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

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

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

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

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

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

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

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

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

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

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

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

 

About the Author

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

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Towards eradicating female genital mutilation in Nigeria

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

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

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

The prevalence of FGM in Nigeria

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

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

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

Who Performs FGM in Nigeria?

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

The relationship between FGM and ethnicity in Nigeria

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

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

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

The relationship between FGM and age of the victim in Nigeria

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

Measures taken by the Nigerian government towards ending FGM

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

Gaps in law and practice in ending FGM in Nigeria

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

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

Conclusions and recommendations

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

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

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

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

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

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

[2]. Supra note 1.

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

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

About the Author:

Dunia Mekonnen Tegegn is a human rights lawyer who has been working with the American Bar Association’s Center for Human Rights where she coordinated the Center’s work on Ethiopia through close collaboration with Ethiopia’s Democracy and Human Rights CSOs to ensure human rights are prioritized and protected within the criminal justice system.  She has previously worked with Amnesty International USA as an Almami Cyllah Fellow, the UN OHCHR East Africa Regional Office, the United Nations Agency for Gender Equality and Women’s Empowerment and the United Nations Children’s Fund. Dunia also taught law at Haramaya University Law School other universities in Ethiopia. In 2016, she was named as the first Ethiopian/African woman to receive a National Security LLM with distinction from Georgetown University’s Women’s Law and Public Policy Program.  She holds a Bachelor of Laws degree from Bahir dar University, Ethiopia and a Master’s degree in Human Rights from Addis Ababa University. Dunia also co-manages an NGO called EmpowergirlsNow that focuses on raising awareness on FGM in Sub-Saharan Africa.

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

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

Introduction

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

The legal position

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

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

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

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

International law obligations

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

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

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

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

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

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

Way forward

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

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

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

About the Author:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

About the Author:

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

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

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

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

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

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

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

african_conflict

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

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

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

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

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

 

About the Author:

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

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

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

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

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

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

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

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

The SADC deployment: consent-based

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

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

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

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

SADC_rwanda

The Rwandan deployment: request for military assistance

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

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

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

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

Concurrent military deployments as security cooperation agreements under SADC treaty law

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

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

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

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

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

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

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

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

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

 

About the Author:

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

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Reflecting on the South Sudan we want: 10 years on after independence

Author: Joseph Geng Akech
South Sudanese human rights lawyer and LLD candidate, University of Pretoria, South Africa

Summary

New nations struggle to find their route to stability, and they have the opportunity to learn from those which have already travelled the path towards nation-building. The birth of South Sudan was received with joy, far and wide, as it emerged out of decades of sacrifices for principles that every South Sudanese believe in – justice, liberty and prosperity. The  hard-won new State was born with much hope, but it rapidly became a monster of its own making. Consumed by  senseless wars, endemic corruption and underdevelopment – iniquities which fomented popular resistance and drove the need for secession.

With the establishment of their own state, the people of South Sudan soon began to ask themselves: is this the South Sudan we want? This article argues that South Sudan needs to reposition herself within the framework of the founding principles, standards and norms shaped by liberty, justice and prosperity for all. Only then can the new nation begin to address the challenges which this article attempts to highlight.

This article suggests four critical intervention areas if South Sudan is to turn things around and build a strong and secure nation for all its people. They include:

(i) Silencing the guns;

(ii) Reconciling divided communities and ensuring justice and accountability for human rights abuses;

(iii) Establishing equitable mechanisms for wealth sharing; and

(iv) ensuring participatory permanent constitution-making process

1 Introduction

When one speaks to a South Sudanese citizen about the contemporary state of affairs in the country, the likely sentiment one will hear will be, this is not the South Sudan we want or wished for. Heavy hearts abound amongst war veterans and civilians who joined and led the struggle against pernicious northern Arab rulers. The decades of conflict in the Sudan had denied development to the South Sudanese, whose hopes and aspirations were firmly pegged on self-rule in an autonomous region or an independent country where equality in diversity would reside. Various political organisations were formed to pursue this cause, but the formidable political and military force was the Sudan People’s Liberation Movement/Army (SPLM/A).[1] The SPLM/A had assured the peoples of Sudan, peace, justice, equitable development and freedom, theorised in a polemic hypothesis referred to as the New Sudan.[2] It was a dream, and within it, lay the objective of establishing an independent state in the south where justice, equality and prosperity would characterise its governance – symbolising a stark departure from the totalitarian system in the Sudan.

Through a referendum on self-determination, conducted under the Comprehensive Peace Agreement (CPA) – a pact signed between SPLM/A and the Sudan government – the people of Southern Sudan voted in favour of independence by 98.8 per cent leading to the new nation’s flag being raised amongst nations of the world. Having achieved independence, why are the South Sudanese still asking themselves about the South Sudan they want and how they can achieve it? Several scholars have attempted to answer these questions in diagnosing what went wrong and what can be done to overcome the challenges besieging the young nation.[3] This article approaches these questions from a constitution- building point of view. It attempts to explain current conundrums within the framework of the toxic power struggle and societal militarisation that has provided fertile ground for the pervasive ethnic violence which is tearing apart the nation. The article discusses ‘the dream nation’ in terms of the standards, norms and aspirations articulated by the SPLM/A and which the Transitional Constitution, 2011 absorbed (II). It argues that exemplary principles, standards, norms underpin the South Sudan we want and that to get there, the nation has to overcome multiple transitional stage challenges and barriers to building a democratic society (III).

2 The dream nation: The South Sudan we want

Friday 9 July 2021 marks the 10th independence anniversary of the world’s newest country’s independence. As noted earlier, the positivity of independence turned into despair with self-inflicted conflicts of 2013 and 2016 respectively. These conflicts threatened or even frustrated the South Sudan most South Sudanese dreamt for. The idea inherent in this article is not to survey popular views about (dis)satisfaction with the state of affairs, rather, it is to critically examine South Sudan’s prevailing challenges on a range of priority areas which a new nation emerging out of conflict inevitably will travel. Hence, the mantra the South Sudan we want becomes a captivating standpoint from where to approach such analysis. It is an open secret that the popular sentiment amongst the South Sudanese is that the nation they fought for should conceptually differ from the one they left behind – the Khartoum regime. Whether this requires walking away from the shadows of our former oppressor, or imitating their tactics and ideas, is a matter for another day. But, for the purposes of this article, the starting point, imperfect as it may be, should be the ideas popularised by the SPLM/A during the protracted armed struggle, and which the Transitional Constitution adopted. This article does the same as it was these ideas that defined the South Sudan we want and galvanised the Southern Sudanese to rally behind the SPLM/A during the war. These notions were also later incorporated into the highest law of the land – the Transitional Constitution.[4] The South Sudan we want is therefore one built on liberty, justice and prosperity which is a strong constitutional democracy, adhering to the rule of law and which respects and supports human rights to thrive.

2.1 Liberty, justice and prosperity

In founding the new nation, the drafters affirmed their commitment  to ‘lay the foundation for a united, peaceful and prosperous society based on the principles of justice, equality, respect for human rights and the rule of law.’[5] To ensure this is imprinted in every citizen’s heart, the Coat of Arms encapsulates liberty, justice and prosperity’ as a reminder that South Sudan is built on such values. These values therefore symbolise the South Sudan we want. It is imperative, therefore, to adopt multifaceted interventions, based on the highest principles, standards and norms, to fulfil people’s aspirations and to build the nation we want.

2.2 Constitutional democracy, rule of law and respect for human rights

South Sudan ought to be a nation in which democracy, rule of law and respect for human rights prevail. Of course, a country cannot achieve constitutional rule if it departs from the founding principles, standards and norms, in this case, liberty, justice and prosperity, as they are preconditions upon which a democratic and prosperous society can emerge.[6] If these values are adopted as defining the South Sudan we want, just as the drafters of the Transitional Constitution did, what then can a nation engulfed in self-harm, endemic corruption and insecurity, do, to overcome these hurdles and realise the envisaged State? The next section analyses the myriad of challenges South Sudan must faces to claim her place amongst democratic nations.

3 Achieving the South Sudan we want: Overcoming multiple transitions

The new nation was born with the unprecedented burden of cumulative expectations and dreams of all the South Sudanese for a prosperous country. There was a desire to show that the new State would be  different in every way from that which they seceded from. Yet, multiple transitions – lack of unity amongst South Sudanese, external influence from frontline states and other entities and serious underdevelopment continue to hinder and seriously challenge the building of a new State, resulting over time in reducing the dream to dust, resulting in despair. As Hilde Johnson highlights, the ‘sceptics were proven right’, as the new darling of the world soon turned into a burden and nightmare – in desperate perpetual need of humanitarian assistance to keep its anguishing population alive.[7] To escape this situation and achieve the South Sudan we want, this article proposes four critical interventions which can reverse the nation’s underdevelopment, poverty and insecurity, and can usher in prosperity, justice and liberty.

3.1 Silencing the guns

Much of South Sudan’s suffering is self-inflicted and done with using guns. No country can possibly develop whilst in a state of constant war and conflict with civilians and paramilitary personnel being able to use guns  outside the purview of the State. This is not only a dangerous situation, it completely goes against the basic principles, standards and norms of equality and security required to galvanise a population into a movement for nation building – something which cannot be done in a culture of fear and intimidation. Recognising the importance of security in nation building, the African Union championed a policy framework urging all member States to silence their guns by the year 2020. In its roadmap, the AU outlines practical actions to silence the guns which include calls to:[8]

  • address root causes of conflict including economic and social disparities;
  • end impunity by strengthening national accountability mechanisms;
  • eradicate and address recurrent and emerging sources of conflict, including armed rebellions; and
  • promote peacebuilding and social co-existence.

These practical actions suggested by the AU are relevant for  South Sudan to move towards silencing their guns. Addressing root causes will support the people-to-people reconciliation initiatives. Reconciliation must also include reparation, and this will build trust and confidence in people to engage with national accountability mechanisms. The state must provide security in exchange for civilians to give up their arms, and security deployments to hotspots should prevent recurring attacks and counterattacks. To be trusted by the local people, the State security systems and personnel will need an overhaul – better trained on rules governing the use of force and  equipped with requisite military and security equipment, but more importantly, they should have a full understanding of and commit to the  values upon which the nation is founded.

3.2 Reconciling divided communities: Justice and accountability

South Sudan must embark on a well-managed programme of reconciliation and justice. A nation divided cannot stand strong. It will remain weak if it does not acknowledge and address the deep divisions, mistrust and suspicions that persist among people. The attempt to establish the Revitalised Government of National Unity (RGNoU) is insufficient to reconcile these differences.  What is required is a careful and well-thought-out implementation of the Commission for Truth, Reconciliation and Healing (CTRH), and the setting up of the Hybrid Court for South Sudan (HCSS) & the Compensation and Reparation Authority (CRA).[9] Even as this opinion piece is being written, scores of human rights abuses are reportedly being committed by armed civilians engaged in endless inter-communal attacks.[10]

Energy  now invested in engineering killings, cattle raids and attacks on people, can be better utilised to build the economy, strengthen security, rebuild the health, education and agriculture sectors. A prosperous society cannot be achieved if ethnic groups opposed to each other constantly engage in destructive activities, rather than resolve disputes through peaceful means. Helping communities to reconcile, will  require working with political elites to accept non-violent, democratic and pluralistic politics and norms. It would require that their politics and supporters are not drawn from ethnic divides.  The reconciliation envisaged here, must incorporate justice and not only look to forgiveness. Mere pardons and amnesties only could frustrate the principles and  aims of reconciliation and accountability, and only result in more frustration and anger, leading to an escalation in conflict.[11] Once communities have reconciled and some form of justice and rule of law prevails, there needs to be equitable access to national wealth.

3.3 Establishing equitable mechanisms for wealth sharing

John Garang, the first leader of the SPLM/A said that natural wealth should be used as an engine for economic growth and development, especially in the South.[12] Scholars in nation building agree with John Garang when they say ‘equitable access to natural wealth and equitable wealth sharing is paramount to rebuilding a nation and fostering patriotism and a sense of belonging’.[13] It may be useful to understand and utilise the Game Theory to shape future strategies – self-interest can be harnessed to address common interest too – one ethnic groups needs can serve every other groups needs too – for example, address a territorial dispute for one ethnic group, and it will result in them trusting the government more and supporting peace building – something which addresses the needs of all other groups too.

Acknowledging the inequalities created by the prolonged civil war in the South, the drafters of our Transitional Constitution were ‘conscious of the need to manage our natural resources sustainably and efficiently for the benefit of the present and future generations and to eradicate poverty and attain […] development goals.’[14] This is further reinforced, albeit non-binding, by the same Constitution which directs that ‘public resources should be focused on improving lives by building roads, schools, airports, community institutions, hospitals, providing clean water, food security, electric power and telecommunication services to every part of the country[15] and that the nation’s economic objectives should  be ‘eradication of poverty, attainment of development goals, guaranteeing the equitable distribution of wealth, redressing imbalances of income and achieving a decent standard of life for the people of South Sudan.’[16]

3.4 Building an inclusive constitutional framework

The raising of the South Sudanese flag did not set the nation on the path  to constitutional democracy. The Transitional Constitution, 2011, is just a placeholder for a permanent social contract which must be inclusive of all ethnic groups, stakeholders and other interest groups. An inclusive constitution is therefore the hallmark  of a stable democracy. As my ongoing doctoral research on constitution building in South Sudan reveals, three fundamental aspects of constitution building are critical for a new nation:

(i) ensuring that constitution building is inclusive and participatory so that every citizen feels part of the whole;

(ii) ensuring that any constitutional borrowing is contextualised to be relevant to domestic context, needs and aspirations and

(iii) ensuring that those entrusted to lead the technical process of constitution building remain true to ideals shared and cherished by all South Sudanese.[17]

These aspects are the beacons which will guide nation building.

4 Concluding remarks

This article explores a very difficult topic and draws on the widespread aspirations and perceptions of the diverse people of South Sudan. The article shows how South Sudan can only overcome its myriad of challenges by going back to the foundational principles, norms and values on which the nation was founded: justice, liberty and prosperity. The country needs to build synergies to address the  complex multiple challenges stemming from underdevelopment, poverty, insecurity and conflict. Although this article does not purport to be a blueprint for unlocking the deadlock the country is in, it hopes to provoke our collective memory about the founding principles that this nation was built on – a nation that has the potential to be a great one.

[1]    See generally, M D’Agoôt ‘Why did Sudan Lose a small war in Southern Sudan?’ (2019) 30 Small Wars & Insurgencies

[2]    See generally, M Delaney ‘John Garang and Sudanism: A peculiar and resilient nationalist ideology’ Forum Journal of History

[3]    H Johnson South Sudan: The untold story from independence to civil war (2016) I.B. Tauris

[4]    See Preamble to the Transitional Constitution of the Republic of South Sudan, 2011 (as amended).

[5]    As above.

[6]    See A An Na’im ‘The national question, secession and constitutionalism: The mediation of competing claims to self-determination in (eds) D Greenberg et al Constitutionalism and democracy: transitions in the contemporary world (1993) Oxford University Press

[7]    The United Nations estimates 7.5 million people in need. See UNOCHA ‘Humanitarian response plan for South Sudan’ (2020) 4 <https://www.humanitarianresponse.info/sites/www.humanitarianresponse.info/files/documents/files/20191210_hrp_2020_south_sudan_final.pdf > (accessed 1 July 2021)

[8]    African Union ‘Master roadmap of practical steps to silence the guns in Africa by year 2020’ (2016) 27 <https://au.int/sites/default/files/documents/38304-doc-1_au_roadmap_silencing_guns_2020_pdf_en.pdf&gt; (accessed 1 July 2021).

[9]    See J Akech ‘Rethinking transitional justice in South Sudan: Critical perspectives on justice and reconciliation’ (2020) International Journal of Transitional Justice

[10] Human Rights Watch ‘South Sudan needs to address cycles of intercommunal Killings: Address underlying grievances, protect civilians, ensure rule of law’ (2020) <https://www.hrw.org/news/2020/03/20/south-sudan-needs-address-cycles-intercommunal-killings&gt; (accessed 1 July 2021).

[11] Akech (n 8 above) 1.

[12] L Deng The power of creative reasoning: The ideas and vision of John Garang (2013)160 Iuniverse, Inc, Bloomington

[13] A Ghani & C Lockhart Fixing failed states: A framework for rebuilding a fractured world (2008) Oxford University Press.

[14] Preamble to the Constitution.

[15] Transitional Constitution (n 4 above) art. 35(2).

[16] As above, art. 37(1).

[17] This is part of my doctoral thesis on ‘foreign influence and the legitimacy of constitution building in South Sudan, University of Pretoria, Republic of South Africa.

About the Author:

Joseph Geng Akech is a South Sudanese human rights lawyer and doctoral researcher in constitution building. He is an alumnus of the LLM in Human Rights and Democratisation at the Centre for Human Rights, University of Pretoria.

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How would international human rights law deal with a potentially automized future?

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

Introduction

In a scene from Jonathan Mostow’s Terminator 3: Rise of the Machines, the ‘Terminator’ played by Arnold Schwarzenegger says, ‘Cybernet has become self-aware’. While the context of such words are within a scripted science fiction world, they nevertheless seem to be echoes of a futures we seem to be writing – whether willingly or not.

While Mostow’s ‘killer robots’ or ‘terminators’ –  are essentially autonomous weapons systems sent through time to kill a person seems farfetched and squarely within the realm of science fiction, perhaps it is not life imitating art, but art imitating life. The United States Future Combat System Project which aimed to manufacture a ‘robot army’ seems to have hinted that the future might not be as fictitious as we think.

In a report submitted to the Human Rights Council Christof Heyns advised that, lethal autonomous robotics are weapons that once activated, can select and engage targets without further human intervention’. The question in this regard is then, to what extent would these systems be programmed to comply with international human rights and humanitarian law?

The questions bring to the fold new questions as they relate to the legal and moral content of law. In addition, such weapons do not only turn warfare on its head but also create the frameworks for which the rules, procedures and controls which manage warfare are rendered mute.

The focus of this contribution is to interrogate not necessarily the battle field where these weapons are envisioned to be, but more specifically the ease in which these systems could be deployed in civilian populations – used for law enforcement and control, and in particular within states that disregard human rights and use force to curb dissent. In addition, how would these systems function together with already intrusive mass surveillance programs which raise eye-brows within the context of human rights – and more importantly, and perhaps diving back into the realm of science fiction, what happen if such systems become self-aware?

What would a ‘self-aware’ autonomous weapons systems look like, if such weapons are those which when activated can select and engage targets at will – would such be a form of self-awareness? Would advances in machine learning and artificial intelligence develop their ability to become self-aware? While these questions and their reality seem to be improbable, they nevertheless touch upon the human need and ability to build and explore, and for good or bad at the very core of human curiosity – a curiosity to push the boundaries of both science and technology.

War by other means

With the advent of new technologies and weapons systems we seem to be entering a new phase of human conflict, making mass surveillance, artificial intelligence and autonomous weapons systems game-changers in the war against authoritarianism, state violence and repression. Despite the ethical application of their use in the traditional battlefield they bring to civilian and everyday life new questions with new and potential violations to the human person.

The use of force by governments against their citizens has been well documented around the world. From Angola to the United States of America and to the Russia Federation, conventional warfare, or perhaps repression is evolving – and so are the tools of which such violence is conducted. The question then becomes, what happens if and when autonomous weapons systems are used for law enforcement? What happens if, and based on their artificial intelligence, these machines act/react and ‘autonomously’ kills civilians without necessarily any interface from a human being?

Indeed, and while transformations in technology are transforming human society into one of robots and machines and while such changes might seem to be exciting and advanced and with it propelling us into a future of ease and wonder – they are also dangerous. As human intelligence is marked by intrinsic bias in decision-making, such characteristics can also be found in AI products that work with human created intelligence. For example AI algorithms and face recognition systems have to a large extent failed to ensure basic equality standards by showing discriminatory tendencies towards people of African descent.

The development of mass surveillance systems – again developed under the pretext of protecting individuals (either true or false) has created a situation of ‘severe tension and incompatibility between the right to privacy and the extensive data pooling on which the digital economy is based’.  The use of social media like Facebook, Instagram and other platforms has over the past decades allowed governments to collect data on individuals about almost every aspect of their lives. This is especially so as governments continue to invest in more ‘sophisticated technology to monitor their citizens behavior on social media’.

In addition, mass surveillance aspects such as targeted surveillance, bugging and other methods are being used and justified as the only way to combat the highly complex and intricate phenomena of terrorism while also playing a crucial role in crime prevention, the marriage of mass surveillance autonomous weapon’s systems and algorithms with the power to suggest whether an F-22 should use a hell fire missile or a raptor drone to destroy a target has direct implications to those directly in the area of incursion and when we think of adding aspects of AI such as machine learning into these systems what would the results be? Heyns has clearly and directly pondered such circumstance in stating that such a reality raises the possibility that ‘computers will determine whether people will live or die’.

While speaking of autonomous weapon’s, mass surveillance and algorithms with the power to suggest courses of action might be disjoined, and while the use of such technologies might, and at least for now be thought of only being deployed in battlefields far away, their use and deployment by states internally to quell dissent might not seem so farfetched and may in fact constitute a clear and present danger – not only for the average individual, but also directly challenge the regime of international protection of human rights.

Such mass surveillance, while more likely to have happened under intelligence agencies like the CIA, MI6 and others,  intelligence gathering is now being carried out by states big and small, ‘democratic’ and ‘authoritarian’. The combination of these technologies then poses a question to the future of personal autonomy and liberty and more importantly – security, and the extent to which governments are really in control and how in an attempt for total control and vigilance we might lose it completely.

In addition, and while autonomous weapons systems seem to be at the point where researchers and rights groups are focusing their attention on, another important aspect to ponder on is perhaps the algorithm of these weapons and how they would function within such autonomous weapons systems. Would these autonomous systems be programmed to follow a particular reasoning and act accordingly based on such basis? Could these weapons or algorithms be programmed on biased information so as to target particular groups like members of the LGBTI community, or so called ‘undesirables’ that an authoritarian or non-democratic government wishes to dispose of based on information that we all so willingly and freely provide on social media and data gathered through mass surveillance systems?

In conclusion, and perhaps something which might also be part of a science fiction future which we might bring to fruition, is the real possible question of these weapons systems becoming self-aware, how would an autonomous weapon system equipped with the capabilities to carry out mass surveillance on a population with the algorithm or artificial intelligence to learn and adapt become self-aware? How would law respond to these questions, how would humanity respond and what would it mean to the social and moral fabric of our lives?

About the Author:

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

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Addis Ababa’s City Sovereignty threatened by the New Draft Criminal Procedure and Evidence Law of Ethiopia

Author: Marew Abebe
Lecturer of Federalism at Debark University, Debark, Ethiopia

This is a commentary on Article 25(3) of the Draft Criminal Procedure and Evidence Law (the Draft Law), which the Attorney General of the Federal Democratic Republic of Ethiopia distributed to stakeholders to solicit feedback. Article 25(3) of the Draft Law empowers courts of the state of Oromia (one of the ten regional states of Ethiopia) to exercise jurisdiction over some criminal matters that arise in one of the two self-administered city governments of Ethiopia, the capital city of the country Addis Ababa. This commentary explores whether Article 25(3) of the Draft Law is (in)compatible with the Ethiopian Federal Constitution, and concludes that granting jurisdiction to the courts of the state of Oromia over some cases arising in Addis Ababa is unconstitutional. The provision, if not omitted from the final version of the Draft Law, will pose great challenges to the Ethiopian federation.

Addis Ababa’s (mis)treatment under the Constitution and the Political Ecology

While the Ethiopian federal arrangement (for self-administered regional states) assumes homogeneous identity and is solely based on ethnicity, such design fails when it comes to heterogeneously inhabited metropolitan cities like Addis Ababa and Dire Dawa.

The Constitution has provisions concerning Addis Ababa City Administration. It is not a partner of the federation and does not enjoy the autonomous status as a regional state. However, it is common to regard it as a region for some legal purposes. It is administered by a semi-autonomous authority accountable to the federal government in terms of Article 49(2) of FDRE Constitution. Thus, Addis Ababa is a federal district without full autonomy accorded to regions. Self-governing cities (Addis Ababa and Dire Dawa) in Ethiopian federal arrangement are accountable to the federal government, which raises the question whether the federal government has the power to override the decisions of city government consistent with the constitutional provisions. Dire Dawa City Council Charter, Federal Gestate, Proc. No. 416/2004.

The Oromia Regional State, which claims to have a mono-ethnic group, encircles Addis Ababa City and resists the city’s expansion to protect farmer’s rights. Of course, the Oromia Regional State even claims ownership of the capital. This situation is complicated partly due to the ambiguous statement in Article 49 of the Ethiopian Constitution regarding the relationship between Addis Ababa and the surrounding Oromia Regional State. The provision reads as follows: “the special interest of the State of Oromia in Addis Ababa, regarding the provision of social services or the utilization of natural resources and other similar matters, as well as joint administrative matters arising from the location of Addis Ababa within the State of Oromia, shall be respected”. No detailed separate law has been promulgated to govern the relationship unequivocally. As a result, Addis Ababa has faced challenges, including accessing landfills, water supply, and securing plots of land for various projects and construction of condominium houses for its growing population.

In the Ethiopian federal arrangement, Addis Ababa City unlike other self-administered entities which is ethnically neutral – does not have any representative in the Upper House (known as the House of the Federation) as the House is comprised of only representatives from the regional states. Although Addis Ababa is one of the self-administering regions of the federation (Article 49), the Ethiopian constitution does not allow the city to have any seat at the very institution that has the power to interpret the constitution (Article 62(1)).

Furthermore, in the last three decades, the mayor of Addis Ababa City has never been elected by the residents, but has been appointed by the federal government from other regional governments, mostly from the surrounding Oromia Regional State.

The new Draft Law contradicts Ethiopia’s Federal Architecture and Addis Ababa’s City Government Sovereignty

The constitution in Article 47(4) maintains that the “member states of the Ethiopian federation shall have equal rights and powers”. According to article 50(8) of the Ethiopian constitution, separate powers are assigned to each level of government (federal and regional/self-administered cities), with a duty for each level to respect the powers vested on the other level of government.

While the above constitutional provisions unequivocally state the Ethiopian federal arrangement in general and Addis Ababa’s autonomous status in the Ethiopian federation in particular, a debatable legal provision under the Draft Law has been tabled for Parliament’s approval. According to Article 25(1)(g) of Draft Law, “offences committed in cities or places accountable to the federal government” are within the jurisdiction of federal courts. But in relation to Addis Ababa, this provision is subject to an exception that bestows criminal jurisdiction upon the Oromia State courts.

Authorizing Oromia State Courts to exercise jurisdiction over crimes committed in Addis Ababa contradicts the principle of non-interference between the members of the federation. It is also surprising that the Draft Law singled out only Addis Ababa, while Dire Dawa (another self-administered city) is also accountable to the federal government.

The new Draft Law contradicts the Federal Constitution

Even though article 50 of the constitution allows the Federal government to delegate its powers to the states, the current proposed arrangement –establishing Oromia Court in Addis Ababa– is not equivalent to the federal government delegating its prosecuting powers to the Oromia Regional State.  The Constitution also prohibits any interventions by regional governments in other self-governing entities. Still, according to Wondwossen (2021) the constitution delegates the federal judicial power to States (Article 78 cum 80) until and unless federal courts are established in the States.

Here are the reasons why the Draft Law is not constitutionally valid:

  • First, the Federal government’s right to delegate its powers to the States cannot be used as a tool to promote the interest of a single regional State over other self-administered entities.
  • Second, there are also unanswered questions that the Draft Law does not address. For example, are the federal and Addis Ababa courts not neutral and efficient enough to handle cases related to Oromia’s regional interest in the capital in the eyes of the Draft Law? Which entity has jurisdiction if an individual commits a crime both on Oromia and non-Oromia institutions simultaneously in Addis Ababa? Why does the Draft Law single Addis Ababa out from other territories which are also accountable to the federal government (for example, why is the Draft Law not applicable to Dire Dawa City too since Oromia regional State has properties there as well?).

What if the Draft Law is approved?

If the Draft Law, including Article 25(3), is passed, it will be forwarded to the House of Federation, the Upper House of Ethiopia empowered to decide the constitutionality of any law, for judicial review. But the House of Federation, the home of the representatives of each ethnic group of the country who live in the ten regional states but not of those who live in Addis Ababa and Dire Dawa, may not be the right institution to decide the question of constitutionality. In fact, in the absence of any single representative from Addis Ababa and with a large proportion of members who represent the Oromo ethnic group, the decision will hardly be neutral.

Solutions

The Draft Law that empowers Oromia Regional State’s intervention in Addis Ababa is unconstitutional for the reasons discussed above. As per the constitution (Article 9), any law which contravenes it shall be of no effect. As a result, the unconstitutional provision of the Draft Law should be omitted. Article 9 of the constitution imposes a duty on officials to ensure observance of the constitution, and so the lawmakers in the House of Peoples’ Representatives should reject Article 25(3) of the Draft Law.

About the Author:

Marew Abebe teaches Federalism at Debark University, Debark, Ethiopia. He holds MA (2013) in Federalism studies and BA (2010) in Journalism and Communications Addis Ababa University. Between October 2016 to July 2019 he taught the federalism and minority rights course at Oda Bultum University. His research interest includes federalism, minority rights and media studies.

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Making the right to vote of IDPs a reality: Lessons from Ethiopia

Authors: Enguday Meskele Ashine & Omotunde Enigbokan

Ethiopia held its national election on 21 June 2021. Internally displaced persons (IDPs) participated in the national election by casting their votes at their place of displacement for their respective constituency of origin through absentee ballot procedure. In certain areas, the government of Ethiopia took special measures such as providing logistic and security safeguard in order to enable IDPs to cast their vote.

The Ethiopian Human Rights Commission (EHRC) played a pivotal role in ensuring that IDPs participated in the national election, through engaging civic societies that advocated for the voting rights of IDPs.  Furthermore, the EHRC prepared the Human Rights Agenda for Election 2021. This Agenda ‘calls upon political parties to address human rights protection of vulnerable groups including IDPs in their manifesto.’ In addition, the Commission advocated for electoral participation of IDPs by disseminating explanatory materials on IDPs and election, by conducting election monitoring focusing on IDPs’ participation in the national election and by conducting stakeholder’s discussions highlighting the significance of IDPs’ inclusion in the national election.’

Ethiopia has made a major stride in recognising electoral rights of IDPs’. This can be seen in the Electoral Proclamation No. 1162/2019 which provides for IDPs’ enfranchisement in election. The National Election Board of Ethiopia (NEBE) also adopted a directive No.13/2021, on the establishment of special polling station for IDPs. This directive guarantees absentee ballot arrangement for the purpose of enfranchising IDPs living far from their constituencies. The directive as well captures IDPs’ concern by circumventing onerous residency and documentation requirements. Knowing fully well that Ethiopia has encountered unprecedented rise of internal displacement while preparing for national elections, this is a very encouraging development for Ethiopia.

Photo by Enguday Meskele

What it means for Ethiopia

By adopting enabling legislation, and ensuring IDPs’ participation in June 2021 election, Ethiopia has lived up to its commitment under international and regional human rights standards including the African Convention for the Protection and Assistance of Internally Displaced Persons (Kampala Convention). Article 9(2)(L) of the Kampala Convention expressly ‘calls upon member states to take necessary measures to ensure that internally displaced persons who are citizens in their country of nationality can enjoy their civic and political rights, particularly public participation, the right to vote and to be elected to public office.’ Though the government of Ethiopia has taken a number of measures, significant number of IDPs remain disenfranchised in some areas due to political and logistical barriers.

What it means for the rest of Africa

African states still preventing IDP’s from enjoying their civic and political rights should follow the example of Ethiopia, a fellow African state, and ensure that necessary measures are taken to enable internally displaced persons, who are citizens in their country of nationality, to enjoy their civil and political rights, particularly public participation, the right to vote and to be elected to public office.

Arising from this laudable implementation of the rights of IDP’s the authors anticipate and looks forward to the following: 

  • The government of Ethiopia should ensure consistency in implementation by ensuring that IDP’s are allowed to vote in the next national election to be held in September 2021 in regions where the June election was postponed due to security reasons. In this regard, concrete measures must be taken to ensure participation of IDPs.
  • Address the political and logistical barriers causing the disenfranchisement of IDPs.

About the Authors:

Enguday Meskele Ashine is Senior Adviser for Refugees, IDPs and Migrants Department of the Ethiopian Human Rights Commission

Omotunde Enigbokan is Project Officer: Migration Unit & Research Assistant, Centre for Human Rights, University of Pretoria

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