Accelerating efforts to combat the rise of sexual and gender-based violence in Kenya

Author: Juliet Nyamao
Human Rights Attorney, Kenyan Bar

16 Days of Activism against Gender-Based Violence is an international campaign that runs yearly from 25 November, the International Day for the Elimination of Violence against Women, to 10 December, International Human Rights Day. The period is observed in many African countries including Kenya, culminating in a colorful thematic event on the last day of the campaign. During this period, governments may reevaluate their national policies and action plans to completely eradicate practices that discriminately affect women in the community. This campaign provides an opportune moment to create awareness, on a worldwide scale, of the prevalence of sexual and gender-based violence (SGBV) and to galvanise support to curtail its escalation to pandemic proportions. 

Over the years, the determination to curb the rise of SGBV has gained momentum globally due to the efforts of dedicated human rights activists, which has led to ground breaking women’s rights movements: #Orange the World, #HearMeToo, #MeToo, and #Times Up. These movements have had a rippling effect on the global fight for gender equality and bringing the perpetrators of sexual and gender-based violence to full accountability.

Additionally, relentless efforts by civil society organisations and stakeholders to combat SGBV globally, has led to the adoption of international instruments and national laws to combat the vice. The adoption of the Beijing Declaration and Plan of Action 25 years ago laid a solid foundation for gender equality and women’s empowerment efforts. Kenya has made great progress in the advancement of women’s rights issues over the years. However, the fight for equality in Kenya is far from over. Despite enactment of national laws, strategies, and policies on sexual and gender-based violence, Kenya is still grappling with increased cases of violence against women at catastrophic levels.

Historically, both women and children have borne the brunt of repugnant socio-economic and cultural ideas and practices that perpetuate sexual and gender-based violence. Gender inequality also accelerates sexual and gender-based violence against women. Gender-defined roles, such as childcare and domestic chores, continue to hinder women’s economic prospects owing to substantial time constraints. The persistent gender gap in economic undertakings is restricting Kenya’s attainment of its full economic potential averaging loss of billions annually. Kenya must accelerate women’s empowerment through all spheres of society, which includes political participation, access to healthcare, educational fulfillment, and employment. Whereas significant progress has been made in Kenya, gender equality for women and girls is still far from satisfactory.

In recent years, a rise in sexual and gender-based violence in Kenya has resulted in about 45% of women between the ages of 15 and 49 experiencing physical or sexual violence and 14% of women and 6% of men between the ages of 15 and 49 reported having experienced sexual violence at least once in their lifetimes. Gender-based violence has dire economic consequences, costing an estimated 1.2%-3.7% of GDP in some countries due to lost productivity, equivalent to the average spending of low and middle-income countries on primary education. According to the World Health Organisation report, Violence and Health 2002, SGBV is a persistent human rights challenge, with devastating consequences on women’s physical, psychological, sexual and reproductive health at all stages of their life. Despite this reality, it remains largely unreported due to the impunity, silence, stigma, and shame surrounding it, coupled with the lack of commitment and goodwill by the government.

According to a 2015 UN- Women Report, many victims of gender-based violence were unwilling to pursue justice; only 5% of the survivors seen in facilities were willing to go to court. Poverty, illiteracy, insensitivity of law enforcers, and several other barriers greatly deter women from reporting incidences of violence occurring in their communities. The underlying gender inequality in distribution of socio-economic opportunities, also greatly impedes the realisation of human rights for survivors of gender-based violence, majority of whom are women.

The case of the 160 girls was a step in the right direction on the fight against SGBV in Kenya. In 2013, the High Court in Meru delivered a landmark constitutional decision in the case of 160 girls project. The petition successfully challenged the Kenyan government’s failure to act on sexual violence cases against children in the region.  The respondents, the police, were held accountable for the trauma occasioned to the petitioners by failure to conduct speedy and efficient investigations into their complaints of sexual violence and abuse. Remarkably, the court acknowledged the Kenyan government’s responsibility and accountability for systemic violence, failure to guarantee appropriate, efficient, effective investigation and prosecution of sexual offence cases created an environment of lawlessness for perpetration of such offences.  For the first time, the Kenyan government was sued for failure to protect rights in relation to sexual violence. However, seven years after this landmark ruling, statistics on SGBV against women and girls in Kenya remains shockingly high.

Over the past few years, women reportedly killed by their most trusted partners has drastically increased. Many of these supposed “crimes of passion” are still pending in court, and many more do not have any perpetrators linked to them. Surprisingly, several accused persons are prominent members of the society holding high positions in government agencies, who are perceived as role models or defenders of vulnerable members of the society. The number of women dying under mysterious circumstances in Kenya is appalling. On a weekly basis, at least one case is reported by the mainstream media on atrocities committed against women at home, workplace or even on the streets. SGBV is slowly becoming a norm in Kenya, a menace that needs to be uprooted rapidly.

To combat sexual and gender-based violence, Kenya has made tremendous legal reforms. The Constitution of Kenya (2010) advocates for the elimination of discrimination against women and for equal protection before the law. Additionally, the Constitution prohibits any form of torture whether physical or psychological or cruel, inhumane, or degrading treatment. Although the laws are progressive, a majority of women continue to suffer violations at the hands of trusted partners, friends and even relatives, with inadequate protection or access to appropriate resources. Legislation is essential for a successful response to violence against women. Kenya has clear-cut obligations under international law to enact, implement and monitor legislation addressing all forms of violence against women. However, significant gaps remain that render it impossible to combat the problem completely. Although the government has passed legislation to protect women from violence, it is often inadequate in coverage, or is not enforced. Victims are often unable to access the much-required services and resources to pursue justice.

Regional instruments such as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) addresses state obligation to eliminate violence against women. The Maputo Protocol demands the eradication of all forms of gender-based violence pegged on the rights to life, integrity, and security of the person with additional stipulations highlighting state obligation to end gender-based violence. Kenya ratified the Maputo Protocol in 2010.

Whereas Kenya has made methodical strides to address gender discrimination and inequality through the adoption of various legislations that seek to promote women’s rights, substantial disparities hinder full implementation of the Protocol. For example, some aspects of national laws contravene provisions of the Maputo Protocol. Kenya entered a reservation to Article 14 (2) (c) of the protocol on sexual and reproductive rights.  So far, Kenya has not enacted any specific legislation that legalises abortion. The Kenyan Constitution provides that life begins at conception (Article 26(2)) and “abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.” Therefore, abortion in any other circumstances is criminal and illegal; victims of sexual abuse cannot legally terminate a pregnancy. The Kenyan Penal Code creates  an offence of seeking or performing an abortion or providing materials that might be used to procure an abortion. The penalties remain severe: seven (7) to fourteen (14) years imprisonment for performing or procuring an abortion; and 3 years imprisonment for supporting or aiding an abortion procedure. Although, the government has enacted laws to protect women from all forms of violence and discrimination, nevertheless, no further efforts have been executed to efficiently implement these laws.  There are minimal to limited, structures, resources, procedures, and reporting mechanisms with regards to implementation.

In a recent meeting in Niamey, Niger, the African Commission of Human and People’s Rights during its 60th Ordinary Session adopted the Guidelines on Combating Sexual Violence and Its Consequences in Africa. These guidelines are aimed at promoting, protecting and ensuring member states are committed to combating gender-based violence. The guidelines direct member states including Kenya, to adopt measures to ensure victims of violence are protected and have access to any assistance they can get including access to justice.

When a state party fails to comply with regional obligations, victims may file complaints with the African Commission. The Kenyan government has an obligation under international and regional treaties it has ratified to prevent and protect women from violence. Kenya has an obligation as a member state to the African Union and the United Nations to combat all forms of violence against women. Other than creation of laws and regulations to punish the perpetrator, Kenya should endeavor to create processes that ensure women report incidences of violence and are provided with adequate support, including shelter, medical and psychological support and legal aid services. It is also paramount to have long term solutions to combat violence against women besides short-term relief.

In order to monitor progress and identify further programmatic directions, Kenya needs to invest in systematic and well-funded research on violence against women.  It is clear that sexual and gender-based violence in Kenya has generally been a neglected area of research. Evidence suggests that it is a public health problem of substantial proportions, hence much more needs to be done both to understand its occurrence and ways to prevent it. Insufficient data describing the nature and extent of the problem has contributed to its lack of visibility on the agenda of policymakers and donors. Therefore, additional, and substantial research on almost every aspect of sexual and gender-based violence is required. The United States Strategy to Prevent and Respond to Gender-based Violence Globally stresses the importance of proper collection, analysis, and use of data and research to enhance gender-based violence prevention and response efforts.

Financial resources are also a critical factor and necessary tool for change. Adequate funding will enable Kenya to integrate creative gender-based violence prevention and response interventions into its current programs. It is unfortunate that many programs in Kenya seeking to protect survivors of gender-based violence depend entirely on donor funding from development partners. Therefore, the national and county governments must allocate adequate resources to SGBV programs to combat the scourge.

Counties have an opportune moment to revisit their policies, laws, strategies to ensure they comply to international standards and women are accorded the protection they deserve as citizens of Kenya. Ultimately, breaking the silence requires strong commitment and involvement of the government and civil society together with a coordinated response across a range of sectors to end violence against women. Therefore, in order to enjoy the commitments of the Beijing Declaration 25 years on, both the national and county governments must invest and prioritise the wellbeing of women in Kenya, through; allocation of funds for research, legal aid activities, shelters and monitoring implementation of the Constitution of Kenya 2010, and all other acts of Parliament enacted to protect and prevent sexual and gender-based violence. The government of Kenya must reignite its accountability efforts to the people of Kenya to combat the rise in sexual and gender-based violence.

About the Author:

Juliet Nyamao is a human rights attorney admitted to the Kenyan bar. She received her LLB from Moi University School of Law (Kenya) and LLM from Georgetown University Law Centre (USA). Juliet completed her fellowship in Leadership and Advocacy for Women in Africa at Georgetown University Law Center. She is currently a consultant and gender expert.

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‘Why you say negro?’ Racism in football: the PSG v Basaksehir incident, an all-time low for football?

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

For football lovers, the Union of Eurpean Football Associations (UEFA) Champions League is arguably the biggest football competition. While there are divided opinions as to whether the tournament is bigger than the FIFA World Cup, it is undisputedly the biggest competition at the club level. Following some disruptions to the competition due to the COVID-19 pandemic, the group stage of the 2020-21 season commenced on 20 October 2020. The final round of matches for the group stage were scheduled for 8-9 December. One of the group stage matches scheduled for 8 December was the Group H tie between Paris Saint-Germain (PSG) of France and Istanbul Başakşehir F.K. (Başakşehir) of Turkey. The match was scheduled to be played at Parc des Princes, the home ground of the French club.

Barely 13 minutes into the game, Kipempe, a Paris Saint German player was judged to have wrongly tackled a Basaksehir player. There was a bit of reaction by the Basksehir players about the intensity of the tackle and whether Kipempe should be awarded a yellow card by the referee. But the biggest scene of the night was gaining momentum off the pitch. Pierre Wobe, the Assistant Coach of Basaksehir, was engrossed in a heated debate, off the pitch with the fourth official, Sebastian Coltescu. The incident initially seems like the usual football scenarios where coaching staff lose their cool about football decisions and talk themselves into trouble on the sideline, and the on-field official quickly dismissed Wobe with a red card. However, the card was not enough to cover up the root cause of Wobe’s argument with the fourth official. Thanks to the nearly empty stadium in Parc des Princes, the word uttered by Pierre Wobe can clearly be heard on camera. He was vehemently querying the fourth official- “why you say negro? why you say negro?……you can’t say negro…”

Things escalated quickly from this point, the Başakşehir players expressed their grievances about the incident and surrounded the on-field referee. The referee tried to calm things down but the Başakşehir players weren’t having any of that. Demba Ba, a Başakşehir player who was a substitute for the match was very vocal in his exchange with the officials, “when you mention a white guy, you never say a white guy, you say this guy….why when you mention a black guy, you have to say this black guy?” The on-field referee finding himself in a very difficult position tried to have a dialogue with the players, the Başakşehir players in solidarity with their assistant coach told the on-field referee in clear terms “..we have to respect each other…this is not football..” The Başakşehir players refused to continue the game and walked down the tunnel. They were followed suit by the PSG players. An anticipated beautiful night of football was ruined by racism.

Football grounds with as much capacity as over 100,000 people has frequently been utilised as a viable ground to openly display racism. Issues of racism are well documented in football. Eric Cantona, a gifted and talented footballer who played for elite football clubs like Manchester United is ironically more remembered for his infamous kung fu kick against a spectator who racially abused him for being French. Former Arsenal and French Midfield star, Patrick Viera also made headlines for spitting at West Ham’s Neil Ruddock after being sent off. In his defense, Viera accused Ruddock of pushing him over and referring to him as a French Prat. Violence is certainly an unacceptable behavior in football. However, so also is racism. In recent times, the English national team faced racist abuses from fans during European championship qualifiers in Montenegro and Bulgaria. Chelsea’s defender, Antonio Rudiger, complained of racist chants from Tottenham Hotspurs fans during a London derby match. The Manchester derby has also been tainted by apparent monkey chants by Manchester City fans. Raheem Sterling, a Manchester City player, was racially abused by Chelsea fans, and the North London derby between Arsenal and Tottenham Hotspurs in December 2018 is infamously more remembered for the banana skin thrown at Gabonese born Arsenal striker, Pierre-Emerick Aubameyang. From the above examples, racism in football has usually occurred as an anti-social fan behavior. In the most extreme cases, it has been a question of professionalism amongst football players, when a player displays acts of racism against another player. There have also been allegations of institutionalised racism through the underrepresentation of black people in football administration. Some victims of football racism have also described incidents of racism by their fellow teammates and managers.

The PSG v Basaksehir incident is however significant for two reasons. The refusal of Başakşehir players and crucially PSG players to continue the match is a demonstration of an overwhelming support from footballers and a signal that the tolerance for racism in football is becoming extremely unacceptable. It is anticipated that other footballers will take a cue from this incident and discontinue a match where there are serious and credible allegations or display of racism. One of the major complaints of victims of racism in football over the years is the lack of support from fellow footballers. On the flipside of the coin, the allegation of racist statements by a supposedly UEFA “neutral umpire” is also devastating. Beyond the human rights and moral implications arising from racism, it also brings the integrity of the game into disrepute. It is unimaginable that a racist official will conduct himself as a “neutral umpire” in the discharge of his duties during football matches. If the allegation against Sebastian Coltescu is true, then it would be an all-time low for the beautiful round-leather game.

As at the time of writing, the allegation of racism against Sebastian Coltescu has not been confirmed. UEFA has promised to open a thorough investigation into the incident immediately. Turkey President, Recep Tayyip Erdogan, has expressed his belief that the football body will take the necessary steps. What amounts to necessary steps in this instance is open for debate, but the author hopes for the sake of football, that the governing body will conduct a proper investigation to get into the root of the matter. If the allegations are true, the football body should adopt punitive measures against the individuals that are found culpable in the incident and also embark on institutional reforms such as anti-discrimination training for its members and official to combat racism in football.

About the Author

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

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The future of technology: a human rights perspective

Author: Tatiana Makunike
Freelance writer

From a constructive perspective, technology has the potential to significantly contribute to the progress of the human rights agenda, especially in Africa. Healthcare, education, emerging laws that restrict freedom of speech, and abuses by armed groups are some of the Human rights issues that technology could positively impact. Technology is increasingly becoming the backbone of most infrastructures and playing an important role in modern humanity; so automatically, its necessity as a tool for human rights has also increased.

The need for digital structures that improve the predictions of pressing human rights situations is evident. Fortunately, the tools for analysing the situations and strategising ideal responses exist and continue to improve. For instance, remote sensing and satellite data analysis systems now  identify patterns indicating humanitarian disasters and displaced groups which may be useful when monitoring inaccessible areas or countries such as Uganda, Sudan, and Ethiopia which are currently home to over 3 million refugees. Decentralised technologies like BlockChain are also proving valuable when it comes to eliminating labor exploitation issues in certain supply chains and forensic technology can reconstruct crime scenes.

The internet has especially been a great mobiliser regarding human rights awareness by providing opportunities to share free speech, ideas, and information beyond our immediate communities. It has also created new possibilities for work, innovations in healthcare; improved education, increased political participation and more. Artificial intelligence (which allows for machines to learn from experience, modify to new inputs and perform human-like tasks) has the potential to help boost crop growth which would help to promote food security ,and tools such as facial recognition may assist in reuniting families who have been separated from their loved ones. Improvement and accessibility of mobile phones and other recording devices has increased ‘citizen journalism’, with everyday citizens recording and posting incidents of human rights violations which increases awareness and can potentially lead to perpetrators being brought to justice.

On the other hand, technological developments also have the capacity to undermine human rights efforts. The increased use of automation and AI has disrupted global employment by replacing millions of jobs with self-service technologies which directly impacts people’s right to fair and decent work. Again, the right to privacy is invaded every day as we use internet domains that blur the lines of private and public data; Devices track our whereabouts and watch our every move as corporations target communities offering “free” services while extracting personal data and criminal hacking has become more lucrative, increasing ransomware which has resulted in situations such as unprecedented cyber-attacks on nuclear power plants and government systems, directly threatening the fundamental right to liberty, the security of person and potentially the  right to life. Even free speech on the internet can be manipulated.

As a result, it’s clear that while technology is just a tool, its effects can drastically differentiate depending on its usage and while some people can’t imagine their lives without technology, a disproportionate amount of people in Africa don’t have access to it in ways that would benefit their lives. In a research survey by Pew, out of the six sub-Saharan African countries they studied, a medium of 41% used the internet occasionally; this is less than half of the 89% of Americans who use the internet. Consequently, during the coronavirus pandemic and lock downs this further highlighted the prevalent inequalities regarding technology. Currently, biotechnology is a significant contributor in the development of the COVID-19 vaccine, but African countries with minimal technological resources are left at the mercy of developed nations; waiting for a vaccine and not participating at the rate of first-world countries.

In essence, most African countries are behind. It’s important to catch up and get to a level where they are contributors in technological developments in order not to become biased and/ or marginalised by it. Ensuring African governments should have effective digital services and regulations in place and be prepared to allow for free speech and exchange online. A great foundation to begin from would be reliable basic infrastructure, such as internet connectivity and mobile networks, as well as electricity supply.

It is safe to conclude that, while technology has been beneficial to human rights, it also has a dark side. It continues to expand rapidly while legislation regulating its use, catches up very slowly, leaving protective regulations behind. There’s a need for stakeholders in designing new technologies to remove bias from digital intelligence for it to reach the needs of marginalised communities as far as human rights are concerned.

Technology isn’t something humanity should be wary of as it becomes more intelligent, rather it’s important to ensure technology is developed with the integration of human rights and values in mind. Technology should be able to identify when it’s being used unethically and block it. This will require collaboration, and coordination from civil society, academia, government, and technology-business leaders.

About the Author

Tatiana Makunike is a writer with a focus on human rights and child rights. She has a certification in children’s rights from Harvard University and is currently a freelance writer living in Johannesburg.

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Hot water: Treasure hunters vs the law

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

The ocean is an enormous place. In fact, its enormity is estimated to cover an area of 361 million square metres and hold around 97% of the earth’s water. It is thus no surprise that things are sometimes lost to the gargantuan depths. However, what happens when they are found?

Modern-day treasure hunting has become a high-risk-high-reward field, but it seems that in many cases, the risk vastly outweighs the reward. Most people, infatuated by the possibility of discovering sunken fortunes, fail to realise the implications that could arise if they do. In fact, the law has made it virtually impossible to keep the entirety of one’s treasure hunting loot – if any portion at all.

Although most countries have their own laws concerning sunken treasure, as far as international law goes, the UNESCO Convention on the Protection of the Underwater Cultural Heritage is the most far-reaching legislation. Having been adopted in 2001, the Convention has been ratified by several countries (including South Africa and a number of African countries), coming into force in 2 January 2009. The Convention intends to protect and preserve sunken human property submerged for a period longer than 100 years. This includes, inter alia, shipwrecks, artefacts and art – virtually anything a treasure hunter would consider valuable. Within the Convention are guidelines for ocean site excavations and prevention techniques to guard against unlawful looting. Sadly, however, like most international conventions, it is not binding on countries that have not ratified it and may thus be futile as a means of international dispute resolution concerning valuable finds. In 2015, Spain attempted to use this Convention to obtain control over a sunken Spanish galleon, the San José, which was found off Colombia’s coast. Because Colombia is not a party to the Convention and the wreck was found in its territorial waters, Spain was unsuccessful in its efforts, and the wreck remains in place to this day. It is estimated that the gold, emeralds, and artifacts found on the ship equates to around 18 billion USD in value.

As a general rule, wrecks found in international waters belong to their respective country of origin – regardless of their age or date of wreckage. This was observed when an international treasure hunting organisation, Odyssey Marine Exploration, located the Nuestra Senora da les Mercedes – a Spanish vessel which sank in 1804 during the Battle of Cape Santa Maria. Odyssey soon found itself in hot water after the Spanish government accused it of “looting” based on the intent to profit from the wreck. Following legal proceedings that spanned five years, the treasure found in the wreck was handed over to the Spanish government on a ruling passed down by the US Court of Appeals for the 11th Circuit. Over and above this, Odyssey was further ordered to pay the Spanish government 1 million USD in legal fees.

Given the difficulty of relying on international conventions, many countries have created their own legislation concerning wrecks found in territorial waters. For example, the US employs the Shipwrecked Act of 1987 which bestows custody of any wreck to the State, provided it is within 3 miles of the shoreline. Furthermore, countries will go to great lengths to retain ownership over their wrecks – regardless of who finds them.

As for South Africa, disputes over sunken treasure are rare to the point that only a handful of related cases have gone before our courts in the past. With regards to the hundreds of wrecks that dots SA’s coasts, the government emphasises preserving them in line with the UNESCO Convention and the National Heritage Recourses Act. Wrecks protected in this regard are safe from treasure hunters, as the act of removing items from them is considered looting. However, in terms of wrecks no older than 60 years, one may be able to acquire ownership of their contents if it is clear that the previous owner intended to abandon them to the depths. According to the law of occupation, the acquirer may become the lawful owner of abandoned property if they establish physical control over the object(s) in question with the intention of becoming the owner. In line with this law, it is absolutely imperative that a wreck is confirmed to be abandoned to avoid a possible charge of theft.

Strict laws concerning wrecks accordingly create immense difficulty for treasure hunting hopefuls in South Africa. Additionally, because discoveries concerning treasure-filled wrecks are quite rare, each matter is dealt with on a case-by-case basis, in line with local and international laws and treaties.

So, if one were lucky enough to stumble across a wreck laden with treasure, it is likely they would be forced to hand it over to its original country of ownership or the country territorially associated with the waters in which it was found. At best, one may be given a finder’s fee (generally around 5% of the wreck and its contents worth) to cover the most fundamental costs associated with the find.

Accordingly, perhaps in light of the odds stacked against treasure hunters worldwide, the treasures of the deep are best left alone.

About the Author

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

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Africa is bleeding: The Anglophone crisis in Cameroon

Author: Mary Izobo
International Human Rights Lawyer and Gender Advocate

Introduction

The failure to promote the rule of law and democracy creates an environment for conflict, often exacerbated by marginalisation, discrimination,  inequality and inequity. The bitterness of citizens roused by violence is usually entrenched in lack of basic services and public infrastructure, corruption, lack of personal and economic security and lack of transparency and accountability of government to its citizens.  Thus, the greatest problem of African countries is their failure to protect the economic, political, social, and cultural concerns of its people. This year, 2020 has been marred by a series of human rights violations from Lagos to Kumba, Africa is bleeding.

On 24 October 2020, at least eight children were killed, and dozens wounded by a group of armed men at the Mother Francisca International Bilingual Academy  Kumba, in the Southwest Region of Cameroon. There has been a lot of attacks in Cameroon since 2016, however, these attacks have intensified dramatically.

Since the Anglophone crisis in Cameroon started in 2016, hundreds of people have died, over 70 villages destroyed, approximately 160, 000 people are internally displaced while 35, 000 people have sought refuge in Nigeria, Cameroon’s neighboring country. This crisis has also led to months of general strikes, innumerable days of internet shutdown and the loss of academic years. What started as a peaceful strike of teachers and lawyers in 2016, led to a conflict between the government and an armed separatist movement of the Anglophone region. This crisis is a serious threat to efforts to build national harmony and unification of Cameroon and has led to the reestablishment of strong contentions and conducts in support of secession and/or federalism by the Anglophones. This is because at the center of this conflict is the Anglophones’ wish to secede from Cameroon and form their own independent state called Ambazonia.

Many analysts contend that the current conflict is a result of the unmanageable historical animosity between Cameroon’s Anglophones and Francophones in terms of varying language, culture and identity. Thus, if the differences in identity, language and culture are the primary drivers of the conflict as these analysts contend, it is quite surprising that Cameroon, one of the most ethnically diverse countries in Africa, has to a great extent avoided conflict until 2016. This crisis goes way beyond language, culture or identity. It is a resurgence of an old problem known as the Anglophone problem. The Anglophone problem is often described as the evolution of the Anglophone’s awareness from the feeling of being marginalised, exploited and homogenised politically, economically and socially by the Francophone-dominated state and even the Francophone population in Cameroon. The Anglophone problem is driven by the marginalisation and discrimination against the Anglophones in Cameroon in decision-making nationally; the dilapidation of the region’s infrastructure; the exploitation of the region’s rich economic resources by successive Francophone administration without much beneficiation to the local communities; marginalisation in human resource development and deployment by the inundation of Anglophone regions with Francophone employees and workers; the marginalisation of the Anglophones in the allocation of economic resources by the Francophones especially by the mismanagement of the economic patrimony in the Northwest and Southwest Regions of Cameroon; the common law system and the francophonisation of the English educational system; gradual erosion of Anglophone identity; the predominance of French and Francophones in official documents and public offices respectively; as well as the second-class citizenship of the Anglophones when compared to the Francophones.

These atrocities and the killings of the innocent cannot continue and must stop. While President Paul Biya of Cameroon has made several commitments to end the conflict in Cameroon, there has to be a genuine commitment for the equal and equitable distribution of resources to the Anglophone regions as enshrined in the preamble of the Constitution of the Republic of Cameroon 1996, which stipulates that all citizens “have equal rights and obligations” and “the State shall provide all its citizens with the conditions necessary for their development” and that the state has a positive obligation to ensure that it protects the rights of the minorities. This must be upheld by the government of Cameroon.

Even if there is a commitment on the part of the Anglophones and the government of Cameroon to end the conflict and there are resources to do so, there may be an issue with the authorising environment. This is because President Paul Biya started ruling Cameroon in 1982 and is currently serving his seventh term, making him one of the longest-serving presidents in Africa and the world. This means that for an average Cameroonian, S/he has only known one president since birth. Since the early 1990s, it has been speculated that President Biya is aloof to the needs of his people and has made very few public appearances. He is termed an absentee president who regularly spends extended periods in Switzerland with the excuse from his government that he goes to Switzerland to work without being disturbed. This deficit in governance, as well as the economic apartheid of the Anglophones, are some of the reasons for the demand for a change in the system of government from autocratic to democratic rule.

The bilateral partners of Cameroon such as France, United Kingdom, United States of America and other national, regional and international organisations should put pressure on the Cameroonian government to put in place a course of action to assuage the situation, partake in a genuine national dialogue and transform the governance archetype. The government of Cameroon should allow for negotiation and mediation during the national dialogue between parties, where necessary.

The principle of territorial integrity and sovereignty may bar international actors from intervening. However, one can start from the low hanging fruits. For example, European media can call out President Biya for always spending his time and his country’s resources in Switzerland and other European countries without reasonable justification. Lastly, the African Union has a huge role to play in this crisis. Just like the Confederation of African Football (CAF) deprived Cameroon the right to host the Africa Cup of Nations in 2019, the African Union can strip Cameroon of the benefits that it enjoys from the continental body and may also place economic and political sanctions on Cameroon such as travel bans, restrictions on access to services in the international arena until it resolves the Anglophone crisis. Thus, it is imperative that the Anglophone crisis may continue to loom if the Anglophones still feel marginalized. Therefore, the government of Cameroon must make a conscious effort  to address the concerns of the Anglophones, particularly in the allocation and management of economic resources and representation in state institutions.

About the Author

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

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Attempts at constitutional reform in The Gambia: Whither the Draft Constitution?

Author: Satang Nabaneh
Post-doctoral Fellow, Centre for Human Rights, University of Pretoria

The Gambia’s constitution-drafting process, aimed at ushering in a third Republic, has reached an unfortunate dead-end. More than two years after the constitutional review process began, and after a highly acrimonious and polarised debate in the National Assembly, Parliament, one week ago (on 22 September 2020), rejected the proposed Constitution Promulgation Bill, 2020 (‘the Bill’). The Bill would have enabled the eventual promulgation the Constitution of the Gambia, 2020 (‘Draft Constitution’) and the repeal of the Constitution of the Republic of The Gambia, 1997 (‘1997 Constitution’). Twenty-three lawmakers in the National Assembly voted against the Bill, while thirty-one supported it. This was, however, not a big enough majority to meet the threshold requirement of three-quarters of members needed to effect constitutional change. The Draft Constitution could, therefore, not be put to a referendum.

The movement for a new Constitution

In December 2016, after twenty-two years of authoritarian rule, Yahya Jammeh was finally voted out of office, and opposition leader, Adama Barrow, voted in. Although Jammeh at first accepted the results, he changed his mind a week later – triggering a political crisis in the country. The Economic Community of West African States (ECOWAS) mobilised troops with a mandate to enter the country and forcefully oust the former President should diplomatic missions fail. On 21 January 2017, however, Jammeh left The Gambia for Equatorial Guinea. This unprecedented political event kickstarted a transition from dictatorship to democracy. Yet, ending the dictatorship was just the first step. The vision for The Gambia, in transitioning from an authoritarian rule to a democratic state, included drafting a new constitution and measures to ensure accountability for past human rights violations. This included the establishment of a Truth, Reconciliation and Reparations Commission (TRRC), to inquire into human rights violations committed July 1994 to January 2017.

Constitutional change and a rebuilding of the foundations for good governance and democracy had been a campaign promise of the ruling coalition. Consequently, a key pillar of the new ‘National Transitional Justice Programme’ became the formulation of a new constitution.  Leading, in December 2017, to the establishment of the Constitutional Review Commission (CRC). The formal process of reviewing the 1997 Constitution and drafting a new one started in June 2018 with the appointment of eleven members (five of whom are women, one of which was the Vice Chairperson) as Commissioners of the CRC.

The CRC had a two-fold mandate, first, review the 1997 Constitution and draft a new one, and second, prepare a report on the draft constitution. The CRC used a participatory and consultative approach to solicit the views and opinions of Gambians about constitutional issues they wished to see addressed in their new constitution.

The CRC kicked-off the review of the 1997 Constitution by preparing a comprehensive list of 369 questions and issues on which public opinion was sought. The Commission undertook an initial nationwide tour, which began in November 2018, followed by further consultations in early 2019 as well as additional household and online surveys. It also engaged in dialogue with various actors including political parties, central and local government institutions and civil society organisations. In addition, the CRC consulted with Gambians in the diaspora in Europe, United States, United Kingdom, Saudi Arabia and other African countries.

Following these consultations as well as some in-depth research, the Commission produced a draft constitution, published on 15 November 2019. The CRC then embarked on a second and final nationwide, public consultation tour, this time to make people aware of and to solicit feedback on the 2019 version of the draft constitution. On 30 March 2020, the CRC submitted the ‘Final Draft Constitution and Report’ to the President. In line with requirements in the 1997 Constitution, the Bill was twice published in the Government Gazette (first on 28 May and then on 28 August 2020), whereafter it was introduced in the National Assembly (section 226). The Bill was tabled before the National Assembly on 14 September 2020.

The Draft Constitution introduced several measures aimed at enhancing and strengthening democracy. This includes a presidential term limit, limits on executive power, measures to ensure greater political inclusion of marginalised groups (including women, youth and persons with disabilities) and a comprehensive Bill of Rights chapter, compliant with international and regional human rights standards. The public had high hopes for significant constitutional change. The personalised politics of the recent past, the undemocratic provisions in, and frequent amendment of, the 1997 Constitution and a complete disregard of the rule of law by the former President left Gambians with a desire for change. Sadly, however, these hopes were dashed when the Bill did not receive the requisite majority vote in Parliament.

Why did the Bill not pass?

One way of trying to determine why the Bill did not pass is to look at who voted against it in the National Assembly. From this it is possible to speculate what their main concerns were. A review of the parliamentary debates suggests that the major concerns were those of the ruling government. Issue had been taken with the limitations to the scope of executive power the Draft Constitution would implement and with the fact that the presidential term limit would operate retroactively. This later provision would ensure the current term of President Barrow will be counted towards his term limit.

What next?

The rejection of the Bill on its merits means that Gambians would not get to see this version of the 2020 Draft Constitution in a future referendum. So, what now? As the Government has not yet shared any plans we are left to speculate, I consider two possibilities here.

One option is to amend the 1997 Constitution to include some of the more progressive provisions in the 2020 Draft Constitution. The problem with amendment is that it would have to follow the same process as for the promulgation of a new constitution (section 226 (2)(b) and (4) of the 1997 Constitution). In other words, it would require approval of three-quarters of all the members of the National Assembly on the second and third readings and would also have to be passed in a national referendum (requiring 50% turnout and 75% approval).

A potential second option is to go back to the drawing board – have the Constitutional Review Commission restart the drafting process afresh, aiming to resolve contentious issues that are preventing consensus. However, this too would be challenging. In particular, it would be difficult to get buy-in and political legitimacy. The majority of parliamentarians that did support the Bill and therefore the 2020 Draft Constitution will view a new process with suspicion. Given the assertive citizenry and engaged and revitalised civil society we have seen in recent times, the public is also not likely to buy into any process that produces a watered-down version. Additionally, such a process might also make it difficult to garner the support of development partners. And, even if going back to the drawing board is feasible, success is clearly not guaranteed.

Lessons learnt

Even though the constitution-drafting process has not ended in the adoption of a new constitution, there are some important insights to be gleaned from this experience. For one thing, The Gambia’s experience demonstrates how political elites can serve as stumbling blocks when proposed constitutional change threatens their political power. It is therefore important for constitution drafters and academics alike to apply their minds to how this might be avoided in other constitution-making processes.

While this has been a costly exercise, it was worth it, because Gambians have grappled with some important constitutional ideas, and reached insights that will be helpful in the long run. Given its great quest for change and the broad consensus that there cannot be any meaningful break with the political past without true and complete reform, I am confident that The Gambia will eventually give itself a new constitution.

This article was originally published on the IACL-AIDC Blog

Suggested citation: Satang Nabaneh, ‘Attempts at Constitutional Reform in The Gambia: Whither the Draft Constitution?’ IACL-AIDC Blog (29 September 2020) https://blog-iacl-aidc.org/2020-posts/2020/9/29/attempts-at-constitutional-reform-in-the-gambia-whither-the-draft-constitution

About the Author:
Satang Nabaneh is a Post-doctoral Fellow at the Centre for Human Rights, Faculty of Law, University of Pretoria. She is the Programme Manager of the LLM/MPhil in Sexual and Reproductive Rights in Africa (SRRA) at the Centre. Satang holds the degrees LLD and LLM in Human Rights and Democratisation in Africa from the University of Pretoria and an LLB from the University of The Gambia. Her research interests include a broad range of issues related to international human rights, women’s rights, democracy, and constitutionalism.

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Adolescent girls and young women have a right to know: Accessing information on sexual and reproductive health and rights in the wake of COVID-19

Author: Kerigo Odada
Human Rights Lawyer; LLM (Sexual & Reproductive Rights in Africa) student, Centre for Human Rights, University of Pretoria

For many adolescent girls and young women around the world, adolescence marks not only the commencement of puberty, but also a time where statistically, the risk of facing human rights abuses such as sexual violence, exploitation, and other adverse outcomes of sex increases. However, despite this high predisposition to abuse, adolescent girls and young women still face multiple barriers in accessing information on sexual and reproductive health and rights (SRHR). Discriminatory cultural values, laws, and policies that are driven by the stigma attached to sexuality have made it challenging for members of this social group to enjoy full access to much needed SRHR information.

As of April 2020, about 1.725 billion students worldwide were forced out of learning institutions due to COVID-19. Although the closure of schools and other lockdown measures were strategic in controlling the spread of COVID-19, this situation unfortunately meant that many adolescent girls and young women were now confined in homes where they were, and still are, at a heightened risk of prolonged sexual abuse, exploitation and negative outcomes of sex.

Although lockdowns, quarantines, and other isolation measures have had a negative impact on the lives of countless adolescent girls and young women worldwide,  it is not COVID-19 that is responsible for more than one girl being raped during the first 17 days of quarantine in Peru. It is not COVID-19 that is responsible for “a daily average of 48 cases of violence against children, including sexual assault and rape since the beginning of the lockdown in Bolivia”. It is not COVID-19 that is responsible for approximately 4,000 school girls being impregnated in Machakos County, Kenya within the first 4 months of lockdown, nor is it responsible for impregnating around  2,300 schoolgirls and marrying off around 128 of them in Uganda. These are the consequences of pre-existing gender inequalities that are driven by androcentric systems of justice, health care and education -systems that are oftentimes designed to protect perpetrators while leaving adolescent girls and young women exposed.

Denying adolescent girls and young women the opportunity to freely access SRHR information during this period is a failure on the part of governments because they have a duty to ensure all persons can fully enjoy the right to health.  This approach does not take into consideration the lived realities of many adolescents and young women, nor their evolving capacities.  SRHR information empowers members of this social group with essential knowledge, skills, and values such as critical thinking, communication,  negotiation, decision-making and assertiveness all of which empower them to navigate a world where they are highly susceptible to sexual exploitation and abuse, child marriage, unintended pregnancies, unsafe abortions,  HIV/AIDS and other sexually transmitted infections.

Several organisations working on adolescent girls and young women’s SRHR, have called upon governments to ensure we do not have a repeat of what was witnessed during the 2014 Ebola outbreak where teenage pregnancies increased by 65%. These organisations noted that measures taken to respond to epidemics often leave adolescent girls and young women vulnerable to sexual abuse and exploitation because they are usually isolated from people, systems and resources that can help them safeguard their SRHR. Therefore, preventative measures such as uninterrupted access to SRHR services and information must be ensured to safeguard the health and well being of members of this social group.

Keeping communication channels open, informed, and supportive of adolescent girls and young women play a key role in ensuring this social group acquires practical knowledge that will help protect them from abuse and other negative outcomes of sex. It is therefore imperative that governments, in collaboration with the media, develop and implement a framework for engaging with adolescent girls and young women on matters relating to SRHR.

Engaging the Media

Media has one of the greatest potentials to advance SRHR globally. Given its “ability to disseminate information in a broad, timely, and accessible manner”, strong partnerships and collaboration with journalists and social media activists at the global and local levels are essential in safeguarding adolescent girls and young women’s SRHR.  Governments, in collaboration with organisations working on SRHR, should invest in creating and sustaining the interest of the media in reporting on SRHR issues because this will ensure adolescent girls and young women have uninterrupted access to SRHR information. This also involves strengthening the capacity of the media to engage in the topic. Virtual trainings, workshops, and webinars should be organised to educate the media on how to report on SRHR issues. Helping journalists get a deeper understanding of the issues will ensure that they are motivated to report on them.

A good collaboration with the media can lead to the production and dissemination of quality campaign and educational materials such as movies, radio shows, songs, posters, stickers, and online campaigns. For example, in  Burkina Faso, a partnership with the National Coalition for the Abandonment of Child Marriage saw the training of 30 national journalists on child marriage, while in Niger, radio ‘Voix du Sahel’ and nine private radio stations worked together to air a soap opera that successfully raised awareness on child marriage in the region.

Nevertheless, in as much as using media will be essential in ensuring SRHR information is accessible to adolescent girls and young women, stakeholders must also ensure that they put in place measures to protect this group as they engage with these media platforms. This is especially relevant for online models of communication, such as social media. According to UNICEF, children now spend a lot of time online either for school, or when socialising with friends which consequently puts them at risk of online sexual exploitation and misinformation. In a report released in April, UNICEF noted that, since the pandemic started, internet usage had increased by up to 50% in some parts of the world as life became more and more digitalised. With fewer physically accessible activities during the COVID-19 pandemic, young people are spending more time browsing the internet. In Canada, for instance,  Cybertip.ca, an online sexual exploitation of children tip line, reported a 66% increase in reports in April following the implementation of lockdowns. In India, there has been a 95% rise in traffic searching for child sexual abuse content,  while in Europe, Europol (The European Union police agency) has sounded the alarm over significant increases in activity relating to child sexual abuse and exploitation on both the surface web and dark web during the COVID-19 lockdown period.

Governments should partner with other stakeholders such as civil society organisations, and community-based organisations to develop strategies to engage the media, both mainstream and social media. This engagement should ultimately lead to the development of a framework to educate the youth on SRHR and should be part of the educational programs rolled out in various countries. Forming partnerships will be instrumental in bringing together a diverse range of people and organisations, thereby facilitating the exchange of information, skills, experience, and materials while providing peer support, encouragement, and motivation. Partnerships, especially with grassroots organisations, help in getting community buy-in which is vital in addressing issues related to young women’s access to comprehensive SRHR information.

For example, technical, financial, and logistical support could be given to initiatives such as InfoAdoJeunes, a mobile app developed in Togo to help youth access credible SRHR information during this time of COVID-19. Another successful initiative is U-Report, an SMS-based peer counselling service in Mozambique, Sierra Leone, and Uganda, that was developed to support continuous training and answers to young people’s questions and concerns on SRHR. U-report equipped mentors with mobile access that reaches over 200,000 adolescents with youth-friendly information mainly on child marriage.

The pandemic has exposed the fact that sexual exploitation of adolescent girls and young women, despite being a gross violation of human rights, is deeply woven into the tapestry of many societies. A situation that is further worsened by either lack of access to information on SRHR, or if access is there, the information is confusing or conflicting. When this group lacks knowledge on their SRHR, they are left vulnerable to sexual exploitation, coercion, sexually transmitted infections including HIV/AIDS, unintended pregnancies, and unsafe abortions. It is therefore of paramount importance that we provide adolescent girls with comprehensive information on SRHR that prepares them for a safe, productive, and fulfilling life.  To continue denying adolescent girls and young women access to this information under the pretext of protecting them from immorality is discriminatory and a violation of their rights.

This article was originally published on the SRHM Blog

About the Author:
Kerigo Odada is a human rights lawyer who specialises in Sexual and Reproductive Health and Rights and currently serves as a Board Member of The Youth Coalition for Sexual and Reproductive Rights. She is currently a LLM (SRRA) student at the Centre for Human Rights, University nof Pretoria

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Ending child marriage: A call to action

Author: Mary Izobo
International Human Rights Lawyer and Gender Advocate

Introduction

The International Day of the Girl Child is commemorated globally every year on 11 October since 2012 to highlight the injustices girls face based on their gender, while advancing the fulfilment of their rights, development and wellbeing. The United Nations theme for  the International Day of the Girl Child 2020 is ‘My voice, our equal future.’ There is a specific emphasis on the girl child because there is a direct form of discrimination against girls who are often deprived of their fundamental human rights. Millions of girls from birth are discriminated against on the grounds of sex and gender. This year, as we commemorate the International Day of the Girl Child, it is important to bring to the world’s attention, child marriage which continues to be an unending anathema that serves as a challenge in the fulfilment and enjoyment of the rights and welfare of the girl child.

Child marriage is the marriage of a child before he or she turns 18 years of age. It is a global phenomenon that continues to obstruct the wellbeing of young boys and girls. Child marriage affects both boys and girls, but nine in ten children married off before they turn 18 years are girls. Every two seconds, a girl is married off, before she is physically, psychologically or emotionally developed enough to become a bride or mother. An estimated 650 million women and girls in the world today were married before they turned 18 years and one-third of these women and girls were married off before they turned 15 years. According to United Nations International Children Emergency Fund (UNICEF), out of the world’s population, 1.1 billion are girls and 22 million of them are married off before they attain adulthood.

Next to Asia, Africa has the highest prevalence of child marriage, a decadence deeply rooted in society and an atrocity that is a major impediment to regional development and prosperity. It is believed that ‘if current trends continue, almost half of the world’s child brides in 2050 will be African.’  The United Nations Child Rights Convention (CRC) which guarantees the rights of children, is the most ratified treaty in the world, ratified by 196 countries excluding the United States of America and Africa’s newest state – South Sudan. The African Charter on the Rights and Welfare of the Child (ACRWC) which deals with peculiar human rights challenges affecting children in Africa has been ratified by 49 out of the 55 countries in Africa. The CRC and the ACRWC recognise non-discrimination, devotion to the best interests of the child, the specific needs and rights of the child, as well as respect for the views of the child. Even countries that have signed, ratified and domesticated the CRC, ACRWC and other international instruments on the promotion and protection of the rights of the child, fail to comply with the implementation of these instruments and policies because of gender-discriminatory norms, socio-cultural practices, tradition, custom and religion.

Gender discriminatory norms, for example, have marked a female child as inferior to a male child. The birth of a male child is celebrated with great splendor and ardor, while the birth of a female child is received with disappointment because she is seen as a burden when compared to her male counterpart. Be it education, health, basic services, protection, participation, inclusion, the girl child is always treated unequally. Unfortunately, girls are led to believe that their goal in life is to cook, clean, serve and please their husbands as well as bear children. This is inconceivable and unfathomable in the 21st century where we have strong female leaders who have made landmark strides in systems completely dominated by men like Ms Chimamanda Adichie, a prolific and award-winning author; President Sahle-Work Zewde of Ethiopia; Mrs Amina J Mohammed, Deputy Secretary-General of the United Nations; Former President Ellen Johnson Sirleaf of Liberia and Mrs Ngozi Okonjo-Iweala who is currently vying for the position of the Director-General of the World Trade Organisation and may very well become the first female leader of the institution in its 25 years of existence.

The effects of child marriage on the girl child

Child marriage affects the education of a girl child as she is forced to take care of her husband and/or children. Consequently, these girls are unable to go to school or continue their education, and their financial freedom becomes hindered. This leaves them in a constant state of abject poverty and perhaps raise a generation of women and girls that continue to live below the minimum wage.

Also, child brides are prone to domestic violence. The International Council of Research on Women (ICRW) contends that girls between the ages of 15 and 19 years old with little or no education are at a higher chance of being violated than older and educated women.

In addition, child brides suffer from post-traumatic stress disorder (PTSD) and depression. These girls are made to live with their husbands and in solitude away from their families and friends. Child brides are more prone to HIV/AIDS and STIs as they are unable to discuss contraceptives with their husbands. Child brides are also likely to suffer complications from early or teenage pregnancy, sometimes leading to death. Approximately 70 000 girls die each year due to complications from pregnancy and/or childbirth. These girls also suffer from miscarriage, obstetric fistula, and postpartum haemorrhaging.

Aspiration 6 of the African Union (AU) Agenda 2063 and Goal 5 of the United Nations (UN) Sustainable Development Goals (SDGs) 2030 sets target on ending child marriages. However, child marriage continues to rob the girl child of her opportunity to grow, learn, be empowered and develop to her full potential as child marriage makes the girl child dependent trapping them in a perpetual cycle of poverty.

Conclusion

We must all come together to end child marriage. The birth of a female child must be celebrated with equal zeal as that of a male child. There must be community ownership and duty in eliminating child marriage. There must be sensitisation programmes that would create attitudinal shifts towards gender equality and the mainstreaming of the rights and wellbeing of the female child. We must continually launch national awareness campaign against child marriage by highlighting the dangers of child marriage on the child, family, society, nation and the world at large.

Girls need to be empowered through the provision of information on sexual and reproductive health, support networks, career guidance, role modelling and mentorship programmes. School curriculum needs to eliminate gender roles and education must be inclusive.

There has to be state accountability to implement laws, policies, schemes, constitutional and international commitments on gender equality as well as institutionalising gender-sensitive laws and programmes within the national systems.

Girls want a world where everyone has equal rights and opportunities; a world without patriarchy; a world where she can voice her opinions in her environment and be heard in decisions that affect her life; a world where she is not marginalised, stigmatised or victimised. Girls want to have access to equal opportunities to learn, grow and prosper as their male counterpart. In this world, she is equal and gender equality is the standard. We must end child marriage now to protect her rights and wellbeing and safeguard her future and the future of the world.

About the Author

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

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Critical analysis of Pan-African Parliament’s resolution on peace and security in Africa

Author: Masalu Masanja
LLM (HRDA) student, Centre for Human Rights, University of Pretoria

Introduction

The Pan-African Parliament (PAP) is among the nine organs of the African Union (AU) established with the aim of ensuring the full participation of African people in the development and economic integration of Africa. This purpose is anchored under Article 17 of the of the AU Constitutive Act. One of the objectives of PAP is the promotion of peace and security on the continent. In terms of its mandate, PAP is limited to consultative and advisory power within the AU. Its full-fledged legislative power is provided for under the Protocol to the Constitutive Act of the African Union on the Establishment of the Pan-African Parliament (Malabo Protocol), which is yet to come into force. This opinion piece seeks to examine critically the resolution on peace and security with a specific focus on the Continental Early Warning Mechanism (CEWM).

War and violence in Africa are among the stumbling blocks to economic development and integration in Africa. Consequently, the PAP passed a resolution on the promotion of peace and security in Africa at its Second Session of the Fourth Parliament held from 5 to 17 October 2015. This opinion piece specifically focuses on PAP’s recommendation on the need of reinforcing CEWM in conflict prevention in Africa and the establishment of an African centre for conflict and arbitration focusing on providing training and capacity building on alternative dispute resolution mechanisms in the five sub-regions of Africa, under the oversight of African Court on Human and Peoples’ Rights.

Reinforcing CEWM

PAP’s resolution emphasised the reinforcement of the CEWM in ensuring peace and security in Africa. CEWM is a creature of the Protocol on the Peace and Security Council and was established under Article 12 of the Protocol. it is one of the pillars of the African Peace and Security Architecture, as part of the conflict prevention mechanism in Africa.  CEWM is aimed at giving the AU a proactive system of conflict prevention as opposed to the traditional reaction system. For this reason, ‘early warning is perceived as an effective tool to action” and encompasses the collection of information, analysis of information, formulation of best/worst scenarios and response options and communication to decision-makers.

It is from this background that the PAP urged the AU to reinforce the CEWM in order to prevent conflict in Africa. The resolution captured the potential of CEWM in avoiding conflict. Nevertheless, despite CEWM, Africa still experiences deadly political violence which cost the lives of so many innocent people. This call into question the efficacy of CEWM in preventing conflict before it erupts.

Even though the PAP resolution concluded that the AU needed to reinforce its CEWM, the story is not all gloomy. According to Noyes and Yarwood, CEWM made progress in terms of ability to monitor, analyse, and provide warning of emerging conflict in Africa. In this regard, CEWM involves advance data collection, on which the AU has made significant advancement. This data collection mechanism puts Africa ahead of other regional bodies because AU has comprehensive data collection managed by situation Room in AU.

Nonetheless, the inefficiency of CEWM in Africa comes from the lack of expertise in terms of analysis of the information collected. In this area, the CEWM is facing difficulty because of the lack of highly skilled and trained personnel. Similarly, as the resolution clearly articulated, the AU is not proactive in giving a response. This is because after the analysis of data collected is worked on, the Peace and Security Council (PSC) does not receive early warning for it to make decision. At this point, there is very poor communication between CEWM and PSC. This means the PSC does not usually get the necessary information for it to act. Even if the PSC has the information, the PSC does not usually work as quickly with the information furnished and the AU is supposed to be pro-active in acting accordingly and to notify member states of warning signs.

The resolution also champions establishment of an African centre for conflict and arbitration focusing on providing, training and capacity building on Alternative Dispute Resolution mechanisms in the five sub-regions of Africa under the oversight of African Court on Human and Peoples’ Rights. The proposal for establishing an African centre for conflict and arbitration is good idea. It would be better if Africa would have such a centre, but the proposal that the African Court should have oversight is questionable and problematic for three reasons. Firstly, this will have repercussion on accountability of African States on issue of human rights abuse because the court will be overloaded with another mandate in case more member states make declaration pursuant to article 34(6).  Secondly, the proposal poses a challenge on personnel and expertise. Currently, the court is made up of judges who are experts on human right. Thus, if the proposal is to be implemented, it will require the recruitment of experts in the field of conflict management. This obviously, has financial implications on the part of the African Court. Lastly, extension of the mandate of the African Court to the oversight of the African centre for conflict and arbitration will also have financial implications. The Amnesty International Report on the Malabo Protocol highlights that the African Court several times raised the issue of resources allocated to it by the African Union. Therefore, the extension of the mandate will seriously hamper the court in discharging its full mandate if not accompanied by commensurate financial resources.

Conclusively, if the AU takes the CEWM seriously as a means of preventing conflict in Africa (as PAP’s resolution suggests), Africa will be able to promote peace and security and ensure the economic development and integration across the continent. This is because peace and security are inextricably linked with economic development. In ensuring a prosperous and developed Africa, the AU must reinforce its CEWM.  Also, the establishment of an African centre for conflict and arbitration need not be under the auspices of the African Court, as doing so will have a negative impact on the accountability and enforcement of human rights as stipulated in the African Charter.

About the Author

Masalu Masanja is currently completing an LLM in Human Rights and Democratisation in Africa at the Centre for Human Rights, University of Pretoria. He is attached to the Democracy and Civic Engagement Unit of the Centre.

 

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Uncontacted peoples: A legal failure

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

In the age of antiquity, brilliant minds spoke of lost cities and forbidden regions that lay beyond the edges of the known world. Plato famously wrote of Atlantis – a hyper-advanced civilisation that fell from favour with the Gods and was submerged beneath the sea as a consequence. As the world developed, however, and explorers chartered the unchartered, humans realised that these myths were exactly that – myths. But global expansion revealed other mysteries, and while the ideas of golden cities and sunken empires have faded into fable, lost and isolated tribal groups have certainly existed – and still do to this day.

It is roughly estimated that some 100 tribes still operate in varied isolation worldwide, with the bulk situated in different parts of South America. Having largely resisted outside contact (or contact with neighbouring tribes), these indigenous groups have earned the name “uncontacted peoples” – a term that has sparked interest among tourists and missionaries alike. Acting from curiosity or personal intent, many outsiders have sought to intrude upon isolated communities – with differing outcomes. In some instances, tribal groups have welcomed strangers and allowed them to view and even participate in cultural activities. The Jawara tribe on the Andaman Islands of India, has been known to allow tourists and researchers onto their reservation without trouble – even occasionally sending their children to settlements beyond the reserve to be educated. Other tribes, however, are known to respond to outsiders with aggression and violence. The inhabitants of North Sentinel Island are notable for ferociously resisting outside contact, with two fishermen and an American missionary, John Allen Chau, dying as a consequence of trespassing onto the island.

Despite each particular tribe’s nature, the general consensus of the international community is that they must be universally protected to preserve their customs and ways of life. This has resulted in a string of relatively successful and unsuccessful legal measures at both local and international levels.

It seems that each respective country has tackled the issue of tribal protection differently. For example, in the case of North Sentinel Island, the Indian government has established a no-go-zone within a 5-mile radius of the island to ward off trespassers and overflying aircraft. Where a tribe exists within a landlocked region, such as the Awá in Brazil, reserves have generally been demarcated to preserve their existence and prevent a forced assimilation of tribe members into modernity. The Awa tribe has been particularly affected by outside interference and it is largely on account of international pressure from activist groups that their existence has been ensured. As a tribe of hunter gatherers, they live on the move, but their land has become increasingly smaller as logging companies encroach further into their territory. There are even reports of such companies hiring gunmen (known as pistoleros) to “remove” tribe members who stand in the way of their production. No one is safe from such attacks and even children have been killed at the hands of hired guns.

As a result of the plight faced by indigenous groups, countries in South America have become increasingly aware of the need to protect indigenous groups and have even passed state-binding legislation to achieve this. Brazil, for example, has an established group called FUNAI, which gives effect to tribe-related law and ensures that companies with commercial interests in land occupied by indigenous groups refrain from carrying out their activities. However, in recent years, FUNAI has suffered continuous budget cuts which have hampered its protective abilities. Brazil’s president, Jair Bolsonaro, has also vowed to extensively remove the legal barriers which have protected the Amazon from economic activity – essentially opening up the forest to commercialisation. Mounting factors such as these have increased fears that the days of uncontacted peoples are quite literally numbered.

It is no surprise that much of the current legislation passed regarding tribal protection has been ignored by private companies and individuals with misguided intent or a disregard for the survival of native groups. Dozens of tribal communities are situated on land rich in resources such as oil, gas and trees which have in turn attracted corporations that see isolated groups as mere obstacles in the greater scheme of business.

The casual tourist is no less dangerous than the corporation. Many seeking to satisfy their curiosity have illegally ventured into tribal reserves – often with tragic outcomes. Tourists are occasionally met with aggression from tribal inhabitants, and tragedies are common when the no-go-zones are ignored. However, it is ultimately the tribes themselves who face the most significant threat from outside intrusion. Because they have never come into contact with diseases and illnesses (even as trivial as the common cold), isolated tribes have virtually no immunity thereof. Merely one interaction between an outsider and a tribe member could wipe out half of a tribe’s entire population. In 1987, a first-time interaction between an uncontacted people, the Zo’é, and members of an evangelical missionary group (The New Tribes Mission) exposed the tribe to disease which ran rampant through their community, decimating its population. Their numbers have reportedly since recovered, but the initial loss was gravely unnecessary and could have been easily avoided.

Given the severity of the threat from outsiders, protective legislation (and mechanisms to ensure compliance) is imperative. On the international plane, there are no legal instruments that bind the global community with regards to uncontacted peoples. Even UN declarations such as the 2007 Declaration on the Rights of Indigenous Peoples has failed to place an obligatory duty on countries to protect tribes within their borders. If given effect to, the Declaration would make it almost impossible to force isolated groups into modernity. For example, Article 8.1 of the Declaration states that “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.” This is echoed in Article 10 which avers that “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return”. In a perfect world, these provisions would guarantee the continued survival of native peoples – as well as the environment they inhabit. Sadly, however, to the international community, these are mere guidelines with no binding effect.

Many have speculated that the only way uncontacted indigenous groups will survive is through public pressure to demarcate land for them and create mechanisms to prevent outside intrusion. As an example, Colombia maintains armed patrols around tribal reserves – something that could be mirrored in other countries to achieve relative success. However, as it stands, no blanket legal remedy exists to encompass all uncontacted peoples, and until one comes into existence, tribe related legislation and unprotected no-go-zones will likely remain ignored by companies and individuals alike.

The clock is ticking on the survival of uncontacted peoples, and we can only hope that the resounding legal failures in respect of their protection will be remedied before their time runs out.

About the Author

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

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