Shrouded in mystery: the Nigerian budget and the challenge of implementation

Author: Abasiodiong Ubong Udoakpan
LLM Candidate, Olabisi Onabanjo University, Nigeria

The Budget as one important economic policy instrument at the disposal of the Government is key to the attainment of the economic prosperity of the people. However, the gap between its initiation and full implementation to attain economic prosperity has been of serious concern to researchers and Nigerians alike. It is one thing to propose a budget and another to implement the proposed budget to the extent that it attains the goals of economic growth and development. In recent times, the focus on the budget has assumed greater prominence because of increasing democratisation, civil society participation and the desire to respond to developmental challenges of poverty.

In the public sector, Budget Implementation is pivotal in driving entrepreneurship development. According to the Nigeria Bureau of Statistics, small and medium scale enterprises (SMEs) in Nigeria have contributed about 48% of the national GDP in the last five years.[1] Despite the significant contribution of SMEs to the Nigerian economy, challenges persist that hinder the growth and development of the sector, one of which is the weakness of the Budget Implementation Process in Nigeria.

Under the process of Implementation, funds are being transferred to the spending agencies, ( e.g. Ministry of Industry, Trade and Investment); goods and services are being delivered by following the budgetary provisions, the ministries, agencies and departments produce in-year and year-end reports on the spending of allocated funds[2], these reports are done in line with sections 30 & 50 of the Fiscal Responsibility Act of 2007. Sadly, the agencies of the Nigerian government have failed to live up to the expectations of this legislation.

In the last three years, the Federal Government has budgeted well over 20 trillion naira without much on the ground to show for it. The combined budgets of the 36 states and the Central Government in the last 3 years amounts to hundreds of trillions of naira. However, with the trillions of naira budgeted, Nigeria has little or nothing to show for it, in terms of critical infrastructure, employment opportunities, poverty and debt reduction.

Generally, for a budget to achieve its aim, it must possess some important qualities, namely: it should be well designed, effectively and efficiently implemented, adequately monitored and finally its performance should be evaluated[3]. It could therefore be deduced that the essence of the budget is not in its formulation or initiation but in its implementation which is aimed at meeting the needs and aspirations of the people. A well-implemented budget helps to translate government campaign promises, policies and programs into outcomes that have a direct bearing on the people such as the provision of employment opportunities, poverty reduction as well as the development of critical infrastructure such as roads, water, electricity, hospitals, schools etc. for the good of the people. While appreciating the fact that budget implementation is the basic thing, however, the size and structure of public expenditure are expected to boost the growth in output of the economy. Be that as it may, the implementation of policies and programs is germane to the attainment of the socio-economic wellbeing of the society.

Over the years, billions and now trillions of naira are budgeted yearly to improve the living standard of the citizenry through an increase in output. These dreams have been elusive perhaps due to the failure of the government to implement the content of the budget to the letter. As accurately noted by experts, the budget is supposed to be the most important economic policy instrument.[4] Unfortunately, the Nigerian Budget is shrouded with a lot of myths and illusions and usually not effectively implemented, leading to its failure to contribute to the economic growth and development of the country.

In tackling this issue of poor implementation of budgets in Nigeria, there is a need to call on the National Assembly to ensure that due processes, as well as value-for-money audits, remain in our policy for economy, efficiency and effectiveness in the use of resources. It is important to engage due process mechanisms with structures, systems, and skills to ensure that it endures. Due process is too centralised and must be decentralised in a bid to move procurements by the spending units from the threshold of the resident due process team.

Finally, civil society plays a crucial role in the Nigerian budget process. Nigeria’s budget process, just like many other African countries, is now clearly defined into four main stages: drafting, legislative approval, implementation and monitoring. There are international best standards of how some civil society groups have contributed to the budget process in their respective countries. For instance, the budget formulation in Porto Alegre (Brazil) has been enhanced by the work of CSOs while the Institute for Economic Affairs (in Kenya) and IDASA (in South Africa) are applauded for reviewing government budgets to help improve public understanding of budget issues. Regarding civil society participation in budget implementation and its role in challenging misapplication of budget funds, two examples are often highlighted in the literature: the case of public expenditure tracking for Ugandan schools and the use of citizen report cards in the Philippines to improve performance monitoring.

However, in Nigeria, it is only recently that civil society organisations are engaging more systematically in the budget process.[5] Civil society groups are usually invited to participate in seminars and also to review the implementation of the Fund. CSOs have also recently been incorporated into national teams which monitor the implementation of MDG programs in various parts of the country. More recently, increased financing from external donors has been sought to strengthen the activities of Nigerian NGOs and academics to contribute more effectively to the budget process.[6]

Civil society could make even greater contributions to ensuring fiscal transparency in Nigeria and Africa, if they improve their lobbying skills. This is necessary if civil society groups are to contribute more effectively to enhancing fiscal transparency in their countries. It is also important to identify allies among legislators, cultivate relationships with the executive, and effectively communicate campaign messages to them. Building the technical competency of these organisations is also crucial, to enable them to engage in informed debate as well as avoid the tendency for elite capture and illegitimate representation.

For the prosperity of African countries, greater civic engagement on fiscal issues is needed and well-organised civil society groups can play a valuable role in this endeavor.

[1] PwC Nigeria, Nigeria SME Survey: Assessing current market conditions and business growth prospects; https://www.pwc.com/ng/en/events/nigeria-sme-survey. Accessed on 15th September 2021.

[2] The International  Budget Partnership: The 4 Stages of the Budget Process, https://www.internationalbudget.org/wp-content/uploads/MODULE-2-Defining-the-Problem.pdf. Accessed on 15th September 2021.

[3] Adah, S & Akogu,A. (2019). Budget Implementation and Economic Development in Nigeria: Problems and Prospects; International Journal of Innovative Finance and Economic Research; vol 7(3). ISSN:2360-866X, 34-43

[4] Ogujiuba, K. & Ehigiamusoe, K. (2013). Capital Budget Implementation in Nigeria. Evidence from 2012 capital budget, vol.24(10). 299-314.

[5] Ngozi Okonjo-Iweala, Philip Osafo-Kwaako. The Role of Civil Society Organizations in Supporting Fiscal Transparency in African Countries (Background Notes for Discussion)

[6] Interview with Soji Apampa (INTEGRITY, Nigeria). Upcoming programs include initiatives such as the Coalition for Change program sponsored by the UK Department for International Development (DFID).

About the Author:
Abasiodiong Ubong Udoakpan is a Human Rights Lawyer and a Data Protection Advisor and is presently an LLM Candidate at the Olabisi Onabanjo University, Ago-Iwoye, Ogun State, Nigeria, an academic lawyer whose research interests cuts across Labour Law, International Development Law, Environment & Climate Change Law, as well as the intersection between International Human Rights and Mental Health Law and Policy.

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Is Covid-19 bringing out the inequalities in the delivery of health services in Mauritius?

Ashwanee-Budoo-ScholtzAuthor: Ashwanee Budoo-Scholtz
Programme Manager of the Master’s in Human Rights and Democratisation in Africa, Centre for Human Rights, University of Pretoria

Introduction

When Mauritius recorded its first Covid-19 case on 18 March 2020, the country already had the strong backbone of the ‘solid social protection system’ to ensure that affected sections of the society are supported. In the area of health, in 2011, it was estimated that Mauritius had 3.4 hospital beds per 1000 population which was better than most sub-Saharan African countries. Hence, one could assume that the government of Mauritius would not face the failure of countries such as South Africa when it came to the provision of health care services for those affected by Covid-19.

As of 1 October 2021, Mauritius had a total of 15,695 confirmed Covid-19 cases, with 84 deaths. This was after the country relaxed its lockdown restrictions at the national level. The government has time and again spoken with pride of it being a best practice when it comes to preparedness for dealing with the Covid-19 virus. Indeed, once the country was hit by its first case of COVID-19, it started taking all measures possible to make sure it deals with the provision of health care services. To begin with, in the initial stages, it identified the New Souillac hospital and the New Ear Nose and Throat Hospital (New ENT Hospital) as a quarantine and isolation centre for those showing moderate to severe symptoms of Covid-19. For those with mild symptoms, they were isolated in make-shift treatment centres free of charge with regular follow-up. As the pandemic evolved, the country designated the New ENT Hospital, ‘equipped with the latest modern equipment and technology’ as the facility for treating Covid-19. Hence, anyone testing positive for Covid-19 with symptoms would be transferred to the New ENT Hospital. The country has also fully vaccinated more than half of the population.

Laws on the delivery of equitable healthcare services

According to international human rights instruments such as the African Charter on Human and Peoples’ Rights and the International Covenant on Economic, Social and Cultural Rights that have been ratified by Mauritius, states have the obligation to ensure that everyone without any discrimination has access to the highest attainable standard of health. This implies that the government of Mauritius must ensure that everyone in Mauritius, irrespective of whether they can afford it or not, benefits from health care services.

At the domestic level, usually countries’ Constitutions protect such rights. However, Mauritius’ Constitution does not include socio-economic rights as the right to health and the same is provided by Acts of Parliament. The country has ‘universal social programs such as health, education, pensions and transport’ where such services are provided for free to everyone without any discrimination. The welfare system of Mauritius has been considered as ‘a comprehensive social welfare system to which all Mauritians have universal access’ and as an example to the world.

covid_19_mauritius

The issues

Despite the steps taken to combat Covid-19 and Mauritius’ welfare system, there has been an outcry by the population of the unpreparedness and insufficiency to cater for everyone on an equal basis in the health sector, especially since the travel to India of the former prime minister of Mauritius and the leader of the Labour Party, Naveen Ramgoolam. The latter was admitted to a private hospital after being tested positive for COVID-19. Since then, upon the advice of his medical panel, he flew to India for medical treatment to avoid any medical complications that may arise, with the Prime Minister’s Office in Mauritius facilitating the trip and his political party’s financial support. The consideration of such a trip, with the Office of the Prime Minister assisting him, demonstrates that the government is not confident in the measures taken. It also means that the non-discrimination principle in the Constitution is not applied since he is benefiting from preferential treatment from the government based on his social status. Other Mauritians who were seriously affected and who lost their lives, including children, were not considered for such overseas treatment, demonstrating that some Mauritians are more equal than others and that those who have the financial means and political connections may obtain better healthcare than others. This begs the question whether the well-praised welfare system of Mauritius struggles to ensure equitable delivery of health care services, more so during the Covid-19 pandemic.

While Mauritius has a strong health system for the provision of basic health care services, the country still does not have high-tech medical devices for complicated surgeries. For instance, many Mauritians travel to countries such as India, South Africa or Reunion in cases of complicated tumours, cancers, and neurological issues, amongst others. While the government assists the patients with some of the costs, the patients must fundraise for part of the costs of such treatment, with those who are unable to raise funds being left without treatment. With this background, one can deduce that while the New ENT Hospital has modern equipment and technology, it might not be the best place in the world to deal with Covid-19 complications, thus explaining the trip of the former prime minister to India.

Way forward

To ensure that Mauritius delivers equitable health services, the government needs to invest more in new technologies and medical devices so that it can treat those with complicated sickness within its territories without the patient having to fundraise and travel to other countries for treatment. This will be in line with Mauritius’ international obligations to realise the right to health. Moreover, the government needs to review its Constitution to include socio-economic rights such as the right to health to show its commitment to such rights. This will allow the citizens to hold the government accountable in the domestic courts in the event the government is not taking steps to equitably deliver the highest standard of health.

 

About the Author:
Ashwanee Budoo-Scholtz is the Programme Manager of the LLM (in Human Rights and Democratisation in Africa)  at the Centre for Human Rights, University of Pretoria. She holds the degrees LLB from University of Mauritius, LLM and LLD from University of Pretoria.

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To be a healthy democratic state, Ethiopia needs Stability through Peace and Security, Inclusive Development, and Good Governance.

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

Ethiopia is at a crossroads. Despite recorded double-digit economic growth for more than a decade, the arguably slight opening of the political space and the increasing awareness of citizens about their rights and duties, the absence of a clear path to democracy through an institutionally designed system put Ethiopia at the crossroad. Though Prime Minister Abiy Ahmed pledged to reform Ethiopia’s authoritarian state, recently, Ethiopia is going through a hysterical period of political uncertainties whereby one cannot easily venture where the country is heading. Some suggested that Ethiopia is on the right track to democracy, and Abiy Ahmed is playing the dominant role. Others reject the idea that Ethiopia is getting into democracy, saying the reform government is just as undemocratic as its predecessors; it is instead an ‘old wine in a new bottle’.   

Be this as it may, to say Ethiopia is on a clear path to democracy, one should think of three essential pillars. According to Kofi Anan, former secretary-general of the UN, “To build a healthy democratic society, you need to think of three pillars, and they have to be taken holistically. The first one is peace, security and stability. The second one is inclusive development, and the third and final one is the rule of law and respect for human rights…”

History suggests that dwelling in these pillars is not a choice; rather a necessity. One cannot focus on one and achieve the desired result because all three are important. If one focuses only on the country’s stability and treat the other two as less critical; first, respecting fundamental rights and basic freedom of the people will be in danger, which ultimately would lead to people’s revolt for freedom. Also, when the economy is maltreating the people, eventually, the socio-economic demand of the society will come to the street and shake the country. Either way, the problem will affect the democratic process.    

In Ethiopia, coupled with widespread political and ethnic violence, failure to ensure the rule of law and the respect for human rights, and lack of all-inclusive development, the road to democracy is curtailed. As a result, the sparkling light seen at the end of the tunnel would be doused. This essay highlights where Ethiopia is in the development of the three pillars and what should be done to enhance the process of democratisation.

Peace and Security in Ethiopia

Peace and security imply a synergy term where peace is the absence of physical and structural violence, and security, generally, refers to the condition of not being threatened physically, economically and psychologically. So, both terms are essential to one another; the existence of one is a precondition and helps to realise the other. One cannot doubt the importance of peace and security in human life. A peaceful and secure situation in a country will create a suitable environment for economic and social development, promotion of the rule of law and the respect of human rights. As a result, no country can achieve overall development in the long term without peace and stability.

However, due to the complexity of society and politics, world peace is under constant threat. Various religious, identity, economic and political driven conflicts are spreading all over the world. According to the latest Global Report on Internal Displacement,   “Forty-eight million people were living in internal displacement as a result of conflict and violence in 59 countries and territories as of 31 December 2020, an increase of 2.1 million compared with 2019 and the highest figure on record”. Among the 59 countries, the Democratic Republic of the Congo, Mozambique, Burkina Faso, Sudan and Ethiopia from Sub-Saharan African countries, Syria, Palestine and Yemen from the Middle East, and Afghanistan in South Asia are the most prominent. 

In Ethiopia, as a result of unsolved political controversies of the past and present, extreme politics is getting ingrained. Instead of solving issues through civilised ways like dialogue, various groups use violence to claim their interests. The country politics is dominated by polarised identity whereby politicians, by spurring grievances, ride the populist wave, flame the already existing tension and demonise their opponents, benefit from it. More problematic is the educated section of the society, who are supposed to lead the people to light, be part and parcel of this. As a result, various conflicts have been instigated in Ethiopia; and once already existed are exacerbated.

Inclusive Development

In lifting people from one economic class to the next level, development has to be inclusive. Otherwise, economic development can only benefit a few, which ultimately leads to resentment by most due to the hardships they are facing. The resentment then will be followed by social intolerance and distrust between the people and the Government to lead to instability finally. Consequently, the stability needed for the advancement of democracy will not be achieved.

Persistent socioeconomic inequality within the society also affects the promotion of good governance. First of all, the inequality itself is a violation of human rights by failing to fulfil the minimum obligation of the government.  In addition, when there is inequality, it leads to exploitation that can lead to problems like food insecurity, illiteracy, homelessness or disease. These are mostly the prerequisite for the prevalence of violence and violation of rights, as people are forced to pursue illegal methods of acquiring income to alleviate their problems.

Furthermore, deep inequality also leads to corruption which is the antithesis of the essential component of good governance, which is accountability and transparency. It is overtly proper that accountability and transparency play a prominent role in pursuing a democratic society.  The absence of it will lead to the abuse of state institutions, which are supposed to work for the community, by politically aspirant elites, as a means of enrichment. This tendency creates high stakes for democracy.

poverty_Ethiopia

 

In Ethiopia,  a double-digit growth rate has been recorded in the last decade. However, despite the positive trends in poverty reduction in both urban and rural areas, the economic growth is not taken by many as an inclusive one. Scholars believed that the economic development in Ethiopia, instead of raising the living standards of the majority of the society, exacerbated deep inequality. There are many reasons that lead them to this conclusion. Ethiopia is considered as one of the countries where citizens are living in extreme poverty. In this regard, the Oxford Poverty and Human Development Initiative consistently ranks Ethiopia among the bottom three nations based on the Multidimensional Poverty Index (MPI).  In addition, the fruits of economic growth were not evenly distributed. This inequitable distribution of natural resources led to public resentments, which in turn resulted in civil demonstrations in most parts of the country to finally bring regime change. The lack of equitable distribution is manifested in four areas: The first is, in Ethiopia, the development of infrastructure between urban and rural areas are entirely different. People living in rural areas do not have access to infrastructure like roads, schools, health centres and others. Secondly, the disparity is also seen from region to region. Some regions in Ethiopia have very poor infrastructure compared with others. In this regard, Afar, Somali, Beninshangul and Gambela regions are the best example of having relatively poor infrastructure. Thirdly, there is a resentment within people living in the so-called developed regions. The recent demonstrations in Oromia and Amhara are the best examples. Youth in these regions revolted against the government calling for the abolishing of the domination of elites from one ethnic group [Tigrian elites]. Fourthly, most investment projects and capital were placed in a few developed regions: Addis Ababa, Oromia, Amhara Tigray and somewhat in SNNPR. The inequality is also manifested through the mismanagement of economic contributions by various sectors. For example, the producers of raw materials like farmers who grow and sell coffee beans are not benefiting to the level of changing their living; instead, it’s the brokers and the exporters who benefit most. As a result, the mismatch is creating problems in the progression of the democratic order. 

Good Governance

Good governance is characterised by participation, transparency, accountability, the rule of law, effectiveness, equity, etc.  These are the essential elements needed for a country to build a healthy democratic system. This democratic governance orientation has been inspired by problems resulting in the government’s necessity to be more than a governor.  Accordingly, the traditional role of government, mainly to maintain peace and security, will not be sufficient. Instead, a “new political culture, in which traditional methods of delivering the services of the welfare state are no longer regarded as ‘empowering’” is needed. As a result, promoting good governance is an essential element to promote the rule of law by which accountability of individuals and government will be ensured. Also, in a country where rule law is the principle of governance, proper justice will be delivered. In addition, good governance helps maintain law and order by creating legitimate, effective, responsive institutions and policies.  This ultimately guarantees security to the people, which eventually helps to bring inclusive economic development. Good governance also promotes human rights by ensuring participation of citizens in political and public life, guaranteeing equitable inclusion of every sect of the society in decision making, and facilitating free, fair and competitive election through the institutions it has created. This will ultimately lead to the building of democratic order. In a democratic country where power is believed to be in the hands of the people and run entirely by and for the people’s will, good governance is the main prerequisite.

As admitted by the government itself, in Ethiopia, the absence of good governance is uncontested. One of the government’s main challenges is the widespread practice of mal-administration, which includes but is not limited to corruption, unnecessary bureaucracy, poor customer service management, non-participatory decision making, resource mismanagement and weak institutional structures. Despite the abundance of positive measures taken by the current administration, due to the absence of good governance, the country is experiencing widespread ethnic violence that undermines the rule of law and led to massive human rights abuses. In Ethiopia, the commitment of the government to alleviate socio-economic problems faced serious problems due to different not-good governance practices. The root cause of bad governance practice is the capture of the state by corporate ethnic elites, which makes governance in Ethiopia based on weak institutions and strong personal rivalries. This has left merit-based leadership in otiose whereby public posts are assigned to ‘ethnically affiliated party man’ without considering competencies. As a result, the government’s effort to implement its socio-economic policies undermined and caused various malpractices in different sectors. For example, poor management of public finance in the education sector, which caused problems in quality education. There are also connectivity problems affecting business,   frequent power interruption due to poor quality procurement of equipment, and high levels of corrupt acts in the water sector are some of the bad-governance practices. As a result, citizen’s social protection suffered which led to poor human development. Therefore, promoting the rule of law, pas

The way forward

As clearly stated hereinabove, Ethiopia is stagnating in creating a healthy democratic system due to the lack of a proper path in the development of the three pillars. To improve this, the following measures should be taken: 

  1. A national dialogue is very important. Since most of the political crisis which leads to conflicts in Ethiopia has roots in the controversies in the past, conducting an all-inclusive national dialogue would be the first step towards solving the problems. This will create trust in society by correcting glitches and hitches of the past and present. In addition, it will bring stability and economic development by creating shared goals of the various nations, nationalities and peoples of the country.
  2. The reform should be institutionalised. It is believed by many that there are reform measures which should be appreciated since the onset of Dr Abiy Ahmed’s administration. The appointment of Bortukan Mideksa (a well-known former critic of the Government and opposition party leader) as the head of the National Election Board and Nomination of Meaza Ashenafi (Formerly of respected civil society called Ethiopian Women Lawyers Association) as the President of Federal Supreme Court are important moves by the reform Government. However, there is a significant lack in the institutionalisation of the reform in other areas. Hence, Ethiopia should focus on the democratisation of its institutions
  3. The institutions should adhere to an inclusive system. In this regard, marginalisation, which is the cause of political unrest in Ethiopia, is due to the lack of an inclusive approach in the socio-political participation of the majority of the society. Both history and the current situation has shown that in Ethiopia, there is enormous grievance among the society who believe that they are left out of major political and economic activities.  
  4. The inclusivity should be based on the principle of fair distribution of resources and economic opportunities. Most people in Ethiopia are dissatisfied with the way the country’s economy and resources are managed. They feel that there is an incredible gap among those in power and lay citizens and among social groups. The deep-rooted corruption and mal-governance in the country also exacerbated the problem. So, the policies on economic, social, cultural and political life should adhere to include as far as possible all sections of the society
  5. Fair, free and competitive elections are the key to everything. People in Ethiopia claim that, for so long, they are not governed by the person they elected. Although the country conducted six national elections, excluding elections conducted during the last phase of the imperial period, most of them are shams where the party in power always wins. As a result, people’s trust in the elected officials has always been contested. People want to see a fair and free election where only those elected and have public trust get seats in the legislatures. This will ultimately solve the problem of legitimacy of the government so that it can work for the society.

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 opition of International Criminal and Humanitarian Law from the University of Oslo, Norway.

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Time to consider decriminalising homosexuality in Ethiopia

Rehim-Baharu-ElalaAuthor: Rehim Baharu Elala
Intern, Ethiopian Community Development Council

LGBT data in Ethiopia

Ethiopia revised its Criminal Code in 2004 and criminalised homosexual or indecent acts both between men and women,  with those convicted facing terms of imprisonment.[1] Same-sex acts will be punished with imprisonment of not less than a year, or in ‘grave’ cases, rigorous imprisonment of up to 15 years.[2] The justifications for criminalising the acts are mostly associated with the strict societal norms and religion.

There is no study or research conducted to know the exact number of LGBTQ people in Ethiopia. I interviewed two members of the LGBTQ in Ethiopia who are working in legal and health professions when I was writing a Seminar Paper for my LGBTQ Health Law and Policy class.[3] My informants told me that the estimate data shows that there are around 50,000-60,000 people who identify themselves as LGBTQ in the capital Addis Ababa alone.[4] They also stated that the major source of the anti-gay sentiment originates from the religious authorities.[5] This is because homosexuals are always portrayed in a dangerous manner by the religious institutions as child abusers and destroyers of Ethiopian values.[6] An Ethiopian law professor states the influence of religious groups in the following words:

“There is complete silence around LGBT experiences because there is no forum for stories about the violence meted out by the state and family members on a day-to-day basis… My biggest fear is that these religious organisations are monopolising the conversation and perpetuating a fear that is becoming impossible to combat.”[7]

The Stand of the Ethiopian Government towards LGBTQ Issues

In Ethiopia, it is rare to hear the views of government officials on LGBTQ people or the laws that ban homosexuality. However, there was a very controversial incident involving the then Minister of the Ministry of Women and Children Affairs, Mrs. Zenebu Tadesse, in 2014.  She openly slammed Uganda’s anti-gay law on her social media account but due to the pressure and backlash from the community and people from top political sphere, she was forced to delete her account.[8]  Later, she was forced to retreat and make a subsequent official statement.[9] I think, the retreat is a clear indication of the level societal and religious influences on a person’s freedom of expression.

LGBTQ

Interestingly the Minster got support from the representative of Human Rights Watch, Dr. Daniel Bekele who is also an Ethiopian about her progressive comment in relation to Uganda’s law.[10] Dr. Daniel himself was appointed as Chief Commissioner of the Ethiopian Human Rights Commission in 2018 following the coming into power of Prime Minister Abiy and is still actively serving. The Commission has a duty to ensure that laws, regulations and directives as well as government decisions and orders do not contravene the human rights of citizens guaranteed by the constitution of Ethiopia.[11] But most importantly the Commission has a clear mandate to make recommendations for the revisions of existing laws, enactment of new laws and formulation of policies.[12] As part of the recommendation duty, the commission can make a recommendation for the decriminalisation of homosexuality in Ethiopia.[13] It is nearly three years since Dr. Daniel took the office but no action has been taken nor has he made a single statement regarding LGBTQ issues so far.

In January 2021, the Human Rights Committee also identified the list of issues that Ethiopia must address in relation to non-discrimination based on sexual orientation and gender identity when it considered Ethiopia’s second periodic report.[14] The Committee seeks to know whether Ethiopia intends to consider decriminalising sexual relations between consenting adults of the same sex. It also required Ethiopia to indicate the measures taken to address social stigmatisation, harassment, violence and discrimination against LGBTQ people.[15]

The Way Forward

In considering the way forward, the most important measure has to be decriminalising consensual same sex relations in Ethiopia. This is a recommendation continually given to the Ethiopian government by the Human Rights Committee and also raised in all the three UPR cycles. Classifying abuse against LGBTQ people as hate crime can also play a vital role in ending the stigma and discrimination faced by LGBTQ people in Ethiopia. 

The cultural and religious beliefs about homosexuality are deeply ingrained in the society and an overnight change cannot be attained. However, continuous engagement and sensitisation efforts involving religious, customary and political leaders can help to make the LGBTQ issue open for discussion. We can take inspiration from the women’s rights movement that has achieved a lot in tackling discriminatory laws and practices to improve the position of women in every aspect of society. The equality provisions and the affirmative action clause in the constitution have helped more women to participate equally with men both in public and private spheres.

The government must enact a law that prohibit discrimination against LGBTQ individuals. As the stigma and discrimination against LGBTQ people is deeply ingrained in Ethiopia, the general equality clause provided under article 25 of the Constitution would be inadequate to protect their rights. The specific constitutional guarantees to women and children rights have brought a significance advancement in promoting as well as protecting their rights. To make the same progress the government must come up with a federal legislation that can clearly protect discrimination based on sexual orientation and gender identity and expression.

The Ethiopian Human Rights Commission should use its clear mandate to protect and promote the rights of LGBTQ people in Ethiopia. It can use this mandate to recommend that the federal government decriminalises homosexuality as it clearly goes against the object and purpose of many of Ethiopia’s undertakings under international human rights law and the 1995 constitution of Ethiopia. The Commission should also investigate alleged reports of violence against LGBTQ individuals on its own initiation, because reporting has been limited due to fear of retribution, discrimination or stigmatisation. The commission can also use its promotional mandate and work in a coalition with civil society organisations to facilitate human rights awareness raising events to the public on issues including LGBTQ rights based upon the well-articulated Yogyakarta principles.

Finally, courts need to uphold the constitutional rights to equality and non-discrimination and quash any law, policy or decisions of any organ unconstitutional that contravene these rights. The hate crime laws, or other criminal justice mechanisms should be interpreted in a way to aid the investigation of abuses against LGBTQ individuals.

 

[1] Articles 619 and 620 of the Criminal Code of Ethiopia (2004). Available at https://www.wipo.int/edocs/lexdocs/laws/en/et/et011en.pdf

[2] Id, the code provides that “whoever performs with another person of the same sex a homosexual act, or any other indecent act, is punishable with simple imprisonment.”

[3] Phone interview with two lesbian and gay Ethiopians on April 07, 2021 Virginia, USA.  

[4] Id.

[5] I conducted the interview using the app called Signal which is, privacy-focused messaging and voice talk, on April 07, 2021 at Virginia, US.

[6] Id.

[7] Cheryl Overs, BOOSHTEE! Survival and Resilience in Ethiopia, Evidence Report 1, 129 (2015).

[8] Anti-Homosexuality Act of Uganda 2014. Available at https://www.refworld.org/pdfid/530c4bc64.pdf.

[9] Id. She later said “I am really saddened and traumatised by the action of the hackers, this is neither mine nor the government’s view, homosexuality is a crime under the Ethiopian criminal code. How can I say this? It does not even fit with my personality at all.”

[10] Id.

[11] Article 6(2) of the Ethiopian Human Rights Establishment Proclamation 210/2000. Available at https://www.cardeth.org/wp-content/uploads/2014/05/ethiopian-human-rights-commission-procl.pdf. The establishment proclamation was amended by proclamation number 1224/2020. The new law added important roles in situations of election monitoring, State of Emergency and visit and monitor correction centers or detention facilities without prior notice. Available at https://chilot.me/wp-content/uploads/2021/06/Ethiopian-Human-Rights-Commission-Establishment-Amendment-Proclamation-No.1224-2020.pdf

[12] Article 6(7) also gives it a mandate to forward its opinion on human rights reports to be submitted to international organs.

[13] Article 6(5) of the Ethiopian Human Rights Commission establishment proclamation.

[14] Human Rights Committee List of issues in relation to the second periodic report of Ethiopia, adopted at its 130th session (12 October–6 November 2020).

[15] Para.5 of Human Rights Committee List of issues in relation to the second periodic report of Ethiopia, adopted at its 130th session (12 October–6 November 2020). The committee also recommends Ethiopia to combat and prevent homophobic and transphobic rhetoric by politicians and other public officials and encourage the reporting of acts of violence and discrimination against LGBT individuals, investigate all allegations of such acts and prosecute and punish perpetrators.

 

About the Author

Rehim Baharu Elala is a human rights attorney and women’s rights advocate based in Ethiopia. Prior to obtaining his Master of Laws degree from Georgetown University in 2021, he was dedicated to challenging local norms surrounding men’s involvement (or lack thereof) in feminist organising. First advocating for gender equality at his school’s legal aid office, Rehim went on to assist in landmark cases that established more equitable approaches in divorce proceedings in Ethiopia. His commitment to improving Ethiopia’s legal and cultural protections for women and children continues today. In addition to litigating cases on behalf of survivors in his community, Rehim’s role at the Ethiopian Human Rights Commission involves monitoring the living conditions of children forced to live in prison with their incarcerated mothers. Rehim is currently an intern at Ethiopian Community Development Council, which is one of the nine non-profit agencies that work on Refugee Resettlement under the auspices of the State Department.

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The South African local government elections and the COVID-19 pandemic

tariro-sekeramayi
Author: Tariro Sekeramayi
Centre for Human Rights, University of Pretoria

South Africa’s local government elections, to elect the municipal tier of government, are constitutionally mandated through section 159 of the Constitution of South Africa to take place every five years. These elections were scheduled to take place towards the end of 2021 and have been the subject of great deliberation in the nation. Conducting elections during a pandemic has been the subject of much debate on the continent and worldwide, with certain countries choosing to continue with elections amid the pandemic and others choosing to postpone their elections amid concerns of the risks involved. Nations on the continent that have held elections during the pandemic include Zambia, Malawi, Ghana, Rwanda, Uganda and Côte d’Ivoire. Given the extent of the risks of holding elections during the pandemic and mixed calls on whether to postpone or continue with elections in the nation, the Independent Electoral Commission (IEC) of South Africa ordered an inquiry commission to determine the nation’s capacity to hold free, fair elections during the initially scheduled period in October.

The inquiry was established in terms of the Constitution and the Electoral Commission Act. The inquiry led by former Deputy Chief Justice Dikang Moseneke heard submissions from various stakeholders including political parties, medical experts, the public, civil society organisations and organised media, organised business, labour, the National Economic Development Labour Council, and a public opinion survey on issues relating to the free and fair nature of elections and the implications of postponing the upcoming local government elections. The findings of the inquiry culminated in a report that concludes based on the submissions given by the relevant stakeholders that ‘it is not reasonably likely’ that elections held in October would be free and fair. The report also concluded that the likelihood of a free and fair election would be increased if elections were postponed to a later date.

The report produced by the inquiry merely has advisory force on the IEC. As such, the recommendations and conclusions therein did not have binding or legal force regarding how the IEC proceeds in preparation for elections. The report outlines guidelines in which elections can be held in a free and fair manner amid COVID-19 pertaining to several electoral processes, including the pre-and post-voting phase of elections. The report further recommended that in the event that the IEC agrees with the postponement of elections, the Commission should approach a competent court to seek an order to defer the elections to a later date, before February 2022.

The IEC approached the Constitutional Court on an urgent basis to postpone the local government elections, based on the findings of the Moseneke Report. The decision to approach the Court in the matter relating to the postponement of the elections to ensure that this is a decision taken by the courts was welcome to safeguard the impartiality of South Africa’s democracy and ensure that this process was not open to the ills of political manipulation. The Constitutional Court granted the application to approach the Court on an urgent basis but dismissed the postponement application. The Court subsequently declared the proclamation of the election date by the Minister unconstitutional and set this date aside, with the effect that the Minister was mandated to make a subsequent proclamation in line with the Court’s order to hold elections between the 27 October and 1 November 2021.The decision also mandated the IEC to determine whether it is possible to hold a voter registration weekend after which the Minister is mandated to make a formal proclamation of the election date.

The African Court on Human and Peoples’ Rights released an advisory opinion on ‘[t]he right to participate in the government of one’s country in the context of an election held during a public health emergency or a pandemic, such as the COVID-19 crisis.’ This advisory opinion provides guidance from the Court regarding the conducting of elections by member states of the African Union during the COVID-19 pandemic. The Court’s opinion answers three main questions namely, the decision to conduct or not to conduct elections in the context of a public health emergency or a pandemic, such as the COVID-19; the obligations of State parties to ensure effective protection of citizens’ right to participate in the government of their countries in the context of an election held during a public health emergency or a pandemic, such as the COVID-19 crisis and the obligations of State parties that decide to postpone elections because of a public health emergency or a pandemic, such as the COVID-19 crisis.

 In answering the first question, the Court held that the decision to continue with elections is within the jurisdiction of the competent bodies within a state; the Court opined the same in relation to the postponement of elections. The Court held that in the absence of guidelines relating to the postponement of elections, states should follow guidelines applicable to conducting elections in an emergency situation. This process should be carried out with due regard and consultation with various stakeholders to ensure that the process is inclusive. Regarding the second question, the Court held that states remain bound to allow for their citizens to participate in the government of their countries and that this should be done as set out in the African Charter, the African Charter on Democracy, Elections and Governance and other legal instruments. The Court opines that elections can be held during the COVID-19 pandemic, however, due regard must be given to maintaining the integrity of the electoral process, and appropriate measures to safeguard the right to life must be implemented.  In answering the last question, the Court reiterated the legal standards upon which a postponement of elections can be based and outlined that this must be done only to safeguard the health of the citizens as well as create conditions that allow for free and fair elections. The Court cautioned against states using the postponement of elections to further undemocratic practices. To this end the Court provides guidelines to supplement domestic laws of nations addressing specific criteria relating to the postponement of elections and applicable standards in the event of the term of office of elected officials expiring without elections having been held. .

The recommendations tabled before the IEC in the Moseneke report are in line with international best practice, including the incorporation of the guidelines as provided by the African Court in the advisory opinion relating to elections held during a public health emergency. As with the guidelines of the African Court, we see in this report the need for a balancing of rights when making decisions pertaining to elections during the COVID-19 pandemic. Democracy based on universal adult suffrage is enshrined in the Constitution of South Africa as a founding principle. It has been well documented in the report and in various stakeholders’ opinions that this principle should not be undermined. The rights to vote in elections and stand for the public as provided for in the South African Constitution and the right to participate in the government of ones’ country as provided for in the African Charter for Human and People’s Rights are essential to the functioning of democratic states they should be upheld and protected as far as possible. However, the pandemic poses serious risks to the right to life, which is held as the most important right insofar as being the baseline to the enjoyment of other rights. The processes through which the inquiry’s decision and recommendations were reached embodied democratic principles with input from the public and various stakeholders.

The IEC and the Minister accepted and complied with the Court’s order. The IEC subsequently announced a voter registration weekend set for 18 and 19 September 2021. The minister made a preliminary proclamation of a new election date to be confirmed after the registration weekend as 1 November. The acceptance of and compliance with the decision of the Court is a testament to the functioning principles and respect for the rule of law and separation of powers in South Africa.

Local government is the sphere of government that is responsible for provision of service delivery in South Africa. The effect of postponing elections would have led to expiration of the terms of municipal leaders, ultimately affecting the provision of efficient service delivery, a problem which is already rampant in the nation. The decision to continue with elections and for this decision to be taken by the courts is essential to protecting electoral integrity and against incumbents using COVID-19 to entrench themselves. The decision to continue with elections requires balancing the socio-economic, political, and health concerns that prevail around holding an election during the pandemic.

Regular free and fair elections are essential to the functioning of South Africa’s democracy, and South Africa will now be one of several nations on the continent and worldwide to hold elections amid the COVID-19 pandemic. As the nation gears towards elections during the pandemic, it is essential to uphold the principles of democracy, transparency, and fairness to ensure that the electoral process remains a legitimate form of expression of the majority of citizens. The electoral processes, including registration and campaigning, should be conducted fairly that allows for equitable participation of the population and political parties. It is equally essential to take the various measures to ensure the safety of the masses as they participate in the various electoral processes; it is important that the state balances the right to life and the right to vote in a manner that promotes meaningful democratic expression while protecting the population from the risks associated with COVID-19.

 

About the Author

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

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Towards eradicating female genital mutilation in Nigeria

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

Nigeria is home to over 180 million people, 49.4% of whom are female. Along with the rest of the population, the Nigerian female population will experience dramatic increases in size by 2050. As far as violence against women is concerned, federal law addresses sexual violence, physical violence, psychological violence, harmful traditional practices, and socio-economic violence. The law also cites spousal battery, forceful ejection from the home, forced financial dependence or economic abuse, harmful widowhood practices, female genital mutilation/cutting (“FGM/C”), other harmful traditional practices, substance attacks (such as acid attacks), political violence, and violence by state actors (especially government security forces) as offenses.

A 2019 survey on domestic violence found that 47% of respondents had suffered from domestic violence or knew someone who had; 82% of respondents indicated that violence against women was prevalent in the country. Police often refused to intervene in domestic disputes or blamed the victim for provoking the abuse. In rural areas, courts, and police were reluctant to intervene to protect women who formally accused their husbands of abuse if the level of alleged abuse did not exceed local customary norms.

The prevalence of FGM in Nigeria

FGM refers to all procedures involving partial or total removal of the external female genitalia or other injuries to the female genital organs for cultural or other non-medical reasons. In Nigeria, about 250 ethnic groups scattered across 36 states (including the Federal Capital Territory (“FCT”) contribute to the national and regional FGM/C prevalence burden. The effect of population growth is that increasing numbers of girls and women are likely to be cut in Nigeria, even if overall FGM/C prevalence remains the same. FGM affects girls and women psychologically and physically, with immediate and long-term effects.

According to the World Health Organization, some 19-20 million women have undergone FGM in Nigeria. It occurs both in urban and rural communities. Some studies indicate that the practice is higher in cities in Nigeria. The United Nations Population Fund reports that in Nigeria, 25% of women and girls aged 15-49, have undergone some form of FGM. Nigeria has the world’s third-highest FGM/C prevalence. It is estimated that 25% or 19.9 million Nigerian girls and women 15 to 49 years old underwent FGM/C between 2004 and 2015. These numbers are only third to Egypt’s 27.2 million victims and Ethiopia’s, 23.8 million. The prevalent type of FGM practiced in Nigeria is Type II which involves the removal of some flesh. More than 60 percent of women and girls who have undergone FGM have had their genitalia cut.

In Africa, FGM is known to be practiced among certain communities in 29 countries: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Cote d’Ivoire, Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, Somalia, Sudan, Tanzania, Togo, Uganda, and Zambia.

Who Performs FGM in Nigeria?

The NDHS (National Demographic and Health Survey) 2018 indicates that 7% of circumcisions carried out on girls aged 0-14 and 8.6% of women aged 15-49 were carried out by medical professionals, with the majority of female circumcisions carried out by traditional circumcisers. The circumcisers typically have little to no formal education or medical training. This poses a risk of HIV and other infections. Some girls also experience painful urination and menstrual cycles from suturing the vagina, leaving only a tiny hole for the passage of urine and blood. The practice contributes to maternal mortality and fistula (a hole between the vagina and rectum or bladder that causes an uncontrollable discharge of urine or feces) formation, as a result of complications during childbirth, including heavy bleeding. That is especially true for pregnant women who go into premature labor at seven or eight months when their wounds from FGM/C have not yet healed.

The relationship between FGM and ethnicity in Nigeria

According to the United Nations Population Fund, ethnicity is the most significant factor in FGM prevalence, cutting across socio-economic class and level of education. Members of certain ethnic groups often adhere to the same social norms, including whether or not to practice FGM, regardless of where they live. In Nigeria, FGM is more prevalent in the southwestern (Yoruba-speaking region) and Southeastern (Igbo-speaking region). The reasons given by these ethnic groups include social conformity and community identity. It is regarded as a tribal traditional practice that is performed for the preservation of chastity and purification.

FGM/C prevalence among girls in terms of ethnicity follows a pattern like that observed in their mothers, even when these mothers were out of their indigenous areas. The Yoruba people are an ethnic group of over 20 million people in total, inhabiting the southwestern and north-central regions of Nigeria, as well as southern and central Benin. Though the Yoruba are not the majority, they are also located in the northern parts of Nigeria where the Hausa’s and the Fulani’s are the majority. The Igbo-speaking Nigerians are located in Abia State, Akwa-Ibom, Anambra State, Bayelsa, Cross-River, Delta State, Ebony State, Enugu State, Imo State, and Rivers State.

Though they are a minority, the Igbos also exists in the Northern part of Nigeria in fewer numbers.

The relationship between FGM and age of the victim in Nigeria

The age range for FGM varies.  In some areas, FGM is carried out during infancy – as early as a few days after birth. In others, it takes place during childhood, at the time of marriage, during a woman’s first pregnancy, or after the birth of her first child. Recent reports by UNFPA suggest that the age has been dropping in some areas, with most FGM carried out on girls between the ages of 0 and 15 years. In Nigeria, though the practice is mostly performed on women and girls aged 0-15, there are instances in which adult women may have the ritual performed on them. For example, when a woman is pregnant, the practice is performed on her in the belief that if the child’s head touches the clitoris, the child will die.[1]The practice is also performed during childbirth by an adult woman in the belief that the process will cleanse the adult woman. Most adult women perform the practice believing that they can be considered proper women, and are marriageable in their society.[2] Adult women also perform the process during pregnancy and childbirth because of their belief that the child’s head will touch the mother’s clitoris unless she undergoes FGM.

Measures taken by the Nigerian government towards ending FGM

Nigeria has responded to the international call for the elimination of FGM/C in several important ways. In 2015, President Goodluck Jonathan enacted a law called the ‘Violence against Persons Prohibition Act’ (hereinafter VAPP act) which seeks to eliminate FGM, as well as all other forms of gender-based violence. The Nigerian government also developed the first national policy and plan of action for the elimination of FGM in 2013 and revised this in 2018. The 1999 constitution of Nigeria prohibits any form of torture, inhuman or degrading treatment. Similarly, the Child Rights Act of Nigeria has provisions protecting women and girls from FGM.  Nigeria ratified the Maputo Protocol in 2004. Under article 5 of the Maputo Protocol, FGM is listed as a harmful practice. This requires governments to provide support services and the designing of awareness raising campaigns to enhance the awareness of the public on the impacts of FGM.[3]

Gaps in law and practice in ending FGM in Nigeria

The VAPP act has only been domesticated in 13 states in Nigeria and it is only applicable in the Federal Capital Territory. Nigeria’s law also did not provide a clear definition of Female Genital Mutilation, did not stop parents from taking children to other countries to be cut, and did not address a growing global trend for nurses and midwives who carry out FGM. Countries like Burkina Faso and Senegal stipulate that medical professionals who perform FGM should face the maximum penalty. [4]

There is also no cross–border application of the VAPP act. A parent in a state where the law is domesticated could take a child from that state to another state where the law is not adopted for the child to go through FGM. There is no legal protection provided for women and girls in the 23 states in Nigeria which have not domesticated the 2015 law. Further, the practice follows ethnic group members who practice it. Mere relocation to another state does not suffice as long as the ethnic group members are also located in that specific state. This is made worse because relocating to a state that has no legal protection would mean no prosecution for such an act. There is a chance for example for a Yoruba woman or girl to be subjected to FGM despite relocation to the North where the Violence against Person Protection Act has not been endorsed as long as her ethnic group lives in that particular region.  Research also indicates that even in the 13 states where the federal law is domesticated; there is low awareness among members of law enforcement. Some members of law enforcement also see the act as something private which does not warrant state protection. In addition to the aforementioned, “it is estimated that 1 out of every 100 Nigerians know about the existence of this law. It is also estimated that only 10 out of every 200 Nigerians really know what this act says or means.”

Conclusions and recommendations

The Human Rights Council adopted a resolution calling for “intensifying global efforts and sharing good practices to effectively eliminate female genital mutilation in 2014″. This was reinforced in 2015 when FGM was included in the Sustainable Development Goals (SDGs) under Target 5.3, “eliminate all harmful practices, such as child, early and forced marriage and female genital mutilation.” The United Nations General Assembly adopted The Girl Child Resolution (A/RES/70/138) recognising FGM as a form of “discrimination against the girl child and the violation of the rights of the girl child in 2016. In a positive shift to promoting gender equality and women’s empowerment, the US house of representatives endorsed the ‘strengthening the opposition to Female Genital Mutilation Act of 2020 or the STOP FGM Act of 2020’ in March 2020 that also recognised the cross- border protection of victims of Female Genital Mutilation in the United States.

The eradication of FGM was relevant to six of the UN’s eight Millennium Development Goals (MDGs), which passed their deadline in 2015. In 2012, the UN General Assembly dedicated 6 February as the International Day of Zero Tolerance for Female Genital Mutilation, to amplify and direct the efforts on the elimination of this practice. In September 2015, the UN passed the Sustainable Development Goals (SDGs), which replaced the MDGs and has a new deadline for the achievement of 2030.Following the spirit of Sustainable Development Goal (SDG) 5 (Gender Equality), the UN is striving for the full eradication of FGM by 2030. The 17 SDGs aim at five ‘areas of critical importance for humanity and the planet’ – people, planet, prosperity, peace, and partnership. Although Nigeria signed up to the MDGs, it did not enforce them until savings from the Paris Club Debt Relief Deal in 2005 could be resourced. Research also indicates that the oversight of the goals did not start for additional four years, and statistics are allegedly unreliable.

Despite such developments in the area, cultural relativism is exhibited in Nigeria most especially in the practice of harmful traditional practices such as female genital mutilation. In Nigeria, FGM is protected by culture; a culture that is passed down from older generations to the younger ones. Culture though reinforced by patriarchy sustained by elderly women within the community.

The writer recommends the following actions be taken to effectively prevent and end FGM in Nigeria:

  1. Harmonisation of laws per international and regional human rights standards
    • The Violence against Persons Protection Act of Nigeria should be revised to reflect cross–border application of the law to minimise the number of women and girls that are subject to FGM in states where it is currently not domesticated.
    • The Violence against Persons Protection Act of Nigeria should also include a provision to the effect that the conduct of the practice by medical personnel is outlawed and is punishable.
    • The federal constitution of Nigeria should clearly and broadly define violence against women to include female genital mutilation.
    • Nigeria’s Child Rights Act should be revisited to include a clear definition of female genital mutilation.
  2. Advocacy and awareness-raising efforts 
    • The Nigerian government and other stakeholders should design advocacy efforts to intensify the domestication of the VAPP act of 2015 in the remaining 23 states.
    • The Nigerian government needs to allocate resources towards advocacy efforts to end FGM, and also implement advocacy campaigns around FGM to the general public.
    • CSOs both at the international and local level should design targeted, and well-tailored awareness-raising campaigns in the 13 states where the Violence against Persons Protection Act is already domesticated to police officers, women groups, and lower-level government representatives.

[1] Interview, Ms. Bassey EkanemIquo , Magistrate in the Cross-river State of Nigeria, August 11, 2021.

[2]. Supra note 1.

[3] African Union Commission, Women’s protocol, 2005, art 5 available at https://au.int/sites/default/files/treaties/37077-treaty-charter_on_rights_of_women_in_africa.pdf  accessed on 08/28/2021

[4]Emma Batha, Thomson Reuters Foundation, Nigeria urged to fix legal mess around female genital mutilation, available at https://www.reuters.com/article/us-nigeria-fgm-lawmaking/nigeria-urged-to-fix-legal-mess-around-female-genital-mutilation-idUSKBN1JB02Q, accessed on 08/28/2021

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 prioritized 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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Child marriages in Zimbabwe and the failure by the State to fulfil its obligations to protect the rights of children

Author: Nqobani Nyathi
Researcher, Centre for Human Rights, University of Pretoria

Introduction

Recently, there have been reports about a 14-year old child who died during childbirth. The reason why such a tragedy happened and may continue to happen is the State’s failure or unwillingness to eradicate child marriages. This article seeks to outline Zimbabwe’s legislative framework regarding child marriages and its obligations in terms of international law.

The legal position

Child marriage is illegal in Zimbabwe as held by Zimbabwe’s Constitutional Court. In January 2016, the apex court rightly found that the legislative provisions legalising child marriages were inconsistent with the Constitution of Zimbabwe. The Constitution has fairly strong provisions promoting and protecting the rights of children, including the right to be protected from sexual exploitation or any form of abuse. The Court also observed that historically there has been a “lack of common social consciousness on the problems of girls who became victims of early marriages.”

The fact that child marriages had to be declared illegal through litigation exposes this lack of common social consciousness. Zimbabwe had been clinging to the archaic law legalising the marriage of children in terms of both the Marriage Act 81 of 1964 and the Customary Marriages Act 23 of 1950.

Instead of conceding that child marriages were unconstitutional as per the constitutional provisions and obligations under international law, the Minister of Justice, Legal and Parliamentary, the Minister of Women’s Affairs, Gender and Community Development and the Attorney General opposed the order sought. On merits, they argued that the marriage of children was not unconstitutional. This reflects the State’s lack of will to address child marriages. Using the unsubstantiated claim based on patriarchal values, the respondent Ministers and the Attorney General claimed that girls physiologically and psychologically mature earlier than boys.  They also said that the young women who had approached the Constitutional court challenging child marriages “should have taken responsibility for getting pregnant”. Their arguments to keep the child marriage legislation failed.

There is yet to be law reform focusing on aspects related to child marriages. The Marriages Bill is still before Parliament. Belatedly, it sets the minimum age of marriage at eighteen and seeks to criminally sanction anyone involved in illegally marrying a child.

International law obligations

Zimbabwe ratified the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) on 15 April 2008. Previously, it had ratified the African Charter on the Rights and Welfare of the Child (African Children’s Charter) on 19 January 1995. Article 6(a) of the Maputo Protocol sets the minimum age of marriage for women at eighteen years. Article 21(2)  of the African Children’s Charter prohibits betrothal and marriage of children.  It also imposes an obligation on State parties to take action, including legislative reform to ensure that children are not married. In essence, on an international plane, Zimbabwe already had an obligation to eliminate child marriages before the 2013 Constitution. The failure to do so seems to have been deliberate or negligent.

The State is aware that despite the proscription of child marriages, some religious sects promote the marriage of children, hindering their access to health and the right to education.  While it has claimed some efforts to eradicate child marriages, these are not supported by evidence, which is why children are still illegally “married”.  The inequitable patriarchal norms, claiming religious justification in most instances, continue to perpetuate the illegal practice of child marriages.

In 2017, the African Commission on Human and Peoples’ Rights (African Commission) and the Committee of Experts on the Rights of the Child (ACERWC) adopted their first joint general comment on ending child marriages. The general comment reiterates the obligations that the State parties, including Zimbabwe, have towards the eradication of child marriages. It sets out various legislative, institutional and other measures.

The legislative measures are aimed at prohibiting the betrothal and marriage of boys and girls under the age of 18, without exception and ensuring that those who are entering into marriages have full and free consent to marry.

To implement these legislative measures, Zimbabwe must set up institutional measures that include the verification of the ages of those entering into marriage, registration of all marriages, data collection and allocating and budgeting resources to end child marriages.

Other obligations include addressing factors that contribute to child marriages such as poverty, harmful traditional and religious practices and gender inequality and discrimination. Additionally, there must be a national plan and early warning programme, development and implementation of special measures to prevent child marriage among children at higher risk, reparation of victims of child marriages and raising awareness through public information campaigns.

Way forward

For a country that has fairly comprehensive constitutional provisions protecting the rights of children, there is not much left to be done in terms of legislative reform. It is concerning that about eight years after the Constitution came into effect and over five years since Zimbabwe’s apex court pronounced that child marriage is unconstitutional, there has not been any legislative reform to ensure that there are practical legislative measures in place to ensure that children are not married or betrothed. Again, there is no evidence of an effective monitoring system to combat child marriages.

Overall, the State has not done enough to protect the girl child. There is an urgent need to institute legislative, institutional and other reforms to prevent child marriages and also to support and protect children who have been illegally married, including allocation of sufficient resources towards the eradication of child marriages and reparations for children who fall victim to child marriages.

Holding religious sects that continue to practice this form of abuse accountable is critical. There is a need for a law that criminalises adults who have sex with children, without exception. This should be accompanied by sentences that emphasise deterrence. Also, there is an urgent need to provide comprehensive sexuality education and information programmes to encourage uptake of sexual and reproductive health services for girls. This may help to bring the obscure but pervasive cases of sexual abuse and exploitation to light. At the same time, the State must put in place access to justice programmes to ensure that there are available and effective remedies for children who are victims of sexual exploitation and abuse.

About the Author:

Nqobani Nyathi is a Zimbabwean lawyer, and a Doctoral Candidate and Researcher at the Centre for Human Rights, University of Pretoria.

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Why Angola should ratify the African Protocol on the Rights of Persons with Disabilities: Beyond the legal imperative

Author: Eduardo Kapapelo
Centre for Human Rights, University of Pretoria

One of the main objectives of international and regional law is to ensure the widest scope of human rights and welfare. It has been reasoned that when the physical and mental health of individuals is promoted and safeguarded societies have a better chance of establishing peaceful societies in the aftermath of violent conflict.

Some of the earliest literature has identified that a significant proportion of military casualties are psychological. Such literature which has focused heavily from the perspective of soldiers who have had to fight and ultimately kill on the battlefield to a large extent neglected to adopt a wider scope – to include the civilian population who often receives the brunt of such violence in war-time.

Today, the literature in law and politics has clearly highlighted the devastating effects of war and conflict on a countries socio-economic and political system, psychology and its vital toolkit on the other hand is often omitted within such analysis – especially as policy-makers work towards re-establishing social norms based on the rule of law and human rights.

Today, and while the field of psychology has evolved and made great strides in understanding the human mind, policy-makers, especially those within post-conflict states, fail to fully adopt psychological view-points within the toolkit of state building and reconstruction. From highly documented conflicts such as Vietnam, World War II and countless others which brought to light the effects of ‘shellshock’ and PTSD, we know the varying and unpredictable effects that prolonged conflict can have on the psyche of individuals – especially as such individuals are then expected to interact as full and ‘functional’ members of society, both at the social, economic, political and inter-personal level.

In Angola, generations of its citizens were born in pockets of battlefields throughout the country and raised in such battlefields which in turn shaped their understanding of life – a state of nature which could only be described, and Hobbes would lament as being, ‘nasty, brutish’ – and for many, ‘short’. A generation of Angolan men and women were forged by a trauma that would influence every aspect of their lives.

Yet, and though such trauma is not unique to Angola, today similar traumas have been and continue to be forged in the streets of Sudan, Syria, Yemen and countless others. In faraway battlefields other generations continue to be socialised through violence and fear, through dominance and exclusion.

Conflict and violence in many war torn countries should then be the basis through which state structures respond to social needs and wants. While the human rights normative framework provides that states adopt broad range of legal policies to ensure the re-establishment and enforcement of the rule of law so as to dig itself from the ruins, the importance of robust and widespread psychological mechanisms is vital if a society is to fully heal and with it render the legal basis viable.

In contexts where the barking of Kalashnikovs and violent screams became routine and entrenched in people’s psyches, and in extreme cases served as lullaby’s for many, how can we expect the law alone to address human rights violations in post-conflict states which in light of their history may surely be rooted in something deeper? Can we really speak of adherence to ‘rule of law’ and ‘international normative standards’ when violence was the basis through which many were socialised?

In discussions of human rights, we often speak of dealing with root causes of conflicts – however, we often forget that in addition to structural and legal aspects of political systems, the psychological aspect, the trauma inflicted on individuals can arguably serve as the ultimate basis from which human rights violations stem from and continue to be perpetuated because it is the traumatised individual that inherits and functions within the institutions of the state. As such and within post-conflict states, psychology should play a vital role in meaningfully dealing with political transitions and its importance is vital if such transitions are to be meaningful and lasting.

Article 77 (1) of the Angolan constitution establishes that ‘the state shall promote and guarantee the measures needed to ensure the universal right to medical and health care, as well as the right to child care and maternity care, illness, disability, old age and in situations in which they are unable to work, in accordance with the law’.

Most importantly, and taking into account Angolan history article 84 (1) focuses specifically on the rights of ex combatants and veterans of the nation, stating that, ‘combatants of the national independence struggle, the country’s veterans, those disabled during the course of military or paramilitary service and the minor children and surviving spouses of combatants killed in action, shall enjoy a special status and the protection of the state and society, under the terms of the constitutional law’.

While the Constitution takes note of disability – by making reference to ‘veterans’ and those injured in the fields of battle, it is restrictive and one can reason, looks at disability only within the context of its ‘physical’ manifestation. Angola’s conflict showed the world the effects that war has on the infrastructure of a country; it gave a visual representation as all wars do on the scars that conflict leaves on the human body. However, and perhaps what it often fails to show, are the invisible scars which are left on the human psyche and consciousness of its victims and how such scars directly impact the building of stable post-conflict societies where rights are protected and how such scars make it a near social impossibility to adequately protect human rights.

Indeed, and while there is certainly no excuse for any form of rights violations, it is noteworthy to reflect on the psychological impact that decades of war and conflict can have on both victims of war (civilians) and direct actors (soldiers). Violence towards others in the community has been widely documented from civilians and soldiers who have experienced war.

A study by Elbogen, Johnson, Wagner, Sullivan, Casey, Beckham and Taflt (2014) investigated the extent to which PTSD and other risk factors predict future violent behavior in military veterans. They concluded that violence towards others has been identified as a significant problem for a subset of Iraq and Afghanistan veterans.

If we know that PTSD symptoms are those which if not treated leads to aspects such as alcohol abuse and to a certain level, absence of empathy – it creates another very important layer in understanding social instability and human rights violation in contexts like Angola. The high levels of state violence in Angola has been documented since the end of the civil war. Such state violence can arguably be seen on a similar scale to domestic violence, seen through violence against women. In 2020 for example Angolan authorities registered 19 homicides of women between March and November and 11 cases of domestic violence per day, while in 2019 the Committee on Elimination of Discrimination against Women noted that women were victims of 83% of cases of domestic violence.

Walie (2012) has gone on to make a direct link between violence against women and the nearly three decade civil war in Angola, noting that, ‘the breakdown of the traditional family, socio-economic breakdown of families, cultural disorientation and axiological – misrepresentation of the value scale are a direct result of the armed conflict’. If the armed conflict in Angola was primarily responsibility for the destruction of values that served as the basis for coexistence of elements of Angolan families, it is not farfetched to argue that this also extends to the continued violations of human rights in Angola from the lens that the psychological, and the unseen trauma contribute to human rights violations.

Why then is ratifying the African Protocol on the Rights of Persons with Disabilities (the African Disability Rights Protocol) so important for Angola? If we look at the centuries of Portuguese colonialism, the war of independence and the civil war, Angola has endured periods of extreme violence and human rights violations – and with it high levels of trauma, and if we factor in aspects of generational trauma – such trauma is then amplified with its effects difficult to fully quantify.

In addition, a high number of soldiers who fought in the civil war were absorbed into the Angolan national police and security services. This action together with Angola’s shameful post-war ‘forgive and forget policy’ and the telling of former combatants and civilians to simply go home, left a society not only traumatised but also created a human rights quagmire which might have devastating effects on individual rights and freedoms.

The importance of the African Disability Rights Protocol is not only in the scope of definition of persons with disabilities to include those with mental, psycho-social and intellectual disabilities, but also its potential to be transformative and be used by states to address current human rights violations by way of targeting the direct causes of such violations which at times go beyond the legal paradigm. In addition, one can also extrapolate from the Protocol, especially in light of post-conflict states, that those suffering from potentially “long” PTSD as a result of violence and war deserve help, assistance and care – and that human rights violations do not necessarily happen in a vacuum.

The African Disability Rights Protocol is important as it serves as a mechanism to deal with such psychiatric matters, together with allowing the state to create socio-cultural and political blueprint (adapted to its peculiarities) to address the psychological matters which might directly influence the level of human rights adherence in a society.  Angola’s status as a post-conflict state makes the ratification of this Protocol not only imperative but would directly impact the adherence of human rights in the country – in light of its historical context and in doing so serve as a positive step towards creating a context in which human rights can be better received and applied based on internationally accepted human rights norms and standards.

About the Author:

Dr. Eduardo Kapapelo is a Programme Manager at the Centre for Human Rights and researcher in the field of political sciences, international law and human rights. He is working towards better understanding how governments can design institutions and mechanism for violence prevention. His expertise includes project design and management, policy analysis and implementation. He is currently researching new and emerging technologies such as artificial intelligence, autonomous weapons systems and their relationship to human rights. Specific fields of interest include policy analysis, human rights and structured vulnerabilities and post conflict justice and reconciliation.

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Natural resources: The cause of the permanence of armed conflicts in Africa?

Boubakar-A-MahamadouAuthor: Boubakar A. Mahamadou
Graduate, Swiss Umef University

Africa is undoubtedly a continent rich in natural resources thanks to its subsoil which abounds in 30% of the world’s mineral resources. However, these resources have not allowed the long-awaited development of the continent to be achieved. These resources have also become the main sources of conflict on the continent. Indeed, the presence of significant natural resources on the territory of a State increases the risk of armed conflict. They can motivate secessionist demands, finance rebellions or even stir up violence. According to the United Nations Environment Program (UNEP), natural resources are associated with 40% of internal conflicts around the world. It is in this sense that in Africa, we have been witnessing for some time now, the development of an economy of armed conflict.

War economy is a practice of enrichment linked to war. It refers, in the African context, to the predation of natural resources and illicit trafficking. The predation of natural resources is a means for the actors involved in armed conflicts to ensure their prosperity, and sustain their ability to continue to engage in armed conflict. It is carried out through looting and direct exploitation which necessitates occupation of production regions and transport roads.

The importance of this control has impacts on the areas of troop deployment and the intensity of fighting. The strategy adopted by armed groups is akin to the establishment of strong insecurity through a significant mobilisation of armed troops, who have the task of increasing the number of patrols. In this regard, there can be violence exerted on the civilian populations and clashes with the armed forces of the state which contributes to making the production areas hostile.

Thus, once the belligerents have had control of natural resources, “the political motivations of the war give way to economic motivations”. This makes it difficult to end the conflict, as the income from natural resources not only makes it possible to glorify warlords but also to recruit men or pay for armaments in order to maintain their power. Also, this wealth is beneficial to several other actors such as foreign companies, arms dealers and often neighboring states which provide material and financial means to rebel groups in return for natural resources.

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The involvement of companies has been widely recognised by the international community through, the revelation by the United Nations in 2002, of a list of eighty Western companies linked to the illegal exploitation of natural resources in the Democratic Republic of the Congo (DRC) only. Thus, as long as this situation allows the enrichment and impunity of the various actors, it is not easy to return to the statu quo. Consequently, despite the pacification efforts carried out at both the international and regional levels, conflicts persist and become of “low intensity”.

The war in Kivu is a perfect illustration of this phenomenon. The region was plagued by land tensions before experiencing an internationalised conflict from 1998 following the interference of neighboring countries (Rwanda, Uganda and Burundi) and the requested intervention of two States (Zimbabwe and Chad). Thus, this internationalisation highlights the issue of natural resources which have become the counterpart of military aid and the source of financing the cost of the occupation led by Rwanda, Uganda and Burundi.

However, even with the withdrawal of foreign troops in 2003, resources still continue to be “the sinews of war” with a proliferation of armed groups. Outside the DRC, several African countries have experienced this practice of predation and looting, notably Liberia, Sierra Leone and the Central African Republic (CAR), hence the designation ‘natural resource curse’.

However, this curse should be put into perspective because the impact of resources on geopolitics depends on several factors, including in particular, the failure of states to control their territories, poor governance and the accessibility of natural resources. It should be noted that the most coveted sectors are those from which the minerals are extracted at low costs through artisanal methods.

In view of the situation, it appears necessary to take political and legal measures aimed at preventing and contributing to the resolution of the current crises. In this sense, States are urged to ensure better management of natural resources likely to promote national development, because in reality several internal conflicts are linked to economic interests resulting from a poor distribution of public goods. Such an approach should be followed by the development of a legal framework to effectively combat economic crimes perpetrated by natural and legal persons.

 

About the Author:

Boubakar A. Mahamadou is a graduate in International Humanitarian Law from the Swiss Umef University.

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Concurrent military deployments in Mozambique and their permissibility under SADC treaty law

Author: Marko Svicevic
Post-doctoral research fellow, South African Research Chair in International Law (SARCIL), University of Johannesburg

On 23 June 2021, the Extraordinary Summit of the Southern African Development Community (SADC) Heads of State and Government approved the deployment of a military force to Cabo Delgado in support of Mozambique’s fight against violent extremism in the province. The approval of the deployment, termed the SADC Standby Force Mission to Mozambique, was a delayed yet surprising response from the bloc to an increasingly volatile situation. The violence in Cabo Delgado is approaching its fourth year now, has resulted in over 3000 deaths, and has internally displaced over 700 000 people.

The SADC deployment seems to be based on the consent of the Mozambican government. What complicates the matter however is that even before SADC was able to deploy, Rwanda has already dispatched some 1000 troops to the province at Mozambique’s request.

The deployment of Rwandan troops ahead of SADC’s deployment has in itself produced controversy. Diverging narratives have since been pronounced in the region. Mozambique’s official opposition, Renamo, immediately opposed the Rwandan deployment claiming it was illegal in so far as Parliament was not informed (see also here). The Rwanda National Congress (RNC), an exiled political party, expressed ‘concern’ that the Rwandan deployment took place ‘ahead’ of the SADC deployment. It added that Rwanda is not a SADC member and ‘it purports to have been invited by the Mozambican government.’ The RNC also believes the Rwandan deployment is ‘overstepping’ SADC’s arrangements.

While both the SADC and Rwandan deployments seem to have been undertaken in full compliance with international law regulating the use of force; there is some uncertainty as to whether the SADC treaty law permit such an occurrence. Days before SADC was meant to deploy, South Africa’s Minister of Defence and Military Veterans indicated it was ‘unfortunate’ that Rwanda deployed its troops before SADC because it was expected Rwanda would have deployed ‘in support of Mozambique in the context of a mandate which has been given by SADC…’ The Minister conceded however that the Rwandan deployment was a bilateral agreement between it and Mozambique, and SADC had no control over this decision.

President Filipe Nyusi has however publicly announced that SADC has approved Rwanda’s deployment; despite SADC executive secretary quoted saying it was ‘unfortunate’ Mozambique had not formally notified SADC of Rwanda’s deployment. These contentions understandably bring about a need to both clarify the broader legal bases for the concurrent deployments and their compliance with SADC treaty law.

The SADC deployment: consent-based

Not unexpectedly, a legal basis for the SADC deployment has yet to be articulated. From context however, it seems to be based on a SADC authorised deployment underpinned by Mozambican consent. What remains unclear is whether Mozambique has formally requested the military assistance or whether it has consented to a SADC-proposed deployment. Nonetheless, President Nyusi has, albeit cautiously, welcomed the deployment all the while emphasizing that military operation will be directed by Mozambique.

President Nyusi is the current SADC Chairperson and was present during the 23 June Extraordinary Summit when the deployment was authorised. This is a strong indication the SADC deployment is based on the consent of the Mozambican government. It is also confirmed by the fact that SADC has since written to the United Nations Security Council (UNSC) to inform it of the deployment which it dubs a ‘regional response to terrorist activities in Mozambique.’ In a letter addressed to UN Secretary-General António Guterres, SADC Executive Secretariat Dr Stergomena Tax states that:

‘Consistent with the SADC Protocol on Politics, Defence and Security Cooperation, and in recognition of the principle of subsidiarity as espoused in the United Nations Charter, Chapter VIII, Regional Arrangements, Article 52, I wish, on behalf of SADC to request your good offices to inform the United Nations Security Council on SADC’s deployment.’

The reference to both the SADC Protocol on Politics, Defence and Security Cooperation (SADC Protocol) and the UN Charter (so precisely that it mentions Article 52) is significant. It suggests that the SADC deployment falls outside of the scope of Article 53 regional enforcement action under the UN Charter; the deployment is therefore not taken against the consent of the State. Additionally, it also rules out a basis for regional enforcement action under Article 11(3) of its own Protocol – which provides for ‘enforcement action only as a matter of last resort and, in accordance with Article 53 of the United Nations Charter, only with the authorization of the United Nations Security Council.’ In combination, the fact that the UNSC is only ‘informed’ of the deployment, rather than seeking to obtain its authorisation, suggests the deployment is consent-based.

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The Rwandan deployment: request for military assistance

Six days before the SADC deployment was to initially commence, on 9 July 2021, Rwanda announced it was deploying troops to Cabo Delgado. A government issued statement reads:

‘The Government of Rwanda, at the request of the Government of Mozambique, will today start the deployment of a 1,000-person contingent of the Rwanda Defence Force (RDF) and the Rwanda National Police (RNP) to Cabo Delgado Province, Mozambique, which is currently affected by terrorism and insecurity.’

The statement also indicates the deployment is based on agreements between the two countries signed in 2018. This would suggest the deployment is based on an already existing mutual security cooperation agreement which was concluded before SADC had formally taken a decision to deploy. However, it is unlikely the agreement provides for conditions of deployment without requiring a formal ad hoc request for assistance. That the ad hoc request was present in the current context is seemingly acknowledged in the statement itself.

Although the statement also notes that the deployment is grounded in, among others, Rwanda’s commitment to the Responsibility to Protect (R2P) doctrine, there is little doubt the deployment is firmly based principally on a request for military assistance. The precise content and details of Mozambique’s request are however unlikely to be made public. For the most part, there is little dispute concerning Mozambique’s authority to request military assistance from Rwanda. President Nyusi’s government is no doubt the legitimate authority entitled to request military assistance. In addition, despite serious accusations of human rights abuses by, among others, the Mozambican armed forces, this does not yet seem to be a barrier against its right to request assistance.

Concurrent military deployments as security cooperation agreements under SADC treaty law

Two issues however seem to arise in the current context. The first is that Rwanda is not a SADC State Party. This raises questions as to what extent Mozambique is entitled to enter into additional and potentially incompatible security arrangements with non-SADC State Parties under its existing SADC security commitments, especially given SADC’s pre-dated decision to authorise a military deployment.

Second, it is interesting to note President Nyusi’s sentiments expressed on the matter indicating that SADC has approved Rwanda’s deployment to Mozambique (see here and here; but see also reports that SADC is dissatisfied with the Rwandan deployment here, here and here). One question which arises is whether Mozambique, as a sovereign state, would at all need SADC approval in order to request, and ultimately receive, military assistance from a non-SADC State Party.

This question seems to be addressed under Article 10 of the SADC Protocol. Recognising that political, defence and security matters ‘transcend national and regional boundaries’, Article 10(1) provides that cooperation agreements between SADC State Parties and non-SADC State Parties as well as other organisations shall be accepted under certain conditions. In principle, these agreements must not be inconsistent with the objectives and other provisions of the SADC Treaty and SADC Protocol (art. 10(1)(a)), must not impose obligations upon a State Party that is not a party to such a cooperation agreement (art. 10(1)(b)), and must not impede a State Party from fulfilling its obligations under the SADC Treaty and SADC Protocol (art. 10(1)(c)). 

Only agreements between the SADC Organ on Politics, Defence and Security Cooperation – its principal institution governing peace and security – and a non-SADC State Party, or between another organisation, must be approved by the SADC Summit – the highest institutional decision-making body (art. 10(2)).

On this basis, there is no explicit nor automatic requirement that SADC needs to approve a security cooperation agreement between a SADC State Party and a non-SADC State Party.  In the case at hand, one may whether the request for assistance (based on the 2018 agreements) by Mozambique to Rwanda constitutes a ‘co-operation agreement’ within the meaning of Article 10. If it does, the request for assistance should not be contrary to Articles 10(1)(a)-(c). In its current form, the request for assistance to Rwanda does not impose obligations on a State Party not a party to it (art. 10(1)(b)), and it would appear to not impede any State Party from fulfilling its obligations under the SADC Treaty and SADC Protocol (art. 10(1)(c)).

However, it is questionable whether the request for assistance may be inconsistent with the objectives and provisions of the SADC Protocol (art. 10(1)(a)) in so far as the SADC Summit has already taken a formal decision on the violence in northern Mozambique and authorised a deployment mandated to assist Mozambique with its security situation. That inconsistency would presumably persist only to the extent that the SADC and Rwandan deployments may be incompatible.

This may in turn bring about considerations of command and control of the concurrent deployments, mission objectives, rules of engagement, and geographical areas of operation. To the extent that incompatibilities arise, the Rwandan deployment, if it is to be considered a security co-operation agreement contemplated under Article 10, may potentially be viewed as contrary to Article 10(1)(a).

Any such inconsistency will however probably only be realised once the SADC deployment’s technicalities have been outlined. For now, if SADC has indeed ‘approved’ of the deployment, that would suggest some level of cooperation between the two deployments and may prevent inconsistencies referred to in Article 10(1)(a). In turn, Article 10(1)(a) may fall away in so far as the concurrent deployments, both ‘approved’ by SADC, operate in harmony in Mozambique. After all, both deployments are aimed at assisting the Mozambican State against acts of violent extremism in Cabo Delgado and both deployments are seemingly undertaken with the full consent of the Mozambican State.

To the extent it should be mentioned, the SADC Protocol’s objectives and general provisions provide for an elaborate security framework under SADC institutions. There is however little to suggest that issues of regional peace and security are left exclusively to SADC’s competencies; the Protocol evidently foreseeing security cooperation agreements which extend to non-SADC State Parties. While concurrent deployments such as the one in Mozambique may not be ideal from an operational perspective, they are not prohibited under SADC treaty law.

 

About the Author:

Marko Svicevic is a post-doctoral research fellow at the South African Research Chair in International Law (SARCIL), University of Johannesburg.

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