Zambia’s “deportation” of Zimbabwean opposition leader Tendai Biti: is someone to blame?

Author: Cristiano d’Orsi
Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg

Zimbabwean opposition figure Tendai Biti was on Thursday August 9 2018 charged with inciting public violence and declaring unofficial election results[1] as fears grew about a government crackdown following the disputed July 30 election.[2] The court appearance followed dramatic events in which Biti fled to Zambia, was denied asylum and was handed over to Zimbabwean security forces in defiance of a Zambian court order.[3] UNHCR quickly expressed concern.[4] A joint statement by the heads of missions in Zimbabwe of the European Union, the United States, Canada and Australia urgently called on Zimbabwean authorities to guarantee Biti’s safety and respect his rights.[5]

On August 8, Mr Biti first resisted arrest at the Chirundu Border Post arguing that he was protected by International law since he had already crossed the Zambezi River and was in the process of applying for Asylum from Zambia. Then, after an interview with Mr Biti the Zambian authorities at the border refused to hand him over stating that they wanted to consult with their superiors in Lusaka, since Biti had indicated that he was running away from political persecution.[6] Zambia’s Minister of Information and Broadcasting Services and Chief Government Spokesperson, Dora Siliya has said that her government denied asylum to Tendai Biti because there is no threat to the lives of citizens in Zimbabwe. She also said that the country was stable and that the elections had been declared free and fair by SADC.[7]  In addition, she added that Mr Biti has been handed back to the Zimbabwean authorities and not deported because he was not in Zambia illegally but he had been denied entry into the country and was being held at the boarder pending consultations.[8]

However, she did not explain why the Zambian government had defied a court order from its own High Court and handed over Biti to the Zimbabwean authorities.[9] In effect, the Government of Zambia has defied a High Court order, which was issued by Justice G.C. Chawatama of the High Court of Zambia. Justice Chawatama had ordered Zambia Immigration officers not to deport Biti until he had appeared in court. However, Biti has been handed over to Zimbabwe’s Criminal Investigations Department (CID).[10] Part of the order from High Court reads:

The Applicant seeks leave to apply for judicial review pursuant to Order 53 of the Rules of the Supreme Court 1999 Edition. Having perused the ex-parte summons for judicial review and the affidavit in support of the same I allocate the matter to Judge P Yangailo. In the meantime the applicant is to remain in the custody of Zambian Immigration officers who will facilitate his appearance before Judge Yangailo at the High Court in Lusaka at 8:00 hours on the 9th day of August, 2018 for the application for leave to be heard.[11]

Zambia’s Foreign Minister Joe Malanji said that Biti has been denied asylum because

 …the grounds under which he would want to seek asylum are not meritorious. So basically he has not been arrested, all we are doing is keeping him in safe custody and waiting for the Zimbabwean authority to help him get back to Harare. The grounds do not merit asylum. He is not in danger. He is only going to answer charges to legitimate courts of law.[12]

In his order, Justice Chawatama mentioned several documents, one of them being the SADC Protocol on Extradition entered into force in 2006.[13] Article 4 (a) of this Protocol stipulates that extradition shall be refused ‘if the offence for which extradition is requested is of a political nature…’[14] Mr Biti, in effect, seems to be wanted by the Zimbabwean authorities for crimes that are political in nature. Section 31 of the Immigration and Deportation Act, 2010 stipulates that an immigration officer may issue an asylum seeker’s permit to any person seeking refuge or asylum in Zambia and the permit shall be valid for a period not exceeding thirty days.[15] It is not clear whether  Mr Biti was issued this permit. Justice Chawatama also mentions in his order the 1971 Refugee Control Act, section 11 of which clearly stipulates that

an authorised officer shall not refuse a refugee a permit under this section if the officer has reason to believe that the refusal of a permit will necessitate the return of the refugee to the territory from which he entered Zambia and that the refugee may be tried, or detained or restricted or punished without trial, for an offence of a political character after arrival in that territory or is likely to be the subject of physical attack in that territory.

The section, however, provides further that ‘such authorised officer may in his discretion and without assigning any reason refuse to issue a permit’.[16] This section is most likely what the Zambian authorities relied on to summarily deny Mr Biti asylum. Moreover, Section 17 of the same Act stipulates that “[n]o act or thing done or omitted to be done by any authorised officer or other person shall, if the act or omission was done or omitted bona fide while acting in the execution of his duty under this Act, subject him personally to any liability, action, claim or demand whatsoever.” So, the Officers may also use of the concept of bona fide to justify their rejections.

Strangely, however, Justice Chawatama did not mention the 2017 Refugees Act, now in force in the country.[17] Section 11(4) of the Refugee Act guarantees the rights of asylum-seekers stipulating that “a person who applies for recognition as a refugee under this section […] has the right to remain in Zambia— (a) until that person is recognised as a refugee; or (b) where the application for recognition as a refugee is rejected, until that person has had an opportunity to exhaust that person’s right of appeal under section 15” (right to appeal that does not seem to have been afforded Mr Biti). On the other side, as Mr Biti seemed to have sympathised with the Zambian oppositions,[18] the Government of Zambia could have considered him as threat to the national security and the public order, according to section 23.3 of the 2017 Act. However, it seems that Mr Biti’s claim was generally considered not deserving any refugee status without any further explanations.

Thus, the decision of the Zambian authorities, has been at least incomplete given that the explanations provided to Mr Biti were not complete. Moreover, given that section 23.1 of the Act prohibits returning a person to a country where they may be subjected to persecution based on political opinion, Mr Biti should not have been returned to Zimbabwe, at least without the completion of the judicial process. Mr Biti was arrested and then freed on bail on his return to Zimbabwe.[19]

Thus, even though the Zambian authorities could make use of their discretion given by several domestic legal instruments to try to justify the rejection of the claim made by Mr Biti, they  certainly  should have granted him the right to appeal the decision, which he was not granted. It is also clear that Mr Biti was charged with crimes related to political opinion and therefore should not have been returned to Zimbabwe, where the political situation is still uncertain, even if President Mnangagwa twitted that it was thanks to him that Mr Biti was finally released because, in his words, ‘[a]t such a crucial time in the history of the new Zimbabwe, nothing is more important than unity, peace and dialogue’.[20]

 

[1]https://www.washingtonpost.com/world/africa/zimbabwean-opposition-official-biti-deported-from-zambia/2018/08/09/f1adc464-9bb1-11e8-a8d8-9b4c13286d6b_story.html?utm_term=.70cde0ea58f5

[2]https://www.news24.com/Africa/Zimbabwe/how-did-mnangagwa-win-zimbabwes-landmark-july-30-election-20180806

[3] https://www.bbc.com/news/world-africa-45126593

[4] https://af.reuters.com/article/zimbabweNews/idAFL5N1V03O0

[5]https://www.washingtonpost.com/world/africa/zimbabwean-opposition-official-biti-deported-from-zambia/2018/08/09/f1adc464-9bb1-11e8-a8d8-9b4c13286d6b_story.html?utm_term=.70cde0ea58f5

[6]https://news.pindula.co.zw/2018/08/08/tendai-biti-arrest-full-text-of-memo-from-cid-chirundi-explains-how-they-were-stopped-from-taking-biti/

[7]http://www.theeastafrican.co.ke/news/africa/Regional-observers-Zimbabwe-election-free-and-fair/4552902-4692254-e75fje/index.html

[8]https://www.lusakatimes.com/2018/08/09/zambias-forced-deportation-of-tendai-biti-is-a-serious-violation-of-international-refugee-law-unhcr/

[9]https://news.pindula.co.zw/2018/08/09/we-denied-biti-asylum-because-civilians-are-safe-sadc-said-elections-were-free-and-fair-zambias-chief-govt-spokesperson/

[10] https://news.pindula.co.zw/2018/08/09/zambia-defies-order-from-its-own-high-court-hands-over-biti-to-zimbabwean-authorities/

[11] https://news.pindula.co.zw/2018/08/09/zambian-high-court-grants-order-for-tendai-biti-not-to-be-deported/

[12] https://news.pindula.co.zw/2018/08/08/tendai-biti-denied-asylum-by-zambia/

[13]https://www.sadc.int/documents-publications/show/Protocol%20on%20Extradition%20(2002)

[14] https://www.sadc.int/files/3513/5292/8371/Protocol_on_Extradiction.pdf

[15]http://www.parliament.gov.zm/sites/default/files/documents/acts/Immigration%20and%20Deportation%20Act.pdf

[16]http://www.parliament.gov.zm/sites/default/files/documents/acts/Refugees%20%28Control%29%20Act.pdf

[17]http://www.parliament.gov.zm/sites/default/files/documents/acts/The%20Refugees%20Act%20No.%201%20of%202017.pdf

[18] https://www.bbc.com/news/world-africa-45126593

[19] https://www.sowetanlive.co.za/news/africa/2018-08-10-we-live-to-fight-another-day-says–zimbabwes-tendai-biti-freed-on-bail/

[20] https://www.bbc.com/news/world-africa-45126593

 

About the Author:
Dr Cristiano d’Orsi is a Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg. He was previously a Research Fellow and Lecturer at the Centre for Human Rights, Faculty of Law, University of Pretoria in South Africa. His expertise mainly deals with the legal protection of the people “on the move” (asylum-seekers, refugees, migrants, IDPs) in Africa. Another field of its interests includes the protection of the socio-economic rights. Cristiano holds a PhD in International Relations (International Law) from the Graduate Institute of International and Development Studies in Geneva (Switzerland).

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A new hope to Ethiopian Women’s Rights CSO’s?

Author: Dunia Mekonnen Tegegn
Human rights lawyer, Ethiopia

A number of scholars have discussed the implication of the Civil Society Proclamation (CSP) in terms of realizing human rights recognized under the Constitution of the Federal Democratic Republic of Ethiopia (FDRE). However, the quality of attention given to the direct implication of this proclamation on women’s rights organizations and on measures that are focused on gender equality is not significant.

This article argues that the CSP of Ethiopia is and has been unconstitutional and violates the rights of women to freedom of association that is recognized under the aspirations and provisions of the FDRE Constitution. It goes beyond the rhetoric and provides a practical overview of the myriad of challenges the women’s rights movement faced in its effort to tackle down gender inequality in the country.

Section one of this article introduces an overview of the CSP. Section two presents Ethiopian women’s right to freedom of association against the provisions of the CSP, while section three discusses some practical illustrations and challenges women rights advocates and women rights organizations have faced in terms of ensuring gender equality beginning from the enactment of the proclamation in 2009. The final section discusses current developments in this regard and suggests actions on the way forward.

The Ethiopian Civil Society Proclamation (CSP) of 2009

The Ethiopian Government adopted the Proclamation to Provide for the Registration and Regulation of Charities and Societies (CSP) in 2009.  The CSP was enacted to regulate and control the activities of Civil Society Organizations (CSOs). The government of Ethiopia raised three major justifications that gave rise to this proclamation. The first and main argument is that human rights work is political in nature. Hence, it should be left only for Ethiopians with no support from foreign sources including support in terms of finance. Other grounds often raised also relate to human rights organizations that were involved in the 2005 election in Ethiopia through domestic observation as well as voter and civic education. In addition to this, the government also argued there is an inappropriate use of resources by CSOs that called for a more rigid law to register, manage, and monitor these organizations through oversight and monitoring.

The CSP define Ethiopian charities and societies as:

Organizations formed under the laws of Ethiopia, all of whose members are Ethiopians, generate income from Ethiopians and wholly controlled by Ethiopians. Ethiopian charities and societies are deemed Ethiopian if not more than 10% of their funds are derived from foreign sources.

The CSP under its article 14 also provides that “activities such as the advancement of human and democratic rights, the promotion of equality of nations and nationalities and peoples and that of gender and religion…” can only be conducted by Ethiopian charities and societies.

Pre CSP environment in Ethiopia

Before the actual enactment of the CSP, the women rights movement in the country could be described as being active. The women rights movement lobbied for a change of discriminatory laws. It also contributed to the enforcement of severe penalties on Gender-Based Violence. The women’s right movement enhanced access to justice through the provision of free legal aid and related assistance services for needy women and victims of violence. Women’s rights organizations also provided a representation of cases at court and further supported reconciliations among litigating parties.

Post CSP environment in Ethiopia

The CSP was clear. Its purport is the classification of CSOs based on the source of funding. If the percentage of funds mobilized from outside Ethiopia exceeds 10 % of the annual budget, the CSO cannot operate in Ethiopia and cannot work on areas that are explicitly reserved for Ethiopian CSOs, including those that relate to advancing women rights.

The law discussed two exceptions for this: bilateral agreements and mass-based organizations. Women associations in the context of the CSP are mentioned as part of mass-based organizations. The CSP does not define what mass-based organizations are but highlighted that it includes Professional Associations, Women’s Associations, Youth Associations and the like. When it comes to rights-based women organizations, the definition lacks clarity.

Ethiopian women’s right to freedom of association vis-a-vis the provisions of the CSP

The right to freedom of association is recognized under Article 31 of the constitution of the Federal Democratic Republic of Ethiopia. It provides: “Every person has the right to freedom of association for any cause or purpose. Organizations formed, in violation of appropriate laws, or illegally subvert the constitutional order, or which promote such activities is prohibited.”

In addition to this blunt recognition of the right, the preamble of the constitution echoes freedom of association and reflects the important role women play in terms of fulfilling the objectives of the constitution with due respect to individual and peoples’ right and freedom.  Similarly, the constitution has recognized a spectrum of rights for Ethiopian women under Article 35. The constitution provides that “states shall enforce the right of women to eliminate the influence of laws that oppress them.” The constitution has always been the guardian for the right of a woman to association. When the constitution was initially drafted, Women groups were represented in the drafting committee.

The constitution affirms that the right to freedom of association is exercised for whatever reason women believe to be important: That is, “for any cause or purpose.” The explicit categorization of CSOs into those that can promote woman human rights and those who cannot limits the right of Ethiopian women to associate for any purpose or cause and defeats the original purpose of the constitution.

Ethiopia is also a party to the International Covenant on Civil and Political Rights (ICCPR), article10 of which guarantees the right to freedom of association. The FDRE constitution states that treaties/conventions that are ratified by Ethiopia are part of the laws of the land. Hence, the CSP violates Ethiopia’s human rights obligation under the ICCPR.

There are arguments that the Ethiopian constitution included claw back clauses as a limitation to the exercise of constitutional rights, including freedom of association. However, the CSP is not limited in its scope. It also applies to women’s rights organizations that function in light of the constitution and which are not involved in “illegally subverting constitutional order.” as defined under the constitution. Hence, the CSP is and has for long been unconstitutional.

Practical difficulties: Women’s right to freedom of association

As discussed above, the FDRE constitution broadly recognizes women rights under Article 35 and women’s right to freedom of association under Article 31. The most restrictive feature of the CSP is its funding precincts. This actually made the application of the right to freedom of association practically impossible. Under the CSP, Ethiopian charities and societies can work on the promotion and advancement of women’s rights if they are able to mobilize a minimum of 90% of their annual budget internally.

This aspect of the law became a big challenge for the sustainability of programs run by many of the women’s rights organizations such as legal aid service. They faced huge obstacles in raising funds from local sources to run legal aid centers. Most of these local CSOs rely on volunteer legal counselors without even covering transportation cost. This volunteer arrangement has affected the service negatively. In addition to this, the budget for the victims’ fund, which used to facilitate women’s access to justice, has been minimal. Court cases, which need representation, could not be handled, as there is no adequate funding for such services. Follow up on cases at courts, police stations, and public prosecution offices cannot be done as much as the demand, as there is a lack of human capital and due to the high cost of fuel.

In the absence of any practical experience in the area of funding locally and a volunteering culture, it has been a difficult job for women’s rights advocates to survive, let alone continue their day to day activities. Some women’s rights organizations have closed relevant departments such as public relations to minimize cost. These departments, prior to the CSP were involved in outreach programs and promotional activities that contributed to the demand for legal aid services by women who are victims of domestic violence.

Most human rights organizations, including women affiliated ones, have so far left these unfavorable areas of the law and shifted their programs and projects. In 2014, only 174 new CSOs were registered, 158 CSOs were closed, including 133 involuntarily for failing project implementation due to lack of funds.

New Hope for Women’s Rights CSOs?

In July of 2018 the Federal Attorney General’s office established a 13-member justice reform advisory council to address an array of serious issues, including reviewing suppressive laws such as the Civil Society Proclamation.[1] This was followed by consultations among the members of the justice reform advisory. This reform advisory committee includes women like Meaza Ashenafi, founder and executive director of the Ethiopian Women Lawyers Association (EWLA) who have expressed their concern over the enactment of the CSP.

Reportedly, the working group is conducting consultations and plans to propose amendments to the HPR (House of People’s Representatives). Proponents of the reform particularly as far as the CSP is concerned are taking two positions. The primary one is the complete repeal of the CSP and replaces the same by ordinary association laws. Other suggestions include review of the CSP particularly articles that have adversely affected the operation of CSOs including but not limited to the 90/10 funding restriction.[2] Though these discussions are still at their initial stage, I strongly suggest that the reform committee assesses best practices to propose a model that could maximize the number and also the role of Women’s rights CSOs in the country.

 

[1] https://www.demdigest.org/ethiopias-reform-moving-from-symbolic-gestures-to-specific-steps/

 

[2] https://addisfortune.net/articles/council-arise-to-reform-anti-terrorism-media-law/

 

About the Author:

Dunia Tegegn is a human rights lawyer born and raised in Ethiopia. She has previously worked as a Human Rights Officer at OHCHR EARO and as Program Officer on Ending violence against Women at UN Women country office. Dunia has also worked with the Ethiopian Women Lawyers Association and UNOPS as a seconded staff for UNICEF. She is known for organizing human rights moot court competitions in Ethiopia and has represented her country in the 14th African Human Rights Moot Court Competition that took place in Pretoria. Dunia is a graduate of law from Bahirdar University and also hold a master’s degree in human rights from Addis Ababa University College of Law and Governance and an LLM in National Security from Georgetown University Law Center with a certificate in Women’s law and public Policy. Dunia has co-edited and published a book on “Unleashing African resilience: Pan African renaissance in the new Africa century” and “Security and empowerment: African women in the 21st century.” Dunia also contributes original papers on Women rights and Gender in the Social Science Research Network.

Dunia  currently works at  Women’s Learning Partnership for Rights, Development and Peace.

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The constitutional problems to protect the principle of linguistic equality in Cameroon

Author: Frank Maxime Yankam Lemdjo
Researcher, Peace and Security Department, African Union.

Cameroon will soon elect its next President. Whilst preparation of this important event is underway, the country is facing one of its greatest social crisis known as the Anglophone crisis. This reflection aims to point out the fact that the Constitution adopted on 18 January 1996[1] and revised by law 2008/001 of 14 April  2008[2]cemented a constitutional system that has failed to achieve one of the principles that the same Constitution guarantees: the principle of equality between Francophone and Anglophone. Article 1(3) of the Constitution states that ‘the official languages of the Republic of Cameroon shall be English and French, both languages having the same status’. The Constitution sets out the principle of linguistic equality in Cameroon, without further explanation on how this principle would be guaranteed. The same article further states that ‘the State shall guarantee bilingualism throughout the country. It shall endeavor to promote and protect national languages’. In the meantime, the preamble of the Constitution states that: ‘the State shall ensure the rights of minorities […] in accordance with the law’. But the Constitution does not provide a definition for the term ‘minorities’.

The problems arose, among others, after the minority Anglophone Cameroonians complained of marginalisation from the dominant francophone in the leadership and overall management of the country. This marginalisation could also be seen at the level of the operation of the legal systems within the Judiciary. Cameroon inherited two legal systems when areas controlled by Britain and France joined to form a single state after the colonial powers withdrew. Civil law was practiced in the French-speaking part and common law in the English-speaking region during colonisation. The bijural system has not been dealt with accordingly by the Constitution which merely provided for the unicity, indivisibility of the Republic (article 1(2) of the Constitution), without clarifying how the differences of the two legal systems will be resolved within the unitary State. Cameroon has since been engaging with a questionable agenda of unifying the two legal systems. Language rights of Anglophone Cameroonians was addressed in Gunme and others v Cameroon (communication 266/03)[3], a case decided by the African Commission on Human and Peoples‘ Rights in 2009. The complainants, Anglophone Cameroonians, alleged that the entry by Cameroon as a State Party to the Organisation pour l’Harmonisation des Droits d’Affaires en Afrique (OHADA), a treaty for the harmonisation of business legislation amongst Francophone countries in Africa, constituted discrimination against the people of Southern Cameroon on the basis of language. OHADA stipulates that the language of interpretation of the treaty shall be French. The Complainants further argued that the Constitution recognises English and French as the official languages of Cameroon and therefore by signing the OHADA Uniform Acts, Cameroon violated the language rights of the English speaking people of Cameroon. The Commission found the State of Cameroon in violation of articles 1, 2, 4, 5, 6, 7(1), 10, 11, 19 and 26 of the African Charter and thus recommended the State of Cameroon to ‘abolish all discriminatory practices against people of Northwest and Southwest Cameroon, including equal usage of the English language in business transactions,[4] to stop the transfer of accused persons from the Anglophone provinces for trial in the Francophone provinces[5] and to ensure that every person facing criminal charges be tried under the language he/she understands. In the alternative, [Cameroon] must ensure that interpreters are employed in courts to avoid jeopardizing the rights of accused persons’.[6]

As another symptom of discrimination, Cameroon has been drafting and adopting legal documents such as the criminal procedural code without necessarily addressing all the specificities of the two systems. Even more concerning, quite a  number of French-speaking judicial and legal officers, were appointed to serve in the English speaking regions without necessarily being able to speak English or master relevant Common Law principles.[7]

In October 2016, the Anglophone lawyers went on strike requesting the government to hold an emergency session of the Higher Judicial Council and redeploy all civil law magistrates from the two Anglophone regions. They also requested the government to provide English versions of legal documents that were only available in French such as the OHADA treaty among other demands. They further requested a return to a two-state federation, as the best framework to guarantee the coexistence of both legal systems. As a response to the peaceful protests that were organized, the Government stroke back by cutting off internet services for more than three months in the two Anglophone regions and since then engaged in a violent repression after the original claims of October 2016 were turned into secessionist appeals. Government and secessionist group have since been engaging in a deadly crisis leaving hundreds of thousands people homeless and displaced.[8]

Possible solutions to address the constitutional marginalization and Anglophone crisis

As the ongoing crisis continues to deplorably levels, we reiterate the possible solutions already mentioned by the African Commission. In the Gunme case, the African Commission  recommended that the respondent State ’reform the Higher Judicial Council, by ensuring that it is composed of personalities other than the President of the Republic, the Minister for Justice and other members of the Executive Branch’. On this last point, some reformist steps have been taken by the Government, namely through the appointment of Anglophone lawyers at the Supreme Court, the recruitment of bilingual teachers and the reappointment of francophone magistrates from Anglophone regions and translation of the OHADA treaty. More importantly, the African Commission on Human and Peoples’ Rights recommended that Cameroon should ’enter into constructive dialogue with the complainants, and in particular, SCNC and SCAPO[9] to resolve the constitutional issues, as well as grievances which could threaten national unity’. The dialogue in question has to be potentially accompanied by strong healing and reconciliation measures such as through the establishment of a truth and reconciliation commission, possibly led by an independent African personality.

The question remains if all the constitutional issues discussed in this paper will be addressed accordingly. The crisis in Cameroon requires a progressive Constitutional order that would provide more guarantee for the rights of the linguistic minority of Anglophone Cameroonians.

 

[1] https://www.prc.cm/en/multimedia/documents/6285-loi-n-96-06-du-18-01-1996-revision-constitution-1972-en

[2] https://www.prc.cm/en/multimedia/documents/6282-loi-n-2008-001-du-14-04-2008-modifian-constitution-1972-en

[3]http://www1.chr.up.ac.za/images/files/documents/africancases/country/cameroon/Gunme%20and%20Others%20v%20Cameroon.pdf

[4] Gunme and others vs Cameroon (2009) AHRLR 9 (ACHPR 9) Para 251 (1)

[5] Gunme and others vs Cameroon (2009) AHRLR 9 (ACHPR 9) Para 251 (2)

[6] Gunme and others vs Cameroon (2009) AHRLR 9 (ACHPR 9) Para 251 (3)

[7]http://minjustice.gov.cm/pdf_download/concertation_gds_avocats/COMMUNICATION_DU_GDS_CONCERTATION_AVEC_LES_AVOCATS_en.pdf

[8] http://www.accord.org.za/conflict-trends/anglophone-dilemma-cameroon/

[9] The SCNC (Southern Cameroons National Council) and the SCAPO (Southern Cameroons People’s Organisation) are two political organisations defending the rights of the people of Southern Cameroons, including their right to self-determination.

 

About the Author:
Frank Maxime Yankam Lemdjo holds the LL.M in Human Rights and Democratisation in Africa from the Centre for Human Rights, University of Pretoria. He is Researcher at the Peace and Security Department of the African Union.

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Apartheid, gender and property relations in South Africa: Some reflections from Rahube v Rahube & Others

Authors: Kennedy Kariseb & Nimrod Muhumuza

Kennedy Kariseb Nimrod Muhumuza

Land reform is a litmus test for how far post-apartheid democratic South Africa is willing to go to redress its abhorrent racist and sexist history. There have been several attempts to reconcile colonial and apartheid-era laws with their concomitant rights and obligations in the new democratic dispensation, epitomised by the transformative 1996 Constitution. The latest proposal is to expropriate land without compensation which is currently undergoing public consultation. However, scant attention has been paid to the gendered land relations that have excluded women from owning land in their own name.

The recent  judgment of Kollapen J in Rahube v Rahube & Others,[1] is one such case that indicates the difficulty of reconciling the impact of a skewed racial, gendered history in a new democratic dispensation premised in a supposedly transformative constitutional regime.[2] The Rahube judgment is another (rather unfortunate) reminder of the subordinate position that women occupy in South Africa, as in most parts of Africa, reminding us that inasmuch as land and property relations in South Africa were racially anchored, they were, (and still are) thoroughly gendered. This is because for the most part, colonial and apartheid laws and practices limited, and at worst excluded women from accessing and controlling resources such as property, including land.[3]

Despite the transformative rhetoric enshrined in the 1996 Constitution, women, particularly black women, have not benefited from attempts at land reform, including housing and access to property. South Africa’s Constitution provides for the existence of a dual system of statutory law and ‘indigenous customary law.’ This body of customs and practices observed among the indigenous African people of South Africa pre-dates colonialism and apartheid. Traditionally, women have been denied rights to property under customary law in South Africa. Under customary law, a woman was generally regarded as a minor under the guardianship of her father, husband or brother, incapable of owning or acquiring property.

The subordination of women by customary law further found root in colonial and apartheid statutory law. For example, in rural areas, the 1913 Land Act (later the Black Administration Act) legalised the restriction of access to land by women in their own name. In urban areas, the Group Areas Act prevented women of different racial groups from having access to land and homes and resulted in many forced relocations. As stated already, a woman was barred from owning property under customary law as she was considered a minor and was therefore a ward of her father, husband or brother. The intestate law on succession also excluded women from ownership of property. Succession under customary law was based on the principle of primogeniture which requires that only males can be heirs to estates of deceased owners. Since only men could own land and property, it followed that only sons could inherit that property. As a result, women were incapable of inheriting from the deceased estate of their father or husband if the deceased died without a will. While the situation has changed at the legal level, mostly through the pioneering jurisprudence of the South African courts, in practice many women still remain excluded from accessing property, particularly land.

These practices and gender relegation entrenched in the laws and practices referred to above continue to haunt women in democratic South Africa. This is evidenced in the case of Ms Mantshabelle Mary Rahube who in 2009 was faced with an eviction order based on apartheid property laws. By way of background, the Applicant, Ms Mantshabelle Mary Rahube, the elder sister of Mr Hendrine Rahube, (the First Respondent) together with other members of their family, moved into property known as Stand 2328 Block B, Mabopane in about 1970 following their forceful removal from the area known as Lady Selbourne. With time some members of the family moved out of the property. Although far younger than the Applicant, the first Respondent was appointed as head of the household in compliance with the Native Proclamation Act R293 of 1962, which amongst others ceded occupational rights to the “head of the household” in trust for the family based on his gender in tandem with customary practice, when their grandmother died in 1978. He, however, moved out of the property in 1990. Even though the occupants of the property have varied over time, since 2000, the property has been exclusively occupied by the Applicant and her nuclear family.

In 2009, the First Respondent instituted eviction proceedings against the applicant. He  argued that he was the lawful owner of the property having been granted a Deed of Grant issued in his name on 13 September 1988 in terms of the Native Proclamation R293 of 1962, read together with the Black Administration Act 38 of 1927.

Following the enactment of the Upgrading of Tenure Land Rights Act 38 of 1991 in September 1991, the First Respondent’s tenure rights, which he held as ‘family head’ were automatically converted in to full ownership pursuant to section 2(1) of the Act. Having been granted such full ownership, without formal notification to that effect to the Applicant, or, any of the other occupants of the property, the Applicant was denied an opportunity to make representations with regard to her interest, or claim to title, in the property Facing eviction from the First Respondent, the Applicant instituted action against the First Respondent in the High Court in Pretoria wherein she sought a declaration that she be declared owner of the property situated at Stand 2328, Block B, Mabopane. In the alternative, the Applicant sought for a declaration that section 2(1) of the Upgrading Act be declared unconstitutional and invalid to the extent that it deprives occupants of the property subject to a land tenure right from claiming ownership of the property without affording them an opportunity to be heard before converting the land tenure rights into full ownership contrary to section 33 of the Constitution.

In its finding, the Court refused to address itself on the question of ownership over the property, based on the possible multiple interests that were held in the property and the fact that such prospective subjects were not joint in the application. The Court was, however, quick to find section 2 (1) of the Upgrading Act unconstitutional and invalid to the extent that “it perpetuates the exclusion of women, such as the Applicant, from the rights of ownership in so far as it provided for automatic conversion and failed to provide any mechanism in terms of which any other competing rights could be considered and assessed and a determination be made”. [4] This finding was considered in light of sections 9 (right to equality) and 34 (right to access to Courts) of the Constitution.

In a sense, the exclusion of women from property ownership uncovers the deeply entrenched gendered differences between men and women that are primarily premised on the domesticity of women. By domesticating women, the capitalist-patriarchal system of law and governance, which without a doubt formed the basis of colonial and apartheid South Africa, ensured the protection of men’s privileged access to resources.  For example, the concept of the ‘head of household/family,’ has in most instances been conceptualised and appreciated to elevate men’s social standing over that of women. Because men primarily occupy the central space in the public arena, the privileged area of politics, economy, military and intellectual engagement, they are resourced economically and financially to lead households. Women, who have been socialised for the domestic space of home and family, generally rely on their sustenance from men. As a result of this private-public binary, it has become standardised that men are the custodians and guardians of their families and households. An immediate consequence of this trend has been the subordination of women and the limitation of their capacities to access resources and the privileges that are centred in the public arena.

The finding of the Court is a positive development as it attempts to address the inequalities meted against women by virtue of law and custom. Clearly, the exclusion of the Applicant from the property and the initial granting of the Deed of Grant to the Respondent was based on customary practices which privileged male ownership over property.  This practice was further entrenched by positivist law. In fact, the wording of the applicable legislation, namely the Native Proclamation R293 of 1962 clearly denotes racist sentiments based on racial segregation and it also remains deeply sexist in its effects.[5] The gendered nature of the legislation is further evident from its repetitive use of the noun ‘he’ throughout and its reference to ‘head of the family,’ in the masculine form. It is quite evident that the Applicant, purely based on her gender would be precluded, and was precluded in this case, from holding any title or right in land in her own name. As a consequence, the historical exclusion of women from property, which was formalised by the Native Proclamation R293, and cemented by the automatic upgrading and conversion into full ownership of such titles in terms of the Upgrading Act has placed many black women in a vulnerable position, excluding them from entitlements relating to property and land.

The Rahube judgment comes at a time where South Africa seeks to review its land reform processes. Years after the formal end of apartheid, land relations, including housing, continue to stir great controversy. While it is imperative that the racial imbalance in land ownership be addressed, we should also not lose sight of the massive gender disparity in land ownership. Any reform process, including the proposed amendment to section 25 should take that into account.

 

[1] Case No. 101250/2015, judgment dated 26 September 2017, Gauteng Division of the High Court of South Africa.

[2] See general K Klare “Legal Culture and Transformative Constitutionalism” 14 South African Journal on Human Rights (1998) 146, for a detailed discussion on the transformative nature of the South African Constitution.

[3] According to the Department of Land Audit Report of 2017, women in South Africa own just 13% of individual land holdings in the country. This is astounding given that the fall of apartheid was supposed to usher in a new era in terms of equity and equality.

[4] Par. 51

[5] See for instance section 9 (1) of Chapter 2 of the Native Proclamation Act. While contemporary interpretation of statutes provides that the use of ‘he’ should be interpreted to include ‘she’ such an assumption is not a given regard being had to the contextual and historical positioning of this legislation. See also Western Cape Provincial Government & Others In Re: DVB Behuising (Pty) Limited v North West Provincial Government & Another 2001 (1) SA 500 (CC), where the Act was described as “admittedly racist and sexist and [that] constituted a key element in the edifice of apartheid.”

About the Authors:

Kennedy Kariseb is a doctoral candidate at the Centre for Human Rights, University of Pretoria. His areas of research are broadly blended between family law, gender law (i.e. vulnerability of women to violence), and (international) human rights law (with a stern focus on special procedure mechanisms).

Nimrod Muhumuza is an LLM candidate at the Centre for Human Rights, University of Pretoria.

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Freedom of expression: Hopes, anxieties and skepticism in Liberia’s nascent democracy

Author: Urias Teh Pour
Legal Advisor on the Liberia Law Society Land Rights and Freedom of Expression Projects

The recent move to repeal Liberia’s Criminal Libel laws by the newly elected Government of former Liberian Football legend, George Manneh Weah, has been hailed by human rights groups as a positive step in the right direction. The effort to decriminalise section 11.11 of the Penal Law comes barely two months following the visit of the United Nations Special Rapporteur on Freedom of Expression to Liberia. The UN Officials called on the Government of Liberia to review all laws that undermine free speech, as guaranteed by article 19 of the International Covenant on Civil and Political Rights (ICCPR) and other instruments ratified by Liberia.

As a treaty obligation, Liberia is bound to uphold article 19 of the ICCPR, which guarantees freedom of expression through the right to seek, receive and impart information.  The UN Human Rights Committee has expounded on this rights by enjoining State parties to ensure that the rights contained in article 19 of the Covenant are given effect to in the domestic law of Member States.  The Committee, elaborating further on article 2 of the ICCPR, on States’ obligation under the Covenant, avers that basic rights of the human person are erga omnes obligations. The African Commission in the Declaration of Principles on Freedom of Expression in Africa, asserts that ‘sanctions should never be so severe as to interfere with the exercise of the right to freedom of expression.’ Liberia’s recent efforts to decriminalise free speech are therefore, in line with the 1986 Constitution of Liberia as well as its treaty obligations. The rights guaranteed in the Constitution encompasses the right to hold opinions without interference as well as the right to impart knowledge and freedom of speech.

Despite the constitutional guarantee of freedom of speech and Liberia’s international human rights obligations, criminal libel laws pose a threat to the enjoyment of the right. For instances, section 11.11 of the 1978 Penal Law of Liberia, states that there is Criminal Libel against the President, when:

A person exposes to the public any writing or makes any public broadcast, in which he has accused the incumbent President of the Republic of Liberia of conduct which constitutes the commission of a crime, provided, (a). The conduct charged is untrue and the author knows it to be untrue, and (b). The purpose of the actor is thereby intended to injure the President in his reputation

This section has been used by successive Governments to stifle freedom of expression and has caused widespread self-censorship by media institutions. Against this backdrop, and considering her long years of advocacy and being a victim of these draconian laws, former President Ellen Johnson Sirleaf, became the second African President after Nigerien President Mahamadou Issoufou, to have signed the Table Mountain Declaration, which calls for the repeal of criminal defamation and insult laws across Africa. The decision to sign the Declaration should have been followed by concrete actions to swiftly amend this criminal libel legislation. While other meaningful and concrete efforts were made to enact the Freedom of Information Act, the Penal Law and other laws such as the criminal libel against the President, sedition, and mercenarism remain unchanged and used to continue in various ways, to stifle free speech and free press. For example, individuals who claim damages for civil defamation against media institutions covertly get support from the government. The reason being that media houses that unable to pay the usually mammoth damages imposed, are compelled to close down. This is unfortunately, a very effective, and yet legal method to silence the free press.  A vivid case involved the editor of the FrontPage newspaper, Rodney Sieh who was found liable in a civil libel lawsuit in 2013 after he accused the Minister of Agriculture of siphoning millions of dollars intended to fight againstearthworm disease. Sieh was ordered to pay US$1.5 million dollars in damages. After a default payment, Sieh suffered a prison term. In a similar case, in 2009, a lawsuit was filed by President  Sirleaf’s office for $5 million in damages against the Newbroom Newspaper which led to the paper’s closure. In other instances, registration of media institutions were made burdensome either because of a cumbersome process or because of the imposition of huge fees to obtain a frequency for radio stations.

Considering these developments, fear still lingers whether President Weah will not thread the same path despite his call to decriminalise all criminal libel laws. These fears find justification in President Weah’s recent description of his critics, including media institutions as ‘enemies of the state’. The statement follows concerns that he received gifts from a Burkinabe Businessman in exchange for a construction contract.  Gifts under this circumstance violates Section 9.1 of the Code of Conduct of public officials, which expressly prohibits public officials and employees of Government from receiving or encouraging the giving of any bribe or casual gift in connection with the performance of their official duties. In a similar case, a Facebook comment by one Abraham Kamara allegedly calling for the assassination of the president, received a robust response from the office of the National Security Advisor, including a threat to deal decisively with anyone abroad and home who seeks to undermine the government.

In addition, on 18 June 2018 the Ministry of Information canceled licenses issued to all media institutions from 1 January 2018 until that date.  According to the statement, the move was intended to correct anomalies in the media regulatory processes. Whether this decision was taken in good faith to ensure media institutions comply with the State’s regulation or was just another attempt to impede the work of the free press remains to be seen.

To accelerate the efforts at decriminalising criminal defamation laws, concerted efforts to revisit civil defamation suit especially those brought to Court by public officials cannot be overemphasised. The African Court on Human and Peoples’ Rights in Konate v. Burkina Faso, stated that ‘people who assume highly public roles must necessarily face higher criticism than ordinary citizens; otherwise public debate may be stifled altogether.’ Prior to the Konate case, the US Supreme Court in New York Times Co. v. Sullivan (1964)  stated clearly that the standard of proof for defamation suits brought by a public official should be higher than the preponderance of evidence standard applicable to every element of defamation and civil lawsuit generally.’ In addition to this, it is imperative to amend Section 44.7 (e) of the Civil Procedure Law, which allows a prison sentence in a civil defamation suit if the defendant fails or is unable to pay damages in order to liquidate the full amount of the judgment, interest and cost at the rate of 25 million dollars per month. At this rate, a judgment debtor in a damage suit of 1 million dollars could spend four thousand years in prison to liquidate the said amount. Maintaining prison sentences for both criminal and civil defamation abdicates Liberia commitment to its human rights obligations. The UN Human Rights Committee has aptly cautioned state parties  to avoid excessively punitive measures and penalties; and even where the defendant is required to pay cost, there should be a reasonable limit for reimbursement to the party that won.’

There is clearly an understandable apprehension within the fourth estate as to whether Weah is sincere to uphold Article 66 (2) (c ) of the Revised ECOWAS Treaty of 1993 which calls on State Parties ‘to ensure the respect for the rights of journalism’ ; or is just buying time to reverse the relative level of free expression at this moment. Time will tell!

About the Author:
Urias Teh Pour holds a Bachelor of Science (Economics) from the University of Liberia, Bachelor of Laws (LLB) Louis Arthur Grimes School of Law, University of Liberia and an LLM degree in Human Rights and Democratisation in Africa from the Centre for Human Rights, Faculty of Law, University of Pretoria. He has worked as Human Rights Officer for the United Nations Mission in Liberia; Legal Advisor to the Carter Center Access to Justice Project and currently Legal Advisor on the Liberia Law Society Land Rights and Freedom of Expression Projects.

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Double trouble: Consulting for a fair retrenchment

Author: Prof Rochelle le Roux
Director of the Institute of Development and Labour Law; Professor in the Faculty of Law, University of Cape Town (UCT)

Most employers and employees have a broad understanding that the fairness of a dismissal rests on both a substantive and a procedural leg.

On the one hand, substantive unfairness, in broad strokes, suggests that an employee who should not have been dismissed, had been dismissed.

The legislature had chosen to express substantive fairness with reference to the employee’s misconduct or incapacity and the operational requirements of the employer. A dismissal for the latter reason is often referred to as retrenchment.

On the other hand, procedural unfairness implies that the employee had not been given an opportunity to be heard by the employer before the dismissal was affected. There is at least one practical reason for distinguishing between procedural and substantive fairness: when a dismissal is unfair only because the employer did not follow a fair procedure, the competent remedy is generally only payment of compensation and not reinstatement as would be the case when the dismissal is either substantively, or both substantively and procedurally, unfair.

However, maintaining a separation between procedural and substantive fairness is not always easy. While it is perhaps easier to do so in the case of misconduct and incapacity, the lines between the two forms of fairness can sometimes be very blurred, particularly in the case of retrenchment. Key to a fair retrenchment is that it relates to the employer’s operational needs and can only be effected after notice and consultation with affected employees, either through their trade unions or directly with them.While it is fairly obvious that a retrenchment that is not truly based on the employer’s operational needs, but an underhanded attempt to get rid of, for instance, poor performers, will be substantively unfair, the potential for substantive unfairness does not stop there.

Legislation requires the employer to first give notice and then to consult with affected employees on a number of topics. This is generally regarded as the procedural leg of a retrenchment. However, it is not as simple as it may seem. Not consulting on a statutory prescribed topic will render the subsequent retrenchment procedurally unfair, but the implementation of that topic, regardless of whether it has been consulted on, speaks to substantive fairness and the subsequent retrenchment can still be substantively fair even if no consultation on that topic had taken place.

This rather confusing statement is perhaps best explained with reference to the criteria for selection for retrenchment which is a statutory prescribed topic for consultation. However, the legislation envisages that the employer may nonetheless proceed with the retrenchment using fair and objective criteria if the consulting parties, after meaningful consultation, cannot reach agreement on selection criteria.

Failure to consult on the selection criteria will render the retrenchment procedurally unfair. Failure, in the absence of an agreement, to use criteria that are fair and objective or failure to apply the agreed or fair and objective criteria, will render the dismissal substantively unfair. This is so because if the ‘wrong’ criteria are applied, it can result in the dismissal of an employee who should not have been dismissed.

This implies (somewhat counterintuitively) that the absence of meaningful consultation on selection criteria does not per se imply that the selection criteria used were not fair and objective and that the retrenchment was substantively unfair. In other words, an employer who does not consult on selection criteria, but still uses criteria that somehow are fair and objective, will be off the hook in terms of substantive fairness, but will be in trouble as far as procedural fairness is concerned.

This fascinating interface between procedural and substantive fairness is explored in detail in Retrenchment Law in South Africa, published by LexisNexis South Africa. Retrenchment Law in South Africa provides a detailed and comprehensive analysis of retrenchment law in South Africa and covers complex issues such as bumping and timing periods in the case of large-scale retrenchments.

The book provides new, critical insight into the interplay between case law and legislative developments and examines the meaning of the term ‘operational requirements’ with extensive reference to case law and use of creative examples and hypotheticals.

Retrenchment Law in South Africa is an invaluable guide for labour law practitioners, post graduate students, union officials, commissioners/arbitrators, HR managers and directors, labour consultants and judges. It is available from LexisNexis online bookstore at https://store.lexisnexis.co.za/products/retrenchment-law-in-south-africa-skuZASKUPG2174

Continue reading “Double trouble: Consulting for a fair retrenchment”

South African rulings uphold rights of HIV+ employees

reprohealthlaw

Many thanks to Godfrey Kangaude, LL.M. (UFS), LL.M. (UCLA), now an LL.D. candidate with the University of Pretoria and Executive Director of Nyale Institute for Sexual and Reproductive Health Governance in Malawi, for composing and/or editing summaries of 54 recent African court decisions for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts, published in 2017 by Pretoria University Law Press (PULP).  All three volumes in the series are freely available in print or electronic form.

Two of the court decisions summarized in Legal Grounds III clearly upheld the rights of HIV-positive persons against discrimination, including  unjust dismissal, and exclusion from certain job opportunities.

Gary Shane Allpass v Mooikloof Estates (Pty) Ltd. [2011], Case No. JS178/09, a Labour Court of South Africa upheld the rights to equality and non-discrimination of HIV-positive persons in the workplace.  The Court ruled that a horse-riding instructor’s dismissal from employment for HIV-positivity was…

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94 mental health patients in Gauteng: A lesson for State parties to the CRPD – A classic case of a poor deinstitutionalisation process

Author: Patricia Mwanyisa
Consultant – Human Rights and Access to Justice

As South Africa took time to celebrate its annual human rights day on March 21, this year (2017) the deaths of the 94 patients in Gauteng Province in a space of under a year should not be forgotten. The provincial government of Gauteng took the decision to remove persons with psychosocial and intellectual disabilities from government health institutions to reduce spending on their healthcare. The implementation process was poorly planned, rapidly executed and chaotic.  The move had fatal and disastrous consequences as it not only contravened national and international law, but also proved cruel and inhumane. The record shows 94 lives were lost, families have been severely traumatised and a healthcare support system regardless of whether it was the most ideal or not was shaken to its knees.

Apart from violating domestic law – the National Health Act 61 (2003) and the Mental Health Care Act 17 (2002)) – as a State party to the UN Convention on the Rights of Persons with Disabilities (CRPD) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), among other international instruments, there are several frameworks that were contravened by South Africa. This case provides an opportunity for some serious learning for South Africa (SA) as well as other African States. Learning from previous mistakes is vital for progress. Focus should be directed on how to avoid making similar mistakes in the future. It is probably more important to provide guidance to State parties or governments when they have made mistakes as opposed to the naming and shaming – particularly after the fact. To be productive, however requires the state or those in power to accept responsibility, acknowledge their mistakes and be receptive to the guidance. Ultimately, objectively and substantively unpacking the critical aspects or points at which things went wrong in the Gauteng saga from an international human rights perspective would be beneficial for the planning and implementation of these types of projects or programmes in the future.

 The human rights violations under the CRPD

 Given that characteristics of disabilities include long term mental, intellectual or sensory impairments the 94 people who died in Gauteng (as are all other persons with psychosocial and intellectual disabilities in South Africa and globally) fall within the scope of CRPD. Currently the CRPD is the most comprehensive international treaty in the area of disability and as such provides far more protections than any other singular international human rights instrument.

The CRPD sets out key rights that people with disabilities should enjoy in a fair society. It articulates human rights in a way that speaks specifically to this disproportionately marginalised group. In a nutshell, the CRPD applies a disability lens to all the human rights and fundamental freedoms applicable to all human beings and so it arguably does not present a new set of rights for persons with disabilities given that most of the rights therein are already protected under some other international and regional human rights treaties. It simply encapsulates a collection of key human rights pertaining to persons with disabilities and describes the specific elements that states parties are required to take into account in the protection of these rights. This explains the predominant focus on the CRPD taken in this article over other international treaties.

The Centre for Human Rights at the University of Pretoria, one of the most respected human rights institutions in both South Africa and the continent provides an ample starting point on rights violations under the CRPD. The Centre expressed shock in its Press Statement on this issue and highlighted the primary rights violations as articles: 10 (right to life); 15 (freedom from torture or cruel, inhumane or degrading treatment); 19 (right to independent living and inclusion in society); 25 (right to highest attainable health); 28 (adequate standards of living including adequate food, clothing and housing).

The purpose of this post is not to regurgitate these rights violations but rather to explore how things went wrong and how they could have been done differently.

What really went wrong in South Africa’s Gauteng Province from a CRPD perspective?

 Gauteng, home of South Africa’s administrative capital Tshwane (formerly Pretoria) and the country’s largest city Johannesburg undertook to deinstitutionalise mental health care. At the onset it is important to highlight that the concept of deinstitutionalisation in general is a critical and fundamental human rights issue for persons with disabilities particularly those with intellectual and psychosocial disabilities. It impacts the rights enshrined in the CRPD predominantly the rights to: autonomy (article 12); liberty and security of the person (article 14); freedom from torture or cruel, inhuman or degrading treatment or punishment (article 15); and the right to live in the community (article 19). Hence, deinstitutionalisation is a welcome and commendable initiative, because segregation of persons with disabilities in large institutions is an obvious and direct violation of the CRPD. However, the province’s reasons for doing so (i.e. saving cost) were not at all human rights based.

Furthermore, the benefits and value of deinstitutionalisation (particularly since the adoption of the CRPD in 2006) have been widely documented globally. The CRPD Committee (the UN committee responsible for monitoring the implementation of the CRPD) in its concluding observations to some African states has raised concerns regarding continued cases of institutionalisation. These concerns include the prevalence of institutionalisation of persons with disabilities in the State parties and the absence of community support services that provide for inclusion of persons with disability in society.  The Committee is also concerned about the marginalization of persons with disabilities, in particular persons with psychosocial and/or intellectual disabilities, from everyday life due to lack of provision of essential services. Violations associated with institutionalisation reported in some African states parties include physical restraint and isolation which are recognized globally as cruel, inhuman or degrading treatment, as well as the use of corporal punishment. In some cases some of the persons with disabilities are abandoned by their families in these institutions.

The CRPD Committee has called on African State parties to repeal legislative provisions which allow for the deprivation of liberty on the basis of disability, including psychosocial or intellectual disability.  It further recommends that State parties adopt necessary measures to prevent isolation or segregation of persons with disabilities from the community by being hidden in the family or in segregated institutions. Focus should be directed at the development of strategies for the deinstitutionalisation of persons with disabilities, within stipulated time frames and with measurable indicators. Such strategies should include comprehensive community-based services including personal assistance services.  Importantly the development and implementation of these strategies must be done in close cooperation with persons with disabilities and their representative organizations.  A far cry from the Gauteng experience which sparked protest marches and court interdicts. These protests are a consequence of a process that lacked proper and meaningful consultation and dialogue with affected communities.  A comprehensive, well thought-out strategy with realistic timeframes and human rights based indicators would have ensured that the community based services and other supporting services required for successful deinstitutionalisation were adequately available.  Community based support, social networks and naturally occurring community support impact and support the long-term sustainability and ultimately success of the deinstitutionalisation process.

From the findings of South Africa’s Health Ombud who probed the circumstances surrounding the deaths, it is clear the project was without a plan or clear objectives, and that the implementation was rushed, and chaotic. Indeed, this contributed to the resultant egregious rights violations. The mistakes that could have and should have been avoided can be observed at two critical levels of Gauteng’s project: 1) Project conceptualisation and planning; and 2) Project implementation and monitoring

1. Project conceptualisation and planning

As already highlighted above, the objective of the project was primarily for the purposes of cutting costs. As a single motivation for deinstitutionalisation, this objective on its own disregards South Africa’s obligations under the CRPD as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is true that the adequate functioning of the health care system depends on good budgeting, rational expenditure, planning, oversight and accountability on the part of the state and progressive realization of economic and social rights will take time and is at times dependent on the resources available to a government. However, progressive realisation of rights such as in this case, the right to healthcare does not mean that a government can deliberately take retrogressive measures that diminish enjoyment of people’s rights.   Put simply governments generally should not cut budgets affecting economic, social and cultural rights unless it introduces compensatory measures or efficiencies in spending that counter any negative impact from cuts.

Given that Gauteng’s motive or objective in this case was cost-cutting the SA Government as duty holder should have been in a position to explain the factors informing the chosen route and its impact on rights realisation as well as demonstrate that it was using the maximum available resources to continue improving the conditions of its people.  A scan through the Health Ombud’s report shows that there was never any deliberation nor initiative to demonstrate this on the part of the provincial authorities and in the end the process appears to have been disconnected from the national government.

In view of the fact that progressive domestic law or legislation is highly desirable and in some cases may even be indispensable to the realisation of human rights, South Africa does not fare badly in this arena. The country’s Mental Health Care Act provides that:

‘the person, human dignity and privacy of every mental health care user must be respected and that every mental health care user must be provided with care, treatment and rehabilitation services that improve the mental capacity of the user to develop to full potential and to facilitate his or her integration into community life.’

It is therefore quite astounding that Gauteng’s provincial government seemed quite oblivious to this. Gauteng should have taken into account the needs of the mental health care users first and reached out to different sectors of the impacted communities. It could have created partnerships that focus on a human rights based processes and ultimately collectively addressed what might have been identified as a pressing communal issue. The mistake of Gauteng then lies in having identified a problem alone without the involvement of the affected communities. Had the problem identified emanated from and resonated with the impacted communities it would have been easily accepted as a common cause for concern and thereby justifying the course of deinstitutionalisation that it took.

Another mistake lies in the fact that the project planning process was, according to the Health Ombud’s report largely limited to government officials. Communities and civil society organisations were not involved in any credible manner and many stakeholders reported having not seen the project plan at all. SA’s National Health Act (2003) emphasises community participation and provides for full community involvement through various structures, yet the Health Ombud’s report states that the planning documents made no reference to any of the structures provided for in the Act.

Reaching out to as many organisations and key players within and outside of the obvious stakeholders is absolutely necessary of which Gauteng should have included: people with psychosocial and intellectual disabilities and the organisations representing them and their families; all the 27 NGOs involved in the project together with Life Healthcare Esidimeni – the institution from which patients were being removed, relevant health and community service providers, businesses, policy makers, media and others. Some of these players such as the media have significant influence in the communities even though they might seem far from or unconnected to the problem or challenges. Ultimately the idea is to engage stakeholders who are most likely to be affected by the action.

As a final part of the planning process Gauteng should have established or created a distinct project implementation or coordination structure. Given the ensuing chaos in the implementation process it is evident that the coordination mechanism was lacklustre. Such a structure would have assisted in bringing together multiple and practical inter-sectoral allies and stakeholders in a useful and effective manner. It would have ensured the effective execution of a number of Gauteng’s basic but key functional responsibilities such as among others:

  • Providing formal strategic direction;
  • Facilitating dialogue between partners;
  • Coordinating community outreach in the new communities where patients were to be relocated to; and
  • Handling internal and external communication to ensure all stakeholders are well informed about the project.

2. Programme implementation and monitoring

Deinstitutionalisation of the kind that Gauteng unleashed is definitely a highly complex issue on numerous levels and is therefore not one to be implemented hurriedly. Institutionalisation of persons with psychosocial and/or intellectual disabilities is a centuries old phenomenon that requires significant and sufficient allocation of time for implementation if positive change is to be realised. Deconstruction of such a phenomenon will require change not only at the policy, legal and legislative levels but also of the attitudes of the communities, families and individuals. As such States thinking of or already embarking on this kind of exercise must brace themselves and be prepared to make a commitment that goes well beyond the short term. Ideally, the project ought to be structured strategically from as high as the national policy level rather than as an offshoot at the provincial level if it is to be sustainable. Although the ultimate responsibility here lies with the State, it is my view that governments should consider partnering with key international cooperation allies, local businesses, donors among others, to bolster their resource base at the financial, social and technical levels. The Health Ombud’s report suggests that this kind of support was available to Gauteng but the provincial leadership did not do very well in utilizing the support of experts and organisations in the field. Heeding the advice of professionals would have helped save lives and would have immensely supported a viable implementation route of the project.

Given the porous nature of the Gauteng project conception and implementation, talking about impact and monitoring would seem a redundant issue but not highlighting their importance here would be dire. A human rights-based approach to implementation impresses on the need to assess impact and this can be done by deciding in advance how the project is going to define success. The Gauteng project conceptualisation and planning was significantly flawed from a human rights based perspective, but the sheer necessity and imperative of setting appropriate milestones and benchmarks are also highlighted in this case. Appropriate milestones and benchmarks along the way would have provided an indication of progress in a verifiable manner. If planning had been human rights-based, the project would have included both process and outcome indicators and intervals at which they would have been evaluated.

However, this is all water under the bridge; sadly lives were lost but this need not ever happen anywhere again in the future if States honour their human rights obligations.

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Stripped of Dignity: The Struggle for LGBT Rights in Tanzania

rodger_owisoAuthor: Daniel Marari
LLM, International Human Rights Law, Lund University, Sweden

Although the Tanzanian Constitution (1977) guarantees the right to equality and prohibits discrimination based on gender and sex, lesbian, gay, bisexual and transgender (LGBT) people still face deeply rooted hostility, prejudice and widespread discrimination in the Tanzanian society.  Threats of criminal penalty, social exclusion, harassment and violence make it particularly unsafe for one to come out as an LGBT person.

At present, certain homosexual acts between consenting adult males are criminalized under the Penal Code (Chapter 16 of the laws). Under section 154 of the Penal Code, committing or attempting to commit “unnatural offences” are crimes punishable with a maximum sentence of life imprisonment and twenty years’ imprisonment, respectively. “Unnatural offence” is defined as (1) sexual intercourse with any person “against the order of nature” as well as (2) consensual sexual intercourse between a man and man or woman “against the order of nature”.  The words “against the order of nature” are not statutorily defined. Also, under section 157 of the Penal Code, it is an offence punishable with a maximum of five years imprisonment for any male person, whether in public or private, to commit an act of gross indecency with another male person.  By section 3 of the Sexual Offences Special Provisions Act, “gross indecency” is defined as “any sexual act that is more than ordinary but falls short of actual intercourse and may include masturbation and indecent physical contact or indecent behavior without any physical contact”.  Consent is no defense to any of these offences and no distinction regarding age is made in the text of the law. As the consequence of the existence of these laws criminalizing private consensual homosexual acts, LGBT people in Tanzania live in psychological stress and unceasing fear of prosecution and imprisonment.

While laws prohibiting same-sex relations have been in the law books since colonial times, there has not been any an actual prosecution or clampdown against LGBT minorities. Recently, however, the government has stepped up the hunt and prosecution of LGBT minorities and particularly gays, a move which has only served to reinforce more fear, prejudice and marginalization. The latest threats come from the government’s decision to crackdown, prosecute and publish the names of LGBT people. Embracing popular traditional and cultural norms that are usually invoked to justify LGBT hate and discrimination, the Deputy Minister for Health wrote on Twitter that homosexuality is unscientific and is against Tanzania law and morality. In one of the tweets he wrote, “Have you ever seen a gay goat or bird? Homosexuality is not biological. It is unnatural, “homosexuality is not a human right” vowing also to search for and prosecute gays and those who advocate for LGBT issues. A press conference to announce the names of suspected LGBT people was scheduled for February 27th but was later cancelled “for technical reasons”. In September 2016, the government threatened to ban non-government organizations (NGOs) supporting LGBT programs and in fact deregistered one NGO for carrying out HIV/AIDS outreach programs for gay and bisexual men.

Most Tanzanians strongly oppose the notion of LGBT rights on the assumption that non-traditional sexual orientation/gender identity is ungodly and immoral. LGBT rights supporters are quickly met with loathing and criticism. Such widespread negativity has hindered the possibility of any meaningful public debate and sharing of knowledge on human rights of LGBT people. With a lot of people still in the dark, it has been increasingly challenging to promote LGBT rights and stop discriminatory practices. While acknowledging the presence of LGBT people in the Tanzanian society, many anti-LGBT actors find it easy to demonize the issue as un-African, and a western invention as there is no such thing as ‘right’ to homosexuality. Those who are quick to condemn homosexuality or transgenders hardly bother to reflect on the scientific aspects of sexual orientation and/or gender identity.

LGBT people are not asking for any special rights. What they are demanding are human rights already provided by the Tanzanian Constitution. They are asking for protection from discrimination based on their actual or perceived sexual orientation and/or gender identity. They are asking for equal access to employment, healthcare, education, housing and other services. In fact, what LGBT people are asking for is the fulfillment of the constitutional promise of equality and there is nothing specifically western about that. Tanzania has ratified international and regional treaties guaranteeing basic rights including right of minorities and vulnerable groups and it is time it lives up to its promises. There is no doubt that criminalization of private consensual homosexual acts between adults affect the private lives of LGBT people as they cannot express their sexual and/or gender identity without being liable to prosecution. Even where there is justification to restrict homosexual relationships so as to protect special groups like children or other vulnerable persons from sexual abuse, just as heterosexual relationships can be restricted on the same grounds, that argument would not justify all-inclusive criminal sanctions where persons involved are consenting adults.

Given the opposition from top levels of government, the international community and national stakeholders should engage in advocacy with the Tanzanian government about the rights of LGBT minorities under international human rights law and demand for the decriminalization of LGBT relationships. The international community should also organize discussions with government officials on recent literature including United Nations-backed research demonstrating that criminalization of same-sex conduct imposes obstacles to HIV prevention and treatment. An open public conversation and promotion of human rights education would also help to raise public awareness as well as expose and challenge attitudes regarding LGBT identities and rights. Locally, politicians should refrain from making homophobic and transphobic statements as such statements run the risk of inciting further discrimination and hate crimes against LGBT persons. The government should instead investigate acts of violence and discrimination against LGBT people and hold offenders accountable. Lastly, the constitutional prohibition of discrimination applies to discrimination based on sexual orientation and gender identity which fundamentally means the government must ensure that people are treated equally whatever their sexual orientation or gender identity.  Activists should use this legal possibility to petition courts of law to protect LGBT people from discrimination.

Continue reading “Stripped of Dignity: The Struggle for LGBT Rights in Tanzania”

AFRICA: Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts – 54 case summaries

reprohealthlaw

2017_legal_grounds

by: Godfrey Kangaude, Onyema Afulukwe, Guy-Fleury Ntwari, et al.
Foreword by Prof. Charles G. Ngwena
PULP (Pretoria University Law Press) 2017
228 page book onlinePrevious volumes.
Printable flyer with Table of Contents

Reproductive and sexual rights, which are guaranteed in constitutions and in international and regional human rights treaties, have no impact if they are not recognized and enforced by national-level courts. Legal Grounds: Sexual and Reproductive Rights in Sub-Saharan African Courts Volume III continues to provide much-needed information about whether and how national courts of African countries apply constitutional and human rights to protect reproductive and sexual rights. The case summaries, significance sections, and thematic highlights serve as useful resources for those seeking to further develop litigation, advocacy, and capacity- building strategies.

Like its predecessors, Legal Grounds: Reproductive and Sexual Rights in Sub-Saharan African Courts – Volume III is a tool for organizations, individuals, and institutions…

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