COVID-19, Darfur’s food security crisis and IDPs: From ruins to ruins

300 000 people have been killed, and over 2.7 million have been forcibly displaced as a result of a genocide that has left the legacy of displacement and destitution. The war was initiated by the government-backed armed groups known as ‘Janjaweed’ militants in 2003, who have been accused of systematic and widespread atrocities, such as murdering and torturing of the civilian population, including raping their women and intentionally burning their villages.

In 2009, the Pre-Trial Chamber I of the International Criminal Court (ICC) issued an arrest warrant against Omar Al Bashir, the President of Sudan for his involvement in committing crimes against humanity (Article 7 of the Rome Statute) and war crimes (Article 8 of the Rome Statute) against the population including civilians in the 2003 conflict. A referral was issued through the mandate of the United Nations Security Council (UNSC) Resolution 1593 vis-à-vis Chapter VII of the UN Charter read with Article 13(b) of the Rome Statute to open an investigation to crimes committed by Bashir’s regime.

However, there was little appetite to send the President to the trial, primarily because Sudan is not a party to the Rome Statute and even if it was, international criminal law is based on complementarity wherein a case is only admissible before ICC when it is proved that the state is unwilling or unable to prosecute the head of a state (Article 17). The new transitional military-backed government that ousted President Bashir on April 11, 2019, has assured that he will face trial in the state and in furtherance of their promise, the interim government charged President Bashir for his involvement in the 1989 coup d’état that dismantled the democratic government of Prime Minister Sadiq-al-Mahdi. Other charges against him concern corruption, financing terrorist organizations, including his involvement in the Darfur war.

Independence of South Sudan escalated violence and displacement in the state

The liberation of South Sudan in 2011 from the Republic of Sudan reflects the best of all times and the worst of all times. It was a moment of jubilation for the millions of people who have suffered during the vicious regime of the Bashir government. But the independence movement triggered widespread internal displacement of 825, 000  people, famine, and even ghastly chemical attacks on civilians and young children by the government in the Jebel Marra region of Darfur in 2016. More than 60% of the internally displaced persons (IDPS) were children.

Since its independence, the state remains riddled in conflict over its indigenous and ethnic issues even after it declared English as its national language, breaking away from the burden that the rest of the colonizer Sudan imposes in terms of diversity and culture. But it appears it cannot be detached from political unrest as the newest state broke into a civil war in 2013 killing almost 50, 000 people and approximately four million have been internally displaced and or fled to other regions across the border such as Chad and Uganda.

As the health crisis of COVID-19 impends over Sudan, more than 1.87 million IDPs  continue to undergo degrading treatment in the overcrowded and substandard camps in Darfur. The camps lack adequate resources to exercise social distancing measures and most of the IDPs are dependent on aid from civil society organizations.

International law specifies humane treatment for IDPs. The London Declaration is a non-binding international framework governing the rights of IDPs. The specific international framework concerning the rights and protection of IDPs in Africa is the Kampala Convention that defines IDPs under Article I(k)as persons who are forced to flee their habitual residence as a result of armed conflict, situation of generalized violence, violations of human rights, natural or human-made disasters and have not crossed an international border. The Convention duly acknowledges the nature of conflict in Africa and guarantees wide range of substantives rights including the duty of the state to not hamper the humanitarian aid received for the assistance of IDPs.  Sudan has not yet acceded to the Kampala Convention.

COVID-19 exposes real-life human tragedy in Darfur

According to the UN Officer for the Coordination of Humanitarian Affairs (OCHA), around 9.6 million people are at the brink of starvation. The pandemic has majorly affected young children and IDPs living in Darfur and South Kordofan. Darfur where conflict and killing never seem to end is facing a 99% surge in inflation rate which directly hampers the purchasing power of individuals. While the world is claiming the right to health as an irrefutable human right, the IDPs in Darfur are living in overcrowded shelters where they barely have access to one meal per day.

More than 5.5 million people lack access to potable water and hygiene. There are fears over health disaster in El Faser as people do not have adequate transport facilities to visit hospitals and moreover, hospitals cannot do much because of the ill-equipped health care system. A UN worker in El Fasher says, ‘You cannot stay at home because you need to eat and drink. But no one has food for five or even two days. They think if we are dying from not eating or drinking, then let coronavirus kill us.’ Unfortunately, delivering humanitarian aid to Sudan to date remains a herculean task as the armed troops constantly obstructs any attempts to provide assistance to IDPs and young children by the humanitarian aid workers.

Africa has a history of witnessiing collateral damage whenever a pandemic hits the continent. The 2003 Ebola saw an exponential high surge in mortality rate, collapse of the local and national healthcare systems in some countries, and more than 10,000 deaths. The ability of a community to fight back a pandemic depends a lot on their financial and economic stability, healthcare infrastructure, and systematic planning of the government to tackle the crisis which Sudan thoroughly lacks.

Conclusion

The 2019 paradigm shift towards a pro-democratic movement in Sudan now requires a proactive role of the government in first, extending protection to the civilian population, ensuring assistance such as health rights to the IDPs at the urgent basis, and arranging the return of those who were forcibly displaced during the conflict to different states. Adopting these measures would potentially place the government in a better position to request the United States to remove Sudan from its State-Sponsored Terrorist (SST) list, the designation which not only outcasts Sudan but also makes the request for humanitarian assistance difficult. Recently, the government in its attempt to prove their worth criminalized female genital mutilation and repealed the regressive Public Order Law (PLO) that restricted the rights of women in terms of their appearance and movement in public. It is high time the government ratify the Maputo Protocol concerning the Rights of Women and Girl Child in Africa as it guarantees substantive rights against a wide range of gender-based violence and discrimination. But concerns over the rise of inter-communal rebellion groups and its extremely weak health care system remain stagnant with no sign of improvement.

The current concern plaguing the state is the proposed withdrawal of 26,000 UN peacekeeping forces from Sudan. Jehanne Henry, East Africa director of the Human Rights Watch states that such a move is not advisable especially in Darfur that has a plagued history of state-sponsored violence on civilians. Removal of troops will not only jeopardize the civilian population but could expose millions of IDPs and other persons entirely relying on humanitarian aid either to starvation or another armed attack. Many refugees of the Darfur war still yearn to return home in search of their other family members and many IDPs have been waiting to live a normal day in properly built homes with three-square meals a day but for a state that has ingrained war and bloodshed, the roadmap of peace is yet to be drawn. Now more than ever, Sudan must live up to its responsibilities and protect and fulfil the rights of IDPs. Ratifying and domesticating the Kampala Convention will be a step in the right direction. The author hopes someday Sudan will find peace and security.

About the Author

Gursimran Kaur Bakshi is a student at the National University of Study and Research in Law, Ranchi, India.

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Has the COVID-19 pandemic exposed the fragility of South Africa’s constitutional democracy?

Author: Paul Mudau
PhD Candidate and Researcher, School of Law, University of the Witwatersrand

On 15 March 2020, and while owing to medical and scientific advice and with the aim of controlling and managing the invasion and the spread of the invisible enemy, the Coronavirus (COVID-19) pandemic, the President of South Africa Cyril Ramaphosa introduced extraordinary legal measures, placed the country under a nationwide lockdown and sealed its international borders. The lockdown took effect from 27 March 2020. The President simultaneously declared a national state of disaster in terms of section 27 of the Disaster Management Act (52 of 2002). Apart from the 1996 Constitution, the Disaster Management Act is applicable during lockdown together with other relevant statutes such as the Criminal Procedure Act 51 of 1977 and Prevention of Combating and Torture of Persons Act 13 of 2013. This, was followed by a series of announcements and impositions of numerous lockdown Regulations and Directives that require hygienic practices, physical and social distancing, quarantine, and isolation measures.

While wielding unbridled excessive powers that restrain the exercising of citizens’ fundamental rights in the quest to defeat the COVID-19 pandemic, the establishment, composition, powers and functions of the South Africa’s National Coronavirus Command Council (NCCC) will remain a ‘mysterious mishap’ when judged from a constitutional and legal perspective. Reportedly, the NCCC comprises only of cabinet ministers. Contrastingly, section 8 of the Disaster Management Act does not mention anything close to the NCCC but the National Disaster Management Centre (National Centre) which forms part of, and functions within, a department of state for the public service for which the Minister of Cooperative Governance and Traditional Affairs, is responsible for its executive and administrative direction. More so, except for the National Centre, the Disaster Management Act additionally establishes the Intergovernmental Committee on Disaster Management and the National Disaster Management Advisory Forum in terms of sections 4 and 5 respectively. Given that South Africa has a decentralised form of government which is constituted as national, provincial and local levels of government, the nine provinces also followed the footsteps of the national government and established their own Provincial Coronavirus Command Councils (PCCCs).

It is important to note that the declaration of the national state of disaster by the Minister of Cooperative Governance and Traditional Affairs in the context of the current nationwide lockdown is dissimilar to the declaration of a state of emergency by the President as provided for in terms of section 37 of the 1996 Constitution, which would invoke the application of the State of Emergency Act (64 of 1997). As opposed to the Disaster Management Act, the State of Emergency Act permits for derogations of civil liberties enshrined in the Bill of Rights, however, subject to the Table of Non-Derogable Rights enumerated under section 37(5)(c) of the 1996 Constitution and clearly with some exceptions that include the rights to dignity, life and the right to a fair trial. The state of emergency may be declared when the life of the nation is threatened, among other factors, by a natural disaster or other public emergency and when it is necessary to restore peace and order. Should the health emergency caused by the Covid-19 pandemic escalate and lead to civil unrest, declaring a state of emergency may be justified and it has not been ruled out.

Section 37(3) of the 1996 Constitution charges any competent court with the discretion to decide on the validity of a declaration of a state of emergency while parliament retain an oversight role, including any extension of a state of emergency beyond 21 days, which must be approved by parliament, subject to section 37(2) of the 1996 Constitution. A declaration of a national state of disaster is a temporary measure in which certain rights may be limited. The declaration of a national state of disaster may be invalidated when deemed to be inconsistent with the requirements listed in section 27(1) of the Disaster Management Act.

Fundamentally, a number of constitutional rights have been strictly curtailed by the imposed lockdown Regulations and Directives. These include: the right to freedom of movement, freedom of assembly, freedom of association, freedom of expression, the right to education, freedom of trade, occupation and professions, the right to privacy, the right of access to information, and the right to bodily and psychological integrity. These rights may solely be limited in terms of the limitation clause stipulated in section 36 of the 1996 Constitution, to the extent that such limitations would be deemed reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

There are concerns expressed about the lawfulness of certain aspects of the government’s response to the COVID-19 pandemic, particularly in respect to several fundamental human rights enshrined in the 1996 Constitution. In addition, other foul-cries relate to the use of army, police and municipal enforcement officers in enforcing the lockdown Regulations and Directives, ensuing in a surveillance state, more power grabs among individual government leaders, the silencing of critics, widespread human rights abuse, and the undermining of the rule of law and constitutional supremacy. On 22nd of May, the Minister of Police announced that 230, 000 people had been arrested for contravening the lockdown Regulations and Directives.

From a critical standpoint, South Africa’s constitutional democracy is seemingly prone to the excessive powers wielded by the NCCC and whose security forces as enforcement officers are unjustifiably disregarding the constitutional obligation to respect fundamental human rights. The government’s response in dealing with fake news about the COVID-19 pandemic was also met with contempt after number of people have been arrested for contraventions. However, in certain cases, the government’s action is defensible. For instance, a man who widely distributed a fake ‘contaminated COVID-19 test kits’ video on social media was arrested and subsequently charged in terms of Regulation 11(5)(c) of the Disaster Management Act, in relation to ‘publishing any statement through any medium including social media with the intention to deceive any other person about measures by the government to address COVID-19’. As a result of this publication, the Gauteng department of health reportedly encountered difficulties with its community-testing initiatives as a result of the false claims.

Accusations that South Africa is gradually becoming a surveillance state were compounded when the Minister of Communications and Digital Technologies promulgated the Electronic Communications, Postal and Broadcasting Directions. In the same vein, Direction 8 required that the Electronic Communication Network Service (ENCS) and Electronic Communication Service Licensees, internet and digital sector in general, to provide location -based services in collaboration with the relevant authorities identified to support designated departments to assist and combat the spread of COVID-19 virus. As a consequent, this directive has triggered alarm as it authorised the government to ‘track and trace’ people who have been infected as well as those persons that may have been in direct contact with them. The concerned people’s location and movements are ‘tracked and traced’ using their private cellphones. Gary Pienaar decries the directive as follows:

This broadly-phrased power raised the spectre of state surveillance using digital location and interception of communications, which were reminiscent of apartheid-era spying and movement control, as well as of more recent political abuses of state security capacity.

In a supposedly liberal constitutional democracy such as South Africa, ‘lockdown brutalities’ must remain unjustifiable under all circumstances. The state’s will to prevent the increase in COVID-19 infections and deaths is not proportionate to the cruel and degrading retributions meted out by enforcement officers who preside over pervasive physical violence on citizens. A gruesome development relates to the death of Collins Khoza, after an altercation with members of the South African National Defence Force (SANDF) and the Johannesburg Metropolitan Police Department (JMPD).

The SANDF responded by conducting a whitewash investigation into his death. The investigation sought to deliberately exonerate its members as it shamelessly revealed that the soldiers ‘cannot be held liable for this death as there is no link between the injuries he sustained due to their actions and him dying’. The family of the deceased approached the North Gauteng High Court in Pretoria for relief and the court declared that the members of the SANDF are responsible for Mr Khoza’s death. The Court declared that members of the security forces must respect and protect rights to dignity and life, not commit torture, and only resort to minimum force to enforce the law. The court further held that the Ministers of Defence and Police must develop and publish a code of conduct and operational procedures regulating the conduct of their members, including that of the metropolitan police departments in giving effect to the state of national disaster Regulations and Directives.

It hereby argued that, in cases where a member of the public is deemed to be in breach of the lockdown Regulations and Directives to the extent that the situation warrants his or her arrest, the designated enforcement officers have to effect the arrest in full compliance with the applicable laws, more in particular, the Criminal Procedure Act 51 of 1977 and Prevention of Combating and Torture of Persons Act 13 of 2013. Where a minimum use of force is inevitable, the enforcement officers should do so without exceeding the required legal parameters for using force in order to effect arrest. In other words, the enforcement of the lockdown Regulations and Directives should not result in the violation of the right to life or the freedom of security due to physical violence exerted by enforcement officers. Besides, there are numerous reports which depict the enforcement officers indulging in using various tactics of punishments on members of the public who have breached lockdown Regulations and Directives. For example, a video emerged on the internet showing soldiers punishing a group of men who failed to be confined at home by forcing them to repeatedly roll in the ground while onlookers cheered on (from the windows of their homes).

In cognisance of the above, it is reasonable to infer that the government’s current focus on curbing the COVID-19 pandemic has culminated in the non-compliance of its constitutional obligations to respect and protect fundamental rights and to uphold constitutional supremacy and the rule of law. Evidently, the government’s actions lack openness and fails to meet the proper accountability and responsiveness benchmarks envisaged by the 1996 Constitution. As a consequence, resulting in the erosion of the ethos, values and principles of constitutional democracy; a contemptible occurrence that takes place through the discrepant application and enforcement of the Disaster Management Act and the ever-conflated and misplaced lockdown Regulations and Directives. It is understandable that a responsive and accountable government is inherently consultative, but the untimely flip-flopping on key issues that integrally link the political preferences of the governing party and its oppositions on one hand, and the socio-economic priorities of the increasingly influential citizenry on the other, has exposed the viability of the NCCC in its response to the COVID-19 pandemic.

It is worrisome that with a sheer declaration of a national state of disaster under the Disaster Management Act, the NCCC mysteriously emerged as a super-commanding body that governs the affairs of a liberal constitutional state with unprecedented concentration of powers, devoid of transparent legal mechanisms that could sanitise its existence and powers. Additionally, while enforcing lockdown Regulations and Directives, the security forces have been reigning on terror and violating human rights. A follow-up concern emanates from the imagination of what could then transpire in future circumstances where a state of emergency is declared in terms of section 37 of the 1996 Constitution. This is because the State of Emergency Act curtails people’s human rights further, as opposed to the Disaster Management Act. Accordingly, it sounds reasonable to ponder if the COVID-19 pandemic might have exposed the fragility of South Africa’s constitutional democracy.

About the Author

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

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A dark cloud or the promise of rain: Section 25 and the fate of land restitution in South Africa

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

In recent years, there have been growing calls for land reformation and a fairer distribution of property in South Africa. Many have called for what is known as the expropriation of land without compensation, while others view this as an extremely dangerous and radical procedure. Despite the differences of opinion, we are currently observing what could become one of the most significant changes to land reform in the history of SA’s democracy. Seemingly given the backseat in light of our current struggle against the COVID-19 pandemic, an amendment to section 25 of our Constitution is on the cards and could result in a variety of changes to the current state of land restitution.

As it stands, section 25 is a far-reaching provision of the Constitution that deals with security of tenure, property rights, and restitution for those previously discriminated against under colonial and Apartheid land practices. Section 25(1) begins by offering some assurance to property owners by stating:

“No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”

Section 25(1) is followed up by s25(2)(a) & (b), which both deal with the manner of expropriation. S25(2)(a) states that property may only be expropriated for a “public purpose” or “public interest” while s25(2)(b) gives courts the power to determine the nature of the compensation thereof. What follows is a variety of different subsections pertaining to land tenure and remedies available to those previously deprived of their property through discriminatory practices. Included is the state’s commitment to land reform (s25(4)(a)) as well the promotion of security of tenure for persons or communities affected on a racial basis (s25(6)). Furthermore, s25(7) offers relief through restitution to those previously dispossessed of land as a result of post-1913 discriminatory laws and practices. Finally, s25(8) appears to lay the foundation for state-led land restitution by providing:

“No provision of this Section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1) (the limitation clause)

Some argue that this particular subsection already allows for the expropriation of land without compensation – a hot topic for South Africans of all creeds. However, before COVID-19 effectively brought the world to a standstill, the South African government was looking at bringing the incontestable ability to expropriate land at nil compensation into the Constitution itself. An amendment to section 25, overshadowed by the subsequent lockdown, was the topic of discussion between the government and the general public. Tackled by the Joint Constitutional Review Committee (Joint CRC), recommendations for a possible amendment included addressing the inequality of land distribution in South Africa, securing tenure amongst farm workers/tenants, and investigating state and provincial corruption that hinders land reformation.

Following these public engagements, the Joint CRC has recommended that Parliament, as a matter of urgency, amend section 25 to allow for expropriation of land at nil compensation. In doing so, the Joint CRC has acknowledged that this could finally reverse the Apartheid practices (as well as the effects of the pre-Apartheid  1913 Land Act) that allowed for the wrongful dispossession of land and provide a framework to ensure land is distributed in a manner deemed fair and equitable. There are fears, however, that this could spark a mad rush by property owners to sell up and leave the country – bringing about further economic woes.

In theory, land reform would appear to be the best possible option for a country that has such a vast wealth gap, but beyond the legal jargon and legislation, would such an amendment work in practice? It is necessary to comment on a possibility that amending section 25 could have a devastating effect on our already stumbling economy. International history on land reform (similar to that proposed in the impending section 25 amendment) provides an even split between failures such as Zimbabwe and successes like the gradual increase of landowners within Bolivia’s working class. In essence, while South Africa’s progression in respect of its most grievous inequality is of the utmost importance, it must be conducted in a manner that will not bring about more socio-economic harm than good.

In light of the conflict between those with property rights and the immense need of attainment for those without, perhaps a resolution can be sought which favours both sides and operates in the public’s interest. A government audit performed back in 2017 portrayed the dire inequality in land ownership – with white South Africans still dominating in respect of ownership of private and rural land.  This audit could be used to form the foundation for an equitable distribution of land set at nil compensation that won’t prove detrimental to our economy. Land that is vacant or unused should be transferred to those without security of tenure as a matter of top priority. Furthermore, to aid in lessening the vast difference between land ownership by racial demographic, ownership of private property could be capped at a maximum size (and minimum size to ensure viability) per individual or family. Perhaps solutions such as those above could prevent a mass exodus of landowners who fear their property may be expropriated at random.

However, it would seem that nothing is risk-free and at this stage, the Constitutional amendment to section 25 is seemingly inevitable. Given the Joint CRC’s strong recommendation to Parliament, we could see the legislature vote to pass the changes into law as early as this year. In fact, the revival of the Ad Hoc Committee dedicated to bringing this possibility to fruition was considered by the National Assembly on 11 June 2020.

At this stage, however, the amendment to section 25 is still somewhat in limbo. Until it is passed, the Joint CRC anticipates lengthy and costly lawsuits involving landowners who would likely rely on the current constitutional provisions to prevent unpaid land loss. Furthermore, the proposed amendment will require a 2/3rd majority vote in the National Assembly in favour of its passing, and the ANC cannot do this alone.

However, as the country begins to open up, it may be advisable for property owners and non-owners alike to keep a watchful eye out for any developments concerning the proposed amendment. Until such time, we can only speculate as to the fate of land reform in South Africa and hope that the cloud approaching brings welcomed rain and not a devastating storm.

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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Afro-digital ethics, law and online hate in Africa

Author: Thompson Chengeta
European Research Council Fellow on Artificial Intelligence Ethics and law, University of Southampton

Introduction

Across the globe, there is a general increase in online hate and sharing of hateful messages on online platforms. The past weeks saw hateful and xenophobic hashtags trending in South Africa. As noted by some commentators, online hate “can pollute civic discourse, inflict harm on targeted victims, create and exacerbate social divisions, and erode trust in the host platforms”. Online hate should not only be dealt with in terms of the law but also afro-digital ethics. With increased internet penetration in Africa, advent of smartphones and digital platforms, many people spend most of their time online. In this digital age, the virtues of our lives are beginning to be shaped and influenced by our virtual lives. Yet, not much has been done to guide our lives – particularly those of young people – in this new virtual world. The African saying “it takes a village to raise a child” denotes communitarian ethos relating to duties of the elderly in the community to instil African ethics in young persons. But does such an African village exist online? While digital technologies are undoubtedly impacting our African utopias or dystopias on what it means to be humane, the elderly who usually enforce and instil African ethics and morality in young people are offline. For parents who are online, they rarely have access to their children’s online platforms for many reasons including the use of ghost accounts. I also contend that a failure to respect African ethics online is a result of the breakdown of African communitarian ethos in the real world. For example, the spread of hateful content against fellow Africans has its genesis in economic failures of African leaders, most of whom are selfishly and corruptly enriching themselves.

Law, international standards and online hate

Individuals engaged in online hate usually claim that it is their right to freedom of expression. Domestic laws in Africa and international law prohibit online hate and clearly distinguish between freedom of expression and incitement to hatred. The Rabat Plan of Action notes that what distinguishes online hate and freedom of expression is the content and form of the speech, the intent to incite the audience against a target group, its social and political context, extent of its dissemination, likelihood of harm and status of the person sharing the content.

There are also current initiatives to enforce laws proscribing online hate through artificial intelligence technologies that use advanced computational methods such as stochastic modelling, machine learning and natural language processing to autonomously detect and delete hateful content. Indeed, technology is a double-edged sword. While these methods may work in combating online hate, they present a myriad of human rights challenges relating to the ethics of free speech. Furthermore, in Africa, one of the challenges with these methods in combating online hate is the fact that dictatorial governments use them for their own selfish political gains. It is for this reason that on 17 June 2020, Global Partners Digital, Centre for Human Rights, ARTICLE 19, the Collaboration on International ICT Policy for East and Southern Africa and PROTEGE QV came together to launch “an interactive map to track and analyse disinformation laws, policies, and patterns of enforcement across Sub-Saharan Africa” with the aim of assessing their compliance with human rights.

Afro-digital ethics and online hate

The problem of online hate is deep rooted; the law alone cannot sufficiently deal with the problem. Afro-digital ethics can be very useful as they not only focus on how technology is shaping our political, social, and moral existence but also articulate ways of how to retain the core of our African humanism in this digital age.

African morality is founded on ubuntuism or humanism within which our interests as humans of Africa are tied together. African ethics can be explained in terms of communitarian ethos of our communities. Such communitarian ethos teaches us of natural sociality and that community life is the essence of the African human being who is morally obligated to pursue the common good with love, virtue and compassion. They should apply in the virtual world as they apply in the real one.

Also central to African ethics is character which is linked to personhood. As is evident in many African communities, it is good character and how you treat others that makes you a person. For example, in Zimbabwe’s Shona community, “munhu” means a person while “hunhu” means good character. When someone is of bad character, it is said “haana hunhu”. During colonial times when the white minority racially discriminated against black people, the term “munhu” was used to exclusively refer to black people. In other words, racists failed the test of personhood. When someone does good, members of the Shona community say “uyu ndiye munhu manje” which means “this is a real person”.  This moral conception of personhood in African ethics is at the core of our relationships as Africans and should continue to be reflected in the virtual world as they act as a bulwark against bigoted attitudes towards members of other communities.

But how can these African virtues be enforced in the virtual world where people (keyboard warriors) either think that they are untouchable; that the ethos that govern the physical world are inapplicable or resort to use of ghost accounts? Perhaps the solution is for authorities to incorporate afro-digital ethics into education curricula to inculcate, at an early age, African humanism online. Through Afro-digital ethics, pupils and students should be conscientized of the negative impact of spreading hate, misinformation and disinformation online. On account of the reach of the internet, what one shares on online platforms may not only destroy what it means to be African, but also people’s lives. Where the law cannot reach, perhaps, ethics can. Digital ethics teach us what we owe to each other as humans online and what governments owe us as “digital beings”.

About the Author:

Thompson is a European Research Council Fellow on Artificial Intelligence Ethics and law at the University of Southampton where he undertakes research and project-related leadership on autonomous weapon systems (AWS). His PhD thesis (University of Pretoria) was on international law and ethics relevant to the governance of AWS while his LLM thesis (Harvard Law School) was on elements that define human control over AWS. He has special interest in the intersection of artificial intelligence, law and African ethics. Thompson is an executive board member of the Foundation for Responsible Robotics and also serves as an expert member of the International Panel on the Regulation of AWS and the International Committee for Robot Arms Control.

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Re-Imagining post COVID-19 Nigeria through the lens of socio-economic rights guarantees.

Author: Oyeniyi Abe
Research Fellow, Centre for Comparative Law in Africa, Faculty of Law, University of Cape Town, South Africa.

The surge in susceptibility to pandemics is a threat to the existence of not only the global order but a nation state bedeviled by weak health care system and non-existent guarantees of socio-economic rights. The socio-economic impact of the COVID-19 global pandemic, has resulted into a decline in demand for the sole product of Nigeria’s exports – oil and gas, affecting Nigeria in disproportionate ways, and causing serious consequences as a result of systemic deficiencies and lack of quality health care systems. This article considers that this is an opportune time for the government to consider constitutional and realistic guarantees of socio-economic rights, amongst other things, as veritable shields against the threat of a pandemic.

The realization dilemma

The realization of socio-economic rights places fundamental responsibilities on the State to respect, protect and fulfil human rights. The responsibility to fulfil these rights exceed a state’s obligation of non-interference with the enjoyment of these rights. Hence, states are not only obliged to make the services available, but also affordable, accessible and of good quality, if there is to be any meaningful claim to having fulfilled the right. The lack of resources is not an excuse for the state’s inaction. States must show targeted and progressive commitment to ensure the realization of these rights.
Constitutionally, right to health (and other socio-economic rights) are not guaranteed in Nigeria. While some jurisdictions have acknowledged the symbiotic relationship between first and second generational rights, Nigeria is yet to realize this despite the provisions of the International Bill of Rights, and article 16 of the African Charter, which Nigeria is a signatory to. The dilemma in realizing these rights, coupled with weak healthcare system, has created an apathetic stance on the part of the state to focus on strengthening the health sector.

Avoiding right to health quandary in a post-pandemic Nigeria

Since COVID-19 will not be the last epidemic in coming years, I highlight three fundamental considerations for the Nigerian state, to guarantee its preparedness, preventing an outbreak and ability to speedily mitigate its effect should it occur, through rights realization. Approaches such as disease prevention, detection, and provision of permanent isolation centers, alone, without guaranteeing right to healthcare will be illusionary. For example, permanent isolation centers will serve as a constant reminder of the precarious situation of healthcare system in Nigeria.  What is therefore important is Nigeria’s preparedness for a new health order or measures to cushion the effects of a pandemic?

First, Nigeria must devote at least ten percentage of its GDP, towards a resilient healthcare system capable of early detection and managing outbreaks of epidemics. While an healthy nation produces a wealthy nation, good healthcare system acts as a  radar screen to detect outbreaks of diseases and an effective system for executing efficient response. Functional healthcare, which are essential anchors to public health systems, can effectively deal with emerging disease prevention and treatment. This position was well articulated in the Ouagadougou Declaration on Primary Health Care and Health Systems in Africa, which emphasized key areas for prioritizing healthcare. Most important amongst these areas is the strengthening of leadership and governance for healthcare. Sadly, Nigeria’s healthcare system is faced with grim leadership, governance and management challenges, including weak legal protection and enforcement capabilities for healthcare services. Akin to this sad reality is the lack of well-equipped laboratories furnished with adequate staff and supplies. Outbreaks such as Ebola, and COVID-19 continue to expose the precarious position and failure of Nigeria’s public health care, especially with regards to early detection of diseases, surveillance, tracking and tracing. Furthermore, lack of proper health information systems impedes coordinated response time. Information on detection and tracing about COVID-19 must be based on data and science. Thus, where reliable health information systems are not available, the systems may not work effectively to deliver results, as critical health information may be buried under bureaucratic bottlenecks.

Second, the lack of social security safeguards has exposed the vulnerability of millions of Nigerians to unemployment and despair during the pandemic. This form of social safety net ensures that government provides monetary assistance to people with inadequate or no income. While the public health measures taken appears haphazard, the economic response has been less than encouraging, compared to neighbouring countries: Ghana, Kenya, Rwanda, South Africa, that have introduced or adapted social protection programmes for citizens and institutions impacted by the pandemic. Understandably, this form of assistance only guarantees lessening poverty, not sustained pandemic relief. However, not only is the sustained provision of economic stimulus important and necessary in Nigeria where there is high unemployment rate, it is a fundamental human right. Part of social safety nets are programmes aimed at support mechanisms for the welfare of the populace, such as provision of food, shelter and healthcare for the vulnerable members of the society. Simply put, Nigeria must guarantee pecuniary security for its citizens at all times, not only when faced with certain risks, such as the pandemic.
In a country where the gini coefficient, extreme poverty, and astronomical unemployment rates are amongst the highest, it is pertinent that government provide one form of social assistance or another to forestall protests against restrictive orders designed to slow the spread of diseases. During this period, financial guarantees should be given to vulnerable or less advantaged people who are sick, under quarantine or forced to stay at home due to various restrictive orders imposed by the state. This incentive should also extend to workers who have been furloughed or who are taking care of a family member sick as a result of COVID-19. While there is no real, ascertainable monitoring data to ensure loss of work, a social security scheme will activate the unemployment system so that citizens who lose their jobs or face reduced hours as a result of the pandemic can obtain government benefits. This initiative should extend to businesses facing financial hardship due to the pandemic, and create an opportunity to access government financing, either through loans or grants.

Third, the absence of enforceable socio-economic rights impedes the maximum enjoyment of the foregoing guarantees when disease outbreaks occur. The transformations experienced as a result of the pandemic gives us an opportunity to reconstruct a post COVID-19 era that advances human lives. Citizen compliance with stated restrictive guidelines are epileptic. This is expected as poverty and unemployment run rampant in Nigerian cities. Besides, most citizens are eager to get back to work for fear of losing their jobs. Afterall, there is little or no moratorium available to credit holders who may have their jobs impeded by the stay at home orders. The current experience shows that the lasting damage to Nigeria’s economy, mental health and general wellbeing of citizens far outweighs the risks of leaving the economy open. To ensure preparedness for any eventuality, Nigeria must ensure the right to health is justiciable. The government must also periodically revise and modernize its national health policies. Furthermore, these policies must be strengthened to further the objectives of Goals 1, 3 and 10 of the UN Sustainable Development Goals.

Conclusion

The realization of socio-economic rights is a public health issue, not only an individual right issue. The obligation of the Nigerian state can no longer be an aspirational goal but an enforceable right to minimise the effects of future pandemics. A communitarian approach to the right to health, with enforceable justifications will ensure the enjoyment of the highest attainable standard of health, especially in the face of states excuse to limited resources. Furthermore, social security mechanisms must be put in place to cushion the effects of emergencies, such as pandemics. Nigeria must not only guarantee social security safeguards, and the right to health, it must progressively fund the healthcare sector to safeguard a rights fulfilment and sustainably developed nation.

About the Author:

Oyeniyi Abe is a law teacher, author, and policy consultant, with expertise in business and human rights, sustainable development, natural resources law, and environmental law. He has written about the scruffiness and injustices of adaptation and resilience planning as applicable to Nigeria’s Niger-Delta. He has also published extensively on oil and gas law, and the intersections of business, human rights and environment, as well as provided expert advice and opinion on extractive industries law in Africa. He is currently investigating how constitutional and governance organization can create transformative change for the people.

A prolific researcher and speaker, he sits on the Executive Council of the International Law Association, Nigerian Branch and is a member of the Nigerian Association of Law Teachers, International Bar Association, Nigerian Bar Association and Association of Professional Negotiators and Mediators.  He is a Member of the Editorial Board of the Pretoria University Law Press (PULP), University of Pretoria, South Africa. Oyeniyi has studied in Nigeria, Hungary, South Africa, and the United States, where he spent time as a Fulbright Scholar at Loyola University, Chicago.

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The ‘forgotten tribe’: Persons with disabilities in Ethiopia and the State’s response to COVID-19

Author: Dagnachew B. Wakene
Institute for International and Comparative Law (ICLA), Faculty of Law, University of Pretoria

A person with visual impairment residing in Dire Dawa – Ethiopia’s second largest city in the Eastern part of the country – was recently reported to have set himself on fire in broad daylight and in public, apparently attempting to commit suicide. His reason, as later affirmed by his neighbors and acquaintances, was that he was entirely segregated, deserted by society, including friends who, pre-COVID-19, would assist him as his guides, give him a hand to run errands and go out-and-about his daily routines. Now, owing to the COVID-19 era mantra of ‘social distancing’, no one would approach the blind man altogether, hence instilling in him a feeling of despair, abandonment, lack of self-worth, so much so that he no longer saw the need to continue living thus decided to set himself alight right there on the streets of Dire Dawa. He was rushed to the hospital afterwards, but only in vain. The man died a few days later while on treatment.

The foregoing anecdote is not something of an isolated incident. Citizens with disabilities in Ethiopia – the large majority of whom are among the ‘poorest of the poor’ according to various studies – are now also among the most severely impacted by the COVID-19 pandemic. This status quo, albeit no concrete data or even a simple pilot survey has been made available hitherto by both State and non-state actors on the subject, can be presumed to have precipitated from either a disproportionate exposure of persons with disabilities (PWDs) to the virus due to their living conditions and disabilities and/or because of the infinitesimal attention given to the matter in systemic responses to the pandemic, especially by the principal duty-bearer – the Government.

Adding insult to injury, the mainstream media are not only oblivious to report alarming individual stories such as the one shared above which publicly occurred in Dire Dawa, the Ethiopian health-sector authorities conveying daily briefings on status of the pandemic appear to have forgotten their duty to make these updates accessible to everyone without distinction, PWDs included. When the first case of COVID-19 was reported in a live broadcast by the Minister of Health on Friday, 13 March 2020, for example, there was neither a simultaneous sign-language interpretation nor a mere captioning of the briefing as if this is not a matter of life-and-death to PWDs, as every other ‘non-disabled’ citizen alike. Then came the anticipated Declaration of State of Emergency by the Ethiopian Prime Minister on 8 April 2020 in relation to the pandemic wherein the Prime Minister called on the populace to, inter alia, “reach out to one another, the poor and needy”. An explicit word or two about PWDs in this Decree would have been ideal, given the obvious heightened vulnerability of constituencies like PWDs.

Put otherwise, the State has been, to say the least, indifferent to its solemn obligation under the United Nations Convention on the Rights of Persons with Disabilities (CRPD) – a treaty Ethiopia is a State Party to since June 2010 – wherein ensuring the right to life, non-discrimination, accessibility to information and health facilities, full and effective inclusion of PWDs are among the core, binding principles. In February 2020, Ethiopia ratified the Marrakesh Treaty as well – another binding instrument obliging States Parties to make published works accessible to the blind, visually impaired or otherwise print disabled (abbreviated as ‘VIP’s). It took several days of outcry from the country’s disability fraternity for the government to finally hear the clarion call of its duty to make COVID-19 related communication disability-friendly. And yet, a lot still remains uncommunicated to PWDs, but at least prime-time news broadcasts have now begun providing sign-language translations.

Now, that is just about information – a tip of the iceberg. As for the extent to which COVID tests and treatments are reaching PWDs, the direct impact of lockdown and quarantines on disabled compatriots, availability and accessibility of personal protective equipment (PPEs), etc., the gloomy saga replicates Pandora’s box.

Needless to say, resource constraints in Ethiopia, as in most developing nations, is no news and is a prevalent nationwide denominator across numerous sectors. The crux of the matter, nonetheless, is not ingrained in resource allocation but rather in systemic change. The crux is embedded in a century’s old naïveté of our entire system undermining disability as a micro-concern, an object of charity – not more, not less, which’s a false narrative. No one can claim a lifetime immunity from disability as it, at any point in one’s trajectory, can be anybody’s own experience, not least when age catches up someday. Disability is an inherent identity – in and of its own accord – as established in contemporary human rights norms, including the newly adopted African Disability Rights Protocol (ADP). If a central diagnosis of the root causes of exclusion of PWDs is thus in our socio-institutional system, the antidote is right there too in the diagnosis itself – it’s systemic inclusion, i.e.  gradual dismantling of a mindset of Ableism.

In the words of Talila A. Lewis – a renowned disability rights attorney, ‘Ableism’ is defined as :

A system that places value on people’s bodies and minds based on societally constructed ideas of normalcy, intelligence, excellence and productivity… this form of systemic oppression leads to people and society determining who is valuable and worthy based on a person’s appearance and/or their ability to satisfactorily [re]produce, excel and “behave.” You do not have to be disabled to experience ableism. (Emphasis mine).

On 4 November 2016, the Geneva-based monitoring organ of the international disability treaty, known as the CRPD Committee, published its Concluding Observations to the Ethiopian Government’s Report of implementation of the Convention. One of the very first pieces of advice forwarded by the Committee to Ethiopia was this:

“The Committee is further concerned that persons with disabilities and their representative organizations are not systematically consulted in the development of all policies and laws, training and awareness-raising across all sectors…” (para. 7). (Emphases mine).

The almost unanimous opinion of local leaders in the Ethiopian disability sector during this pandemic enunciates the CRPD Committee’s concern expressed four years back which, to date, remains barely addressed ipso facto.

Indeed, the duty to protect PWDs is not and cannot be the government’s alone. Disoriented, uncoordinated and capacity-constrained leadership of disability associations in Ethiopia is an Achilles’ heel that we, persons with disabilities ourselves, must put in order so as to get efforts of State and non-state actors inclusive as well as synchronized. We ought to have have the audacity to clean up our homes first, because fundamental change is that which begins from within. It is evident to an insider in the country’s disability movement that among the few major, well-meaning NGOs claiming to be advocates for the rights of PWDs in Ethiopia, a few giant ones are in fact doing the exact contrary to what they preach – disempowering PWDs by misappropriation and squandering of the already meager resources meant for supporting the disabled.

With that being said, I would conclude this brief article with a reminder of the obvious. COVID-19 is about every citizen, not some. One’s well-being is practically that of others, and vice versa. In the world of coronavirus, we can only survive and thrive together. Each human being excluded, left behind by society will drag an entire nation backwards, at last dearly costing us all. That is what the celebrated African wisdom ‘Ubuntu’ tells as too: We are, because I am. I am, because we are.

About the Author:

Dagnachew B. Wakene is a doctoral candidate at the Institute for International and Comparative Law (ICLA), Faculty of Law, University of Pretoria, with a research focus on violence against persons with disabilities in Africa. He holds an LLB degree from the Addis Ababa University, Ethiopia, and Masters of Philosophy (MPhil) in Rehabilitation and Development Studies from Stellenbosch University, South Africa. He currently serves as Regional Director for the Africa Disability Alliance (ADA).

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Enforcement of lockdown regulations and law enforcement brutality in Nigeria and South Africa

Author: Mary Izobo and Folasade Abiodun
(An earlier version of this article was published by Daily Maverick)

Since January 2020, COVID-19 pandemic, has held the world to ransom and has posed a threat to public health.  It has put a lot of pressure on available medical facilities with a record of more than 9 million persons infected and more than 470 000 deaths globally with numbers set to increase. In order to stop the spread of the coronavirus, several countries are taking measures such as the closure of airports, seaports and land borders, isolation and quarantining of persons, banning of religious, sporting and social gatherings, closure of schools and universities, restaurants, public spaces and complete or partial ‘lockdown’ of some countries. The lockdown of countries entails complete restriction of movement as the virus is transmitted through direct contact with infected persons or surfaces.  Some of these  measures as well as their enforcement , have implications on the right to freedom of movement, the right to freedom of association and the right to freedom of assembly.

Almost all countries in Africa have been affected by COVID-19. Most of the affected African countries have invoked restrictions highlighted above. The police, and in some cases the army, have been called upon to enforce compliance of the lockdown regulations. However, the enforcement of these regulations by law enforcement officials have generated a lot of controversies and public outcry as there have been severe violations of human rights.

As former colonies with long and difficult histories of war, several countries in Africa have had a history of violation of human rights and brutality by law enforcement officials. Two countries of note are Nigeria and South Africa. The arbitrariness and lawlessness sometimes perpetrated by law enforcement officials in these countries is not new nor peculiar to the present pandemic. This can be traced to the culture of militarism in Nigeria and South Africa as both countries have long histories of military regime and apartheid rule respectively. It is safe to say that law enforcement officials are locked in an aggressive mode whenever they are called upon to enforce and or defend national interests at the detriment of the populace they are supposed to protect. History shows that law enforcement officials in these two countries are used to forceful and violent means of enforcing the law and have adopted a muscular approach to alleged violators of the lockdown regulations.

Nigeria is experiencing its longest uninterrupted period of democratic rule since it gained independence in 1960. From 1966 to 1979 and 1983 to 1999, Nigeria was led by the military junta that used the military as a tool to ensure and mandate cooperation from citizens by the use of force. These periods were marred by gross violation of human rights by the military in Nigeria. In the wake of COVID-19 pandemic, Nigeria took measures to contain the spread of the coronavirus by restricting movement in order to contain the spread of the virus. Movement was restricted in several states, including the Federal Capital Territory, Abuja. The National Human Rights Commission of Nigeria (NHRC) received 105 complaints of human rights violations against law enforcement officials and at least 21 people were reported killed by law enforcement officials between 30 March 2020, the commencement of the lockdown and May 2020.  One of such unfortunate incidents, is the gunning down of a man by a law enforcement agent in Delta state,  who was going about a legitimate errand of getting drugs for his pregnant wife as permitted by the lockdown regulations.

South Africa on the other hand, experienced a system of apartheid that upheld institutionalized racial segregation and white supremacy from 1948 to 1994. The police and the military were used as tools by the government to forcefully remove black South Africans from areas designated as “white” to the homelands, terrorised and violated the rights of Black South Africans with impunity. The Apartheid period gave the police and military excessive powers and carte blanche to brutalise and torture citizens. Faced with the threat of COVID-19, President Cyril Ramaphosa declared a state of national disaster and a complete lockdown of the country, enforced by the deployment of the police and the military. The lockdown started on 27 March 2020, and by the end of May 2020, at least 230,000 people had been charged for lockdown-related offences. In addition, there have been 39 complaints of murder, rape, corruption, use of firearms under investigation and at least ten people have been reported killed by law enforcement officials. One notable event concerns Sbusiso Amos, who was followed home by law enforcement officials and shot in the veranda of his house for allegedly being found drinking alcohol at a local tavern during the lockdown, injuring children aged 5 and 6 years in the process.

Law enforcement officials in Nigeria and South Africa are reported to have assaulted, tortured, denigrated, unlawfully arrested, seized and looted properties, extorted and carried out corrupt practises in the enforcement of lockdown regulations. Both countries have been listed and slammed by the United Nations for their heavy-handed enforcement of lockdown regulations. Citizens going about their legitimate businesses without flouting the lockdown regulations are not exempted from the ruthlessness of these law enforcement officials. These law enforcement officials have abused power, deployed disproportionate use of force, and have blatantly undermined national and international laws. It is apparent that after years of military rule in Nigeria and Apartheid in South Africa, violence by law enforcement officials remains an ‘acceptable’ way of treating the populace – a  sad reality of both countries’ bitter, barbaric, and dark past. The enforcement of the lockdown regulations by law enforcement officials shows that the problem of police brutality is rife and a major weakness in policing in Africa.

Undoubtedly, persons who violate lockdown regulations should be punished, but that is not the job of law enforcement officials, beyond the discretion of issuing spot fines (which themselves may be challenged in court). Law enforcement officials have been deployed to maintain peace and order and arrest persons who engage in prohibited activities. While law enforcement officials are allowed to use force in the performance of their duties, they must comply with the national and international standards of necessity and proportionality in the use of force. Breaching the law does not necessitate arbitrary force in return from law enforcement officials.  There is the need to strike a balance between protecting human rights and the public health interest that the restriction regulations seek to protect.

Reasonable and proportionate force may be used in ensuring compliance without having to violate human rights in the process. Additionally, accountability mechanisms should be put in place in the event of an erring state actor who violates human rights. Accountability mechanisms should be unambiguous in the treatment of reports of violence by law enforcement officials. An avenue for reporting abuse is not enough without an assurance that such reports will be transparently and impartially investigated and those found in violation of human rights appropriately punished to serve as a deterrent.

About the Authors

Mary Izobo is a human rights lawyer with experience in the field of human rights, governance, and rule of law for development. She holds a Bachelor of Arts (BA Hons) in French Language from the University of Ibadan, Nigeria; Bachelor of Laws (LLB) from the University of Aberdeen, Scotland, United Kingdom; Barrister at Law (BL) from the Nigerian Law School, Abuja, Nigeria; a Master of Laws (LLM) in Human Rights and Democratisation in Africa from the University of Pretoria, South Africa; and a Master of Laws (LLM) in Rule of Law for Development from Loyola University Chicago, United States of America. She is currently a Doctor of Laws candidate with a focus on governance in Africa at the University of Pretoria, South Africa.

Folasade Abiodun is a lawyer and a researcher within and outside of Nigeria with interest in enhancing ‘development’ through the instrumentality of law. She holds a Master of Laws degree in Rule of law for development. A part of her recommendation in her research work has been adopted to resolving existing challenges.

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The role of international financial institutions in protecting the vulnerable during pandemics: Focus on World Bank in developing economies

Author: Francis Kofi Korankye-Sakyi
Development and International Trade Finance Expert

The importance of law in development discourse as captured under Sustainable Development Goal 16 is a critical factor in establishing and maintaining the rule of law by empowering the most vulnerable persons and groups in society to exercise their fundamental human rights against unfettered legal regimes and political leadership, especially in times of global crises.

The nexus between access to justice and the fostering of a healthy business environment, economic growth, access to public services for the poor, including the curbing of corruption and curtailing the abuse of power is well noted and must reflect on discussions in this period of the COVID-19 pandemic. In the era of crises, institutions emerge as products of deep thinking and serve the long-term interest of international peace and development. For instance, the Bretton Woods institutions comprising the International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (IBRD) were creations after World War II in 1944. In this light, the invitation to these international bodies to rescue developing economies in this unhealthy time of COVID-19 is, therefore, a legitimate expectation. From 1959 to 1991, multinational development banks which constitute part of the International Financial Institutions (IFIs) emerged as a result of the difficulties of the development paradigms of the times and have continued to execute programmes and projects within such expectations. This article takes a look at the role of the World Bank in building the judicial capacities of developing economies during this pandemic and advocates for support for a stronger monitoring and regulatory mechanisms in the application of the funds provided by these institutions to ameliorate the sufferings of the masses for whom these funds are intended to benefit.

During this pandemic, issues that are coming to the fore strongly include access to justice by the vulnerable in the face of new enactments on restrictions and controls, financial management and economic policies, debts cancellations and economic bailouts as well as money laundering. Many developing countries have qualified and accessed bailout packages from internal and external sources, including those from the World Bank. There is a need for a focus on these financial supports and its management by governments to avoid laundering and mismanagement.

The World Bank as an IFI and its allies have mandates which include reconstruction and development; economic development; poverty alleviation; assistance in transition; and support for the balance of payment. The bank has developed a strategy focusing on the ambitious goals of ending extreme poverty and promoting shared prosperity among the citizens of member states.

The scope of law and development in economic development discussions focuses on formal institutions; discussions on how contracts can be enforced; the protection of property rights; and how the judiciary can be strengthened as an independent body and equipped to protect investors and improve economic growth in developing countries. The fact that the integration of the rule of law into development planning has always inured mostly to the benefit of the masses cannot be wrong as it focuses on the impact of international and domestic legal arrangements in countries on economic development and social progress. In the broader context, the rule of law must not just be limited to elements such as the transparency and accountability of the law, the right to a fair trial, upholding human rights and judicial independence but should make space for discussions on how lawyers are involved in advocacy, law reform, drafting of new legislation, legal education and in providing legal assistance and representation to the vulnerable in perverted times.  There is, therefore, every reason for the IFIs’ to reinforce their objective on law and development in such dispensation by directing sponsorship of activities that strengthen institutions with oversight responsibilities on the usage of funds advanced to countries to cushion the plight of their citizens.

 

 

The World Bank has over the years, in line with its mandates, financed projects on law and development across the globe at different times. In the scheme of its affairs, institutions mandated to execute justice are vital to the achievement of its goals, such as to alleviate poverty and promote shared prosperity. The bank’s work on justice focuses on building accessible, efficient and fair justice institutions that are pivotal to the sustainable reduction of poverty and increasing shared prosperity. It is estimated that, over the last two and a half decades, it has worked on about 800 justice and development projects around the globe. In this sense, the bank adopts a multidisciplinary approach when dealing with justice and development, leveraging on a wide network of experts, including judges, lawyers, economists, architects and social scientists, as well as specialists in the management of justice sector human resources, finance, infrastructure, data and information, communication and technology.

The key areas of intervention by the bank in law and development projects are:

1. Support of justice institutions through targeted interventions that improve the specialist functions of the justice system, as well as its management, governance and oversight. This role must inform key decisions on the immediate and ultimate interventions purposed for anchoring developing economies in this critical time. Intervention must not only focus on doling out fiscal support but on safeguarding the channels of utilisation and accountability for its usage. In this respect, the support or developing both the hard and soft dimensions of the law must be pursued by the bank.

2. Legal empowerment, through the protection and proactive outreach to women, the poor and marginalised groups to understand and navigate their legal problems. This article emphasises that the only way to measure the impact of any intervention of the role in (1) above is to assess how it inures to the vulnerable persons and groups of society by holding governments accountable through an efficient legal regime; hence the call for the World Bank’s support to focus on law and development in this crisis. ​

3. Justice in sectors through the strengthening of the regulatory frameworks and institutions of all those sectors critical for the achievement of broader development objectives. During this period attention on the financial sector transactions among states actors and the private sector; and its potential abuses and crime-related matters must not be overlooked. Support for the development and enhancement of the judicial order must be an investment worth considering by the bank. Grave issues of political graft, money laundering and official embezzlement of state resources emerge as critical issues in the broader development discourse.

4. Development of analytics and diagnostics to inform policy, promote dialogue among stakeholders and better target reforms. This is a technical role which seeks attention on nurturing specialisation on aspects of the law and development dynamics to meet specific targets at a time. I contend that the specific matter of the COVID-19 pandemic lends itself to such a focus. To this end, an investment to equip the judiciary to be savvy in the analytical and diagnostic models of the law would be appropriate.

The rule of law is fundamental to all economic activities and economic development and must not be lost or suffer any attack for any reason, especially in the period of this pandemic. Property and contract rights are the fundamental building blocks of market economies and must be secured as a necessity even in this crisis and beyond. One benefit for this intervention is that a well-established legal milieu for enforcing contracts assures business players that contracting parties including the states will comply with their obligations to keep economic activities on a sustainable path.

In conclusion, it is emphasised that a global pandemic such as COVID-19 poses a great risk to investors who will therefore demand absolute security from abuses of governments and private crimes before venturing into any market. Under secured legal environment, such businesses are assured of the benefits of their efforts in terms of time and cost. So far, the World Bank has played a major role and given general support to advance law and development projects in various stakeholder countries. What is recommended is for the bank to follow up with enhancing and equipping legal structures of developing countries accessing any fund from it to ensure that such resources are channelled into the right economic sectors and that countries are deterred from laundering, misdirecting and misuse of funds.

About the Author

Francis Kofi Korankye-Sakyi is a development and International Trade Finance Expert. He holds an LLM in International Trade and Investment Law (University of Pretoria, South Africa), MA in Governance and Sustainable Development, LLB, BEd (University of Cape Coast, Ghana)

sakyiba@gmail.com; Twitter

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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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