Uganda’s blasphemy law is unconstitutional

Author: Nimrod Muhumuza
Lawyer and LLD candidate, Dullah Omar Institute, University of Western Cape

Laws prohibiting blasphemy are astonishingly widespread worldwide with many countries criminalising conduct deemed blasphemous with disparate punishments ranging from prison sentences to lashings or the death penalty. A comprehensive report prepared by the US Commission on International Religious Freedom found that 71 countries prohibit views deemed blasphemous. These laws have dire consequences for those who find themselves on their wrong side as the most recent and much publicised case of Asia Bibi in Pakistan has demonstrated.

South of the Sahara, the report found that only four countries criminalise blasphemy. Uganda did not make that list. This is despite the provisions of Chapter III, sections 118-122 of the Penal Code Act. Sections 118-121 proscribe conduct that involves the destruction or damage or defilement of any place of worship with the intent of insulting the religion; disturbing religious assemblies, trespassing on burial places hindering burial of a dead body. The utility and legality of these provisions is not inherently the protection of religions and religious ideas and their constitutional validity will not be canvassed at this point.

Section 122 will be the focus of this discussion. The provision criminalises writing or uttering words with the intent to wound religious feelings. The full text of the provision states that ‘any person who with deliberate intention of wounding the religious feelings of any other person, writes any word, or any person who, with the like intention, utters any word or makes any sound in the hearing of any other person or makes any gesture or places any object in the sight of any other person, commits a misdemeanor and is liable to imprisonment for one year.’ It is my argument that this provision is constitutionally invalid for contravening the key tenets of the principle of legality, and freedom of speech.

Section 122 and the principle of legality

The principle of legality is guaranteed by article 28(12) of the 1995 Constitution. ‘Except for contempt of court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law.’ The principle of legality requires that the law have a clear definition before punishment. Lawyers might recognise this requirement as the need to articulate the ingredients of an offence. Legality requires that a citizen should be able to know in advance, with sufficient clarity, which conduct is prohibited and the legal consequences that will flow from a particular course of action. The law must indicate with reasonable certainty to those who are bound by it what is required of them so that they regulate their conduct accordingly. A vague law, as the Supreme Court stated in Penal Code Act, is a violation of due process of law.

Section 122 is embarrassingly and glaringly imprecise so much so that the publication or circulation of this piece might constitute an offence under the provision. The determination of whether a crime has been committed under the provision depends on the subjective feelings of the audience to whom any word, sound or gesture may or may not be directed. In other words, a prospective suspect’s fate depends on the feelings and sensibilities of another individual. The absurdity of the provision is compounded by the fact that the law criminalises conduct made with the intention of wounding religious feelings ‘in the hearing or sight of any other person.’ So, non-believers gathered in a public place discussing or debating the non-existence of god with a theist can be prosecuted if a cleric, who is not part of their discussion and is within hearing distance of the discussion, dislikes the premise of the debate if there is proof that what is said is intended to hurt religious feelings. It is inconceivable how such a debate might take place without intentionally causing slight to ‘religious feelings.’ One might even wonder what the law means by ‘religious feelings’ since this phrase is not defined either.

Vague laws, such as section 122, may trap the innocent by not providing fair warning. A vague law impermissibly delegates basic policy matters to policemen, judges, juries for resolution on an ad-hoc basis with the attendant danger of arbitrary and discriminatory application. However, even if the prescription of what constitutes an offence under the provision was precise and clear enough, would it survive interdiction by the right to freedom of expression provided for in the Constitution?

Section 122 and the right to freedom of expression

The Uganda Supreme Court has defined freedom of expression as the freedom to hold opinions and to receive and impart ideas and information without interference. This extends to holding, receiving and imparting all forms of opinions, ideas and information and is not confined to categories such as correct opinions, sound ideas or truthful information. Subject to the general limitation clause under article 43, a person’s expression or statement is not precluded from constitutional protection simply because it is thought by another or others to be false, erroneous, controversial or unpleasant. ‘Indeed,’ the Court expounds, ‘the protection is most relevant and required when a person’s views are opposed or objected by society or any part therefore as “false” or “wrong.”

It is irrelevant, for purposes of this discussion, what the British, who drafted our Penal Code in 1950, have done with their blasphemy law because in 1995 we debated and promulgated our Constitution that protects free speech. A law enacted in 1950 must therefore be able to pass constitutional muster. Section 122 does not. It irrationally infringes on the right to freedom of expression for the stated purpose of avoiding wounded feelings. A democratic society protects the right to freedom of expression because of the benefit it derives from the free exchange of ideas and critique of established and conventional wisdom.

Incitement to violence and hatred

Invalidating blasphemy laws is not a clarion call to incite violence and hatred towards religious people. There is a very fine line between laws that protect the infliction of violence on individuals and those that protect ideas from scrutiny. Every individual is guaranteed the right to inviolability of their person/body. However, ideas, religious or otherwise, deserve no such respect. It is disingenuous for one to argue that blasphemy laws help protect religious individuals from being subjected to wanton violence for their beliefs. If anything, in Uganda, we have seen the opposite: self-righteous indignation by members of certain religious groups towards different (usually so-called traditional) belief systems has occasionally manifested itself through violence and destruction of property.

No idea is sacred

Blasphemy laws create the illusion that some ideas and individuals associated with those ideas are beyond criticism and critique. They engender and create a society that believes in absolutes; the infallibility of one’s belief systems which then leads to the rejection of compromise and indifference if not opposition to alternative opinions. The century-old tensions between the various belief systems in this country attest to this. Blasphemy restrictions are an attempt to create religious conformity and forcibly silence criticism of dominant religious ideas especially when those ideas support and are supported by political power. This is antithetical to the religious plurality that characterises Ugandan society. In a country whose populace subscribes to at least 10 (non)religious ideals, blasphemy laws are an unnecessary restriction on the need to have difficult conversations about the positive and negative role religion plays in our lives.

Even if no one, to my knowledge, has been convicted of the offence of blasphemy (I would wager that the law was enacted at the height and peak of religious tensions in the colonial period to ease and appease those at the fore of these conflicts), the State cannot protect ideas for the sole reason that they are religious. In any event, the absence of any prosecution and conviction should count towards scrapping the law.

The late Justice Mulenga could not have put it better when he wrote that ‘if there’s any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought – not free thought for those who agree with us but freedom for the thought we hate. Thus the guarantee of freedom of expression serves to preclude the majority’s perception of truth or public interest from smothering the minority’s perception. The import of freedom of expression is to avoid the greater danger of smothering alternative views of fact or opinion.’

About the Author:
Nimrod Muhumuza is a lawyer and LLD candidate at the Dullah Omar Institute, University of Western Cape

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Effectiveness of intervention measures to address female genital mutilation in Ethiopia: A discussion

Author: Henok Ashagrey
Legal Researcher at the Secretariat of the African Committee of Experts on the Rights and Welfare of the Child

Despite certain signs of progress, interventions to address harmful practices in the Federal Democratic Republic of Ethiopia (Ethiopia) are still ineffective. To be effective, these interventions require more inclusivity, stronger cooperation between levels of government, and a focus on changing societal values.

Harmful practices are a principal factor in the violations of women’s rights in Ethiopia. For example, in the North Shewa rural region in the North of Ethiopia, where I come from, harmful practices against women and girls, particularly female genital mutilation (FGM), are accepted as valid cultural practice. The practitioners of FGM justify their acts on religious and cultural grounds.

As part of its measures to address the practice, the Ethiopian government has taken legislative actions. Even though the 1995 Constitution of Ethiopia does not directly address FGM, it contains many provisions relevant to FGM:  Article 16 extend protections to all citizens against ‘bodily harm’; Article 18(1) provides that ‘everyone has the right to protection against cruel, inhuman or degrading treatment or punishment’; Article 25 guarantees the ‘right to equality’; Article 35 addresses the ‘rights of women’, more specifically article 35(4) asserts ‘the state shall enforce the right of women to eliminate the influences of harmful customs,’ and prohibits laws, customs and practices that oppress or cause bodily or mental harm to women; and article 36 guarantees the rights of children and stipulates that every action relating to a child or children has to take into account their best interests as a primary consideration. In line with these constitutional stipulations, articles 565 and 566 of the 2004 Criminal Code of Ethiopia (the CC) criminalize the performance and procurement of FGM without however providing a precise definition of it, and set out punishments for the practice. While article 565 of CC stipulates that FGM on a woman of any age is sanction by incarceration for not less than three months or a fine of not less than 500 Birr (about 18 US$), article 566 (1) proclaims that infibulating the genitalia of a woman, which is the most severe type of FGM, is punishable by incarceration of three to five years. Article 566(2) further aggravates the sanction where infibulating the genitalia of a woman causes injury to body or health; results an imprisonment for a period of five to ten years.  Again, articles 569 and 570 of the CC address the procurement of, and aiding, FGM by declaring it a crime for any person, including parents, to participate or incite someone to contravene the provisions proscribing FGM; backed by imprisonment for a period not exceeding three months or a fine not exceeding 500 Birr. They also criminalise any movement that promotes FGM; imposes imprisonment for a period of not less than three months or a fine of not less than 500 Birr, or both.

However, the CC has some gaps in dealing with FGM effectively and efficiently. Firstly, it does not punish a failure to report FGM unless, as per the cumulative reading of articles 443, 568 and 514 of the CC, the victim has contracted a disease which can cause grave injury or death. Secondly, the CC does not safeguard uncut women and girls from disparaging language or segregation from community; the laws of Kenya and Uganda for instance declare such acts as offences. Thirdly, FGM performed in a medical setting is not precisely addressed in the CC though, given the inclusive nature of articles 561–570, one can argue that the provisions in the CC should be interpreted to cover all medical practitioners who do FGM. Fourthly, as the fines set out in the CC are not updated to take into account unprecedented inflation since 2004, their punitive and deterrence role is very meager.

From a policy angle, Ethiopia’s national Ministry of Women, Children and Youth’s Affairs as well as regional equivalents and multi-stakeholder committees composed of social affairs, education, and justice departments were also established to tackle harmful practices. These bodies are, however, largely dysfunctional as a result of budgetary and accountability issues.

Complementing executive and legislative action, the Ethiopian courts have become more aggressive in investigating and rendering decisions regarding violence against women. Unfortunately, as Thomson Reuters Foundation noted in 2018, implementation of the law on FGM appears weak and few cases reach court. For instance, in 2016, only one conviction was recorded. Consequently, FGM continues unchecked in the country proving the ineffectiveness of the various measures.

In my opinion, the following three factors are the principal reasons for this failure.

First, the policy-making processes is not participatory. The federal government utilizes a top-down approach to policy-making, without consulting local communities and their leaders. Also, apart from certain attempts at the national level, the role of religious institutions to effectively deal with FGM is not emphasized enough at the grassroots.

Second, the restrictions placed by the recently repealed Charities and Societies Proclamation on foreign NGOs and locals that generate more than 10% of the funding from foreign sources to keep them from engaging in human rights activities hampered the efforts. Only Ethiopian Charities and Societies, which are facing myriad challenges with regard to financial sustainability, that in turn reduce their ability to gather data and share knowledge in the work to end FGM, could engage in human rights activities, including work to promote gender equality. However, this restriction has been lifted following the introduction of the new Charities and Societies proclamation, which was adopted by the House of Peoples Representatives on February 5, 2019, that guarantees the right of all organizations, including foreign and foreign funded NGOs, to engage in any lawful activity, including advocacy and human rights work.

Third, the measures are often aimed at forceful eradication of FGM without an accompanying social education program to ensure a societal change and shift in values.

Accordingly, to ensure effectiveness of the measures against FGM, the government should focus on creating awareness and social mobilization through local officials. The projects should be participatory and linked to local initiatives, and comprise laymen and boys as well as traditional and spiritual leaders. Moreover, the effort has to be included the wider social attitudes towards gender with emphasis on gender roles and inequality. Last but not list, the CC should be revised to: provide a vivid definition of FGM, which addresses all types of FGM; specifically addresses medicalised FGM; explicitly sanction and provides the punishment for failure to report FGM; protect uncut women and girls from disparaging language and discrimination; and increase the fines provided under the CC to cope up with the unprecedented inflation since 2004.


United States Department of State • Bureau of Democracy, Human Rights and Labor: Executive summary of Ethiopia 2016 human right report, 2016 avalable at

Thomson Reuters Foundation Ethiopia: the law and FGM,  2018 available at

About the Author:
Henok Ashagrey  is a Legal Researcher at the Secretariat of the African Committee of Experts on the Rights and Welfare of the Child and a Law Lecturer at Dilla University. He holds an LLM in Human Rights and Democratisation in Africa from the University of Pretoria.

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Female genital mutilation/cutting in Africa: Legal and educational deterrence

reprohealthlaw blog

Congratulations to Satang Nabaneh of the University of Pretoria’s Centre for Human Rights, at the Faculty of Law, University of Pretoria, South Africa, and Adamson S. Muula, of the Africa Center of Excellence in Public Health and Herbal Medicine (ACEPHEM), Department of Public Health, College of Medicine, University of Malawi in Blantyre, whose article, recently published in the International Journal of Gynecology and Obstetrics, suggests that female genital mutilation or cutting (FGM) can be progressively deterred in African countries, by legal and educational means, where there is a will to apply them:

Satang Nabaneh and Adamson S. Muula,Female genital mutilation/cutting in Africa: A complex legal and ethical landscape,”  InternationalJournal of Gynecology and Obstetrics, 2019; 145: 253–257,  PDF at Wiley Online. Submitted text at SSRN.

Abstract:  While international and regional human rights instruments have recognized FGM/C as one of the most prevalent forms of violence against…

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Some rays of light on the plight of irregular migration within Africa

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

In 2018 alone, hundreds of witnesses confirmed more than 1 000 migrant deaths on the African continent. But researchers estimate that these numbers represent only a fraction of the overall number of deaths of people on the move in Africa.[1] According to the International Organization for Migration (IOM), during the first three months of 2019, 98 migrants died in Africa (28 in North Africa and 70 in the Horn of Africa, mostly from drowning in the Red Sea whilst hoping to reach Saudi shores).[2] In 2018, the number of fatalities on the continent amounted to 1 401, mostly presumed to come from the Horn.[3]

Irregular migration in Africa occur mostly in Western Africa, Southern Africa and the Horn. The phenomenon also sees some Africans preferring to return home. In this sense, recently, more and more African migrants who ended up in Niger and experienced or heard of the dangers and difficulties of reaching Europe, have decided to return home. In 2018,  approximately 16 000 Africans decided to accept offers from the IOM to return them to their home countries.[4]

However, Niger still remains an important crossroad for trafficked and smuggled Africans. Given the financial cost of travelling through the Sahara and ultimately, to Europe, it is common for migrants to interrupt their trips in Niger, in order to earn some form of income. Nigerien cities such as Agadez and Dirkou have become stopover areas, where irregular migrants prepare for the continuation of their trips.  Yet, in many circumstances, it is not sufficient to consider Niger simply as a country of transit, having de facto become a country of destination for temporary migration flows.[5]

In 2015, the Nigerien government passed a law to counter the trafficking of migrants.[6] Added to the existing Ordinance on the Entry and Stay of Foreigners and the 2010 Ordinance on Combating Trafficking in Persons (2010-86),[7] this new law increases prison sentences and monetary fines for traffickers and allows for the confiscation of their vehicles. Theoretically, the law is drafted in a strong manner and targets both traffickers and smugglers, including bus companies that transport undocumented migrants.[8] To date, however, these laws and initiatives have been unable to stop large migratory flows passing through Niger. This is not to say that the local authorities have made no attempts at all to stop irregular migration but, at the moment, results seem not so positive.  For instance, although the 2015 Nigerien Law contains an entire chapter dedicated to the transport companies’ servicing of undocumented migrants, no investigations have been opened into the bus companies’ facilitation of irregular migration.[9]

On the other side, even recently, organisations linked to the European Union (EU), are adopting initiatives to contribute to strengthening the capacities of Nigerien authorities in better managing irregular migration, such as the initiative adopted by the organization MIEUX in order to raise awareness among young Africans of the dangers of migrating irregularly.[10] The African Union (AU) is also adopting initiatives with the aim of thwarting irregular migration in Sub-Saharan Africa, such as the AU-Horn of Africa Initiative on Human Trafficking and Migrant Smuggling (AU-HoAI), a forum for participating countries from the Horn of Africa region to exchange information, share experiences and deliberate on the status and counter measure approaches to human trafficking and migrant smuggling in that region.[11] In this sense, the meeting held in Maseru (Lesotho) in December 2018, served to try to foster a dialogue between the AU-HoAI on one side and the South African Development Community (SADC) on the other.[12] According to an IOM Report of September 2018, no more than 8% of migrants from the Horn try to reach the SADC region, primarily South Africa, with 51% of these individuals moving, in contrast, from, but also within, the Horn of Africa, followed by about 36% whose movements are towards the Gulf Cooperation Council countries on the eastern route, through Djibouti, Somaliland and Puntland.[13]

In the Horn, the EU is also trying to assist through an inter-regional forum on migration known as the Khartoum Process. It is a platform for cooperation among the countries along the migration route between the Horn of Africa and Europe[14] and is funded by the EU Emergency Trust Fund for Africa (EUTF).[15] It is involved with several operations, with the regional project Better Migration Management (BMM) as one example. BMM’s objective is the improvement of the migration management in the region, whilst addressing the trafficking and smuggling of migrants within and from the Horn, through awareness, capacity building, policy harmonisations and protection.[16]

Trafficking and smuggling of persons remain huge plights in Africa. Several countries, such as Niger  and South Africa, are making efforts to provide domestic legal frameworks on this phenomenon in order to be able to more effectively fight the criminals. For instance, South Africa adopted the Prevention and Combating of Trafficking in Persons Act 7 of 2013[17] in the pursuit of this aim. In addition, many African countries are party to the Palermo Protocols,[18] which seeks to combat both the trafficking and the smuggling of persons.[19] Formal initiatives such the 2011 technical meeting on Enhancing Trafficking in Persons (TIPs) criminal investigation, prosecution and victim and witness protection among African and European countries within the framework of the Africa-EU Migration, Mobility and Employment Partnership (MME) did not achieve the desired results.[20] The Trafficking in Persons Report 2018, issued by the US Department of State highlights how the situation is of high concern in Africa detecting two special cases of Libya and Somalia. The report stresses that ‘information regarding trafficking in Somalia remains extremely difficult to obtain or verify. Trafficking routes within the country are particularly opaque’ (at 466).[21]

However, I am confident that with a major awareness of the problem, not only by government officials but, more importantly, by the potential victims of these crimes in Africa, the conditions of irregular migrants will constantly improve and I hope I will witness increasing numbers of situations in which African migrants will not die in the search of a better future.























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

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Citizen media and the freedom of expression

Author: Adebayo Okeowo
Advocacy Coordinator, Centre for Human Rights, University of Pretoria

If you have ever found yourself whipping out your phone to film or photograph police officers brutally beating up peaceful protesters, and you subsequently share that video or picture on social media, you have just contributed to citizen media. You are also someone who can be referred to as a citizen journalist. This is just one of the several scenarios in which civilian witnesses are – knowingly or unknowingly – helping to document evidence of human rights violations.

Citizen media encapsulates videos, pictures or audio produced by non-professional journalists, especially using their mobile phone as a tool. Citizen media started gaining prominence when an increasing number of civilians became equipped with smartphones and had access to social media.

This development has revolutionised the chain of information gathering and dissemination in that the power is now in the hands of each civilian to share content independent of the traditional media. It has also redefined the field of human rights documentation and investigation and has become a tool feared by authoritarian regimes.

The act of citizen journalism is an exercise of the right to freedom of expression which is protected under article 19 of the International Covenant on Civil and Political Rights (ICCPR). Article 19(2) specifically states that:

“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”

The inclusion of the words ‘other media’ makes it possible to have citizen media covered by this treaty provision, even if it was never foreseen by the drafters of the ICCPR. In 2011, while enunciating the provisions of article 19, the Human Rights Committee made a remarkable statement:

“States parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.”[1]

This general comment recognises both citizen media and social media and this is quite significant considering that both platforms did not exist back in 1966 when the ICCPR was adopted.

It is important to note that a key ingredient of article 19(2) will be the right to record. This should not be perceived as a new right but rather as an offshoot of the right to freedom of expression. It seems logical that one cannot be expected to have the right to disseminate or impart information if one cannot defend the right to document or record in the first place. The same way the right to life cannot be safeguarded without guaranteeing the right to quality, affordable and accessible healthcare is the same way the right to freedom of expression encapsulates the right to record. In their 2016 report to the UN Human Rights Council, special rapporteurs Maina Kiai and Christof Heyns affirmed that the right to record is derived from the right to seek and receive information which is protected under article 19(2) of the ICCPR. While there may be limitations on the right to record, as it is with most other rights, these limitations will usually exclude public servants, public property and other public spaces.

Protecting the right to record is critical to preserving the countless citizen videos and photographs depicting violations from around the world because they not only serve to inform, they are also useful pieces of evidence for subsequent criminal prosecution. Unfortunately, law enforcement officers have gained a reputation for intimidating, threatening or even assaulting civilian witnesses who record police malfeasance. Governments have also been known to hold a disdain for camera-wielding civilians because they expose their atrocities, and as a result countries like Spain have taken steps to ban the filming and photographing of police officers. In a law passed by the Spanish parliament aimed at gagging citizen media (The Citizens Security Law of 2015), individuals can be fined up to €30,000 for ‘disseminating photographs of police officers that are deemed to endanger them or their operations.’ Some have already been targeted using this law, including a woman who was fined €800 for posting on her facebook the picture she took of a police car parked in a spot reserved for persons with disability.

In the United States, the right to record has been litigated in court with a conclusion being reached that it is a right which falls within the ambit of 1st Amendment rights of the U.S. constitution, which covers rights such as free speech and free press. In the case of Simon Glik vs. John Cunniffe, the U.S. Court of Appeals held, inter-alia, that:

“Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs”… a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”

Also noteworthy in the court’s unanimous ruling is its statement rejecting the notion that a distinction needs to be drawn based on the fact that Simon Glik is not a reporter:

“…changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

As progressive as the appeals court proved to be in upholding the significance of civilian journalists and citizen media, one is reminded that this is not the situation in many countries in Africa where we constantly see government suppression using tactics such as surveillance, internet shut downs and arrests in order to intimidate any citizen who attempts to exercise their right to freedom of expression as guaranteed under international law. In 2018 for instance, Tanzania took it a step further and used legislation to impose restrictions on the dissemination of online content.

We must however continue to demand accountability and compliance from erring states until their laws and actions align with international standards.

[1] Human Rights Committee General Comment 34 (2011) para. 15.

About the Author:

Adebayo Okeowo is the Advocacy Coordinator at the Centre for Human Rights. This article is an excerpt from his PhD thesis focused on using citizen media to advance accountability for human rights violations.

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Kenyan High Court upholds human and constitutional rights to maternal dignity and reproductive healthcare

reprohealthlaw blog

Many thanks to Naitore Nyamu, an LL.M. student in the graduate program in Sexual and Reproductive Rights in Africa at the University of Pretoria’s Centre for Human Rights, for contributing a detailed abstract of this progressive Kenyan ruling for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts,online edition.

J O O (also known as J M) v Attorney General & 6 others [2018] Petition No 5 of 2014, (High Court of Kenya at Bungoma), March 22, 2018.  Case summary by Naitore Nyamu.   Court decision.

The case summary by Naitore Nyamu explains how, on 5 August, 2013, a low-income pregnant woman sought healthcare for delayed labour and suffered neglect, privations and expenses from an ill-funded county hospital, and humiliating personal abuse from its nurses.  She later filed a constitutional petition alleging various violations of her rights as stipulated in the Constitution of Kenya 2010…

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The impact of Internet shutdowns in Africa

Author: Tomiwa Ilori
LLD Candidate, Centre for Human Rights, University of Pretoria

In the past, authoritarianism like any other form of illegitimacy has always been paranoid of disruptions. The internet, since its decentralisation in the last century, has blurred boundary lines, projected a classless society and looked to upset apple carts in political spaces. It is typical that this form of “magic” that could redefine state power rattled many governments. African governments soon began to show overt signs of paranoia and not too long, Africa became the first continent to experience an internet shutdown in Egypt on 28 January 2011. Since then, several governments in Africa have constantly violated digital rights with the justification of national security which supposes that both are mutually exclusive.

It was not necessarily ominous that Egypt experienced the first full-scale internet shutdown in 2011. What the experience defined for was how the Arab Spring – an experiment in political disruption, was enabled by the radical nature of digital technologies and the possibilities of its re-occurrence. In times of unrest, information is a critical currency. The level at which information was shared, movements were organized and push back was staged would cause any governments especially those used to having their way with the masses, acute paranoia. Egypt like other countries in Northern Africa felt the impact of the Arab Spring but not without the instrumentality of the internet and networked devices which many African governments have now come to fear.

Human rights as opportunity cost for national security

There were 46 internet shutdowns between 2016 and 2018 in Africa according to Access Now – an organisation fighting for digital rights. In January this year, there were five internet shutdowns in Africa. Chad and Cameroon were ongoing from 2018 and currently at almost 300 days of internet shutdown each while Zimbabwe, Sudan and Democratic Republic of Congo (DRC) joined in 2019 as a result of either elections or protests. More than eighty percent of the internet shutdowns that have occurred in Africa have either been during massive public protests or general elections. The major justification given by the state for these shutdowns is that they are looking to protect national security at the expense of protection of digital rights.

While Chad gave reasons of protecting the sanctity of its general elections, Cameroon backed its shutdown orders with the need to quell dissent in Southern Cameroon where there is an ongoing humanitarian crisis. These reasons could be also traced to why the Zimbabwe and Sudan cut the internet as citizens protested against their governments’ policies. The DRC had also shut the internet during and after the elections in December 2018.

An underlying link between these shutdowns is how African governments are looking to cover up several human rights violations that occur during these disruptions and how the Internet Service Providers (ISPs) aid them. Usually, an order is given to ISPs by the government and without any push-back from them, an internet blackout follows. A result of this is the vicious force that has been used by the state to curtail the digital rights of protesters contrary to international and domestic laws. It is suspected that a major reason for internet shutdowns during elections is to provide an avenue for the cover up of large-scale electoral malpractices that goes on in most African countries which are all made bare after a shutdown has ceased or evidence of these violations are smuggled out for the world to see.

Internet shutdowns as technology-enabled authoritarianism

Most of the arguments made by governments are not justified as international law highlights how internet shutdowns are often evidence of arbitrary use of state power. Some of these instruments in international law include the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, the Johannesburg Principles on National Security, Freedom of Expression And Access to Information, the African Charter on Human and Peoples’ Rights (ACHPR), Declaration of Principles of Freedom of Expression in Africa and many others. These instruments require States to comply, for example in the instance of restricting right to freedom of expression, with the three-part test of ensuring that such limitation is provided by law, it must pursue a legitimate aim  and is necessary in a democratic society. Instances of internet shutdowns in Africa have shown that governments have refused to comply with this standard laid down in these instruments. The right to freedom of expression is not the only right violated, rights like access to information, freedom of association and assembly and right to privacy are violated together with other socioeconomic rights. If these rights are to be derogated from, the above principles must be followed, but this is usually ignored by governments that have shut down the internet.

In addition to these instruments, several reports and recommendations of the United Nations Human Rights Committee and that of the African Commission on Human and Peoples’ Rights have condemned internet shutdowns regardless of the reasons given by the governments. While many of these concerns are primarily of civil and political rights, the socioeconomic dimensions of internet shutdowns are not amplified enough.                                               

Economic costs of internet shutdowns in Africa

The digital economy is a trade system that relies majorly on internet networks and many countries have in the recent past benefited immensely from its emergence. While Africa’s digital economy is still growing, it is projected to contribute some US$300 billion to GDP by 2025. Africa currently has a teeming youth population of 226 million which is the highest in the world which also make up 60% of the unemployment figure on the continent. What this means is that Africa need to utilize all legitimate avenues and resources at innovating and growing to properly maximize and cater for its growing youth population. An internet shutdown does not only reduce such avenues but shuts the youths away from opportunities.

For example,it is estimated that Africa lost US$ 237 million to internet shutdowns between 2015 and 2017. So far in 2019, there is a cumulative economic impact of internet shutdowns already put at US$ 267.2 million which is a conservative estimation of the loss according to Net Blocks – an Internet shutdown calculator which uses several indicators including a country’s GDP. A daily calculation for each day Sudan shuts down the internet is put at US$7.5 million.

Vigilance as price for freedom

Many internet freedom activists and experts have called for more scrutiny of government activities especially as soon as elections approach owing to the reasons that have been discussed above. The most recent need for such call has been the news circulating in Nigeria on a likely internet shutdown across the country in the coming general elections to be held on February 19 and March 2, 2019. Aside the importance of elections in a country like Nigeria due to its external clout and internal challenges, should an internet shutdown occur in Nigeria, it would cost an estimated US$ 134.2 million (N48.9 billion) loss daily according to Net Bloc It would also be great if the African Cyber-security and Personal Data Convention could be cited together with the ICCPR as instrument that could be referred to by the Court.

Currently, there is no express law that allows the Nigerian government to shutdown the internet. While there could be landmines in laws like Sections 24 and 38 of the Cyber-crimes Act of 2015 and secondary laws like the “Guidelines for the Provision of Internet Serviceby the Nigerian Communication Commission, the Nigerian government will still have a problem justifying an internet shutdown during the coming elections.

Even though the Nigerian government has denied such move, the government of Cameroon made the same promise not to shut down the internet in September 2017 but went ahead to gut the internet.

African countries face many challenges as they look to develop their democratic institutions. In solving these challenges, countries in Africa need to harness the fast pace of technologies through rights-respecting policies. . African governments must look inwards on the promises of the internet and how it advances democracy and not yield to the paranoia of its disruption. There is also need for a multi-stakeholder front in combating internet shutdowns on the continent one in which ISPs and the civil society play a key role. For example, such multi-stakeholder effort is seen in the Digital Rights and Freedom bill already awaiting the President’s assent. The bill caters for the protection of digital rights of every Nigeria and can be replicated on a larger scale across the continent. For Africa to work it does not need to be cut off from the world, it needs to stay connected to it.

About the Author:

Tomiwa Ilori is a currently an LLD Candidate at the Centre for Human Rights, University of Pretoria. His research focuses on the intersections of human rights, public policy and new technologies.

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Africa: (De)Criminalizing Adolescent Sex: Rights and Age of Consent Laws

reprohealthlaw blog

Congratulations to Godfrey Dalitso Kangaude, a doctoral candidate at the University of Pretoria, and Prof. Ann Skelton, Director of the Centre for Child Law at the same university, for publishing the following article in an open access journal.  We are pleased to circulate an expanded abstract below:

Godfrey Dalitso Kangaude and Ann Skelton, (De)Criminalizing Adolescent Sex: A Rights-Based Assessment of Age of Consent Laws in Eastern and Southern Africa,” SAGE Open (Oct-Dec 2018): 1 –12.   Article online.

Abstract:   Age of consent criminal laws imposed on African states during colonialism were inherently patriarchal and gender-stereotypic, and continue to influence country approaches toward adolescent consensual sexual conduct. There are two major policy positions: a punitive and a nonpunitive approach. Most countries adopt the punitive approach. Mostly, legislation does not explicitly criminalize consensual sexual conduct between adolescents, and this leaves a gray area to be filled in by social and…

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Bringing the African human rights system into classrooms: Some lessons drawn from a lecture delivered at the Université Libre des Pays des Grands Lacs (DR Congo)

Author: Dr Kihangi Bindu Kennedy
Professor of international law at the Université Libre des Pays des Grands Lacs


Author: Trésor Makunya
Doctoral candidate & Academic Associate, Centre for Human Rights, University of Pretoria

Ever since the establishment of the Organisation of African Unity (1963), and later, the African Union (2002), their efforts to maintain peace and stability, uphold the constitutional order and ensure the respect and the promotion of fundamental rights and freedoms in the Democratic Republic of Congo (DRC)[1] have yielded unsatisfactory outcomes. Although major reasons for such a debacle have been underscored or echoed by prominent scholarship,[2] bringing these debates into law classrooms when training ‘society-conscious lawyers’ is one of the ways to contribute to the ongoing debate over the relevance of the African Union (AU) to Africans.[3] In this article, we highlights some lessons learnt from the discussions that followed a lecture we delivered at the Université Libre des Pays des Grands Lacs (ULPGL-Goma) on Wednesday 16 January 2019 to undergraduate law students. The lecture provided theoretical knowledge, analytical and practical skills on the AU and its human rights system which tend to be overlooked, the focus usually placed on the United Nations (UN) and the European human rights systems.

The first lesson drawn from the lecture was that DRC as a case study offers the opportunity to assess and reaffirm the ability of the AU to respond to both military and security threats and the crisis of democratic legitimacy of institutions. Many students thought, in fact, that the UN has been the unique intergovernmental organisation that had sufficiently contributed to preserve the territorial integrity of DRC, for example, when the Katanga province seceded after independence (1960-1963).[4] Furthermore, during the continued intractable conflicts that started in 1990s, the expectation of Congolese in general was that the establishment of the United Nations Mission in the Democratic Republic of Congo (MONUC)[5] that was renamed United Nations Mission for Stabilization in the Democratic Republic of Congo (MONUSCO),[6] would contribute to bring peace and stability within the country. Unfortunately, the persistence of armed groups across some provinces and the continuing killings of civilian population in Beni is evidence of the serious limitations of the UN as a whole in bringing peace and stability in a war-torn region.

Overlooking any role played by the AU in the establishment of peace and security, students also credit the UN for its successful involvement in the resolution of armed conflicts that followed the demise of Mobutu regime in 1997[7] while the AU had, alongside the UN, openly and sometimes in the shadow, played significant role during the Inter-Congolese Dialogue,[8] governmental negotiations with the National Congress for the Defense of the People (CNDP) rebels and most importantly, the signing of the Peace, Security and Cooperation Framework for DRC and the region in Addis Ababa in 2013.  Even though students should not be entirely blamed for this, partly because they are the “victims” of a curriculum that prioritises the teaching of the UN and some other western intergovernmental organisations considered as models/successes of regional integration and cooperation, the remarkable presence of the AU in the day-to-day DRC politics and crises makes it a perfect study target.[9] What should also be part of continuous discussions and reflections are the support that the AU provided during the 2006 and 2011 presidential elections through its long-term and short-term observers and its mediation of the political and constitutional crisis, one of which led to the formation of a government of national unity in 2016.[10] Although it is beyond the scope of this article to appraise the efficacy of AU contributions to DRC, it is submitted that allowing/inciting students to ponder over such themes through academic works might be one of the ways towards the revitalisation of the continental organisation. The quest for “African solutions to African problems” and the “decolonization of the African academic curriculum” should consequently, be brought into classrooms and the younger generation of Africans should be given the opportunity to contribute to political and security debates, which should be added human rights concerns.

The second lesson drawn from the lecture was the fact that the African human rights system has thus far acquired a robust normative and institutional framework which, if properly understood by the emerging generation of Congolese lawyers, will enhance the protection of fundamental rights in the DRC. Though students might criticise the country’s level of compliance with recommendations from the African Commission on Human and Peoples’ Rights (African Commission), its relevance in setting standards remains unquestionable. One would remember the Commission’s landmark decision in matters of self-determination as it relates to DRC as an illustration. The findings by the African Commission in the Katangese Peoples’ Congress v. Zaire case, for instance, should be popularised in our classrooms. This may particularly help students understand whether since 1995, conditions on the ground have evolved or the extent to which the Commission’s findings had contributed to deter such claims. From this case study, one could also examine human rights issues that arise from the Anglophone Cameroon crises and secession claims.[11]

Coming back to the situation of DRC and building on the African Commission’s findings and human rights standards, exposing law students to the African human rights system may contribute to enhancing the quality and the quantity of DRC state reports submitted to human rights monitoring bodies and probably enthusiasm towards ratifying some other human rights instruments ensuring greater human rights protection in the country. This may be enhanced by the fact that government institutions may benefit from the expertise of graduates who are exposed to the normative and institutional frameworks of the system. This article does not suggest that the study of the European or Inter-American human rights systems ought not form part of the human rights curriculum in African universities. It rather emphasises the relevance of the continental mechanisms, which are directly involved in setting standards that apply to the country on the basis of peoples’ realities, African philosophy of existence[12] and African fundamental values. [13] It is our hope that bringing the African human rights system into our classrooms would be fruitful and will foster critical discussions on human rights norms and standards for the well-being of all Africans.


[1]               Article 3(b); (f); (g); (h)of the African Union Constitutive Act

[2]               Including the fact that African states have opposing interests over the exploitation of natural resources in the country or the lack of adequate financial and human resources to support peace operations in the country.

[3]               On some of these debates, L Louw-Vaudran ‘Keeping the AU relevant to Africa’s citizens’ 25 May 2018 in Daily Maverick <> (last accessed 17 January 2019).

[4]               The secession had both exogenous and endogenous roots. See D van Reybrouck Congo: Une histoire (2014) 363-424; M Larmer & E Kennes ‘Rethinking the Katangese secession’ < > (last accessed 18 January 2019).

[5]               UN Security Council Resolution 1234, 9 April 1999

[6]               UN Security Council Resolution 1925, 28 May 2010

[7]               HP Pokam ‘L’ONU dans le processus de preservation de l’indépendance de la République Démocratique du Congo’ in Pole Institute Repenser l’indépendance : la RD Congo 50 ans plus tard (2010) 133-161.

[8]               Inter-Congolese Political Negotiations, The Final Act, April, 2002.

[9]               On the legal consequence of the recent AU Chairperson declaration on 2018 DRC general elections, see EB Bope & T Makunya ‘Les conséquences juridiques de la déclaration de l’Union africaine sur les élections en République démocratique du Congo : un simple avis ou une mesure contraignante’ 19 January 2019 Club des Amis du Droit <> (accessed 20 January 2019).

[10]             T Kibangula ‘RDC: Comment Kabila a dispersé l’opposition en 3 temps, 4 mouvements’ 12 May 2017 in Jeune Afrique <; (last accessed 18 January 2019) ; Radio Okapi ‘Controverse autour de la publication du gouvernement Badibanga’ 20 December 2016 in Radio Okapi <> (last accessed 18 January 2019).

[11]             See  (2009) AHRLR 9 (ACHPR 2009) (Southern Cameroon case) for the African Commission on Human and Peoples’ Rights positions on the matter.

[12]             A Evelyn The African Commission on Human and Peoples’ Rights : Practice and procedures (1996) 159.

[13]             KK Bindu ‘Environmental and developmental rights in the Southern African Development Community with specific reference to the Democratic Republic of Congo and the Republic of South Africa’ (2010) Unpublished Doctoral Thesis, University of South Africa 95-96.

About the Authors:
Dr Kihangi Bindu Kennedy is Professor of International Law at the Université Libre des Pays des Grands Lacs and Director of the Research Centre on Democracy and Development in Africa. His areas of research cover international human rights law in Africa, public international law, constitutionalism and international criminal law.

Trésor Makunya is a doctoral candidate and Academic Associate at the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa. His doctoral thesis is titled Legal traditions and constitutional interpretations of bills of rights in Africa. His areas of research cover international human rights law in Africa, comparative constitutional law and democratisation in Africa.

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The impact of state surveillance and censorship of sexuality on the lives of LGB Ethiopians living in Addis Ababa

Author: Selamawit Tsegaye Lulseged
African Union Human Rights Observers Mission in Burundi (formerly)

Dialogue regarding same-sex sexual act and eroticism is a recent phenomenon in Ethiopia. As is true for most African countries, in Ethiopia, there is a strong heterosexual culture that bases its legitimacy on the hegemony of masculinity. The social construction is based on the values of family that depends on traditional gender role and religious dogmas. In many discourses, lesbian, gay and bisexual (LGB) individuals are mentioned in relation to pedophilia, mental sickness and people who chose deviant sexual behavior. Thus, same-sex sexuality is not only something that is pushed under the rug, but also subjected to state scrutiny and embargo.

In 2008 a number of ‘homosexuals’ signed a petition to appeal to the Prime Minister, at the time, for equal rights.  This, however, informed the public the wide existence of individuals who identified themselves as gay, lesbian and bisexual, leading to the strong resistance of religious leaders demanding for a constitutional ban of the act.

The issue of sexual minority rights, within the discourse of human rights, is perhaps one of the major topics the international community has failed to come into a consensus on. Among the reasons for the resistance is the argument that the International Bill of Rights, that are considered to be the footprint of human rights principles do not mention sexual orientation as one of the grounds for non-discrimination, which leaves the door open for States to address the issue based on the particularities of cultural norms of the society.

In contrast to this view, United Nations consensus documents have outlined explicitly that both national, regional, cultural and religious values should not be invoked in a dismissal of fundamental human rights principles.  Thus, the discriminatory laws against sexually marginalised people contradict international human rights instruments.

The 1995 Federal Democratic and Republic of Ethiopia (FDRE) Constitution does not make any reference to homosexuality. However, the 2005 revised Criminal Code, which followed the 1957 Penal Code, punishes same-sex sexual acts. The 1957 Penal Code, under article 600 prohibited same-sex sexual practices on the ground of public morality. Following this, the 2005 Criminal Code of Ethiopia under title IV covering crimes against morals and family, and in particular article 629 punishes  ‘homosexual act or any other indecent activity’ with a term of imprisonment of not less than one year.  As per article 630, the sentence may be increased to ten years when the person is making a profession out of such activity or exploits a dependency or relationship in order to exercise influence over the other person to submit to the act. Under the Criminal Code, the criminalisation is over the homosexual act, which is religiously referred to as ‘sodomy’, but not specifically the status of being identified as one. Here, it is clear that the provisions are inspired by religious dogmas that are integrated into the social norms, however, it fosters a subtle but profound query on how the claimed offense is proved in a court of law.

The FDRE Constitution under articles 10 (1) and 25 articulates that human rights are ‘natural, inviolable and inalienable rights’ and are equally guaranteed to all people irrespective of race, nation, nationality or any other status. However, it could be argued that the rights that are guaranteed under chapter three of the FDRE Constitution are subject to limitation and in case of same-sex sexuality, this limitation is articulated through the criminalisation of same-sex conduct under the Criminal Code of Ethiopia. The argument also extends that this is a legitimate legal provision aimed at the protection of the public peace, morals, and national security. Hence, it is argued that the limitation of the rights in the case of supposed ‘deviant’ sexual orientation of an individual does not contradict the Constitution’s aim of providing protection for everyone.

The law is evidently inspired by the conviction of the society intended at preserving the hetero-normative traditional values of family, which is presumed to be between a man and a woman. However, it is an undeniable fact that the outlawing of what is considered to be an innate proclivity to human identity, such as sexual desire between consenting adults patently contradicts the notion of human rights, which we all possess by virtue of being human beings. Criminalisation of same-sex intimacy plays a huge role in the subjugation of LGB individuals in the country.

Most of the informants in the study conducted on the life and experience of LGB Ethiopians living in Addis Ababa, in 2014 using a qualitative approach by utilising key informant interviews and focus group discussions, emphasised that the criminalisation of the act is a driving force for violence, intolerance, and stigma in schools, prisons, and workplaces. The study aimed at exploring the living situation of those who identify themselves as gay, lesbian and bisexual in Addis Ababa, the multifaceted challenges these communities face and its human rights implication.

The study further illustrates that the dire situation in the country, which reinforced by the criminalisation of the act, subsequently leads individuals who identify themselves as gay, lesbian and bisexual to live in fear, shame, and isolation with no protection of the law. Additionally, the state censorship and negation of the community’s existence exposes LGB individuals to a number of social problems, endemic sexually transmitted diseases being the major one.

The International Covenant on Civil and Political Rights (ICCPR) under article 2 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) under article 2 stresses the importance of equality and non-discrimination on any ground.  Furthermore, article 26 of the ICCPR reinforces article 2 by setting out the principle of equality, namely that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”

Similarly, article 2 and 3 (1) & (2) of the African Charter on Human and Peoples Rights highlight that individuals are entitled to the rights and freedoms ensured in the Charter without distinction of any kind.  Article 25 of the FDRE Constitution guarantees the right to equality and non-discrimination as well. Non-discrimination and equal protection are tools to protect individuals from a direct or indirect abuse and life-threatening situations. However, the criminalisation of same-sex sexual act is directly discriminatory in itself as LGB individuals in Addis Ababa live under constant intimidation of being exposed and prosecuted. And the key question here is whether human rights treaties Ethiopia is a signatory to can be invoked to challenge the law that criminalises individuals on the ground of their sexual identity.

About the Author:
Selamawit Tsegaye Lulseged holds LLB and Master’s in Human Rights from Addis Ababa University. She recently worked with African Union Human Rights Observers Mission in Burundi. Her research interest areas include interdisciplinary perspectives of human rights, sexual and reproductive rights, gender and sexuality and human rights in Africa.

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