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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Is southern Africa entering its own ‘War on Terror’?

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

What the proposed SADC deployment in Mozambique means for the sub-region

Leaders of the Southern African Development Community (SADC) met again on 23 June 2021 in Maputo to discuss the expanding insurgency in northern Mozambique. It’s the first time the Summit has met since a technical assessment to Mozambique recommended a 3000 strong military deployment. In a communique issued following the meeting, the SADC Summit – its highest decision-making body – endorsed the recommendations made by the technical assessment and approved a mandate for the SADC Standby Force Mission to Mozambique.

From domestic grievances to terrorist acts and foreign aggression

Now approaching its fourth year, the conflict in Mozambique has raged across Cabo Delgado, its northern most province neighboring Tanzania. Initially, the Mozambican government seemed to brush off the violence as local criminality. In the last year and a half however, it has consistently re-framed this narrative as one of ‘foreign aggression.’ Both arguments have merit; there is ample research to suggest the drivers of the conflict are placed with a sense of neglect by the government together with high levels of poverty and unemployment. At the same time, the conflict is being internationalised with some evidence of foreign fighters joining the ‘insurgency’, which has since become known as Ansar al-Sunna. Further yet, the group’s pledge of allegiance to the Islamic State (IS) in 2019 and the US designation of ‘ISIS-Mozambique’ as Specially Designated Global Terrorists may be playing into Maputo’s newfound narrative: that the conflict is not rooted in domestic issues but constitutes an act of aggression against Mozambique’s sovereignty.

Mozambique’s position on the conflict was bound to make its way to SADC. Therefore, Mozambique’s narrative is now likely SADC’s narrative; if it has any hopes for cooperating with the country against Ansar al-Sunna. Prior to its more active role, the block seems to in part have been paralysed by two dominant issues. The first was Mozambique’s seeming reluctance to accept regional military support. The second is whether it can at all provide the required support Mozambique needs to counter the growing threat in Cabo Delgado. For its part, SADC has firmly positioned the conflict as a situation of terrorism. Its communiques have consistently referred to attacks and acts of sabotage perpetrated by ‘terrorists’, ‘acts of terrorism’ and more recently, ‘violent extremism.’

Although the more robust details of the deployment are yet to be made known, what is clear is that if SADC is to deploy troops to Cabo Delgado, it will need Mozambique’s cooperation. Consequently, the proposed deployment will most likely be considered anti-terrorism in nature. Even if one accepts this narrative and despite numerous other factors to the conflict, the SADC of today has never before engaged with such a situation. That’s not to say that Southern African states have never dealt with conflict such as terrorism before; South Africa’s apartheid regime having waged its own extensive terrorism tactics against states in the sub-region. It is in part because of the apartheid regime’s existence that SADC’s predecessor, the Southern African Development Coordination Conference was first established. That was however five decades ago, with aims of regional integration, national independence and reducing neighboring states’ dependence on apartheid South Africa.

Historical SADC interventions

Since its establishment, SADC has only ever undertaken three military interventions and two of these occurred some two decades ago. Its intervention in the Democratic Republic of the Congo (DRC) in 1998 was predominantly an effort by Angola, Namibia and Zimbabwe to assist the DRC against rebel forces from Rwanda and Uganda. Since then, three SADC states are involved in the United Nations Stabilisation Mission in the DRC. Its intervention later that year in Lesotho was a result of a coup, in which South Africa and Botswana intervened. The bloc only intervened again in 2017, for a second time in Lesotho following serious political instability. Although this most recent intervention was able to stabilise the situation, its 1998 intervention in Lesotho was considered less than successful.

An expanding and intensifying conflict

Whether it is up to tackle the latest risk to regional peace and security remains uncertain. What is certain however is that the threat to the region is very real and should not be underestimated. The Armed Conflict Location and Event Data Project estimates some 807 attacks have taken place in Cabo Delgado, with more than 2600 deaths; 1300 of those being civilians. The UN High Commissioner for Refugees has in addition recently warned of the ongoing humanitarian crisis in the province, indicating that one million people could soon be displaced by the conflict. That number currently stands at 700 000.

Just as alarming is the fact that in the last year alone, the conflict has significantly intensified. The 27th report of the Analytical Support and Sanctions Monitoring Team of the UN Committee on ISIS, al-Qaeda and its affiliates indicated that Ansar al-Sunna ‘seemed to have acquired sophisticated operational capabilities and pursued a strategic intent to seize more locations and expand operations to other districts and provinces.’ Not to mention that the group has already conducted at least one cross border offensive in Tanzania in addition to a number of attacks against offshore islands in the Quirimbas Archipelago.

The threat posed by the conflict to both Mozambique and the sub-region is therefore undeniable. Any SADC military response, even one branded as ‘counterterrorist’ in nature, will have to take into account the multiple factors behind the conflict. If it does not, military action may not only fail to halt the conflict but exacerbate it. In addition to any efforts that may be directed against Ansar al-Sunna, SADC will also need to ensure a robust capability to assist the local populations most affected by the conflict. Both these aspects will no doubt entail adequate resources and serious funding– something that SADC is not necessarily well equipped with. In addition, the Covid-19 pandemic continues to take its own toll on the region; SADC member states have spent tremendous resources in combatting its effects. South Africa, for example, deployed 73 180 members of its defence force to enforce lockdown regulations to combat the pandemic last year at a cost of R4.59 billion. In addition, the country’s continued fiscal challenges have seen proposed budget cuts to its defence sector.

Threat of retaliatory terrorism

Beyond the required resources and financial commitments, there remains the acute threat that any SADC military involvement in Mozambique may result in or inspire terrorist attacks within contributing member states. In July last year, following discussions between South Africa and Mozambique on possible assistance to combat the conflict, the IS central media office, Al Naba, openly threatened retaliatory attacks on South African territory should it become involved in the conflict. A question for debate is whether South Africa or other SADC members have the required capacity to identify and counter potential terrorist acts on domestic soil. Weakened State institutions especially those of domestic policing authorities and intelligence agencies, widespread illicit arms trades, and porous borders suggest neither South Africa nor other neighboring states currently possess the capabilities to effectively counter domestic threats of terrorism.

Considering the history of SADC’s military interventions combined with the financial and logistical resources required, as well as threats associated with any potential deployment, it comes as no surprise that experts and analysts alike have cautioned against a hasty military response (see here, here and here). Whether or not SADC’s actions may be perceived as its own war on terror, any potential deployment may severely complicate the ongoing crisis and open further avenues of conflict. At the same time, SADC can no longer remain a spectator to a situation which threatens regional peace and security and it has the responsibility to take appropriate and measured actions. Military action, however, should always remain a last resort in any response to conflict situations.

 

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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Uganda’s new Sexual Offences Act fails to address the toxic culture of victim blaming

Author: Elizabeth Kemigisha
FIDA Uganda

On 3 May 2021, Uganda’s Parliament passed the Sexual Offences Act, 2021. This Act – which has been 21 years in the making – can be applauded for increasing protection and redress to survivors of sex-related crimes. The majority of MPs supported the Bill and its core purpose of combating sexual violence and consolidating laws of sexual offences, providing for punishment of perpetrators of sexual offenses, providing for procedural and evidential requirements during trial of sexual offences and other related matters. Many of the MPs agreed that if passed the Bill would fill the gaps that exist in the current laws making the legal framework more adequate and aligned with the international human rights standards that Uganda ascribes to. However, the final version of the Bill which was passed falls short of these international standards for the protection of human rights – and the rights of women in particular – on various fronts, including in its limited definition of rape, its failure to recognise marital rape and the criminalisation of false sexual accusations.

A particular disappointment of the Act is the fact that the clause of the Bill which stated that consent can be withdrawn before or during sexual activities has not been included in the final Act. The MPs who debated the Sexual Offences Bill did not only vote against including the provision for withdrawal of consent, but expressed their arguments with laughter and mockery. Some of the vitriol thrown around the floor of Parliament included: “Consent is unclear, how shall we measure it?”;“Women say no when they mean yes”; “You’ve already invested in a woman and you get to the hotel and she says she cannot handle?” and “Some women change their minds after gifts, there should be a punishment for such women who extort money from men for sex.”

Ugandan Parliamentarians showed themselves unconcerned about the crisis of sexual and gender-based violence (SGBV) and the devastating culture of impunity of perpetrators of sexual crimes in the country. Instead, they had more concern about the odd chance that a person – usually a man – could be falsely accused of rape or that the boundaries of sexual assault can be framed in a way that does not perpetuate power imbalances between men and women.

In 2020 alone, 16 144 sex related crimes were reported to police victimising 15 952 females. These figures show that women and girls are by far the most vulnerable to sexual violence, while not even taking into account the many cases which go unreported. There are also low levels of conviction in cases of sexual crimes, which adds to the reluctance of victims to report the crimes and pursue prosecution. In order to address this situation, Ugandan women’s rights activists have advocated for the strengthening of legal provisions criminalising sexual violence through the adoption of a Sexual Offences Act. A key provision in the 2019 Sexual Offences Bill in this regard was the clause which provided that consent can be withdrawn at any time before or during sexual activity. Such a provision would place a much bigger burden on persons engaging in sex to ensure that their partners have consented and continue to consent to every part of the sexual act. The presumption expressed by the MPs – that a woman who has accepted a dinner invitation or a gift has automatically said yes to sex in whatever way or form – is a grave denial of human dignity and agency of women. The comments also do not take into account the wide-ranging circumstances and reasons why consent may be withdrawn: suppose a woman had agreed to have sex with a particular man, and she had assumed that he will use a condom, but somewhere along the line he expresses that he hates condoms and never uses them. Is this woman now prevented from withdrawing her consent? And even in situations where there is no particular reason for the woman to change her mind about consent, except that that is her decision, the law should protect her right to bodily integrity and self-autonomy at all times.

The statements and decision by the MPs to reject the consent clause enforces the culture of victim blaming that is already pervasive in Uganda. This culture was brought to the fore in 2020 when a senior police officer wrote an article which was published in the New Vision newspaper in which he blamed women for being victims of sexual violence. In this article the senior police officer likens men committing acts of sexual abuse to kite birds eating chickens, as is their natural behavior and refers to men being teased and tortured by women’s choice of attire and “attacked” by women who confront men for staring at them. With this in mind, it is disappointing that the MPs did not take up their mantels as forerunners in transforming harmful societal attitudes and beliefs.

It needs to be made clear that consent can be withdrawn at any point in interactions leading up to, as well as during sexual intercourse. It is only when we begin to appreciate and deliberately legislate on this issue, that more rapes will be reported to the authorities, and more rapists will actually be convicted of this crime. The Sexual Offences Act is a lost opportunity to strongly legislate on consent as a critical part of any sexual activity. To make matters worse, a provision was also included in the Act which criminalises false accusations of crimes of a sexual nature, which is enough to discourage the few brave women who would otherwise have been willing to seek justice. The Act as it stands perpetuates a toxic culture of victim blaming and impunity in Uganda.

About the Author:

Elizabeth is a feminist lawyer with interest and expertise in human rights law, feminist theory and project management. She holds an LLB from Makerere University and has a keen interest in social, economic and political inclusion of young people and women in development of different societies. She currently works with FIDA Uganda, as an advocacy officer and coordinator of the women economic justice programme. Her work focuses on addressing barriers to women’s involvement in economic activities; using feminist tools of analysis to examine and understand systemic injustices and their manifestations and interrogating the intersection of economic exploitation and gender oppression.

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The promises and limitations of law in guaranteeing freedom in Africa: The right to a Revolution

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

One of the main objectives of international and regional law is to maintain peace and security. It has been reasoned that where there is peace and security, humanity stands a better chance to protect individual rights and freedoms. On account of the importance of peace and security at national, regional and international level, States agreed to criminalize those who engage in violent conduct or seek to change governments through the use of violent force. Yet, is it a coincidence that in many dictatorial governments with atrocious human rights records, opposition leaders are often charged of attempting to unconstitutionally change the government of the day? This contribution seeks to discuss the right to a just-revolution and how existing laws promise freedoms but is limited in delivery when it comes to dictatorial governments. In this contribution, a just-revolution is defined as a revolution to overthrow a government of the day whose rule is characterised by gross human rights violations or international crimes such as crimes against humanity and genocide. Do citizens have a right to a just-revolution?

The Lome Declaration against unconstitutional changes of government seek to preserve democratic order and constitutional change of government through free and fair elections. In practice, it never asks whether governments are democratic, and retain power through legitimate means. This insulates authoritarian incumbents against legitimate, popular revolt. In addition, many African countries have followed through and criminalized unconstitutional change of governments. It could be said that the promises of these laws are to maintain peace and security so that individual rights and freedoms can be better protected.

However, there are limitations to this promise of the law. The very nature of the international and regional systems, despite attempting to enforce normative values of peace and security, is to assume that governments in charge of States are always willing to act in the best interest of the people. It is also premised on the assumption that once elected, leaders will continue to execute their mandate in terms of their election promises. It is also to make an assumption that the elections that ushered a particular leader into power was free and fair in the first place.

In this regard, one can observe that international and regional law in its attempt to preserve peace and security at all costs tend to negate that the main source of oppression and suppression of freedoms can be the government of the day. The coldness of the law – so to say, is that it is not only stagnant but to a large degree allows the violence of States to continue.  It allows for the violence of State institutions to continue to oppress, dominate and in extreme cases kill its citizens. In countries like Angola, Togo, Uganda and Kenya with already questionable human rights records, violence against citizens has been justified by the need to curb the ongoing COVID-19 pandemic.

As a result, it is critical to discuss the phenomenon and need for just-revolutions in Africa because in recent years, peaceful and undisputed political transitions on the continent have been very few. It is also important to understand the nature of political violence in Africa and the quest for freedom before conceptualizing just-revolutions as a human right. Conflict and violence that characterize political contestation in Africa have been over-simplified as the nature of African politics, or rather the lack of political systems and institutions which allow for smooth transfer of powers. Nevertheless, perhaps a more nuanced discussion is required here.

The idea that political constitutions are grounded on a social contract amongst the members of society is both a recurring and accepted feature of modern political thought. It is the idea that individuals give up complete autonomy in order to live together within the confines of a State while abiding by certain rules which would protect not only individuals against each other but also individuals from the State and its institutions.

Yet, within the African context the social contract is demarcated not necessarily on this give and take paradigm, but tends to lean more towards the idea of State domination and control over its citizens. Such domination and control is one enforced by post-independence political parties wherein they have re-interpreted the social contract not one based on freedom, justice and the equality of the individual but rather one in which the hierarchical nature of the African State creates limits on individual rights and freedoms.

Violence is increasing on the continent. Africa is the sole continent in which political violence arose relative to 2020. In Ethiopia and Uganda governments have focused more on safeguarding their regimes through violence – thereby forcing people further to the fringes of desperation.  By looking at the construct of the social contract, domination continues to emerge and by doing so is then arguably taken as the foundation upon which the post-colonial African State was built, and as a result the basis under which people must adapt and survive. So one might ask, where are the institutions of the State?

While State ‘institutions’ are present, to a large extent they serve only the purpose of maintaining the domination of political elites. States like Angola, Uganda and Egypt have gone as far as creating democratic façades through the creation of Parallel institutions.  Life in this state of nature continues to be mired by this domination and the constant struggle for survival against the indignities of the State through its institutions and the political party which holds power.

As a result, one of the main reasons for people to support or engage in a just-revolution is the oppression people of the people by the government of the day to an extent that they have nothing to lose. Events in Angola, Egypt and Zimbabwe, Mali, Uganda and others are a testament of the kind of re-awakening of Africa’s people. Their demands for better standards of living seem to highlight a change and a contestation of the command structure which characterizes the so called atypical African State.

The dissatisfaction in those countries and others on the continent has been seen in multiple forms, but perhaps more clearly through the denial of rights, high levels of unemployment, corruption, and the State centralisation. This dissatisfaction also seems to be causing a re-awakening, a statement that oppressive and brutal regimes will no longer be tolerated, that individual rights are not only important, but their promotion and protection must not only be at the center of government policy making but the raison de’etre of the State.

The late Professor Christof Heyns, a former Dean of Law at the University of Pretoria, UN Special Rapporteur on extrajudicial, summary or arbitrary executions and member of the UN Human Rights Committee who coined the struggle approach to human rights argued that one way of looking at human rights is to see it as the ‘flipside of the coin of legitimate resistance’. He added that behind every ‘human rights claim there is the possibility, if there are no reasonable alternatives, of resorting to self-help, and conversely, that for self-help to be legitimate, it must be the only option to protect human rights.’

Indeed, and while it is important to note that protests which can be regarded as self-help have in the past brought down violent and brutal governments such as those in Algeria, Sudan and even the so called butcher of the Balkans, Slobodan Milosevic, it must also be understood that such protests have not necessarily changed the political system of those countries.

The African Charter is revolutionary as it seems to create avenues for self-help. It not only confers rights to individuals, but also attributes duties to such individuals – essentially establishing that individuals have the duty to not only take direct action in safeguarding those rights but creating the conditions for which such rights are respected, safeguarded and within the African context never again abused. Such attribution of rights then implies that in the absence of such rights – or rather in the event in which individual rights are not protected and or guaranteed by the State, individuals have both the duty and responsibility to take action to ensure that such rights are restored and eventually protected.

While it is important to note that violence is certainly not a desired outcome, nor should it ever be, the polar opposite is also true – State violence cannot in any way be tolerated. It is simply unacceptable and hypocritical that international law continues to simply point a disapproving finger at States that use extreme violence against their people while those who are the recipients of such violence are expected to use non-violence resistance as their only form of recourse.

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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African countries need to ensure that the health of refugees is protected during the COVID-19 pandemic

Author: Omotunde Enigbokan
Centre for Human Rights, University of Pretoria

The protection of the right to health for refugees in Africa requires urgent attention, especially in this period when evidence shows that new variants of the coronavirus are spreading. As we celebrate World Refugee Day on 20 June 2021, and against the backdrop of the UNHCR’s theme ‘Together we heal, learn and shine’, it is pertinent that we interrogate how African countries are ensuring that the right to health for refugees, is guaranteed. This is particularly important with the development of COVID-19 vaccines worldwide, and in the onset of the administration of these vaccines in Africa.

Challenges faced by refugees in Africa

Existing research underlines the need for heightening refugees’ access to health facilities.  Research further shows that refugees have been particularly hard hit by the COVID-19 pandemic in Africa. This situation is further compounded by the fact that many refugees live in overpopulated camps or reception centres, where they lack adequate access to health services, clean water and sanitation. This makes them more vulnerable to contracting COVID-19.    

Prior to the pandemic, xenophobia in health facilities and lack of legal status were revealed as the most significant barriers to refugees accessing health care in South Africa. These barriers have been exacerbated by the pandemic, thus heightening the risk of poor health amongst refugees. Refugees, particularly women, are still faced with the challenge of accessing healthcare services such as COVID-19 testing. This has led to the fear of approaching hospitals for testing, and has affected their emotional well-being and mental health.

The President of the Republic of South Africa Cyril Ramaphosa delivered a speech on 1 February 2021 where he assured that the vaccine roll-out plan would include migrants. Prior to the President’s speech, the Minister of Health had in several speeches on the vaccine roll-out, only made reference to South African citizens.

Till date, the Department of Health has failed to provide any direction about vaccination arrangements for non-citizens. This has led to various responses from civil society orgainsations demanding that the Department of Health provides clarifications.

In Kenya and Uganda, studies show that many refugees do not have access to tailored, trustworthy information about COVID-19. This has led to constant exposure to rumours, harmful and incorrect information which can have severe effects on the continued spread of the virus. The impact of the first wave of the pandemic had a devastating effect on the lives of refugees in Uganda. Since the lock down last year March 2020, refugees in Uganda struggle to access health care service which has led to the loss of lives. This situation continues till date.  The complaints of refugees in Uganda in regard to accessing basic information about the vaccine shows a backlog on the part of the government in addressing this.

In Mali, the most distressing sexual and reproductive healthcare challenge women face are in the areas of accessing family planning, pre- and postnatal care, and assistance for victims of gender-based violence (GBV). The COVID-19 pandemic contributes to these challenges faced by women. For example, the fear of contracting COVID-19 has caused a low turnout of women in hospitals.  The pandemic has also caused a decline in accessing healthcare since public health advisors have become limited. Moreover, most funding is targeted at the COVID-19 response measures, and many experts are unable to operate at an optimum as a result of travel bans.

Refugees in the Democratic Republic of Congo still struggle with accessing quality health care services as many of these refugees reside in communities that lack health facilities, or with ill-equipped and under-staffed health centres that face frequent shortage of drugs. In Libya, refugees who are ambushed while crossing the Mediterranean Sea and eventually taken to detention centres are not guaranteed access to health care services. These refugees are supported by humanitarian organisations, but such support is limited since these organisations have a limited presence in Libya.   
The African Charter on Human and Peoples’ Rights sets out in article 16 that ‘every individual shall have the right to enjoy the best attainable state of physical and mental health.’

The African Commission in its 449 Resolution highlights that human and peoples’ rights are central pillars of successful response to COVID-19 and recovery from its socio-political impacts and urges states to ‘observe the principle of non-discrimination in accordance with article 2 of the African Charter by ensuring that protection is extended to refugees.’ The African Commission in its Resolution on the Protection of Refugees, Asylum Seekers and Migrants in the fight against the COVID-19 pandemic in Africa  also ‘condemns all violations of rights to which asylum seekers, refugees and migrants have been directly or indirectly subjected in the context of the management of the COVID-19 pandemic in states parties to the African Charter and its Protocols.’

Since the outbreak of COVID-19, the World Health Organisation and the United Nations have adopted guidelines and checklists regarding the protection of human rights. This includes access to health care during the enforcement of COVID-19 measures and addressing inequality in vaccine-roll outs.

The UN Secretary General made a statement on Twitter where he stated that ‘Vaccine inequity is not only unjust it’s also self-defeating.’ In this regard, governments should incorporate the vaccination of refugees in their national policies and programmes on COVID-19 mass vaccination. This should include every person notwithstanding their citizenship status. Inclusion should go beyond just speaking and preparing for COVID-19 vaccines and should be seen in practice.

Governments can also ensure fairness in the distribution of the vaccine by preventing health care authorities from distributing the personal information of refugees to immigration officers. This will protect the refugees from the risk of deportation, therefore creating trust in the system, encouraging refugees to come out for vaccination.

In order to allay the fear of refugees and encourage them to seek health care services, correct information about the spread of COVID-19 should be circulated and safety measures must be ensured in health facilities.

About the Author:

Omotunde Enigbokan is an LLD Candidate at the Centre for Human Rights University of Pretoria. She also works at the Migration Unit of the Centre for Human Rights.

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Compensation for damage caused by space debris – just pie in the sky?

Jaymion-HendricksAuthor: Jaymion Hendricks
Attorney

Space launches have increased significantly in recent years and despite the global pandemic, the year 2020 (together with 2018) marked one in which the most orbital launches took place (114 launches, 104 of which were successful flights). In the past, space activity was mainly undertaken by a handful of well-resourced countries. With the increasing commercialisation of space, there has been a proliferation of private and public space activity. It follows that heightened space activity results in frequent launches which may increase the risk of accidents on the surface of the earth or to aircraft in flight. The risk, however, remains negligible if space actors adhere to the highest technical, safety and environmental standards. The minimal risk is generally outweighed by the economic value and social benefit of outer space activity (scientific knowledge, weather forecasting, telecommunications and earth observation etc.).

According to the The Economist, as at August 2019, no one is known to have been killed by re-entering space junk into the earth’s atmosphere. However, there are a number of recorded cases in which compensation was paid for injury, death or damage to property due to failed rocket launches. For example, the USA paid Cuba USD$2 million in 1960 when the second stage of the Thor Ablestar rocket plummeted to earth in the south of Cuba and parts of its fuselage landed on and killed a grazing cow, named Rufina.

Who is liable in the event of falling space debris?

International law governs liability for accidents arising from space activity. International treaties such as the Outer Space Treaty (1967) and Liability Convention (1972) outline States’ liability for damage caused by space objects. They hold launching State(s) absolutely liable to pay compensation for damage caused by space objects on the surface of the earth, or to aircraft in flight.

Under international law, private space actors such as SpaceX cannot be held directly liable as the relevant international treaties merely recognise the role of the State which bears international responsibility for national space activity. Domestic space legislation usually requires private space companies to maintain insurance cover which is ordinarily capped at a certain amount or set at the maximum probable loss; fully indemnifying the State in the event of a damages claim (i.e. the state has a right of recourse against the private company should the State have to pay compensation to a claimant).

Claim to be lodged via the diplomatic channels

If a claimant wishes to pursue a claim for damages to property, injury or death, it must approach its government which, in turn, presents the claim on the national’s behalf to the launching State through the diplomatic channels.

It is not necessary for local remedies to have been exhausted before the claim is presented (pursuing a domestic legal case would raise issues of state immunity). A claimant is not precluded from instituting a claim in a court or tribunal of the State whose space debris caused the damage; although the costs would be prohibitive, a number of jurisdictional hurdles would have to be overcome and the claimant would not enjoy the gravitas of having their State pursue the claim on their behalf. A claim cannot be presented via the diplomatic channels if the same claim is being pursued in any other court or tribunal. In the past, most claims have been settled through the diplomatic channels.

space_debris

Amount of compensation

The amount of compensation will be determined in accordance with international law and the principles of equity and justice. Compensation can be claimed for “damage” defined in the relevant treaty as “loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical…”. The States may agree to another form of compensation other than monetary compensation.

Establishment of a Claims Commission

If within one year of notification of the claim no settlement of a claim is arrived at through diplomatic negotiations, the respective parties must establish a Claims Commission at the request of either party. The Claims Commission must be composed of three members: one appointed by the claimant State, one appointed by the launching State and the third member, the chairperson, to be chosen by both parties jointly. In this event, States are likely to approach the Permanent Court of Arbitration, an intergovernmental organisation based in The Hague, Netherlands, which provides a variety of dispute resolution services to States (and private parties) arising out of treaties.

The Claims Commission will decide the merits of the claim for compensation and determine the amount of compensation payable, if any. The decision of the Commission is final and binding if the parties have so agreed; otherwise the Commission shall render a final and recommendatory award, which the parties shall consider in good faith. It shall also deliver a certified copy of its decision or award to the Secretary-General of the United Nations.

In over 60 years of space exploration, there have only been a few third party liability claims arising from space activity and a substantial claim is yet to test the parameters of a space insurance policy. States’ absolute liability for national space activities ensures that they register and supervise national space activity which promotes overall safety and minimises the risk of space debris falling on your ceiling, or cow.

About the Author

Jaymion Hendricks is an admitted attorney (non-practising) and has a keen interest in international space law. He holds an LLM International Air, Space and Telecommunications Law (University of Pretoria). Born and raised on the Cape Flats, he is currently on assignment to The Hague, Kingdom of the Netherlands. He writes in his personal capacity.

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The Role of ICT in Promoting the Rule of Law in Ethiopia: The Impact of Social Media

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

The Role of ICT in Promoting the Rule of Law

Various scholars have defined the phrase from different perspectives, therefore, defining rule of law in a universally agreeable manner is not an easy task. The most known definition is the one provided by Aristotle: Rule of law is an absence of rule of man. But this definition is very general with the need for elaboration. A more elaborated, perhaps understandable, definition of rule of law is by Lord Bingham, essentially said that “…all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts

In rule of law, there is no discrimination based on anything; all should abide by the enacted laws and whoever disobeys it must bear the consequence. In this regard, Trevor Allan, a 20th century political philosopher, stated that the law, always, has to safeguard the governed from the governor by shielding the individual from hostile discrimination by the holders of political power. Furthermore, rule of law is one of the manifestations of good governance. In this regards, the Organization for Economic Cooperation and Development (OECD) has indicated that good governance is characterized by participation, accountability and transparency, rule of law, effectiveness, and equity. So, ensuring rule of law is vital in bringing accountable, transparent, participatory and effective governance system which in turn could bring overall development.    

There are different means to promote rule of law, including the use of ICT. The OECD highlights that ICT plays a significant role in the respect of rule of law so that good governance will be achieved. There are different ways by which ICT plays this role in the respect of rule of law. ICT makes laws easily accessible, flexible, easily applicable and coordinately implementable so that rule of law will be enhanced. In essence, ICT makes legal rule visible to the public through online availability of relevant legislation. Recently, it is easy to access laws enacted by parliaments on the internet, which helps people to understand the consequence of their actions; so that they may be deterred if the acts are unlawful. In addition, ICT also provides citizens access to information about court procedures. In this regard, using ICT, citizens easily understand the jurisdiction, power and function of courts which is as important as knowing substantive rights. Furthermore, it is believed that judicious and well-informed decision-making is dependent on the quality and timeliness of information.  ICT also makes the law flexible by assisting the legislator or executive to gather information about the possible implication of enacted laws in the society. ICT will significantly reduce time and energy in the study of the impacts of enacted laws. ICT also make laws easily applicable. There are laws which need technologies to be implemented; for instance, the tax laws need computerized system to cope with the change in the system of tax related frauds, traffic rules of speed limits also needs new technologies to be effectively implemented.

The other importance of ICT in the respect of rule of law is the fact that it helps various laws to be implemented in coordinated manner. For instance, ICT can help create mega data systems necessary for inventory taking of property for the purpose of assessing property tax.  In addition, ICT can help in identifying crime suspects by designing systems which loads various information of individuals like crime record and other important information.

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Rule of Law in Ethiopia: The Impact of Social Media

Rule of law is central for democratic order and respect for human rights. It is also important to establish law and order. The existence of rule of in a country shows the legitimacy of government by making all the stakeholders subject to laws.  When citizens believe the government is legitimate, they demonstrate it by respecting the laws enacted by its organs. This illustrates that legitimacy of government is a cornerstone of good governance. If the government’s laws are not respected, there would definitely be use of unnecessary force to compel citizen to follow legal orders which will create instability. The instability is, however, the source of ‘bad government’ i.e. violations of citizens basic rights, corruption and crime.    

The role of ICT in general and internet in particular in promoting rule of law in Ethiopia is therefore immense. There are two ways by which Internet will help on this regard. The first is by serving as a medium of communication to enlighten citizens about the laws of the country. In law, there is a well-known principle that ‘ignorance of law is not an excuse’ for a person to escape punishment/liability.  Even though this principle makes a person liable despite not knowing about the law which prohibits the act, for the purpose of good governance knowing about the law is very crucial. This is because it helps citizen to understand the existence of laws and the consequence thereof. Thus, various law blogs, websites, and social media pages can play important roles in awareness creation about legal rules in Ethiopia. In addition, they will also help in informing the public about any changes regarding the existing legal order. Furthermore, ICT can serve as a medium through which a draft bills can be discussed for possible input from the society. In this instance, we can take the recent process on certain legislations after the government’s reform measures as an example. For example, the committee established by the government to facilitate the revision of civil society proclamation and anti-terrorism proclamation received comments from social media, letting people known about the process, conducting public discussion and transmitting it on TV and Radio.     

The other way by which internet plays a positive role in promoting rule of law in Ethiopia is by creating a means on which citizens report illegal activities. With the introduction and growth of internet service, citizens and to a very large extent, civil society representatives like NGOs, human right activists, and various political actors have developed the habit of reporting activities of rule of man. Massive illegal activities which resulted for massive human right violations, like the internal displacement of Gedeo people, the internal displacement of Oromos following the inter-communal conflict between Somalis and Oromos, and more recently, the various human right violation in most part of the county particular in Benishangul-Gumuz, Tigray, Oromia, and Amhara regions have been reported using ICTs. 

However, ICTs, particularly the internet, has also had a negative impact on the promotion of rule of law in Ethiopia. For instance, following the recent political changes, most government institutions have lost their legitimacy. As a result, mass atrocities and internal disturbances have become common in Ethiopia. The negative role played by social media through the dissemination of hate speech about the people targeted is immense in this regard. The emergence of various extreme informal groups in different parts of the country has also exaggerated the situation. In some instances, the groups have been seen taking over the natural duty of government by directly and indirectly forcing government officials towards their goals. Consequently, this led to the conflict between individual rights with group rights which in the meantime resulted in annihilation of rule of law.

Conclusion

ICT plays a great role, both positive and negative, in the respect of rule of law in Ethiopia. By serving as a medium of communication to enlighten citizens about the laws of the country and the changes thereof, by creating a platform through which a draft bills can be discussed for possible input from the society, and by creating a means on which citizens report illegal activities, ICT plays positive role in the promotion of rule of law. However, care must be taking to ensure that the same media are not weaponized to undermine rule of law in Ethiopia.

About the Author

Henok Kebede is a Lecturer in the School of Law at Hawassa University, Ethiopia who teaches Laws, Jurisprudence and IHL. He holds an LLB from Hawassa University and an LLM in Public International Law under the program option of International Criminal and Humanitarian Law from the University of Oslo, Norway.

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