Author: admin

Author: Abasiodiong Ubong Udoakpan
Data Protection Advisor, Researcher and a Human Rights Lawyer

Introduction

As the use of digital mental health solutions continues to grow, there is an urgent need for regulatory frameworks to ensure their safety, effectiveness, and ethical use. The regulatory landscape for digital mental health solutions is complex and evolving. At the global level, the World Health Organization (WHO) has developed a framework for digital health that includes guidance on the development, evaluation, and regulation of digital health interventions. The WHO framework emphasizes the need for evidence-based interventions that are safe, effective, and ethical, and that are responsive to the needs of different populations. The framework also highlights the importance of data protection and privacy, as well as the need for equitable access to digital health solutions.[1]

At the national level, some countries have developed specific regulations for digital mental health solutions. For example, the United States Food and Drug Administration (FDA) has developed a regulatory framework for digital health that includes guidance on the regulation of software as a medical device (SaMD). The FDA framework requires SaMD to be safe and effective and to meet certain performance and quality standards. The FDA also requires SaMD manufacturers to provide evidence of the safety and effectiveness of their products, and to adhere to certain post-market surveillance and reporting requirements.[2]

In the European Union, the General Data Protection Regulation (GDPR) provides a regulatory framework for the protection of personal data, including health data. The GDPR requires that personal data be processed in a lawful, fair, and transparent manner, and that data subjects be provided with certain rights, such as the right to access and correct their data. The GDPR also imposes certain obligations on data controllers and processors, such as the obligation to implement appropriate technical and organizational measures to ensure the security of personal data.[3]

In this piece, I will examine the regulatory landscape for digital mental health solutions, discuss the need for regulation and propose some regulatory principles and mechanisms that can be used to regulate these solutions.

Need for Regulation of Digital Mental Health Solutions

The need for regulation of digital mental health solutions is driven by several factors. First, as digital mental health solutions become more widespread, there is a need to ensure that these solutions are safe, effective, and ethical. This is particularly important in the context of mental health, where the potential for harm is high, and where the vulnerability of users must be taken into account.

Second, the need for regulation is driven by the potential for digital mental health solutions to exacerbate existing health inequalities. There is a risk that certain populations, such as those with low health literacy, limited access to technology, or poor mental health, may be excluded from the benefits of digital mental health solutions. There is a need for regulation to ensure that these solutions are accessible and equitable, and that they do not exacerbate existing health disparities.

Third, the need for regulation is driven by the potential for digital mental health solutions to violate users’ privacy and data protection rights. The use of digital mental health solutions involves the collection, storage, and processing of sensitive personal data, such as health information. There is a need for regulation to ensure that this data is protected and that users’ privacy rights are respected.

Regulatory Principles and Mechanisms

To effectively regulate digital mental health solutions, regulatory principles and mechanisms must be developed that are responsive to the unique characteristics of these solutions. Some possible regulatory principles and mechanisms include:

1. Evidence-based regulation: Regulatory frameworks for digital mental health solutions should be evidence-based and should require that interventions meet certain safety, effectiveness, and quality standards. The use of randomized controlled trials and other rigorous research designs should be encouraged to generate high-quality evidence on the safety and effectiveness of digital mental health solutions.
2. Risk-based regulation: Regulatory frameworks should take into account the potential risks associated with different types of digital mental health solutions, and should require manufacturers to demonstrate that their products are safe and effective, and that they adhere to certain performance and quality standards. Products that pose a higher risk to users, such as those that involve the use of artificial intelligence or machine learning algorithms, may require more rigorous regulatory oversight.
3. User-centered regulation: Regulatory frameworks should be user-centered and should take into account the needs and preferences of users. Digital mental health solutions should be designed with user input, and regulatory frameworks should ensure that users are provided with clear and understandable information about the risks and benefits of these solutions. In addition, users should be provided with mechanisms to give feedback and raise concerns about the use of these solutions.
4. Interoperability and data portability: Regulatory frameworks should promote interoperability and data portability, which can facilitate the integration of different digital mental health solutions and improve the continuity of care. In addition, users should be able to access and control their personal data, and should be able to easily transfer their data between different providers and platforms.
5. Oversight and monitoring: Regulatory frameworks should include mechanisms for oversight and monitoring of digital mental health solutions, to ensure that they continue to meet safety, effectiveness, and quality standards over time. This could include post-market surveillance requirements, as well as the establishment of reporting mechanisms for adverse events or other concerns.

Conclusion

The regulation of digital mental health solutions is an urgent and complex challenge that requires the development of evidence-based, user-centered, and risk-based regulatory frameworks. While there are existing regulatory frameworks at the global and national levels that can serve as a starting point, the unique characteristics of digital mental health solutions require the development of specific regulatory principles and mechanisms that are responsive to these solutions.

In the African context, there are several recommendations that can be made to promote the regulation of digital mental health solutions:

1. Promote stakeholder engagement: The development of regulatory frameworks for digital mental health solutions should involve the active participation of all relevant stakeholders, including health professionals, mental health advocates, and technology developers. This can help to ensure that regulatory frameworks are responsive to the needs and preferences of the African community.
2. Develop risk-based regulatory frameworks: Regulatory frameworks for digital mental health solutions in Africa should be risk-based, taking into account the potential harms and benefits of these solutions. This can help to ensure that regulatory oversight is commensurate with the level of risk posed by different types of solutions.
3. Encourage innovation: Regulatory frameworks should encourage innovation in digital mental health solutions, while also ensuring that these solutions meet high standards for safety, effectiveness, and ethical practice.
4. Address infrastructure and resource constraints: In order to support the development and regulation of digital mental health solutions, African countries must address infrastructure and resource constraints, such as limited access to broadband internet and health care infrastructure.

By implementing effective regulatory frameworks, African countries can ensure that digital mental health solutions are safe, effective, and ethical, and that they contribute to the improvement of mental health outcomes for all users.

[1] World Health Organization. (2020). Digital Health.  https://www.who.int/health-topics/digital-health#tab=tab_1 accessed 14 February 2023.

[2] U.S. Food and Drug Administration. (2019). Digital Health. https://www.fda.gov/medical-devices/digital-health accessed 14 February 2023.

[3] European Union. (2016). General Data Protection Regulation. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=EN accessed 14 February 2023.

About the Author:
Abasiodiong Udoakpan is a Data Protection Advisor, Researcher, and a Human Rights Lawyer with an LL.M in International Human Rights. His research blueprint centers on the intersection of International Law, Human Rights and Global Health & Policy with further interests in Mental Health, Climate Change, Food & Drugs.

Author: Simone Toussi
Digital Rights Researcher, Africa Region

Disinformation, also known as, “all forms of false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm or for profit”, ^[1] is on the rise in Africa, aided by the evolving digital communication platforms. To counter disinformation, several African governments are using provisions in existing laws or enacting new laws that do not comply with international human rights standards^[2] on freedom of expression and access to information. As of August 2022, no country in Francophone Africa^[3] has enacted legislation specifically on disinformation, but the majority have provisions regulating disinformation in various laws.^[4]

Burkina Faso and Guinea are two Francophone West African countries that experienced coups in January and September 2022, and September 2021 respectively, leading to the removal of incumbent presidents. These stressful political situations, coupled with the Covid-19 pandemic and battles against terrorism have fuelled the flow of information disorder[5] and hateful conspiracy theories online and offline. Both countries have ratified the International Covenant on Civil and Political Rights,^[6] article 19(3) of which states that limitations of freedom of expression shall be “provided by law and are necessary for respect of the rights or reputations of others; for the protection of national security or of public order (ordre public), or of public health or morals.”  However, in these countries, some legal provisions and government actions against disinformation do not meet the above test for justifiable limitations on freedom of expression. This article explores recent instances of false news in both countries and government response to disinformation. It then dives into the regulatory framework on disinformation in Burkina Faso and Guinea, and provides critical analysis of shortcomings in each framework and recommendations for improvement.

In Burkina Faso, an old image from the 2014 insurrection showing a chaotic scene of Burkinabe protesters clashing with military officials was recirculated under a false context during the January 2022 coup.[7] It generated 118 000 views on Facebook. Similarly, social media posts and other online reports falsely claimed that General Gilbert Diendéré had been released from military prison. He was on trial for the murder of Thomas Sankara and convicted for the 2015 coup attempt.^[8]

In Guinea, an old video conference between former President Alpha Conde and one of his ministers in 2020 was used in a photomontage posted on Facebook in 2021 to show the overthrown president following, on a computer, the live swearing-in ceremony of Mamadou Doumbouya, the leader who ousted him from power. In the same vein, the leader of the opposition party Union des forces démocratiques de Guinée (UFDG), Cellou Dalein Diallo, was requested to publish a denial on social networks regarding rumours about his arrest by the coup plotters on 5 September 2021.^[9]

These are a few examples of the proliferation of false news that has not only fuelled political crises by increasing social destabilisation following coups, but also led to a tightening of state measures against disinformation. Governments have stepped up the pressure through public statements condemning expression in various ways, including false news. In a statement issued on 2 August 2022, Burkina Faso’s Minister of Communication, Valérie Kaboré, denied a report that the Burkinabe border with Mali had been closed, taking the opportunity to “warn those responsible for producing false news and reserving the right to treat them following the rigour of the law”.^[10] In July 2018, the Prosecutor General of Conakry Mamady Diawara warned conveyers of “false information, texts, videos reflecting extreme violence in reporting the death of trade unionists      who protested against the military”,^[11] citing articles 31, 32, and 35 of law 037/2016 on cyber security and personal data protection in Guinea.^[12] These threats are based on laws deemed suppressive because of their propensity to limit speech through imprecise, incomplete, and unclear provisions, and have potentially disproportionate sanctions.^[13]

In fact, paragraph  25 of General Comment 34^[14] of the Human Rights Committee specifies that “a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly [and] may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.” However, legal provisions on expression in Burkina Faso and Guinea do not always meet these principles and yet, are being used.

In Burkina Faso, article 312-13 of the Penal Code[15] punishes with a fine of up to 10 000 000 FCFA (approximately USD 15 203) and up to five years of imprisonment, the intentional propagation of false information which is likely to make others believe that the destruction of property or an attack against persons has already occurred or is likely to take place. In the absence of a definition for ‘false information’ in the legislation, the provisions lack clarity and may result in the imposition of disproportionate penalties. This is all the more as laws on the Legal Regime of the Online Press and the Legal Regime of Audio-visual Communication in Burkina Faso refer to the Penal Code for sanctions on the dissemination of false news, which as indicated above, may be disproportionate.

In addition, the term ‘likely’ gives wide discretional powers to law enforcement actors to interpret the provision. Article 86 of Law 058-2015/CNT on the Legal Regime of the Online Press in Burkina Faso[16] prohibits “publication or reproduction, through the online press, of false news, fabricated, falsified or misleading documents, likely to undermine public peace”. Similarly, article 130 of Law No. 059-2015 on the Legal Regime of Audio-visual Communication in Burkina Faso prohibits the “dissemination or reproduction of false, fabricated, falsified or misleading news, likely to undermine public peace”. These provisions are vague and may lead to arbitrary arrests and prosecution as they fail to define the nature of ‘false news, fabricated, falsified or misleading documents’. It also fails to elaborate on the meaning and scope of the term ‘public peace’ to the extent that it would be considered as a legitimate aim.

In June 2021, the Law No. 059-2015 on Audiovisual Communication[17] was utilized by the Burkinabe Superior Council of Communication (CSC) to suspend the Omega Media Group’s radio and TV programmes for five days, permitting them only to broadcast music.^[18] The Omega Group had previously mistakenly broadcast news via their radio and television channels, social media and website, about terrorist attacks perpetrated on the night of June 4 to 5 2021 in a village in the province of Yagha. Before the suspension, the Omega Group had already admitted to errors in their news coverage of the incident and taken steps to correct the false information. Civil society therefore considered the suspension unjustified, and also noted that suspension was not a penalty under Law No. 059-2015.

In Guinea, article 875 of the Penal Code[19] broadly criminalises the publication of ‘false news’ through electronic means, including the dissemination of all false news where the person “is unable to prove its veracity”. Article 519 also criminalises the communication of false information with the intention of causing the public to believe in the existence of a dangerous or destructive situation. The law does not provide clear criteria for determining what information is considered false, nor defines the phrases “public peace” or a “dangerous situation”, thus leaving a wide discretional power to enforcement officers. Violation of article 875 is punishable by up to two years imprisonment and/or a fine of up to 100 000 000 GNF (USD 11 527). This penalty is doubled when committed with the aim of undermining public peace. Violation of article 519 is punishable by up to one year of imprisonment and/or a fine of up to 5 000 000 GNF (USD 575).

Furthermore, article 106 of the Organic Law L/2010/02/CNT of 22 June 2010 on the Freedom of the Press in Guinea[20] prohibits any communication, by whatever means, of “fake news, fabricated or falsified material or material falsely attributed to third parties”, made in bad faith and likely to “disturb public order” or “undermine the discipline or morale of the armed forces or hinder the Nation’s war effort”. While ‘public order’ is a legitimate purpose for restricting speech, terms such as ‘fake news, fabricated or falsified material’ remain unclear. Additionally, phrases like the ‘morale of the armed forces’ or ‘the war effort of the Nation’ are not specifically linked to ‘national security’, which is also a legitimate aim, and that make this provision too broad to satisfy the requirements for permissible restrictions on freedom of expression.

In the same vein, article 35 of the Cybersecurity and Data Protection Act, 2016[21] criminalises the dissemination of false information that suggests that the destruction of property or an attack against persons has already taken place, or is likely to take place. It also prohibits false information about any other emergency situation, when it fails to define the “falsity” of the information. Its violation can result in a fine of up to 100 000 000 GNF (USD 11 497) and imprisonment of up to three years.

The fact that these provisions are scattered in different legislation leads to confusion because they have both similarities and differences, as do the related sanctions, which can be challenging as regards to their applicability. In fact, different sanctions could be applied for similar offences in different cases. Despite all these provisions, people are charged without a particular law being cited. For example, activist and human rights defender Oumar Sylla was sentenced by Conakry’s Court of Appeal to three years imprisonment for “communication and dissemination of false information, violence and threat of death” on 10 June 2021, without reference to a specific law.^[22]

In conclusion, as much as disinformation clearly affects access to accurate and reliable information, vague laws are a threat to freedom of expression. Such vague laws can be used to enable state repression and tend to worsen the existing political climate, which leaves doubts about a peaceful transition in Burkina Faso and Guinea. Given the political, security and social instability in Burkina Faso and Guinea, there is a fertile ground for the spread of false news that has led to increased restrictions on expression by governments. The existence of laws that lack precision and clarity and could be used against journalists, activists or any other critical voices, is a threat to democratic participation. With the impending presidential elections in the two countries – July 2024 in Burkina Faso[23] and January 2025 in Guinea[24], it is urgent to adopt clear disinformation policies with laws that meet international human rights standards. The transitional periods are opportunities for Burkina Faso and Guinea to revise or repeal controversial existing provisions on disinformation, in order to ensure a rights-respecting legal framework for all democratic actors.

^[1] European Commission, High Level Expert Group on Fake News and Online Disinformation Report, 2018 at p 3.

^[2] Especially Article 19(3) of the International Covenant on Human and People’s Rights (ICHPR)

^[3] As such, countries that have adopted French as an official language (Benin, Burkina Faso, Burundi, Cameroon, Central African Republic, Chad, Comoros, Congo, Côte d’Ivoire, Democratic Republic of Congo, Djibouti, Equatorial Guinea, Gabon, Guinea, Madagascar, Mali, Mauritania, Niger, Rwanda, Senegal, Seychelles  & Togo, https://bit.ly/3DUWhhE  (accessed 11 November 2022).

^[4] Laws on Expression Online: Tracker and Analysis – LEXOTA, https://lexota.org (accessed 11 November 2022).

[5] C Wardle & H Derakhshan  “INFORMATION DISORDER: Toward an interdisciplinary framework for research and policy making”, Council of Europe, Strasbourg Cedex.

^[6] Respectively on 24 Jan 1978 (Guinea) & 04 Jan 1999 (Burkina Faso), https://bit.ly/3C3uysO (accessed 11 November 2022).

[7] N Morrisson “Désinformation : les fausses nouvelles se répandent en ligne sur fond de coup d’État au Burkina Faso” BBC News (Afrique) 2 February 2022 https://bbc.in/3AmGoNQ (accessed 11 November 2022).

^[8] As above.

^[9] S Bilaly Sow & S D Badji, ‘Guinea’s fake news ecosystem’ February 2022  https://bit.ly/3cfVnBi (accessed 11 November 2022).

^[10] Ministère de la Communication, de la Culture et des Arts du Burkina Faso ‘Communiqué’ https://bit.ly/3QU5omK (accessed 11 November 2022).

^[11] A Bah ‘Fake news sur les réseaux sociaux et sur des sites web : le Parquet Général menace…’ 30 July 2018 https://bit.ly/3BCtFqQ (accessed 11 November 2022).

^[12] Loi L/2016/037/AN du 28 Juillet 2016, Relative à la Cybersécurité et la Protection des Données à Caractère Personnel en République de Guinée, https://bit.ly/3UJ7vMu (accessed 11 November 2022).

^[13] Legal analysis in “Laws on Expression Online: Tracker and Analysis – LEXOTA” also relies on article 19 of the ICCPR.

^[14] United Nations Human Rights Committee International Covenant on Civil and Political Rights General comment No. 34 (CCPR/C/GC/34) 12 September 2011 https://bit.ly/2Qe9G9A  (accessed 11 November 2022).

[15] Burkina Faso National Assembly, Law n°044-2019/an amending the Law n°025-2018/an of 31 May 2018 on the Penal Code https://bit.ly/3G88zVd (accessed 11 November 2022).

[16] Loi N°058-2015/CNT portant Régime Juridique de la Presse en Ligne au Burkina Faso, https://bit.ly/3A4CsSk (accessed 11 November 2022).

[17] Loi N°059-2015/CNT portant Régime Juridique de la Radiodiffusion Sonore et Télévisuelle au Burkina Faso, https://bit.ly/3A5wiBD (accessed 11 November 2022).

^[18] Décision No 2021-017/CSC portant Suspension des médias du groupe OMEGA pour diffusion de fausses informations, https://bit.ly/3C2BMhO (accessed 11 November 2022).

[19] Ministry of Justice, Guinea. New Penal Code, February 2016, https://bit.ly/3A76GUP  (accessed 11 November 2022).

[20] Loi organique L/2010/02/CNT du 22 Juin 2010 Portant sur la Liberté de la Presse, https://bit.ly/3A6sRuq (accessed 11 November 2022).

[21] Loi L/2016/037/AN du 28 Juillet 2016, Relative à la Cybersécurité et la Protection des Données à Caractère Personnel en République de Guinée, https://bit.ly/3G8wYtU (accessed 11 November 2022).

^[22] Guinea: Activist Sentenced to 3 Years Imprisonment, https://bit.ly/3y7zOKz (accessed 11 November 2022).

[23] C Bako, 21 mois de transition au Burkina Faso dans un contexte sécuritaire fragile, https://bit.ly/3UJ7FTL (accessed 11 November 2022).

[24] Guinée : la junte accepte de rendre le pouvoir aux civils dans deux ans, 20 October 2022, https://bit.ly/3EpYbXM  (accessed 11 November 2022).

About the Author:

Simone Toussi works as Project Officer for Francophone Africa at the Collaboration on International ICT Policy for East and Southern Africa (CIPESA), interested in the intersection of policy, digital technology, democracy and human rights. Her work involves research, community engagement and advocacy on African digital policies as they interfere with human rights and democratic processes. These include but are not limited to privacy laws and policies, surveillance’s regulations, as well as government’s mechanisms to tackle disinformation in Africa. She is also a strategic communication’s specialist, consultant and trainer with experience in international organizations, NGOs and the private sector. She holds a Masters in Development Studies from Senghor University in Alexandria, and a Masters in Semiotics and Strategies from the University of Yaounde 1.

Author: Dércio Tsandzana
Researcher / Professor of political science  at Eduardo Mondlane University

1. Introduction

This article analyses two laws that are undermining freedom of expression (and freedom of press) in the context of conflict in Mozambique. The first is the proposed Law of Communications that intends to review the press law[1] and the second is a law aimed at fighting terrorism in Mozambique.[2] Both were proposed at a time when Mozambique has been experiencing ongoing armed conflict in Northern Mozambique since October 2017.[3] Since then, several cases of human rights violations, imprisonment and disappearance of journalists have been reported.[4] On 29 October 2022, a Mozambican journalist was forcibly disappeared in Cabo Delgado – he had been arrested while in the course of his trade.[5] Thus, the approval of new laws in contexts of military tension may  not only undermine freedom of expression in the country, but can also violate human rights in general. It is necessary to understand what impact these laws may have on the respect for freedom of expression and how they can affect the way information is disseminated in the context of conflict, where the spread of false news tends to increase.[6]

In terms of structure, the article is divided in five parts: after this introduction, the second part presents a general discussion around the legal framework that regulates the spread of false news in the country; the third part discusses the Proposed Social Communications Law; the fourth section discusses the Law on the Prevention, Suppression and Countering Terrorism; the fifth part discusses the impact of these laws on international standards and freedom of expression; and the last part presents the conclusion and recommendations.

2. Mozambique’s legal framework on false news

This section provides the legal framework governing dissemination or sharing of false news in Mozambique, given the fight against false news in the digital age is an ongoing debate in several countries.[7] Mozambique does not have any legislation specifically focused on false news.[8] However, both the Penal Code[9] and the 1991 Press Law[10] – which may be replaced by the Proposed Social Communication Law[11] – include restrictions on false news. For example, article 398 of the Penal Code provides for an offence of disturbing public order or attempting to do so. It covers the instigation or provocation of collective disobedience against the laws of public order, essential public functions, or any attempt to disturb public order or peace by any means. In addition to that, article 398(2)(a) and (b) include in this, publishing false or biased news which may cause alarm or unrest or distributing or attempting to distribute written material which lead to the same result. So far, there are no specific cases of the application of this law to sanction any individual.

3. Proposed Social Communications Law

This section provides the general landscape on the new law on communications, which is still under debate in parliament. It is a proposal that has been criticised by media organisations and civic associations because of its restrictions on freedom of expression, as it demands a new code of conduct for journalists and imposes new rules for the registration of media companies in the country.[12] On 22 March 2021, drafts of a new media law and a new broadcasting law were debated for the first time in the Mozambican Parliament.[13] That time, several civil society organisations, such as Media Institute for Southern Africa (MISA) and Electoral Institute of South Africa (EISA), expressed great concern at the public hearing that these laws would not only undermine the work of journalists, but also restrict freedom of expression and press freedom. In February 2022, the coordinator of the African program of the Committee for the Protection of Journalists (CPJ), Angela Quintal, described the new media law in Mozambique as “terrible”. For the organisation, the new media law is a major violation of press freedom.[14]

The executive editor of Canal de Moçambique, Matias Guente, a newspaper whose offices were set on fire in 2020 by persons still unidentified, said about the new law that “the impression that remains is that [the legislative package] was conceived in a police station” and that “journalists are treated as the enemy”.[15] The draft law provides that journalists lose the right to defend themselves in cases of defamation against the President of the Republic, although the right to defence is part of the Constitution. There is also a redefinition of restrictions on private investment in the media and the overlap between disciplinary and supervisory bodies. Without the regulator’s approval, no media company can have foreign financial involvement of more than 50%.

4. Law on the Prevention, Suppression and Countering Terrorism 

This section discusses the elements that make up the new law aimed at combating terrorism in Mozambique, the context of its approval and the criticisms made about the law. In June 2022 Mozambique passed a law to counter-terrorism[16]. The law establishes the procedures to designate individuals, groups and entities associated with terrorist crimes and to freeze their funds and assets. It seeks to embargo the movements of individuals associated with terrorism or suspected of financing terrorism. The Mozambican chapter of the regional press freedom body, MISA Mozambique, denounced the law as a threat to freedom of expression.[17] The organisation said it was concerned the law would seek to charge anyone who was involved in the “reproduction of statements about terrorism.”

Even if legislation is important to counter terrorism in Mozambique, the provisions restricting online false news relating to terrorism in this law raise concerns.[18] It is loosely defined in scope, giving authorities discretion to restrict a wide range of speech, and pursue aims which may not be considered “legitimate” according to international human rights standards.[19] In other words, the reason behind the law is not clear, as this reason must not be discriminatory in itself and it must be a genuine or real reason. Examples of legitimate aims include the health, safety, and welfare of individuals. It also stipulates penalties between eight to twelve years in prison. It is potentially disproportionate in their severity and may result in a chilling effect on freedom of expression. In addition to that, the law is vague and does not clearly define terms such as public order, turbulence, and insecurity in its glossary or definitions section.

Article 11(d) of that Law defines as an act of terrorism to be anyone who “communicates information of which he has knowledge that is false, thereby endangering the safety of an aircraft in flight or on the ground”. The same article 11(w) also defines an act of terrorism as “disseminating information, which is known to be false, thereby endangering the safe navigation of a ship.” However, of particular controversy is article 20, which provides that “a Mozambican, foreigner or stateless person living or being in the Republic of Mozambique makes or reproduces publicly statements relating to terrorist acts which she/he knows to be false or exaggerated, with the intent to create public panic, disturbance, insecurity, and disorder shall be punished with imprisonment for a term of 2 to 8 years”.

5. Norms and Standards: Broader impact of these laws on freedom of expression

This section analyses how the two new laws may (or not) respect the legal framework of press freedom and to what extent they are good (or not) for the country. Generally, some of the provisions presented in both laws can be inappropriate and may violate the Constitution of the Republic of Mozambique[20], specifically on freedom of expression and the access to information. Article 48 of the Constitution states that “All citizens have the right to freedom of expression, freedom of the press, as well as the right to information.”

Some articles may also violate international laws and standards. In the proposed Social Communications Law, the main criticism is the proposal for the creation of a Regulatory body that will be responsible for monitoring the activities of and deciding who can or cannot be a journalist in the country. In the proposal, there is also the threat of this same entity revoking the professional journalist card, whether for nationals or foreigners. This is in part an act that undermines journalists’ freedom of production, given that a Regulatory body linked to the executive will be able to decide on journalistic activity. In addition to that, there is a concern about restrictions of ownership of media companies by foreign nationals – there is a requirement to have a reduced quota for support coming from abroad.

Regarding the ‘Law on the Prevention, Suppression and Countering Terrorism’, article 8 undermines freedom of expression. It provides that “In public and private places of public access, measures must be adopted to prevent terrorist acts by installing means of security and electronic surveillance”. The distinctions between private and public are not clear since the law is very broad and vague in its definition. Moreover, it is not up to the citizen to know what is false or not if it is not clearly defined in the law. As stated by the General comment No. 34/Article 19/Freedoms of opinion and expression/Declaration[21], it is for the State party to demonstrate the legal basis for any restrictions imposed on freedom of expression. The State party has the obligation to provide details of the law and of actions that fall within the scope of the law.

Equally, article 9 states that “Telecommunications network operators and service providers shall adopt measures to control users in the context of the prevention, repression and combating terrorism.” It is not clear what the law means by ‘’measures to control users’’. This provision has the potential of violating the Law of Right to Information[22], which stipulates the legal procedures and limits to such access. In other words, the limitation of fundamental freedoms must be expressly explained when it affects the greater good or public security such as war or foreign military aggression. Through article 9 of the law, it is not clear to what extent telephone operators have this right. This is a violation that can also compromise the data protection and security of users, especially because Mozambique does not yet have a law or a Data Protection Agency.

Considering the provisions about disinformation in the online sphere, the Law on the Prevention, Suppression and Countering Terrorism and Proliferation of Weapons of Mass Destruction can also violate the international law and standards, specifically the International Covenant on Civil and Political Rights, the General Comment No. 34 of the UN Human Rights Committee, the 2017 Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda[23] and the Declaration of Principles of Freedom of Expression and Access to Information in Africa (the Declaration). Regarding the Declaration, principle 37 on access to the internet states that:

(1) States shall facilitate the rights to freedom of expression and access to information online and the means necessary to exercise these rights;

(2) States shall recognise that universal, equitable, affordable, and meaningful access to the internet is necessary for the realization of freedom of expression, access to information and the exercise of other human rights.

In respect to the 2017 Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda, “States may only impose restrictions on the right to freedom of expression in accordance with the test for such restrictions under international law, namely that they be provided for by law, serve one of the legitimate interests recognised under international law, and be necessary and proportionate to protect that interest.” It seems that this is not the case in Mozambique, as the laws to counter terrorism and violence is not clear about the limitations.

6. Conclusion and Recommendations

This analysis has demonstrated that the approval of laws in times of conflict opens space for violations of fundamental rights such as freedom of expression and freedom of the press. The two laws discussed in this article are fundamental for Mozambique, and if well implemented, can have a positive impact. However, there is the need for broader consultation to ensure that the provisions of the law are in alignment with the Constitution and international laws and standards.

The following recommendations are suggested:

(1) the government must ensure that both laws do not infringe international law and standards, and the national Constitution; (2) the responsible entities such as Ministry of Science and Technology and Regulatory Authority should ensure that the laws are widely disseminated using inclusive strategies, and engage in comprehensive and meaningful public education on the law; (3) Civil society organisations and academia should collaborate to deconstruct the approved and proposed laws, to ensure that citizens are aware of the legal instruments; and (4) Parliament should amend both laws after promoting a wider and more participatory debate on the provisions of the law – eliminating provisions that do not respect freedom of expression.

[1] New media law in Mozambique “is terrible” https://cartamz.com/index.php/politica/item/9916-nova-lei-dos-media-em-mocambique-e-terrivel-para-os-jornalistas-ong Carta de Moçambique (Maputo) 10 February 2022 (accessed on 15 November 2022).

[2] Law No. 13/2022 of 8 July https://www.mef.gov.mz/index.php/publicacoes/legislacao-dngrh/1637-br-131-i-serie-2022/file (accessed on 15 November 2022).

[3] Mozambique | Crisis Group https://www.crisisgroup.org/africa/east-and-southern-africa/mozambique (accessed on 15 November 2022).

[4] Two years on, Ibraimo Mbaruco’s disappearance remains unanswered https://clubofmozambique.com/news/cabo-delgado-two-years-on-ibraimo-mbarucos-disappearance-remains-unanswered-dw-213736/ Club of Mozambique (Maputo) 8 April 2022 (accessed on 15 November 2022).

[5] Mozambican Journalist Feared Forcibly Disappeared in Cabo Delgado https://www.hrw.org/news/2022/11/02/mozambican-journalist-feared-forcibly-disappeared-cabo-delgado  Human Rights Watch 11 November 2022 (accessed on 15 November 2022).

[6] UNESCO (2017) Terrorism and the media: a handbook for journalists https://unesdoc.unesco.org/ark:/48223/pf0000247074 (accessed on 15 November 2022).

[7] Council of Europe, Disinformation in the digital age: effects on democracy, state and society https://www.coe.int/en/web/freedom-expression/-/disinformation-in-the-digital-age-effects-on-democracy-state-and-society (accessed on 11 October 2022).

[8] LEXOTA provides detailed analysis on laws and government actions on disinformation across Sub-Saharan Africa, to inform and strengthen the work of human rights defenders, researchers, and policymakers, https://lexota.org/country/mozambique/

[9] Penal Code (2019) https://reformar.co.mz/documentos-diversos/lei-24-2019-lei-de-revisao-do-codigo-penal.pdf

[10] Press Law (1991) http://www.caicc.org.mz/images/stories/documentos/lei_de_imprensa.pdf

[11] Press freedom in Mozambique under pressure https://www.dw.com/en/press-freedom-in-mozambique-under-pressure/a-56962703 DW (Berlin) 24 May 2021 (accessed on 16 November 2022).

[12]New media law in Mozambique “is terrible” for journalists, Club of Mozambique (Maputo) 8 February 2022 https://clubofmozambique.com/news/new-media-law-in-mozambique-is-terrible-for-journalists-ngo-209305/ (accessed on 17 August 2022).

[13] Freedom House, Mozambique: Beijing’s Global Media Influence Report https://freedomhouse.org/country/mozambique/beijings-global-media-influence/2022 (accessed on 11 October 2022).

[14] Club of Mozambique (Maputo), as above.

[15]New communication law in Mozambique. https://www.rtp.pt/noticias/mundo/nova-lei-dos-media-em-mocambique-e-terrivel-para-os-jornalistas-denuncia-ong_n1383140 RTP (Lisbon) 9 February 2022 (accessed on 15 November 2022).

[16] Law on the Prevention, Suppression and Countering Terrorism and Proliferation of Weapons of Mass Destruction (2022) https://www.mef.gov.mz/index.php/publicacoes/legislacao-dngrh/1637-br-131-i-serie-2022/file

[17]Mozambique’s ‘repressive’ Anti-Terror Bill threat to journalists – media organisations, News 24 (Johannesburg) 8 June 2022 https://www.news24.com/news24/africa/news/mozambiques-repressive-anti-terror-bill-threat-to-journalists-media-organisations-20220608 (accessed on 17 August 2022).

[18] CPJ, June 2002 Proposed amendment to Mozambique’s anti-terror law threatens press freedom https://cpj.org/2022/06/proposed-amendment-to-mozambiques-anti-terror-law-threatens-press-freedom/  (accessed on 17 August 2022).

[19] Global Voices, New laws undermine freedom of expression and press in Mozambique, June 2022 https://globalvoices.org/2022/06/04/new-laws-undermine-freedom-of-expression-and-press-in-mozambique/ (accessed on 17 August 2022).

[20] Constitution of the Republic https://www.portaldogoverno.gov.mz/por/Governo/Legislacao/Constituicao-da-Republica-de-Mocambique (accessed on 16 August 2022).

[21] General comment No. 34, Article 19: Freedoms of opinion and expression, CCPR/C/GC/34 – OHCHR https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf (accessed on 10 October 2022).

[22] Law of Right to Information, Law 34/2014 of 31 December https://www.cmaputo.gov.mz/por/content/download/4986/36144/version/1/file/Lei+do+Direito+a+Informacao%2C+Regulamento+e+Manual+de+Procedimentos.pdf.

[23] The 2017 Joint Declaration https://www.ohchr.org/Documents/Issues/Expression/JointDeclaration3March2017.doc

About the Author:

Dércio Tsandzana is a Mozambican researcher and political scientist. Since 2013, Tsandzana has been working on youth, Internet, social media, and political participation in Mozambique, including on-line activism for Global Voices International. Tsandzana undertook research work focusing on digital rights, and data privacy with Internews, Collaboration on International ICT Policy for East and Southern Africa (CIPESA), Paradigm Initiative (PIN), Association for Progressive Communications (APC) and African Declaration on Internet Rights and Freedoms. Since 2020, Tsandzana has been a permanent consultant at ALT Advisory (Johannesburg). His most recent article is entitled ‘’The political participation of youth in Mozambique’s 2019 general elections’’ (Journal of African Elections, 2022).

Author: Urias Teh Pour
Executive Director, Independent National Commission on Human Rights (INCHR), Liberia

For the first time in the political history of Liberia, Liberians in the diaspora are making a strong case for their inclusion in the 2023 general and presidential elections. This call has come at the time when the Alien and Nationality Act of 1973 which prohibited dual nationality has been amended. The amended Act, Alien Nationality Law of 2022, provides that ‘any person who acquires another in addition to his or her Liberian citizenship shall not [be] deemed to have relinquished his or her Liberian citizenship.’

The passage of this law led to a wave of calls for the democratisation of electoral politics, considering the huge population of Liberians living abroad and their aspiration to participate in elections to elect their leaders at home. The Liberia Demographic Survey of 2021 projected Liberia’s population at 5.18 million. There are approximately 1.2 million Liberians and people with Liberian heritage scattered all over the globe, with the majority living and referring to the United States as their home. Some statisticians have predicted that the on-going population and housing census would exceed the projected number.

Diaspora Liberians, many of whom fled the country as refugees due to the civil war, have argued that their connection to Liberia remains strong and they are contributing to the post-war reconstruction and development of Liberia, including through remittances to relatives and family members. According to the World Bank “Migration and Remittances Data”, diaspora Liberians contributed 20.4 percent of the Country’s GDP between 2004-2013 through remittances .   Liberians in the diaspora have contended further that the right to vote is a means by which people can democratically elect the government of their choice, an inherent right of all citizens that is a crucial part of democracy.

Professor Jallah Barbue, an expert on Liberian constitutional law, argued that absentee voting under the Liberian Constitution applies to all Liberians living in Liberia who cannot vote on Election Day at designated polling centers due to unavoidable circumstances, as well as Liberians living abroad. He also asserted that the right to vote defines citizenship, is enshrined in the Constitution and in the international human rights framework, and must include all Liberians regardless of their geographical location.  He concludes that what works best for Liberians in the diaspora is normal voting outside the country through embassies, as many African countries have done, including Kenya and Ghana, and which others, such as the Democratic Republic of Congo, are willing to experiment. These examples from African countries show that there is a growing consensus that the participation of the African diaspora in elections is as important as that of citizens living in their countries, given, among other things, that global and continental human rights instruments encourage popular participation.

Do global human rights instruments support the participation of diaspora voters?

Within the international human rights framework, the right to participate and vote is a fundamental right in international and regional human rights instruments. Liberia ratified the International Covenant on Civil and Political Rights (ICCPR) in September 2004.  Article 25 of ICCPR recognises and protects the right of every citizen to take part in the conduct of public affairs and to vote and urges States, regardless of the form of their constitution or government, to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy their right to vote.

The Human Rights Committee asserts in General Comment 25 that States Parties to the ICCPR must guarantee the rights enshrined in Article 25, which expresses the principle of “one person, one vote”, as well as ensure that electoral boundaries are established in a way that does not distort voter distribution or discriminate against any group. To ensure compliance with the ICCPR standards, the Committee requires State Parties to include in their periodic reports measures adopted to certify and give effect to free expression of the will of the electors, as well as to provide information on laws and procedures that ensure that the rights of all citizens are exercised.

In addition, Liberia has signed the International Convention on Migrant Workers’ Rights, the normative content of which contains instructive provisions.  Article 41 (1) of the International Convention on Migrant Workers calls on the state party to facilitate the enjoyment of the right to participate in the public affairs of their home state. Under Article 18(1) of the 1969 Vienna Convention on the Law of Treaties, ratified by Liberia in 1985, a state that has signed but not ratified a treaty is under the obligation not to ‘defeat’ its ‘object and purpose’. This requires reasonable measures to allow Liberians in the diaspora to participate in elections without hindrance.   Building on this provision, the UN Special Rapporteur on the human rights of migrant workers has encouraged the facilitation of voting rights for non-resident citizens. He further states that the participation of citizens abroad in national public life and their right to vote must be guaranteed in law and in practice.

Fostering the participation of diaspora voters through AU instruments

At the regional level, Article 13 of the African Charter on Human and Peoples’ Rights provides that ‘[e]very citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law,’ Article 3 of the African Union Constitutive Act calls for the promotion of democratic principles and institutions as well as popular participation and good governance. Although Liberia has signed but not yet ratified the African Charter on Democracy, Elections and Good Governance, its provisions only further develop the democratic principles already provided for in binding instruments such as the African Charter. Article 4(2) of the Charter urges state parties to recognize popular participation through universal suffrage as an inalienable right of the people. Similarly, the African Commission on Human and Peoples’ Rights (African Commission), in its resolution 174 (2010), calls on states to ‘[e]stablish impartial and non-discriminatory procedures for all voting processes.’ These international human rights instruments have not made residency a permissible limitation on human rights, and the African Commission on Human and Peoples’ Rights has stated that the rights contained in the Charter are non-derogable rights.

The African Commission has developed a three-pronged test for human rights restrictions in a complaint (Gabriel Shumba and Others (represented by Zimbabwe Lawyers for Human Rights v The Republic of Zimbabwe (2020)) by Zimbabweans living in South Africa that their right to vote was violated. Prior to this decision,  the Commission stated in Purohit and Moore v. The Gambia (2003) that voting restrictions must be based on objective and reasonable grounds. That said, in Gabriel Shumba and Others (represented by Zimbabwe Lawyers for Human Rights v The Republic of Zimbabwe, the Commission asserted that, firstly there must be a consideration of ‘whether there were any duly enacted law that restricted the right.’ This speaks to the principle of legality. ‘Secondly, whether the justification forwarded by the State pursued a legitimate purpose and that the means adopted served that intended purpose.’ This second test relates to the legitimate purpose any limitations must serve in a democratic society. Last, the limitation should be necessary and proportionate to the aim sought to be achieved. In other words, a nut should not be cracked with a sledgehammer.

In each of the three tests, the Commission stated that the law providing for the restriction must be sufficiently clear given the centrality of legal certainty to the rule of law, drawing from Sunday Times v the United Kingdom case decided by the European Court on Human Rights,  that  “the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.’

In Gabriel Shumba and Others (represented by Zimbabwe Lawyers for Human Rights) v The Republic of  Zimbabwe  where citizens of Zimbabwe argued that they have the right to vote outside their country of origin, the Respondent State raised lack of resources as the reason why it was unable to ensure diaspora voting. To this, the Commission asserted that though it ‘would naturally entail more expenses, without specific data and evidence, it is not possible for the Commission to truly appreciate the difference in cost between elections that include or exclude citizens that are resident abroad.’ The Commission concluded that the justification provided by the Respondent State was not sufficiently justifiable.

Expounding on the third test whether legislation restricting the right of independence candidates to participate in presidential elections was a necessary restriction, the African Court on Human and Peoples’ Rights in Mtikila v Tanzania  stated that the legitimate interest must be proportionate with and absolutely necessary to the advantages which are to be obtained. The Court stated that the principle of necessity also entails that States take the least intrusive or disruptive action to achieve their aims. The Court concluded that, when there are multiple options available to achieve similar aims, States are obligated to take the course of action least restrictive of the enjoyment of the right in question. Section 5.5 of the 1986 New Election Law provides that ‘[a] registered voter who is absent from the country during an election and wishes to vote shall request the Commission [by] registered mail for an absentee ballot forty five (45) days before an election…’  This provision supports article 80 (c) of the Constitution which grants similar rights.  Thus, deleting the provision requiring absentee vote by the Legislature through the Election Law of 2004 (which amended the 1986 New Election Law) without reasonable grounds such as ‘collective security, morality and common interest’ as provided for by the African Charter on Human and Peoples’ Rights is arbitrary. It further defeats the purpose of article 11 (c) of the Constitution which provides for equality and non-discrimination of all Liberians before the law. The government and the National Elections Commission (NEC) have so far failed to provide reasons for refusing to include provisions for absentee voting in the planning processes, and perhaps to find less intrusive ways to accommodate all Liberians, rather than violating the Constitution.

Liberian Constitution and diaspora voters

Chapter 3 of the Constitution of 1986 guarantees a range of rights. It includes the equality clause, and provides that all Liberians regardless of race, sex, creed, place of origin or political opinion, are entitled to the fundamental rights and freedoms. Article 5(a) enjoins the Legislature to ‘enact laws promoting national unification and encouragement of all citizens to participate in government.’  Moreover, article 80(c) articulates provisions for absentee voting. It asserts,

Every Liberian citizen shall have the right to be registered in a constituency, and to vote in public elections only in the constituency where they registered, either in person or by absentee ballot; provided that such citizen shall have the right to change his voting constituency as may be prescribed by the Legislature

In addition, article 77 (b) of the Constitution provides the manner in which voting shall be held, stating that:

All elections shall be by secret ballot as may be determined by the Elections Commission, and every Liberian citizen not less than 18 years of age, shall have the right to be registered as a voter and to vote in public elections and referenda under this Constitution. The Legislature shall enact laws indicating the category of Liberians who shall not form or become members of political parties-

The prevailing constitutional provisions were sufficiently validated by section 5(5) of the 1986 New Election Law until that provision was repealed in 2004. Thus, it is tenable to argue that the framers of the 1986 Constitution did not intend to disenfranchise Liberians on the basis of their geographical location.

The 2014 amendment to the New Elections Law does not contain a provision that divests Liberians in Liberia and those in the diaspora the right to vote.  Section 5.1 of the 1986 New Election Law (as amended in 2004) under the captioned “who may Vote” provides:

Except one who has been judicially declared to be incompetent or of unsound mind, or who has been barred from voting as a result of his/her conviction and imprisonment for an infamous crime which disenfranchised him as a voter and has not been restored to full citizenship, a Liberian citizen who has attained the age of 18 years or above with a valid registration card may vote at any election in the voting precinct of an electoral district for which he or she is registered.

Additionally, Section 3.1 of 2014 the Act provides that ‘[a] person must register to vote at a voter registration centre established by the NEC for the place where he or she ordinarily resides and must vote at the polling place established by NEC for voters registered at that centre.

It is evident that the provisions of the Election laws afford every Liberian citizen the opportunity to vote and that the National Election Commission (NEC) is under legal obligation to give effect to Section 3 .1 (a) of the New Elections Law amended 2014 and Sections 3.1 and the constitutional provisions mandating absentee voting.    The framers of the Constitution and referenced statutes intended for all Liberians, wherever they reside, to exercise the right to vote. NEC’s deliberate attempt not to consider diaspora Liberians in the scheduled registration of voters for the 2023 General and Presidential Elections contravenes the statutes and particularly article 2 of the Constitution which provides that ‘[a]ny laws, treatise, statutes, decrees, customs and regulations found to be inconsistent with the Constitution it shall, to the extent of the inconsistency, be void and of no legal effect.’

Conclusion

The constitution succinctly answers the controversial question of whether a constituency can be established outside Liberia. The inclusion of absentee voting by the framers of the constitution was intended to create the conditions for all Liberians, wherever they may be, to exercise their constitutional right to elect their leaders. The government of Liberia would, therefore, be well advised to establish polling stations in its foreign embassies or to establish other mechanisms – such as digital voting methods – to fulfil this sacred constitutional mandate.

About the Author:

Urias Teh Pour is Executive Director of the Independent National Commission on Human Rights (INCHR) of Liberia. The INCHRL is a status ‘A’ accredited National Human Right Institution (NHRI) by the Global Alliance of National Human Rights Institutions (GANHRI).  He holds a Master of Law (LLM) from the Centre for Human Rights, Faculty of Law, University of Pretoria. He previously worked for the Carter Centre ‘Access to Justice Project’ in Liberia and as Human Rights Officer with the United Nations Mission in Liberia (UNMIL).  He is also an Adjunct Lecturer in the Department of Political Science at the University of Liberia.

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

As envisaged in the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), transitional processes should recognize the gendered nature of conflicts in which women are affected disproportionately, both directly and indirectly, by violence (see, for example, Article 10 –Right to Peace- and Article 11 –Protection of Women in Armed Conflicts-).[1] However, gender concerns in Africa have been rarely incorporated into Transnational Justice (TJ) through mainstreaming gender as a crosscutting issue. The nature of the violations to which women are usually subjected on the continent, and the impact of such violations on them, means that the issue of women and TJ should be treated on its own. Nevertheless, there is still a long way to go to comply with this measure. Normally, states emerging from conflicts or authoritarian repression should ensure women’s representation and participation at all stages of TJ processes by writing women’s participation into peace agreements and TJ laws and policies. Nevertheless, seldom has this been the case in Africa.

For example, with respect to the investigation and prosecution of sexual and gender-based violence, TJ processes should adopt measures that protect victims of such violence from social and cultural stigma and ameliorate procedural and evidentiary requirements that militate against their effective prosecution. A serious concern remains over the apparent continuum of violence facing women in societies emerging from conflict. For many women, sexual and gender-based violence is as prevalent during peace as during times of conflict but attention to these violations dissipates. African countries emerging from conflicts often face high levels of violent crime, which is exacerbated by weak and under-resourced justice sectors. Women who have been victims of gender-based violence also face considerable stigma, and there is often pressure to simply remain silent.

As of now, for Africa it would be already a success if all the cases of rape can be recognized like such, not only by judges in court but also by civil society. Unfortunately, rape culture, is many African countries is still a big problem. The expression “rape culture” refers to an environment in which sexual violence against women is normalized and excused in the media and popular culture.  Rape culture is perpetuated by misogynistic language, the glamorization of sexual violence and the objectification of women’s bodies, in that way creating a society that disrespects women’s rights and safety. For example, in South Africa marital rape is still often commonly accepted at a societal level and domestic courts are not always very prompt in condemning it either. In the words of  Nyasha Karimakwenda (2018) “[T]he culturally sanctioned rape myths create a common bond between rapist and judge, and they draw upon the same language and techniques to justify marital rape […] I drew out the neutralisation techniques exploited by the judges to minimise the culpability of the husbands who had been convicted of marital rape. Through the techniques of denial of injury and denial of the victim, the judges negated the human-ness and suffering of the victims” (at 223-224).[2]

This should also be coupled with recognizing the importance of the adoption of urgent measures to address the psychosocial, medical and livelihood needs of survivors of gender-based violence. On the domestic level, despite often depleted and fragile legislative and judicial infrastructure after a conflict, a number of countries have undertaken commitments to protect and enshrine gender concerns through both international and domestic instruments. Recent examples have shown, however, that enacting gender laws is only the beginning. A study from Liberia, which passed a Rape Amendment Act in 2006,[3] has revealed that challenges with prosecuting sexual crimes are due to both the inadequate judicial system and the lack of knowledge among victims of the stages and procedures for prosecuting offenders. In converse, a significant development in the field of reparations has been the delivery of reparations by military tribunals in the Democratic Republic of Congo (DRC). In April 2006, a military court in Mbdandaka found seven army officers guilty of mass rape of more than 119 women at Songo Mboyo in 2003 and sentenced them under the Rome Statute,[4] which the DRC ratified in 1998. This was the first time rape was tried as a crime against humanity in DRC, and the first such sentence against military personnel for these crimes. For the destruction of the village of Songo Mboyo and the mass rape, they received sentences of life imprisonment and the verdict required each victim’s family to receive reparations for US $10,000. Rape victims were to receive US $5,000.

In this scenario, it is clear that, primarily, African states should enforce the prohibition of discrimination against women, criminalise violence against women, including sexual violence, and harmful practices affecting women in accordance with national, regional and international human rights standards. Traditional authorities and others involved in TJ mechanisms should be educated and trained to ensure that customary law or practices that are incompatible with the human rights of women are no longer applied by TJ systems. Increased representation of women in traditional justice systems should also be encouraged.

In this context, there have been some promising efforts to improve the human rights practices of traditional justice systems. In Rwanda, an estimated 120,000 perpetrators were arrested at the end of the genocide in 1994 and projections were that it would take over 110 years to try all the detainees in the national courts.[5] Hence, the gacaca courts were established in 2001 as a means to speed up the process. These were intended to be community courts, presided over by village elders in the presence of the whole community, where any person could request to give testimony. Sentences were generally restorative and involved the perpetrator being required to engage in community-oriented work. Women were specifically included at a number of levels, and there have been widespread education campaigns to encourage women’s involvement in the courts. Unfortunately, while women of all ethnic groups had suffered gender-based crimes, Hutu victim-survivors were not eligible for compensatory assistance.

In spite of several efforts to change the situation, discrimination against women remains one of the most commonly cited human rights issues in the context of traditional TJ systems in Africa. While the level of female leadership in such systems remains low, there is evidence of positive developments in recent years. In Namibia, for example, it has been reported that, since independence, women have had a much greater role in traditional court meetings and been encouraged to play an active role, and have had leadership roles in certain villages.[6] In South Africa, women have been installed as traditional leaders. In a ground-breaking case in 2002, a woman was officially installed as a traditional leader, but her uncle’s son challenged this in the High Court in Pretoria claiming that it was in conflict with customary law. Relying on written customary law, the High Court ruled in favour of her uncle’s son, and the Supreme Court of Appeal, holding that succession followed particular customary rules, upheld this decision. The judgement was overturned in favour of the woman, on appeal to the Constitutional Court. The Constitutional Court held that “Customary law is by its nature a constantly evolving system. […] the content of customary law must be determined with reference to both the history and the usage of the community concerned” (Shilubana and Others v. Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC), Judgment of 4 June 2008, paras. 45–49).[7]

Concerns about gender discrimination may stem in part from the reliance on mediation and reconciliation in dispute resolution, which may favour the more powerful male members of society, who may hold stereotypical views of women. Similarly, decisions made by the leaders of the community, or by the community as a whole, may disadvantage women, who typically are less powerful. More broadly, deep-seated stereotypes about the role of women in the community may play a role.

A priority for the international community to ensure that TJ processes are more gender-sensitive is to promote the greater participation of women in peace negotiations, where TJ mechanisms are often first outlined. In October 2000, the United Nations Security Council (UNSC) passed the historic Resolution No. 1325, which provided the first official endorsement of the inclusion of women in peace processes and the implementation of peace agreements by the UNSC. Regrettably, the nature of conflict often results in the exclusion of women’s voices from peace negotiations with their specific concerns not being addressed in any meaningful way in the peace-building process.[8]

The current discourse on TJ in Africa needs certainly to be broadened in order to promote more inclusive gender-oriented notions of justice. TJ initiatives are often devised in a way that reduce gender concerns to those of “victimhood”. The focus on women as victims not only perpetuate perceptions of women’s passive role during conflicts, but also silences other aspects of their experiences. Women’s multiple roles during a variety of recent conflicts were stressed, because they have been visible as cooks, porters, guards, perpetrators, as well as community leaders.

I do not think that, at least now, the material turn taken by TJ is really changing the life and perspectives of women in Africa. I would be very interested in delving into this topic to look for possible opportunities of improvement of the situation of women on the continent, although certainly not in the short/medium term.

[1] https://au.int/sites/default/files/treaties/37077-treaty-charter_on_rights_of_women_in_africa.pdf

[2] https://open.uct.ac.za/bitstream/handle/11427/30023/thesis_law_2018_karimakwenda_nyasha.pdf?sequence=1&isAllowed=y

[3] https://evaw-global-database.unwomen.org/-/media/files/un%20women/vaw/full%20text/africa/liberia%20-%20rape%20amendment%20act.pdf?vs=4125

[4] https://www.droitcongolais.info/files/4.30.-TMG_BDK,-Jgt-du-12-avril-2006,-complot-militaire.pdf

[5] https://library.oapen.org/bitstream/id/0be192c6-18d8-44c9-953e-c3c60ebe878c/external_content.pdf

[6] https://www.jstor.org/stable/25065065

[7] http://www.saflii.org/za/cases/ZACC/2008/9.html

[8] http://unscr.com/en/resolutions/doc/1325

About the Author:

Dr. Cristiano d’Orsi is a Lecturer and Senior Research Fellow 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. In addition, Cristiano did post-doctoral studies at the University of Michigan Law School (Hugo Grotius Fellow) and at the Centre for Human Rights, University of Pretoria. Cristiano’s 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.

Author: Eva Abugabe
MPhil candidate, Centre for Human Rights, University of Pretoria

Introduction

The PAP^[1] in its sixth session of the First Parliament in 2006 resolved to ending migration in Africa.[2] Based on PAP-Rec(08(VI)06), the PAP acknowledged migration as a regional priority due to increasing refugee crisis, migrant remittances, movement of labour, the African Diaspora and brain drain, feminisation of migration, xenophobia and human trafficking.[3] In PAP-Res (06(VI)06), the PAP furthermore demanded continuous agenda setting in its debate, regional and national collaborations in learning best practices including encouraging governments to address the challenges by observing good governance and promoting investment in economies, infrastructure and creating employment.[4]

The article[5] critically analyses the PAP’s resolutions and recommendations against regional and international human rights instruments. It aims to position the PAP as an active protector of human rights while making it more visible to Africans, its primary constituents. Its thrust is to also evoke deliberate interventions and broadly contribute to the actualisation of the Africa We Want Agenda, Agenda 2063^[6] and to the 2030 Agenda for Sustainable Development^[7] specifically target 10.7 of Goal 10.^[8]

Africa’s migration challenges

Article 1 of the African Charter on Human and Peoples Rights enjoins state parties to adopt legislative and other measures to protect people’s rights and freedoms.[9] The Charter recognises freedom of movement^[10] however, as the PAP acknowledged, migration has significant consequences for Africa’s development. Africa is widely projected as a ‘continent on the move’^[11] and bedeviled with millions of Africans migrating to other continents especially Europe through unapproved avenues.^[12] Multiple reports underscore African youth, men, and women sometimes with their children, embarking on dangerous journeys, including through the Mediterranean Sea in search of greener pastures in the global north. ^[13]

Against this backdrop, the United Nations has since 2010, continuously pronounced Sub-Saharan African countries as accounting for 8 of the 10 fastest emerging international migrant populations.^[14] African migrants allegedly threaten the peace and security, developmental plans among others, of most governments and citizens especially of industrialised northern countries,^[15] owing to concomitant effects of unlawful entries, prolonged stay, establishment of shambolic relations (marriage) and overburdening social systems (asylums).

Sadly, many African countries have limited empirical data of migrants, much less, intersectional demographic distributions. The 2019 international migration assessment of the United Nations projected that, since the sequences of African population censuses in the 2000, 14% of Sub-Saharan African countries do not have updated data on international migration, 24% do not publish information on recent data and above 33% are in need of revised data on age distribution data.^[16] Nonetheless, more African men than women, and youth than older persons migrate.^[17] Africa has witnessed 6 million international migrants of the world migrants stock, an equivalent of 0.4 million growth per year between 2000 and 2015.^[18] Out of the 244 million international migrants worldwide in 2015, Africa was host to an estimated 21 million migrants while to 34 million Africans were international migrants.^[19] African migrants contribute significantly to the populations of Asia, Europe, and North America.^[20]  These numbers invariably have serious impact on African countries’ population demographics especially maximising the potentials of African women and youth through engagements and skills development which are essential for their participation and ignite their interest in all spaces of life and Africa’s growth at large.

Many Africans migrate for different reasons. Africa’s escalating migration rates are partly caused by poor governance, electoral violence, lack of employment opportunities, shelter and upsurges of conflicts, terrorism, corruption and political instability.^[21] Unsurprisingly, in August 2018, leaders of European nations, including French President Emmanuel Macron, British Prime Minister Theresa May and German Chancellor Angela Merkel engaged with selected African leaders on developmental concerns of foreign direct investment and migration.^[22]

The role of PAP in tackling Africa’s migration challenges

The PAP, though interested in resolving the migration problem, missed some opportunities, including the opportunity to demand that States take sustainable steps to curtail migration. It instead made generic statements rather than taking targeted steps to ensure that the migration challenge is tackled by African states. The AU Convention for the Protection and Assistance of Internally Displaced Persons (the Kampala Convention)^[23] has only been ratified by 31 member states.^[24] Regrettably, there is no specific and comprehensive African migration treaty, however, effective implementation of the Kampala Convention can contribute to ameliorating forced migration flows.  As a result of IDPs[25] sometimes migrating when they do not receive the needed support (forced migration),^[26]’ ^[27] increasing ratification of the Kampala Convention is important. It ensures that IDPs are not forgotten through the state obligations to protect and respond to the issues of IDPs towards preventing them from crossing internationally recognised state borders. It also serves as a framework that calls for critical and dynamic sustainable solutions among multiple stakeholders including recognising the role of international actors in ending Africa’s internal displacement menaces.

Similarly, only 26 AU member states have also acceded to the International Convention on the protection of the rights of all migrant workers and members of their families with 11 signatories pending ratification in the future.^[28] African states seemingly reluctance to ratify the Convention, implies a lack of commitment to addressing migrant issues including implementing non-arbitrary and non-discriminatory legislative and policy interventions such as on expulsion and deportation of non-citizens as recommended by the Committee on the Elimination of Racial Discrimination.^[29] Consequently, many African migrants are not receiving adequate protection under international law.^[30]

Another golden opportunity missed was a call to adopt respective National Migration Policy Frameworks that will be consolidated at regional levels towards harmonised coordination and development agenda. To date, the 2018 AU Migration Policy Framework aimed at effectively guiding member states in migration management is less realised even after 4 years of its adoption.^[31] So far, only a few African countries are formulating policies on international migration. For example, South Africa had a shared proportion of international migrants of about 3% in 2015 and which rose to 7% in 2019^[32] of its national population. South Africa has adopted a green paper on international migration under consideration even though it is largely focused on the migration of other African nationals to South Africa.^[33] Members of the Southern African Development Community (SADC) only recently engaged the International Organisation for Migration (IOM) on migration and its impact within the sub-region.^[34] There is no supporting evidence of other sub-regional consultation mechanisms on migration with IOM.

There is a crucial need for a migration instrument and consolidating democracy through the full implementation of the African Charter on Democracy and Governance.^[35] Cross-border cooperation through the ratification and implementation of the AU Convention on Cross-Border Cooperation (Niamey Convention)^[36] is a leveraging necessity to closing porous borders and building concerted efforts towards effectively dealing with migration. The PAP should capitalise on its strength for extensive engagement and lobbying of the various regional and national parliaments in ratifying these treaties and other related ones. Importantly, the PAP has an important role to play ensuring that ratified treaties are domesticated in national laws and policies. The longevity of such treaty ratifications and simultaneously engineering the envisioned needed impact of the treaties is also dependent on at least two imminent game-changing effects; the swift ratification of the Malabo Protocol^[37] as a transmogrification of PAP into a fortified fully-fledged legislative body under the AU governance architecture for its effectiveness (enforcement and/or follow up from AU and other related policy organs on its recommendations) and; prioritising the restoration of the PAP’s credibility amidst its niggling leadership controversies.^[38]’ ^[39] Furthermore, there is the need to create an up-to-date computerised database and analytical system with intersectional demographic characteristics of migrants and returnees within and outside Africa towards understanding migration trends, and formulation of substantive inclusive policies.

It is also trite for the PAP to establish migration focal points with detailed terms of reference and adequate funding for results-based monitoring and evaluation of states interventions. Also, strategically establishing broad-based stakeholder consultations and collaborations with civil society groupings and other human right actors in Africa. These stakeholders among others help to provide (re)integration services such as information on rights; legal and social counselling; sensitisation, behavioural change and advocacy; including job searching, skills training and reintegration of migrants into their communities. Therefore, they are important for; recognising the needs assessments of refugees and migrants; providing expertise and best practices for effective integration and management of migration policies; establishing a structured contact with refugees and migrants; filling urgent gaps that may not be covered such as research, humanitarian services and early recovery; and ensuring local ownership and sustainability of migration interventions.

Conclusion and recommendations

The foregoing represents the author’s logic that the PAP clearly has a great potential to substantially protect Africans human rights although, for almost two decades since its establishment, this is evidently missing. Notwithstanding, the quality of the PAP’s resolutions and recommendations thus far, indicates its awareness of its potential and appreciation of the issues it should be tackling. What is lacking is the implementation of these decisions particularly by its office bearers. Of specific mention, the permanent committees^[40] and secretariat^[41] should rely on human rights treaties to stress African states obligations and integrated collaborations.

In anticipation of Africa’s population growth shadowing world growth by 2 billion by 2050,^[42] and to avoid reversing Africa’s developmental gains, it is imperative for PAP to take pragmatic steps to protect African migrants including the most vulnerable. It is recommended that the PAP develop a tracking mechanism for the implementation of its resolutions and recommendations. Its office bearers should especially leverage on diverse communication platforms to consistently make information publicly accessible for advancing knowledge and demanding accountability of the PAP; and to influence the adoption of an African migration law to adequately address migrants’ peculiar challenges.

[1] African Union ‘The Pan-African Parliament’ https://au.int/en/pap (accessed 5 November 2022).

[2] File available on the desk of the researcher.

[3] As above.

[4] As above.

[5] It is developed from a review of the PAP’s documents during her work with the Democracy and Civic Engagement Unit of the Centre for Human Rights, University of Pretoria.

[6] Africa Union (AU) ‘AU Agenda 2063: The Vision for 2063’ https://au.int/sites/default/files/documents/33126-doc-06_the_vision.pdf (accessed 5 November 2022).

[7] United Nations (UN) ‘Transforming our world: the 2030 Agenda for Sustainable Development’ https://sdgs.un.org/2030agenda (accessed 5 November 2022).

[8] UN ‘SDG Indicators’ Statistical Division https://unstats.un.org/sdgs/metadata/?Text=&Goal=10&Target=10.7 (accessed 5 November 2022).

[9] African Charter on Human and Peoples’ Rights (1981) https://www.achpr.org/public/Document/file/English/banjul_charter.pdf (accessed 5 October 2022).

[10] As above.

[11] M Flahaux and HD Haas ‘African migration: trends, patterns, drive’ Comparative Migration Studiesi (2016) https://comparativemigrationstudies.springeropen.com/counter/pdf/10.1186/s40878-015-0015-6.pdf *(accessed 5 October 2022).

[12] As above.

[13] As above.

[14] United Nations (UN) ‘Trends in international migrant Stock: The 2017 Revision’ Economic and Social Affairs https://www.un.org/en/development/desa/population/migration/data/estimates2/docs/MigrationStockDocumentation_2017.pdf (accessed 10 October 2022).

[15] Flahaux and Haas (n 11).

[16] UN ‘International Migration Report 2015’ (2016) Department of Economic and Social Affairs, Population Division ST/ESA/SER.A/384. https://www.un.org/en/development/desa/population/migration/publications/migrationreport/docs/MigrationReport2015.pdf (accessed 5 October 2022).

[17] As above.

[18] As above.

[19] As above.

[20] As above.

[21] AU ‘The Revised Migration Policy Framework for Africa and Plan of Action (2018 – 2027): Draft’ https://au.int/sites/default/files/newsevents/workingdocuments/32718-wd-english_revised_au_migration_policy_framework_for_africa.pdf  (accessed 5 October 2022).

[22] K Ighobor ‘Towards a safe and orderly migration’ (2019) African Renewal https://www.un.org/africarenewal/magazine/december-2018-march-2019/towards-safe-and-orderly-migration (accessed 5 October 2022).

[23] African Union Convention on the Protection and Assistance of Internally Displaced Persons (Kampala Convention) (2009) https://au.int/ar/treaties/african-union-convention-protection-and-assistance-internally-displaced-persons-africa (accessed 5 October 2022).

[24] Africa AU ‘List of countries which have signed, ratified/acceded to the Kampala Convention’ (2020) 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 (accessed 5 October 2022).

[25] The Kampala Convention’s Article 1 defines IDPs as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border” (p. 7).

[26] Z Sarzin ‘The impact of forced migration on the labor market outcomes and welfare of host communities’ (July 20210 https://www.unhcr.org/people-forced-to-flee-book/wp-content/uploads/sites/137/2021/10/Zara-Sarzin_The-impact-of-forced-migration-on-the-labor-market-outcomes-and-welfare-of-host-communities.pdf (accessed 5 October 2022).

[27] WB Wood ‘Forced Migration: Local Conflicts and International Dilemmas’ ( December, 1994). https://www.jstor.org/stable/pdf/2564146.pdf?refreqid=excelsior%3Af40a78bc19f670cacf0e5c0b3ea4450e&ab_segments=&origin=&acceptTC=1 (accessed 5 October 2022).

[28] International Convention on the protection of the rights of all migrant workers and members of their families (1990).

[29] Recommendation on the 64^th Session, UN Committee on the Elimination of Racial Discrimination (March 2004), UN Treaty body, CERD/C/64Misc.11/rev (2004) https://www.right-to-education.org/sites/right-to-education.org/files/resource-attachments/CERD_GC_30_2004_EN.pdf (accessed 5 October 2022).

[30] AU ‘Executive Summary: Migration Policy Framework for Africa and Plan of Acton. (2018 – 2030)  https://au.int/sites/default/files/documents/35956-doc-au-mpfa-executive-summary-eng.pdf (accessed 5 October 2-22).

[31] As above.

[32] UN ‘World Migration Report 2020’  International Migration Organisation https://publications.iom.int/system/files/pdf/wmr_2020.pdf (accessed 5 October 2022).

[33] Republic of South Africa ‘Green paper on the international migration’ 24 June 2016’ Department of Home Affairs http://www.dha.gov.za/files/GreenPaper_on_InternationalMigration-%2022062016.pdf (accessed 5 October 2022).

[34] Southern African Development Community (SADC) ‘SADC partnership with IOM poised to achieve progress on migration management) 14 November 2021) https://www.sadc.int/latest-news/sadc-partnership-iom-poised-achieve-progress-migration-management (accessed 7 November 2022) ; SADC ‘SADC promises continued commitment to the partnership with IOM’ 26 October 2022 https://www.sadc.int/latest-news/sadc-expresses-continued-commitment-partnership-iom (accessed 27 October 2022).

[35] African Charter on Democracy, Elections and Governance (ACDEG) (2007) https://au.int/sites/default/files/treaties/36384-treaty-african-charter-on-democracy-and-governance.pdf (accessed 5 November 2022).

[36] AU Convention on Cross-Border Cooperation (Niamey Convention) (2014) https://au.int/sites/default/files/treaties/36416-treaty-0044_-_niamey_convention_african_union_convention_on_cross-border_cooperation_e.pdf (accessed 5 November 2022).

[37] Protocol to the Constitutive Act of the African Union Relating to the Pan-African Parliament (2014) https://au.int/sites/default/files/treaties/7806-treaty-0047_-_protocol_to_the_constitutive_act_of_the_african_union_relating_to_the_pan-african_parliament_e.pdf (accessed 5 November 2022).

[38] South Africa Broadcasting Corporation (SABC News) ‘Pan-African Parliament chaotic scenes in Midrand, Johannesburg’ https://www.youtube.com/watch?v=fmfnESznb90 (accessed 5 November 2022).

[39] MW Afrika et al. ‘SA bankrolls Pan-African Parliament head’s fancy taste: Host South Africa says legislature is ‘dysfunctional’ 20 May 2018 Sunday Times https://www.timeslive.co.za/sunday-times/news/2018-05-19-sa-bankrolls-pan-african-parliament-heads-fancy-taste/ (accessed 5 November 2022).

About the Author:
Eva Abugabe is currently an MPhil candidate for Human Rights and Democracy in Africa at the Centre for Human Rights, University of Pretoria.

Author: Konanani Happy Raligilia
Acting HoD, Department of Jurisprudence, University of South Africa

When asked by Judge Boshoff about his views on witchcraft, Steve Biko had this to say; “we do not reject it [witchcraft], we regard it as part of the mystery of our cultural heritage, [and] we feel for ourselves it has not been sufficiently looked into with available scientific approaches as of this moment.” Indeed, issues relating to witchcraft are public interest matters and that is so because ordinarily they highlight conflicting and contending views about spirituality. Arguably, the attributing factor to this contesting view is the fact that at the time of the enactment of Witchcraft Suppression Act in 1957, South Africa was still a Christian state as opposed to the current secular post-democratic one which embraces all religious denominations and cultural heritage. The Witchcraft Suppression Act of 1957 exposes a reality that this law failed to divide matters of spirituality and witchcraft, thereby creating a vacuum which often results in members of the communities resorting to judging those who are perceived as witches based on Christian standards of acceptability and norms. Regrettably, the Witchcraft Suppression Act does not provide a definitive answer of what constitutes witchcraft, yet its founding purpose is aimed at suppressing practices of witchcraft and similar practices. However, Reverend Riaan Swiegelaar and Dr Adri Norton announced the country’s first Satanic church in June 2020. It remains to be seen whether its practices would fall out of this witchcraft’s legislative framework and whether those potential witchcraft practitioners would then be prosecuted and punished.

The topic of witchcraft is very sensitive and the belief in or fear of it remains prevalent in society, more especially in the rural communities.  Accusations of witchcraft often results in the brutal assaults and killings of those who are suspected of practicing it, in most instances vulnerable women. This could be attributed to the fact that the Witchcraft Suppression Act negates, in context, dealing with issues of mental health and old age. Recently, the breakup of a love relationship between Amapiano musician Lady Du (Dudu Ngwenya) and her ex-boyfriend Andile Mxakaza (former Isibaya actor) exposed another angle of witchcraft accusation against women. In a widely circulated video, Andile Mxakaza could be heard uttering the words “women practice witchcraft and I know, I don’t want you guys calling me names…” Clearly, Andile Mxakaza’s statement is dangerous and has a potential of igniting further violence against women who are already accused of witchcraft in our society.

In April 2021, Ms Jostina Sangweni from Mapetla in Soweto was brutally assaulted and torched by a mob on suspicion of practicing witchcraft. Unfortunately, she died a few days later in a hospital. It later transpired that Ms Sangweni suffered from dementia. Two suspects were later arrested, and the matter is still pending. On 02 December 2021, it was reported that a third person was arrested for her murder. Evidently, the death of Ms Sangweni was because of ignorance on the part of some members of the communities who failed to appreciate and live with a reality that certain forms of mental illnesses generally, and dementia in particular, form an integral part of the society.

When older persons are found in public spaces and do not recognise how they arrived at a particular area, the community is quick to arbitrarily accuse them of witchcraft. In almost all instances, the community fails to interrogate critically who this person is, where they come from and whether the person who is accused of witchcraft has mental illness or dementia. Very often, members of the community jump into a preconceived idea or judgement that when these people are found in a particular space or area, their presence is virtually witchcraft related and as a result have evil intentions. Unlike with Ms Sangweni case, many cases of brutality and killings go unreported. Other victims live to tell the tale while others are not so lucky. In reality, few perpetrators are apprehended while others go scot-free with extreme impunity. In July 2022, The High Court in Mthatha found family members guilty of the murder of a 92-year-old relative Ms Nosayinethe Manundu (also known in the community as Mablangwe) they accused of witchcraft. When handing out a judgement, Judge Mbulelo Jolwana held that “I do not know if the men of Majuba, the elders hid their tails behind their legs when this gruesome crime was evolving in front of their eyes and allowed it to be completed. They, in the process, threw a vulnerable 92-year-old nonagenarian, to the wolves. They must do a serious introspection and ensure that unlawful criminal resolution is rescinded or cancelled. They must ensure that the death of Mablangwe does not become their legacy and it is never repeated on anyone else.”

To avoid similar violent incidents of that nature in our society, government and other stakeholders need to enhance public health consciousness drive. In other words, issues of aging, mental health and memory should be part of schooling curricula in the same way other major illnesses are taught in schools. In this way, it will create an environment which will allow people to practice their belief systems freely. After all, even with the enforcement of the Witchcraft Suppression Act, people continue to practice witchcraft in their private spaces and without the knowledge of others.

In the end, public awareness and education will provide society with tools on how to deal with people with mental illness and people who are perceived to be witches in the same way society has reconciled with the fact that sleepwalking does not constitute witchcraft.

About the Author:
Konanani Happy Raligilia is the Acting HoD in the Department of Jurisprudence and Project Leader of Medical Law and Biotechnology Flagship at the University of South Africa. He holds LLB (Univen), LLM Labour Law (University of Limpopo), and LLM International Law (University of Pretoria). His research interest covers employment law, human rights, and public international law.

Author: Murithi Antony
LL.B student, University of Embu

“I call heaven and earth as witnesses against you today, that I have set before you life and death, the blessing and curse; therefore, you shall choose life in order that you may live, you and your descendants…”

– The Holy Bible, Deuteronomy 30:19 (Amplified Version)

Introduction

The message in the Book of Deuteronomy generally is directed to the new generation that was born in the desert during the 40 years of wandering in which the generation of exodus passed away. The Book puts forward foundational truths, which if the young generation shall abide by, they will succeed. It states that there is life and death, and advises them to choose life, but leaves the option to their discretion. This can to a large extent be equated with the happenings of contemporary African societies whereby the current youth generation, which was born in the desert of problems, neo-colonialism, tribalism, corruption and violence have an opportunity to change the status quo through voting and advocating for peace. Similar to how the Israelites were given choices, the current generation also has a choice to either vote and take charge of their future; or abstain from voting, and choose political, social and economic death. I tell them: “Choose to vote, in order that you may take charge of your destiny, and your generation shall find a better place to live in.”

The benefits that youths get by participating in elections have been stated over and over again and are self-evident. I shall restate some of them, in a nutshell, for the purposes of this article. First, and most importantly, a vote is protection. As Lyndon B Johnson stated: “A man without a vote is a man without protection.” It is equally important to state that a man with a vote and who decides to abstain from voting is no better than a man without a vote. By voting you seek social, economic, political and even psychological protection. This is because nearly everything we experience is touched by the government. The government that we choose through voting is the guardian of economic development, creator of jobs, as well as the protector of human rights. Good governance also ensures that citizens have access to basic needs such as food, shelter and good education, which cumulatively enhance physiological well-being of all persons.

Voting is an important right and responsibility of every citizen, the practice of which enables us to create and choose the future we want. Equally important, voting enables the youths as well as other citizens to be engaged with politics and current events. Lastly, in the words of Sharon Salzberg: “Voting is the expression of our commitment to ourselves, one another, this country, and this world.”

Peaceful elections: The power of youths in exorcising the ghouls of post-election violence

Electoral violence has been reported in many countries across the continent, usually with devastating consequences. For instance, the sad memories of Kenya’s 2007/08 post-elections violence cluelessly haunt the victims to date. Countless families were displaced from their motherland while thousands of innocent lives were taken away.

Similarly, in 2010-2011 Ivory Coast experienced a post-election conflict which left more than 3000 people dead. As if this was not enough, people were also killed during the 2020 presidential elections in the same country. Other countries that have experienced post-elections violence in Africa include Uganda, whereby massive violations of human rights were reported both in 2016 and 2021 elections. Any sober person who witnessed or even heard of the occurrences of what really transpired would never wish that it ever happened again even to their worst enemy.

Sadly, it was the youths who were largely used to do all these injustices. This means that the youths play a central role in determining whether there shall be violence or not. The youths have the power to refuse to be used as weapons and use their votes as bullets to root out bad leadership from offices. If the youths unite and stand for peace, there can be no election violence. However, and more amusingly, choosing peace is not a communal task! It starts with an individual person deciding that they shall vote and go home, and continue advocating for peace. If all youths do this at an individual level, then the whole of Africa shall have chosen peace.

Conclusion

It is apparent that youths make up the largest percentage of voters in Africa and consequently, have the ability to determine who wins elections. It is equally true that African youth have often been manipulated by unscrupulous politicians to engage in electoral violence to either entrench their rule or destabilise existing governments. It should be a no brainer for the African youth that political violence is by no means a solution to any of the challenges that they face as young people. On the other hand, they have the power through their numbers to vote into or out of power governments to consolidate democratic governance that caters for their interests. It is time for the African Youth to come out in large numbers and vote for their future and for the good of the next generation, peacefully. Indeed, as Abraham Lincoln, the former U.S President, aptly puts it: “A ballot is stronger than a bullet”.

About the Author:
Anthony Murithi is a Bachelor of Laws (LL.B) student at University of Embu. He can be contacted through amurithi326@gmail.com