Reevaluating AGOA as a Preferential Scheme and the Path to Follow: From Ethiopia’s Perspective

Meaza-Haddis-GebeyehuAuthor: Meaza Haddis Gebeyehu
Lecturer, Hawassa University, School of Law

One of the positive impacts of economic globalization is the shift of most, although not all, international trade relations into a rule-based, secure and institutionalized system instead of an arbitrary one. WTO and modern-time RTAs are the results of a long-term process since the 1940s which can be taken as a major step for the systematic regulation of international trade as a continuation of the structure from GATT 1947.

Eight rounds of negotiations took place during the GATT 1947 regime[1] during which the economic interests of most developing and least developed countries were underrepresented or totally ignored as the major parties to the negotiations were developed nations. Hence, developing and LDCs are left with the only choice of complying with the already established rules if they wish to be integrated into the multilateral system.

The inclusion of the concept of Special and Differential Treatment (S&D) under the various legal instruments of WTO is a move to accommodate the interests of these countries and prioritize their effective integration into the global system. It is the result of a political compromise. However, developing countries and LDCs have been complaining that the S&D schemes under WTO such as the U.S. implemented Generalized System of Preferences (GSP) system are not working in their favor in reality.[2] In fact, these programs are claimed to be more beneficial to the needs of the developed countries.

AGOA

As an expansion to the product coverage of the already operating GSP System, the U.S. enacted a legislation in May 2000, the African Growth and Opportunity Act (AGOA)[3] specific for SSA countries including Ethiopia. The aim was to promote economic developments of these LDCs through trade instead of aid. These countries were given preferential treatment under AGOA meaning they were allowed to export their products (such as textile and apparel products) duty-free to the U.S. market as an exception to WTO’s MFN principle.

Although AGOA is part of WTO’s S&D which puts responsibility on developed countries to provide special treatment for LDCs,[4] its WTO compatibility is questionable as preference-receiving countries are made specific instead of providing the preference for all developing and LDCs. It also suffers from legal instability as the U.S. adopted it as its federal law and can arbitrarily amend or repeal it anytime it deems right.[5]

AGOA

Moreover, the preferential scheme has two stages as eligibility criteria: geographical and social and economic criteria.[6]  The geographical criterion is that in order to be eligible for the scheme, a country should be one of the 38 SSA countries.[7] As part of the social and economic criteria, a country must ensure that it has, inter alia, market-based economy and economic policies to reduce poverty, works to achieve rule of law and combat corruption, and ensure respect for internationally recognized worker rights.[8] In addition, beneficiary countries are examined to check whether or not their national policies interfere with US national security or foreign policy, violate internationally-recognized human rights principles and support international terrorism.[9] It is through the use of all these eligibility criteria that the U.S. government regularly revises country-profiles and determines whether a country is still eligible or not to access the preferential scheme.

The aim of preferential schemes such as AGOA is not just fostering U.S.-African commercial relations, they rather carry a far-fetched objective of subjecting the preference-receiving countries into an arrangement that would serve the interests of the other side. The recent suspension of Ethiopia from accessing AGOA following new political developments in the country can be taken as an example to show that trade in the contemporary world is not just an economic issue but a political one as well and eligibility to access S&D schemes like AGOA goes beyond being considered as one of those countries deserving a special treatment owing to their fragile economies.

Path to Follow

The extent to which integration into the global trading system benefits a given country depends on that country’s economic competitiveness. Nevertheless, active engagement within the multilateral (WTO) and regional (RTAs) trade systems is considered as the best alternative available to ensure economic growth in this economically globalized world. Conducting trade based on a legally predictable and transparent system creates smooth trade relations among countries and that’s why an institutionalized trading system is desirable. In a global system where economic interdependence is not an option but a reality, it would be unrealistic to say Ethiopia would be better off isolated. However, it is reasonable to argue that Ethiopia’s international trade relations should be predictable and based on rules to avoid arbitrariness. It needs to strengthen its negotiating capacity to ensure that the outcome of trade negotiations and arrangements are favorable to its national objectives and do not only reflect the interests of the other side.

The decision of the U.S. to suspend Ethiopia from accessing AGOA should be met with immediate economic decisions to counterbalance the probable loss the country would face as a result of the suspension. There are various alternatives to this end including:

  • Making the best use of already existing RTAs to which Ethiopia is a party such as AfCFTA and COMESA;
  • Actively working towards the creation of new RTAs by entering into either bilateral or multilateral agreements;
  • Exploring and using other available  preferential schemes like Everything But Arms (EBA) Initiative;
  • Looking for alternative markets which haven’t been explored enough but have potential (African countries, countries in S. America, South East Asia …); and
  • Finalizing the country’s WTO accession since that would secure more predictable, certain and rules-based trade relations with other countries and reduce arbitrariness.

Conclusion

AGOA as S&D is supposed to operate based on the non-reciprocity principle being granted unilaterally by the U.S. for specific Countries. However, the whole process of the AGOA scheme is very ambiguous and arbitrary.[10] Although the arrangement is a non-reciprocal one, there still is a high probability for the U.S. to lobby the preference-receiving countries for the promotion of its political interests. The countries on both sides are not in any way on equal economic footing and bargaining power resulting in the manipulation of one by the other for other politically motivated agendas. Ethiopia as one of the latest countries to be given the ultimatum of suspension from accessing AGOA due to political changes taking place in the country can take this as an opportunity to look for other alternatives so that its future trade relations are based on predictable and rules-based system and its economy won’t be affected by such arbitrary decisions in the future. The experience of Ethiopia can serve as a lesson for other SSA countries as well.

 

[1] Geneva (1947), Annecy (1949), Torquay (1950-51), Geneva (1956), Geneva (1960-61) – also known as the Dillon Round, the Kennedy Round (1964-67), the Tokyo Round (1973-79) and the Uruguay Round (1986-94).

 https://www.wto.org/english/docs_e/gattbilaterals_e/indexbyround_e.htm (Accessed on 11/11/2021)

[2] Dominykas Roga, “Justice and Inequality in the World Trading System: A Critical Assessment”, Inquiries Journal/Student Pulse 4 (11) (2012). http://www.inquiriesjournal.com/a?id=712 (Accessed on 14/11/2021)

[3] UNCTAD, ‘The African Growth and Opportunity Act: A Preliminary Assessment’, A report prepared for the United Nations Conference on Trade and Development ( April 2003)

[4] For example Paragraph 44 of the Doha Delcaration (2001)

[5] Akiko Yanai, “Rethinking Special and Differential Treatment in the WTO”, IDE Discussion Paper No. 435, (2013): 7.

[6] Akiko Yanai, 6-7

[7] As of 2020 as the progress and eligibility of preference-receiving countries is examined annually.

[8] United States Trade Representative, ‘Implementation of the African Growth and Opportunity Act’, USTR Biennial Report to Congress on AGOA (June 2020): 16.

[9] Ibid

[10] Akiko Yanai, 7.

 

About the Author:

Meaza Haddis Gebeyehu is currently a Lecturer at Hawassa University, School of Law, where she teaches International Trade Law, Public International Law and Law of Contracts. She holds the degrees LL.B. from Hawassa University with Very Great Distinction and Magister Hukum (M.H.) in Legal Science (Cum Laude) from Universitas Indonesia.

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The role of African governments in the implementation of the Revised Declaration on freedom of expression online in Africa

freedom_of_expression

Authors: Imani Henrick, Bitebo Gogo, Ogah Peter Ejegwoya & Ayowole Olotupa-Adetona

The rights to freedom of expression, access to information and opinion are three distinct yet interconnected rights. The right to freedom of expression includes overt or covert communication through any medium including the Internet while access to information is being able to get information through any means. Both rights can be limited under international human rights standards. However, the right to opinion which is broader than both rights cannot be limited under international human rights standards.

This article identifies the role of African governments in implementing freedom of expression online. In doing so, it focuses on the provisions of the recent Declaration of Principles on Freedom of Expression and Access to Information in Africa (Revised Declaration) 2019.

The Revised Declaration was drafted by the Special Rapporteur on Freedom of Expression and Access to Information in Africa in consultations with relevant stakeholders and it was adopted by the African Commission on Human and Peoples’ Rights in 2019. The Revised Declaration replaced the Declaration of Principles on Freedom of Expression in Africa 2002 (Declaration). The Revised Declaration improved on the previous Declaration by identifying the roles of states in protecting the right to freedom of expression online under international human rights standards.

The preamble to the Revised Declaration provides that the right of freedom of expression and access to information available offline should also be protected online in line with international standards. It also has useful provisions on digital technologies and the right to freedom of expression online among others. One major feature of the Revised Declaration is that it directs the responsibilities of protecting online expression towards states. These responsibilities include legal reform, multistakeholderism, privacy protection, online content regulation and provisioning Internet access. 

In order to implement the right to freedom of expression online through the Revised Declaration, the African governments must do the following:

Legal reform: Principle 43 of the Revised Declaration requires states to adopt legislative measures to give effect to the Declaration. Currently, the local laws in several African countries have unclear and over-broad provisions on the right to freedom of expression online. Principle 22 of the Declaration requires states to review criminal measures on content. Laws that criminalise acts such as sedition are antithetical to the Revised Declaration and international human rights standards. Countries like Zambia, Nigeria, and Uganda all retain sedition in their criminal laws.

fredom-of-expression

Local laws should specifically protect online expression and key stakeholders should also be involved in making such laws. In developing these laws, non-state actors like civil societies, Internet Service Providers (ISPs), and other stakeholders should be included in order to drive multistakeholder participation. 

Multistakeholderism: Principle 17 (4) of the Revised Declaration urges states to put a multistakeholder model of regulating online expression in place. What this means is that states should develop a rulemaking system that involves proximate actors, including users. Such regulation should also be administrative in nature which should not usurp the judiciary’s role in adjudicating on online expression. Part V of the Model Law on Access to Information in Africa provides for the structure of an independent and impartial oversight mechanism by ensuring that the funding and functioning of the body is detached from the executive authority.

Privacy and protection of personal information: The Revised Declaration recognises the importance of privacy protection to freedom of expression. Guaranteed privacy ensures that people are able to freely air their views in private and public without fear; this can be through anonymous posts. Furthermore, Principle 40 of the Revised Declaration provides for confidentiality of communication and protection of personal information. Principle 41 of the Revised Declaration also discourages states from engaging in mass or illegal surveillance.  

Regulating online content: In Principle 34 of the Revised Declaration, the role of states in regulating online content is to provide an oversight mechanism. The oversight mechanism of states is to facilitate multistakeholder regulation of online platforms to ensure transparency and accountability.

Internet access: Freedom of expression online can only be exercised where there is access to Internet and digital technologies. Principle 37 of the Revised Declaration requires states to embrace collaborative efforts to foster more Internet access. States are also encouraged to facilitate digital literacy and security skills, particularly in underserved communities in line with the provision of Principle 37(3)(e) of the Revised Declaration. States can make effective use of the Universal Service and Access Funds available in their countries to install facilities like fibre optic cables that can further bridge the digital divide and cater for the unserved and underserved areas.

Conclusion

Governments have roles in protecting online expression. In the African context, governments should refrain from criminalising free speech and ensure that domestic laws and policies do not impose illegitimate restrictions on online expression. Internet and digital technologies should also be accessible and affordable so that the citizens can be educated and enlightened to make informed decisions. Ultimately, a free digital space will ensure that citizens have the liberty to express themselves in a way that promotes innovation and development. 

 

About the Authors:

Imani Henrick is a journalist from Njombe, Tanzania. She is a former TV presenter, who is now working with KingsFm Radio as a program director. She advocates for human rights and Internet freedom in the programs she hosts. Imani Played a major role in the #KeepItOntz movement against internet shutdowns during Tanzania’s 2020 election. She has won many awards including the best female TV presenter, and Youth Peace Challenge (YPC) awards organised by the Korean government. She educates young girls on self-awareness and menstrual hygiene, and also enlightens women on digital security. Imani is a fellow on DRIMF by Paradigm Initiative that aims to improve public understanding of Digital Rights and Inclusion issues in Africa.

Bitebo Gogo is a lawyer by training, a Chartered Arbitrator and Mediator, and the Volunteer Executive Director of Keeping It Real (KIR) Foundation. She is an education enthusiast and a Disability Inclusion Advocate, who has been recognised as one of the prominent voices advocating for a more humane, disability inclusive, and equitable society. Bitebo is passionate about helping people; especially the youth, unleash and maximise their potentials so that they can pursue purpose-driven lives and make a meaningful impact in society.

Peter Ogah Ejegwoya is a co-founder of the Youth Engage for Community Development, a youth led grassroot NGO working to improve access to quality life, education, and healthcare services. Peter has over five years’ experience advocating for women and girls’ rights and has helped implement several projects in partnership with Action Aid, Ford Foundation, International Foundation for Electoral System (IFES), Yiaga Africa, and HEDA Resource Center. Peter has also worked with organsations, such as Budgit to promote citizens rights online and offline, and to expand spaces for women and youth inclusion in politics.

Ayowole Olotupa-Adetona is a legal practitioner and a partner at Alan Attorneys. His area of practice is human rights, particularly as it relates to the digital space. Ayowole is also the co-founder of Mantis Africa, a legal technology and digital rights advocacy group, where he partners with several organisations and coalitions to promote digital rights and inclusion in Africa and foster the use of technology for dispensing legal services. Ayowole is a creative writer who is passionate about education and teenage development.

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Parallel Rules: Overlap of Jurisdiction of Regional Trade Agreements (RTAs) with World Trade Organisation (WTO)

Meaza-Haddis-GebeyehuAuthor: Meaza Haddis Gebeyehu
Lecturer, Hawassa University, School of Law

It is very interesting how RTAs have increased in number and scope in recent years as manifestation of the new tendency towards regionalism at the expense of WTO’s multilateral arrangement. As of 15 October 2021, the WTO received 568 notifications of RTAs from its members and currently 350 RTAs are in force.[1] RTAs and their reciprocal preferential trade rules are in principle against WTO’s non-discrimination principles but they constitute one of the authorised exemptions under WTO. 

The fact that the Doha Development Round as a major multilateral trade negotiation under WTO has deadlocked for more than a decade gave RTAs the opportunity to be taken as important alternatives.[2] RTAs have proliferated not only in number but in the regions they cover and in the sectors of trade they apply to as well.[3] The rapid growth in the number of RTAs in recent years created two phenomena: (i) it undermines WTO’s non-discrimination principle as RTAs establish preferential rules among member states and hence generate the ‘spaghetti bowl’; and (ii) RTAs often institutionalise their dispute settlement mechanisms to address disputes arising with regard to the applications of these agreements. The possibility of potential conflicts of jurisdiction between the respective dispute settlement mechanisms might arise as RTAs include separate dispute settlement rules to deal with obligations of parties under these RTAs that are parallel or even similar to their obligations under the WTO covered agreements.[4]

Dispute settlement is one of the major functions of WTO as per Article III (3) of the WTO agreement. Moreover, Article 3.2 of the Dispute Settlement Understanding (DSU) provides that WTO’s dispute settlement is an essential element to provide security and predictability to the multilateral trading system. The WTO dispute settlement has two major purposes: preserving the rights and obligations of members under the various WTO agreements, and clarifying the existing provisions of those agreements. This well developed and a rule-based system assumes compulsory, exclusive and contentious jurisdiction as provided under the various provisions of the DSU.

WTO-dispute-settlement

Not only do RTAs concern the same issues as various WTO agreements in terms of substance, but they also contain some form of dispute settlement mechanisms parallel to WTO’s dispute settlement system. The dispute settlement arrangements or rules of majority of RTAs can generally be described as one of the following: a) choice of forum agreements; b) exclusive jurisdiction agreements; or c) preference agreements.[5]   The rules of most RTAs operating today belong to the first category, choice of forum agreements allowing the complaining party to choose between that RTA’s dispute settlement system or WTO’s system when deciding to bring a claim. The general understanding related to this arrangement from most RTAs is that, the initiation of a dispute settlement process in one forum will automatically exclude the other forum from entertaining the case.  While WTO as a multilateral system has exclusive and compulsory jurisdiction over cases concerning covered agreements, RTAs have adopted parallel dispute resolution rules distinct from WTO’s system creating a paradox and contradiction between the two systems.

The issue is that since Article 23 of the DSU provide compulsory and exclusive jurisdiction to resolve disputes involving the WTO covered agreements, one may ask whether RTAs with substantive provisions that are similar to the WTO but which have the effect of requiring resolution of a dispute by the RTA’s dispute settlement process-either by compulsion or by being the first chosen exclusive forum-deprive parties of the right of access to the WTO’s dispute settlement process. On the other hand, just because parties to RTAs have agreed to the terms of the agreements, are they going to be deprived of their rights to access WTO’s dispute settlement system which is sophisticated and more effective than RTAs’ mechanisms just because initiating a WTO proceeding might be considered as violation of their RTA obligation? If so, it would mean parties to an RTA would have to give up WTO’s dispute settlement system which is legally rigorous, detailed and more attractive, and must rather adhere to a not so developed dispute resolution mechanism of the RTA to which they are parties so as to avoid violation of their RTA obligations.

The occurrence of overlaps of jurisdiction opens room for ‘forum shopping’ by which disputing parties can choose between two jurisdictions to initiate their complaints at both fora either at the same time or one after the other. This in turn will cause dispute settlement bodies to reach different or opposing decisions which cannot even be executed together. These bodies may also claim to have the final jurisdiction as they do not recognise each other’s adjudicatory power. Negotiation of terms of mutual recognition of the jurisdictions of both systems concurrently can hence be considered the most effective solution to reduce cases of overlaps of jurisdiction since both systems have the potential to work together towards a more developed international trade law legal regime where effective legal integration instead of fragmentation is achieved.

[1] https://www.wto.org/english/tratop_e/region_e/region_e.htm; Both GATT 1994 and WTO jurisprudence have made it clear that members are allowed to enter into regional trade agreements as long as they fulfill the pre-conditions as set out under Article XXIV of GATT 1994 or Article V of GATS.

[2] Simon Lester and Bryan Mercurio (eds),  Bilateral and Regional Trade Agreements: Commentary and Analysis, Cambridge University Press (2009), 1.

[3] Ibid.

[4] Angelica Bonfanti and Cesare Pitea, “Is the settlement of trade disputes under Regional Trade Agreements undermining the WTO dispute settlement mechanism and the integrity of the world trading system?”, QIL, Zoom-in 23 (2015).

[5] Jennifer A. Hillman, “Conflicts Between Dispute Settlement Mechanisms in Regional Trade Agreements and the WTO — What Should WTO Do?”, 42 Cornell International Law Journal, pp. 193-208 (2009);  195.

About the Author:

Meaza Haddis Gebeyehu is currently a Lecturer at Hawassa University, School of Law, where she teaches International Trade Law, Public International Law and Law of Contracts. She holds the degrees LL.B. from Hawassa University with Very Great Distinction and Magister Hukum (M.H.) in Legal Science (Cum Laude) from Universitas Indonesia.

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A quest for better protection: Sudanese women today

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

Violence against Women and Girls (VAWG) is regarded as a prevalent and critical hindering factor for human development and peace-building in Sudan. Prior to the revolution, Sudanese women used to face a daily risk of being arbitrarily arrested in public or private places for “indecent or immoral behavior or dress.” Public Order Police Officers in Sudan had the power to decide what is decent and what is not. In most cases women are arrested for wearing trousers or knee length skirts.[1]  Though in 2019, the transitional Sudanese government rescinded the public order laws that governed women’s presence in public spaces, resulting in arbitrary arrests and ill-treatment, Sudan still needs to change other aspects of the public order regime that has a discriminatory effect on women.

Sudan is a party to the International Covenant on Civil and Political Rights. Though the Sudanese government approved the ratification of CEDAW and the African Protocol on Women’s Rights following years of demands from Sudanese women, the ratification of CEDAW came with reservations on the articles number 2, 16 and 1/29, which is a clear violation of the rule that prevents reservations that defeat the essential elements and goals of human rights covenants.

In October 2020, the Sudanese justice ministry announced the formation of a committee to reform the Muslims personal law. Sudanese women and human rights groups also called for reform of the Sharia based law, which legalises child marriage, guardianship of men over women among other women rights violations. The justice ministry decision gave the committee one month to present the new law, despite this there has been no much progress from this committee. Political commitment in this area is also low. A recent quote from new finance minister, Jebril Ibrahim, while speaking to some traditional Islamic leaders read: “we will not refrain from supporting the Islamic laws in Sudan. You know they are making new Muslim Personal Law that complies with demands of foreigners, and we will not allow that to happen”. This is a very unfortunate statement coming from a government official after the fall of the radical Islamic regime in Sudan two years ago.[2]

In recent developments Sudanese women rights activists faced vicious defamation and attacks from Islamic fundamentalists on social media and on streets. Women were attacked for their views. The country witnessed rising incidents of violence against women at homes, on streets and in conflict areas. The attacks included a social media campaign that called men to start public lashing of women who are not wearing Hijab on streets. Unfortunately, the campaign got support from the head of police who was then removed after public protest by women groups.[3]

The continuous tribal and militia violence in several regions in Darfur and Kordofan has led to displacement of hundreds of women, death and sexual abuse of dozens of women and girls. The lack of protection of women, especially in conflict areas such as Darfur is a warning sign of the fragile peace agreement and the need for commitment to the provisions related to protection of civilians. On April 28th, 2020 a woman was killed in Beleil town in South Darfur during a violent crackdown on a peaceful sit-in demanding security in the town. On May 5th, Howyda Hasan was killed in a violent attack on a peaceful protest in Western Kordofan. Sudanese women groups demanded the government to take an urgent step to approve the proposed Violence Against Women Act, but the government’s approval was delayed for months without any known reasons. This comes in the shadows of the complete neglect of women demands for comprehensive participation in the transitional government in accordance with the transitional constitution. The current cabinet in Sudan has less than 15 percent of women participation, while the constitutional document grants women at least 40 percent of all government positions.[4]

The government of Sudan also stands still in the process of justice for sexual violence committed against women during reign of the former regime. The issue of sexual violence in conflict areas has not been addressed properly in the peace agreements and there is no clear evidence of any investigations or legal actions to be taken on this issue. The ICC case concerning the situation in Darfur has charges including mass rape, but steps taken so far are slow to facilitate the court process to reach for the victims, including the current case before the court of Kushayb. The sexual violence committed during the revolution against women protesters; especially on the 3rd of June 2019 sit in crackdown has not been part of the focus of the formed investigation committee. [5]According to figures of UN Women, 34.2% of Sudanese women aged 20–24 years old were married or in a union before age 18.[6] Though in 2015, the state introduced a national strategy to end child marriage, children still get married at the age of 15 or 16.[7] The legal age of marriage was 10 years for girls and 15 years or puberty for boys.[8] As long as children reach the age of puberty, it is normal to marry them off.  What matters for most people in the community is that people perceive them as women and not as girls.

UN Women highlights the adolescent birth rate for Sudan as 86.8 per 1,000 women aged 15-19 as of 2013, up from 64.9 per 1,000 in 2007. In Sudan, the policy environment for addressing violence against women is weak due to sensitivities on data collection, International Criminal Court (ICC) indictments against key government officials alleging violations of human rights including violence against women and stigma associated with violence against women.[9]

In practice a mixture of laws apply in the country. National laws concerning personal and family matters of Muslims adopted during the Bashir administration remain largely in effect and are based on a sharia system of jurisprudence. The existing criminal code states the law, including at the state and local levels, shall be based on sharia sources and include hudood, qisas, and diyah principles (regarding punishment, restitution, and compensation for specific serious crimes). The criminal code takes into consideration multiple sharia schools of jurisprudence (madhahib). [10] Northern Sudan still applies predominantly sharia law.

In the Muslim community both tradition and religion play a significant role and impact their day to day life. Though in July 2020, the civilian-led transitional government (CLTG) repealed a provision of law under which individuals could be arrested for indecent dress and other offenses deemed injurious to honor, reputation, and public morality, in practice the community values continue to exclude women, particularly in the north.

There are separate family courts for Muslims and non-Muslims to address personal status issues such as marriage, divorce, and child custody, according to their religion. By law, in custody dispute cases where one parent is Muslim and the other is Christian, courts grant custody to the Muslim parent if there is any concern that the non-Muslim parent would raise the child in a religion other than Islam. According to Islamic personal status laws, Christians (including children) may not inherit assets from a Muslim. Children of mixed (Muslim-Christian) marriages are considered Muslim and may inherit.

Honor killings and persecutions are prevalent. The notion of honor (sharaf) is central to Sudanese culture. People’s awareness of their personal honor tends to guide behavior and interactions in almost all circumstances. Personal honor is deeply intertwined with family reputation in Sudan. Traditionally, one’s behavior would affect the honor or reputation of the entire clan. This is still the case for some tribes in rural areas, while in urban areas it has changed to be reflective of the family alone. There are many factors that can determine whether one is perceived to have honor. One’s honor is deeply linked to an individual’s personal demeanor, treatment of others, integrity and modesty – specifically, the sexual modesty of one’s female family members. The Public Order Law prohibits some offences of honor, reputation and public morality such as the co-mingling of unmarried men and women, and indecent” dress.[11]  In some conservative communities, the unproven suspicion of a woman’s infidelity can cause enough disgrace to ruin her family’s reputation. If a woman is perceived to be promiscuous, her family name (sumaat ahalak) is put to shame (aar). [12]

Public disgrace can have extreme consequences. It can cause social exclusion and have very serious effects on people’s future opportunities and circumstances. Therefore, the public perception of a family’s honor can be more important than their social or monetary position in Sudan. There is often a strong cultural pressure on individuals to protect their reputation. In some serious cases, a family may feel obliged to shun the member of the household that brought shame upon them in order to clear their family name. Ultimately, much behavior may be motivated by a fear of shame (aar) or guilt. [13]

To effectively address perpetual violence against women in Sudan, the writer proposes the following actions;

  1. Harmonisation of laws in accordance with international and regional human rights

Standards

The government of Sudan must:

 

  • Remove reservations entered on article number 2, 16 and 1/29, which is a clear violation of the rule that prevents reservations that are considered part of the essential elements of CEDAW.
  • Expedite the reform process of Muslim Personal laws and Sharia based laws that legalise child marriage, guardianship of men over women among others.
  • Expedite the adoption and enforcement of the proposed Violence against Women Act.
  1. Advocacy and awareness raising efforts
  • Raise awareness on gender equality and promote women’s rights to freedom of expression
  • Raise awareness on the impacts of harmful traditional practices on women and girls.
  1. Enforcement of existing laws to better protect women and girls from Violence
  • Expedite investigation and prosecution of sexual violence cases that occurred in the past.

[1] Amnesty International, Sudan Human Rights < www.amnestyusa.org/countries/sudan/> accessed 15 June, 2021.

[2]Universal Rights Group, Human rights in Sudan: the new test case for the Human Rights Council [27Oct2020] <www.universal-rights.org/uncategorized/human-rights-in-sudan-the-new-test-case-for-the-human-rights-council> accessed on 9 June 2021.

[3]Universal Rights Group, Human rights in Sudan: the new test case for the Human Rights Council [27Oct2020] < www.universal-rights.org/uncategorized/human-rights-in-sudan-the-new-test-case-for-the-human-rights-council> accessed on 9 June 2021.

[4] Open Democracy free thinking for the world, In Sudan, women are still facing the deadly threat of the military, [5 October 2020] < www.opendemocracy.net/en/north-africa-west-asia/sudan-women-are-still-facing-deadly-threat-military > accessed on 8 June 2021.

[5]Open Democracy free thinking for the world, In Sudan, women are still facing the deadly threat of the military, [5 October 2020] < http://www.opendemocracy.net/en/north-africa-west-asia/sudan-women-are-still-facing-deadly-threat-military > accessed on 8 June 2021.

[6] UN Women, Sudan Country Information [27Oct2020] < www africa.unwomen.org/en/where-we-are/eastern-and-southern-africa/sudan> accessed on 8 June 2021.

[7] United Nations Human Rights Council, Working Group on the Universal Periodic Review, National report Sudan submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21, [13May2016]    < www. documents-dds-ny.un.org/doc/UNDOC/GEN/G16/025/86/PDF/G1602586.pdf?OpenElement> accessed on 15 June 2021.

[8] US Department of States, 2019 Country Reports on Human Rights Practices: Sudan < www.state.gov/reports/2019-country-reports-on-human-rights-practices/sudan/ > accessed on 15 June 2021.

[9] UN Women, Sudan Country Information [27Oct2020] > accessed on 8 June 2021.

[10] United States Commission on International Religious Freedom, Annual Report 2021[April 2021], <www.justice.gov/eoir/page/file/1389061/download> accessed on 10 June 2021.

[11]Sudan Chapter – 2015 Annual Report, TOLERANCE PROJECT <https://tolerance.tavaana.org/en/content/sudan&gt; accessed on 25 October 25, 2021.

[12] Cultural ATLAS, North Sudanese Culture, accessed on 10 June 2021.

[13] Id.

About the Author:

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

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On Indicator 16.3.3 of SDG 16.3 – Measurements of Civil Justice

Author: Menelik Solomon Mamo
Consultant and attorney, Ethiopia

Access to Justice, as a component of the rule of law, is comprised of a number of elements that at its core means that individuals and communities with legal needs know where to go for help, obtain the help they need, and move through a system that offers procedural, substantive, and expeditious justice.  According to the World Justice Project’s (WJP) report, Measuring the Justice Gap, 5.1 billion people or approximately two-thirds of the world’s population are faced with at least one justice issue. It is evident that the majority of these justiciable matters that individuals face fall within the ambit of civil justice. The fact that individuals, especially those from developing countries, are surrounded by these problems while lacking access to justice to deal with them, form part of the dynamics that create and perpetuate poverty and inequality.

Access to Justice has been one of the most recurring themes in development agendas. For instance, one of the most important goals among the 17 Sustainable Development Goals is SDG 16 which aims to, according to the official wording, “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”. The target for Sub goal 16.3, which deals with the provision of Access to justice for all, is measured by three indicators, namely:

  • Indicator 16.3.1: Proportion of victims of violence in the previous 12 months who reported their victimization to competent authorities or other officially recognized conflict resolution mechanisms.
  • Indicator 16.3.2: Unsentenced detainees as a proportion of overall prison population.

The above indicators exhibit a theory about the world in which access to justice is primarily concerned with the relationship between the state and the individual regarding criminal matters. Of course this relationship is crucially important: under human rights law, the coercive power of the state must be harnessed to protect the security of all equally, and because the state’s carceral powers must not be arbitrary and must be subject to the rule of law.

When the SDG indicators were established in 2015, civil justice problems were deemed too complex and ubiquitous to be included in the SDG framework, resulting in the initial adoption of two criminal justice focused indicators on crime reporting (16.3.1) and detainees (16.3.2). After a long and complex process, a new indicator 16.3.3 on civil justice was finally adopted by the UN Statistical Commission at its 51st session in March 2020. Indicator SDG 16.3.3 which officially reads as:

  • Proportion of the population who have experienced a dispute in the past two years and who accessed a formal or informal dispute resolution mechanism, by type of mechanism”.

The new indicator has been described as “people centred” measuring “the experience of legal problems from the perspective of those who face them” and providing a broad assessment of public justice needs by covering formal and informal legal institutions[1].

This indicator is computed by dividing the number of persons who experienced a dispute during the past two years who accessed a formal or informal dispute resolution mechanism (numerator), by the number of those who experienced a dispute in the past two years minus those who are voluntarily self-excluded (denominator). The result would be multiplied by 100.

The writer believes that these indicators do not best link justice to human development for at least two reasons. On one hand, calculating merely the number of people who have accessed one or another form of dispute resolution mechanisms does not measure the quality of justice services provided as factors such as low level of legal awareness on the part of demand side and inefficiency (capacity and performance) on the supply side, could be compromised the quality.

On the other hand, the measurements of the targets especially SDG 16.3. depends on the gathering of data which tend to be politicised. Therefore, whose data, government’s or data from civil society organisations? The answer to this should address credibility issues.

Therefore, constructing indicators to measure this broader vision of access to justice would entail the collection of data about the kind of ‘justiciable problems’ people experience, the full range of rights guaranteed under human rights law, the formal and informal institutions that exist to handle barriers to achieving those rights, and the quality of needed assistance in obtaining justice.

In conclusion, adopting a holistic (civil and Criminal) indicator would undoubtedly ensure that stakeholders such as policy-makers and development professionals get a better understanding of the legal barriers and capability of everyday citizens, especially of the poor in the global-south. However, in order to gather genuine data, governments, international institutions such as the World Bank, and local (grassroots) and International Civil Society organizations should collaborate. This collaboration would help mitigate the downsides of gathering data only from a single source (national Governments) as is being done currently. More weight should also be given to the quality of justice provision rather than putting an emphasis only on the statistics.

[1] https://devpolicy.org/author/kristin-bergtora-sandvik

About the Author:
Menelik Solomon Mamo is a consultant and attorney at law based in Ethiopia. He holds an LLB degree from the University of Gondar, MA in Development Studies, and MSW (Master of Social Work) from Addis Ababa University. He is also serving as a volunteer Executive Director of Advocates for Development, a local NGO which works on Legal empowerment, access to justice, and on the intersections of Law and development.

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The right to food and housing for Internally Displaced Persons in Colombia and the Democratic Republic of Congo (DRC): geographical distance does not forcibly mean different situations

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

Author: Juan Pablo Serrano Frattali
Member of research group Social Anthropology of Motricity of the University of Granada

Colombia and the Democratic Republic of Congo (DRC) are the countries with the largest population of Internally Displaced Persons (IDPs) in South America and Africa, respectively, the third, and the second in the world (Syria heads the world ranking).[1] Internal displacement in Colombia constitutes a widely recognized phenomenon, having become an essential reference point for internal migration studies.[2] At the end of 2020, Colombia counted the highest number of IPDs in South America because of conflict and violence (4.9 million). In 2020, however, while Colombia counted 170,000 new IDPs, 106,000 of whom resulted from conflict and violence, Brazil counted 380,000 new IDPs, all due to natural disasters.[3] Violence continued in Colombia notwithstanding Covid-19 restrictions. Many combatants with the Revolutionary Armed Forces of Colombia (FARC) disbanded and reintegrated into society after the 2016 peace deal,[4] but dissident factions have since emerged, and paramilitary groups continue to exercise significant territorial control.[5] The department of Nariño, close to Ecuador, has been historically a hotspot of conflict and displacement given its strategic location on drug-trafficking routes.[6]

In the same period, DRC counted 2,488,000 new IDPs (2,209,000 because of conflict),[7] with a hotspot in the Ituri province, in the northeast of the country, bordering Rwanda, where tensions between Hema and Lendu communities became increasingly violent as the armed faction of the Lendu community carried out indiscriminate attacks on civilians.[8] The provinces of North Kivu, South Kivu, Maniema and Tanganyika also remain conflict hotspots, and ethnic tensions continue to be among the main causes of displacement in eastern DRC.[9] In DRC, the total number of IDPs as of the end of 2020 (because of conflict and violence) amounts to 5,268,000 persons, while “only” 64,000 are displaced because of natural disasters.[10]

This precarious situation has undermined the rights of IDPs to an adequate standard of living, especially food and housing, two of the very basic rights for all people worldwide, as prescribed by article 11(1) of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR).[11] Its 1991 General Comment No. 4 confirms, “The right to adequate housing applies to everyone” (para 6). Additionally, all beneficiaries of the right to adequate housing should have sustainable access; inter alia, to means of food storage, as well (para 8(b)).[12]

At the Inter-American level, although the 1969 American Convention on Human Rights (ACHR) deals primarily with civil and political rights, it includes in article 26 a general provision on economic, social and cultural rights. The ACHR refers indirectly to the right to an adequate standard of living when it mentions in article 26 the commitment of states parties to adopt measures to guarantee the realisation of the “rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter”.[13] In this case, the “Charter” refers to the 1948 Charter of the Organization of American States (OAS Charter) and most notably to articles 26-27 (“Economic standards”) and 28-29 (“Social standards).[14] The first Additional Protocol to the ACHR is in the area of economic, social, and cultural rights (Protocol of San Salvador, 17 November 1988), was ratified by Colombia on 10 November 1997.[15] Several articles of this protocol, such as article 12 (“Right to food”) but also article 3 (“Obligation of non-discrimination”) and 4 (“Inadmissibility of restrictions”) have been disregard vis-à-vis the conditions of the IDPs in Colombia in these last years,[16] particularly Afro-Colombians and indigenous people.[17]

At the African level, the 1981 African Charter on Human and Peoples’ Rights (Banjul Charter) does not explicitly promote the right to an adequate standard of living, housing and/or food. [18] However, these rights are not outside the scope of interpretative possibilities open to the African supervisory bodies, being covered by a combined reading of articles 5 (“Prohibition of torture and cruel, inhuman and degrading treatment”) and 14-18 of the Banjul Charter. The African Commission on Human and Peoples’ Rights (ACHPR) confirmed this interpretation in the decision following the communication The Social and Economic Rights Action Centre et al. v. Nigeria (communication no. 155/96) where it found violations of the rights to housing and food (paras 63 and 66).[19] In 2019 the ACHPR called on African states to adopt “appropriate policy, institutional and legislative measures to ensure the full enjoyment of the right to food which includes constantly accessible and quality food that meets the requirement of nutrition and cultural acceptability” (Resolution No. 431 on the Right to Food and Nutrition in Africa) (para 1).[20] Earlier, in 2017, the same institution was very concerned that most vulnerable groups, including IDPs, were those mostly affected by food insecurity on the continent (Resolution No. 374 on the right to food and food insecurity in Africa) (Preamble).[21]

At the domestic level, Colombia enacted a law on the protection of IDPs in 1997 (Law No. 387), article 15(1) of which provides that, in the case of displacement, the Government will take responsibility to assist the displaced, including in the area of food and temporary housing. Additionally, article 19(14) also provides that “The National Institute of Urban Reform, INURBE, shall develop special housing programs to address the needs of populations displaced by violence”.[22] In January 2004, the Constitutional Court delivered judgment T-025/04.[23] The Court formally declared that IDPs’ inhumane living conditions needed to be addressed by all of the competent authorities (para 5.3). The Court noted that due to action or omission by the authorities in providing displaced populations with effective protection, thousands of people suffer continuous violations of their human rights, including the right to food and the right to housing (para 6). Overall, the Court noted that the violations of rights of IDPs were not attributable to the actions or omissions of a single authority, but were due to deep-seated structural failures.

The Colombian Constitution formally recognizes the human right to adequate food (arts 45, 46 and 65),[24] which sets the foundation for a comprehensive legal framework that promotes food donation. This right is reflected in national food safety laws, including the recently adopted Law No. 1990 of 2019, and other laws relevant to food rescue and recovery. Before Law No. 1990, the President of Colombia executed the national food law for the protection of human health in 1979, which contains regulations related to food safety (especially Article 243).[25] Law No. 1990 deplores food loss and waste, promotes more sustainable food systems, and improve the food and nutrition security of the Colombian population.[26] The Colombian Constitution also recognizes the right to housing in several articles (especially 51 and 64). On 14 January 2021, the Colombian Government enacted the new Colombian Housing and Habitat Law. Through the new law, the Colombian Government is seeking to reduce the country’s housing deficit by increasing access to government housing subsidies and expanding the mortgage market by relaxing current conservative origination and underwriting practices in place since the last mortgage crisis of 1998-2002.[27]

In DRC, the right to food is guaranteed by the Constitution through its article 47.[28] This right has been strengthened through the adoption of the 2011 law on the fundamental principles of the agriculture (article 1(2)).It is worth mentioning also the 2018 Decree No. 18/033 on the creation, organization and functioning of the National Fund of Habitat (Fonhab), which among its objectives, also is mandated to fund the building of affordable housing (Article 3(2)).[29] Concerning IDPs, in the country there is still only a draft law on IDPs dating back to 2014 that, until 2021, has not been formally adopted. However, both articles 13(2) and 43 (1)(2) of the draft law obliges the state (“pouvoir public”) to assist the IDPs with food and shelter during the displacement (the two articles basically overlap in their core meaning).[30]  However, at the continental level, the African Union  adopted the first legal instrument for the continental protection of the IDPs (Kampala Convention)[31]in 2009. The DRC has, however, not yet acceded to the Convention because, although it signed it in 2010, it has not ratified the convention.[32] As such, DRC is not formally bound to article 9(2)(b) (“Obligations of states parties relating to protection and assistance during internal displacement”) of the Kampala Convention which obliges state parties to provide IDPs “[w]ith adequate humanitarian assistance, which shall include food, […] shelter […] and any other necessary social services”. In uncertain legal framework, the situation on the field is not certainly better with IDPs deprived of their rights to food[33] and housing.[34]

While there is not yet an analogous American instrument to the Kampala Convention applicable to Colombia, the Guiding Principles on International Displacement, still represent a significant reference for the protection of IDPs worldwide.[35] Principles 18(2) contends: “At the minimum, regardless of the circumstances, and without discrimination, competent authorities shall provide internally displaced persons with and ensure safe access to: a) Essential food and potable water; b) Basic shelter and housing […]”.[36]

The situation, possibly, has even worsened with the COVID-19 pandemic that has also heightened IDPs vulnerabilities and restrictions have put barriers to responses and efforts towards durable solutions. The health concerns caused by the Covid-19 virus undermines the right to an adequate right to food and housing for IDPs. In DRC, where a large part of IDPs are children;[37] immunisation faces major challenges such as lack of security and poor infrastructure that have delayed the vaccination campaign, especially in the conflict zones.[38] The situation is not very dissimilar in Colombia, where the official deaths from the virus surpassed 100,000 in early October 2021.[39]

Certainly the governments of Colombia and DRC have the responsibility for ensuring that IDPs are granted their rights and receive both humanitarian and non-humanitarian assistance.[40] National and departmental/provincial authorities should respond in an appropriate manner, ensuring at least minimum fundamental rights for the displaced. By contributing to the bridging of certain gaps, governmental organizations, non-governmental organizations (NGOs) and other stakeholders can play an important supporting role in implementing policies and programmes geared towards sustainable solutions. While there are difficulties in addressing certain fundamental problems faced by IDPs (such as poverty and violence), humanitarian assistance through strengthening IDPs coping mechanisms in the early stages, can contribute to the implementation of sustainable solutions, providing clear policies and programmes that can be put into practice by the government. In both countries, existing policies need to be implemented to ensure that basic rights of the civilian population are protected, food and housing included. Although there are legislative and institutional means to protect civilians from the ongoing violence, on many occasions it does not appear that these are enforced. At this point, both the governments of the two countries (and the armed groups involved in the crises) should ensure respect for international humanitarian law (IHL), in particular the principles of limitation, distinction and proportionality, in order to avoid displacement, when feasible, and ensure the protection of the people who are displaced. The existing policies and mechanisms also need to be strengthened and adapted to enable IDPs to be more autonomous, both economically and socially. While the emergency needs of the assisted IDPs are generally met during the first months of displacement, existing programmes do not ensure sustainable solutions for the displaced population in the long term, particularly in terms of access to housing. As such, we question the possible discrepancies between what is provided for within the legal frameworks and what is current being implemented, in order to help IDP families to become self-reliant and less vulnerable. This situation needs to be coupled with the present situation that IDPs are also at greater risk of anxiety, depression and other forms of distress, and these may be aggravated by the psychological impact of lockdowns and other measures designed to contain the pandemic.[41]

Finally, we expect to explore the opportunity whether a strong advocacy campaign highlighting the IDP situation could be launched. Displaced populations do not always have a voice or the ability to increase public awareness of their situation. An advocacy campaign could greatly strengthen national and international understanding of IDPs’ needs and aspirations in order for them to improve their lives and livelihoods. Attempts of a campaign of this kind have been undertaken both in Colombia[42] and in DRC[43] by several NGOs but until now, with no major success.

[1] https://www.nrc.no/global-figures/

[2] https://www.epsjournal.org.uk/index.php/EPSJ/article/view/89/83

[3] https://www.internal-displacement.org/sites/default/files/publications/documents/grid2021_idmc.pdf

[4] https://www.opendemocracy.net/en/democraciaabierta/si-se-ha-cumplido-con-lo-acordado-v%C3%ADctimas-instituciones-y-paz-en/

[5] https://www.crisisgroup.org/latin-america-caribbean/andes/colombia/colombia-peace-withers-amid-pandemic

[6] https://insightcrime.org/news/brief/drug-trafficking-violence-colombia/

[7] https://www.internal-displacement.org/sites/default/files/publications/documents/grid2021_idmc.pdf

[8] https://www.thenewhumanitarian.org/feature/2020/05/05/Ituri-Congo-Hema-Lendu-CODECO-demobilisation

[9] https://www.humanitarianresponse.info/en/operations/democratic-republic-congo/document/rd-congo-aper%C3%A7u-des-besoins-humanitaires-d%C3%A9cembre-2020

[10] https://www.internal-displacement.org/sites/default/files/publications/documents/grid2021_idmc.pdf

[11] https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

[12] https://www.refworld.org/docid/47a7079a1.html

[13] https://treaties.un.org/doc/publication/unts/volume%201144/volume-1144-i-17955-other.pdf

[14] https://treaties.un.org/doc/Publication/UNTS/Volume%20119/volume-119-I-1609-English.pdf

[15] http://www.oas.org/en/sare/social-inclusion/protocol-ssv/docs/protocol-san-salvador-en.pdf

[16] https://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/COL/INT_CESCR_NGO_COL_44_8427_E.pdf

[17] https://www.brookings.edu/testimonies/the-human-rights-situation-in-colombia-afro-colombians-and-indigenous-people/

[18] https://www.achpr.org/legalinstruments/detail?id=49

[19] https://www.achpr.org/public/Document/file/English/achpr30_155_96_eng.pdf

[20] https://www.achpr.org/sessions/resolutions?id=462

[21] https://www.achpr.org/sessions/resolutions?id=416

[22] https://www.refworld.org/docid/5a255b374.html

[23] https://www.brookings.edu/wp-content/uploads/2016/07/colombia_t-025_2004.pdf

[24] https://www.constituteproject.org/constitution/Colombia_2005.pdf

[25] https://www.animallaw.info/sites/default/files/4.%20LEY%209%20DE%201979.pdf

[26] http://www.andi.com.co/Uploads/Ley-2019-N0001990_20190802.pdf

[27] https://dapre.presidencia.gov.co/normativa/normativa/Ley-2079-14-enero-2021.pdf

[28] https://aceproject.org/ero-en/regions/africa/CD/rdc-constitution-2011/view

[29] https://www.droitcongolais.info/files/713.11.18.1-Decret-du-19-novembre-2018_fonhab.pdf

[30] https://www.refworld.org/pdfid/5a2688fa4.pdf

[31] https://au.int/en/treaties/african-union-convention-protection-and-assistance-internally-displaced-persons-africa

[32] https://au.int/sites/default/files/treaties/36846-sl-AFRICAN%20UNION%20CONVENTION%20FOR%20THE%20PROTECTION%20AND%20ASSISTANCE%20OF%20INTERNALLY%20DISPLACED%20PERSONS%20IN%20AFRICA%20%28KAMPALA%20CONVENTION%29.pdf

[33] https://www.rfi.fr/fr/afrique/20210410-rdc-un-congolais-sur-trois-frapp%C3%A9-par-une-grave-ins%C3%A9curit%C3%A9-alimentaire

[34] https://www.unhcr.org/fr/news/stories/2021/7/60f6b73da/forces-quitter-foyers-deplaces-internes-rdc-besoin-dabris-durgence.html

[35] https://sur.conectas.org/en/international-cooperation-internal-displacement-colombia/

[36] https://www.brookings.edu/wp-content/uploads/2016/07/gpenglish.pdf

[37] https://news.un.org/en/story/2021/02/1085182

[38] https://www.dw.com/en/dr-congo-faces-major-challenges-in-covid-19-vaccine-rollout/a-58619922

[39] https://www.nytimes.com/live/2021/06/21/world/covid-vaccine-coronavirus-mask

[40] https://www.refugeesinternational.org/reports/2021/8/6/internal-displacement-an-agenda-for-progress

[41] https://peacebuildingsolutions.org/the-psychosocial-impacts-of-covid19-on-refugees-idps/

[42] https://www.fmreview.org/recognising-refugees/GP20Colombia

[43] https://www.brookings.edu/wp-content/uploads/2016/07/The-International-Response-to-Internal-Displacement-in-the-DRC-December-2014.pdf

About the Authors:
Dr Cristiano d’Orsi is a Senior Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), Faculty of Law, University of Johannesburg. He holds a Laurea (BA (Hon) equivalent, International Relations, Università degli Studi di Perugia, Perugia); a Master’s Degree (Diplomatic Studies, Italian Society for International Organization (SIOI), Rome); a two-year Diplôme d’Etudes Approfondies (Master of Advanced Studies equivalent, International Relations (International Law), Graduate Institute for International and Development Studies, Geneva); and a Ph.D. in International Relations (International Law) from the same institution. Additionally, Cristiano has done post-doctoral studies at the University of Michigan Law School (Grotius Scholar) and at the Centre for Human Rights, Faculty of Law, University of Pretoria. His research interests mainly focus on the legal protection of asylum-seekers, refugees, migrants and IDPs in Africa, on African Human Rights Law, and, more broadly, on the development of Public International Law in Africa.

Dr. Juan Pablo Serrano Frattali, is member of research group Social Anthropology of Motricity of the University of Granada; he was cofounder and president of the Colombian NGO Liderazgo para la Paz. Co-author unconstitutionality public action against articles 1°, 3° and 5° of the Law 1394 of 2010 which regulates judicial tariff in Colombia. He holds a Master’s degree in Intercultural Mediation and Citizen Participation from the University of Valencia, a Master in Social Development from the Catholic University of Murcia and a Phd in Migration Studies, Cum Laude from the University of Granada.

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2021 local government elections, voter education and COVID-19 in South Africa

Author: Paul Mudau
Senior Lecturer in the Department of Public, Constitutional and International Law at the University of South Africa

Local government is the sphere of government that is closest to the people and represents the front line of service delivery. Holding competitive, periodic, inclusive and definitive elections at the local level strengthens democracy. The competitive component of local democratic elections indicates that political party and ward candidates may criticise the party or coalition that governs the municipality, and other party and ward candidates openly. They may suggest alternative policies and candidates to voters. Decisions of locally elected representatives directly affects the local communities. Failure to satisfy voters may result in the governing local public representatives being voted out of office in the next (periodic) elections. On the other hand, good performance often comes with a reward, getting re-elected into office. Thus, ideally, conditions at the local level forces and entices locally elected public officials to accounts to the needs of local communities.

The date of the 2021 local government elections is set for 1 November 2021. In the run-up to the elections, the Independent Electoral Commission (IEC) usually conducts civic and voter education (CVE). In terms of sections 5(1)(d) and (k) of the Electoral Commission Act 51 of 1996, the IEC is mandated to promote voter education, and sound and democratic electoral processes. Hence, CVE provides citizens with communication, general and life skills to meaningfully participate in the democratic electoral processes. The CVE is important for the preparedness and willingness of voters to participate in the elections. Under normal circumstances, CVE is conducted in physical contact sessions. However, due to the COVID-19 pandemic, much of this is impossible. This may impact the readiness, willingness and ability of voters to participate in the elections.

The role of civic and voter education (CVE) in local government elections

Education and participation are mutually reinforcing variables. The IEC therefore seeks to optimise participation and voter turnout by providing CVE. CVE programmes are intensified in the run-up to elections to ensure that voters are knowledgeable, informed, ready and able to engage in the democratic electoral processes. In the words of the IEC, CVE also “promotes political tolerance, mutual respect, freedom of expression and of association, as well as peace-building, and creates a conducive climate for free and fair elections”.

Generally, the objective of CVE is four-fold. Firstly, it is to ensure that a culture of democracy and human rights is promoted through creating and emphasising awareness of civic responsibilities. Secondly, CVE increases the knowledge and understanding of the electoral processes. Thirdly, target groups and areas where voter turnout has been historically low are empowered to participate fully in electoral processes. Finally, the electorate is allowed to participate in the voting process, which should help reduce the number of spoilt ballots. Public awareness programmes often target groups such as women, youth, persons with disabilities, persons who cannot read or write, voters in rural areas and other disadvantaged minorities. This helps to increase voter registration and to narrow voter participation gaps.

CVE is thus important because it assists citizens to analyse, evaluate and defend their positions on public issues, and to use their knowledge to participate in civic and political processes (e.g. to monitor government performance, or mobilise other citizens around particular issues). CVE can help citizens understand how the political system functions and to what their rights and responsibilities are (e.g. the rights to vote, and the responsibilities to respect the rule of law and the rights of others).

The implications of the COVID-19 pandemic

The IEC traditionally conducted CVE in face-to-face sessions. However, much of this is difficult to be implemented due to COVID-19 and the restrictions on public gatherings. Therefore, these important efforts to increase voter registration, voter participation and to minimise spoilt votes faces a stumbling block.

Reliance on digital technology to conduct CVE  

How must the IEC now promote meaningful voter participation in the upcoming elections? It must be borne in mind that the IEC often uses traditional media, social media, online platforms and printed materials to disseminate information about, among other things, voter registration and election dates. Nevertheless, the nature and extent of these platforms do not contain sufficient information that fully equip voters. The in-person CVE events are detailed and voters have opportunities for further clarity in cases of misinformation and uncertainties.

The use of internet and digital technology for CVE comes into play. This would entail having detailed targeted messages and Information Communication Technology (ICT), and by making use of social media platforms like Facebook, Twitter and SMS as effective communication platforms for disseminating CVE information. In addition, the IEC could strategically rely on multi-media platforms such as the print media, television and radio.  The mass media is crucial because it can collect, process and disseminate daily events, and keeps society informed of local, national, regional and global issues.

However, reliance on digital technology is not without shortcomings. The ‘digital divide’ means that access to ICT infrastructure, electricity, digital literacy, the internet, suitable gadgets etc. is unequal. One of the key objectives of CVE is to empower voters in remote rural areas. In these areas, access to technological infrastructure, equipment and data is a huge challenge. Consequently, these inequalities hinder the alternatives for promoting CVE through technological systems. Additionally, internet and digital technology cannot address certain physical challenges of persons with disabilities (PWDs), people with low literacy and the elderly. Reliance on internet and digital technology cannot fully provide special focus customised materials development for PWDs. This special social group relies on the material such as braille, large font, audio, sign language and the institutionalisation of the Universal Ballot Template and Special Votes.

Concluding remarks

The COVID-19 pandemic has impacted on the general readiness, willingness and ability of voters in participating in the upcoming 2021 local government elections. The IEC which is mandated to conduct CVE is still obliged to provide CVE on a continuous basis at all stages of the electoral cycle. However, CVE programmes need to be intensified in the run-up to local government elections in order to ensure that voters are knowledgeable, informed, ready and able to actively and effectively engage in the democratic electoral processes. The IEC could attempt to make use of a combined mass media such as print media, television and radio and the internet, particularly digital technology, in place of physical CVE based programmes. However, inequalities in access to ICT (internet, data, appropriate gadgets etc. to access CVE information) will test South Africa’s democratic project at the local level.

About the Author

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

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The transitional national legislature is to be transformed into a constituent assembly to adopt the ‘permanent’ constitution of South Sudan, but what does this mean?

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

Introduction

The Republic of South Sudan embarked on its ‘permanent’ constitution building process which is a critical part of the peace process. The Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan (R-ARCSS) puts forward mechanisms and institutions for achieving such ambition. These institutions include the Constitutional Drafting Committee (CDC),[1] National Constitutional Review Commission (NCRC), Preparatory Sub-Committee, National Constitutional Conference (NCC) and the reconstituted transitional national legislature (Council of States and Transitional National Legislative Assembly) acting as a constituent assembly. The R-ARCSS establishes the above institutions with varying powers and degree of influence on the constitution building process.

This article focuses on the role of the reconstituted national legislature – bicameral chambers composed of Council of States and Transitional National Legislative Assembly. According to the R-ARCSS, these two houses of parliament are to be transformed into a Constituent Assembly to adopt, in a joint session, the Draft Constitutional Text passed by the National Constitutional Conference.[2]

The text of the R-ARCSS, language used by the parties, stakeholders, and engaged constitutional lawyers to describe the role and powers of each of these institutions is perplexing. The loudest voice is of those who say that the transitional national legislature acting as a Constituent Assembly cannot be trusted because it is not an elected parliament as it is made up of mostly appointed members and few who were elected since 2010 but whose democratic mandate has expired. In addition, they say that elite political parties and other groups might control the process to their advantage as was witnessed during the interim and transitional constitution-making processes.[3]

Owing to these concerns, they argue that the transitional national legislature acting as a Constituent Assembly must play a nominal role of only adopting the Constitutional Text with powers to only point out grammatical corrections, if any, but with no powers to make substantive changes. They premise this argument on an assumption that deliberations at the National Constitutional Conference represent people’s voice and that fewer political elites cannot be allowed to change what would have been popularly passed. But this argument fails the moment it leaves the mouth of the proponents as I shall discuss later.

 Be that as it may, what is the nature of the transitional national legislature as a constituent assembly in the circumstances? What does it mean to ‘adopt’ a constitution? Can a Constituent Assembly be legally disarmed of its conventional role regardless of what parties have agreed? This article discusses these questions by analysing the meaning of a Constituent Assembly in a constitutional design (II), nature of transitional national legislature as a Constituent Assembly (III) and concludes with thought-provoking recommendations (IV).

The meaning of a constituent assembly

Scholars define constituent assembly as a body whose role is to “make’ a constitution’.[4] The word to ‘make’ has to be read in a broad sense to include ‘adoption’ of a constitution by a constituent assembly. It is a special body that exercises  constituted power on behalf of the people. Professor Ghai says that ‘constituent assembly must be viewed in the context of and relationship to other aspects of the [entire] constitution making processes’.[5] The reference to the word entire suggests a relationship amongst and between decisions of constitution building institutions.

But, what does it mean to ‘adopt’ a constitution? Generally, a national legislature adopts any legislation through deliberation, debating and passing with or with no amendments. This process is ordinarily guided by the object of the legislation and its relations with the wider national legal regime and democratic aspirations of a given country. However, is this the process a national legislature acting as a constituent assembly follows when passing a constitution? This is the point of contention which this article attempts to address. The article does not, however, purport to provide a blueprint answer to this question. It, however, attempts to discuss perspectives that might address challenges.

Let us start then with what the R-ARCSS mean when it states that the ‘transitional national legislature shall be transformed into a constituent assembly for purposes of adopting a Permanent Constitution’. First, it is clear that this is not an ‘ordinary’ law-making mandate that every legislature exercises. We are dealing with a transformed role legally constituted into special power to adopt the ‘permanent’ Constitution. Second, the transitional national legislature is thus not an ordinary legislature, but a national legislature veiled up as a constituent assembly. This gives it special powers which an ordinary legislature does not have. But does this veil render it a ‘conventional’ constituent assembly or could the drafters of the R-ARCSS have conceived of a contextualised meaning?

Addressing this matter might clear up any confusion clouding the role of the reconstituted national legislature acting as a constituent assembly. As I mentioned earlier, it is my argument that the transitional national legislature should exercise a conventional role in adopting the permanent Constitution. I am not advocating for an inflexible interpretation here or what Dr Hope refers to as ‘laws of Moses’,[6] rather, I am calling for actions that would enhance the legitimacy of the process and perhaps, its outcome. The opponents of this view are essentially advocating for a contextualised role of the transitional national legislature which appears not to solve their worries – chief among them being the perception that it might be captured by elites and that the Constituent Assembly might not act in favour of the people. Having analysed the meaning of a constituent assembly, I now turn to briefly discuss the transitional national legislature with emphasis on challenges and prospects in fulfilling its role.

south_sudan_constitution

Transitional national legislature as a Constituent Assembly: Challenges and prospects

The transitional national legislature refers to a bicameral house of parliament composed of Upper House (Council of States) and Lower House (Transitional National Legislative Assembly) – both of which comprised over 600 appointed and elected members representing constituencies, groups and other interests in South Sudan.[7] The R-ARCSS empowers the transitional national legislature to veil itself as a constituent assembly for the sole purpose of adopting the draft constitution that would have been endorsed by the National Constitutional Conference. The power to adopt the draft constitutional text is effectively a constituted power with its roots in both the R-ARCSS and the Constitution-Making Process Bill, 2021. It is not new for a legislature to act as a constituent assembly but when they do so, it must be conceivable that they perform a mandate ordinarily expected of any other constituent assembly.

But what challenges and prospects are expected to confront the transitional national legislature in exercising its constituted power to adopt the permanent constitution? In what follows, I discuss some of the challenges of transforming it into a constituent assembly to adopt the permanent constitution.

Unelected national legislature

As I mentioned earlier, one of the critiques against the national legislature acting as a constituent assembly is that it is not elected and its members owe allegiance, first and foremost, to the parties that brought them to parliament. Second, because its members are not elected, the transitional national legislature lacks legitimacy to act as a truly representative body of the people. For it to be a legitimate and representative body, its members should have been elected in a democratic process. Whilst I acknowledge these criticisms as legitimate concerns, it must be noted that except the Constitutional Drafting Committee (CDC) whose members are to be recruited through a competitive process, members of the rest of the constitution building institutions are to be appointed by parties to the R-ARCSS.[8]

If the transitional national legislature exercises its constituted power to adopt the text of the ‘permanent’ constitution, then it should be deemed to perform a conventional role of a constituent assembly save the fact that it is not elected. However, a conventional constituent assembly (assembly that performs roles of a constituent assembly) cannot be possibly disarmed of its conventional roles. The argument that it might act in favour of political elites to concentrate power or water down constitutional text adopted by the National Constitutional Conference is speculative for the following reasons:

First, members of the National Constitutional Conference will, themselves, be appointed rather than being elected. To be precise, its members shall be composed of 1000 delegates drawn from a range of groups such as:[9]

political parties, civil society organisations, women organisations, faith-based organisations, people with special needs, internally displaced persons, refugees and people from diaspora, traditional leaders, war widows, veterans and war wounded, business leaders, trade union, professional associations, academia and other categories to be determined

These large groups can only be reasonably expected to reach a compromise or consensus on broad constitutional questions within the spirit of R-ARCSS, national dialogue and people’s aspirations. They cannot perform a detailed scrutiny that a national legislature sitting as a constituent assembly might do. Thus, on that ground, the national legislature acting as a constituent assembly may not be constrained to the Constitutional Text adopted by the National Constitutional Conference.

Second, it is to be noted that the transitional national legislature comprises political forces on whose agreement, compromise, or consensus the R-ARCSS was signed. This might not be the case with the National Constitutional Conference given its diverse membership. Furthermore, constitution building is a political dialogue on the nature of the State underpinned in the aspirations of the people. This requires continuous dialogue and compromise amongst political forces, most of whom are represented in the transitional national legislature. To deny it the power to turn such compromises into consensus for democratic consolidation could be deleterious to the gains already made as some of the political forces could withdraw from the process which might stain constitutional legitimacy. In any case, deliberations are necessary at the stage of parliamentary adoption. However, the fear of elite capture and self-dealing is real and measures should be adopted to diminish its occurrence and impact. One of the ways to achieve that is to ensure that any amendments made by the Constituent Assembly are only to enhance the constitutional text adopted by the National Constitution Conference but not to materially alter it. The Constituent Assembly must also consult with their constituencies to enhance legitimacy of any compromise reached at the National Constitution Conference. Such consultations must however be coordinated through and with the guidance of the National Constitutional Review Commission to ensure that political parties do not politicise the process and to avoid it becoming a referendum in disguise.

Third, the text adopted by the Constituent Assembly should be certified by a hybrid bench of the Constitutional Court (to include two African jurists) to ascertain:

  • that the final constitutional text adopted by the Constituent Assembly does not materially differ with the text adopted by the National Constitutional Conference and that it is consistent with the spirit of the R-ARCSS and peoples’ aspirations as espoused in the July 9 Independence Declaration;
  • the constitutionality of the ‘permanent’ Constitution. This means the Constitutional Court must satisfy itself that the final text of the Constitution incorporates applicable international bill of rights, provides for constitutional democratic governance, the rule of law, and promotes peace, unity and international friendly relations with other states.

Cosmetic mandate to merely ‘adopt’ a constitutional text?

As mentioned earlier, most critics of the transitional national legislature acting as Constituent Assembly say that it must perform only the function of adopting the constitutional text passed by the National Constitution Conference without making substantive changes. This is to say that the Constituent Assembly’s functions should produce inconsequential impact to the draft Constitution. But as I have discussed above, this is not legally possible as concerns advanced by the critics are merely political and not legal. For instance, the fear that members of the transitional elites might capture the process as was arguably witnessed during the interim and transitional constitution-making processes in what became known as the John Luke Constitution can be prevented.[10]

It is thus possible to minimise prospects of political capture as Elster observes ‘constituent assembly ought to be organised to minimise the influence of individual or group interest [including constitutional] framers’.[11] He says that the process should only be influenced by ‘the mild voice of reason’.[12] I argue that the only ‘voice of reason’ appears to be the Constitutional Court which will be technical and non-political in its decision-making process.

Whilst the R-ARCSS does not explicitly state hierarchical arrangement of the institutions of constitution building, I maintain that they in fact have an implied functional hierarchy – incremental decision-making.

First, the downstream activities such as negotiating, convening and drafting appear to be the responsibility of institutions such as the Constitutional Drafting Committee, National Constitutional Review Commission and the National Constitutional Conference. This stage of constitution building is clearly preparatory and foundational. However, the upstream activities such as constitutional adoption and certification are affirmatory of downstream activities.

Second, the way the constitution building institutions are arranged – Constitutional Drafting Committee (drafting the text), National Constitutional Review Commission (synthesising public inputs), National Constitutional Conference (adopting constitutional text) and Constituent Assembly (adopting the final text as a constituent assembly) – suggests a functional hierarchy. Loughlin refers to this relationship as a tension between unitarian (views the process as a single transaction of equal power and influence) and hierarchical (incremental power of influence) theories of constitution building.[13] If this view is true, then it means the drafters of the R-ARCSS must have conceived that the upstream institutions would have some power to make changes as the text incrementally passes through those institutions.

Conclusion and recommendations

This article has hereinto discussed the meaning and role of the transitional national legislature transformed into a constituent assembly to adopt the permanent Constitution of the Republic of South Sudan. Its principal claim can be summarised as follows:

First, the muted Constitutional Court proposed under the R-ARCSS should be established and enjoined to certify the final constitutional text adopted by the Constituent Assembly. The Court must however include two experienced African Constitutional judges preferably from South Africa – given its rich and relevant constitutional jurisprudence – to ensure independence, competence and enhance Court’s legitimacy. The Court’s role is to be two-fold:

  • To certify the constitutionality of the constitution; (ensuring constitutionality of the draft constitutional text). This is to say that the Court should assess the extent to which the permanent Constitution promotes the rule of law, good governance and respect for human rights; and
  • To certify that the final constitutional text meets the aspirations of the people of South Sudan as expressed in national dialogue conferences and the spirit, not necessarily the letter, of the R–ARCSS. This is to invite the Court to remind itself that the permanent Constitution meets with popular aspirations of the people of South Sudan with regards to the transition to constitutional democracy.

Second, the reconstituted transitional national legislature should act in full capacity as a constituent assembly, but it must not substantially depart from the text adopted by the National Constitutional Conference. The Constituent Assembly can and should not be reduced to a rubber stamp by merely urging it to rally behind the draft Constitutional Text passed by the National Constitutional Conference without exercising its due role over it.

Third and last, the National Constitutional Conference should focus on building consensus and necessary compromises, building on conversations and compromises agreed to during the national dialogue process. It must not purport to act like a referendum because its members will be appointed and lack legitimacy as with other constitution building institutions whose members will be appointed.

 

[1]    It is to be noted that the CDC is an invention of the parties to the R-ARCSS which they agreed in a workshop held in Juba on 28 May. The inaugural workshop was aimed at parties’ consensus on the bill to guide the constitution building process.

[2]    Inter-governmental Authority on Development (IGAD) ‘Revitalised Agreement on the Resolution of Conflict in the Republic of South Sudan’ (2018) para 6.11 <https://igad.int/programs/115-south-sudan-office/1950-signed-revitalized-agreement-on-the-resolution-of-the-conflict-in-south-sudan&gt; accessed 28 September 2021.

[3]    See Kevin Cope seminal papers discussing elite self-dealing in both interim and transitional constitution-making processes; K Cope ‘South Sudan’s dualistic constitution’ in D Galligan and M Versteeg (eds.) Social and political foundations of constitutions (2013) & K Cope ‘The intermestic constitution: Lessons from the world’s newest nation’ (2013) 53 Virginia Journal of International Law.

[4]    Y Ghai ‘The role of constituent assemblies in constitution making’ (2006) 1 <https://constitutionnet.org/sites/default/files/the_role_of_constituent_assemblies_-_final_yg_-_200606.pdf > accessed 27 September 2021

[5]    As above, 1.

[6]    In a conversation I had with her about this article and role of transitional institutions in a fragile context where peace building initiatives might need to be prioritised.

[7]    Under the R-ARCSS, the Council of States is comprised of 100 members representing states and Administrative Areas whilst the Transitional National Legislative Assembly is comprised of 550 members mostly drawn from belligerents and mainstream party.

[8]    Constitution building institutions include Constitutional Drafting Committee, National Constitutional Review Commission, Preparatory Sub-Committee, the National Constitutional Conference and we already know that vast majority of members of transitional national legislature (Council of States and the Reconstituted Transitional National Legislature ) are appointed.

[9]    Sec 27(1)(a-0) of the Constitution-Making Process Bill, 2011.

[10] Others refer to the Transitional Constitution, 2011 (as amended) as the John Luke Constitution who was a renowned constitutional lawyer who led the drafting of the Transitional Constitution.

[11] J Elster ‘The optimal design of a constituent assembly’ (2008) 5 <https://streaming-canal-u.fmsh.fr/vod/media/canalu/documents//cerimes/UPL55488_Elster.pdf&gt; accessed 27 September 2021).

[12] As above, 5.

[13] See generally; M Loughlin ‘The concept of constituent power’ (2014) 13 European Journal of Political Theory

 

About the Author:

Joseph Geng Akech is a South Sudanese human rights lawyer and doctoral researcher in constitution building. His doctoral thesis is entitled ‘foreign influence and the legitimacy of constitution building in South Sudan’. He is an alumnus of the LLM in Human Rights and Democratisation at the Faculty of Law, Centre for Human Rights, University of Pretoria. He can be reached on e-mail: josephgakech@gmail.com.

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Shrouded in mystery: the Nigerian budget and the challenge of implementation

Author: Abasiodiong Ubong Udoakpan
LLM Candidate, Olabisi Onabanjo University, Nigeria

The Budget as one important economic policy instrument at the disposal of the Government is key to the attainment of the economic prosperity of the people. However, the gap between its initiation and full implementation to attain economic prosperity has been of serious concern to researchers and Nigerians alike. It is one thing to propose a budget and another to implement the proposed budget to the extent that it attains the goals of economic growth and development. In recent times, the focus on the budget has assumed greater prominence because of increasing democratisation, civil society participation and the desire to respond to developmental challenges of poverty.

In the public sector, Budget Implementation is pivotal in driving entrepreneurship development. According to the Nigeria Bureau of Statistics, small and medium scale enterprises (SMEs) in Nigeria have contributed about 48% of the national GDP in the last five years.[1] Despite the significant contribution of SMEs to the Nigerian economy, challenges persist that hinder the growth and development of the sector, one of which is the weakness of the Budget Implementation Process in Nigeria.

Under the process of Implementation, funds are being transferred to the spending agencies, ( e.g. Ministry of Industry, Trade and Investment); goods and services are being delivered by following the budgetary provisions, the ministries, agencies and departments produce in-year and year-end reports on the spending of allocated funds[2], these reports are done in line with sections 30 & 50 of the Fiscal Responsibility Act of 2007. Sadly, the agencies of the Nigerian government have failed to live up to the expectations of this legislation.

In the last three years, the Federal Government has budgeted well over 20 trillion naira without much on the ground to show for it. The combined budgets of the 36 states and the Central Government in the last 3 years amounts to hundreds of trillions of naira. However, with the trillions of naira budgeted, Nigeria has little or nothing to show for it, in terms of critical infrastructure, employment opportunities, poverty and debt reduction.

Generally, for a budget to achieve its aim, it must possess some important qualities, namely: it should be well designed, effectively and efficiently implemented, adequately monitored and finally its performance should be evaluated[3]. It could therefore be deduced that the essence of the budget is not in its formulation or initiation but in its implementation which is aimed at meeting the needs and aspirations of the people. A well-implemented budget helps to translate government campaign promises, policies and programs into outcomes that have a direct bearing on the people such as the provision of employment opportunities, poverty reduction as well as the development of critical infrastructure such as roads, water, electricity, hospitals, schools etc. for the good of the people. While appreciating the fact that budget implementation is the basic thing, however, the size and structure of public expenditure are expected to boost the growth in output of the economy. Be that as it may, the implementation of policies and programs is germane to the attainment of the socio-economic wellbeing of the society.

Over the years, billions and now trillions of naira are budgeted yearly to improve the living standard of the citizenry through an increase in output. These dreams have been elusive perhaps due to the failure of the government to implement the content of the budget to the letter. As accurately noted by experts, the budget is supposed to be the most important economic policy instrument.[4] Unfortunately, the Nigerian Budget is shrouded with a lot of myths and illusions and usually not effectively implemented, leading to its failure to contribute to the economic growth and development of the country.

In tackling this issue of poor implementation of budgets in Nigeria, there is a need to call on the National Assembly to ensure that due processes, as well as value-for-money audits, remain in our policy for economy, efficiency and effectiveness in the use of resources. It is important to engage due process mechanisms with structures, systems, and skills to ensure that it endures. Due process is too centralised and must be decentralised in a bid to move procurements by the spending units from the threshold of the resident due process team.

Finally, civil society plays a crucial role in the Nigerian budget process. Nigeria’s budget process, just like many other African countries, is now clearly defined into four main stages: drafting, legislative approval, implementation and monitoring. There are international best standards of how some civil society groups have contributed to the budget process in their respective countries. For instance, the budget formulation in Porto Alegre (Brazil) has been enhanced by the work of CSOs while the Institute for Economic Affairs (in Kenya) and IDASA (in South Africa) are applauded for reviewing government budgets to help improve public understanding of budget issues. Regarding civil society participation in budget implementation and its role in challenging misapplication of budget funds, two examples are often highlighted in the literature: the case of public expenditure tracking for Ugandan schools and the use of citizen report cards in the Philippines to improve performance monitoring.

However, in Nigeria, it is only recently that civil society organisations are engaging more systematically in the budget process.[5] Civil society groups are usually invited to participate in seminars and also to review the implementation of the Fund. CSOs have also recently been incorporated into national teams which monitor the implementation of MDG programs in various parts of the country. More recently, increased financing from external donors has been sought to strengthen the activities of Nigerian NGOs and academics to contribute more effectively to the budget process.[6]

Civil society could make even greater contributions to ensuring fiscal transparency in Nigeria and Africa, if they improve their lobbying skills. This is necessary if civil society groups are to contribute more effectively to enhancing fiscal transparency in their countries. It is also important to identify allies among legislators, cultivate relationships with the executive, and effectively communicate campaign messages to them. Building the technical competency of these organisations is also crucial, to enable them to engage in informed debate as well as avoid the tendency for elite capture and illegitimate representation.

For the prosperity of African countries, greater civic engagement on fiscal issues is needed and well-organised civil society groups can play a valuable role in this endeavor.

[1] PwC Nigeria, Nigeria SME Survey: Assessing current market conditions and business growth prospects; https://www.pwc.com/ng/en/events/nigeria-sme-survey. Accessed on 15th September 2021.

[2] The International  Budget Partnership: The 4 Stages of the Budget Process, https://www.internationalbudget.org/wp-content/uploads/MODULE-2-Defining-the-Problem.pdf. Accessed on 15th September 2021.

[3] Adah, S & Akogu,A. (2019). Budget Implementation and Economic Development in Nigeria: Problems and Prospects; International Journal of Innovative Finance and Economic Research; vol 7(3). ISSN:2360-866X, 34-43

[4] Ogujiuba, K. & Ehigiamusoe, K. (2013). Capital Budget Implementation in Nigeria. Evidence from 2012 capital budget, vol.24(10). 299-314.

[5] Ngozi Okonjo-Iweala, Philip Osafo-Kwaako. The Role of Civil Society Organizations in Supporting Fiscal Transparency in African Countries (Background Notes for Discussion)

[6] Interview with Soji Apampa (INTEGRITY, Nigeria). Upcoming programs include initiatives such as the Coalition for Change program sponsored by the UK Department for International Development (DFID).

About the Author:
Abasiodiong Ubong Udoakpan is a Human Rights Lawyer and a Data Protection Advisor and is presently an LLM Candidate at the Olabisi Onabanjo University, Ago-Iwoye, Ogun State, Nigeria, an academic lawyer whose research interests cuts across Labour Law, International Development Law, Environment & Climate Change Law, as well as the intersection between International Human Rights and Mental Health Law and Policy.

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Is Covid-19 bringing out the inequalities in the delivery of health services in Mauritius?

Ashwanee-Budoo-ScholtzAuthor: Ashwanee Budoo-Scholtz
Programme Manager of the Master’s in Human Rights and Democratisation in Africa, Centre for Human Rights, University of Pretoria

Introduction

When Mauritius recorded its first Covid-19 case on 18 March 2020, the country already had the strong backbone of the ‘solid social protection system’ to ensure that affected sections of the society are supported. In the area of health, in 2011, it was estimated that Mauritius had 3.4 hospital beds per 1000 population which was better than most sub-Saharan African countries. Hence, one could assume that the government of Mauritius would not face the failure of countries such as South Africa when it came to the provision of health care services for those affected by Covid-19.

As of 1 October 2021, Mauritius had a total of 15,695 confirmed Covid-19 cases, with 84 deaths. This was after the country relaxed its lockdown restrictions at the national level. The government has time and again spoken with pride of it being a best practice when it comes to preparedness for dealing with the Covid-19 virus. Indeed, once the country was hit by its first case of COVID-19, it started taking all measures possible to make sure it deals with the provision of health care services. To begin with, in the initial stages, it identified the New Souillac hospital and the New Ear Nose and Throat Hospital (New ENT Hospital) as a quarantine and isolation centre for those showing moderate to severe symptoms of Covid-19. For those with mild symptoms, they were isolated in make-shift treatment centres free of charge with regular follow-up. As the pandemic evolved, the country designated the New ENT Hospital, ‘equipped with the latest modern equipment and technology’ as the facility for treating Covid-19. Hence, anyone testing positive for Covid-19 with symptoms would be transferred to the New ENT Hospital. The country has also fully vaccinated more than half of the population.

Laws on the delivery of equitable healthcare services

According to international human rights instruments such as the African Charter on Human and Peoples’ Rights and the International Covenant on Economic, Social and Cultural Rights that have been ratified by Mauritius, states have the obligation to ensure that everyone without any discrimination has access to the highest attainable standard of health. This implies that the government of Mauritius must ensure that everyone in Mauritius, irrespective of whether they can afford it or not, benefits from health care services.

At the domestic level, usually countries’ Constitutions protect such rights. However, Mauritius’ Constitution does not include socio-economic rights as the right to health and the same is provided by Acts of Parliament. The country has ‘universal social programs such as health, education, pensions and transport’ where such services are provided for free to everyone without any discrimination. The welfare system of Mauritius has been considered as ‘a comprehensive social welfare system to which all Mauritians have universal access’ and as an example to the world.

covid_19_mauritius

The issues

Despite the steps taken to combat Covid-19 and Mauritius’ welfare system, there has been an outcry by the population of the unpreparedness and insufficiency to cater for everyone on an equal basis in the health sector, especially since the travel to India of the former prime minister of Mauritius and the leader of the Labour Party, Naveen Ramgoolam. The latter was admitted to a private hospital after being tested positive for COVID-19. Since then, upon the advice of his medical panel, he flew to India for medical treatment to avoid any medical complications that may arise, with the Prime Minister’s Office in Mauritius facilitating the trip and his political party’s financial support. The consideration of such a trip, with the Office of the Prime Minister assisting him, demonstrates that the government is not confident in the measures taken. It also means that the non-discrimination principle in the Constitution is not applied since he is benefiting from preferential treatment from the government based on his social status. Other Mauritians who were seriously affected and who lost their lives, including children, were not considered for such overseas treatment, demonstrating that some Mauritians are more equal than others and that those who have the financial means and political connections may obtain better healthcare than others. This begs the question whether the well-praised welfare system of Mauritius struggles to ensure equitable delivery of health care services, more so during the Covid-19 pandemic.

While Mauritius has a strong health system for the provision of basic health care services, the country still does not have high-tech medical devices for complicated surgeries. For instance, many Mauritians travel to countries such as India, South Africa or Reunion in cases of complicated tumours, cancers, and neurological issues, amongst others. While the government assists the patients with some of the costs, the patients must fundraise for part of the costs of such treatment, with those who are unable to raise funds being left without treatment. With this background, one can deduce that while the New ENT Hospital has modern equipment and technology, it might not be the best place in the world to deal with Covid-19 complications, thus explaining the trip of the former prime minister to India.

Way forward

To ensure that Mauritius delivers equitable health services, the government needs to invest more in new technologies and medical devices so that it can treat those with complicated sickness within its territories without the patient having to fundraise and travel to other countries for treatment. This will be in line with Mauritius’ international obligations to realise the right to health. Moreover, the government needs to review its Constitution to include socio-economic rights such as the right to health to show its commitment to such rights. This will allow the citizens to hold the government accountable in the domestic courts in the event the government is not taking steps to equitably deliver the highest standard of health.

 

About the Author:
Ashwanee Budoo-Scholtz is the Programme Manager of the LLM (in Human Rights and Democratisation in Africa)  at the Centre for Human Rights, University of Pretoria. She holds the degrees LLB from University of Mauritius, LLM and LLD from University of Pretoria.

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