Cameroon at cross roads

Author: Dunia Tegegn
Human rights lawyer, Ethiopia

The war in Cameroon

The conflict in Cameroon is complex. It involves different actors including the separatists Ambazonia Governing Council, which leads the Ambazonia Defense Forces. The conflict also involves Southern Cameroons Defense Force, Boko Haram and government forces. For many years, Cameroon has been considered a refuge for Boko Haram, where the organisation was tolerated by the Cameroon authorities in the sense of an unspoken mutual non-aggression pact. Since 2013, however, the organisation has extended its attacks to Cameroon itself.

Again and again, the inequality between the Anglophone and the Francophone parts of Cameroon have been the trigger for burgeoning conflicts within society. Other triggers and exacerbators of conflict are corruption and state failure, especially with regard to the education and health systems. Already after the reunification, the Anglophone part began to strive for autonomy, which has intensified since 1990. As a result, the Southern Cameroons National Council (SCNC) was founded in 1995, advocating the separation of the English-speaking part from Cameroon and the establishment of an independent “Republic of Ambazonia”. There were also demonstrations in the Francophone part of Cameroon against a possible secession.

In the current Cameroon, civilians bore the brunt of the ongoing conflict.  Hundreds of thousands of people have been displaced in recent years by clashes between security and defense forces and by armed separatist groups in Cameroon’s North-West and South-West regions. Between 3,000 and 12,000 people are estimated to have died in the country since the onset of the crisis. The country also has a high number of displaced persons. According to the United Nation, rising insecurity had led to the internal displacement of about 530,000 Cameroonians by April 2019.

Cameroon’s government has been fighting separatists in the region for three years. According to UNICEF, Nearly two million Cameroonians face humanitarian emergency. Arbitrary arrest, burning of villages and indiscriminate killings by both sides have been conducted with impunity. There are reports of continued attacks against civilians, including extra-judicial killings, torture, destruction of property, as well as retaliatory attacks, rape and other forms of sexual violence that disproportionately affect women and children in the north- and south-west regions of the country. Because of this, a growing number of Cameroonians are fleeing their home to seek safety in the United States and other parts of the world.

COVID- 19 sorsening the situation of the civilian population in Cameroon

It is the men, women and children trapped in the crossfire of armed conflict – banished by violence, living in countries which have been fundamentally devastated by years of fighting, destruction, erosion of basic services that are the most susceptible to the current infection. This vulnerability of people in conflict zones is the result of tarnished or weak essential services for the civilian population including water, sanitation, and health care, because of neglect over many years of States’ obligations as stated under international humanitarian law and international human rights law. Nearly 168 million people around the world now depend on humanitarian relief because of conflict, violence and disasters. As terrifying as the health, social, psychological and economic impacts have shown to be, the coronavirus is not one, but rather one more, calamity that befalls them.

Cameroon is believed to have the highest number of COVID-19 cases in Central Africa. Reports indicate that there are about 4 900 cases in conflict-prone Cameroon, provoking fears that the situation may get out of hand if the virus spreads to areas where internally displaced persons from the country’s separatist crisis and Boko Haram terrorism reside. However, few cases have been reported in the North-West and South-West, either because of little testing or because conflict has heavily restricted movement, effectively putting many urban and rural areas on lockdown long before the outbreak of coronavirus. Following the United Nations General’s call for a cease fire, the Southern Cameroons Defense Force agreed to a preliminary 14-day ceasefire, on 29 March to protect people from coronavirus. However, none of Cameroon’s other secessionist groups, have observed this call. For example, the Ambazonia Governing Council, which leads the Ambazonia Defence Forces, refused to suspend fighting.

To aggravate existing challenges, neighboring Chad, Central African Republic, Equatorial Guinea, and Gabon announced that they were protecting their populations from the spread of COVID-19 by refusing to grant entry to people traveling from Cameroon. This measure came after news about the number of COVID-19 patients in Cameroon was made public. This is made worse because Cameroon’s government, led by the French-speaking President Paul Biya, has not declared a truce either and, to the dismay of aid workers, has banned humanitarian flights, along with commercial flights, in its efforts to curb the spread of the virus.

The UN children’s agency, UNICEF, estimates that about 255 of the 7 421 health facilities in the North-West and South-West are either non-functional or only partially functional because of the conflict. Some of the facilities have been attacked and burnt down, forcing medics to flee. This has increased fears about ability to treat people in the event of a major outbreak of Covid-19.

Calls to action

1. All parties to the conflict should observe the UN’s appeal for ceasefire

Two billion people living in fragile and conflict-affected states are now at intensified risk from the illness, including in areas where health systems are damaged and hospitals bombed, forcing them to escape into congested camps.   According to Oxfam’s recent report, in the last year alone, the international community spent more than $1.9 trillion on their militaries. This would have paid for the UN’s coronavirus appeal more than 280 times. To date, 59 states have signed a statement, led by the French government, in support of the global ceasefire and 70 states have expressed support for the global ceasefire call in some way. If implemented, a global ceasefire has the potential to immediately stop hostilities and protect populations affected by violence. This applies to Cameroon. All warring actors in Cameroon should accept the UN Secretary General’s appeal for cease fire including the republic. COVID-19 should be used as a breakthrough for a peaceful and negotiated resolution of the ongoing conflict.

2. Respect for international humanitarian and human rights law principles

Cameroon is a party to the Geneva Conventions and the two additional protocols.
Under international humanitarian law, medical personnel, units and transports exclusively assigned to medical purposes must be respected and protected in all circumstances. Parties should ensure and maintain medical and hospital establishments, services, public health and hygiene.

International humanitarian law prohibits actions to attack, destroy, remove or render useless, objects considered indispensable to the survival of the civilian population such as foodstuffs, agricultural areas, livestock, drinking water installations, irrigation works and similar objects. Civilians must not be displaced unless it is for their own security or for reasons of imperative military necessity. In that case, all possible measures must be taken to ensure that satisfactory arrangements are made in the new location for shelter, hygiene, safety and nutrition. It is also forbidden to compel civilians to leave their own territory for reasons connected with the conflict. Relief organisations such as the National Red Cross or Red Crescent Society located in the country should be able to offer their services to the victims of the conflict.

Water supply facilities are of critical importance during the current crisis. In armed conflict situations, many of these installations have been demolished by fighting over the years. Any interruption to their functioning means thousands of civilians would no longer be able to implement the basic deterrence measures, such as frequent hand-washing, which can lead to further spread of the virus. As a result, in the conduct of military operations, constant care must be taken to protect civilian objects, including water supply network and installations.

3. Humanitarian access

All parties ‘to the armed conflict and third States should allow and facilitate the rapid and unimpeded passage of humanitarian relief subject to their right of control (e.g. by adjusting any pandemic-related movement restrictions to allow victims to access humanitarian goods and services). Armed conflicts are already huge challenges to the distribution of life-saving aid in conflict-affected countries. Measures to prevent the spread of coronavirus are an additional barrier and may make these existing challenges worse. Limitations on the movement of people and goods has limited supply chains and resulted in the suspension and scaling down of a large number of humanitarian activities. Humanitarian access can be made better through a ceasefire that would reduce security-related access constraints to allow a focus on averting the spread of the virus to already at risk populations.

About the Author:

Dunia Tegegn is a human rights and national security lawyer from Ethiopia with LLM from Georgetown University Law Center. Before moving to the United States, Dunia Tegegn was working with the United Nations High Commissioner for Human Rights as a Human Rights Officer. She is also a certified humanitarian law professional with a women’s rights concentration. Dunia recently completed African Human Rights Fellowship with Amnesty International USA.

 

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Seat versus venue of arbitration: settling the conflict

Author: Damilola Raji
Kenna Partners Associate

Introduction

Disputes are an indispensable phenomenon in commercial relationships and arbitration, undoubtedly, is one of the oldest methods of resolving disputes. The flexibility in arbitration allows parties to determine the procedural rules that should be applicable where parties eventually go into arbitration. Consequently, the flexibility of arbitration reserved the rights for parties to determine the ‘venue’ and ‘seat’ of the arbitration. These two fundamental concepts have been the subject of several controversies in Arbitration. I shall proceed to consider the differences and nexus between ‘venue’ and ‘seat’ of arbitration.

Meaning of ‘seat’ and ‘venue’ in arbitration

In simple terms, the ‘seat’ of arbitration is the legal domicile or home of international arbitration. It provides for the nation’s Arbitration Law that would govern the arbitration. On the other hand, the ‘venue’ or ‘place’ of arbitration refers to the specific geographical location for the purpose of the arbitration proceedings. It is worthy to add that the reference to ‘venue’ or ‘seat” in arbitration clauses also does not affect the law of contract guiding the entire agreement.

Conflicts between the ‘seat’ and ‘venue’ of arbitration

The differences between the ‘seat’ and ‘venue/ place’ of arbitration although ostensibly the definitions provided above, have been subjected to several controversies. The fundamental principles that guide the Arbitral Panel and the Courts in resolving this conflict are the provisions of the arbitration clauses. Thus, the ‘seat’ of the arbitration would necessarily imply the laws of the nation that would guide the arbitration procedure while the venue determines the physical location of the arbitration. In Nigeria, although the Arbitration and Conciliation Act Cap A18 LFN 2004 does not explicitly address the meaning of ‘venue’ or ‘seat’ of arbitration, the Supreme Court in NNPC v Lutin Inv Ltd (2006) 2 NWLR (PT.965) 506 interpreted the usage of ‘place’ to also mean the venue of arbitration. ‘Venue’ and ‘place’ of arbitration (used interchangeably) refers to the location where the tribunal holds it meetings, conduct proceedings, hear testimonies, take evidence and performs other procedural undertakings. This should be clearly distilled from the “seat” which refers to the laws that would be applied to evaluate the evidence, regulate the enforcement of the award, and regulate an application to set aside the award among other procedural Laws to guide the arbitration. Thus, parties can state that the ‘venue’ or ‘place’ for an arbitration to be in Egypt while the ‘seat’ is stated to be Nigeria. Consequently, the Arbitral Tribunal would hear proceedings in Egypt and perform other procedural activities in Egypt while the laws that would guide the arbitration is the Nigerian Arbitration Law.

The metamorphosis from ‘venue’ to ‘seat’ and from ‘seat’ to ‘venue’

A party should be cautious when selecting the ‘venue’ or ‘seat’ of an arbitration. Although the differences between the ‘venue’ and ‘seat’ have been elucidated above, there are instances where the ‘venue’ of arbitration is implied as the ‘seat’ of the arbitration and vice versa. The arbitration clause is the bedrock that determines the ‘venue’ or ‘seat’ of the arbitration. Consequently, where the arbitration clause merely provides for the ‘venue’ of the arbitration and fails to provide for the ‘seat’ of the arbitration, the Courts have held that the implication from such lacuna is that the parties intended the ‘venue’ of arbitration as the ‘seat’ of the arbitration. In the Process & Industrial Developments Ltd v Nigeria [2019] EWHC 2241 (Comm), the Tribunal held that the arbitration clause stated that the venue of the arbitration “shall be” London, which invariably meant the “seat” of the arbitration was also London. The Tribunal rejected the argument of the Nigerian Government that the reference to the venue should be strictly applied to the venue and not the law. The Tribunal’s reasoning was that since the parties had chosen London as the “venue” of the aNigeriarbitration, the parties had also intended London to also be the “seat”. The Tribunal added that the selection of the hearing venue is typically decided by the arbitrators (where parties fail to state this), further indicating that the parties intended to refer to the legal seat. Similarly, where parties solely provide for the “seat” of arbitration and fail to provide for the “venue” of arbitration, the Tribunal may also imply from the circumstances that parties intended the “seat” to also be the “venue” of the arbitration.

Conclusion and Recommendations

The ‘seat’ and ‘venue’ of arbitration are significant factors in every arbitral proceeding. Parties are advised to adequately provide for the ‘seat’ and ‘venue’ of arbitration separately while drafting the arbitration clauses. I recommend that parties ensure at all times to sufficiently provide for both the ‘seat’ and ‘venue’ of arbitration. The benefits of stating in clear terms the legal seat and the venue of arbitration helps to prevent needless procedural objections and disputes.

About the Author

Damilola Raji is an Associate at Kenna Partners a law firm that specialises in the provision of legal representative and legal advisory services to clients in Nigerian and several foreign clients. He provides legal representative services on several high profile litigation and dispute resolution cases. He also provides advisory services on the oil & gas industry, corporate finance and the Nigerian capital markets. He is a graduate of Obafemi Awolowo University where he obtained his LLB (Hons) and completed the Nigerian Law School with a first class degree. He is very passionate about arbitration.

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Academics and pandemics: A student’s perspective during the lockdown

Author: Ross Booth
Third year LLB student, University of KwaZulu-Natal

For a lot of people (including myself) the 1st of January 2020 felt like a day that couldn’t come sooner. 2019 had been an especially difficult study year with the leap from first to second year comparable to an Olympic long jump. However, what I didn’t anticipate is that 2020 would spiral into disaster, almost from the get go.

UKZN students began the year in the usual fashion – one or two introductory lectures followed by an extra two weeks of holiday as our colleagues vented their frustration at the University and NSFAS respectively. However, the SRC and relevant university officials managed to quash the unrest relatively early on and lectures slowly began to commence accordingly. In conversation with a classmate shortly thereafter, I recall uttering the phrase “the worst is over” regarding the likelihood that the strikes would continue. As is always the case, good old Murphy was eavesdropping around a corner, holding his satchel of bad luck – preparing the unthinkable. And like clockwork, a virus initially described as a strong case of the sniffles managed to globetrot its way from Wuhan to sunny Durban – taking a few pit stops on the way. With that, the university was once again closed and lectures ground to a halt.

At first my fellow students and I were a little less than upset to learn that we would be given 21 days to get ahead with work and take a productive break from the daily grind. However, the severity of the situation manifested itself into what we now acknowledge to be one of the darkest moments of the 21st century.

And so here we are, 6 months after COVID-19 was originally detected. The global economy has shut down, tens of millions of people have filed for unemployment worldwide and the word of the day is “uncertain”. What I’d give to go back to a time where I could buy milk without a mask fogging up my glasses. But, with a roof over my head, running water and a fully stocked fridge, the issue of misty specs pales in comparison to what the bulk of South Africans are experiencing right now. So often we take for granted the luxuries millions of people go without, and this pandemic has only highlighted what we have known for decades. That being said, while I am certainly privileged to find myself in a position of safety and security, the virus and subsequent lockdown have certainly impacted my life as a student

Today, I got up at half past twelve in the afternoon (a joke my parents found amusing). Sleeping in late is not something I have developed as a consequence of having nothing to do, but rather as a result of how time seems non-existent in the lockdown. Because I have nowhere to go all day, I can work at what would generally be considered ungodly hours and get twice as much work done. I have always found studying at night a lot easier as there are fewer distractions, so in this regard the lockdown has actually been a benefit to my work ethic. However, not all of my fellow students share similar experiences and the following is a quote I received from a classmate:

“The lockdown has negatively affected my work ethic, it has made it non-existent. It has also made me despondent to any form of work.”

It seems that for a vast portion of students, the lockdown has been nothing more than a demoralising ordeal and I lament with them in the knowledge that we would currently be nearing the end of our semester syllabus had the virus never touched our country.

This virus also comes at an especially stressful time for a lot of law students in particular. Most third and fourth year LLB students have no doubt already begun the process of applying for articles of clerkship and would probably have received concrete feedback by this stage if the lockdown hadn’t occurred. Students who have already secured articles are in no way exempt from the stress that has encumbered those without. Those who have signed their two year contracts are uncertain as to whether they may be expected to start their periods as candidate attorneys later or whether the companies they have signed on with will even be in a position to accommodate them. A classmate who has already obtained her two year contract provided me with the following quote:

“The lockdown has definitely increased my anxiety. I am concerned about finishing my degree on time and worried about my future.”

It is evident that uncertainty is the biggest factor eating away at students. It is also impossible for anyone to predict what might happen in the near future and as a consequence thereof we are stuck in a form of limbo from which there seems no escape.

The “new normal” which implies an emphasis of growing accustomed to online learning and interactions has been somewhat of a change. While the academic staff of UKZN have done their very best to keep us abreast with module content, the human aspect of understanding of something through oral communication has not gone anywhere. To supplement this requirement, zoom calls have made it possible to communicate directly from the comfort of one’s home. However, lecture hall interactions will never fully be replaced as I for one can attest to learning a lot through the questions asked by other students I never would have otherwise considered. As I write this, the university has just sent out an email providing data bundles to students without network access. UKZN has had an immensely difficult year and as a student I am proud to attend a university that cares so deeply about the future of its students. With regards to online learning and the change over from physical lectures, a classmate provided me with the following quote:

“My experience with online learning has helped me realise the benefits of contact learning. The situation is not ideal however I do believe the University has made reasonable provisions in light of its current financial situation.”

In summation, to all my fellow students reading this, it is important to remember that across the board we are all in the same boat and it is up to us to plug the hole in the hull. I hope that collectively, we will not allow the situation to make us despondent or discouraged but rather, that we will emerge from this as stronger students.

And if you have made it to the end I want to thank you for taking the time to read my thoughts and frustrations. I hope God will watch over us as a nation and that through determination and unity we will come out the other side as unscathed as possible.

Stay safe.

About the Author

Ross Booth is a third year LLB student at UKZN studying towards currently seeking articles of clerkship for the year of 2022 and hopes to pursue a career in Corporate and Finance Law. He is a member of the UKZN Moot Club, Golden Key Honours Society and represents his class in several academic modules. Outside university, he enjoys athletics and is currently training towards running the Two Oceans in 2021. His interests include foreign affairs, politics and cinema. He is also a huge dog lover with a soft spot for German Shepherds.

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The impact of technology on mental health during COVID-19

Authors: Mustapha Dumbuya, Johnson Mayamba & Foromo Frédéric Loua

As the world continues to battle the novel coronavirus, also known as COVID-19, which by 14 May 2020 had recorded more than 4 million confirmed cases globally and  claiming more than 300,000 lives. One can be tempted to say that the fight might still be far from ending. Even as researchers work tooth and nail to find a vaccine, with Madagascar claiming to have found a herbal cure, some have described such efforts as more of a marathon than a sprint. In fact, the World Health Organisation (WHO) has warned that people may have to learn how to live with Covid-19 because it ‘may never go away.’

When the cases were fast-rising, governments around the world adopted various measures to contain the spread of COVID-19. On 26 March 2020, South Africa went into a 21-day total nationwide lockdown amid increasing cases of the pandemic. Other measures announced included wearing face masks and other forms of movement restrictions. The lockdown was later extended but it has since been eased since the beginning of May 2020 to ameliorate economic meltdown not only in South Africa but globally.

Apart from having a disastrous impact on economies, these measures come with a plethora of other challenges. The current social distancing policies have had a major impact on people’s lives and wellbeing, especially for those living alone or away from family and loved ones. COVID-19 related social and physical distancing could lead to a feeling of increased loneliness and depression.

The  South African Depression and Anxiety Group (SADAG) have recorded an increase in the number of people calling them to express fear and worries over COVID-19 related issues since the Government declared a lockdown. For instance, before the lockdown, 59% of the people who approached SADAG were reported to be much stressed. These figures have since risen to 65% in less than two months.

The Lancet has also released a review of 24 studies documenting the psychological impact of quarantines and isolations. The research offers a quick look into what is likely to happen at the end of these lockdowns amid continuous spread of distorted information. The review says in China, cases of mental health effects such as insomnia, anger, stress, anxiety, depression, emotional exhaustion, and post-traumatic stress symptoms are already being reported in the first research papers about the lockdown. The research also points out low mood and irritability as some of the effects that stand out.

These effects are sometimes caused by information overload — people becoming inundated by depressing information on the pandemic which has now affected every continent. Both mainstream and social media are saturated with information on COVID-19, creating overload and fatigue on some people. During such a period, it can be extremely challenging to separate factual information from fiction. This is because one is being bombarded with information coming from every direction especially on social networking platforms and messaging apps such as WhatsApp and Facebook where people belong to work, friendship and family groups, among many others that deliver COVID-19 related information directly to them. So, if one escapes the news on TV and radio, it still comes to them via such connections on social media. The information varies, but mostly focuses on the origin of the virus, prevention and treatment of the virus, and statistics of confirmed cases—deaths and recoveries. With more distorted information spread across social media platforms, research indicates that such information, if not well managed, can have far reaching negative impact on individuals as earlier stated.

The fact that COVID-19 is caused by a new type of coronavirus, leaves many people desperate for information about a virus that even experts and policymakers are grappling with the mutation dynamics of the virus and keep discovering new information. So, while some of this information may be helpful, people are also vulnerable to misinformation that causes fear, panic and mistrust. There has been a lot of misinformation and conspiracy theories since the outbreak of the pandemic. This has prompted the United Nations to warn about what it calls an ‘infodemic’. The World Health Organisation has also come out to debunk some of the myths on COVID-19.

When the pandemic was initially reported in China and Europe, it was trivialised in many African countries where some people believed that black people were immune to the virus because of the perceived strong immune system and hot weather conditions on most parts of the continent. This disbelief continued until black people started contracting the virus and others dying from it. Other people have shared misinformation about alcohol and other herbal concoctions that claim to cure COVID-19, albeit with little or no scientific evidence.

However, all is not gloom. While technology fosters viral spread of misinformation which poses a direct threat to mental health and the fight against the pandemic, it has enabled easy access to information, helping people connect with loved ones with just a click on an internet-enabled device. Information about COVID-19 can be found and shared across all platforms and with all networks. Through this, people have been made aware about the pandemic, its effects on the world and what is being done by institutions, and what individuals can do to contain it.

Globally, technology is enhancing companies and organisations to stay open and provide services to clients as employees work remotely from their homes. These companies, governments and organisations have used internet-based applications to hold meetings and conduct business. The same has been taken up by education institutions to continue administering classes to students. It is reported that Zoom alone has seen its users rise from 10 million users to 200 million around the globe. Particularly, at University of Pretoria’s Centre for Human Rights, graduate students who come from different parts of the African continent have since continued with the normal running of classes online as opposed to sending them back to their countries during this period.

Whereas this is a good step in closing the gaps when it comes to continuity of activities through use of technology, there are concerns of limited access to internet; 4 billion people in the world lack access to the internet. 90% of this figure comes from developing countries. , according to United Nations Development Programme (UNDP). In Africa, such small access to the internet is met with high costs of data with 1GB ranging between $37.92 and $75.20. Other countries like Uganda have daily social media tax which also affects internet access, particularly, impacting persons in lower income brackets and other disadvantaged groups.

In joining the UN and WHO to address concerns of ‘infodemic’ around COVID-19, different governments have come up with measures to counter it. Such measures include having in place official websites dedicated to the pandemic for example in the case of South Africa. Other governments have asked the media to allocate special time and space to give the public information about COVID-19. In extreme measures, some governments have warned, issued orders and gone ahead to arrest, detain and charge those suspected of spreading misinformation as seen in countries such as Ethiopia, Egypt, Nigeria, Kenya, Somalia and Zimbabwe, which in the end has a chilling impact on freedom of expression and access to information at such a critical time.

In conclusion, based on the fact that technology plays a great role in helping people stay in touch, during these times, governments must make the services available. One way to do this is through the reduction of tariffs and taxes and the increase of bandwidth and coverage so more people can have access to internet. This will help to bridge the gap for people who are currently unable to stay in touch with their loved ones due to expensive and poor network. Also, governments and all other stakeholders such as the World Health Organisation should continue availing credible information across all their platforms and in all languages in a timely manner to enable the masses remain informed, calm and sane. Media personnel must be guided, protected and provided with credible information to remain playing their role of informing and educating the masses. Individuals also play a critical role of verifying with credible sources the kind of information they have before sharing it with the rest of the public. Finally, while pandemics like Covid-19 can be stressful, there are things to do to cope with it. Foremost, government and development partners should provide call centres for online counselling services. On an individual level, the Centre for Disease Control (CDC) recommends that reaching out to family and loved ones helps you and them cope with Covid-19 related stress. The CDC further suggests that taking breaks from following the news on the pandemic, including on social media is helpful for your mental health and wellbeing.

About the Authors

Mustapha Dumbuya is a Sierra Leonean Journalist and Senior Journalism Trainer with Journalists for Human Rights (JHR). He is currently pursuing an MPhil in Human Rights and Democratisation in Africa at the Centre for Human Rights, Faculty of Law, University of Pretoria in South Africa.

Johnson Mayamba is a journalist at Daily Monitor in Uganda. He is also currently a student of MPhil in Human Rights and Democratisation in Africa at the Centre for Human Rights, University of Pretoria.

Foromo Frédéric Loua is a Guinean Attorney and founding president and the senior trial lawyer of Mêmes Droits pour Tous (MDT), one of the leading Guinean non-governmental human rights organisations, which provides legal assistance to prisoners throughout the country. Attorney Loua’s work focuses towards reducing the prevalent use of torture during police investigations in Guinea.

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The right to peaceful assembly and the COVID-19 pandemic: a threatened right; an ironic connection

Author: Foluso Adegalu
Centre for Human Rights, University of Pretoria

The right to peaceful assembly enables individuals to express themselves collectively and to participate in shaping their societies and can be of particular importance to marginalised and disenfranchised members of society. The right to peaceful assembly entails a legitimate use of the public space. Although the exercise of the right to peaceful assembly is normally understood to pertain to the physical gathering of persons, comparable human rights protections also apply to acts of collective expression through digital means, for example online gatherings.

The right to peaceful assembly is guaranteed under both international and national laws. The right to peaceful assembly is guaranteed under article 11 of the African Charter on Human and Peoples’ Rights, which provides that:

every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

It is also guaranteed in article 21 of the International Covenant on Civil and Political Rights (ICCPR), which provides that

the right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

The right to peaceful assembly is also provided for in the provisions of the bill of rights of most African Constitutions.

Like many other rights, the right to assembly is not an absolute right, and can be legitimately restricted in the interests of national security; public safety; public order (ordre public); the protection of public health; morals; or the protection of the rights and freedoms of others. However, Restrictions are not permissible unless they can be shown to have been provided for by law, and are necessary and proportionate to the permissible grounds provided for by international law. Thus, the test of validity of the restriction on the right to assembly is namely the cumulative requirements of legality, necessity and proportionality – A restriction must be legal, necessary and proportionate.

One of the major strategies that have been adopted by most African states in combating the spread of the COVID-19 is the principle of “social distancing” or “physical distancing.” The principle of social distancing simply means that people are required to keep physical space between themselves and other persons; social distancing entails avoiding crowded places and mass gatherings. Because of the nature of the right to assembly which usually requires physical public gathering, alongside the right to freedom of movement, the right to assembly is in the forefront of human rights that has been severely limited, restricted or absolutely prohibited by most African states as part of measures adopted to address the spread of COVID-19. Example of restrictions imposed by African states on the right to peaceful assembly include:

  1. Non-prohibition:
    Countries like Botswana and Rwanda have so far placed no express ban on the right to peaceful assembly in terms of any regulation issued in response to the COVID-19
  2. Partial prohibition:
    Some African countries have issued regulations or laws that limit public gatherings to certain number of persons. For instance, Togo & Malawi have restricted public gatherings to a maximum of 100 persons; Angola, Eswatini, Cameroon & Nigeria have restricted public gatherings to a maximum of 50 persons; Comoros restricted public gathering to a maximum of 20 persons; Eritrea, Namibia & Liberia have also restricted public gathering to a maximum of 10 persons.
  3. Absolute prohibition:
    Algeria, Burkina Faso, Mozambique, Uganda, Ghana, Ethiopia and South Africa are some of the African countries that have placed absolute ban on public/physical gathering.

Notwithstanding the crucial role of social distancing in curbing the spread of the COVID-19 and the high connection between the violation of social distancing requirements and the exercise of the right to assembly, recent developments in Africa have shown that the right to assembly may inevitably have its role to play in the sustenance of measures and policies that are put in place by states to address the COVID-19 pandemic.

The response of African states to the COVID-19 pandemic has received mixed reactions from different section of the society. A blanket approach adopted by some African states has resulted in inadequate policies that neglect the needs of some sections of the society. Some of the policies put in place by African states disproportionately affects certain segment of the society who need to collectively express their grievances against policies that adversely affect them or the lack of policies to attend to their unique needs. In most instances, these category of persons are at a disadvantage and do not usually belong to the elitist section of the society that have access to the digital space to collectively express their concerns or response to policies put in place by government to curb the spread of the COVID-19 pandemic.  As such, these categories of persons may have to ultimately make recourse to some sort of physical gathering to collectively express their common intentions.

In addition to being used as a tool to voice their grievances, freedom of assembly in the physical space can also serve as a useful tool for access to information in a continent where the vast majority of the population is not connected to the digital world. Some form of physical assembly can be used by civil society actors, and community leaders to educate some sections of the populace who have limited access to the internet and other electronic media (due to poverty and or illiteracy) about COVID-19, the mode of transmission, the ways to prevent the transmission and to keep them informed about the palliative measures that the government is putting in place to cushion the harsh economic realities of COVID-19 measures. In this regard, the absolute prohibition of physical assembly may unintentionally deprive certain section of the population of the right of access to information. For instance, there have been different videos on social media where some members of society express their opinion about the COVID-19 pandemic and seem to be completely lost about what COVID-19 entails in its entirety. Some regulated form of physical assembly may, in addition to other existing communication mechanisms like community radios, loudspeakers, may help to educate some sections of the society about the COVID-19 crisis.

The need to adopt a human rights approach to measures adopted by African states has been reiterated by the African Commission. In addition to ensuring respect for existing human rights obligations of states, as explained above, a human rights approach to combatting COVID-19 can also offer other additional benefits that can complement the overall efforts of African states in combating the COVID-19. Since African states are coming up with different measures and regulations to respond to COVID-19, there is the need to accommodate the opinions of people who may want to collectively respond to government policies or the aftermath of certain government policies as it disproportionately affects them during the covid-19 crisis and may not have access to or influence in the digital space. At the moment, in most African state regulations that have placed absolute prohibition on freedom of assembly, there is a misconceived merger and absence of clarity on gatherings that are meant for the expression of common intentions and other forms of public gatherings or outdoor activities like sports, cultural and recreational activities. This is the situation in Uganda and Ethiopia where the government placed a general ban on all activities that may attract mass gatherings. The right to freedom of assembly cannot and should not be conflated with “any form of gathering. The absolute prohibition of the freedom of assembly by some African states amounts to derogation from the provision of article 11 of the African Charter on Human and Peoples’ Rights. In the case of Media Rights Agenda v Nigeria, the African Commission on Human and Peoples’ Rights held that the rights guaranteed in the Charter are non-derogable and can only be limited on grounds of: the exercise of other rights, collective security, morality and common interest. Without any doubt, the limitation of rights during COVID-19 pandemic is in the common interest of all, but in order to comply with the African Charter, states must leave an opportunity for limited exercise of rights guaranteed in the African Charter.

The right of people to collectively express their common intention without access to the digital space seems to be a forgotten right during the COVID-19 pandemic, but the right also has a paradoxical relationship with the control of the pandemic in Africa. In a continent where access to digital space and other basic amenities like electricity are luxuries beyond the reach of the bulk of the society, the freedom of assembly can help to point government towards the right directions as per policy responses and it can also help to educate a large part of the society.

Of course, the right to freedom of assembly cannot be exercised at a maximum level during the COVID-19 pandemic. Organisers of assemblies should have the obligations to put in place stringent measures of prevention and control; and adherence to social distancing during the exercise of the right to peaceful assembly. Organisers should also ensure that the number of persons is reasonable with consideration for intended space and time. On 22 April, 2020, over 2000 people gathered at the Rabin Square in Tel Aviv to protest against embattled Israeli’s Prime Minister, Benjamin Netanyahu. The protesters wore face masks and assembled on designated marks at least six feet apart. Undoubtedly, the exercise of the right to freedom of peaceful assembly in the physical space will have to adapt to the COVID-19 pandemic. As the Rabin Square protest of 22 April 2020 has shown, the pandemic should not spell the end for the exercise of the right to freedom of peaceful assembly.

About the Author

Foluso Adegalu is a Doctoral Researcher at the Centre for Human Rights, University of Pretoria. His area of research includes human rights monitoring, civic rights and disability rights.

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Lack of consultation led to persons with disabilities being neglected in the COVID-19 response

Author: Maluta Mulibana
Centre for Human Rights, University of Pretoria

The South African Government, a signatory to the UN Convention on the Rights of Persons with Disabilities (CRPD), neglected the inclusion of persons with disabilities in their COVID-19 disaster management response. As a response to the COVID-19 pandemic, the president of South Africa announced a “lockdown” of the country with effect from the 27 March 2020.  According to the “lockdown” regulations, all persons must stay at home, unless they are essential services workers or they go out to access such essential services. Before then, several COVID-19 disaster management committees were established without the inclusion of the disability rights coordinating mechanisms.

While the UN CRPD provides for the consultation of persons with disabilities in its preamble and in article 33 on National Implementation and Monitoring, the government of South Africa neglected the inclusion of its national, provincial and local disability rights coordinating mechanisms, resulting in disability issues being neglected in the coronavirus disaster management response.

From the survey I conducted with Limpopo provincial government disability coordinating mechanism, district municipality forum of persons with disabilities, organisations of persons with disabilities and individuals with various disabilities including visual, physical, psychosocial, intellectual impairments and autism spectrum disorder (ASD) as well as their families, the following reasonable accommodation measures were neglected:

First, important health services that are specific for persons with disabilities, as per article 25 (b) of the CRPD, were not regarded as essential services.  Such services include sign language interpretation services, the provision of assistive devices or technologies, medication and equipment, personal assistance, informal care or support; rehabilitation services as well as therapies or development interventions.

During the first month of the “lockdown”, public transport to access essential services were available in the early hours of the morning and late hours of the afternoon.  This was quite frustrating for persons with autism spectrum disorder who can be disturbed by waiting for the late afternoon transport in case they cannot catch the early morning transport back home from such essential services.  Otherwise, their parents and care givers had to be in possession of their own vehicles or dig deep into their pockets to call metered taxis or cabs, which are quite expensive.

Some persons with disabilities in institutions have been sent home without support or follow up since some home carers do not have the expertise to stimulate and develop their members with disabilities. On the other hand, those remaining in institutions are not allowed to be visited by family members as protection against the spread of the virus.  Families are only allowed to make telephone calls to their institutionalised members with disabilities, which is not practicable for certain persons with specific disabilities. As the representative of Autism South Africa states: “I know a mom who has not seen her teenage son since the lockdown because the residential facility will not allow her to visit.  She can only phone. This is frustrating because her teenage son does not have a full functional speech. This really shows the lack of understanding because how are you expected to have a conversation when your child does not understand social communication?” Such institutions could have learned from Limpopo province whose institutions allow for a fifteen minutes one family member visit per day.

Again, sanitisers and protective measures are not easily available to community members.  Government only give such items to health and essential services workers.  As a result, non-profit organisations mobilise resources for community members, including persons with disabilities.  Furthermore, we do not have information about the plight of homeless persons with disabilities. It is possible that they do not have water, sanitisers and other essentials. Additionally, while food and basic supplies are given, communities complain that local councillors use corrupt means to beneficiate their relatives, fans and friends.

The manner in which the corona virus pandemic has progressed over the past months means that constant access to accurate information is important to ensure that people are armed with the relevant information to protect themselves. While information on the coronavirus is available on radio and television, it is not accessible in other formats such as braille for blind people and augmentative and alternative communication for persons with communication disabilities such as those with autism.

In other instances, since persons with invisible disabilities are not known and understood by community leaders and members, this often leads to unnecessary clashes with authorities.  For example, a mother of a child with a disability was arrested for purchasing napkins for her child.

The COVID-19 disaster did not only affect the health system, but it also affected the justice system as well.  While an independent complaints mechanism is available, there are no support measures for persons with disabilities, resulting in their rights being violated and unreported.

Again, the disaster management mechanism also affected persons with disabilities economically.  Those who are running unregistered informal businesses are compelled to shut down without compensation.  Accolades, however, go to the Department of Social Development for the early payment of disability and care dependency grants and for providing a top up fund of two hundred and fifty Rand per grantee.

Government’s COVID-19 disaster management mechanism could have been more inclusive to issues affecting persons with disabilities if the national, provincial and local disability rights coordinating offices were part of disaster management committees since these offices have capacity to consult organised formations of persons with various disabilities.

About the Author

Maluta Mulibana is a student at University of Pretoria’s Centre for Human Rights, studying for a Masters of Philosophy in Disability Rights in Africa (DRIA). His experiences include 14 years teaching experience, 14 years in the NGO field – 12 of which were spent in disability-related programmes and projects, 2 years in general human rights, and currently in the Limpopo Provincial Disability Rights Coordinating Mechanism since 2014.

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A cry for help: The COVID-19 pandemic and digital inequalities

Author: Ayodeji Johnson
Communications and Advocacy Intern, Centre for Human Rights, University of Pretoria

The COVID-19 pandemic has triggered the current unprecedented times. The coronavirus has ravaged the world as it cuts across sex, age, race, class, and ethnicity in its vicious attack. Currently, almost 4 million cases with at least 270 000 deaths worldwide due to the pandemic.[1] The aforementioned numbers are frightening and has caused the world to slowly move away from public and shared interactions to physical and social distancing, isolating in their homes. While the need for this physical distancing is undeniable as a way to potentially save lives, this forced isolation has also meant that work and particularly study has been confined to homes.

The right to education is an important right encapsulated in a number of international and regional human rights treaties. Article 17 of the African Charter on Human and Peoples’ Rights (African Charter) for instance, provides that every individual has a right to get an education.[2] Unfortunately, one can safely assume that the drafters of this article did not contemplate how this right would be guaranteed during a pandemic. Yet, interestingly this pandemic has exposed problems and raised crucial questions on the fulfilment of the right to education in most African societies at this extraordinary period. The question that therefore needs to be asked is how COVID-19 has affected the right to education particularly in African countries. This is considering that in many African societies for instance, tertiary institutions have been forced and rightly so, to shut down, meaning that African students like other students globally are compelled to study online from home.

Indeed, the truth is that technology has become a crucial link between people and the outside world. Yet, there has been much talk of a ‘digital divide’ exposed as a prevalent gap between the access of individuals, at different socio-economic positions to Information Communication Technology (ICT) and internet usage.[3] One prevailing factor for the ‘digital divide’ is inequality of access to digital media between wealthier and poorer individuals. During these times, this kind of digital divide has become even more apparent in the academic world. This ‘divide’ for instance exposes the existing structural inequalities in Africa, particularly in academic institutions as online services and resources will tend to favour learners with internet access and connection, leaving behind the marginalised learners who are most vulnerable to economic and social disruption. This further depicts educational inequalities between wealthy and poor learners due to unequal access to affordable internet services and equipment such as computers, smartphones and tablets.

The existence of a digital divide violates human rights. Specifically, it violates article 19 of the International Covenant on Civil and Political Rights (ICCPR) which guarantees the right to enjoy access to information without discrimination.[4] As a fundamental part of societal discourse, there is therefore an essential need to begin to question how African governments responds to technology as well as liberating potential at a very human level.

There is no doubt that technology is an enabling tool, ensuring connectivity, access to life-saving information and indispensable in the fight against the vicious COVID-19 pandemic.

One of the many important lessons to be learned from the COVID-19 pandemic is that the digital divide complicates efforts to respond to the challenges society faces. Indeed, a poignant lesson from this pandemic is that there is a need to find ways to bridge the digital divide, which is quickly becoming a matter of life and death. The digital divide is therefore not just a human rights challenge nor will it be overcome through human rights law alone. While there have been commendable measures taken to bridge this divide including a zero rated data initiative[5] that enables students access unique portals without incurring data charges and the provision of internet enabled devices that would be essential for online education for students in dire need who cannot afford such devices, the digital divide requires greater attention of governments, the private sector and civil society. Conclusively, COVID-19 presents an excellent opportunity for African governments to begin to integrate technological initiatives into their policies on education, poverty eradication and sustainable development.

[1] https://coronavirus.jhu.edu/map.html [Date accessed 8 May 2020].

[2] African Charter on Human and Peoples’ Rights (Article 17).

[3] Z Lasame, Bridging the digital divide in South Africa and selected African countries. In N.C Lasame, (ed). New media Technology and policy in developing countries (2005) 3.

[4] IInternational Covenant on Civil and Political Rights (Article 19).

[5] https://www.up.ac.za/coronavirus-updates/article/2889779/message-regarding-zero-rated-data. [Date accessed 24 April 2020].

About the Author

Ayodeji Johnson is a third year student of International Communication at the Tshwane University of Technology (TUT). He is currently a Communications and Advocacy Intern at the Centre for Human Rights, University of Pretoria, as part of the Work Integrated Learning (WIL) Programme.

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The scourge of homelessness and evictions during the COVID-19 pandemic in the City of Johannesburg

Author: Bonolo Makgale
Centre for Human Rights, University of Pretoria

Introduction

After confirming the country’s first COVID-19 case on 5 March, South Africa braced itself for a 21-day lockdown, which officially began on 26 March and was initially intended to last until 16 April. The lockdown was subsequently extended to 30 April and has been further extended indefinitely with relaxation of some of the restrictions and some sectors of the economy being allowed to reopen, along with the extension of certain socio-economic relief mechanisms intended to cushion citizens from the hardships that the pandemic is sure to induce. In this light, one of the regulations included a moratorium on evictions, with the understanding that evictions would place vulnerable persons at risk of contracting and transmitting the virus. The provision stipulates: “All evictions and executions of attachment orders, both movable and immovable, including the removal of movable assets and sales in executions, is suspended with immediate effect for the duration of the lockdown.” These regulations were aimed at minimising possible losses of income, particularly among the working class and people in the informal sector.

Despite these regulations, evictions were still occurring in the City of Johannesburg with various informal settlements having been targeted for demolition. Dressed in their infamous scarlet attire, the Red Ants most recently descended on unsuspecting residents in the Lakeview settlement and proceeded to raze properties deemed to have been illegally constructed.

The City of Johannesburg has argued that the lockdown period has presented an avenue for opportunistic illegality, that is, the setting up of illegal settlements on unoccupied municipal land without the requisite permission. Gauteng Member of the Executive Council, Lebohang Maile, issued a blanket order during this lockdown period to halt and prohibit any unlawful occupations, whether of buildings or land, affording certain powers to municipalities to oversee that this indeed was being adhered to. During a press conference Maile noted the state would not tolerate unlawfulness ‘in the name of lockdown’. Given how grave the situation has shown itself to be, it can only be considered a travesty that individuals are being forcibly removed from their housing at such a critical time, even if their conduct can be considered to be unlawful This is especially concerning when there are no alternative housing solutions to bolster such a move. It would seem at this stage that there is far more concern with the incidents of land grabs than with giving due thought to the implications of addressing this concern at such a time.

Human rights implications of the evictions

It is indeed a concern when authorities perpetuate acts of violence in such an inhumane manner, especially during precarious times such as we are currently facing. It is a factual reality that such dispossession amounts to a human rights violation, starting firstly with the dispossession of property, which amounts to a limitation on the right to property as well as adequate housing. These rights are codified in sections 25 and 26 of the Constitution respectively. Section 26 of the Constitution in particular guarantees that ‘Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions’.

Furthermore, the right to housing is inherently linked to the right to dignity under section 10 of the Constitution as access to housing has a bearing on the quality of life one lives and places a sense of worth on an individual’s livelihood. As it stands, evictions in the time of COVID-19 creates further vulnerabilities to communities that are already vulnerable in the City of Johannesburg. Evictions will result in families being exposed to the virus as they will be forced to live in unsanitised and uncontrolled environments. In addition to this, evicted families will have no place to cook their food or receive food deliveries in their home which infringes on their right to food and security. As the lockdown continues, evictions continue to take a terrible turn on the lives of residents in various municipalities.

Implications on the governance of the City of Johannesburg

The term “essential services” is one that has been used prolifically during this new COVID-19 dispensation to denote activities that are deemed vital for the survival of the population during the pandemic. According to the International Labour Organization (ILO), an essential service is any service “by whomsoever rendered, and whether rendered to the Government or to any other person, the interruption of which would endanger the life, health or personal safety of the whole or part of the population.” It is difficult to fathom how the activities of the Red Ants are considered essential, seeing as their nature is to dispossess and endanger the lives of vulnerable citizens, rather than provide any life-altering protection or service, as is envisioned in the definition of an essential service. One is indeed justified to question what essential service the Red Ants are in fact providing at such a critical time, which requires the utmost safety and health of the populace, and channelling of precious resources towards protecting livelihoods.

City of Johannesburg Mayor Geoff Makhubo remarked that the City could not celebrate a routine court victory allowing evictions, and maintained that the demolitions were a necessary action towards implementing planned development within the eviction sites for the benefit of the poor and the City at large. However, these evictions have resulted in homelessness which only serves to heighten the vulnerability of the affected persons and paints an even graver picture considering that the country is the epicentre of the outbreak on the African continent.

The state has taken positive steps in erecting temporary housing structures for the homeless community, presumably in acknowledgement of the fact that such a time necessitates widespread measures that encompasses, especially, the interests of the poor and vulnerable. Such cause has however not fully been realized by a party that has ample opportunity to regain the support of a once loyal constituency, which it briefly lost to the DA-led coalition during the 2016-2019 period. Ironically, during that period, the ANC conducted a vehement mud-slinging campaign, often accusing the DA-led coalition of failing to honour its electoral promises in providing quality housing. Now that the power over Johannesburg has been restored to the ANC, such rhetoric becomes hypocritical in the face of their own shortcomings in not only failing to provide housing, but also actively dispossessing citizens of housing. This is yet another decisive moment in South African politics, where we are witnessing lost confidence being restored in the ANC-led government which has so far been lauded for its data-driven COVID-19 -mitigation strategy. However, the tides could easily quickly turn among the majority black electorate should such housing inequalities continue to persist.

Conclusion

Human Settlements Minister, Lindiwe Sisulu, has remarked during a parliamentary committee sitting, that it is an illegality to demolish shacks at the present moment. In the end, it must be borne in mind that many residents in informal settlements do not occupy land out of want, but need, and often have no other alternative means of securing their inherent need for housing and resultantly, dignity. In the midst of a global pandemic, continued evictions subject poor residents in informal settlements to greater health risks and hardships, which is a stark contradiction to the measures put into place aimed at safeguarding the security interests of the nation.

Homes are being demolished at a time when citizens are yearning for a sense of safety and security from the state and it should be in the interests of the state to rise to this expectation. As the President correctly said, now more than ever, is the time to put political differences aside and work together to defeat the virus. This would necessarily entail ensuring that all of society is fortified in the fight against COVID-19. It cannot be expected then that certain quarters of our society, namely the poor and vulnerable, be side-lined and forced to face this pandemic without shelter and exposed to the harsh realities of homelessness. It now falls on leadership to determine how best the scourge of homelessness and evictions can be addressed during this pandemic.

About the Author

Bonolo Makgale is the Manager of the Democracy and Civic Engagement Unit at the Centre for Human Rights, University of Pretoria. Her academic interests include governance, politics and democratisation in Africa.

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COVID-19: How more access to the internet can reduce existing barriers for women’s rights in Africa

Authors: Nelly Warega* and Tomiwa Ilori**
*Legal Advisor, Women’s Link Worldwide
**Doctoral researcher, Centre for Human Rights, University of Pretoria

On 17 April 2020, a Twitter user tweeted about a hospital in Lagos that demanded personal protective equipment (PPE) from a woman seeking to give birth at the facility. The incident, according to the user happened at the General Hospital, Ikorodu, under the Lagos State Government Health Service Commission. The PPEs have become important for health workers given the surge in transmission COVID-19 across the world. However, despite the rising demand and scarcity of PPEs, a conversation on the propriety of placing the burden of procurement of PPEs on expectant mothers is vital.

In Uganda, there are few officials who can authorise movements during the lockdown in all of its 134 districts and there are no central numbers to call in case of emergencies. As a result of this, at least thirteen women and two babies have died.

Currently, Sierra Leone has the highest maternal mortality ratio in the world and there have been suggestions that measures deployed during the Ebola outbreak are used to ensure more access to healthcare services for women. However, despite these measures, the health care system in Sierra Leone does not seem ready for the pressure maternal health may cause due to the COVID-19 pandemic.

The World Health Organization (WHO) declared COVID-19 a global pandemic on 11 March 2020. Many African countries have subsequently deployed emergency measures such as curfews, partial and total lockdowns, limitations on freedom of movement and public gatherings just to mention but a few. Most of these directives have been issued through executive orders and decrees while some states have gone as far as passing new laws or amending existing ones in a bid to combat the spread of coronavirus and minimise its impact on citizens.

Noting the importance of human rights protection during this pandemic, the Director-General of WHO urged states to take urgent actions to curb the spread of the virus by “minimising social and economic disruption and respecting human rights.”

While these emergency measures are necessary given the present realities, their effects, especially on women have been adverse. This article focuses on existing challenges to women’s rights in Africa and how these challenges can be reduced through more access to the internet during the coronavirus pandemic.

Assessing the impact of the coronavirus pandemic on women’s rights online in Africa

Globally, women and girls, especially those in Africa have been hit harder because of existing structural and institutional inequalities. Recognising these impacts on women and girls, the United Nations High Commissioner for Human Rights (OHCHR), in a statement, stated that “girls globally have less access to Internet and cell-phones than boys.” The High Commissioner concluded that these inequalities combined with the current realities have “set back the cause of women’s equality.”

According to the World Wide Web Foundation, despite the rapid increase of mobile phone usage in the last decade, there are still more men online than there are women. A survey which was conducted on poor urban men and women in nine developing countries revealed that only 37% of women with mobile phones are internet users in comparison to 59% of in the case of men.

In Kenya, internet affordability, online security and access to smartphones have been cited as some of the reasons why there are less women online. The same reasons were recorded for women in Mozambique. In addition to the reasons mentioned above, women in Nigeria, expressed a lack of digital literacy and understanding of digital rights as the biggest challenges.

Women’s lack of access to the internet limits their right to access to information, education, online economic opportunities and development among others. The survey identified Kenya, Uganda and Mozambique as having higher digital gender gaps. These limitations are exacerbated during emergency situations such as the current COVID-19 pandemic. For instance, with the internet being one of the biggest sources of information on the pandemic, both from state and non-state actors, many women are disadvantaged and are not able to gain factual information on the pandemic given the existing digital gender divide.

Similarly, due to disruption of service delivery or changes in operating hours in both the public and private sectors, many service providers including health care facilities, have resorted to communicating through their digital platforms.

As a result, women who are not online do not have information regarding crucial services such as those related to their sexual health and rights. This includes information on family planning and maternity care.

Many women have reported a general lack of care from health care workers to patients other than those suspected of having COVID-19. Many are unaware of where and when to go to seek services including those that are offered for free by non-governmental organisations. The result of this is cases such as the one witnessed in Kenya where a woman after being turned away by two midwives, lost her newborn and bled to death as she had to wait till morning to access a hospital due to the imposed curfew.

Lack of access to the internet during this time also means that women who are more exposed to intimate partner violence have limited avenues for seeking help. The UN Secretary-General, Antonio Guterres issued a statement urging states to prioritise women’s needs even as they respond to COVID-19. This statement came after global reports showed that many countries had recorded an increase of domestic violence cases since the implementation of lockdown directives.

In Kenya, a statement issued by the National Council on the Administration of Justice, stated that cases of sexual violence in the country have spiked amidst the COVID-19 pandemic. In South-Africa, over 100 people have been arrested in the past month for gender based violence related crimes since the lockdown was enforced.

An alarming rise in cases of domestic violence have also been recorded in Tunisia since a curfew was imposed in March. These are just a few examples as many more cases have been recorded within the continent.

To address these rising cases, one of the recommendations made by the UN include increasing online services to allow women various avenues of reporting to save them from harm.

Lastly, lack of access to the internet also means that women are locked out from participating in discussions relating to issues affecting them, most of which are currently being conducted online due to lockdowns and social distancing. Women are unable to engage in conversations in which they can express their opinion on the challenges they experience due to COVID-19 response measures. Ensuring more internet access for women therefore makes it possible for more women to not only get more access to information but also actively allow more women get more involved in policy issues.

The International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and Peoples’ Rights (ACHPR) have been ratified by most African countries. The relevant provisions of these treaties provide for the rights to freedom of expression and access to information online and states have the obligations to ensure the protection of these rights at all times, a pandemic notwithstanding.

While we have seen states facilitate information sharing regarding preventive and protection measures and provision of health services, most of this information has mainly been communicated through mainstream media and digital platforms such as Facebook and Twitter – media which even though may have good coverage, are still not inclusive for all.

Ways to reduce the adverse impacts of coronavirus on women’s rights online in Africa

More than 70% of health workers are women. This already suggests that women are more exposed both at the frontlines of combating the pandemic and in their daily lives especially when considered alongside these existing inequalities.

One of the ways in which states can reduce the above gendered impacts of COVID-19 on women is by increasing access to the internet for women all over the continent. This can be done in several ways.

To address the rising cases of violence against women, state and non-state actors should encourage anonymous reporting to state agencies or civil society organisations offering support to victims. Without access to the internet, free hotlines and technological solutions, women are more vulnerable to violence during lockdown periods or curfews with perpetrators using these limitations as an opportunity to cause harm.

Key stakeholders like the private sector together with states and the civil society should also adopt measures that facilitate access to information such as lowering of internet access costs to encourage more women to be online. This also includes doing away with internet taxes like the case in Uganda which has further driven a wedge on internet access.

In order to ease the adverse socio-economic impacts of the COVID-19 on women, governments should partner with stakeholders to focus on women-owned small and medium enterprises (SMEs). Through once-off grants or interest-free loans and projects focused on digital literacy, women can be empowered with smart phones and digital skills for their businesses.

Also, governments and other key stakeholders must mainstream gender equality in its National ICT and Broadband Plans including more affirmative action that creates opportunities for women and girls to learn digital skills. Key stakeholders must also jointly work towards combating violence against women online and focusing more on women’s civic participation.

About the Authors

Nelly Warega is a Legal Advisor at Women’s Link Worldwide. She is committed to the promotion of women and girls’ rights with a focus on Sexual and Gender-Based Violence victims.

Tomiwa Ilori is a Researcher and Policy Analyst. His focus is on human rights and new technologies in Africa. He is currently a doctoral researcher at the Centre for Human Rights, University of Pretoria, South Africa.

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Digital solutions for African elections in the time of COVID-19

Author: Marystella Auma Simiyu
Centre for Human Rights, University of Pretoria

According to the 2020 African election calendar, at least 23 countries had scheduled a presidential, legislative and/or local election. As of 20 April 2020, 10 of these countries including South Africa, Tunisia, Nigeria, Zimbabwe, The Gambia, Cameroon, Libya, Ethiopia, Kenya and Ghana had been forced to postpone these elections and other electioneering activities due to the risk and uncertainty posed by the COVID-19 pandemic that has upended ordinary socio-economic and political activities.

On the political front, the ability of countries to conduct periodic, free and fair elections to facilitate the exercise of the right to vote has been put to test by the coronavirus. The right to vote is a fundamental human right that is codified under Article 25 of the International Covenant on Civil and Political Rights (ICCPR), Article 13 of the African Charter on Human and Peoples’ Rights (ACHPR), and majority of constitutions around the world. However, the right to vote is not a non-derogable right. In the wake of the coronavirus, many governments have invoked their emergency powers leading to the derogation of a range of civil and political rights including the right to vote. This can be justified under Article 4 of the ICCPR that provides:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

Nevertheless, stakeholders need to scrutinize the exercise of these powers to ensure the limitation of any right including the right to vote meets the international standard of legality, necessity and proportionality in a democratic society.

The decision to postpone elections or modify the conditions in which elections take place in the wake of COVID-19 is a sound one given the risk presented by the pandemic juxtaposed with the circumstances in which elections occur in most African countries. Packed campaign rallies as well as long queues of voters in polling stations is a typical scenario for the days preceding Election Day and the polling day. Needless to say, this is not feasible in the COVID-19 era when the World Health Organisation (WHO) has advised that social distancing measures are critical to the containment of the coronavirus. Further, mobility restriction measures such as lockdowns and curfews complicate the free movement of the electorate, political candidates and poll workers.

However, it is unclear when coronavirus will be sufficiently contained to allow for free movement. Ultimately, the decision on whether to proceed with scheduled elections or to postpone the elections depends on the severity of the pandemic in the respective countries, as well as the risk mitigation measures put in place. Should elections continue, certain factors have to be considered to ensure the polls meet the requisite standards of democratic elections, and are a true reflection of the will of the people. Of particular importance are principles of universal and equal suffrage, by secret ballot, and free from intimidation or undue influence.

Universal and equal voter participation is of concern during the COVID-19 era with special focus on persons already infected with coronavirus, vulnerable populations such as the elderly, and diaspora voters. For example, South Korea which chose to proceed with its 15 April 2020 elections had to close down 40 polling stations that were located abroad given the social distancing measures implemented in the oversees destinations, effectively excluding the vote of approximately 53.2% of eligible diaspora voters. For persons who had tested positive for the virus, special early voting procedures were implemented, and those in self quarantine were allowed to vote after the official closing time of the voting stations.

Closer to home, Guinea chose to proceed with the conduct of a constitutional referendum vote as well as its National Assembly election scheduled for 22 March 2020. This culminated in a 91.5% vote in favour of the new constitution as well as a victory for the ruling party Rassemblement du Peuple de Guinée (RPG) which won the majority of the seats. The election was preceded and followed by violence particularly in opposition strongholds who opposed the election claiming it was a ploy by the 82-year old president to secure a third term in office. While the credibility of the election was already in doubt, a concern that had been raised by the African Union (AU) and Economic Community of West African States (ECOWAS) which had both previously withdrawn their observer missions as a result, the imprudence of moving on with the vote was further compounded by the fact that many local and international observers were unable to attend and independently verify the credibility of the elections in the wake of the coronavirus. Nevertheless, Guinea registered a voter turnout of  61% which is noteworthy under the ensuing circumstances. However, the post-election unrest in Guinea is far from ideal in this scenario given that as of 20 April 2020, the country had registered 579 cases, 87 recoveries and 5 deaths of the coronavirus as compared to 22 March 2020 when it only had two cases and zero deaths.

Similarly, on 29 March 2020, Mali proceeded with its first-round legislative elections, that had been postponed in 2018 and 2019, amid health and security concerns stemming from COVID-19 and terrorist attacks. Understandably, Malians were apprehensive about their safety given that the first death had been recorded just a day before the polls. Unlike Guinea, Mali recorded a low voter turnout of approximately 35.6% nationwide and 12% in Bamako, its capital city. The provision of Personal Protective Equipment (PPE) such as masks, and hand washing stations were seen as insufficient measures to curb fears of the spread of the coronavirus. This is further complicated by the fact that the country has a poor health delivery system and large sections of the country are not under the control of government but terrorists. The second round of elections scheduled for 19 April 2020 proceeded despite of the continuing security and health threats. Given the ramifications of COVID-19, such decisions to proceed with elections in the absence of effective risk mitigating measures come with unnecessary risks to the safety of the electorate as well as poll officers.

On the other hand, postponement or modification of electoral processes carries with it unique legal consequences. There is a real possibility that alterations to the election process or calendar may result in a constitutional crisis with governments remaining in power past their due date. Overcoming this challenge is dependent on the constitutional and legislative frameworks of the different jurisdictions including provisions on strict timelines for election procedures, guidelines on modification of election deadlines, frameworks for continuity of leadership in the event of an emergency, and powers conferred on the Election Management Body (EMB) to make timely and relevant regulations. Therefore, before a government decides on whether to modify or postpone an election, there should be a wide consultative process with political and civil actors, legal experts, and health professionals.

Digital technologies to the rescue?

An alternative to delayed or postponed elections and sidestepping questions about a possible constitutional crisis would be the adoption of alternative voting procedures, for example, remote voting. The success of remote voting is largely predicated on the availability and efficiency of election technologies, as well as public access to Information and Communications Technology (ICTs). Never has the right of access to internet been more important as the age of COVID-19. According to statistics released by the International Telecommunication Union (ITU), Africa has the lowest mobile and internet penetration in the world, with only 28.2% of the population in Africa having access to internet. This is evidence of the need for Africa to pay greater attention to bridging the global digital divide.

Democratic processes cannot be held at ransom by the coronavirus indefinitely. Obviously, mobility restrictions currently in place have implications on preparatory arrangements that have previously required in-person interaction. To avoid delays, countries should harness the benefits of digital technologies in election management. Technological solutions for voter education, voter registration, and voter identification and verification, as well as electronic voting and counting measures would certainly reduce the risks presented by human to human interaction. Further, online platforms as well as traditional media are particularly important for connecting political candidates with the electorate as traditional campaign rallies are unfeasible under the circumstances. However, the implementation of these measures is faced with a myriad of challenges in the African context including poor ICT infrastructure, limited mobile and internet penetration, digital illiteracy as well as income inequalities.

There are existing global lessons to guide this process. Majority of countries worldwide have adopted some form of technology in their election process especially for biometric registration, identification and verification of voters. However, this system still poses challenges in the COVID-19 era. Voters as well as election staff will still need to be physically present in the polling stations. Further, identification and verification of voters as well as the voting, counting and tabulation process require interaction with various fomites including the biometric machine, the polling booth, voting materials and other surfaces one might touch while inside or within the environs of the polling station. Even if all the voters and staff are provided with PPE, additional measures including strict social distancing, provision of handwashing stations and hand sanitizers, as well as constant disinfection of the polling station are necessary. Even if this is done, it is still likely that many voters would avoid the whole process for safety reasons.

E-voting and e-counting technologies that employ remote procedures would serve to allow democratic processes such as elections to continue while maintaining social distancing. However, a far fewer number of countries have already rolled out an e-voting system. Namibia is the only African country to use e-voting in its elections. Worldwide, Estonia, Mongolia, the United States of America, India, Philippines, Brazil, Iraq and Kyrgyzstan have similarly adopted e-voting measures. But realistically, the unique circumstances of a country determine the feasibility of implementing electronic voting and/or counting procedures. For example, in Estonia the fact that most Estonians have a Smart ID coupled with an electronic signature reduces the risk of voter fraud and increases the transparency of voter identification and verification. While other countries have partially adopted, or piloted e-voting and e-counting procedures, security concerns emanating from vulnerabilities to remote intrusion (hacking), the transparency and auditability of the process, and the expense of implementation informed decisions to discontinue or limit their widespread application. This was the case in Paraguay, Germany, Ireland and Netherlands.

However, the disruption brought about by coronavirus on private and public life has necessitated the development of innovative digital solutions. It is time for a global discussion on how to harness the benefits of e-voting and e-counting technologies to allow the continuation of democratic processes. This is an apt time to actively develop solutions to the challenges presented by these technologies, especially to ensure the security of the vote as well as the respect for universal and equal suffrage and secrecy of the vote. Africa particularly has to address the challenges around the global digital divide. The establishment of critical ICT infrastructure and equal access to electricity is essential. Further, African governments have to address digital literacy, which requires ICT training to be integrated in educational curriculums from kindergarten to tertiary institutions. Digital literacy training should equally be accessible to older generations, to allow them to equally participate in the democratic process. To address affordability concerns, governments should liaise with telecommunication companies to facilitate zero rated access to certain public information including government websites as well as that of state institutions such as EMBs. Further, EMBs should have in place effective security measures and backup systems to prevent cybersecurity threats that would compromise the integrity of the vote.

About the Author:

Marystella Auma Simiyu is a Doctor of Laws (LLD) Candidate at the Centre for Human Rights, University of Pretoria researching on ‘Media and elections in the digital age.’ She holds an LLM (cum laude) from the Centre for Human Rights, University of Pretoria and LLB from Kenyatta University in Kenya. She is an Advocate of the High Court of Kenya and currently a researcher at the Expression, Information and Digital Rights Unit at the Centre for Human Rights. Her research areas include democratisation in Africa, international human rights law, constitutional law, elections, digital rights, legal theory, transitional justice, and regional human rights systems.

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