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Promoting Human Rights and rule of law in Southern Africa

Dear Reader,

International Justice is once more in the spotlight this year. South Africa has been requested to present itself before the Pre-Trial Chamber of the International Criminal Court (ICC) as part of a Cooperation Hearing. This is in connection with its failure to arrest Sudanese President Omar al Bashir when he was on South African territory in 2015. South Africa’s failure to arrest and indeed its facilitation of President al Bashir’s swift exit from the country will be interrogated by the ICC in a public hearing. Notwithstanding South Africa having deposited its instrument of withdrawal in October last year, it continues to be a member of the ICC currently with the requisite responsibilities which member states agree to be bound by.

The situation of Gambia has been the cause of joy with the departure of Yahyah Jammeh, its President of 22 years, in favour of a democratically elected Adama Barrow who has declared his intention to reverse the decision to leave the ICC. There will no doubt be much behind the scenes discussions at the Addis Ababa African Union (AU) Summit on a potential mass exodus from the ICC despite a push back from Botswana, Cote d’Ivoire, Nigeria, Senegal and Tunisia. In the absence of an African Court with criminal jurisdiction and no regional courts in southern Africa, access to justice for victims of egregious human rights abuses is an ongoing concern. The peace and security situation in Lesotho continues to be fragile. SALC is concerned that soldiers arrested more than 18 months ago (May-June 2015) remain in detention without trial and in deteriorating conditions. Their best option for release appears to be an Amnesty Bill which will require them to plead guilty to crimes they allege not to have committed.

On the up side, SALC has together with long time Malawian partner CHREEA, successfully challenged the constitutionality of the rogue and vagabond offence in Malawi. SALC has also assisted an indigent young Malawian mother who was unrepresented at her criminal trial to successfully appeal a conviction for negligent transmission of HIV. The mother and baby who were initially incarcerated have now been released.

Wishing you all a safe and productive 2017.

Kaajal Ramjathan-Keogh
Executive Director

 

OFF THE DOCKET

 

South Africa: Southern Africa Litigation Centre v Minister of Justice and Others 

SALC sought the implementation of an arrest warrant for Sudan’s President Omar al Bashir who arrived in South Africa for the African Union (AU) summit that took place in Johannesburg 7-15 June 2015. The International Criminal Court (ICC) issued a warrant for his arrest in 2009 and 2010 on charges of war crimes, crimes against humanity and genocide allegedly committed in Darfur after a 2003 insurgency. As a signatory to the Rome Statute of the International Criminal Court and having domesticated the Statute, South Africa was obligated to arrest President Bashir if he is found on South African territory. The trial court found in favour of SALC. The state appealed this case to South Africa's Supreme Court of Appeal, which held that South Africa had failed in its obligation to arrest President al Bashir. The state then lodged an appeal with the Constitutional Court. This appeal was withdrawn a month before the hearing date, following South Africa depositing its instrument of withdrawal with the ICC. SALC and other interested parties are, in a separate case, challenging South Africa’s withdrawal from the ICC. Full details of this case are available in this newsletter.


Lesotho: Hashatsi v Prime Minister of Lesotho and Others

SALC and the Transformation Resources Centre supported the wife of the late former commander of the Lesotho Defence Force (LDF), Brigadier Maaparankoe Mahao, to oppose court proceedings brought to set aside a SADC-led investigation into her husband’s killing by members of the LDF. The applicant in the case, Lieutenant Colonel Tefo Hashatsi, is a Special Forces Commander who has been implicated in Brig Mahao’s killing. Amongst other relief, the applicant filed an urgent application in the High Court to interdict the SADC Commission of Inquiry from making any findings against him and to set aside the Commission’s proceedings. None of the cited respondents, including the Prime Minister, opposed the application. Mrs Mahao successfully sought leave to intervene as the fifth respondent. She argued that the application should be dismissed and that the applicant was not entitled to the relief he sought. On 8 February 2016, the High Court dismissed the application in its entirety, affirming the legality of the SADC Commission of Inquiry and its proceedings. The Prime Minister presented the Commission’s final report to Parliament on the same day with references to the applicant expunged from the report. The applicant appealed the High Court’s decision to the Court of Appeal. The Court of Appeal heard oral arguments on 17 October 2016 and judgment was handed down on 28 October 2016 dismissing the appeal. Read here.  
 

Malawi: State v Gwanda

SALC and the Centre for Human Rights Education, Advice and Assistance (CHREAA) supported a case challenging the constitutionality of the offence of being a rogue and vagabond. In March 2015, the applicant was arrested by police whilst on his way to a market where he works as a street vendor. He was charged with the offence of being a rogue and vagabond. Section 184(1)(c) of the Penal Code provides that “every person in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place at such time and under such circumstances as to lead to the conclusion that such person is there for an illegal or disorderly purpose, is deemed a rogue and vagabond.” The offence of being a rogue and vagabond exists in the same wording in the Penal Codes of many African countries and dates back to the era when these countries were subjected to British colonial rule, including Nigeria, Gambia, Zambia, Uganda, Botswana, Seychelles, and Tanzania. On 4 October 2016 the High Court heard substantive arguments by the parties and amici curiae. Judgment was delivered on 10 January 2017 declaring the offence unconstitutional and invalid. Read here.


Malawi: Republic v Mudila and Others

In November 2016, Malawi police arrested 24 people at a bus station in Blantyre and charged them jointly with the offence of common nuisance. SALC and the Centre for Human Rights Education Advice and Assistance (CHREAA) filed arguments in December 2016 challenging the broad use of the common nuisance offence by the police. The matter was heard on 19 December 2016 and the accused were released on 20 December 2016.


Malawi: Madikhula and Another v Goba and Another

On Friday 2 December 2016, the High Court of Malawi, sitting in Mzuzu, dismissed an action brought by the plaintiffs, an elite couple, against two female defendants. The plaintiffs claimed that the land inherited by the defendants, a single woman (57) and her widowed mother (87) from their deceased father and husband respectively in 2006, was allocated to the plaintiffs in 2010 by the Dwangwa Cane Growers Trust. The plaintiffs sought a declaration that they were the rightful occupiers with exclusive rights over the land in issue. The defendants were not aware that the government acquired and leased their land to Dwangwa Cane Growers Trust and were never consulted. The plaintiffs commenced this matter in the High Court in November 2013, some three months after the Magistrate’s Court declared that the property belonged to the defendants. The plaintiffs took over the defendants’ only property, which was their source of income and livelihood, forcing them into landlessness and destitution.

On 2 December 2016, the High Court ruled that the Magistrate’s Court that gave the land in issue to the defendants was a competent court with jurisdiction to hear customary land matters. The High Court noted that the plaintiffs who were aggrieved by the decision of the Magistrate’s Court did not seek leave to appeal nor did they apply for a stay of execution. Instead, the plaintiffs instituted a fresh action in the High Court to circumvent the appeal process. Without deciding on the merits, the High Court dismissed the matter and ordered the plaintiffs to pay the costs of the proceedings.

The defendants were supported by SALC and Youth Watch Society. Read here.
 

Malawi: Prosecution of a Woman Living with HIV for Breastfeeding

SALC worked with the International Coalition of Women (ICW) based in Malawi and a private lawyer, Wesley Mwafulirwa, to support an appeal brought by a woman living with HIV against her conviction under section 192 of the Penal Code after breastfeeding a child. Section 192 criminalises any negligent act likely to spread disease. The woman approached the Zomba High Court appealing her conviction and sentence and challenged the constitutionality of section 192 of the Penal Code alleging that it is vague and overbroad. The State agreed that the appellant’s conviction and the sentence imposed on her should be overturned and set aside. The appeal was heard by the Zomba High Court on 2 December 2016. The Court, per Ntaba J, granted an order that the appellant’s identity be concealed to protect her confidentiality and that of the children concerned and released the appellant on bail pending the determination of the appeal. On 19 January 2017, the High Court acquitted the appellant on the basis that the charge against her was ambiguous and her plea defective, noting the trial Court’s violation of her fair trial rights and bias against her. Read here.


Swaziland: ND v Minister of Health and Social Services and Another

SALC is supporting a case on the involuntary sterilisation of a woman living with HIV in Swaziland. The case filed in November 2015 sought an order declaring that the applicant was sterilised without her informed consent violating her rights to: human dignity, protection from cruel, inhumane and degrading treatment and right to found a family as protected by sections 18(1), 18(2), and 27(1) of the Constitution of the Kingdom of Swaziland. The client accepted an out-of-court settlement in December 2016 (the matter had been set down for hearing on 10-12 January 2017). SALC worked with Kenneth Motsa of Robinson Bertram Swaziland and Women Together in Action in Swaziland to support this case.
 

ON THE DOCKET

Lesotho: Basildon Peta v Minister of Law, Constitutional Affairs and Others

SALC is supporting Basildon Peta, the owner and publisher of the Lesotho Times newspaper, in a case where he is charged with criminal defamation. The Lesotho Times ran a series of stories on the former Lesotho Defence Force Commander Lieutenant General Tlali Kamoli. Soon after publication of these stories the editor of the Lesotho Times, Lloyd Mutungamiri, was shot in an apparent assassination attempt. Also linked with the publications, Mr Peta was arrested and charged with criminal defamation. In Zimbabwe, the offence of criminal defamation has been declared unconstitutional, and in South Africa a Bill was submitted to Parliament to remove the offence from the country’s law. Arguing on this basis, Mr Peta submits that the Lesotho Court should find that the offence of defamation inconsistent with Lesotho’s constitutional protection of the right to freedom of expression.
 

Lesotho: Mokhele and Others v Commander of Lesotho Defence Forces and Others

SALC is supporting three former female soldiers in Lesotho who were dismissed from the Lesotho Defence Force (LDF) after falling pregnant. Their dismissal letters stated that they were dismissed for contravening standing order 2 of 2014 which provided that no female “Private” is allowed to fall pregnant within the first 5 years of service in the LDF.  The application challenging the dismissal was lodged in the High Court of Lesotho in December 2016. It prays that the decision of the Commander of the LDF ordering the discharging of applicants from the LDF be reviewed, corrected and set aside as being irregular and unlawful and that it be declared that the standing order is contrary to public policy and common law principles of reasonableness, legality and rationality.
 

Malawi: Suspension on learners due to early pregnancy 

SALC is working with Youth Watch Society (YOWSO) on a case involving the suspension of several students from a school in Malawi over pregnancy.  The applicants filed for review of a Magistrates Court decision to fine parents of students who were pregnant and those responsible for the pregnancies. The applicants are also challenging the unlawful detention of the students and parents in police cells when they were unable to immediately pay the fines. The matter was filed in the High Court in November 2016. Read here.
 

Malawi: S v Precious Michael

SALC is working with the Centre for Human Rights Education, Advice and Assistance (CHREAA) and a private lawyer, Daniel Kalaya, to review a discriminatory sentence against a man with albinism. In essence, the case concerns a challenge brought against the trial court’s decision imposing a heavy sentence against a man with albinism simply because of his condition. The appeal has been set down before the High Court on 7 February 2017. Read here.
 

Nigeria: X v Brink and Others

SALC is working with Lawyers Alert based in Nigeria to challenge mandatory HIV testing of a security company employee and his subsequent dismissal on the basis of his HIV-status.  In an application to the Abuja Industrial Court, the applicant argues that the law precludes him from being compelled to undergo HIV testing by an employer. He further argues that being compelled to test and subsequently dismissed violated his rights to dignity, privacy, his right to work and his right to freedom from discrimination.
Read hereSALC is supporting this case due to its participation in a 10-country regional grant (the Africa Regional Grant on HIV) which includes Nigeria.


South Africa: Constitutionality of South Africa’s Notice of Withdrawal from the ICC

On 21 October 2016, the South African government announced that it had deposited its instrument of withdrawal from the Rome Statute of the International Criminal Court (ICC) with the United Nations Secretary General.  This was done without the necessary parliamentary procedures and is now the subject of a legal challenge questioning the procedural and substantive elements of the notice of withdrawal.

The case was brought by the Democratic Alliance and all parties to the case of Minister of Justice and Others v the Southern Africa Litigation Centre, (the case which initially challenged the South African government’s refusal to arrest Sudanese President Omar al Bashir - the Bashir case) were cited in the legal papers given their involvement in the Bashir case. SALC is a therefore a party to the proceedings. The matter was heard in the North Gauteng High Court on 5 and 6 December 2016 and SALC sought in its submissions to ensure that the civil society perspective is before the Court and has been acknowledged. SALC’s position is that the South Africa’s instrument of withdrawal is unconstitutional and that it was predicated on a number of material errors of law making it irrational. Read here.


Swaziland: Provisions in Terrorism and Sedition Laws Declared Unconstitutional

On 23 September 2016, the Swazi High Court delivered judgment in a case challenging the constitutionality of the Sedition and Subversive Activities Act and the Suppression of Terrorism Act. The Court ruled by a majority of 2-1 that the provisions that defined terrorism, sedition and subversion, as well as those that facilitated the designation of groups as terrorist entities were inconsistent with the protection of the right to freedom of expression and therefore unconstitutional. This was a tremendous decision confirming that when government seeks to limit the right to freedom of expression on grounds of national security and public safety it must provide strong evidence for why such a limitation is necessary. In the past, the provisions highlighted had been used indiscriminately against political opponents in Swaziland. Read more on our case page here. Further reading is available here.
 

Swaziland: Sacolo v Sacolo and Ministry of Justice and Constitutional Affairs

SALC is working with Women and Law in Southern Africa (WLSA-Swaziland) on a case challenging the common law marital power and the Marriage Act of 1964. The law prevents women from entering into contracts without obtaining permission from their husbands. The law also bars women from representing themselves in civil suits and administer property. Sadly, these restrictions make it impossible for women to acquire loans from banks and it precludes them from securing mortgages and other forms of financial credit. The applicant is asking the Court to remove marital power from the common law in order to grant equal rights for men and women including the rights for women to sue or to be sued, and the possibility of entering into contracts and administering property. These rights and or entitlements are being sought for all Swazi women married under the civil system as they are affected by the discriminatory laws in the country. Moreover, the applicant is also asking the Court to strike down specific provisions in the Marriage Act that discriminate on the basis of race.

 

 

TRAINING, ADVOCACY AND OTHER PROJECTS

Side Event on ICC Withdrawals at the ASP

SALC and the Hague-based Africa Legal Aid (AFLA) hosted a side event entitled, “ICC Withdrawals: Is Africa Running Away from Justice?” on the margins of the 2016 International Criminal Court Assembly of States Parties (ASP) on 18 November 2016. Read here.  
 

African Commission on Human and Peoples' Rights Consultation on the Decriminalisation and Declassification of Petty Offences 

On 5 and 6 December 2016, the African Commission on Human and Peoples’ Rights, the African Civil Society Policing Forum and SALC co-hosted a Regional Consultation Meeting on the Zero Draft Principles on the Declassification and Decriminalisation of Petty Offences in Africa. The meeting provided key stakeholders from across Africa with an opportunity to review the draft text and provide their expert opinion and commentary. Read more.
 

Presentation at HIV Panel of the African Commission on Human and Peoples’ Rights

SALC’s Sexual and Reproductive Rights Programme Lawyer gave a presentation titled “HIV and women's rights in Africa: key insights on progress and challenges from draft study of the HIV Committee of the African Commission”, during a panel discussion organised by the Committee on the Protection of the Rights of People Living with HIV (PLHIV) and those at risk, vulnerable to and affected by HIV (HIV Committee). The HIV Committee’s Panel was entitled “Women's rights, HIV and health in Africa: Progress, Challenges and perspectives,” and was held in plenary.

 

SALC Participates in the Drafting of a Resolution on the Situation of Human Rights in SADC Countries

SALC and representatives of Southern African countries attending the NGO Forum of the African Commission on Human and Peoples’ Rights drafted a resolution on the situation of human rights in SADC countries. The resolution was adopted in plenary by the NGO Forum and tabled at the African Commission session. Importantly the resolution raised concerns about human rights violation in Malawi, Mozambique, Namibia, Zambia, Zimbabwe, Tanzania and Botswana. The full text of the resolution is available here.
 

SALC Participates in High Level Advocacy on the SADC Tribunal

Several activities relating to the mourning of the demise of the SADC Tribunal were implemented between 14 and 18 November 2016. On 14 November 2016, a statement was released which was disseminated widely using website of coalition members and the media. The statement is available here.

On 18 November, the date that marked the inauguration of the SADC Tribunal, SALC, Human Rights Institute of South Africa (HURISA) and the Centre for Human Rights (CHR) co-hosted an event meant to heighten the concerns relating to the demise of the SADC Tribunal. The event sought to educate citizens about the importance and the challenges facing the Tribunal. Participants were interviewed to gather their views on the absence of a sub-regional body with jurisdiction to adjudicate on human rights matters. Flyers were distributed and a short video was widely disseminated in social media. See the video footage here.
 

Regional Meeting on Laws and Policies Affecting Transgender Rights in Southern Africa

On 3 to 5 October 2016, SALC and the Southern Africa Trans Forum (SATF) jointly organised a three day workshop in Johannesburg, South Africa.  Established in 2015, the SATF is an alliance of trans partner organisations based in the SADC region. The alliance is led by transgeneder persons to deal with trans specific issues. The meeting was supported by the United Nations Development Programme (UNDP) as a principal recipient of a regional grant from the Global Fund to Fight AIDS, Tuberculosis and Malaria. The main objectives was to raise awareness of the rights of transgender persons and to identify barriers in the laws and policies with view to address the challenges faced by transgender persons. Sixty-five participants from Botswana, Kenya, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe attended the event. Participants learnt from each other by sharing their experiences and the strategies they use to address challenges faced by transgender persons. The event also offered a platform to sharing best practices in the region.
 

Judicial Seminars

During 2016, SALC co-hosted a number of seminars with the judiciary, starting with judicial colloquiums on Goal 16 of the Sustainable Development Goals in the first half of the year in Malawi, Botswana and Zambia. On 7 November 2016, SALC and the Malawi judiciary co-hosted a seminar for judges in Zomba on legal reasoning and writing. Professor James Raymond, an expert in legal writing and reasoning facilitated the seminar. The seminar also served as a consultation on the draft Civil Procedure Rules. A similar seminar on legal reasoning was hosted with the UNDP and Swaziland judiciary in Swaziland on 11 November 2016. From 25 to 26 November 2016, the International Commission of Jurists (ICJ) hosted a bar-bench colloquium in Zimbabwe entitled “Towards SDG 16: Building effective, accountable and inclusive institutions at all levels of justice delivery”. SALC supported the event.

During the 16 days of activism to end violence against women, SALC and the National Association of Women Judges and Magistrates of Botswana co-hosted a seminar for judges and magistrates in Botswana on gender-based violence and equality. The seminar took place on 2 December 2016 in Gaborone.
 

Seminar on National Security and Freedom of Expression

SALC and Amnesty International hosted a side event at the SADC Council for NGOs Forum in Swaziland, in August 2016. The event focused on the use of national security legislation curtailing freedom of expression. It sought to demonstrate that there is an increasing trend in countries in southern Africa to use national security offences against peaceful demonstrators when they criticise the state or its policies. The seminar looked at personal experiences of activists in Angola, Swaziland and Zimbabwe and highlighted how threatening the use of these offences can be to the enjoyment of freedom of expression by human right activists.
 

 

PUBLICATIONS

Booklet: “Laws and Policies Affecting Transgender Persons in Southern Africa” 

SALC’s latest booklet on the Laws and Policies Affecting Transgender Persons in southern Africa explores the laws and policies that could potentially affect the rights of transgender persons in ten Southern African countries: Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Zambia and Zimbabwe. The aim of the booklet is to provide transgender persons, human rights activists and human rights organisations, with an easy guide on the laws and policies in their own countries which may potentially affect their rights and interests. The booklet is available here.


Booklet: “A Victory for the Right to Freedom of Association: The LEGABIBO Case” 

The booklet on the LEGABIBO case provides a background to the case, case summary and the major arguments used in Botswana Court of Appeal in this groundbreaking case on the right to freedom of association for lesbian, gay, bi-sexual and transgender persons. Read here.


Guidebook on How to Use Complaints to Address Healthcare Violations 

The Guidebook gives information for healthcare users about human rights when using healthcare services, and on how to use complaint processes at healthcare facilities, in national human rights institutions and in health professions and nursing councils. Read more here.
 

Litigation Manual on Freedom of Expression 

This manual is a resource for private and public lawyers in southern Africa who are litigating cases in domestic courts challenging laws, policies and practices involving freedom of expression. The manual discusses the use of foreign and international law in domestic litigation as well as providing an overview to the right to freedom of expression and the manner in which it can be limited. Read here.
 

Perspectives from Judges and Lawyers in Southern Africa on Promoting Rule of Law and Equal Access to Justice under Sustainable Development Goal 16 

This publication seeks to further broaden discussions on promoting the rule of law and equal access to justice in southern Africa so that the achievement of Goal 16 moves from the conceptual to impactful initiatives. The book follows on a previous publication entitled “Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi and Zambia”. Read here.


Research Report : "Accountability and Redress for Discrimination in Healthcare in Botswana, Malawi and Zambia" 

This research report is concerned with the availability, effectiveness and sufficiency of complaints processes providing accountability and redress for persons who experience discrimination in healthcare settings. The report focuses on the experiences of sex workers, lesbian, gay, bisexual and transgender (LGBT) persons, women living with HIV, and persons with disabilities in Botswana, Malawi and Zambia. Read more.
 

Research Report: “They Should Protect Us Because That is Their Job” 

SALC’s report “They Should Protect Us Because That is Their Job” is a preliminary assessment of sex workers’ experiences of police abuse in Lusaka, Zambia. The report aims to get a better understanding of the experiences of sex workers and their vulnerability in terms of discrimination, harassment and physical and sexual abuse by police officials. In particular, the research aims to establish from sex workers in Lusaka, Zambia, how police abuse has affected them. Read here.
 

SALC launches a Case Book 

In celebration of SALC’s 10 year anniversary, the organisation launched a booklet summarising some of its cases in various countries over the years. The Case book is available here.
 

Annual Report: 2014/2015 

Click here to see SALC’s latest annual report.



ANALYSIS

Symposium: Towards a System of International Justice 

SALC’s International Criminal Justice Lawyer makes a presentation during a symposium organized by the Africa Group for Justice and Accountability and the Wayamo Foundation. The presentation provided an analysis of a case brought against the government of South Africa for its failure to implement an arrest warrant issued by the International Criminal Court (ICC) against Sudanese President Omar Albashir.  A short video of the analysis is available here.
 

ICC Withdrawal

SALC lawyer speaks out about concerns relating to South Africa’s decision to withdraw from the International Criminal Court. The lawyer raised serious concerns about the legality of the decision and its consequences. More details are available here.
SALC on YouTube


News You May Have Missed!
Malawi Court Rules in Favour of Two Women who were Previously Dispossessed of their Land

Can SADC Pass the Lesotho-test?

Lesotho Court of Appeal Decision on SADC Commission of Inquiry

South Africa tells International Criminal Court: ‘We Quit

ICC Exit: It’s the Ordinary People who will Suffer

SALC Statement on South Africa’s Withdrawal from the ICC and Withdrawal of Bashir Constitutional Court Case 24 October

Withdrawal from the ICC-Curious and Questionable

SALC Statement on South Africa’s Withdrawal from the ICC-21 October

SALC Submission on the Green Paper on International Migration

Joint Stakeholder Submission to the UN Human Rights Council Universal Periodic Review of South Africa

AU: Activists Challenge Attacks on ICC

Civil Society Action against AU Call for ICC Withdrawal

Swaziland High Court Strikes Down Provisions of the Sedition and Subversive
Activities and Suppression of Terrorism Acts

 
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