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

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

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

The realization dilemma

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

Avoiding right to health quandary in a post-pandemic Nigeria

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

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

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

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

Conclusion

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

About the Author:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

About the Author:

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

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

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

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

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

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

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

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

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

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

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

About the Authors

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

About the Author

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

sakyiba@gmail.com; Twitter

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Cameroon at cross roads

Author: Dunia Tegegn
Human rights lawyer, Ethiopia

The war in Cameroon

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

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

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

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

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

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

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

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

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

Calls to action

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

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

2. Respect for international humanitarian and human rights law principles

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

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

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

3. Humanitarian access

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

About the Author:

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

 

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Seat versus venue of arbitration: settling the conflict

Author: Damilola Raji
Kenna Partners Associate

Introduction

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

Meaning of ‘seat’ and ‘venue’ in arbitration

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

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

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

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

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

Conclusion and Recommendations

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

About the Author

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stay safe.

About the Author

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

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The impact of technology on mental health during COVID-19

Authors: Mustapha Dumbuya, Johnson Mayamba & Foromo Frédéric Loua

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

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

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

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

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

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

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

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

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

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

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

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

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

About the Authors

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

About the Author

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

About the Author

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

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