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Promoting Human Rights and rule of law in Southern Africa

Dear Reader,

We are quickly moving towards the close of what has been a frenetic but productive year. One recent resounding success of which we are so proud of is the Botswana decision from the Lobatse High Court which held that the state’s refusal to change the gender marker of a transgender man was unreasonable and violated his rights. This is a monumental victory for the rights of transgender persons in the region.
 
In Malawi, SALC has been instrumental in protecting the property rights of a grandmother whose right to inherit property from her husband was recognised. The Mzuzu High Court granted our clients a permanent injunction preventing the defendants from evicting, taking possession or even trespassing on the property. 
 
On the advocacy front, SALC was instrumental in facilitating the submission of a shadow report by Swazi CSOs to the International Covenant on Civil and Political Rights in July. SALC also made joint submissions to the UN Cat Committee on Malawi to the African Commission on the situation in Lesotho. SALC presented at the 60th Session of the ACHPR in Niger and the 61st session in Gambia on the use of vagrancy laws in Africa and promoted the reform of laws which penalise and target poor persons.
 
SALC is midway through the Africa Regional Grant on HIV: Removing Legal Barriers which is supported by the Global Fund for Aids, Tuberculosis and Malaria. SALC held a Regional Advocacy Meeting in Johannesburg in October on Developing strategies to challenge police abuse of marginalised persons”. The event brought together participants from across the region and was hosted in partnership with the SATF and SRC. The meeting aimed to strengthen the capacity of activists from marginalised groups (such as transgender persons and sex workers) and their lawyers to develop concrete strategies at domestic level to challenge ongoing police abuse. Throughout Africa, transgender persons and sex workers are particularly vulnerable to discrimination, stigma and violence in all spheres of their daily lives – including at work, in public institutions, and facilities, and even amongst their families. Moreover, stigma and discrimination further leads to socio-economic exclusion pushing them further away from important services and information regarding their rights and freedoms. In many instances, police officials are perpetrators of violence and abuse against marginalised groups and target them with the arbitrary enforcement of laws. Sex workers and transgender persons are often arrested and targeted with nuisance-related offences; and while being transgender is not a crime, many transgender persons are also vulnerable to arrest due to provisions which criminalise consensual same sex sexual activities.

Sincerely,
Kaajal Ramjathan - Keogh
Director
November 2017


ON THE DOCKET

Zambia: Challenging Forced Evictions of Communities Living on Customary Land

On 28 September 2017, the High Court of Zambia granted an interim injunction in a case in which the Mugoto community are challenging the Chikankata District Council’s taking over of their land. The community claims that they were allocated and have occupied and developed the land since 1979. The community is challenging the compulsory acquisition of their land without compensation. The press statement is available here. Background information on the case is available here.


Botswana: ND v Attorney General

In May 2017, the Lobatse High Court heard argument in a case challenging the refusal of the Registrar of National Registration to change the gender marker on the identity document of a transgender man. On 29 September 2017, the Court, per Justice Nthomiwa, handed down judgment and held that the refusal to change the applicant’s gender marker was unreasonable and violated his rights to dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination and freedom from inhumane and degrading treatment. The Court ordered the Registrar to change the gender marker on the applicant’s identity document (Omang) from ‘female’ to ‘male’ to protect his dignity and well-being. See press statement here.
 

Botswana: Attorney General v Tsodilo Services (Pty) Ltd t/a The Sunday Standard and Outsa Mokone (Media Institute of Southern Africa-Botswana as amicus curiae)

On 10 October 2017, the Lobatse High Court heard procedural arguments in a case where the Attorney General seeks to interdict the Sunday Standard from publishing information relating to investigations by the Directorate of Corruption and Economic Crimes. The case concerns the constitutionality of section 44 of the Corruption and Economic Crime Act, which provides that any person who without lawful authority or reasonable excuse publishes details of an investigation, shall be guilty of an offence. The respondents are seeking a declaration that section 44 infringes the right to freedom of expression to the extent that it curtails the public’s freedom to receive ideas and information without interference. MISA-Botswana joined the proceedings as amicus curiae in its role as an advocate for the protection of media freedom and freedom of expression. The press release is available here.
 

Zimbabwe: Case Challenging Inability of Diaspora to Vote in Elections

In October 2017, Gabriel Shumba, Sibonile Mfumisi, both based in South Africa, and Darlington Nyambiya in the United Kingdom filed a court application for direct access to the Constitutional Court of Zimbabwe to address the constitutionality of the provisions of the Electoral Act (Chapter 2:13). The Act thwarts Zimbabwean citizens living and working abroad from participating in elections unless they physically go back home in order to exercise their political rights. The application is supported by Zimbabwe Lawyers for Human Rights (ZLHR) working in collaboration with the Southern Africa Litigation Centre. The application is lodged against the Zimbabwe Electoral Commission, Minister of Justice, Legal and Parliamentary Affairs, Attorney General’s office, Ministry of Finance and Foreign Affairs. More information on the case is available here.
 

Zimbabwe: Challenging Police Abuse of Transgender Persons

In 2014, a transgender activist, Ricky Nathanson, issued summons against the Commissioner General of Police, the Officer in Charge of Bulawayo Central Police Station and the Minister of Home Affairs. She claimed damages for unlawful arrest, unlawful detention and malicious prosecution. The trial was conducted in the Bulawayo High Court on 25, 26 and 27 July 2017. During the trial a clinical psychologist testified that the plaintiff suffered deep psychological trauma as a result of the arrest and detention and subsequent media reporting. The plaintiff submitted that the arrest, detention and prosecution violated her right not to be discriminated against, her right to human dignity, her right to privacy, her right to freedom of expression, her right to equal protection of her law and her right to be free from inhuman and degrading treatment. Judgment is reserved.
 

Malawi: Using Complaints to Address Healthcare Violations

SALC is supporting Ladder for Rural Development to submit a complaint to the Medical Council of Malawi together with the family of a young woman who died in childbirth, allegedly as a result of healthcare workers’ negligence. The Medical Council is investigating the complaint.
 

Malawi: Challenging the Constitutionality of the Offences of Begging and Begging using Deformities

In April 2017, a magistrate in Malawi convicted a number of persons with disabilities under the idle and disorderly offence of begging. SALC and the Centre for Human Rights Education, Advice and Assistance (CHREAA) has since applied for judicial review of the conviction and for certification from the Chief Justice for the constitutionality of the offences of begging and begging using deformities to be determined by a panel of judges.
 

Botswana: Challenging the Constitutionality of Consensual same-sex Sexual Acts

On 1 November 2017, Judge Leburu of the High Court of Botswana, ordered that the hearing challenging the constitutionality of sections 164(a), 164(c) and 167 of the Penal Code be heard on 22 March 2018. He also ordered that the organisation Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) be admitted as amicus curiae in the proceedings. LEGABIBO is a human rights organisation and seeks to promote and advance the interests of gay, lesbian, bisexual and transgender persons in Botswana. The press release is available here.


OFF THE DOCKET

South Africa: ICC Ruling on SA’s Failure to Cooperate with ICC’s Request to Arrest President Al Bashir of Sudan

SALC successfully sought leave to be admitted and file submissions as an amicus curiae before the Pre-Trial Chamber of the ICC in a case involving the Prosecutor of the ICC against the Republic of South Africa for its failure to arrest and surrender President Al Bashir who visited the country in June 2015. In its Judgment delivered on 6 July 2017, the ICC found South Africa liable for failing to arrest President Al Bashir contrary to its international law obligations as enshrined under the Rome Statute of the International Criminal Court.  The Court, however, felt short of referring the country to the United Nations Security Council or the Assembly of States Parties as required by article 87(7) of the Rome Statute. When SALC applied for leave to join the case, South Africa strongly opposed its application for the reason that SALC was not a neutral party. The Pre-Trial Chamber agreed that SALC’s submissions were desirable and permitted its written submissions only. The Judgment of the Court can be found here.
 

Malawi: Sylvia Madikhula v Idesi Goba

On Monday 22 May 2017, the High Court of Malawi, sitting in Mzuzu, dismissed an action brought by the Plaintiff, a daughter to an elite couple, against the Defendant, an 89 year old grandmother. The Court found that the property rights of the disputed land was given to the Defendant’s husband in 1988 and passed on to his daughter and widow in 2006 when he died. The Court ruled that the Plaintiff had no right to the 2 hectares sugarcane plot. It further said that the plot must be handed to the Defendant who is the rightful owner, immediately. The Court also granted the Defendant and her family a permanent injunction restraining the Plaintiff, her family, her employees, agents, and any institution or government department from taking possession, cultivating or trespassing on the 2 hectares of land belonging to her or interfering with her constitutional right to property. The Defendant was supported by SALC and Youth and Society Watch (YOWSA). See press statement here. The court documents are available here.


Botswana: Law Society of Botswana and Motumise v President of Botswana and Judicial Services Commission

SALC supported the Law Society of Botswana in an application challenging the process of appointment of judges to the High Court in Botswana. The case focused on the interpretation of section 96(2) of the Constitution of Botswana, which provides that “judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission”. The Law Society submitted that the President is bound to follow the advice of the Judicial Service Commission and that he has no discretion to refuse candidates recommended by the Judicial Service Commission. The Botswana Court of Appeal delivered its judgment on 19 April 2017. The Court of Appeal held that the President’s decision to refuse to appoint Mr Motumise was reviewable. A summary of the judgment is available here. Mr Motumise was appointed to the bench in October 2017 after the Law Society of Botswana filed papers challenging the failure to implement the court judgment. See LSB press release here.

 

PUBLICATIONS

Access to Justice for Healthcare Violations: A Guidance Note for Complaints Bodies

SALC published a Guidance Note for complaints bodies under the Africa Regional Grant on HIV: Removing Legal Barriers. The Note provides concrete recommendations to ensure safe, accessible and effective remedies through alternative complaints processes for vulnerable and key populations who experience health rights violations. The Guidance Note is available here and an explanatory Background Document accessible here.
 

Prosecuting Sexual Violence against Women and Girls with Disabilities in Malawi

SALC has published research on the extent to which sexual offences committed against women with disabilities are prosecuted in Malawi. The research is expected to inform future litigation and advocacy in the area of violence against women with disabilities.  The full research report is available here.
 

Towards a Human rights-based Approach to Learner Pregnancy Management in Malawi

SALC and the Malawi Human Rights Commission published a research report on the impact of the policy dealing with learners who get pregnant. SALC hosted a meeting with civil society partners and other stakeholders in Malawi, in June 2017, to validate the research and discuss the challenges. Read the report here.


TRAINING, ADVOCACY AND OTHER PROJECTS

Dialogue on Sexual Orientation and Gender Identity: Do Human Rights Instruments Impact on the Lives of the Marginalised?

On 2 October 2017, SALC in partnership with the Open Society Initiative for Southern Africa and the Southern African Trans Forum hosted a dialogue on the impact of international and regional human rights instruments and interventions on marginalised communities in the Southern African region. The panellists included, Justice Edwin Cameron, Advocate Pansy Tlakula, Anna Mmolai-Chalmers and Ricky Nathanson.
 

Regional Meeting on Developing Strategies to Challenge Police Abuse of Marginalised Persons

From 3-5 October 2017, SALC in partnership with the Southern African Trans Forum (SATF) and Sexual Rights Centre (SRC) hosted a three day regional advocacy meeting which brought together 60 participants from across the region including Botswana, Kenya, Lesotho, Malawi, Namibia, Nigeria, South Africa, Tanzania, Uganda, Zambia and Zimbabwe. Speakers reflected on various advocacy and litigation strategies that have been used to challenge police abuse.
 

Swaziland CSO’s Submit Report under the ICCPR

SALC, COSPE and the ICCPR Centre supported Swaziland civil society groups to develop a report on the status of implementation of the International Covenant on Civil and Political Rights (ICCPR) in the country. The report was submitted to the UN ICCPR Committee in June and the Committee issued its concluding observations to the government of Swaziland in late July 2017. The concluding observations and recommendations as adopted by the UN ICCPR Committee were aligned to the issues raised by Swaziland civil society. See the full report here and the ICCPT Committee Concluding observations here.
 

UN CAT Committee told about Challenges in Addressing Torture in Malawi

SALC and the Malawi based Centre for Human Rights Education, Advice and Assistance (CHREAA) made a joint submission to the UN CAT Committee highlighting concerns regarding the implementation of the Convention against Torture in Malawi. The submission was made ahead of the CAT Committee review of Malawi in Nov-Dec 2017. It was tabled as part of the List of Issues Prior Reporting (LoIPR) and speaks to the challenges Malawi is facing in addressing torture in the country. Among other issues, the submission raises concerns about unlawful confessions extracted under torture, prison overcrowding as well as deprivation of adequate nutrition in prisons in the country.


SALC Presents on African Commission Panel on Legislation Penalising Poverty in Africa

SALC’s Regional Advocacy Lawyer presented on plenary at the 60th Ordinary session of the African Commission in Niamey, Niger. The presentation spoke to the Gwanda case relating to a challenge against rogue and vagabond laws in Malawi. Partner organisations, namely International Commission of Jurists (ICJ) Kenya, Centre for Human Rights Education, Advice and Assistance (CHREAA), Pan African Lawyers Union (PALU) and African Policing Civilian Oversight Forum (APCOF) were represented in the panel. The initiative is part of the broader campaign, aimed at reforming legislation penalising the poor in Africa. A similar presentation was made during the NGO Forum of the African Commission which took place in Niamey a week before the session of the Commission.
 

SADC CNGO Resolution on Access to Justice in SADC Region

SALC, HURISA, Amnesty International and other members of the Coalition for an Effective SADC Tribunal (SADC Tribunal Coalition) attended the 13th SADC CNGO Forum and pushed for the adoption of a resolution on access to justice in the SADC region. The resolution was developed as part of the outcome of a parallel panel addressing the rule of law and access to justice in the SADC region. It was then adopted in plenary session at the SADC CNGO meeting and sent to SADC Summit of Heads of State.
 

Poster Presentation at the International Disability Summer School

In June, SALC’s Health Rights Lawyer presented a poster on SALC and its partners’ work on Mwewa and Others v the Attorney General and Another, a case in Zambia challenging the constitutionality of the 1949 Mental Disorders Act, at the International Disability Summer School at the National University of Ireland, Galway.
 

Malawi: Advocacy on the HIV (Prevention and Management) Bill

SALC has been working with the AIDS and Rights Alliance of Southern Africa (ARASA), the International Coalition of Women Living with HIV (ICW) Global, ICW Malawi, the Centre for Human Rights Education, Advice and Assistance (CHREAA), the Centre for the Development of People (CEDEP), the MANGO Key Populations Network, and Youth and Society Watch (YOSWA) to advocate against human rights infringing provisions in Malawi’s 2017 HIV (Prevention and Management) Bill. This has included preparing written submissions to Parliament’s HIV Committee and parliamentarians, press materials, as well as attending technical reviews and meetings with key stakeholders. The most recent discussions on the Bill are available here.
 

Zambia: Advocacy against Mandatory HIV Testing and Treatment

SALC supported Zambian civil society partners to advocate against announcements after a cabinet meeting in Zambia that HIV testing and treatment will be mandatory at all healthcare facilities, violating the right to informed consent. To this end, SALC and the AIDS and Rights Alliance for Southern Africa (ARASA) released a statement welcoming subsequent Ministerial undertakings to protect rights, which statement was reported on in the Zambian Press.
 

SALC at the 2017 Public Interest Law Gathering

On 25 July 2017, SALC hosted a panel discussion on laws penalising the poor in Africa. The panel spoke to the proliferation of legislation targeting people who are found in the marginalised sectors of society, particularly indigent or poor people. Drawing on examples from Malawi the panel provided insights into the negative effects of these laws and shared ideas on prospect regional standards seeking to address the challenges. The event was supported by other organisations such as the African Policing Civilian Oversight Forum (APCOF), Africa Criminal Justice Reform (ACJR), the Social Justice Coalition (SJC) and members of the public who joined the meeting. See further details here.


ANALYSIS

Op-Ed: No Surprises with ICC’s Finding against South Africa

The Pre-Trial Chamber of the International Criminal Court (ICC) ruled on 6 July that South Africa had obligations to arrest Sudan’s President Omar al-Bashir and failed to do so. The ICC found unanimously that South Africa failed to comply with its obligations, contrary to the provisions of the Rome Statute. They did not however make any referral to either the Assembly of State Parties to the Rome Statute or to the United Nations Security Council (UNSC). See analysis of the judgment here.
 

Op Ed: Health or Human Rights? False Dichotomy could Fuel Resurgence in Forced HIV Testing

SALC’s Health Rights Programme Lawyer and the Director of the AIDS and Rights Alliance for Southern Africa (ARASA) published an article entitled “Health or Human Rights? False Dichotomy Could Fuel Resurgence in Forced HIV Testing” in Bhekisa, the Mail and Guardian’s health journalism centre.
 

Blog: International Albinism Awareness Day

SALC’s Health Rights Programme Lawyer and Regional Advocacy Programme Lawyer prepared a blog together with Malawi activists on International Albinism Awareness Day entitled “Regional Action is Critical to Protect Rights of People with Albinism”. The blog was reported on in the press.
 

Op-Ed: Policing of Petty Offences in Malawi

SALC and CHREEA authored an opinion piece in the Malawi Nation on the inappropriate use of sweeping exercises and arrests to police petty offence. The article is available here.
 
SALC on YouTube


News You May Have Missed!
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HIV Testing Confirmation Good-Human Rights Organisations
 
Civil Society Open Letter to the AU Concerning Zambia State of Emergency
 
ICC Finding on South Africa’s Non-Compliance Falls Short

Statement: Civil Society Calls on SA Government to Co-Sponsor and Support Resolutions to Address Violence and Discrimination against Women before the UN Human Rights Council
 
SALC Calls on the Governments of Southern African Countries to do more to Protect Refugees, Asylum Seekers and Migrants on World Refugee Day 20 June 2017
 
Regional Action is Critical to Protect Rights of People with Albinism
 
SALC, COSPE and ICCPR-Centre help Swaziland CSO Submit ICCPR Report to the Human Rights Committee
 
Successful Outcome of Judiciary Review of Decision to Grant Refugee Status to Suspected War Criminal before the Supreme Court of Appeal
 
Oral Statement on the Human Rights Situation in Lesotho
 
Philanthropy, Civil Society and Litigation – without these our Democracy could Truly be Captured
 
Universal Periodic Review of South Africa-3rd Cycle April-May 2017

 
 
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