Transitional Justice and Women in Africa: How the Material Turn is still difficult to be seen?

Author: Cristiano d’Orsi
Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg

As envisaged in the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), transitional processes should recognize the gendered nature of conflicts in which women are affected disproportionately, both directly and indirectly, by violence (see, for example, Article 10 –Right to Peace- and Article 11 –Protection of Women in Armed Conflicts-).[1] However, gender concerns in Africa have been rarely incorporated into Transnational Justice (TJ) through mainstreaming gender as a crosscutting issue. The nature of the violations to which women are usually subjected on the continent, and the impact of such violations on them, means that the issue of women and TJ should be treated on its own. Nevertheless, there is still a long way to go to comply with this measure. Normally, states emerging from conflicts or authoritarian repression should ensure women’s representation and participation at all stages of TJ processes by writing women’s participation into peace agreements and TJ laws and policies. Nevertheless, seldom has this been the case in Africa.

For example, with respect to the investigation and prosecution of sexual and gender-based violence, TJ processes should adopt measures that protect victims of such violence from social and cultural stigma and ameliorate procedural and evidentiary requirements that militate against their effective prosecution. A serious concern remains over the apparent continuum of violence facing women in societies emerging from conflict. For many women, sexual and gender-based violence is as prevalent during peace as during times of conflict but attention to these violations dissipates. African countries emerging from conflicts often face high levels of violent crime, which is exacerbated by weak and under-resourced justice sectors. Women who have been victims of gender-based violence also face considerable stigma, and there is often pressure to simply remain silent.

As of now, for Africa it would be already a success if all the cases of rape can be recognized like such, not only by judges in court but also by civil society. Unfortunately, rape culture, is many African countries is still a big problem. The expression “rape culture” refers to an environment in which sexual violence against women is normalized and excused in the media and popular culture.  Rape culture is perpetuated by misogynistic language, the glamorization of sexual violence and the objectification of women’s bodies, in that way creating a society that disrespects women’s rights and safety. For example, in South Africa marital rape is still often commonly accepted at a societal level and domestic courts are not always very prompt in condemning it either. In the words of  Nyasha Karimakwenda (2018) “[T]he culturally sanctioned rape myths create a common bond between rapist and judge, and they draw upon the same language and techniques to justify marital rape […] I drew out the neutralisation techniques exploited by the judges to minimise the culpability of the husbands who had been convicted of marital rape. Through the techniques of denial of injury and denial of the victim, the judges negated the human-ness and suffering of the victims” (at 223-224).[2]

This should also be coupled with recognizing the importance of the adoption of urgent measures to address the psychosocial, medical and livelihood needs of survivors of gender-based violence. On the domestic level, despite often depleted and fragile legislative and judicial infrastructure after a conflict, a number of countries have undertaken commitments to protect and enshrine gender concerns through both international and domestic instruments. Recent examples have shown, however, that enacting gender laws is only the beginning. A study from Liberia, which passed a Rape Amendment Act in 2006,[3] has revealed that challenges with prosecuting sexual crimes are due to both the inadequate judicial system and the lack of knowledge among victims of the stages and procedures for prosecuting offenders. In converse, a significant development in the field of reparations has been the delivery of reparations by military tribunals in the Democratic Republic of Congo (DRC). In April 2006, a military court in Mbdandaka found seven army officers guilty of mass rape of more than 119 women at Songo Mboyo in 2003 and sentenced them under the Rome Statute,[4] which the DRC ratified in 1998. This was the first time rape was tried as a crime against humanity in DRC, and the first such sentence against military personnel for these crimes. For the destruction of the village of Songo Mboyo and the mass rape, they received sentences of life imprisonment and the verdict required each victim’s family to receive reparations for US $10,000. Rape victims were to receive US $5,000.

In this scenario, it is clear that, primarily, African states should enforce the prohibition of discrimination against women, criminalise violence against women, including sexual violence, and harmful practices affecting women in accordance with national, regional and international human rights standards. Traditional authorities and others involved in TJ mechanisms should be educated and trained to ensure that customary law or practices that are incompatible with the human rights of women are no longer applied by TJ systems. Increased representation of women in traditional justice systems should also be encouraged.

In this context, there have been some promising efforts to improve the human rights practices of traditional justice systems. In Rwanda, an estimated 120,000 perpetrators were arrested at the end of the genocide in 1994 and projections were that it would take over 110 years to try all the detainees in the national courts.[5] Hence, the gacaca courts were established in 2001 as a means to speed up the process. These were intended to be community courts, presided over by village elders in the presence of the whole community, where any person could request to give testimony. Sentences were generally restorative and involved the perpetrator being required to engage in community-oriented work. Women were specifically included at a number of levels, and there have been widespread education campaigns to encourage women’s involvement in the courts. Unfortunately, while women of all ethnic groups had suffered gender-based crimes, Hutu victim-survivors were not eligible for compensatory assistance.

In spite of several efforts to change the situation, discrimination against women remains one of the most commonly cited human rights issues in the context of traditional TJ systems in Africa. While the level of female leadership in such systems remains low, there is evidence of positive developments in recent years. In Namibia, for example, it has been reported that, since independence, women have had a much greater role in traditional court meetings and been encouraged to play an active role, and have had leadership roles in certain villages.[6] In South Africa, women have been installed as traditional leaders. In a ground-breaking case in 2002, a woman was officially installed as a traditional leader, but her uncle’s son challenged this in the High Court in Pretoria claiming that it was in conflict with customary law. Relying on written customary law, the High Court ruled in favour of her uncle’s son, and the Supreme Court of Appeal, holding that succession followed particular customary rules, upheld this decision. The judgement was overturned in favour of the woman, on appeal to the Constitutional Court. The Constitutional Court held that “Customary law is by its nature a constantly evolving system. […] the content of customary law must be determined with reference to both the history and the usage of the community concerned” (Shilubana and Others v. Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC), Judgment of 4 June 2008, paras. 45–49).[7]

Concerns about gender discrimination may stem in part from the reliance on mediation and reconciliation in dispute resolution, which may favour the more powerful male members of society, who may hold stereotypical views of women. Similarly, decisions made by the leaders of the community, or by the community as a whole, may disadvantage women, who typically are less powerful. More broadly, deep-seated stereotypes about the role of women in the community may play a role.

A priority for the international community to ensure that TJ processes are more gender-sensitive is to promote the greater participation of women in peace negotiations, where TJ mechanisms are often first outlined. In October 2000, the United Nations Security Council (UNSC) passed the historic Resolution No. 1325, which provided the first official endorsement of the inclusion of women in peace processes and the implementation of peace agreements by the UNSC. Regrettably, the nature of conflict often results in the exclusion of women’s voices from peace negotiations with their specific concerns not being addressed in any meaningful way in the peace-building process.[8]

The current discourse on TJ in Africa needs certainly to be broadened in order to promote more inclusive gender-oriented notions of justice. TJ initiatives are often devised in a way that reduce gender concerns to those of “victimhood”. The focus on women as victims not only perpetuate perceptions of women’s passive role during conflicts, but also silences other aspects of their experiences. Women’s multiple roles during a variety of recent conflicts were stressed, because they have been visible as cooks, porters, guards, perpetrators, as well as community leaders.

I do not think that, at least now, the material turn taken by TJ is really changing the life and perspectives of women in Africa. I would be very interested in delving into this topic to look for possible opportunities of improvement of the situation of women on the continent, although certainly not in the short/medium term.

 

[1] https://au.int/sites/default/files/treaties/37077-treaty-charter_on_rights_of_women_in_africa.pdf

[2] https://open.uct.ac.za/bitstream/handle/11427/30023/thesis_law_2018_karimakwenda_nyasha.pdf?sequence=1&isAllowed=y

[3] https://evaw-global-database.unwomen.org/-/media/files/un%20women/vaw/full%20text/africa/liberia%20-%20rape%20amendment%20act.pdf?vs=4125

[4] https://www.droitcongolais.info/files/4.30.-TMG_BDK,-Jgt-du-12-avril-2006,-complot-militaire.pdf

[5] https://library.oapen.org/bitstream/id/0be192c6-18d8-44c9-953e-c3c60ebe878c/external_content.pdf

[6] https://www.jstor.org/stable/25065065

[7] http://www.saflii.org/za/cases/ZACC/2008/9.html

[8] http://unscr.com/en/resolutions/doc/1325

About the Author:

Dr. Cristiano d’Orsi is a Lecturer and Senior Research Fellow at the South African Research Chair in International Law (SARCIL), Faculty of Law, University of Johannesburg. He holds a Laurea (BA (Hon) equivalent, International Relations, Università degli Studi di Perugia, Perugia); a Master’s Degree (Diplomatic Studies, Italian Society for International Organization (SIOI), Rome); a two-year Diplôme d’Etudes Approfondies (Master of Advanced Studies equivalent, International Relations (International Law), Graduate Institute for International and Development Studies, Geneva); and a Ph.D. in International Relations (International Law) from the same institution. In addition, Cristiano did post-doctoral studies at the University of Michigan Law School (Hugo Grotius Fellow) and at the Centre for Human Rights, University of Pretoria. Cristiano’s research interests mainly focus on the legal protection of asylum-seekers, refugees, migrants and IDPs in Africa, on African Human Rights Law, and, more broadly, on the development of Public International Law in Africa.

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A critique of the Resolution (PAP-Res. 06(VI)/06) and Recommendation (PAP-Rec. 08(VI)/06) of the Pan-African Parliament (PAP) on migration in Africa.

Author: Eva Abugabe
MPhil candidate, Centre for Human Rights, University of Pretoria

Introduction

The PAP[1] in its sixth session of the First Parliament in 2006 resolved to ending migration in Africa.[2] Based on PAP-Rec(08(VI)06), the PAP acknowledged migration as a regional priority due to increasing refugee crisis, migrant remittances, movement of labour, the African Diaspora and brain drain, feminisation of migration, xenophobia and human trafficking.[3] In PAP-Res (06(VI)06), the PAP furthermore demanded continuous agenda setting in its debate, regional and national collaborations in learning best practices including encouraging governments to address the challenges by observing good governance and promoting investment in economies, infrastructure and creating employment.[4]

The article[5] critically analyses the PAP’s resolutions and recommendations against regional and international human rights instruments. It aims to position the PAP as an active protector of human rights while making it more visible to Africans, its primary constituents. Its thrust is to also evoke deliberate interventions and broadly contribute to the actualisation of the Africa We Want Agenda, Agenda 2063[6] and to the 2030 Agenda for Sustainable Development[7] specifically target 10.7 of Goal 10.[8]

Africa’s migration challenges

Article 1 of the African Charter on Human and Peoples Rights enjoins state parties to adopt legislative and other measures to protect people’s rights and freedoms.[9] The Charter recognises freedom of movement[10] however, as the PAP acknowledged, migration has significant consequences for Africa’s development. Africa is widely projected as a ‘continent on the move’[11] and bedeviled with millions of Africans migrating to other continents especially Europe through unapproved avenues.[12] Multiple reports underscore African youth, men, and women sometimes with their children, embarking on dangerous journeys, including through the Mediterranean Sea in search of greener pastures in the global north. [13]

Against this backdrop, the United Nations has since 2010, continuously pronounced Sub-Saharan African countries as accounting for 8 of the 10 fastest emerging international migrant populations.[14] African migrants allegedly threaten the peace and security, developmental plans among others, of most governments and citizens especially of industrialised northern countries,[15] owing to concomitant effects of unlawful entries, prolonged stay, establishment of shambolic relations (marriage) and overburdening social systems (asylums).

Sadly, many African countries have limited empirical data of migrants, much less, intersectional demographic distributions. The 2019 international migration assessment of the United Nations projected that, since the sequences of African population censuses in the 2000, 14% of Sub-Saharan African countries do not have updated data on international migration, 24% do not publish information on recent data and above 33% are in need of revised data on age distribution data.[16] Nonetheless, more African men than women, and youth than older persons migrate.[17] Africa has witnessed 6 million international migrants of the world migrants stock, an equivalent of 0.4 million growth per year between 2000 and 2015.[18] Out of the 244 million international migrants worldwide in 2015, Africa was host to an estimated 21 million migrants while to 34 million Africans were international migrants.[19] African migrants contribute significantly to the populations of Asia, Europe, and North America.[20]  These numbers invariably have serious impact on African countries’ population demographics especially maximising the potentials of African women and youth through engagements and skills development which are essential for their participation and ignite their interest in all spaces of life and Africa’s growth at large.

Many Africans migrate for different reasons. Africa’s escalating migration rates are partly caused by poor governance, electoral violence, lack of employment opportunities, shelter and upsurges of conflicts, terrorism, corruption and political instability.[21] Unsurprisingly, in August 2018, leaders of European nations, including French President Emmanuel Macron, British Prime Minister Theresa May and German Chancellor Angela Merkel engaged with selected African leaders on developmental concerns of foreign direct investment and migration.[22]

The role of PAP in tackling Africa’s migration challenges

The PAP, though interested in resolving the migration problem, missed some opportunities, including the opportunity to demand that States take sustainable steps to curtail migration. It instead made generic statements rather than taking targeted steps to ensure that the migration challenge is tackled by African states. The AU Convention for the Protection and Assistance of Internally Displaced Persons (the Kampala Convention)[23] has only been ratified by 31 member states.[24] Regrettably, there is no specific and comprehensive African migration treaty, however, effective implementation of the Kampala Convention can contribute to ameliorating forced migration flows.  As a result of IDPs[25] sometimes migrating when they do not receive the needed support (forced migration),[26][27] increasing ratification of the Kampala Convention is important. It ensures that IDPs are not forgotten through the state obligations to protect and respond to the issues of IDPs towards preventing them from crossing internationally recognised state borders. It also serves as a framework that calls for critical and dynamic sustainable solutions among multiple stakeholders including recognising the role of international actors in ending Africa’s internal displacement menaces.

Similarly, only 26 AU member states have also acceded to the International Convention on the protection of the rights of all migrant workers and members of their families with 11 signatories pending ratification in the future.[28] African states seemingly reluctance to ratify the Convention, implies a lack of commitment to addressing migrant issues including implementing non-arbitrary and non-discriminatory legislative and policy interventions such as on expulsion and deportation of non-citizens as recommended by the Committee on the Elimination of Racial Discrimination.[29] Consequently, many African migrants are not receiving adequate protection under international law.[30]

Another golden opportunity missed was a call to adopt respective National Migration Policy Frameworks that will be consolidated at regional levels towards harmonised coordination and development agenda. To date, the 2018 AU Migration Policy Framework aimed at effectively guiding member states in migration management is less realised even after 4 years of its adoption.[31] So far, only a few African countries are formulating policies on international migration. For example, South Africa had a shared proportion of international migrants of about 3% in 2015 and which rose to 7% in 2019[32] of its national population. South Africa has adopted a green paper on international migration under consideration even though it is largely focused on the migration of other African nationals to South Africa.[33] Members of the Southern African Development Community (SADC) only recently engaged the International Organisation for Migration (IOM) on migration and its impact within the sub-region.[34] There is no supporting evidence of other sub-regional consultation mechanisms on migration with IOM.

There is a crucial need for a migration instrument and consolidating democracy through the full implementation of the African Charter on Democracy and Governance.[35] Cross-border cooperation through the ratification and implementation of the AU Convention on Cross-Border Cooperation (Niamey Convention)[36] is a leveraging necessity to closing porous borders and building concerted efforts towards effectively dealing with migration. The PAP should capitalise on its strength for extensive engagement and lobbying of the various regional and national parliaments in ratifying these treaties and other related ones. Importantly, the PAP has an important role to play ensuring that ratified treaties are domesticated in national laws and policies. The longevity of such treaty ratifications and simultaneously engineering the envisioned needed impact of the treaties is also dependent on at least two imminent game-changing effects; the swift ratification of the Malabo Protocol[37] as a transmogrification of PAP into a fortified fully-fledged legislative body under the AU governance architecture for its effectiveness (enforcement and/or follow up from AU and other related policy organs on its recommendations) and; prioritising the restoration of the PAP’s credibility amidst its niggling leadership controversies.[38][39] Furthermore, there is the need to create an up-to-date computerised database and analytical system with intersectional demographic characteristics of migrants and returnees within and outside Africa towards understanding migration trends, and formulation of substantive inclusive policies.

It is also trite for the PAP to establish migration focal points with detailed terms of reference and adequate funding for results-based monitoring and evaluation of states interventions. Also, strategically establishing broad-based stakeholder consultations and collaborations with civil society groupings and other human right actors in Africa. These stakeholders among others help to provide (re)integration services such as information on rights; legal and social counselling; sensitisation, behavioural change and advocacy; including job searching, skills training and reintegration of migrants into their communities. Therefore, they are important for; recognising the needs assessments of refugees and migrants; providing expertise and best practices for effective integration and management of migration policies; establishing a structured contact with refugees and migrants; filling urgent gaps that may not be covered such as research, humanitarian services and early recovery; and ensuring local ownership and sustainability of migration interventions.

Conclusion and recommendations

The foregoing represents the author’s logic that the PAP clearly has a great potential to substantially protect Africans human rights although, for almost two decades since its establishment, this is evidently missing. Notwithstanding, the quality of the PAP’s resolutions and recommendations thus far, indicates its awareness of its potential and appreciation of the issues it should be tackling. What is lacking is the implementation of these decisions particularly by its office bearers. Of specific mention, the permanent committees[40] and secretariat[41] should rely on human rights treaties to stress African states obligations and integrated collaborations.

In anticipation of Africa’s population growth shadowing world growth by 2 billion by 2050,[42] and to avoid reversing Africa’s developmental gains, it is imperative for PAP to take pragmatic steps to protect African migrants including the most vulnerable. It is recommended that the PAP develop a tracking mechanism for the implementation of its resolutions and recommendations. Its office bearers should especially leverage on diverse communication platforms to consistently make information publicly accessible for advancing knowledge and demanding accountability of the PAP; and to influence the adoption of an African migration law to adequately address migrants’ peculiar challenges.

[1] African Union ‘The Pan-African Parliament’ https://au.int/en/pap (accessed 5 November 2022).

[2] File available on the desk of the researcher.

[3] As above.

[4] As above.

[5] It is developed from a review of the PAP’s documents during her work with the Democracy and Civic Engagement Unit of the Centre for Human Rights, University of Pretoria.

[6] Africa Union (AU) ‘AU Agenda 2063: The Vision for 2063’ https://au.int/sites/default/files/documents/33126-doc-06_the_vision.pdf (accessed 5 November 2022).

[7] United Nations (UN) ‘Transforming our world: the 2030 Agenda for Sustainable Development’ https://sdgs.un.org/2030agenda (accessed 5 November 2022).

[8] UN ‘SDG Indicators’ Statistical Division https://unstats.un.org/sdgs/metadata/?Text=&Goal=10&Target=10.7 (accessed 5 November 2022).

[9] African Charter on Human and Peoples’ Rights (1981) https://www.achpr.org/public/Document/file/English/banjul_charter.pdf (accessed 5 October 2022).

[10] As above.

[11] M Flahaux and HD Haas ‘African migration: trends, patterns, drive’ Comparative Migration Studiesi (2016) https://comparativemigrationstudies.springeropen.com/counter/pdf/10.1186/s40878-015-0015-6.pdf *(accessed 5 October 2022).

[12] As above.

[13] As above.

[14] United Nations (UN) ‘Trends in international migrant Stock: The 2017 Revision’ Economic and Social Affairs https://www.un.org/en/development/desa/population/migration/data/estimates2/docs/MigrationStockDocumentation_2017.pdf (accessed 10 October 2022).

[15] Flahaux and Haas (n 11).

[16] UN ‘International Migration Report 2015’ (2016) Department of Economic and Social Affairs, Population Division ST/ESA/SER.A/384. https://www.un.org/en/development/desa/population/migration/publications/migrationreport/docs/MigrationReport2015.pdf (accessed 5 October 2022).

[17] As above.

[18] As above.

[19] As above.

[20] As above.

[21] AU ‘The Revised Migration Policy Framework for Africa and Plan of Action (2018 – 2027): Draft’ https://au.int/sites/default/files/newsevents/workingdocuments/32718-wd-english_revised_au_migration_policy_framework_for_africa.pdf  (accessed 5 October 2022).

[22] K Ighobor ‘Towards a safe and orderly migration’ (2019) African Renewal https://www.un.org/africarenewal/magazine/december-2018-march-2019/towards-safe-and-orderly-migration (accessed 5 October 2022).

[23] African Union Convention on the Protection and Assistance of Internally Displaced Persons (Kampala Convention) (2009) https://au.int/ar/treaties/african-union-convention-protection-and-assistance-internally-displaced-persons-africa (accessed 5 October 2022).

[24] Africa AU ‘List of countries which have signed, ratified/acceded to the Kampala Convention’ (2020) https://au.int/sites/default/files/treaties/36846-sl-AFRICAN%20UNION%20CONVENTION%20FOR%20THE%20PROTECTION%20AND%20ASSISTANCE%20OF%20INTERNALLY%20DISPLACED%20PERSONS%20IN%20AFRICA%20%28KAMPALA%20CONVENTION%29.pdf (accessed 5 October 2022).

[25] The Kampala Convention’s Article 1 defines IDPs as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border” (p. 7).

[26] Z Sarzin ‘The impact of forced migration on the labor market outcomes and welfare of host communities’ (July 20210 https://www.unhcr.org/people-forced-to-flee-book/wp-content/uploads/sites/137/2021/10/Zara-Sarzin_The-impact-of-forced-migration-on-the-labor-market-outcomes-and-welfare-of-host-communities.pdf (accessed 5 October 2022).

[27] WB Wood ‘Forced Migration: Local Conflicts and International Dilemmas’ ( December, 1994). https://www.jstor.org/stable/pdf/2564146.pdf?refreqid=excelsior%3Af40a78bc19f670cacf0e5c0b3ea4450e&ab_segments=&origin=&acceptTC=1 (accessed 5 October 2022).

[28] International Convention on the protection of the rights of all migrant workers and members of their families (1990).

[29] Recommendation on the 64th Session, UN Committee on the Elimination of Racial Discrimination (March 2004), UN Treaty body, CERD/C/64Misc.11/rev (2004) https://www.right-to-education.org/sites/right-to-education.org/files/resource-attachments/CERD_GC_30_2004_EN.pdf (accessed 5 October 2022).

[30] AU ‘Executive Summary: Migration Policy Framework for Africa and Plan of Acton. (2018 – 2030)  https://au.int/sites/default/files/documents/35956-doc-au-mpfa-executive-summary-eng.pdf (accessed 5 October 2-22).

[31] As above.

[32] UN ‘World Migration Report 2020’  International Migration Organisation https://publications.iom.int/system/files/pdf/wmr_2020.pdf (accessed 5 October 2022).

[33] Republic of South Africa ‘Green paper on the international migration’ 24 June 2016’ Department of Home Affairs http://www.dha.gov.za/files/GreenPaper_on_InternationalMigration-%2022062016.pdf (accessed 5 October 2022).

[34] Southern African Development Community (SADC) ‘SADC partnership with IOM poised to achieve progress on migration management) 14 November 2021) https://www.sadc.int/latest-news/sadc-partnership-iom-poised-achieve-progress-migration-management (accessed 7 November 2022) ; SADC ‘SADC promises continued commitment to the partnership with IOM’ 26 October 2022 https://www.sadc.int/latest-news/sadc-expresses-continued-commitment-partnership-iom (accessed 27 October 2022).

[35] African Charter on Democracy, Elections and Governance (ACDEG) (2007) https://au.int/sites/default/files/treaties/36384-treaty-african-charter-on-democracy-and-governance.pdf (accessed 5 November 2022).

[36] AU Convention on Cross-Border Cooperation (Niamey Convention) (2014) https://au.int/sites/default/files/treaties/36416-treaty-0044_-_niamey_convention_african_union_convention_on_cross-border_cooperation_e.pdf (accessed 5 November 2022).

[37] Protocol to the Constitutive Act of the African Union Relating to the Pan-African Parliament (2014) https://au.int/sites/default/files/treaties/7806-treaty-0047_-_protocol_to_the_constitutive_act_of_the_african_union_relating_to_the_pan-african_parliament_e.pdf (accessed 5 November 2022).

[38] South Africa Broadcasting Corporation (SABC News) ‘Pan-African Parliament chaotic scenes in Midrand, Johannesburg’ https://www.youtube.com/watch?v=fmfnESznb90 (accessed 5 November 2022).

[39] MW Afrika et al. ‘SA bankrolls Pan-African Parliament head’s fancy taste: Host South Africa says legislature is ‘dysfunctional’ 20 May 2018 Sunday Times https://www.timeslive.co.za/sunday-times/news/2018-05-19-sa-bankrolls-pan-african-parliament-heads-fancy-taste/ (accessed 5 November 2022).

About the Author:
Eva Abugabe is currently an MPhil candidate for Human Rights and Democracy in Africa at the Centre for Human Rights, University of Pretoria.

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Politics of witchcraft and mental illness in the black communities

Author: Konanani Happy Raligilia
Acting HoD, Department of Jurisprudence, University of South Africa

When asked by Judge Boshoff about his views on witchcraft, Steve Biko had this to say; “we do not reject it [witchcraft], we regard it as part of the mystery of our cultural heritage, [and] we feel for ourselves it has not been sufficiently looked into with available scientific approaches as of this moment.” Indeed, issues relating to witchcraft are public interest matters and that is so because ordinarily they highlight conflicting and contending views about spirituality. Arguably, the attributing factor to this contesting view is the fact that at the time of the enactment of Witchcraft Suppression Act in 1957, South Africa was still a Christian state as opposed to the current secular post-democratic one which embraces all religious denominations and cultural heritage. The Witchcraft Suppression Act of 1957 exposes a reality that this law failed to divide matters of spirituality and witchcraft, thereby creating a vacuum which often results in members of the communities resorting to judging those who are perceived as witches based on Christian standards of acceptability and norms. Regrettably, the Witchcraft Suppression Act does not provide a definitive answer of what constitutes witchcraft, yet its founding purpose is aimed at suppressing practices of witchcraft and similar practices. However, Reverend Riaan Swiegelaar and Dr Adri Norton announced the country’s first Satanic church in June 2020. It remains to be seen whether its practices would fall out of this witchcraft’s legislative framework and whether those potential witchcraft practitioners would then be prosecuted and punished.

The topic of witchcraft is very sensitive and the belief in or fear of it remains prevalent in society, more especially in the rural communities.  Accusations of witchcraft often results in the brutal assaults and killings of those who are suspected of practicing it, in most instances vulnerable women. This could be attributed to the fact that the Witchcraft Suppression Act negates, in context, dealing with issues of mental health and old age. Recently, the breakup of a love relationship between Amapiano musician Lady Du (Dudu Ngwenya) and her ex-boyfriend Andile Mxakaza (former Isibaya actor) exposed another angle of witchcraft accusation against women. In a widely circulated video, Andile Mxakaza could be heard uttering the words “women practice witchcraft and I know, I don’t want you guys calling me names…” Clearly, Andile Mxakaza’s statement is dangerous and has a potential of igniting further violence against women who are already accused of witchcraft in our society.

In April 2021, Ms Jostina Sangweni from Mapetla in Soweto was brutally assaulted and torched by a mob on suspicion of practicing witchcraft. Unfortunately, she died a few days later in a hospital. It later transpired that Ms Sangweni suffered from dementia. Two suspects were later arrested, and the matter is still pending. On 02 December 2021, it was reported that a third person was arrested for her murder. Evidently, the death of Ms Sangweni was because of ignorance on the part of some members of the communities who failed to appreciate and live with a reality that certain forms of mental illnesses generally, and dementia in particular, form an integral part of the society.

When older persons are found in public spaces and do not recognise how they arrived at a particular area, the community is quick to arbitrarily accuse them of witchcraft. In almost all instances, the community fails to interrogate critically who this person is, where they come from and whether the person who is accused of witchcraft has mental illness or dementia. Very often, members of the community jump into a preconceived idea or judgement that when these people are found in a particular space or area, their presence is virtually witchcraft related and as a result have evil intentions. Unlike with Ms Sangweni case, many cases of brutality and killings go unreported. Other victims live to tell the tale while others are not so lucky. In reality, few perpetrators are apprehended while others go scot-free with extreme impunity. In July 2022, The High Court in Mthatha found family members guilty of the murder of a 92-year-old relative Ms Nosayinethe Manundu (also known in the community as Mablangwe) they accused of witchcraft. When handing out a judgement, Judge Mbulelo Jolwana held that “I do not know if the men of Majuba, the elders hid their tails behind their legs when this gruesome crime was evolving in front of their eyes and allowed it to be completed. They, in the process, threw a vulnerable 92-year-old nonagenarian, to the wolves. They must do a serious introspection and ensure that unlawful criminal resolution is rescinded or cancelled. They must ensure that the death of Mablangwe does not become their legacy and it is never repeated on anyone else.”

To avoid similar violent incidents of that nature in our society, government and other stakeholders need to enhance public health consciousness drive. In other words, issues of aging, mental health and memory should be part of schooling curricula in the same way other major illnesses are taught in schools. In this way, it will create an environment which will allow people to practice their belief systems freely. After all, even with the enforcement of the Witchcraft Suppression Act, people continue to practice witchcraft in their private spaces and without the knowledge of others.

In the end, public awareness and education will provide society with tools on how to deal with people with mental illness and people who are perceived to be witches in the same way society has reconciled with the fact that sleepwalking does not constitute witchcraft.

About the Author:
Konanani Happy Raligilia is the Acting HoD in the Department of Jurisprudence and Project Leader of Medical Law and Biotechnology Flagship at the University of South Africa. He holds LLB (Univen), LLM Labour Law (University of Limpopo), and LLM International Law (University of Pretoria). His research interest covers employment law, human rights, and public international law.

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Ballot or bullet? Time for African youths to make a choice

Author: Murithi Antony
LL.B student, University of Embu

“I call heaven and earth as witnesses against you today, that I have set before you life and death, the blessing and curse; therefore, you shall choose life in order that you may live, you and your descendants…”

– The Holy Bible, Deuteronomy 30:19 (Amplified Version)

Introduction

The message in the Book of Deuteronomy generally is directed to the new generation that was born in the desert during the 40 years of wandering in which the generation of exodus passed away. The Book puts forward foundational truths, which if the young generation shall abide by, they will succeed. It states that there is life and death, and advises them to choose life, but leaves the option to their discretion. This can to a large extent be equated with the happenings of contemporary African societies whereby the current youth generation, which was born in the desert of problems, neo-colonialism, tribalism, corruption and violence have an opportunity to change the status quo through voting and advocating for peace. Similar to how the Israelites were given choices, the current generation also has a choice to either vote and take charge of their future; or abstain from voting, and choose political, social and economic death. I tell them: “Choose to vote, in order that you may take charge of your destiny, and your generation shall find a better place to live in.”

The benefits that youths get by participating in elections have been stated over and over again and are self-evident. I shall restate some of them, in a nutshell, for the purposes of this article. First, and most importantly, a vote is protection. As Lyndon B Johnson stated: “A man without a vote is a man without protection. It is equally important to state that a man with a vote and who decides to abstain from voting is no better than a man without a vote. By voting you seek social, economic, political and even psychological protection. This is because nearly everything we experience is touched by the government. The government that we choose through voting is the guardian of economic development, creator of jobs, as well as the protector of human rights. Good governance also ensures that citizens have access to basic needs such as food, shelter and good education, which cumulatively enhance physiological well-being of all persons.

Voting is an important right and responsibility of every citizen, the practice of which enables us to create and choose the future we want. Equally important, voting enables the youths as well as other citizens to be engaged with politics and current events. Lastly, in the words of Sharon Salzberg: “Voting is the expression of our commitment to ourselves, one another, this country, and this world.”

Peaceful elections: The power of youths in exorcising the ghouls of post-election violence

Electoral violence has been reported in many countries across the continent, usually with devastating consequences. For instance, the sad memories of Kenya’s 2007/08 post-elections violence cluelessly haunt the victims to date. Countless families were displaced from their motherland while thousands of innocent lives were taken away.

Similarly, in 2010-2011 Ivory Coast experienced a post-election conflict which left more than 3000 people dead. As if this was not enough, people were also killed during the 2020 presidential elections in the same country. Other countries that have experienced post-elections violence in Africa include Uganda, whereby massive violations of human rights were reported both in 2016 and 2021 elections. Any sober person who witnessed or even heard of the occurrences of what really transpired would never wish that it ever happened again even to their worst enemy.

Sadly, it was the youths who were largely used to do all these injustices. This means that the youths play a central role in determining whether there shall be violence or not. The youths have the power to refuse to be used as weapons and use their votes as bullets to root out bad leadership from offices. If the youths unite and stand for peace, there can be no election violence. However, and more amusingly, choosing peace is not a communal task! It starts with an individual person deciding that they shall vote and go home, and continue advocating for peace. If all youths do this at an individual level, then the whole of Africa shall have chosen peace.

Conclusion

It is apparent that youths make up the largest percentage of voters in Africa and consequently, have the ability to determine who wins elections. It is equally true that African youth have often been manipulated by unscrupulous politicians to engage in electoral violence to either entrench their rule or destabilise existing governments. It should be a no brainer for the African youth that political violence is by no means a solution to any of the challenges that they face as young people. On the other hand, they have the power through their numbers to vote into or out of power governments to consolidate democratic governance that caters for their interests. It is time for the African Youth to come out in large numbers and vote for their future and for the good of the next generation, peacefully. Indeed, as Abraham Lincoln, the former U.S President, aptly puts it: “A ballot is stronger than a bullet”.

About the Author:
Anthony Murithi is a Bachelor of Laws (LL.B) student at University of Embu. He can be contacted through amurithi326@gmail.com

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The High Court disbars a famous lawyer: Disbarment in South Africa

Sandile-NhlengetwaAuthor: Sandile Innocent Nhlengetwa
LLB candidate, University of the Western Cape

In an unreported judgement in South African Legal Practice Council v Teffo (10991/21) [2022] ZAGPPHC 666, Adv Malesela Teffo was removed as a legal practitioner. A total of 22 complaints from 2019 to 2022 were filed with the Legal Practice Council (LPC), a statutory body responsible for regulating the legal profession, against Adv Teffo. These include intimidation, assault, contemptuous behaviour, bringing disgrace upon the Court’s moral authority, violating the Legal Practice Act 28 of 2014 (the LPA) on numerous counts and misappropriating of clients’ funds. In this regard, the LPC filed a motion with the High Court to have him disbarred. In its notice of motion, the LPC outlined the basis upon which they seek an order to strike Advocate Teffo off from the roll of legal practitioners. Adv Teffo replied with a bare denial in essence pleading not guilty to all these complaints.

The Court was called upon to decide whether Adv Teffo was fit and proper to continue to practise and decide in the exercise of its discretion whether he was to be removed from the roll or merely suspended from practice.

Section 22(1)(d) of the now defunct Attorneys Act 53 of 1979 left the removal of attorneys from the roll to the discretion of the court to decide if the particular attorney is not a fit and proper person to continue to practise as an attorney. This had to be done on application by the society concerned to the court within the jurisdiction of which the attorney practises. The LPA does not contain a provision similar to section 22(1)(d) of the Attorneys Act. However, section 44(1) of the LPA provides that the LPA does not derogate in any way from the inherent disciplinary powers of the High Court in respect of the conduct of its officers. The courts had these disciplinary powers even before the enactment of the Attorneys, Notaries and Conveyancers Admission Act 23 of 1934 and the subsequent insertion of section 28 in 1964. The principle underlying section 22(1) of the Attorneys Act that a person may be struck from the roll if they no longer fit & proper, remains equally applicable under the LPA. The application of section 22(1)(d) involves a threefold enquiry as enunciated by Scott JA in Jasat v Natal Law Society. In essence, the three-legged enquiry calls upon this Court to first decide as a matter of fact whether the alleged offending conduct by the legal practitioner has been established and if the Court is satisfied that the offending conduct has been established, a value judgment is required to decide whether the person concerned is not a fit and proper person to practise as a legal practitioner. In the second leg, it must decide in the exercise of its discretion whether in all the circumstances of the case the legal practitioner in question is to be removed from the roll or merely suspended from practice. Thus, this is ultimately a question of degree. In the last leg, the Court must exercise its discretion based upon the facts before it and the facts in question must be proven on a balance of probabilities. The facts upon which the Court’s discretion is based should be considered in their totality. The Court must not consider each issue in isolation.

Adv-Malesela-Teffo

The Court began by finding Adv Teffo guilty of contravening paragraph 27.4 of the LPC’s code of conduct in that he accepted payments directly from clients without receipt of a brief from an attorney. The Court was also satisfied that he consulted with clients without acceptance of a brief from an attorney, instead, he accepted a brief directly from clients, thus contravening section 34(2)(a)(i) and paragraph 27.2 of the LPC’s code of conduct. The misappropriation of the client’s funds constitutes theft, and this portrayed dishonesty and a lack of integrity on his part, the Court held. The Court was convinced that the LPC had laid sufficient grounds for the advocate to be struck off. This brought the Court to the second leg. The Court found that no exceptional circumstances exist for the imposition of the penalty of suspension. Adv Teffo’s acts of misconduct were serious and dishonest in the Court’s opinion, but the determining factor is the protection of the public. Adv Teffo manipulated and forced the clients to pay money into his account or accounts of other people to the extent of threatening them. Additionally, his conduct was repetitive and he failed to provide satisfactory explanations. The Court found that his conduct warrants a finding that he be struck off from the roll. The Court, in the third leg, found that it was limited to deciding the case on information and facts before it as Adv Teffo failed to provide plausible explanations of the serious accusations that were levelled against him.

This is obviously a welcome ruling. Despite the serious and overwhelming number of complaints that were revealed before this Honourable Court which themselves give rise to a distinct impression that he is indeed ill-suited to be a lawyer as he lacks the moral character and fitness required of a person of his position, his conduct during the famous Senzo Meyiwa trial has caused the jurist profession great embarrassment. It has also brought the good name of the legal profession into disrepute. His derogatory behaviour and the disregard for the authority of the Court and the presiding judge, His Honour Judge Maumela, even going as far as accusing him without basis of bewitching him amounted to scandalising the Court. In the face of his conduct, it is quite surprising that he was never convicted or even indicted for the crime of scandalising the Court.

Perhaps deserving of note is the fact that motion proceedings are not appropriate for cases such as these. I am of the view that action proceedings can further the administration of justice as the removal of practitioners from the roll is an extreme measure and has far-reaching consequences. An application proceeding denies one the opportunity to rebut the allegations levelled against them by the calling of witnesses including character witnesses and lead other relevant documentary evidence. This can present an opportunity for an embattled practitioner to subpoena relevant witnesses and even attempt to reach a settlement agreement with the LPC before the judgement is given and possibly remain on the roll of legal practitioners on the condition that they correct their wrongdoings.

Furthermore, the requirement by courts of absolute honesty and integrity is undesirable as it has the potential to penalise practitioners even in the slightest of mishaps even more so for experienced lawyers who are held to even a higher standard as proven by case law over the years. In this regard, courts must take care to consider the gravity and nature of the misdeed, remorse or the absence thereof and personal circumstances such as the ability to earn money and support their families as an important component of their right to human dignity in exercising its discretion and avoid giving excessive weight to the protection of the public as the nature of the conduct might sometimes be of such a nature that striking off is not the appropriate sanction. To this end, lawyers must be struck off the roll for repetitive and serious misdeeds otherwise a suspension, admonishment or censure are appropriate punishments in all other instances.

 

About the Author:

Sandile Nhlengetwa is a final year Legum Baccalaureus (LLB) candidate at the University of the Western Cape. He has been honoured three times for the three academic years he completed thus far by the Golden Key International Honour Society for achieving high marks. He has also been awarded the Dean’s Merit Award twice. He currently serves as a member of the Moot Court Society.

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What is next after the graduation of the necessary unified forces?

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

Summary

The article attempts to answer the question of what is next after the parties have finally graduated the long-awaited necessary unified forces in accordance with the Revitalised Agreement on the Resolution of Conflicts in South Sudan (RACRSS). It identifies four key issues and their respective security implications at the center of the transitional security arrangements. The author concludes that the graduation of the necessary unified forces is not the surest guarantee of a stabilised security situation although it is a show of political will that has been lacking since the coming to effect of the RARCSS in 2018. Addressing the identified key dilemmas will in turn address their respective security implications thus tranquilise the problematic security situation across the country.

The author ends by giving three pertinent recommendations for policy action if the transitional security arrangements were to set a stage for a democratic South Sudan by the end of the 24-month extended period.

Background

On 12 September 2018, the parties to the conflict signed a power-sharing Agreement-the Revitalised Agreement on the Resolution of Conflict in South Sudan (RARCSS) to end the deadliest civil war in the new republic. Chapter II on the Agreement on Permanent Ceasefire and Transitional Security Arrangements forms the backbone of the fledgling agreement. The Agreement to transition the country to democracy was to end in 44 months split into 2 phases. The first phase also called the Pre-transitional Period deals with the unification of the forces and other matters and was to last for 8 months whereas the second phase or the Transitional Period focuses on security sector reform and was to last for 36 months. Besides, the first and second extensions were 6 and 3 months respectively. This is antecedent to the proposed extension of 24 months captured in the 2 August 2022 Agreement. By the end of the new extension aforementioned above, the transition under the RARCSS shall have lasted 77 months. This begs a question as to what would be different under the RARCSS to justify optimism with the finalisation of the Transitional Security Arrangement (TSA)?

Due to a lack of political will to implement the agreement coupled with resource challenges in addition to complex geopolitics, the Agreement was extended twice, first for 6 months and then 3 months in an attempt to accomplish the unification of the forces and have a national army from the former ethnically polarised armed groups. This is critical for the stability of security, a necessary condition for ending the series of transitional periods in the would-be first democratic elections in the Republic of South Sudan.

In a show of seriousness, the parties for the first time voluntarily and unanimously decided to extend the Agreement and the life of the Revitalised Transitional Government of Unity (RTGoNU) for the third time for 24 months from 23 February 2023. Although it was expected, the initiative was not well received by a number of stakeholders who genuinely argue that it was the extension of the suffering and the death of the people of South Sudan. But then, they fell short of providing the optimal and feasible options.

unified-forces

 The Roadmap provides a timeline for unaccomplished activities to be completed within the agreed times and for the first time the parties met the deadline of 30 August 2022 for the unification of forces and graduated 22,000 personnel in the Equatoria region. The graduated forces are part of the total 53, 000 of the first batch of necessary unified forces comprising South Sudan People’s Defence Forces (SSPDF), National Security, Prison, South Sudan National Police, the Wildlife Services, and Civil Defence.

So, the graduation of the NUF is indeed a commendable show of the political will from the parties to the RARCSS but, it is not sufficient enough to stabilise the security environment to permit the actuation of the remaining requisite benchmarks of the successful completion of the transitional period. Although graduation is the right step to the right path, there remains a lot to be concerned with in the TSA before it could be deemed to tranquillise the security predicaments that stunted security sector reform. Thus, the dilemmas with the graduation of the first batch of the NUF and security implications are imbued.

The dilemmas in the onus of the TSA and security implications: do we have the unified national army and other security organs formed now?

According to the RARCSS, the Necessary Unified Forces were to have been selected, trained and deployed within the pre-transitional period to protect the key government installations, institutions and very important persons (VIPs). The remaining lot of forces were to be trained to constitute the national army which was to be deployed across the country as planned by Strategic Defense and Security Reviewed Board-SDSRB (RARCSS, Art.2.3.5).

The question as to whether South Sudan has its unified national army and other security organs formed upon the graduation of the NUF is dilemmatic or rather problematic. It is so because according to the RARCSS, the heads of the Opposition Armed Groups remain the commanders-in-Chief of their respective forces until the end of the unification process (RARCSS, Art, 2.4.1). This could be interpreted to mean that there still exist commanders-in-chief of the other armed forces that have not yet gone through training and unification and so, they remain under the command of their respective commanders-in-chief. This is refuted and dilemmatic especially when the President declared to the graduands that he is the commander-in-chief and that other commanders-in-chief ceased to be. 

The forces in their respective cantonment sites and barracks remain largely within the remit of their respective group commands. On the other hand, the formation of the national army started with the bit having graduated. The NUF will constitute the nucleus of the national army when it is finally formed. In a nutshell, although the process has started the whole TSA under the RARCSS is still faced with enormous but surmountable challenges if there is a political drive from the parties to finalise it. The parties earlier on formed the army and organised forces first echelon leadership command before the NUF. The second and the third echelons at the level of sectors and divisions to the tactical level are yet to be agreed on and formed by the parties.

Another dilemma is to whose command will a dozen divisions of the SSPDF be if the unification of the necessary forces does not in essence dissolve the former non-state army groups like the SPLA-IO and the South Sudan Opposition Alliance armed forces among others? These divisions according to the RARCSS will have to be trained and unified to form the national army. Resource challenge to the training of thousands of SSPDF and national security divisions currently at deployment across the country is another major impediment before the RTGoNU.

Another argument is though, going by the same, there cease to be various opposition armed groups but the national army in waiting and their respective commanders-in-chief ceased to be because the process of the unification has in principle been effected. But then another question this invokes is to whom would the forces of the supposedly defunct commanders-in-chief be under since the president who doubles as the commander-in-chief of the South Sudan People’s Defence Forces and the Chief of the Defence Forces do not have the remit of those in the cantonment sites? The RARCSS is silent on this and that presents a dilemma of interpretation which could be amenable to subjective interpretation. This position presents a security limbo if it is pursued.

Security implications

Whilst it is important to acknowledge that with the necessary unified forces redeployed in the towns, there will be an improved security situation in the areas of their deployment, the spike in insecurity in the rural and sub-national will continue. The reason being that 53,000 of the NUF constitute what would be the National Army, National Security, National Police Service, Civil Defence, Wildlife, and Prison Services. The graduated NUF numbers are not proportional to the armed civil population in violence-infested communities. They can never stabilise rampant insecurity across the country. The effect of the UN-imposed arms embargo is another factor that may debilitate the effective delivery of security services.

 The rampant insecurity though has no sign of waning soon despite the prospective redeployment of the NUF, as the nuances of the security sector unfold at a limited pace. The self-militarised communities across the country will continue to derange themselves in cattle rustling, revenge attacks and counter-attacks while the insurgency against the state endures so long the St. Egidio’s led peace talks between the RTGoNU and hold-out groups make no tangible headways and the permanent ceasefire is not respected. So, in essence, the security dilemmas especially at the sub-national level will continue to present themselves insofar as the national army remains unformed and unification is not completed.

Screening, training, disarmament, demobilisation and reintegration.

Another dilemma that comes with the graduation of the Necessary Unified Forces is the fate of the forces in the cantonment sites awaiting screening and training which should have begun by 30 August 2022. The long-delayed graduation of the first batch of the NUF led to delays in the screening of the second batch and subsequent training making some of the forces to desert cantonment sites and therefore, losing touch with their respective forces and commands. The presence of these deserters in the communities enhances the fragile security situation and hardens the chances of returning to the regular security sector under the RARCSS.

Another aspect of the security sector reform in the grand project of the formation of the national Army is the disarmament, demobilisation and reintegration (DDR) which should have gone concurrently with the screening of the candidates for NUF training by the Joint Transitional Security Committee (JTSC) from the onset. Although the DDR Commission is reconstituted as per the RARCSS, the Commission could do little toward its mandate due to resource limitations.

The effectiveness and efficiency of the security forces first lie in the physical ability of the individual forces. The screening is meant to demobilise individuals who are physically unable to endure the strenuous involvement of military exercises as well as rightsising. Because of the impending challenges facing the RTGoNU in the effort of the SSR, the DDR takes backstage as insecurity continues to characterise everyday life in the communities. Secondly, the individual soldiers cannot be disarmed, demobilised, and reintegrated into the militarised communities with no meaningful dividends and expect secure and peaceful coexistence.

So, the dilemma of sacrificing DDR for the training, and formation of NUF and the national army is a self-defeating initiative that needs rethinking. It is not a quick bullet to tranquillise the rampant insecurity although a critical aspect to reckon with. The RTGONU could have chosen to carry on with the screening, training and DDR simultaneously but the resource limitation and a glaring lack of will to expedite the TSA confounded by invisible hands in the implementation of the TSA undercut and remain major setbacks. For instance, the DDR Commission although it has identified candidates to be demobilised during pre-training of the first batch of the NUF, these candidates remain unintegrated owing to the resource limitations.

Other impending milestones with TSA.

The RARCSS demands assorted military activities be carried out during pre-transitional and transitional periods. However, these critical activities remain outstanding. The Agreement on the Roadmap to a Peaceful and Democratic end of the Transitional Period of the Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) signed by the parties on 2 August 2022 gives renewed timelines for the collection of long-range and medium-range heavy weapons and redeployment after graduation. It also provides an opportunity for the implementation of Phase-2, on the cantonment, screening, training, re-organisation, unification, graduation and redeployment of the forces.

The accomplishment of these activities within the extended period puts the TSA in an optimum position to proceed with other democratic processes that end the transitional period to its logical conclusion. The success of the RARCSS, therefore, is dependent on the genuine implementation of the TSA wholesomely. In lieu of this, it is not yet secure for any prospective democratic transition to happen.

Conclusion

The graduation of the NUF is not the surest guarantee of a stabilised security situation but a show of political will that the parties have finally broken the tip of an iceberg of the transitional security arrangement that remains largely unimplemented for the last 4 years since the signing of the RARCSS. The event opens ways for a series of security activities to stabilise the security predicament bewildering the country. The dilemmas in the onus of the TSA are the disillusionment with the graduation of the first batch of NUF that it is not implicit of the national army. This is far from the end although they constitute a portion of what will become the national army.

Finally, the implementation of the other outstanding milestones of the TSA that would finalise the TSA and usher in the conduct of democratic elections would expedite the security sector transformation.

Recommendations

  • The RTGoNU should mobilise necessary resources to expedite the training of the second batch of the NUF and fast-track the unification of the forces to complete the formation of the South Sudan national army.
  • On the same, the grand programme of the SSR should be completed alongside the unification of the forces and formation of the national army. The army then conduct blanket disarmament of the armed civil population and reintegrate the disarmed and demobilised ex-combatants through the DDR Commission
  • The parties to the agreement dissolve their respective armed wings, delegate the leadership of the forces in the cantonment sites and barracks to the Joint Defence Board since the high command leadership of the army and other organised forces is already formed under one commander-in-chief of the armed forces. This follows in the event that the unification cannot be completed within the 24 months extension period.

 

About the Author:

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

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The Jagersfontein tragedy of 11 September 2022: Who must be held accountable for mine tailings dump management failure – the DMRE or De Beer or Superkolong?

Gaopalelwe-MathibaAuthor: Gaopalelwe Mathiba
Senior Lecturer, Department of Private Law, UCT

Introduction

In the early hours of Sunday 11 September 2022, the Jagersfontein diamond mine tailings dump in the Free State failed by bursting as a result of a sudden collapse of the dump embankment walls. The cause for this collapse remains unknown at this point. The spill of the tailings greyish mud is reported to have stretched widely covering a considerable portion of land surface area of the Jagersfontein farm community. At the time of writing this piece, evacuations were still ongoing in the area and the concrete impact and damage report of the incident was not yet ripe. However, the little that could be ascertained from the Department of Mineral Resources and Energy (DMRE) Minister, Gwede Mantashe’s press briefing, where he presented a preliminary incident report, is that at least 28 people suffered minor injuries; while over 40 people were critically injured and hospitalised, with over 5 confirmed fatalities as of that fateful Sunday. In terms of infrastructural damage, the Minister reported that over 9 houses were completely swept away by the spill while around 20 houses were severely damaged. As it should be, this major crisis gives rise to critical questions of accountability, as to who must be held accountable for it and how exactly that accountable person or entity must respond. But not only that, more action is yet to be witnessed on the side of the DMRE in ensuring that this incident is not left unaccounted for and that similar incidents do not recur in the future. This might not be an easy task for the DMRE given the wrestling history it has with De Beers over the Jagersfontein dump, as will be briefly discussed below. What the DMRE actions and the content informing them would entail this time around is yet another fascinating point to observe as the case develops. The aim of this piece is to share some insights into these important issues.

What do we know already about the Jagersfontein tailings dump?

We certainly know that the Jagersfontein tailings dump is not entirely new in the limelight. In 2007, the Free State High Court sitting in Bloemfontein was called upon to determine several issues in relation to this dump:[1] who is the rightful owner of the dump? Considering that the dump’s construction and existence dates way back beyond 2002, thus falling under the old order mining regulation, is the dump regulated by the current framework legislation i.e., Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA)? Is the MPRDA, in its transitional provisions, clear and unambiguous on whether the mine tailings dumps are to be regulated in terms of its provisions or not. Flowing from the latter, whether the applicant was supposed to apply for the conversion of its old order prospecting right to a new prospecting right regarding the dump?

This court application was brought by De Beers (the applicant). The applicant’s contention was essentially that it was the owner of the dumps having acquired them in 1940 in terms of the Minerals Act of 1991 and Precious Stones Act of 1964. The applicant contended further that the mine dumps on the land were movables in that they were man-made and not naturally inseparable from the land, hence the DMRE could not grant a mining right to any third party in terms of the MPRDA to prospect or mine them. The applicant went on with its argument that the dumps were therefore not subject to the provisions of the MPRDA and the DMRE has no jurisdiction over them. It has to be for this reason that the applicant declined an invitation from the DMRE to apply for the conversion of the rights in respect of the dump. In coming to its decision, the High Court ruled overwhelmingly in favour of the applicant. It declared and affirmed De Beers as the rightful owner of the dumps. The court further ruled that the dumps are indeed movable property of De Beers, for there was no intention whatsoever by the applicant to permanently affix them to the land and they could be removed without causing any collateral damage to the land. In reasoning this further, the court also found that the tailings were not discarded to accede to the land but that they were kept in abeyance for retreatment at a later stage when such endeavour is economically viable.

jagersfontein-dam

In his press briefing in response to the burst crisis, the DMRE Minister emphasised his long-held criticism against this judgment and indicated that there is a critical need for it to be reviewed and set aside and that this is something the DMRE consider pursuing. Although I do not know his reasons, the Minister’s criticism would prove correct. For me, the reasons why this critique may hold is that this judgment completely ignored the critical debates around the credence accorded the subjective intention when determining whether accession occurred or not. This was a missed opportunity for the court to clarify the subjective intention and its weight in the context of accession from a more authoritative point of view. It is also not quite convincing if the court correctly applied the factors for determining accession generally and in the context of mine dumps, which remains a highly contested topic.

Now we know, from this judgment, that the dumps belong to De Beers. We also know that the DMRE, as the state regulating authority, has no say or jurisdiction whatsoever over the dumps for they constitute a movable property privately owned by De Beers. This is the position we must fathom out and bear with, no matter how legally untenable and wrong it may be, until such time that this judgment is successfully reviewed and set aside. But not only that, we also know that De Beers, being declared owner by the court, decided to sell the dumps 3 years later after this judgment to a company registered as Superkolong Consortium in 2010, which is now the current owner of the dumps.

It is equally important to reflect on the unknowns at this point. Assumption is that the dumps must have been insured by the owner – Superkolong. We do not know whether this is the case. We also do not know the hazard categorisation of the dumps based on consequence of failure and, if there is such categorisation, the guidelines that were followed. Considering that the dumps are quite oldy, we are yet to also know whether they at any point in their history failed to be confirmed as stable or experienced serious stability concerns as assessed by independent engineers and, if yes, what measures or steps were taken to address that threatening instability. We also do not know whether a formal analysis of the downstream impact on communities, surrounding ecosystem, environment and infrastructure in the event of a catastrophic failure (which has now occurred) has been undertaken on these dumps and when did this analysis take place if at all. We also do not know if a closure plan is in place for these dumps and, if it is, whether it includes long-term monitoring and maintenance of the dumps and whether such monitoring and maintenance actually happened. So, it would appear, there are a host of issues we do not know about and this means more accounting for the owner of the dumps.

Now we know about Jagersfontein and its recent tragedy, then what?

Once everything is said and done, someone must account for the Jagersfontein tragedy. It is pretty straightforward that it does not need further discussion that the owner of the dumps must be held accountable and take full responsibility for the mess. It is already indicated that the assumption is that the dumps must have been insured, as the Minister observed quite correctly. In this way, then, it will be simple for the affected community, households and individuals for they are now assured of their compensation packages to restore their livelihoods beyond the tragedy. De Beers might be spared. As for the DMRE, it is hard if not impossible to engage in a conversation about holding mining companies accountable without making reference to its role in that regard.

[1] De Beers Consolidated Mines Ltd v Ataqua Mining (Pty) Ltd and Others (3215/06) [2007] ZAFSHC 74.

About the Author:

Gaopalelwe Mathiba is a Senior Lecturer in the Department of Private Law at the University of Cape Town (UCT), South Africa. He is completing his PhD at UCT under the DST/NRF Research Chair: Mineral Law in Africa. He holds an LLB from the North-West University, an LLM cum laude from the University of the Western Cape. His research interests include constitutional aspects of property law, mining law, evictions and displacements law, human rights, democracy and governance.

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Does the New Media Law of Ethiopia condone keeping accused journalists behind bars for the duration of a trial? A reflection on the recent ruling of the Federal Supreme Court

Zelalem-Shiferaw-WoldemichaelAuthor: Zelalem Shiferaw Woldemichael
PhD candidate, Melbourne Law School

The decision of the Federal Supreme Court of Ethiopia, rendered on July 28, 2022, to deny bail to Temesgen Desalegn, an editor of Feteh, a privately owned magazine, has put the potential of the New Media Law to end the repressive environment of the prior regime of the Ethiopian People’s Revolutionary Democratic Front, which subjected journalists and media personnel to multiple forms of human rights violations, including torture, arrest, and detention, into question. Perhaps, the case does not represent the only instance of the upholding of the continued detention of journalists by the judiciary after the expulsion of the previous regime and the coming into force of the New Media Law. On several occasions, courts have considered issues of bail of journalists and ordered the continuation of pre-trial detention. Apparently, the present case attracted huge public concern as the journalist was made to remain in custody by the decision of a judicial organ placed at the apex of the federal judicial structure, which renders final decisions on federal matters. The Supreme Court denied bail, accepting the objection of the public prosecutor, who argued that “keeping the accused behind bars was necessary so he could not continue spreading false rumours and leaking secrets through his writing.”

The issue that I will attempt to grapple with here is: Does the New Media Law require accused journalists to remain behind bars while the trial is in progress? The Ethiopian Human Rights Commission, in its recent statement on the arrest and detention of journalists, has stressed that arrested journalists should be released as the New Media Law prohibits pre-trial detention.

Analysis

The New Media Law has set restrictions on the law enforcement’s power to arrest and detain journalists suspected of committing criminal offences. Article 86(1) reads: “Any person charged with committing an offence through the media by the public prosecutor shall be brought promptly before a Court, without being remanded for further investigation pursuant to the Provisions of Criminal Procedure Code”. The attendance of the accused person before a court, within the meaning of the above provision, is required only after the charge is filed against them. The Amharic version of the law, which supersedes the English version in cases when the two versions contradict, is straightforward in enjoining the public prosecutor to file the charge directly to the court without keeping the suspected journalist in detention for the purpose of carrying out further investigation. The provision does not also mention that a bail bond should be used to ensure the attendance of the accused person on the date of trial. What needs further inquiry is whether the accused, as the supreme Court in the above case ordered, must remain in custody during the trial process after the charge is filed.

New-Media-Law-Ethiopia

As the subsequent provisions of the New Media Law make it clear, detaining accused journalists is prohibited during the entire trial process. This is impliedly referred in the provision that explains the steps to be taken when it becomes impossible to deliver a summons to the accused requiring him/her to appear on the date of trial. Article 86(3) reads: “Where it has not been possible to deliver a summons personally to the accused person because he was not found at his address, the court shall require a notice to be posted announcing the summons and notifying the accused that the hearing shall proceed in his absence should he fail to appear within 7 days”. With no doubt, the impossibility of finding the accused’s address arises when the accused is not under custody. Thus, implicit in the provision is that the accused must appear in court only on the date of hearing. The bottom line, hence, is that the deprivation of liberty of accused journalists can occur only when the trial court finds them guilty of the offence that they are charged with. In view of this, the Supreme Court should not have considered the issue of bail in the above case. It should have automatically ordered the accused’s release as detaining him before the final decision is unlawful.

Besides, it is worthwhile to be mindful of the fact that the New Media Law has provisions that help to proactively deal with the potential risks that the public prosecutor raised. Article 85(1) authorises the public prosecutor to apply to a court to get a grant of an injunction order if the broadcasting service which is about to be disseminated contains illegal matter which would, if disseminated, lead to a clear and imminent grave danger to national security which could not otherwise be averted through the subsequent imposition of sanctions. It can be noted, therefore, that the law has totally avoided the possibility of detaining the accused journalists even though the information about to be disseminated by them would entail grave consequences for the nation.

The ruling of the court also runs counter to the right to liberty of individuals guaranteed under the federal constitution—the supreme law of the country, and the international human rights treaties Ethiopia ratified. The constitution (Article 17), using the language anchored by the ICCPR (Article 9), permits the restriction of liberty only in exceptional cases provided by law. The New Media Law has provided exceptional cases in which the right to liberty may be restricted. This is the case when the accused journalist is found guilty of committing the offence. Detaining the accused journalists before such time would be unconstitutional. And courts have the constitutional responsibility to order the release of journalists arrested and detained without the explicit authorisation of the law.

To conclude, the safeguard the New Media Law established for the protection of the right to liberty of journalists is of vital importance as most human rights violations occur when accused persons remain in the hands of the law enforcement organs. However, the unlawful deprivation of liberty of journalists may remain a problem unless the judiciary demonstrates a commitment to enforce the law.

About the Author:

Zelalem Shiferaw Woldemichael is a PhD candidate at the Melbourne Law School. He was previously an Assistant Professor of Law at Jimma University, where he taught criminal procedure law and Ethiopian human rights systems. He holds LL. B from Jimma University, LL.M in Human Rights Law from Addis Ababa University, and LL.M in Rule of Law for Development from Loyola University of Chicago. His research interests cover constitutional protection of human rights, human trafficking, and the rights of women and children.

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The Shell seismic survey judgment: A further endorsement of meaningful consultation

Gaopalelwe-MathibaAuthor: Gaopalelwe Mathiba
Senior Lecturer, Department of Private Law, UCT

On 1 September 2022, a full bench of the Division of the High Court, sitting in Makhanda and presided over by Mbenenge JP, handed down a significant judgment in respect of a review petition that sought to challenge the lawfulness of the granting of an exploration right for the exploration of oil and gas in the Southeast Coast by the DMRE to the multinational petroleum company – Shell South Africa (Sustaining the Wild Coast NPC & Others v Minister of Mineral Resources and Energy & Others Case No.: 3491/2021). The relevant facts of the case can be summarised as follows: The petroleum company was awarded an exploration right on April 2014. The right was renewed two times, in December 2017 and again in July 2021. Further, the right was supposedly awarded in terms of the applicable laws i.e. the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) which requires, inter alia, environmental impact assessment and authorisation. It would appear that the only way Shell could exercise its exploration right was by conducting a seismic survey off the Southeast coast that was planned to commence in December 2021. Loosely described, the offshore seismic survey mechanism involve using explosive sound-waves using air-guns directed downwards as part of a mapping technique to determine whether oil or gas deposits may be present deep below the seabed of a surveyed area. It is exactly at this point where the contention arose between, on the one hand, the local customary communities and public interest entities and, on the other, the DMRE and petroleum companies.

The seismic survey process did not find favour from the local communities living along the targeted coast and the public interest entities that advocate for nature conservation and protection of the coastal environment. In the main, the applicants (local communities and public interest entities) contended that the survey, if left unchallenged, would have negative impact on the marine life and biodiversity; the local communities’ livelihoods and their constitutionally and customarily held rights on the sea, such as of customary fishing, cultural and religious practices. The applicants contended further that the survey had the potential to cause sea pollution, climate change, and negatively impact on national energy policy and the future development of the region should significant quantities of oil and gas be discovered by Shell. Fast forward, the applicants then launched urgent proceedings with the High Court seeking an order in respect of two issues: First, interdicting the respondents from undertaking the survey on the basis of its harmful effect on the marine life, environment and communities’ livelihoods, culture and heritage. Secondly, for the awarding of an exploration right by the DMRE to be declared unlawful on the basis that Shell did not have environmental authorisation in terms of National Environmental Management Act 107 of 1998 (NEMA). Not only that, but that Shell had also failed to consult with the local customary communities prior to the decision granting the exploration right being taken and that the survey.

Shell-seismic-survey

In its attempt to defend the exploration right, Shell contented that it was fully compliant with the relevant legislative framework. It argued that it was under no obligation to obtain the environmental authorisation in terms of NEMA in addition to the environmental management program in terms of the MPRDA. Shell argued further that it had made available the latter program to the interested and affected parties and invited their comments about the project. In coming to its decision, the High Court ruled in favour of the local communities living in the coastline. It found that Shell had indeed failed to ensure meaningful consultation with them. As a result, the DMRE’s decision to have granted an exploration right was declared unlawful and set aside on the basis that the right was awarded through a consultation process that was “inadequate and substantially flawed.” Essentially, this implied that Shell is interdicted from continuing a seismic survey in the Southeast coast. As per the words of Mbenenge JP, the “meaningful consultations consist not in the mere ticking of a checklist, but in engaging in a genuine, bona fide substantive two-way process aimed at achieving, as far as possible, consensus, especially in relation to what the process entails and the import thereof.”

This proposition constitute a further endorsement of the emerging jurisprudence on meaningful engagement from earlier cases such as Bengwenyama Minerals & Others v Genorah Resources & Others 2011 (3) BCLR 229 (CC); Maledu & Others v Itereleng Bakgatla Mineral Resources & Another 2019 (1) BCLR 53 (CC) and Baleni & Others v Minister of Mineral Resources & Others 2019 (2) SA 453 (GP). Seeing the South African courts developing a consistent approach to meaningful consultation is a great observation for one to make. It sends a strong message of deterrence to the mining and extractive companies to consider the rights of local communities from a serious note, lest they suffer great financial loss emanating from halted operations as a result of injunctions. The other take-away from this judgment is that the loss suffered by extractive company cannot justify the infringement of constitutional rights of the affected communities. The court was of the view that “where constitutional rights are in issue, the balance of convenience favours the protection of those rights.”

In conclusion, the Shell judgment is an important decision that should not be seen as an impediment to exploring the offshore energy deposits. If anything, it should be seen as the necessary guidance on the approach that oil and gas extractive companies ought to follow in their quest to secure exploration permits of oil and gas in a lawful manner. The judgment is yet another significant reminder that the voice of local communities and meaningful consultation with the relevant stakeholders is critical in the process leading to the granting and eventual exercise of any mineral right, including the exploration right. The judgment also quiet fervently reflects on the critical need for the extractive companies to be alive to and aware of the nature and structure of the affected communities and to be sure to know the manner in which decisions are taken in a community (i.e. customary community decision-making process). This can vary widely from one community to the other. In this way, the company would know when the consultation process is adequate, fair and transparent; whether the persons consulted are rightful and have been properly constituted; whether consent has been given by the relevant representatives authorised to do so. Gone are the days where traditional leaders would willy-nilly make decisions about the communities without first having consulted and engaged with them.

About the Author:

Gaopalelwe Mathiba is a Senior Lecturer in the Department of Private Law at the University of Cape Town (UCT), South Africa. He is completing his PhD at UCT under the DST/NRF Research Chair: Mineral Law in Africa. He holds an LLB from the North-West University, an LLM cum laude from the University of the Western Cape. His research interests include constitutional aspects of property law, mining law, evictions and displacements law, human rights, democracy and governance.

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Right to housing as an aspect of the demand for social justice*

Bahar-BayhanAuthor: Bahar Bayhan
Urban Policies Programme Coordinator

*This article was originally published in Turkish on IHO Blog. Translated by Virtus Çeviri

The right to housing is a fundamental human right emphasised in both the Constitution of the Republic of Turkey and the Universal Declaration of Human Rights.[1] Although it does not include details on how this right will be exercised, how fair access to it will be ensured and how it will be secured, Article 57 of the Turkish Constitution reads: “The State shall take measures to meet the need for housing within the framework of a plan that takes into account the characteristics of cities and environmental conditions, and also support community housing projects.” The United Nations Special Rapporteur on the Right to Adequate Housing expands the definition of the right to housing as “the right to housing adequate for habitation” and defines the necessary conditions of housing for a sustainable and dignified life. Before discussing the above-mentioned conditions and how they relate to social justice, it is worth tackling the meaning the word “housing” assumes today.

Defining the Problem of Housing

Access to housing has become a global issue, especially after the COVID-19 pandemic. The experience of widespread and deepening housing problem has led to the identification of this problem as a housing crisis. In their seminal work In Defense of Housing, David Madden and Peter Marcuse elaborate on the word “crisis” and analyse why the definition of housing crisis should be used with caution.[2] They argue that the word “crisis” describes an extraordinary situation and that in fact the “oppressed” have always experienced this crisis. In other words, housing has always been an aspect of injustice for disadvantaged groups in society. On the other hand, the authors state that the term “crisis” creates the perception of an isolated malfunction in an already well-functioning system. Housing has never been presented in a way that prioritises social justice anyway, and has virtually served as a useful apparatus of capitalist spatial development for states. Therefore, even though housing is defined as a right, it has steered away from the focus on basic needs and use value and has become a commodity where exchange value is prominent, financialised, and a kind of privilege.

Sulukule

Madden and Marcuse argue that there is no direct correlation between states recognising the right to housing and actually providing access to housing for all.[3] Moreover, they emphasise that the right to housing is used to ensure and legitimise the functioning of the system. This is apparent in the functioning of housing projects in Turkey. For example, the Sulukule Urban Renewal Project was proposed on the grounds that it would make the neighborhood more livable. The project’s promise of “hygiene” was of course not limited to the demolition of old buildings and the construction of new ones. The people of Sulukule were forcibly evicted and given the “chance” to own a house in the TOKİ (Housing Development Administration) houses built in Kayabaşı, on the periphery of İstanbul. The neighborhood residents, who were given housing through lot draws organised to resemble festivals, now had “sterile” houses, but had lost the solidarity relations and livelihoods woven within the space itself in Sulukule. And they went into debt because of housing expenses. In other words, as a result of the state’s move to provide housing, the people of Sulukule were left with the psychological and financial burdens created by the housing problem. Sulukule is certainly not an exception in the practice of housing production in Turkey. We know that the wave of urban transformation that rose in the 2000s violated the right to housing, especially in poor neighborhoods, dragged people into a desperate spiral of poverty, and had striking social and psychological effects. It is important to analyse all these practices, to establish the relationship of housing – which is more than just a roof over our heads – with other social rights, and to comprehend the injustice caused by problems of access to housing as a whole.

Right to Housing and Social Justice

So, what do we mean when we argue that housing is not just four walls and a roof? The UN’s concept of the “right to adequate housing” provides an important framework here. The institution defines the seven conditions necessary for housing that will enable a life worthy of human dignity as follows:

  • Security of Tenure: Making households safe against forced evictions and to eliminate threats, harassment and discrimination. This article establishes that the right to housing should not only be considered within the framework of the right to own property, but that non-owners also have the right to live in a secure dwelling with a sense of belonging.
  • Availability of Services, Materials, Facilities and Infrastructure: Equal access to many services such as sanitary drinking water, electricity, safe and comfortable heating.
  • Affordability: The share allocated to housing not undermining household budgets, so that households are able allocate the necessary budget for other needs. Accordingly, a maximum of 30 percent of the household budget should be allocated to housing costs.
  • Habitability: The physical qualities offered by the housing. Housing that is adequately ventilated, flooded with sunlight, free of dampness, with open spaces such as balconies; in short, housing that is good for our physical and mental health.
  • Accessibility: Housing that meets the specific needs of disadvantaged groups such as people with disabilities, the elderly, women and children, and allows them to live healthily and comfortably; for example, an apartment building with an elevator or a playground within walking distance for a child.
  • Location: Easy accessibility to health services, schools, employment opportunities and social facilities. It is also emphasised that housing should not be built on unstable ground or in polluted areas (such as industrial zones) that threaten the right to health.
  • Cultural Adequacy: Housing should be built in accordance with the cultural identity and lifestyle of the neighborhood. In other words, the use of modern techniques in construction or architecture should not neglect the cultural aspect of housing.

These criteria may of course vary according to living standards, habits and needs in each country. However, the concept of the right to adequate housing is an important ground for discussion as it emphasises the socialness of housing beyond its status as a product of construction. It helps us to understand how housing has become a means of continuous gain for the privileged while creating a spiral of injustice for lower income groups and disadvantaged groups in society. Refugees, for instance, are forced to live in damp basements that do not even function as housing, where toilets and kitchens are adjacent, or in buildings that are unsafe against earthquakes. Being forced to live in such spaces causes them to suffer from pulmonary diseases such as asthma and increases the vulnerability inherent in their lives as their access to the right to health is also problematic. Although earthquake is the most urgent agenda item in Istanbul, the number of earthquake-proof buildings in the city is quite low and not everyone living in the city has economic access to these buildings. LGBTI+ persons are discriminated against during the house-hunting process simply because of their identities and are eventually forced to live in unhealthy housing that does not meet their needs. The buildings with full physical accessibility are not built in the city center due to the lack of public oversight and the rapid construction cycle. Accordingly, people with disabilities are forced to live on the periphery, and they are prevented from moving safely in the city because basic urban infrastructure such as transportation vehicles, sidewalks and streets are not accessible and safe. On the other hand, if we take housing to mean not only a house but also as spaces that meet the need for shelter, the scope of disadvantaged groups expands even further. Recently, the students, who have brought the problem of access to dormitories and housing to the agenda with the We Can’t Shelter Movement, have once again demonstrated the direct relationship between the housing problem and the right to education. To conclude, the housing problem exacerbates injustice by reproducing social inequalities.

A New Kind of Polarisation: Tenant and Landlord

Today, tenancy is one of the most pressing housing issues. There is no doubt that tenants are now a vulnerable segment of society. Just as homeownership is seen as a sort of guarantee, investment and security, being a tenant carries a kind of precariousness. Tenancy encompasses a kind of precariousness created by the state of transience, not being permanent, and being subjected to arbitrary practices. So much so that one of the main motivations for becoming a homeowner is to “no longer be a tenant”.

Rising rents amid the economic crisis and the increase in tenancy while the homeownership rate declines[4] both raise the housing affordability debate and pit tenants and landlords against each other. While homeowners are reluctant to rent their properties “below their value”, tenants are struggling to find rental housing they can afford with their current income. The tension between these two groups also creates the illusion that the problem of rental housing can be solved by agreement between landlords and tenants. The obligations of the state, which should be the main answerer of the problem, are overlooked. This is because the housing problem is attributed to factors such as inflation that seem impossible to intervene in. This perspective externalises the problem, obscuring the fact that the state does not have a fair housing policy. On the other hand, the government’s solution to the housing problem is to encourage individuals to have their own house. Underlying this approach is the idea that “The only way to eliminate your housing problem is to own a house.”

In conclusion, the housing problem is confined to affordability. This situation prevents the interlocutors of the problem from engaging in other discussions such as the quality of housing, the facilities it offers, its availability and accessibility. However, the right to housing means much more than affordability and is a basis for demanding much more. Madden and Marcuse argue that, despite the danger of the right to housing remaining an abstract and unrealisable right, its constant demand can be a way to fight against the ignorance of the housing crisis and an impetus for concrete action.[5] To cut to the chase, instead of assuming that we should settle for the housing that fits our budget, we need to popularise the idea on the access to housing such that its qualities meet the necessary conditions to live a livable life with human dignity from a human rights perspective. Organising and multiplying the demand for the right to housing is an important starting point for exposing the problems of the system and changing them.

[1] The “right to respect for private and family life, home and correspondence” enshrined in the European Convention on Human Rights broadly defines housing as a place where individuals have “sufficient and continuing” links. Accordingly, student dormitories or hotel rooms, for example, are also places of accommodation that function as housing.

[2] Madden, D., Marcuse, P. (2021). Aşırı Metalaşma Çağında Konutu Savunmak [In Defense of Housing: The Politics of Crisis], trans. Geniş, Ş. İdealkent Yayınları. pp. 15-17.

[3] Ibid, pp. 117-179.

[4] Although homeownership is both a state-encouraged and socially desirable option, according to TurkStat data, the homeownership rate declined from 60.7 percent in 2006 to 57.8 percent in 2020. The rate of tenants, which stood at 22.1 percent in 2014, increased to 26.2 percent in 2020. See Euronews (2022). “Konut satışındaki artışa rağmen ev sahipliği oranı düşüyor, kiracılar artıyor” [Homeownership rate falls, tenants rise despite increase in house sales], https://tr.euronews.com/2022/04/28/konut-sat-s-ndaki-art-sa-ragmen-ev-sahipligi-oran-dusuyor-kirac-lar-art-yor, [Accessed July 2022]. On the other hand, according to a study published by the İstanbul Planning Agency in 2022, those who rented a home in 2021 faced 66.2% higher rental costs than those who rented a home in 2020 and before. See İstanbul Planning Agency (2021). Konut Sorunu Araştırması: İstanbul’da Mevcut Durum ve Öneriler [Housing Problem Research: Current Situation in İstanbul and Recommendations]. İstanbul: Kültür A.Ş., https://ipa.istanbul/wp-content/uploads/2021/09/IPA_KONUT_REHBERI-web.pdf, [Accessed July 2022].

[5] Ibıd, p. 179.

About the Author:
Bayhan graduated from Mimar Sinan Fine Arts University’s Department of Urban and Regional Planning in 2011. She completed her master’s degree at MSFU’s Department of Sociology. She worked as an editor at arkitera.com. Bayhan was the editor of beyond.istanbul publications at the Center for Spatial Justice. She has been working as Urban Policies Programme Coordinator since 2019.

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