Is southern Africa entering its own ‘War on Terror’?

Author: Marko Svicevic
Post-doctoral research fellow, South African Research Chair in International Law (SARCIL), University of Johannesburg

What the proposed SADC deployment in Mozambique means for the sub-region

Leaders of the Southern African Development Community (SADC) met again on 23 June 2021 in Maputo to discuss the expanding insurgency in northern Mozambique. It’s the first time the Summit has met since a technical assessment to Mozambique recommended a 3000 strong military deployment. In a communique issued following the meeting, the SADC Summit – its highest decision-making body – endorsed the recommendations made by the technical assessment and approved a mandate for the SADC Standby Force Mission to Mozambique.

From domestic grievances to terrorist acts and foreign aggression

Now approaching its fourth year, the conflict in Mozambique has raged across Cabo Delgado, its northern most province neighboring Tanzania. Initially, the Mozambican government seemed to brush off the violence as local criminality. In the last year and a half however, it has consistently re-framed this narrative as one of ‘foreign aggression.’ Both arguments have merit; there is ample research to suggest the drivers of the conflict are placed with a sense of neglect by the government together with high levels of poverty and unemployment. At the same time, the conflict is being internationalised with some evidence of foreign fighters joining the ‘insurgency’, which has since become known as Ansar al-Sunna. Further yet, the group’s pledge of allegiance to the Islamic State (IS) in 2019 and the US designation of ‘ISIS-Mozambique’ as Specially Designated Global Terrorists may be playing into Maputo’s newfound narrative: that the conflict is not rooted in domestic issues but constitutes an act of aggression against Mozambique’s sovereignty.

Mozambique’s position on the conflict was bound to make its way to SADC. Therefore, Mozambique’s narrative is now likely SADC’s narrative; if it has any hopes for cooperating with the country against Ansar al-Sunna. Prior to its more active role, the block seems to in part have been paralysed by two dominant issues. The first was Mozambique’s seeming reluctance to accept regional military support. The second is whether it can at all provide the required support Mozambique needs to counter the growing threat in Cabo Delgado. For its part, SADC has firmly positioned the conflict as a situation of terrorism. Its communiques have consistently referred to attacks and acts of sabotage perpetrated by ‘terrorists’, ‘acts of terrorism’ and more recently, ‘violent extremism.’

Although the more robust details of the deployment are yet to be made known, what is clear is that if SADC is to deploy troops to Cabo Delgado, it will need Mozambique’s cooperation. Consequently, the proposed deployment will most likely be considered anti-terrorism in nature. Even if one accepts this narrative and despite numerous other factors to the conflict, the SADC of today has never before engaged with such a situation. That’s not to say that Southern African states have never dealt with conflict such as terrorism before; South Africa’s apartheid regime having waged its own extensive terrorism tactics against states in the sub-region. It is in part because of the apartheid regime’s existence that SADC’s predecessor, the Southern African Development Coordination Conference was first established. That was however five decades ago, with aims of regional integration, national independence and reducing neighboring states’ dependence on apartheid South Africa.

Historical SADC interventions

Since its establishment, SADC has only ever undertaken three military interventions and two of these occurred some two decades ago. Its intervention in the Democratic Republic of the Congo (DRC) in 1998 was predominantly an effort by Angola, Namibia and Zimbabwe to assist the DRC against rebel forces from Rwanda and Uganda. Since then, three SADC states are involved in the United Nations Stabilisation Mission in the DRC. Its intervention later that year in Lesotho was a result of a coup, in which South Africa and Botswana intervened. The bloc only intervened again in 2017, for a second time in Lesotho following serious political instability. Although this most recent intervention was able to stabilise the situation, its 1998 intervention in Lesotho was considered less than successful.

An expanding and intensifying conflict

Whether it is up to tackle the latest risk to regional peace and security remains uncertain. What is certain however is that the threat to the region is very real and should not be underestimated. The Armed Conflict Location and Event Data Project estimates some 807 attacks have taken place in Cabo Delgado, with more than 2600 deaths; 1300 of those being civilians. The UN High Commissioner for Refugees has in addition recently warned of the ongoing humanitarian crisis in the province, indicating that one million people could soon be displaced by the conflict. That number currently stands at 700 000.

Just as alarming is the fact that in the last year alone, the conflict has significantly intensified. The 27th report of the Analytical Support and Sanctions Monitoring Team of the UN Committee on ISIS, al-Qaeda and its affiliates indicated that Ansar al-Sunna ‘seemed to have acquired sophisticated operational capabilities and pursued a strategic intent to seize more locations and expand operations to other districts and provinces.’ Not to mention that the group has already conducted at least one cross border offensive in Tanzania in addition to a number of attacks against offshore islands in the Quirimbas Archipelago.

The threat posed by the conflict to both Mozambique and the sub-region is therefore undeniable. Any SADC military response, even one branded as ‘counterterrorist’ in nature, will have to take into account the multiple factors behind the conflict. If it does not, military action may not only fail to halt the conflict but exacerbate it. In addition to any efforts that may be directed against Ansar al-Sunna, SADC will also need to ensure a robust capability to assist the local populations most affected by the conflict. Both these aspects will no doubt entail adequate resources and serious funding– something that SADC is not necessarily well equipped with. In addition, the Covid-19 pandemic continues to take its own toll on the region; SADC member states have spent tremendous resources in combatting its effects. South Africa, for example, deployed 73 180 members of its defence force to enforce lockdown regulations to combat the pandemic last year at a cost of R4.59 billion. In addition, the country’s continued fiscal challenges have seen proposed budget cuts to its defence sector.

Threat of retaliatory terrorism

Beyond the required resources and financial commitments, there remains the acute threat that any SADC military involvement in Mozambique may result in or inspire terrorist attacks within contributing member states. In July last year, following discussions between South Africa and Mozambique on possible assistance to combat the conflict, the IS central media office, Al Naba, openly threatened retaliatory attacks on South African territory should it become involved in the conflict. A question for debate is whether South Africa or other SADC members have the required capacity to identify and counter potential terrorist acts on domestic soil. Weakened State institutions especially those of domestic policing authorities and intelligence agencies, widespread illicit arms trades, and porous borders suggest neither South Africa nor other neighboring states currently possess the capabilities to effectively counter domestic threats of terrorism.

Considering the history of SADC’s military interventions combined with the financial and logistical resources required, as well as threats associated with any potential deployment, it comes as no surprise that experts and analysts alike have cautioned against a hasty military response (see here, here and here). Whether or not SADC’s actions may be perceived as its own war on terror, any potential deployment may severely complicate the ongoing crisis and open further avenues of conflict. At the same time, SADC can no longer remain a spectator to a situation which threatens regional peace and security and it has the responsibility to take appropriate and measured actions. Military action, however, should always remain a last resort in any response to conflict situations.

 

About the Author:

Marko Svicevic is a post-doctoral research fellow at the South African Research Chair in International Law (SARCIL), University of Johannesburg.

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Uganda’s new Sexual Offences Act fails to address the toxic culture of victim blaming

Author: Elizabeth Kemigisha
FIDA Uganda

On 3 May 2021, Uganda’s Parliament passed the Sexual Offences Act, 2021. This Act – which has been 21 years in the making – can be applauded for increasing protection and redress to survivors of sex-related crimes. The majority of MPs supported the Bill and its core purpose of combating sexual violence and consolidating laws of sexual offences, providing for punishment of perpetrators of sexual offenses, providing for procedural and evidential requirements during trial of sexual offences and other related matters. Many of the MPs agreed that if passed the Bill would fill the gaps that exist in the current laws making the legal framework more adequate and aligned with the international human rights standards that Uganda ascribes to. However, the final version of the Bill which was passed falls short of these international standards for the protection of human rights – and the rights of women in particular – on various fronts, including in its limited definition of rape, its failure to recognise marital rape and the criminalisation of false sexual accusations.

A particular disappointment of the Act is the fact that the clause of the Bill which stated that consent can be withdrawn before or during sexual activities has not been included in the final Act. The MPs who debated the Sexual Offences Bill did not only vote against including the provision for withdrawal of consent, but expressed their arguments with laughter and mockery. Some of the vitriol thrown around the floor of Parliament included: “Consent is unclear, how shall we measure it?”;“Women say no when they mean yes”; “You’ve already invested in a woman and you get to the hotel and she says she cannot handle?” and “Some women change their minds after gifts, there should be a punishment for such women who extort money from men for sex.”

Ugandan Parliamentarians showed themselves unconcerned about the crisis of sexual and gender-based violence (SGBV) and the devastating culture of impunity of perpetrators of sexual crimes in the country. Instead, they had more concern about the odd chance that a person – usually a man – could be falsely accused of rape or that the boundaries of sexual assault can be framed in a way that does not perpetuate power imbalances between men and women.

In 2020 alone, 16 144 sex related crimes were reported to police victimising 15 952 females. These figures show that women and girls are by far the most vulnerable to sexual violence, while not even taking into account the many cases which go unreported. There are also low levels of conviction in cases of sexual crimes, which adds to the reluctance of victims to report the crimes and pursue prosecution. In order to address this situation, Ugandan women’s rights activists have advocated for the strengthening of legal provisions criminalising sexual violence through the adoption of a Sexual Offences Act. A key provision in the 2019 Sexual Offences Bill in this regard was the clause which provided that consent can be withdrawn at any time before or during sexual activity. Such a provision would place a much bigger burden on persons engaging in sex to ensure that their partners have consented and continue to consent to every part of the sexual act. The presumption expressed by the MPs – that a woman who has accepted a dinner invitation or a gift has automatically said yes to sex in whatever way or form – is a grave denial of human dignity and agency of women. The comments also do not take into account the wide-ranging circumstances and reasons why consent may be withdrawn: suppose a woman had agreed to have sex with a particular man, and she had assumed that he will use a condom, but somewhere along the line he expresses that he hates condoms and never uses them. Is this woman now prevented from withdrawing her consent? And even in situations where there is no particular reason for the woman to change her mind about consent, except that that is her decision, the law should protect her right to bodily integrity and self-autonomy at all times.

The statements and decision by the MPs to reject the consent clause enforces the culture of victim blaming that is already pervasive in Uganda. This culture was brought to the fore in 2020 when a senior police officer wrote an article which was published in the New Vision newspaper in which he blamed women for being victims of sexual violence. In this article the senior police officer likens men committing acts of sexual abuse to kite birds eating chickens, as is their natural behavior and refers to men being teased and tortured by women’s choice of attire and “attacked” by women who confront men for staring at them. With this in mind, it is disappointing that the MPs did not take up their mantels as forerunners in transforming harmful societal attitudes and beliefs.

It needs to be made clear that consent can be withdrawn at any point in interactions leading up to, as well as during sexual intercourse. It is only when we begin to appreciate and deliberately legislate on this issue, that more rapes will be reported to the authorities, and more rapists will actually be convicted of this crime. The Sexual Offences Act is a lost opportunity to strongly legislate on consent as a critical part of any sexual activity. To make matters worse, a provision was also included in the Act which criminalises false accusations of crimes of a sexual nature, which is enough to discourage the few brave women who would otherwise have been willing to seek justice. The Act as it stands perpetuates a toxic culture of victim blaming and impunity in Uganda.

About the Author:

Elizabeth is a feminist lawyer with interest and expertise in human rights law, feminist theory and project management. She holds an LLB from Makerere University and has a keen interest in social, economic and political inclusion of young people and women in development of different societies. She currently works with FIDA Uganda, as an advocacy officer and coordinator of the women economic justice programme. Her work focuses on addressing barriers to women’s involvement in economic activities; using feminist tools of analysis to examine and understand systemic injustices and their manifestations and interrogating the intersection of economic exploitation and gender oppression.

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The promises and limitations of law in guaranteeing freedom in Africa: The right to a Revolution

Author: Eduardo Kapapelo
Centre for Human Rights, University of Pretoria

One of the main objectives of international and regional law is to maintain peace and security. It has been reasoned that where there is peace and security, humanity stands a better chance to protect individual rights and freedoms. On account of the importance of peace and security at national, regional and international level, States agreed to criminalize those who engage in violent conduct or seek to change governments through the use of violent force. Yet, is it a coincidence that in many dictatorial governments with atrocious human rights records, opposition leaders are often charged of attempting to unconstitutionally change the government of the day? This contribution seeks to discuss the right to a just-revolution and how existing laws promise freedoms but is limited in delivery when it comes to dictatorial governments. In this contribution, a just-revolution is defined as a revolution to overthrow a government of the day whose rule is characterised by gross human rights violations or international crimes such as crimes against humanity and genocide. Do citizens have a right to a just-revolution?

The Lome Declaration against unconstitutional changes of government seek to preserve democratic order and constitutional change of government through free and fair elections. In practice, it never asks whether governments are democratic, and retain power through legitimate means. This insulates authoritarian incumbents against legitimate, popular revolt. In addition, many African countries have followed through and criminalized unconstitutional change of governments. It could be said that the promises of these laws are to maintain peace and security so that individual rights and freedoms can be better protected.

However, there are limitations to this promise of the law. The very nature of the international and regional systems, despite attempting to enforce normative values of peace and security, is to assume that governments in charge of States are always willing to act in the best interest of the people. It is also premised on the assumption that once elected, leaders will continue to execute their mandate in terms of their election promises. It is also to make an assumption that the elections that ushered a particular leader into power was free and fair in the first place.

In this regard, one can observe that international and regional law in its attempt to preserve peace and security at all costs tend to negate that the main source of oppression and suppression of freedoms can be the government of the day. The coldness of the law – so to say, is that it is not only stagnant but to a large degree allows the violence of States to continue.  It allows for the violence of State institutions to continue to oppress, dominate and in extreme cases kill its citizens. In countries like Angola, Togo, Uganda and Kenya with already questionable human rights records, violence against citizens has been justified by the need to curb the ongoing COVID-19 pandemic.

As a result, it is critical to discuss the phenomenon and need for just-revolutions in Africa because in recent years, peaceful and undisputed political transitions on the continent have been very few. It is also important to understand the nature of political violence in Africa and the quest for freedom before conceptualizing just-revolutions as a human right. Conflict and violence that characterize political contestation in Africa have been over-simplified as the nature of African politics, or rather the lack of political systems and institutions which allow for smooth transfer of powers. Nevertheless, perhaps a more nuanced discussion is required here.

The idea that political constitutions are grounded on a social contract amongst the members of society is both a recurring and accepted feature of modern political thought. It is the idea that individuals give up complete autonomy in order to live together within the confines of a State while abiding by certain rules which would protect not only individuals against each other but also individuals from the State and its institutions.

Yet, within the African context the social contract is demarcated not necessarily on this give and take paradigm, but tends to lean more towards the idea of State domination and control over its citizens. Such domination and control is one enforced by post-independence political parties wherein they have re-interpreted the social contract not one based on freedom, justice and the equality of the individual but rather one in which the hierarchical nature of the African State creates limits on individual rights and freedoms.

Violence is increasing on the continent. Africa is the sole continent in which political violence arose relative to 2020. In Ethiopia and Uganda governments have focused more on safeguarding their regimes through violence – thereby forcing people further to the fringes of desperation.  By looking at the construct of the social contract, domination continues to emerge and by doing so is then arguably taken as the foundation upon which the post-colonial African State was built, and as a result the basis under which people must adapt and survive. So one might ask, where are the institutions of the State?

While State ‘institutions’ are present, to a large extent they serve only the purpose of maintaining the domination of political elites. States like Angola, Uganda and Egypt have gone as far as creating democratic façades through the creation of Parallel institutions.  Life in this state of nature continues to be mired by this domination and the constant struggle for survival against the indignities of the State through its institutions and the political party which holds power.

As a result, one of the main reasons for people to support or engage in a just-revolution is the oppression people of the people by the government of the day to an extent that they have nothing to lose. Events in Angola, Egypt and Zimbabwe, Mali, Uganda and others are a testament of the kind of re-awakening of Africa’s people. Their demands for better standards of living seem to highlight a change and a contestation of the command structure which characterizes the so called atypical African State.

The dissatisfaction in those countries and others on the continent has been seen in multiple forms, but perhaps more clearly through the denial of rights, high levels of unemployment, corruption, and the State centralisation. This dissatisfaction also seems to be causing a re-awakening, a statement that oppressive and brutal regimes will no longer be tolerated, that individual rights are not only important, but their promotion and protection must not only be at the center of government policy making but the raison de’etre of the State.

The late Professor Christof Heyns, a former Dean of Law at the University of Pretoria, UN Special Rapporteur on extrajudicial, summary or arbitrary executions and member of the UN Human Rights Committee who coined the struggle approach to human rights argued that one way of looking at human rights is to see it as the ‘flipside of the coin of legitimate resistance’. He added that behind every ‘human rights claim there is the possibility, if there are no reasonable alternatives, of resorting to self-help, and conversely, that for self-help to be legitimate, it must be the only option to protect human rights.’

Indeed, and while it is important to note that protests which can be regarded as self-help have in the past brought down violent and brutal governments such as those in Algeria, Sudan and even the so called butcher of the Balkans, Slobodan Milosevic, it must also be understood that such protests have not necessarily changed the political system of those countries.

The African Charter is revolutionary as it seems to create avenues for self-help. It not only confers rights to individuals, but also attributes duties to such individuals – essentially establishing that individuals have the duty to not only take direct action in safeguarding those rights but creating the conditions for which such rights are respected, safeguarded and within the African context never again abused. Such attribution of rights then implies that in the absence of such rights – or rather in the event in which individual rights are not protected and or guaranteed by the State, individuals have both the duty and responsibility to take action to ensure that such rights are restored and eventually protected.

While it is important to note that violence is certainly not a desired outcome, nor should it ever be, the polar opposite is also true – State violence cannot in any way be tolerated. It is simply unacceptable and hypocritical that international law continues to simply point a disapproving finger at States that use extreme violence against their people while those who are the recipients of such violence are expected to use non-violence resistance as their only form of recourse.

About the Author:

Dr. Eduardo Kapapelo is a Programme Manager at the Centre for Human Rights and researcher in the field of political sciences, international law and human rights. He is working towards better understanding how governments can design institutions and mechanism for violence prevention. His expertise includes project design and management, policy analysis and implementation. He is currently researching new and emerging technologies such as artificial intelligence, autonomous weapons systems and their relationship to human rights. Specific fields of interest include policy analysis, human rights and structured vulnerabilities and post conflict justice and reconciliation.

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African countries need to ensure that the health of refugees is protected during the COVID-19 pandemic

Author: Omotunde Enigbokan
Centre for Human Rights, University of Pretoria

The protection of the right to health for refugees in Africa requires urgent attention, especially in this period when evidence shows that new variants of the coronavirus are spreading. As we celebrate World Refugee Day on 20 June 2021, and against the backdrop of the UNHCR’s theme ‘Together we heal, learn and shine’, it is pertinent that we interrogate how African countries are ensuring that the right to health for refugees, is guaranteed. This is particularly important with the development of COVID-19 vaccines worldwide, and in the onset of the administration of these vaccines in Africa.

Challenges faced by refugees in Africa

Existing research underlines the need for heightening refugees’ access to health facilities.  Research further shows that refugees have been particularly hard hit by the COVID-19 pandemic in Africa. This situation is further compounded by the fact that many refugees live in overpopulated camps or reception centres, where they lack adequate access to health services, clean water and sanitation. This makes them more vulnerable to contracting COVID-19.    

Prior to the pandemic, xenophobia in health facilities and lack of legal status were revealed as the most significant barriers to refugees accessing health care in South Africa. These barriers have been exacerbated by the pandemic, thus heightening the risk of poor health amongst refugees. Refugees, particularly women, are still faced with the challenge of accessing healthcare services such as COVID-19 testing. This has led to the fear of approaching hospitals for testing, and has affected their emotional well-being and mental health.

The President of the Republic of South Africa Cyril Ramaphosa delivered a speech on 1 February 2021 where he assured that the vaccine roll-out plan would include migrants. Prior to the President’s speech, the Minister of Health had in several speeches on the vaccine roll-out, only made reference to South African citizens.

Till date, the Department of Health has failed to provide any direction about vaccination arrangements for non-citizens. This has led to various responses from civil society orgainsations demanding that the Department of Health provides clarifications.

In Kenya and Uganda, studies show that many refugees do not have access to tailored, trustworthy information about COVID-19. This has led to constant exposure to rumours, harmful and incorrect information which can have severe effects on the continued spread of the virus. The impact of the first wave of the pandemic had a devastating effect on the lives of refugees in Uganda. Since the lock down last year March 2020, refugees in Uganda struggle to access health care service which has led to the loss of lives. This situation continues till date.  The complaints of refugees in Uganda in regard to accessing basic information about the vaccine shows a backlog on the part of the government in addressing this.

In Mali, the most distressing sexual and reproductive healthcare challenge women face are in the areas of accessing family planning, pre- and postnatal care, and assistance for victims of gender-based violence (GBV). The COVID-19 pandemic contributes to these challenges faced by women. For example, the fear of contracting COVID-19 has caused a low turnout of women in hospitals.  The pandemic has also caused a decline in accessing healthcare since public health advisors have become limited. Moreover, most funding is targeted at the COVID-19 response measures, and many experts are unable to operate at an optimum as a result of travel bans.

Refugees in the Democratic Republic of Congo still struggle with accessing quality health care services as many of these refugees reside in communities that lack health facilities, or with ill-equipped and under-staffed health centres that face frequent shortage of drugs. In Libya, refugees who are ambushed while crossing the Mediterranean Sea and eventually taken to detention centres are not guaranteed access to health care services. These refugees are supported by humanitarian organisations, but such support is limited since these organisations have a limited presence in Libya.   
The African Charter on Human and Peoples’ Rights sets out in article 16 that ‘every individual shall have the right to enjoy the best attainable state of physical and mental health.’

The African Commission in its 449 Resolution highlights that human and peoples’ rights are central pillars of successful response to COVID-19 and recovery from its socio-political impacts and urges states to ‘observe the principle of non-discrimination in accordance with article 2 of the African Charter by ensuring that protection is extended to refugees.’ The African Commission in its Resolution on the Protection of Refugees, Asylum Seekers and Migrants in the fight against the COVID-19 pandemic in Africa  also ‘condemns all violations of rights to which asylum seekers, refugees and migrants have been directly or indirectly subjected in the context of the management of the COVID-19 pandemic in states parties to the African Charter and its Protocols.’

Since the outbreak of COVID-19, the World Health Organisation and the United Nations have adopted guidelines and checklists regarding the protection of human rights. This includes access to health care during the enforcement of COVID-19 measures and addressing inequality in vaccine-roll outs.

The UN Secretary General made a statement on Twitter where he stated that ‘Vaccine inequity is not only unjust it’s also self-defeating.’ In this regard, governments should incorporate the vaccination of refugees in their national policies and programmes on COVID-19 mass vaccination. This should include every person notwithstanding their citizenship status. Inclusion should go beyond just speaking and preparing for COVID-19 vaccines and should be seen in practice.

Governments can also ensure fairness in the distribution of the vaccine by preventing health care authorities from distributing the personal information of refugees to immigration officers. This will protect the refugees from the risk of deportation, therefore creating trust in the system, encouraging refugees to come out for vaccination.

In order to allay the fear of refugees and encourage them to seek health care services, correct information about the spread of COVID-19 should be circulated and safety measures must be ensured in health facilities.

About the Author:

Omotunde Enigbokan is an LLD Candidate at the Centre for Human Rights University of Pretoria. She also works at the Migration Unit of the Centre for Human Rights.

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Compensation for damage caused by space debris – just pie in the sky?

Jaymion-HendricksAuthor: Jaymion Hendricks
Attorney

Space launches have increased significantly in recent years and despite the global pandemic, the year 2020 (together with 2018) marked one in which the most orbital launches took place (114 launches, 104 of which were successful flights). In the past, space activity was mainly undertaken by a handful of well-resourced countries. With the increasing commercialisation of space, there has been a proliferation of private and public space activity. It follows that heightened space activity results in frequent launches which may increase the risk of accidents on the surface of the earth or to aircraft in flight. The risk, however, remains negligible if space actors adhere to the highest technical, safety and environmental standards. The minimal risk is generally outweighed by the economic value and social benefit of outer space activity (scientific knowledge, weather forecasting, telecommunications and earth observation etc.).

According to the The Economist, as at August 2019, no one is known to have been killed by re-entering space junk into the earth’s atmosphere. However, there are a number of recorded cases in which compensation was paid for injury, death or damage to property due to failed rocket launches. For example, the USA paid Cuba USD$2 million in 1960 when the second stage of the Thor Ablestar rocket plummeted to earth in the south of Cuba and parts of its fuselage landed on and killed a grazing cow, named Rufina.

Who is liable in the event of falling space debris?

International law governs liability for accidents arising from space activity. International treaties such as the Outer Space Treaty (1967) and Liability Convention (1972) outline States’ liability for damage caused by space objects. They hold launching State(s) absolutely liable to pay compensation for damage caused by space objects on the surface of the earth, or to aircraft in flight.

Under international law, private space actors such as SpaceX cannot be held directly liable as the relevant international treaties merely recognise the role of the State which bears international responsibility for national space activity. Domestic space legislation usually requires private space companies to maintain insurance cover which is ordinarily capped at a certain amount or set at the maximum probable loss; fully indemnifying the State in the event of a damages claim (i.e. the state has a right of recourse against the private company should the State have to pay compensation to a claimant).

Claim to be lodged via the diplomatic channels

If a claimant wishes to pursue a claim for damages to property, injury or death, it must approach its government which, in turn, presents the claim on the national’s behalf to the launching State through the diplomatic channels.

It is not necessary for local remedies to have been exhausted before the claim is presented (pursuing a domestic legal case would raise issues of state immunity). A claimant is not precluded from instituting a claim in a court or tribunal of the State whose space debris caused the damage; although the costs would be prohibitive, a number of jurisdictional hurdles would have to be overcome and the claimant would not enjoy the gravitas of having their State pursue the claim on their behalf. A claim cannot be presented via the diplomatic channels if the same claim is being pursued in any other court or tribunal. In the past, most claims have been settled through the diplomatic channels.

space_debris

Amount of compensation

The amount of compensation will be determined in accordance with international law and the principles of equity and justice. Compensation can be claimed for “damage” defined in the relevant treaty as “loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical…”. The States may agree to another form of compensation other than monetary compensation.

Establishment of a Claims Commission

If within one year of notification of the claim no settlement of a claim is arrived at through diplomatic negotiations, the respective parties must establish a Claims Commission at the request of either party. The Claims Commission must be composed of three members: one appointed by the claimant State, one appointed by the launching State and the third member, the chairperson, to be chosen by both parties jointly. In this event, States are likely to approach the Permanent Court of Arbitration, an intergovernmental organisation based in The Hague, Netherlands, which provides a variety of dispute resolution services to States (and private parties) arising out of treaties.

The Claims Commission will decide the merits of the claim for compensation and determine the amount of compensation payable, if any. The decision of the Commission is final and binding if the parties have so agreed; otherwise the Commission shall render a final and recommendatory award, which the parties shall consider in good faith. It shall also deliver a certified copy of its decision or award to the Secretary-General of the United Nations.

In over 60 years of space exploration, there have only been a few third party liability claims arising from space activity and a substantial claim is yet to test the parameters of a space insurance policy. States’ absolute liability for national space activities ensures that they register and supervise national space activity which promotes overall safety and minimises the risk of space debris falling on your ceiling, or cow.

About the Author

Jaymion Hendricks is an admitted attorney (non-practising) and has a keen interest in international space law. He holds an LLM International Air, Space and Telecommunications Law (University of Pretoria). Born and raised on the Cape Flats, he is currently on assignment to The Hague, Kingdom of the Netherlands. He writes in his personal capacity.

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The Role of ICT in Promoting the Rule of Law in Ethiopia: The Impact of Social Media

Henok-KebedeAuthor: Henok Kebede
Lecturer, School of Law at Hawassa University, Ethiopia

The Role of ICT in Promoting the Rule of Law

Various scholars have defined the phrase from different perspectives, therefore, defining rule of law in a universally agreeable manner is not an easy task. The most known definition is the one provided by Aristotle: Rule of law is an absence of rule of man. But this definition is very general with the need for elaboration. A more elaborated, perhaps understandable, definition of rule of law is by Lord Bingham, essentially said that “…all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts

In rule of law, there is no discrimination based on anything; all should abide by the enacted laws and whoever disobeys it must bear the consequence. In this regard, Trevor Allan, a 20th century political philosopher, stated that the law, always, has to safeguard the governed from the governor by shielding the individual from hostile discrimination by the holders of political power. Furthermore, rule of law is one of the manifestations of good governance. In this regards, the Organization for Economic Cooperation and Development (OECD) has indicated that good governance is characterized by participation, accountability and transparency, rule of law, effectiveness, and equity. So, ensuring rule of law is vital in bringing accountable, transparent, participatory and effective governance system which in turn could bring overall development.    

There are different means to promote rule of law, including the use of ICT. The OECD highlights that ICT plays a significant role in the respect of rule of law so that good governance will be achieved. There are different ways by which ICT plays this role in the respect of rule of law. ICT makes laws easily accessible, flexible, easily applicable and coordinately implementable so that rule of law will be enhanced. In essence, ICT makes legal rule visible to the public through online availability of relevant legislation. Recently, it is easy to access laws enacted by parliaments on the internet, which helps people to understand the consequence of their actions; so that they may be deterred if the acts are unlawful. In addition, ICT also provides citizens access to information about court procedures. In this regard, using ICT, citizens easily understand the jurisdiction, power and function of courts which is as important as knowing substantive rights. Furthermore, it is believed that judicious and well-informed decision-making is dependent on the quality and timeliness of information.  ICT also makes the law flexible by assisting the legislator or executive to gather information about the possible implication of enacted laws in the society. ICT will significantly reduce time and energy in the study of the impacts of enacted laws. ICT also make laws easily applicable. There are laws which need technologies to be implemented; for instance, the tax laws need computerized system to cope with the change in the system of tax related frauds, traffic rules of speed limits also needs new technologies to be effectively implemented.

The other importance of ICT in the respect of rule of law is the fact that it helps various laws to be implemented in coordinated manner. For instance, ICT can help create mega data systems necessary for inventory taking of property for the purpose of assessing property tax.  In addition, ICT can help in identifying crime suspects by designing systems which loads various information of individuals like crime record and other important information.

internet_ethiopia

Rule of Law in Ethiopia: The Impact of Social Media

Rule of law is central for democratic order and respect for human rights. It is also important to establish law and order. The existence of rule of in a country shows the legitimacy of government by making all the stakeholders subject to laws.  When citizens believe the government is legitimate, they demonstrate it by respecting the laws enacted by its organs. This illustrates that legitimacy of government is a cornerstone of good governance. If the government’s laws are not respected, there would definitely be use of unnecessary force to compel citizen to follow legal orders which will create instability. The instability is, however, the source of ‘bad government’ i.e. violations of citizens basic rights, corruption and crime.    

The role of ICT in general and internet in particular in promoting rule of law in Ethiopia is therefore immense. There are two ways by which Internet will help on this regard. The first is by serving as a medium of communication to enlighten citizens about the laws of the country. In law, there is a well-known principle that ‘ignorance of law is not an excuse’ for a person to escape punishment/liability.  Even though this principle makes a person liable despite not knowing about the law which prohibits the act, for the purpose of good governance knowing about the law is very crucial. This is because it helps citizen to understand the existence of laws and the consequence thereof. Thus, various law blogs, websites, and social media pages can play important roles in awareness creation about legal rules in Ethiopia. In addition, they will also help in informing the public about any changes regarding the existing legal order. Furthermore, ICT can serve as a medium through which a draft bills can be discussed for possible input from the society. In this instance, we can take the recent process on certain legislations after the government’s reform measures as an example. For example, the committee established by the government to facilitate the revision of civil society proclamation and anti-terrorism proclamation received comments from social media, letting people known about the process, conducting public discussion and transmitting it on TV and Radio.     

The other way by which internet plays a positive role in promoting rule of law in Ethiopia is by creating a means on which citizens report illegal activities. With the introduction and growth of internet service, citizens and to a very large extent, civil society representatives like NGOs, human right activists, and various political actors have developed the habit of reporting activities of rule of man. Massive illegal activities which resulted for massive human right violations, like the internal displacement of Gedeo people, the internal displacement of Oromos following the inter-communal conflict between Somalis and Oromos, and more recently, the various human right violation in most part of the county particular in Benishangul-Gumuz, Tigray, Oromia, and Amhara regions have been reported using ICTs. 

However, ICTs, particularly the internet, has also had a negative impact on the promotion of rule of law in Ethiopia. For instance, following the recent political changes, most government institutions have lost their legitimacy. As a result, mass atrocities and internal disturbances have become common in Ethiopia. The negative role played by social media through the dissemination of hate speech about the people targeted is immense in this regard. The emergence of various extreme informal groups in different parts of the country has also exaggerated the situation. In some instances, the groups have been seen taking over the natural duty of government by directly and indirectly forcing government officials towards their goals. Consequently, this led to the conflict between individual rights with group rights which in the meantime resulted in annihilation of rule of law.

Conclusion

ICT plays a great role, both positive and negative, in the respect of rule of law in Ethiopia. By serving as a medium of communication to enlighten citizens about the laws of the country and the changes thereof, by creating a platform through which a draft bills can be discussed for possible input from the society, and by creating a means on which citizens report illegal activities, ICT plays positive role in the promotion of rule of law. However, care must be taking to ensure that the same media are not weaponized to undermine rule of law in Ethiopia.

About the Author

Henok Kebede is a Lecturer in the School of Law at Hawassa University, Ethiopia who teaches Laws, Jurisprudence and IHL. He holds an LLB from Hawassa University and an LLM in Public International Law under the program option of International Criminal and Humanitarian Law from the University of Oslo, Norway.

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The Cost of Separating Powers

Chris HimsworthAuthor: Chris Himsworth

University of Edinburgh, United Kingdom 

It was reported on 28 April 2021 that authorities in Lesotho could not appoint a new High Court judge because of a lack of funds. While this might have come as a shock to most people, this will not have surprised the authors of the Report on the Independence of the Judiciary in the Kingdom of Lesotho, published only a month earlier in March. Chaired by Justice Zak Yacoob, former South African Constitutional Court Judge, a Working Group of the Southern African Development Community (SADC) Lawyers’ Association had aired a trenchant critique of the current condition of judicial independence in Lesotho.

Opening with some general propositions on the principles of judicial independence and the separation of powers, the threats to the realisation of these principles in Southern Africa and the post-independence historical background in Lesotho, the Report moved on to the presentation of constitutional provisions which “speak to judicial independence”. There is, inter alia, commentary on the fragility of the Court of Appeals (including its substantial reliance on foreign judges and its lack of permanence) ( pp 14 and 50-57), the unsatisfactorily insecure status of the “Constitutional Court” (p 14), the executive domination (by King and Prime Minister) of the judicial appointments processes (pp 14-15), and the capacity for political manipulation of judicial appointments during the events of 2013-15 (pp 22-23, 49-50).

The Report then reverts to general considerations in an elaboration of “Best Practices and Guidelines”, principally by reference to the Lilongwe Principles, the Latimer House Guidelines and the Bangalore Principles; and some comparative material from Zambia, Zimbabwe and South Africa; before closing with an itemisation of the “Most Prevalent Threats” identified in Lesotho.

What is most striking about the Report is that, whilst judicial independence may, of course, be threatened by political abuse, the dominant theme throughout is the threat posed by the lack of resources. The impermanence of the Court of Appeals derives from payment of judges by stipend or sitting allowance rather than salaries, in part at least, to save money (pp 14, 57). There is a lack of proper facilities and resources, and poor salaries for High Court judges, one consequence of which has been a failure to attract private sector applicants but instead compelling reliance on registrar and magistrate applicants (p 15). Section 5(4) of the Report on “Funding of the Judiciary” exposes the lack of a guaranteed level of funding provision – “the fact that the judiciary is solely reliant on the Executive for its funding and at the mercy of the Executive for the allocation of its budgets negates the independence of the judiciary” (p 21).  “Best Practices” include the need for adequate judicial resources including security of tenure, conditions of service and remuneration “to utterly secure economic independence” (p 30).

lesotho_court

The Report recommends that “[t]he State must provide the Judiciary with the means necessary to equip itself properly to perform its functions. To do so, the judiciary must be able to advocate for, and motivate its needs in terms of budget, material and human resource needs. The funds allocated to the judiciary must be properly utilised and safeguarded from alienation or misuse. The availability of funding to the judiciary should not become a weapon to be used [sic] as a means of exercising improper control over the institution” (p 39).

In the light of those overall conclusions suggesting a systemic under-resourcing of the judiciary in Lesotho, it is no great surprise that, as reported, according to the Lesotho authorities: “Appointing a judge for Tšifa-li-Mali means that judge needs a place to stay in Leribe, transport for the judge and other senior staff and that all needs money which we currently do not have. That is why we had to stop the process so we can seek the funds.”

As the SADC Report demonstrates, the consequences of under-funding spread much more widely across the system and impinge directly on the features impacting on independence. To an extent this is merely to demonstrate a wider truth. No rules and institutions intended to secure constitutional rights and standards are cost free and their realisation will also depend on funding Separating powers and creating institutional autonomy cost money.

But it has also to be wondered whether even more fundamental questions are posed by the example of Lesotho? Is it possible to go beyond the generalities of an insistence on “satisfactory” or “adequate” funding and to specify with more precision minimum funding standards in particular jurisdictions? In the absence of such specificity, will it ever be possible to analyse the consequences of funding failures or to be seen to be applying internationally ordained standards at all? In conditions of crisis for the funding of all public services – by no means always the case where state funds (world-wide) are diverted from the judiciary in the pursuit of (sometimes malign) political choices – can judicial independence ever be funded?

About the Author

Chris Himsworth is Emeritus Professor of Administrative Law at the University of Edinburgh, United Kingdom and author, with Christine O’Neill, of the fourth edition of Scotland’s Constitution: Law and Practice (Bloomsbury Professional, 2021). During 1970-73 he was a lecturer in law at the University of Botswana, Lesotho and Swaziland.

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The ACtHPR: From the Politics of Gender to the Gender of Politics? Why Women’s Representation on the Bench is not Enough

Dawuni-AdjolohounAuthors: J. Jarpa Dawuni & Sègnonna H. Adjolohoun

In September 2018, the African Court on Human and Peoples’ Rights (ACtHPR or the Court) made history by swearing in two female judges, thereby bringing the Court’s composition to six women out of its 11 judges. The Court had thus achieved a female majority bench for the first time since its inception in 2006. The symbolic representation of women judges made the bench the most gender-balanced of all times. While women currently make up 55% of judges on the ACtHPR, they account for 35% of all judges since the Court was established, and only 20% of the leadership in the institution (i.e., two women have served in the Bureau versus eight men). In the following discussion, we analyse why women’s symbolic representation has not translated into their substantive leadership within the Court. We query whether the changes introduced to the Rules of Court in 2020, will be a catalyst for a sustainable women’s representation in the Court’s Bureau in the elections slated for 31 May 2021.

Achieving Gender Parity

The women majority bench of the Court is an achievement of an electoral policy adopted within the political sphere of the African Union, including at the helm, by the Assembly of Heads of State and Government (AHSG). The policy is firstly grounded in treaty law as reflected in Article 14(3) of the Court Protocol, which provides that “In the election of the judges, the Assembly shall ensure that there is adequate gender representation”. This statutory commitment was subsequently translated into a Decision of the Executive Council of the African Union, which expressly prescribing that, in addition to the geographical representation, “at least one member from each region should be a woman” and further directing that “the modality shall become effective immediately”. In implementing this Decision during the July 2016 summit held in Kigali, Rwanda, the policy organs postponed the elections of judges for the southern and eastern regions after nominating Member States had filed male candidatures for the concerned seats.

The African Union Commission thereafter put these norms into practice under procedural electoral rules as consistently stated in the Notes Verbale transmitted to Member States by the Office of the Legal Counsel ahead of every election of judges to the Court. Prior to achieving gender parity by statutory requirement as earlier explained, the ACtHPR itself had portrayed a predisposition to gender sensitivity by electing two women judges to the Bureau. Justice Sophia A. B. Akuffo of Ghana was first elected as Vice-President in 2008, reelected in 2010, and then as President in 2012; while Judge Elsie Nwanwuri Thompson of Nigeria was elected as Vice-President in 2014.

The Bureau

Established under Article 21 of the Court Protocol, the Bureau of the Court shall consist of a President and a Vice-President, each elected among current judges for a two-year term, renewable once for another two years. The Bureau is responsible for the administrative components of the Court. Since the 2016 Executive Council’s equal representation decision was applied, only male judges have been elected to serve in the Bureau of the ACtHPR despite the growing number of women joining the Court’s bench.

Pursuant to Rule 11(6) of the 2020 Rules of Court, the next election of members of the Bureau is scheduled to take place on 31 May 2021, which is the first day of the 61st Ordinary Session of the Court. Will the female majority of the bench translate into a gender-balanced leadership within the Bureau? In other words, has the politics of achieving gender parity led to a stagnation in women’s (non)representation in the Bureau rather than promoting their substantive and sustainable representation as could have been expected?

Figure 1. Presidents of the Court (2006-2021)

NAME

COUNTRY

YEARS

SEX

Gérard Niyungeko

Burundi

2006-2008; 2010-2012

M

Jean Mutsinzi

Rwanda

2008-2010

M

Sophia A. B. Akuffo

Ghana

2012-2014

F

Augustino Ramadhani

Tanzania

2014-2016

M

Sylvain Oré

Côte d’Ivoire

2016-2018; 2018-2021

M

Figure 2. Vice-Presidents of the Court (2006-2021)

NAME

COUNTRY

YEARS

SEX

Modibo Tounty Guindo

Mali

2006-2008

M

Sophia A. B. Akuffo

Ghana

2008-2010

2010-2012

F

Fatsah Ouguergouz

Algeria

2012-2013

M

Bernard Makgabo Ngoepe

South Africa

2013-2014

M

Elsie Nwanwuri Thomspon

Nigeria

2014-2016

F

Ben Kioko

Kenya

2016-2018; 2018-2021

M

Beyond gender representation

Hanna Pitkin’s seminal work on the Concept of Representation has directed much of the discourse on our understanding of women’s representation—formalistic, descriptive, symbolic and substantive. The 1995 United Nations Conference on Women in Beijing emphasized a 30% floor benchmark for women’s representation for meaningful change to happen. It is argued that at 30%, there is a critical mass of women to set in motion institutional cultural change towards having gender inclusive policies and outcomes. A plethora of existing international frameworks such as Goal # 5 of the UN SDGs,  and Article 8 of CEDAW provide  a normative basis for the right of women to participate in international organisations.

female_judges

Crucial to the African context is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), which provides in Article 9(2) for the right of women to hold leadership positions, to “ensure their effective representation at all levels of decision-making”. In a more strategic commitment, the African Union Agenda 2063, specifically Goal #5, has a target to achieve “an Africa whose development is people driven, relying on the potential offered by people, especially its women and youth and caring for children.”

Through these international instruments, women’s representation must be guaranteed and all efforts made to ensure the realization of their leadership potential in all institutions including judicial ones such as the ACtHPR. Representation must therefore mean much more than just presence. Consequently, we argue that the empirical analysis of women’s representation in international courts must involve their substantive representation in leadership positions including in the ACtHPR.

The International Criminal Court (ICC) showed that it is possible to have women in leadership—including an all-female presidency in 2015 with Judge Silvia Fernández de Gurmendi of Argentina as President, Judge Joyce Aluoch of Kenya as First Vice-President and Judge Kuniko Ozaki of Japan as Second Vice-President. The African Commission on Human and Peoples’ Rights, and the African Committee of Experts on the Rights and Welfare of the Child have both achieved women majority compositions of 7 out 11 members; and the Commission has so far had two all-female Bureaux.

In an earlier article, Beyond the Numbers: Gender Parity on the African Court on Human and Peoples’ Rights — A Lesson for African Regional Courts?, it was argued that the gains made in reaching a gender balanced bench at the ACtHPR should not be seen at the penultimate goal to achieving gender equality within the institution, including at the highest level. Similarly, in a cautious celebration of the gender parity of the ACtHPR in 2017, emphasis was placed on the need to take women’s representation “beyond the political discourse.” We believe that this ultimate goal of moving from a mere symbolic presence to substantive representation can be achieved through a corresponding presence of women in the Bureau.

The ACtHPR must be commended for achieving gender balance within a relatively short span of a decade since it was established, compared to the International Court of Justice for instance, which, in 75 years, still has only 3.7% of women represented on its bench. In fairness, credit should first be apportioned to the African Union for designing a revolutionary gender policy. Having said that, credit should also go to judges of the Court for giving life to the policy by electing the two women judges who have so far led the institution as president and vice-president respectively.

Noteworthy, the Court had its only two women judges in leadership positions at times when their men counterparts held the bench majority. Arguably, this trend was reinforced in the recent normative standards of the Court. In its 2010 Rules, the Court only took a formalistic approach to gender by repeatedly referring to the Bureau members as “he/she”.[1] However, under the 2020 Rules, a full provision is devoted to prescribing that “in the composition of the Bureau, the principles of gender parity, … and a rotation system shall, as far as possible, be observed”.[2]  Notwithstanding these commendable developments, there is an urgent need to move the discussion further by examining whether the statutory standards will expand opportunities for sustainable women leadership in practice.

Women in leadership – What the numbers tell us

Since the ACtHPR began its operation in 2006, women have accounted for only 20% of the judicial leadership positions, one time as president, and three times in the vice-president role. The fact that leadership involvement in the Court may not be limited to its Bureau is not overlooked. Thus, while women judges could preside over any of the committees or working groups that the Court may establish to facilitate its work, the bench level majority should be the standard for measuring substantive leadership representation. Notably, and arguably due to limitations in the Court Protocol, deliberations of any such committees are subject to the adoption of the plenary.[3]

Figure 3. Women on the Bench

Name

Country

Years at the Court

Leadership

Sophia A. B. Akuffo

Ghana

2006-2014

President

(2012-2014)

Vice-President

(2008-2010); (2010-2012)

Kellelo Mafoso-Guni

Lesotho

2006-2010

Elsie Nwanwuri Thompson

Nigeria

2010-2016

Vice-President

(2014-2016)

Solomy Balungi Bossa

Uganda

2014-2016

Marie-Thérèse Mukamulisa

Rwanda

2016-2022

Ntyam Ondo Mengue

Cameroon

2016-2022

Tujilane Rose Chizumila

Malawi

2017-2023

Chafika Bensaoula

Algeria

2017-2023

Stella Isibhakhomen Anukam

Nigeria

2018-2024

Imani Aboud

Tanzania

2018-2020

2021-2027

Expanding opportunities for leadership

The gender inequity in leadership in the ACtHPR can be viewed by assessing election practices in two eras. Under the first era governed by the 2010 Rules of Court, women’s representation did not translate into the internal governance of the institution arguably because the Court’s Protocol only provided for “adequate gender representation”.[4] The African Union AHSG was therefore neither bound by equality nor by equity, and the Court itself therefore likely took a minimalist approach to women’s representation in leadership rules. However, as earlier discussed, the then men majority Court took a progressive approach by electing women in leadership positions.

The second era of what we call the ‘politics of gender’ began, we argue, with the adoption of the 2020 Rules of Court. The prescription for “gender parity” of the Bureau under Rule 10(2) of the said Rules is unprecedented in the operation of the Court. The first post-2020 Rules election is the one slated to be held on the first day of the 61st Ordinary Session of the Court (May-June 2021) and one therefore awaits to see whether the politics of gender will translate into a gender of politics.

One of the most significant developments under the 2020 Rules of Court, is the nomination process under Rule 11. Judges will now be notified of the vacancies 45 days prior to the election, and may nominate fellow colleagues while nominees are required to formally accept nomination and submit an undertaking to take up the post should they be elected. The list of candidates is then circulated 15 days to the election arguably for sufficient notice, and engagement, ahead of the poll date. Although none of these provisions is expressly gender framed, they introduce processes that strongly purport commitment, publicity, and campaigning. Such processes are channels that may serve in advocating for a purposive implementation of the new “gender parity” trend brought by the 2020 Rules of Court.

 

Why women in leadership matters

Institutional cultures develop over time. Dynamic institutional cultures are critical to the development and advancement of any institution. The ACtHPR started off with what appeared to be a gender-inclusive leadership culture, which must now be capitalised into a systematic and sustainable institutional practice.

While we can spend our time detailing the legal and moral arguments why women in leadership positions matter, we argue that women in leadership matter for the simple yet profound reason that women must not carry the burden of justifying their right to leadership. Judge Julia Sebutinde makes a strong argument in the context of symbolic representation:

For over seventy years there have been predominantly male judges serving on the International Court of Justice, yet nobody ever asks those kinds of questions when it comes to men. Why should the female judges serving on the Court have to justify or validate their presence or role on the Court? As long as we meet the statutory qualifications and are duly elected, we have as much right to sit on that Bench and to participate in the settlement of State disputes, without having to validate or justify our presence there with “value addition,” period.[5]

Merit does not have to have a male face. A socio-legal approach requires an expansive definition of merit to include the broad range of skills and talent women bring to the table. If women judges have the merit to be on the bench, they must have the merit to serve in leadership roles, without having to justify the “difference” they will make in those positions of leadership.

In 2006, Justice Sophia A. B. Akuffo of Ghana was among the first batch of five judges appointed to the ACtHPR. From Akuffo’s account of the initial interactions among the judges, gender sensitivity appeared to be an issue within the Court from its genesis:

As operations of the Court progressed, issues of gender equality came to the fore. Akuffo noticed that the male judges were uncomfortable with how confidently the female judges expressed themselves – particularly when they disagreed with the male judges on pertinent issues (p. 103).[6]

To address these challenges, and to create a critical mass of women on the ACtHPR, Justice Akuffo made it a point to call on governments to search for, and nominate women to the Court:

As President of the Court, Akuffo consistently impressed upon the Member States of the African Union to fulfil the protocols relating to gender parity by nominating more women to the Court. Oftentimes, the Member States chose to nominate male judges instead of female judges. In Akuffo’s final report for the Court, she encouraged the Member States to fill her position, when vacated, with a female judge as there were many highly qualified female judges on the continent (p. 103).[7]

Her plea has certainly been heard as witnessed by the increasing number of women elected to the ACtHPR over the years. Besides, the Court appears to have evolved notably with respect to the participation of women judges. If women judges’ contribution to the Court’s jurisprudence is anything to go by, the significance of separate and dissenting opinions filed by them speaks for itself.[8]

 

Conclusion

The election of the next president and vice-president of the ACtHPR will no doubt mark a true test of whether the principles and norms of gender equality are having a real impact in transforming the institutional culture of the Court. Gender equality on the bench of the ACtHPR must move beyond symbolic representation of women, to more substantive representation evidenced in the leadership roles they play within the administration of the Court.

Noteworthy, the current female majority could shift to a male majority in 2022 with the next election of judges, given that the rotating seat that helped achieve female majority is based on geographical equity and attributed without any mandatory adherence to a gender rule. Thus, the judges on the Court should seize the upcoming election as an opportunity to advance women’s representation in leadership roles in the institution.

Against the foregoing discussion, we examine in our forthcoming article, whether the current gender capital of the ACtHPR is an end or a means to addressing gender related issues as far as human rights justice in Africa is concerned. In other words, three years after gender parity was achieved, has the female majority bench led to a gender-inclusive institution?  

[1] See e.g., Rules 9, 10, 11 and 12 of the 2010 Rules of Court.

[2] See e.g., Rule 10(2) of the 2020 Rules of Court.

[3] See Art 26 of the 2020 Rules of Court.

[4] See Art 14(3), African Court Protocol.

[5] See Nienke Grossman. (2018). Julia Sebutinde: An Unbreakable Cloth. In Dawuni, J and Kuenyehia, A (eds.), International Courts and the African Woman Judge: Unveiled Narratives. Routledge Press.

[6] See, Kuukuwa Andam and Sena Dei-Tutu (2018), “Sophia Akuffo: Balancing the Scales of Justice”, in Dawuni, J and Kuenyehia, A (eds.), International Courts and the African Woman Judge: Unveiled Narratives. Routledge Press.

[7] Idem.

[8] The authors offer a deeper analysis on this question in their forthcoming article.

About the Authors

J. Jarpa Dawuni, Ph.D. is Associate Professor of Political Science at Howard University and the founder and Executive Director of the Institute for African Women in Law.

Sègnonna H. Adjolohoun, LL.D. is Extraordinary Lecturer and Visiting Professor of Human Rights and Comparative Constitutional Law, University of Pretoria & Central European University (The analyses made in this article are only the academic views of the author).

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Using evidence in the time of COVID-19 to reduce health inequalities for Persons with Psychosocial Disability in South Africa

Linda-AjembaAuthor: Linda Ajemba

LLD candidate, Centre for Human Rights, Faculty of Law, University of Pretoria

The ongoing coronavirus (COVID-19) pandemic has had an unparalleled impact on all spheres of life globally. As with other disasters, evidence shows that while the impact of the COVID-19 pandemic threatens all members of the society, it disproportionately affects persons with psychosocial disabilities. Persons with psychosocial disability refers to individuals suffering from a spectrum of mental conditions that influence their feelings, perceptions and behaviors. A psychosocial disability arises when someone with a mental health condition interacts with a social environment that presents barriers to their equality with others. Persons with psychosocial disabilities are greatly impacted by diverse response measures employed by governments across the globe to curb the pandemic.

Despite the fact that universal inclusion is a basic principle of the Sustainable Development Goals (SDGs), inclusion of persons with psychosocial disabilities in humanitarian interventions and development policies during disasters remains obscure. In March 2020, the government of South Africa declared the outbreak of the coronavirus a national disaster, effectively implementing stringent and militarized measures to curtail the spread of the virus. Imposed measures which include nationwide lockdown, social distancing and limited access to social and health services, failed to include vital health services for people with psychosocial disabilities as they were not regarded as ‘essential services’. Evidence shows that these rigid response actions markedly increase emotional distress and cause extreme threats to survival, thereby substantially increasing the risk for psychosocial disability as well as exacerbating the severity and duration of psychiatric morbidity in people with psychosocial disabilities. They pose huge threats to South Africa’s public mental health in a society where one in three individuals develop a psychiatric disorder during their lifetime, and in a country defined by its preexisting racial and economic inequity.

The limiting responses to the COVID-19 pandemic in South Africa stem from inequalities that were established during the apartheid regime. In addition to widespread prejudice related to race, gender and socio-economic factors, people with psychosocial disabilities experience stigma and discrimination based on their disabilities. This includes lack of access to healthcare, lack of access to education or appropriate support within schools, lack of access to employment opportunities, and social seclusion. Amidst the high rates of mental illness in South Africa, only 27% of patients with severe mental illness receive treatment. The barriers to accessing care despite the high prevalence of mental illness in South Africa suggests that mental healthcare must be a priority in emergency response plans.

mental_health

Stigma plays a major role in persistent and prolonged suffering of people with psychosocial disabilities. In the context of the coronavirus pandemic, the gross undermining of the human rights protection and mental health needs of vulnerable populations in South Africa’s emergency response policy and management further fortified the already existent attitudinal, environmental and institutional barriers. Response efforts to contain the spread of the virus through restricting movements and limiting social interactions posed unintended consequences which additionally restrict access to social support structures, treatment, and medications for people with preexisting mental health challenges. Previous global studies on the consequences of these measures report elevated risk for mental illness and suicide. Thus, for millions of South Africans with psychosocial disability, the impact of stigma mediates the association between psychosocial disability and poorer health outcomes attributable to heightened risk of developing comorbid illnesses and poor treatment compliance. In a statement mad by the Mental Health Portfolio Manager at Pharma Dynamics in South Africa, he noted that:

We are likely to see much higher rates of mental illness among South Africans post the pandemic and need to increase psychosocial support efforts to avoid a COVID-19 related mental health crisis. He also stated that those with pre-existing mental health conditions have reported their symptoms getting worse as a result of the pandemic.

While the lockdown measures imposed by the government of South Africa effectively curtailed the rapid spread of COVID-19 infections and associated morbidity and mortality risk, the mental health implications intensified by these measures cannot be overlooked in a country with significant psychiatric morbidity and inequity in accessing the limited mental health care infrastructure. The multiple levels of inequality which stem from stigma towards persons with psychosocial disability invariably depicts that COVID-19 responses have unequal impacts within diverse contexts and amongst a varied range of South Africans. It exposes disparities in inclusion of the needs of persons with psychosocial disabilities, particularly in emergency policy responses.

Regarding vulnerable and at-risk populations, the issues arising in South Africa may be broadly applicable to other countries, particularly low and medium-income countries. These issues emphasize ethical discourse on ameliorating the conditions that produce vulnerability, offering unique opportunities to prioritize the expansion and improvement of mental health services and support to ensure a rights-based approach in such services so the rights of persons with psychosocial disabilities are adequately respected.

The Bill of Rights, which forms part of the Constitution of the Republic of South Africa (1996), states that all persons, including persons with disabilities are equal; that everyone has the right to access healthcare services; that everyone has inherent dignity and the right to have their dignity respected and protected; and that everyone has the right to life. In order to achieve these, measures that consider the reality of persons with psychosocial disabilities and allow for reasonable accommodation of their needs must be developed with their involvement and implemented.

There is need for the government of South Africa to rethink priorities and revisit structural discrimination in mental healthcare policies to move towards human rights compliant and sustainable mental health systems that encompass the whole community. Comprehensive long-term strategies to mitigate the health and socio-economic consequences of the current crisis on people with psychosocial disabilities urgently need to be developed and implemented. This includes consistent mass media psycho-educational interventions and continued eased access to psychosocial support and care for people with psychosocial disabilities and people experiencing mental distress. This means providing measures that allow for flexible service provision, peer support, helplines and online psychosocial support.

About the Author

Linda Ajemba is an LLD candidate at the Centre for Human Rights, Faculty of Law, University of Pretoria. She is involved in research, monitoring and evaluation at the Centre for Human Rights, University of Pretoria. She is also pursuing her Master’s in Public and Development Sector, Monitoring and Evaluation at the University of Witwatersrand.

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Seventeen years of the Pan-African Parliament: taking stock and reimagining its future

Bonolo-Makgale-Tariro-Sekeramayi
Authors: Bonolo Makgale and Tariro Sekeramayi

Introduction

Dr. John Henrik Clarke once remarked, “History is not everything, but it is a starting point. History is a clock that people use to tell their political and cultural time of day. It is a compass they use to find themselves on the map of human geography. It tells them where they are, but more importantly, what they must be.”

The 18th of March 2021 marked the commemoration of the Pan-African Parliament’s (PAP) 17th year anniversary. The Midrand, South Africa based Parliament was established by the Abuja Treaty as one of the organs of the African Union (AU). At the time of its establishment, the PAP was earmarked as an organ of the AU that will provide a platform for increased public participation and for the Africans to participate in decision-making processes that affect the continent. The Parliament consists of representatives nominated by local legislatures and currently represents all of AU member states, with the exception of Eritrea. The PAP aims to foster development and economic integration on the continent, espousing the principle of “batho pele”, a Southern African political principle that translates to ‘people first’. The core of the PAP’s mandate is to promote citizen engagement and representation as democratic ideals. As we mark this incredible milestone, we take stock of how far the PAP has come and what its prospects  are for improvement as we advance.

Reflection & Opportunities for Improvement

As we reflect, a pertinent question to ask is the extent to which the PAP has created avenues to engage with African citizens effectively. The PAP has recognised Civil Society Organisations (CSOs) as essential partners in efforts to promote human rights, legislative reforms, and other initiatives that further good governance and democracy in Africa. One such strategic partnership is between the PAP and the Centre for Human Rights at the University of Pretoria through its Democratic and Civic Engagement Unit. This partnership aims to ensure CSO engagement with the PAP. It has done so through various initiatives such as the CSO forum that capacitates African CSOs across the continent  to engage with the PAP and involvement with the PAP advocacy and outreach initiatives. However, a criticism levelled against the PAP is the lack of genuine engagement with the citizens of the states they represent and the lack of a framework that guides the interactions between the Parliament and non-state actors. This is one area where  the formal mechanisms established to strengthen public participation and inclusion should be enhanced. 

In 2021 as we celebrate the anniversary of the PAP amid COVID-19 and against the backdrop of the AU’s 2020 theme of Silencing the Guns, it is prudent to look at the PAP’s performance in times of crisis and reflect on what we would imagine the role of the PAP to be in these situations.  One of the PAP’s objectives is to ‘promote peace, security and stability’ on the continent. Nevertheless, in 2020 there was an increase of citizens’ human rights violations by states that threatened peace, security, and stability in many ways. We saw increased police brutality in Nigeria, which culminated in the #ENDSARS movement, which was met with more violence from the state, leading to loss of life. We also saw an increase in excessive use of force by security forces in South AfricaUganda and Zimbabwe. Amid the lockdowns necessitated by COVID-19, the Southern African region saw a spike in gender-based violence (GBV), with Amnesty International reporting that women were most unsafe in their homes during the lockdowns. 

PAP-17

Most of the civil unrest that occurred in Africa was in response to issues linked to good governance amid the COVID-19 crisis and other issues affecting democracy. As such, the silence of the PAP as a ‘parliament of the people’ is disconcerting. We note that the rules of procedure may have hindered the PAP’s ability to intervene in these issues, as the rules had not been modified to allow the PAP to sit virtually and deliberate on  these issues. The time it has  taken for the PAP to adjust and amend its rules of procedure to accommodate the pandemic illustrates a lack of creativity and the favouring of bureaucracy over efficiency. As we look towards the next decade and the continuing mandate to Silencing  the Guns, African governments will have to change the violent and repressive ways in which they engage with their citizens. As a continental Parliament, the PAP can play a central role in this. It may need to increase scrutiny on states that violate human rights and democratic ideals and be more vocal about these issues through observer and fact-finding missions that can culminate in recommendations and resolutions on volatile situations.

In fulfilment of its objectives, the PAP has adopted various resolutions and recommendations around issues of development, protection of human rights, and efforts to foster peace and security. We have seen these interventions in countries such as Uganda, Chad, and the Central African Republic. The PAP has also prioritized the self-determination of the peoples of the Sahrawi Arab Democratic Republic through resolutions. The PAP has also taken strides towards protecting vulnerable groups in Africa, such as persons with albinism seen in the resolution passed in 2018 which gave more concrete measures on the protection of persons with albinism. To this end the PAP encouraged implementation of the Regional Action Plan on Albinism in Africa as well as annexure of this plan to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa. We appreciate the work of the Justice and Human Rights Committee of the PAP in the resolutions, recommendations, and other initiatives to protect vulnerable groups.

The PAP Malabo Protocol

In 2014, the AU adopted the  Protocol to the Constitutive Act of the African Union relating to the Pan-African Parliament (Malabo Protocol). The Malabo Protocol was adopted to amend the current Protocol relating to the PAP and  is expected to enable the Parliament to extend its functions and allow members of the Parliament to be elected through adult suffrage.

While the amendments in themselves do not confer the power to make laws for the Continent on the PAP, there are some key features of the Protocol that should be celebrated particularly because they purport to strengthen accountability and representation through institutional reforms. The Malabo Protocol introduces gender balance in the Parliament’s membership, requiring representatives from the various legislatures to have at least two women in the delegation whereas currently delegations are required to have at least one woman out of the five members. This is an essential stride towards increased representation and participation of women in politics, which is still an issue on the continent. 

The Malabo Protocol will also introduce exclusive membership to the PAP and election through universal suffrage in their respective countries. Exclusive membership means that members of the PAP will be elected from outside their national legislatures and will not  be members of their local legislatures. This will mean that the PAP will become more representative of the will of the people it governs. It will become more accessible as the election process will afford ordinary citizens an opportunity to contest in elections to represent their state at the PAP. The exclusive membership will also allow a greater focus of the PAP issues at local legislatures as members will have an exclusive mandate to PAP which will increase accountability measures.

Concluding Remarks

As we commemorate this anniversary and celebrate how far the PAP has come in the past decade, we commend and celebrate the Parliament’s steps in fulfilling its objectives and mandate, albeit with limited powers. We also celebrate the proposed reforms to the PAP through the Malabo Protocol that will increase citizen participation and representation and allow for increased access to the PAP.  The ratification of the Malabo Protocol will be essential to improving the Parliament’s effectiveness. To this end, we encourage the member states of the AU who have not yet ratified the protocol to do so and allow the PAP to reach its full potential. In imagining the PAP of the future, it will be necessary for the PAP to ensure that institutional reforms take place and that there are measures in place that allow for monitoring and evaluating the institution’s progress and the extent to which states are implementing the recommendations tabled by the PAP.

Message of Solidarity 

Read the message of solidarity to Pan-African Parliament (PAP) on behalf of civil society delivered by Prof Frans Viljoen, Director, Centre for Human Rights on 18 March 2021.

Message of Solidarity

About the Author

Bonolo Makgale is the Manager of the Democracy and Civic Engagement Unit at the Centre for Human Rights, University of Pretoria. She is a social justice activist with an academic interest in governance, politics and democratisation in Africa.

Tariro Sekeramayi is an LLM (Multidisciplinary Human Rights) Candidate at the Centre for Human Rights, University of Pretoria and a Programme Intern at the Democracy and Civic Engagement Unit at the Centre.

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