There can be no question that the realisation of socio-economic rights is vitally important in the developing world context, and particularly in southern Africa. But as SALC’s most recent docket shows, the need for the realisation of more traditional civil and political rights is equally acutely felt. Reading through the docket it is hard not to be struck by just how intrusive states are in their citizens’ most intimate spaces. Distinction between civil and political and socio-economic rights is often drawn on the basis that socio-economic rights require positive action from state authorities whereas civil and political rights only require that the State abstain from certain action. We know that distinction to be often misleading and facile.
Still, many of the violations documented below would be cured were the State to refrain from its intrusions. Adding to the violation, and demonstrating that violation of civil and political rights also has negative socio-economic repercussion, it has to be recognised that in contexts of limited resources, those scarce resources deployed to produce violation (e.g. coercive sterilisations in the health context) or to target activities that produce no real social harm (e.g. loitering) mean even fewer resources available to realise desperately needed public goods.
OFF THE DOCKET
Masupha v Senior Resident Magistrate for the Subordinate Court of Berea and Others
On 17 April 2014, the Court of Appeal of Lesotho issued judgment in Masupha v Senior Resident Magistrate for the Subordinate Court of Berea and Others
. The case was brought by Senate Masupha, the first-born child of a chief who argued that denying her the ability to succeed to chieftainship solely due to her gender violated her constitutional rights to equality and freedom from discrimination. SALC intervened as amicus curiae
, friend of the court, in the High Court and the Court of Appeal, arguing that the law violates Masupha’s rights under the Lesotho Constitution. The Court of Appeal upheld section 10 of the Chieftainship Act of 1968 which denies all daughters the right to succeed to chieftainship, but did find that the right to equality was a broader protection and not hindered by the exceptions outlined under the right to be free from discrimination. The case is being appealed to the African Commission on Human and Peoples' Rights.
Read the judgment here
Mapingure v Minister of Home Affairs and Others
On 25 March 2014, the Supreme Court of Zimbabwe issued judgment in Mapingure v Minister of Home Affairs and Others
. The case was brought by Mildred Mapingure, a victim of rape, who was unable to access emergency contraception to prevent pregnancy or a lawful termination when the rape resulted in a pregnancy. Mapingure sued the State for damages for herself as well as maintenance for the child born out of the rape. The Court ordered the government to pay damages for failing to provide Mapingure with emergency contraception, but dismissed the claim that the State was liable for failing to ensure a timely termination of pregnancy, and thus had to provide maintenance for the child. The case was referred back to the High Court for a determination of the quantum of damages.
Read the judgment here
The Registered Trustees of the Women and Law (Malawi) Research and Education Trust v Attorney General
On 28 February 2014, the High Court of Malawi, sitting as a Constitutional Court, issued judgment in The Registered Trustees of the Women and Law (Malawi) Research and Education Trust v Attorney General
. The case challenged a common law principle which required that parties had to show evidence of monetary contribution to property when determining property distribution at the time of divorce. SALC intervened as amicus curiae
. The case was heard before the Constitutional Court in December 2008. Six years later, the Court dismissed the case holding that the Women and Law (Malawi) Research Education Trust did not have the necessary standing to bring the lawsuit. The case is being appealed to the Supreme Court of Appeal.
Read the judgment here
P v Kasonkomona
On 25 February 2014, the Magistrates Court in Lusaka held that the government had failed to put forth enough initial evidence to convict Paul Kasonkomona, an HIV activist who was charged with soliciting for immoral purposes in a public place after appearing on a Zambian television programme in which he spoke in favour of the rights of lesbian, gay, bisexual and transgender persons and sex workers. In its decision, the Court held that the State had not proved the elements of the offence and emphasised the importance of public discussion. The State has appealed the Court's judgment to the High Court.
Read the judgment here
ON THE DOCKET
R v P and Another
SALC is supporting a case before the Zambia Magistrates Court, defending two men who were arrested for unlawful carnal knowledge against the order of nature. The men were refused bail and have been in custody since May 2013. The prosecution closed its case in January 2014. On 4 March 2014, the Magistrates Court ruled that the defense has a case to answer. The defense called a medical expert to testify on behalf of the accused and closed its case. The Court is expected to make a ruling on 30 May 2014.
Government of the Republic of Namibia v LM and Others
SALC is working with the Namibian Women’s Health Network and the Legal Assistance Centre in a case before the Supreme Court of Namibia challenging the coerced sterilisation of three HIV-positive women in public hospitals. The case is an appeal from a decision of the High Court finding that the three women were subjected to coerced sterilisation in violation of their rights under common law and were thus entitled to damages. Oral arguments were heard on 17 March 2014. A decision is expected later this year.
Rammoge and Others v Attorney General
SALC is supporting a case before the High Court of Botswana, asking the Court to review the decision of the Director of Civil and National Registration and the Minister of Labour and Home Affairs refusing to register the organisation, Lesbians, Gays and Bi-sexuals of Botswana (LEGABIBO). Once registered, LEGABIBO aims to provide lesbians, gays and bisexuals with information on human rights and advocate for their rights, particularly the right to access health services. The matter was heard in the High Court on 18 March 2014 and judgment is pending.
SALC is supporting a case before the Blantyre High Court in which eleven women are challenging their subjection to mandatory HIV tests, the admission of the HIV test results as evidence in criminal cases against them, and the public disclosure of their HIV status in open court. The women argue that these actions by government officials violated their constitutional rights. Submissions on the substantive issues in this case were heard on 25 February 2014 and judgment is pending.
S v Officer in Charge of Mwanza Police Station and Others
R v Chiwisi and Others
SALC is working with the Centre for Human Rights Education, Advice and Assistance (CHREAA) in a matter challenging the constitutionality of sodomy provisions before the Malawi High Court. CHREAA has been admitted as amicus curiae
in the matter. On 20 January 2014, the case appeared for pre-hearing in the High Court. The Attorney General objected on procedural grounds, arguing that the matter required certification by the Chief Justice as a constitutional matter before it could be heard by the High Court. The Attorney General subsequently obtained an interim order in the Supreme Court staying the proceedings pending a decision by the Supreme Court on certification.
National Commissioner of the South African Police Service v Southern Africa Litigation Centre and Another
On 19 May 2014, the Constitutional Court of South Africa is expected to hear oral arguments in National Commissioner of the South African Police Service v Southern Africa Litigation Centre. The case is an appeal from the Supreme Court of Appeal's decision in favour of SALC, holding that the South African Police Service must investigate allegations of torture committed in 2007 in Zimbabwe by Zimbabwean officials. SALC, with the Zimbabwe Exiles Forum, initiated litigation after the National Prosecuting Authority refused to investigate evidence submitted by SALC of systemic torture in Zimbabwe.
TRAINING, ADVOCACY AND OTHER PROJECTS
SALC Hosts Expert Consultation on Nuisance-Related Offences in Malawi
On 6 and 7 February 2014, SALC and the Centre for Human Rights Education, Advice and Assistance (CHREAA), convened an expert consultation on the use of nuisance-related offences in Malawi. The expert consultation was a follow up from the discussions held with various stakeholders after the launch of SALC and CHREAA's research report entitled No Justice for the Poor: A Preliminary Study of the Law and Practice Relating to Arrests for Nuisance-Related Offences in Blantyre, Malawi
. The expert consultation discussed proposals for law reform; guidelines for prosecutors; and recommendations for police training on nuisance-related offences.
SALC Hosts Judicial Colloquiums on the Rights of Vulnerable Groups
SALC convened three judicial colloquiums on the rights of vulnerable groups in Lusaka, Zambia; Mangochi, Malawi; and Gaborone, Botswana. The colloquiums brought together judges from each jurisdiction and provided them an important opportunity to discuss the rights and needs of vulnerable groups, particularly persons with disabilities, people living with HIV/AIDS, women, children, and sexual minorities. SALC will publish the papers presented at the colloquiums in a special publication.
SALC Hosts Workshops on Strategic Litigation and Sexual and Reproductive Rights
SALC convened two workshops on litigating sexual and reproductive rights in Mbabane, Swaziland (14 and 15 January 2014) and Harare, Zimbabwe (20 and 21 February 2014). The workshops brought together local civil society organisations to discuss the use of strategic litigation on sexual and reproductive rights as an advocacy tool and to identify opportunities in each country for litigation on sexual and reproductive rights.
Judgment in Mapingure v Minister of Home Affairs and Others: A Step Forward for Women’s Rights or a Token Gesture?
On Tuesday 25 March 2014, the Supreme Court of Zimbabwe ordered the government to compensate a rape victim, Mildred Mapingure, holding that the State failed to prevent a pregnancy resultant from the rape by denying Mapingure access to emergency contraception. Subsequent to the decision, there has been much discussion on whether the decision should be celebrated, with some arguing that the judgment is nothing more than a nominal gesture which fails to address the fundamental issues relating to women’s rights to autonomy and self-determination. This analysis highlights the positive aspects of the judgment, which are indeed a step forward for women’s rights, as well as discusses the problematic aspects of the judgment.