response to issues linked to good governance amid the COVID-19 crisis and other issues affecting democracy. As such, the silence of the PAP as a ‘parliament of the people’ is disconcerting. We note that the rules of procedure may have hindered the PAP’s ability to intervene in these issues, as the rules had not been modified to allow the PAP to sit virtually and deliberate on  these issues. The time it has  taken for the PAP to adjust and amend its rules of procedure to accommodate the pandemic illustrates a lack of creativity and the favouring of bureaucracy over efficiency. As we look towards the next decade and the continuing mandate to Silencing  the Guns, African governments will have to change the violent and repressive ways in which they engage with their citizens. As a continental Parliament, the PAP can play a central role in this. It may need to increase scrutiny on states that violate human rights and democratic ideals and be more vocal about these issues through observer and fact-finding missions that can culminate in recommendations and resolutions on volatile situations.

In fulfilment of its objectives, the PAP has adopted various resolutions and recommendations around issues of development, protection of human rights, and efforts to foster peace and security. We have seen these interventions in countries such as Uganda, Chad, and the Central African Republic. The PAP has also prioritized the self-determination of the peoples of the Sahrawi Arab Democratic Republic through resolutions. The PAP has also taken strides towards protecting vulnerable groups in Africa, such as persons with albinism seen in the resolution passed in 2018 which gave more concrete measures on the protection of persons with albinism. To this end the PAP encouraged implementation of the Regional Action Plan on Albinism in Africa as well as annexure of this plan to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa. We appreciate the work of the Justice and Human Rights Committee of the PAP in the resolutions, recommendations, and other initiatives to protect vulnerable groups.

The PAP Malabo Protocol

In 2014, the AU adopted the  Protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament (Malabo Protocol). The Malabo Protocol was adopted to amend the current Protocol relating to the PAP and  is expected to enable the Parliament to extend its functions and allow members of the Parliament to be elected through adult suffrage.

While the amendments in themselves do not confer the power to make laws for the Continent on the PAP, there are some key features of the Protocol that should be celebrated particularly because they purport to strengthen accountability and representation through institutional reforms. The Malabo Protocol introduces gender balance in the Parliament’s membership, requiring representatives from the various legislatures to have at least two women in the delegation whereas currently delegations are required to have at least one woman out of the five members. This is an essential stride towards increased representation and participation of women in politics, which is still an issue on the continent. 

The Malabo Protocol will also introduce exclusive membership to the PAP and election through universal suffrage in their respective countries. Exclusive membership means that members of the PAP will be elected from outside their national legislatures and will not  be members of their local legislatures. This will mean that the PAP will become more representative of the will of the people it governs. It will become more accessible as the election process will afford ordinary citizens an opportunity to contest in elections to represent their state at the PAP. The exclusive membership will also allow a greater focus of the PAP issues at local legislatures as members will have an exclusive mandate to PAP which will increase accountability measures.

Concluding Remarks

As we commemorate this anniversary and celebrate how far the PAP has come in the past decade, we commend and celebrate the Parliament’s steps in fulfilling its objectives and mandate, albeit with limited powers. We also celebrate the proposed reforms to the PAP through the Malabo Protocol that will increase citizen participation and representation and allow for increased access to the PAP.  The ratification of the Malabo Protocol will be essential to improving the Parliament’s effectiveness. To this end, we encourage the member states of the AU who have not yet ratified the protocol to do so and allow the PAP to reach its full potential. In imagining the PAP of the future, it will be necessary for the PAP to ensure that institutional reforms take place and that there are measures in place that allow for monitoring and evaluating the institution’s progress and the extent to which states are implementing the recommendations tabled by the PAP.

Message of Solidarity 

Read the message of solidarity to Pan-African Parliament (PAP) on behalf of civil society delivered by Prof Frans Viljoen, Director, Centre for Human Rights on 18 March 2021.

Message of Solidarity

About the Author

Bonolo Makgale is the Manager of the Democracy and Civic Engagement Unit at the Centre for Human Rights, University of Pretoria. She is a social justice activist with an academic interest in governance, politics and democratisation in Africa.

Tariro Sekeramayi is an LLM (Multidisciplinary Human Rights) Candidate at the Centre for Human Rights, University of Pretoria and a Programme Intern at the Democracy and Civic Engagement Unit at the Centre.

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Constitutionalisation of public service and administration in Africa

Author: Paul Mudau

Senior Lecturer in the Department of Public, Constitutional and International Law at the University of South Africa

‘Modern African constitutions’ produced by the recent wave of constitutional reforms that swept across Africa generally transpired in the constitutionalisation of public service and administration. Public administration is any institution with operations aimed at applying, enforcing or fulfilling public policies and programmes or undertaking public service duties as well as regulating the conduct of public servants. Public service is any service or public-interest activity provided by government under the authority of the relevant administration.

Heightened by national legislation, the quest to promote democracy, good governance, human rights and development in the government structures emerged to be inevitable. By today, most countries have constitutions that sets up their governments’ organisations, structures, managements, regulations, duties, disciplines and defines the relationships between public entities, the interactions between these entities and individuals seeking public service, more particularly, making provision for the manner in which different divisions of government interact and function together. More vitally, these constitutions are cognisant of the need to promote an administrative culture that is based on the respect for the rights of the user; quality and innovative service delivery; and active and effective participation of citizens and users of public services in public administration processes. Other constitutions further encourage professional ethics, equitable access to services, optimum conditions of equity and efficiency, transparency, accountability, good human-resource management practices and compliance with the laws governing the affairs of public service and administration. In this regard, Bergling et al, argues as follows:

Constitutional reform, or restoring constitutionalism as the governing paradigm, may be the most fundamental example of legalisation. Constitutionalism here is understood both as an outline of the offices of the state and their functions, and a stipulation of the normative limits of their power and a guarantee of the rights of individuals.

The place of constitutional law in public administration

Public administration is an academic discipline and a field of broad scope that is geared toward the understanding of policy and its implementation in regard to the government and public sector. It has the fundamental goal of advancing management and policies to improve the functioning, as well as defining the role of government. The intersection between the constitutional law and public administration is the fundamental bond for the government and how its public administrators would act in relation to individual liberties. Constitutional law primarily affects public administration in the sense that it provides for the constitutional duties of public administration, sets out the code of conduct and general restrictions of public officials as it prevents the encroachment of human rights protected by the constitution, and set the basic framework for the social status of the public servants and other officials involved in public administration and guarantees their rights.

According to Bergling et al, the framework for rule of law in public administration would entail five basic ‘orientations’:

  1. constitutionality and legality in public administration – There should be clear regulation in the law of the organisation of the administration, and with concrete remedies (courts with appropriate jurisdiction) to combat illegal acts by administrative bodies, etc.
  2. citizens and the public administration – There should be clear administrative procedures, based on rule of law principles and guarantees (the right to be regarded as a party in the procedure, to be heard, to appeal, to access information, etc.).
  3. staff management – There should be laws regulating recruitment, career structure, discipline, etc. of public officials.
  4. service or utilities delivery – The relationship between the public and private sectors should be clearly defined in law; there should be rules governing fair competition, transparency and dispute resolution.
  5. law and governance – There should be agreement and decision on the appropriate governance pattern (law, soft law, contracts, etc.) for intergovernmental relations and relations with non-state entities.

Public service and administration in African constitutions

A number of constitutions in Africa recognises public services and administrations in vastly varying degrees. Some, apart from mentioning public services and/or administrations in various levels of government, organs of state and public enterprises, contain a list of the basic values and principles governing the public service and administration. Others require national legislation to do so, or succinctly provide such values and principles, or merely provide for a certain objective, principle or function or entity in the civil service. Among them, are the constitutions of South Africa (ch 10), Zimbabwe (ch 9), Uganda (ch 10), Namibia (part 12, ch 1), Botswana (ch 7), Lesotho (ch 13), Eswatini (10), Malawi (ch 20), Mozambique (title 12, ch 1), Zambia (part 13), Democratic Republic of Congo (sec 7), Angola (title 5, ch 1), Ghana (ch 14), Nigeria (ss 169-173, 206-209), Kenya (ch 13), The Gambia (ch 11), South Sudan (part 9, ch 1), Somalia (ch 11), Sierra Leona (ch 10), Morocco (arts 154-160), Mauritius (ch 8), Guinea (art 23), Seychelles (ch 11), Sao Tome and Principe (art 113), Cape Verde (title 7), Burundi (art 71), Côte d’Ivoire (arts 41-42), and Eritrea (art 9).

Continental response: African Charter on Values and Principles of Public Service and Administration

At continental level, on 31 January 2011, the African Union (AU) adopted the African Charter on Values and Principles of Public Service and Administration (the Charter). The Charter entered into force on 23 July 2016. Thus far, among the fifty-five (55) member states of the AU, only nineteen (19) have ratified the Charter. The Charter is the first legally binding and clear-cut continental legal framework that serves as catalyst for the public service and administration reform agenda on the continent. Taking this into account over and above the sweeping constitutionalisation of its similar values and/or principles, this offers hope in addressing the frailties of the African public service and administration. Among others, the principles of the Charter include: equal use of public service and administration; impartiality, fairness and due process in the delivery of public services; continuity of public services under all circumstances; adaptability of public services to the needs of users; professionalism and ethics in public service and administration; and effective, efficient and responsible use of resources. Hence, public services have to be delivered in accordance with the existing national laws, regulations and policies.

In the process, the public service and administration and public servants have to respect the human rights, dignity and integrity of all users of public service. By situating public administration within a rule of law framework, the ‘users’ of the system become rights-holders, capable of legally claiming services of a certain quality and holding the agents of the state accountable. Mostly, constitutional law dimensions in public administration reform efforts is often overlooked. Article 23(1) of the Charter stipulates that, while implementing the objectives, applying the principles and respecting the commitments enshrined in the Charter, individual State Parties have to adopt legislative, executive and administrative measures to align their national laws and regulations with this Charter. It further requires individual State Parties to integrate the commitments, values and principles of the Charter in national policies and strategies.

Drawbacks of public service and administration in Africa: constitutions without constitutionalism

Nevertheless, in spite of the constitutionalisation of public service and/or administration and the coming into force of the Charter, poor service delivery, lack of professionalism and public service ethics and rampant bureaucratic corruption are deeply entrenched within the African public services and administrations. A major point of concern arises from the fact that the constitutionalised values, principles, organisations, structures, managements, regulations, duties and disciplines of public service and administration are dented by the lack of rule of law and the lack of effective implementation of the constitutions. Seemingly, the intertwined relationship between public administration, constitutional law and the rights of users of public service are disconnected in reality. Apart from the fact that constitutions may have ushered in the provision of public service and administration, non-compliance with the legislative, executive and administrative instruments aimed at giving effect to constitutional imperatives amounts to partial or wholly lack of constitutionalism.

It is worth noting that section 195(1) of the Constitution of South Africa, 1996, richly provides for the basic values and principles governing public administration which bear a striking resemblance to the various values and principles that are enshrined in the Charter. In addition, South Africa enacted the Public Administration Management Act 11 of 2014 in order to give effect to the values and principles referred to in section 195(1) of the Constitution. Fombad asserts that ‘the quality of the South African Constitution, enhanced by the jurisprudence from its Constitutional Court provides better material adapted to the African condition for African constitutionalists to learn from…’. Needless to mention, the basic values and principles governing public administration contained in section 194 of the Constitution of Zimbabwe of 2013 is a copycat of section 195 of South Africa’s Constitution. Yet, despite these massive correspondence between the provisions of the constitutions of South Africa and Zimbabwe and the Charter, not much practical transformation has been witnessed in the public administration and service of these countries. In order words, the actual implementation of the Charter, constitutions, laws, policies and strategies becomes a yardstick for assessing the nature of constitutionality and legality of public service and administration processes. The presence of the common values, principles, organisation, structures, management, regulation, duties and discipline of public service and administration in a constitution or national laws and policies (as required by the constitution) does not automatically guarantee the existence of constitutionalism. Despite having an impressive constitutional framework pertinent to public service and administration, the South African experience is marred by detrimental revelations of mal-administration, corruption, bad governance, unethical conduct and poor performance, lack of service delivery and far-reaching implications of State Capture.

Conclusion

The partial or wholly absence of constitutionalism in public administration processes contributes to the challenges faced by many African states. They continue to languish from mal-administration, corruption, bad governance, unethical conduct and poor performance, lack of service delivery and State capture. These challenges aggravate poverty and underdevelopment on the continent. It is impractical to promote and attain democracy, good governance, human rights and development if the relevant African public entities do not effectively implement the constitutions, national laws, public policies and programmes or undertake public service duties with the objective to meet the optimum conditions of equity and efficiency. Pertinent to the public service and administration, the failure to uphold the imperatives envisaged by the constitution defeats the purpose for the constitutionalisation of their organisations, structures, managements, regulations, duties and disciplines.

Except for reliance in constitutionalising the public service and administration, it is desirable that AU member states accede and/or ratify the Charter. The Charter’s effective application and implementation will enhance efforts to promote an administrative culture that is based on the respect for the rights of the user; quality and innovative service delivery; and active and effective participation of citizens and users of public services in public administration processes. As a result, increasing the likelihood to best expedite the promotion and attainment of democracy, good governance, human rights and development in Africa.

An accountable and effective public service and administration is based on a functional legal framework, efficient regulatory structures, and transparent systems for financial and legal accountability.  In this regard, an operational public entity is fixed, among others, on impartiality, fairness and due process in the delivery of public services; continuity of public services under all circumstances; adaptability of public services to the needs of users; effective, efficient and responsible use of resources. All these public service activities should take place in accordance to the Charter, constitutions and the existing national laws, regulations, policies and strategies.

The constitutional ethos of the relations between public servants and users of public services should be based on professional merit and respect for human rights.  Accordingly, from a human rights perspective, the laws that regulate public administration should affirm the rights of users of public services and impose a corresponding obligation on public servants to respect such rights.  In the same vein, the regulations should also provide for the rights of public servants.

About the Author

Paul Mudau is a Senior Lecturer in the Department of Public, Constitutional and International Law at the University of South Africa. He is currently a PhD Candidate in the School of Law at the University of the Witwatersrand. He holds an LLB from the University of Limpopo, an LLM in Human Rights and Democratisation in Africa from the University of Pretoria, and an LLM in Law, State and Multilevel Government from the University of the Western Cape. His research interests include local government law, human rights, constitutionalism, democracy and public administration.

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Decriminalisation of consensual same-sex acts in Angola and the progress of LGBTI human rights in Lusophone Africa

Author: Rui Garrido
Ph.D Candidate, University Institute of Lisbon (Portugal)

On 11 February 2021, the new Angolan Penal Code officially entered in force. This new legislation represented a major achievement for LGBTI people not only in Angola, but across the rest of Africa. It is important to highlight that, while the Penal Code was approved in Parliament in 23 January 2019, it was only officially published on 11 November 2020. Prior to this, the criminal legislation, the Portuguese Criminal Code (1886), inherited from colonialism, criminalised the “vices against nature” (art. 71)), a very vague formulation for deemed to refer to consensual same-sex conduct. Angola was the last of the African former Portuguese colonies to repeal the colonial legislation.

This decision was long-awaited by Angolan sexual minorities. For them, this new legislation represents a huge step towards equality. It does much more than simply removing the colonial criminalisation. It goes far beyond, protecting people from violence and discrimination. In the 2020 Penal Code, the words ‘sexual orientation’ are mentioned twelve times, in distinctive moments and specific type of crimes, which is indicative of the awareness of the Angolan legislature on this subject. Sexual orientation is an aggravating factor for several crimes as discrimination (art. 212) or incitement to discrimination (art. 380), injury (art. 213) and defamation (art.214), and corpse desecration (art. 223, in conjunction with articles 221 and 222). Sexual orientation is also included as a characteristic of persecution, which constitutes a crime against humanity (art. 382), protecting sexual minorities in times of extreme violence and internal turmoil. In sum, the Angolan legislation is not just about decriminalisation of same-sex conduct but also about protection against discrimination. It’s a comprehensive legislation that acknowledges the patterns of discrimination against marginalised people, in higher risk of violence, and ensures the right of every citizen to live without fear. Of course, this is not an automatic path, and society must follow this evolution, but that is one of the potentialities of the law. Despite the expected backlash from conservative movements inside Angola, the Penal Code may, and certainly will produce social change in time.

It’s important to mention that this transformation doesn’t happen in the vacuum. Several milestones, from social, political, and legal fields, happened in Angola in the last decade. In 2014, Angola hosted the 55th ordinary session of the African Commission on Human and Peoples’ Rights, at which the Commission adopted the Resolution 275 – Protection against Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity – the first soft law instrument focusing on the violence towards LGBTI people and in fighting accountability for SOGI hate crimes in Africa. In September 2017 João Lourenço was elected President, ending more than 37 years of José Eduardo dos Santos presidency. The Penal Code had been discussed since 2004, but its adoption in Parliament took place in the first year of the new presidency. When it was adopted, the Deputy President José Semedo – responsible for the drafting of the law that approves the Penal Code – said to a local news media that such legislation was the first drafted “by Angolans, for Angolans and Angola” and it reflected a “modus vivendi” of actual Angola.[1] In June 2018, and five years after the formal request, the LGBTI association IRIS Angola was legally registered.[2]

But Angola is not unique in Lusophone Africa. In fact, the repeal of colonial Portuguese Penal Code in Africa started in early 1990s’ in Guinea Bissau.[3] Cape Verde (2004), São Tome & Principe (2012) and Mozambique (2015) followed the same path. The case of São Tome highlights what we can understand as a pattern inside Lusophone Africa: the inclusion of sexual orientation as a characteristic that marginalises people and the need to protect them from violence. In fact, in 2008, the Santomean Parliament adopted domestic violence legislation which identified sexual orientation as of the factors leading to domestic violence. Recently, in 2018, the country adopted a new Labour Code, prohibiting discrimination of employees based on their sexual orientation. Similar provision is be found in Mozambican Labour Code (2007).

These legal developments in Lusophone Africa destroys the fable of the unAfrican nature of homosexuality. It also centres the issue in a human rights perspective of one´s freedom to live without discrimination. Other African countries must follow these examples to ensure the rights and dignity of their fellow citizens and guarantee their full citizenship, irrespective of their sexual orientation and gender identity.

[1] https://www.angop.ao/noticias/politica/codigo-penal-faz-historia-na-era-joao-lourenco/

[2] https://globalvoices.org/2018/06/27/in-long-awaited-victory-angolas-only-lgbt-association-receives-legal-recognition/

[3] Garrido, Rui, “Patterns of discrimination based on sexual orientation in Africa: is there a Lusophone exception?”, African Human Rights Yearbook, volume 3, pp. 83 – 118, available at: Garrido, R (up.ac.za)

About the Author:

Rui Garrido is a Ph.D Candidate in African Studies at Iscte – University Institute of Lisbon (Portugal). His research focus on human rights and sexual orientation in Lusophone Africa.

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African youth’s sexual and reproductive health: a plight of degeneration?

Author: Thandwa Dlamini
Department of Sociology, Faculty of Humanities, University of Pretoria

At the International Conference on Population and Development (ICPD) in 1994, the right to sexual and reproductive health was recognised as the core of development. The right has also been embedded in various conventions, including the Convention on the Rights of the Child where it was established that adolescents have a right to ‘age-appropriate’ sexual and reproductive health information, education, and services that enable them to deal positively and responsibly with their sexuality. However, these agreements have not been fully and effectively implemented in Africa mainly because the policies of most African countries are framed on the basis of religious morality which pushes the unrealistic agenda of abstinence. As a result, a line between impermissible age discrimination and legitimate protection of minors has been difficult to draw in young adolescents’ sexual relations.  This article argues that there is a need to direct attention to the issues involved in consensual relations among young adolescents, in tandem with other strategies that work towards giving them full sexual autonomy whilst curtailing unsafe, risky health outcomes and violence.

Children as autonomous sexual beings

In Africa, children’s sexual rights are perceived as taboo and indicate a moral crisis. This has been largely influenced by Western notion of the child as inferior, unstable and irrational. These ideas have been evolved into consent laws and have played a pivotal role in shaping responses to challenges perceived to be a result of their engaging in sexual conduct such as teenage pregnancies and HIV/AIDS. Historically, the transition ‘from childhood to adulthood’ discourse depending on age did not exist in African cultures. Instead, it was discerned by following rites of passage, initiation rites and distinctive sexuality education. For instance, The Kiganda’s of Uganda had ritual sex, signifying ‘completion’ of a daughter’s pre-puberty years, completion of a child’s unmarried status. The problem with the transition from childhood to adulthood outlined in consent laws is that it disregards sexual autonomy and agency. It is quite surprising then, that youth sexualities in modern day Africa are treated as deviant, non-consensual, dangerous to reproductive health and degenerate.

I think the starting point is to acknowledge, as Ugandan feminist legal scholar, Sylvia Tamale argues, that children are sexual beings, whose sexualities evolve from conception through infancy, childhood, puberty, adolescence and the teenage years. As sexual beings, children have diverse sexual rights and entitlements. Therefore, children have a right to adequate sex education that would enable them to make consensual and informed sexual decisions. It would also develop the children’s appreciation of their gendered sexual bodies and body parts, and their understanding of the maturation processes and cycles.

However, a prominent legal barrier to attaining the recognition of children as sexual beings is the criminalisation of consensual sexual activity among adolescents. In Eastern and Southern African (ESA), some countries including Kenya, criminalise defilement, which can be a consensual act, and this can result in the criminalisation of adolescents and young people. South Africa is the exception, having amended its age of consent law, where the permissible age difference must be no more than two years. Most laws do not explicitly criminalise consensual sexual conduct between adolescents. Rather, they prohibit, sexual conduct with persons below a specified age. In countries such as Comoros, Kenya and Swaziland, the age of consent is determined as a minimum single age, below which a person is considered incapable of consent to sexual activity, and above which the person is capable of consent.

The consequences of the criminalisation of consensual sexual acts is that it discourages young adolescents from seeking and accessing sexual and reproductive health information and services for fear of being charged with offences and stigmatises adolescent sexuality. More significantly, it shifts attention away from structural impediments that create conditions for teen pregnancy, including failure to provide quality comprehensive sexuality education. This contradicts the recognition of children’s evolving capacities and as active agents of their lives, while also being entitled to protection [as stipulated in Article 5 of the Convention on the rights of the Child]. African countries should consider the decriminalisation of consensual sexual acts between adolescents and young people and continue to criminalise sexual activity between adults and minors as rape. This protects children while simultaneously enabling them to develop their sexual autonomy.

Conclusion

The African youth charter stipulates that ‘it is the youth’s responsibility to become the custodians of their own development’ but for that to effectively occur, an enabling environment which allows them to fully exercise their sexual autonomy must be present. That would require that states and sexual and reproductive health rights partners refrain from framing young pregnant girls as the perpetrators of poverty, and shifting the responsibility of economic prosperity of young women on young women themselves. It is a clarion call for African states to commit to their responsibility to provide quality education and to provide support for the sexual development of the child through a reformed legal framework (guided by Committee on the Rights of the Child General Comment 20, para 16) that facilitate a sexual debut that is free from violence, coercion or violation.

About the Author:

Thandwa Dlamini is a Master’s candidate in Gender Studies at the Department of Sociology, Faculty of Humanities, University of Pretoria. Her research interests include gender and development, youth affairs in the Global South, and decolonial work.

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Zimbabwe: High Court upholds Transgender persons’ constitutional rights

reprohealthlaw blog

Many thanks to Keikantse Phele, a Botswana based Human Rights lawyer and LL.M. graduate in Sexual and Reproductive Rights in Africa, at the Centre for Human Rights of the University of Pretoria’s Faculty of Law. Her summary and analysis of this pioneering decision has just been published among the online updates to co-published third volume of case summaries, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts. We are pleased to circulate brief excerpts:

Ricky Nathanson v Farai Mteliso, The Officer in Charge Bulawayo Central Police Station, Commissioner of Police and the Minister of Home Affairs, Case no.HB 176/19 HC 1873/14 [2019] ZWBHC 135( (14 November 2019);  (Zimbabwe, High Court) Decision online.   Case Summary by Keikantse Phele (download PDF).

COURT HOLDING: The Plaintiff, a transgender woman, was awarded damages of 400,000 ZWD, for unlawful and malicious arrest during which she was subjected to inhuman…

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