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Promoting Human Rights and rule of law in Southern Africa

Dear Reader,

Several countries in Southern Africa have been experiencing turbulent political times of late. We are increasingly seeing the long arm of the executive intervening or attempting to intervene beyond its mandate at times openly violating the separation of powers.  In South Africa, we have observed increasing calls for President Zuma to step down and the Constitutional Court is currently weighing up the legitimacy of a secret ballot on a parliamentary motion of no confidence against the President.

Lesotho has called for snap elections following a recent vote of no confidence in the Prime Minister. Lesotho has been going through a security crisis since the mid-2015 assassination of the head of its defence force. Despite SADC recommendations and ongoing CSO calls for a process of reforms; these are yet to emerge. Elections do not appear to be the answer to Lesotho’s instability woes.

Zambia appears to be moving towards authoritarian rule with President Lungu’s arrest of opposition leader Hichilema. During this period, SALC has continued to operate within this quagmire.

In early April, SALC made submissions before the ICC in The Hague in a hearing which will determine whether South Africa failed to cooperate with a request by the ICC to arrest President Omar al Bashir of Sudan. SALC also made submissions on the ICC Repeal Bill which the South African Minister of Justice has now withdrawn.

In Botswana, the appeal court pronounced on the overly broad scope of presidential powers and held that the President must follow the advice of the Judicial Service Commission in the appointment of judges. Following this ruling, we saw President Khama appoint his Permanent Secretary to the Judicial Service Commission in a further attempt at executive encroachment.

In Malawi, SALC successfully intervened in the case of a person with albinism who was being discriminated against on account of his disability.  In a huge win over laws which criminalise poverty, SALC together with long-time partner CHREAA challenged the constitutionality of rogue and vagabond offences in Malawi. In another strategic intervention to protect land owned by an indigent mother and daughter, the Malawi High Court confirmed that they were rightful occupiers with exclusive rights over the land in question, which land has now been restored to the women. SALC also intervened in an appeal in support of a young Malawi mother who was convicted of the negligent transmission of HIV for breastfeeding a child. The mother has been released from prison where she was incarcerated with her infant child. SALC intervened in Malawi to challenge the suspension of pregnant learners from learners attending schools.

Full details of these and other cases are in the May newsletter.

Kaajal Ramjathan-Keogh
Executive Director

 

OFF THE DOCKET

 

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 Commission. The Botswana Court of Appeal delivered its judgment on 19 April 2017. It held that the President’s decision to refuse to appoint Mr Motumise was reviewable. A summary of the judgment is available here.


Malawi: S v Precious Michael

SALC worked 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. The appeal was heard in the Thyolo High Court on 8 February 2017. Justice Kamanga delivered a judgment on the same day. The Court set aside the appellant’s sentence as unlawful and excessive, having exceeded the statutory minimum. The Court, however, declined to declare that the lower court’s sentence was discriminatory. A written judgment remains outstanding. Read more 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. 

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. The judgment was widely reported on in Malawi and was also discussed at the African Commission on Human and Peoples’ Rights consultation on the draft principles on decriminalisation and declassification of petty offences. In February, SALC and CHREAA met senior police commissioners in Malawi to discuss the judgment and its impact. The meeting led to a directive for the police to refrain from arresting persons under the offence. Since then, CHREAA has visited police stations and prisons to monitor whether there were any arrests under the offences subsequent to it being declared unconstitutional. CHREAA and SALC also arranged a training session with magistrates in Malawi in March to ensure that they were aware of the recent judgments on the rogue and vagabond, living on earnings of prostitution and HIV criminalisation cases. Read more here.

A booklet summarising the judgments in SALC’s recent cases in Malawi is available 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 more here.


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, a wealthy 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. In compliance with the Mzuzu High Court decision, the plaintiff surrendered a 2 hectares sugar cane plot to the defendants. On 2 March 2017, the plaintiffs also deposited a sum of MWK 566,472-16 in the Mzuzu High Court Registry to be paid to the defendants as partial reimbursement for the value of the sugar cane that was sold while the matter was pending in the High Court.  The defendants were supported by SALC and Youth Watch Society. Read more here.
  
 

ON THE DOCKET

Malawi: ON and Others v Child Protection Team

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 students and parents who were held in police cells for failure to pay fines imposed on them, immediately. The matter was filed in the Mzuzu High Court in November 2016 and argued on 2 May 2017. A summary of the case is available here.
 

Zambia: Mwewa and Others v the Attorney General and Another

SALC is supporting a petition by two persons with mental disabilities and the Mental Health Users Network of Zambia (MHUNZA) to repeal Zambia’s Mental Disorders Act of 1949. The petitioners argue that the Act unconstitutionally infringes the rights to dignity, liberty and the right to freedom from discrimination of persons with mental disabilities. Petitioners also argue that the Act denies persons with mental disabilities the protection of their legal capacity as required by the 2012 Persons with Disabilities Act. Disability Rights Watch has been granted admission as amicus curiae (friend of the court). Read more here.
 

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.
 

ICC Witness Protection Case

SALC is providing advice and assistance to a former ICC witness and his family. The witnesses testified in several high profile cases before the International Criminal Court which led to successful convictions of the suspects. After competing his service to the Court, the ICC decided to withdraw the witness and his entire family unity witness protection programme. The ICC decided to relocate and resettle only three (3) members of the family. The ICC decided to return the remaining four (4) members of the family back to their country of origin. The remaining family members were stripped of their residence permits and are currently undocumented and without any immigration status in their country of residence. No explanation was provided for this decision as the ICC claimed confidentiality. SALC is providing assistance and representation to the remaining four (4) family members in order to seek a durable solution for all of them.
 

South Africa's ICC Cooperation Hearing in The Hague

On 7 April 2017, The International Criminal Court (ICC) summoned the South African government before the Pre-Trial Chambers of the ICC to make submissions as to why the Court should not refer South Africa to the United Nations Security Council and the Assembly of State Parties as provided for by section 87 (7) of the Rome Statute for its failure to cooperate with a request from the ICC. This request related to the failure of South Africa to arrest and surrender President Omar al Bashir of Sudan who visited the country in June 2015. In March 2009 and July 2010, the ICC issued arrest warrants for President al Bashir for War Crimes, Crimes against Humanity and Genocide committed in Darfur, Sudan. Since then, President al Bashir has evaded arrest despite visiting a number of countries in the world including those that are Rome Statute’s contracting States. Despite the court inviting all States party to the Rome Statute of the ICC to submit observations in the case if they wished at the 7 April hearing, only Belgium did so. SALC was the only organisation admitted by the Court as an amicus curiae to provide observations. SALC’s observations focused on the events around the time that President Al Bashir was in the country as well as the legal proceedings which followed thereafter. SALC also provided evidence showing that the South African government was, not only aware of President Al Bashir’s presence in the country, but that they aided and facilitated his departure. The observations were submitted in writing and the Court reserved judgment.


Litigation: Withdrawal from the Rome Statute Case

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. Immediately following the announcement a political party, the Democratic Alliance (DA) filed a legal challenge to Government’s decision to withdraw from the Rome Statute. The DA, cited all the Parties to the case of Minister of Justice and Others v The Southern Africa Litigation Centre (the Al Bashir Case) including SALC. SALC argued that South Africa’s withdrawal is unconstitutional, irrational and contrary to the principles of legality. The Court delivered its judgment on 22 February, 2017 and made a number of significant findings in favour of SALC and the other applicants.

Firstly, the court held that the notice of withdrawal from the Rome Statute without prior parliamentary approval is unconstitutional and invalid. Secondly, the cabinet’s decision to deliver the notice of withdrawal to the UN Secretary General without prior parliamentary approval is unconstitutional and invalid and finally, the President together with the Ministers of Justice and Correctional Services and International Relations and Cooperation were ordered to revoke the notice of withdrawal. This decision, therefore, invalidated South Africa’s decision to withdrawal from the Rome Statute. Following the decision Government announced that it had revoked its notice of withdrawal from the Rome Statute from the UN Secretary General.


Repeal Bill Submission to the Parliamentary Portfolio Committee on Justice Correctional Services

On 8 March 2017, SALC made a submission to the Justice Portfolio Committee on the Implementation of the Rome Statute’s Repeal Bill. SALC called on the Portfolio Committee to reject the Repeal Bill. SALC encouraged Parliament and the South African Government to instead exhaust all engagement mechanisms set out in the Rome Statute including constructive amendments to the Rome Statute, review of provisions of the Rome Statute and constructively participating in the ICC Working Group which it was already actively involved in. On 15 March 2017, following SALC's and other civil society organisations' submissions, government withdrew the Repeal Bill from Parliament. SALC welcomed the withdrawal of the Repeal Bill and invited Government to utilise this period to develop strategies to productively engage and recommit itself to the fight against impunity.

 

 

TRAINING, ADVOCACY AND OTHER PROJECTS

SALC and Partners Engage the African Commission over Concerns about Xenophobia in South Africa

In March 2017, SALC and more than 48 civil society partners approached the African Commission on Human and Peoples’ Rights regarding the reoccurrence of xenophobic attacks against non-nationals in South Africa. In a joint submission to the Commission, the partners raised the fact that xenophobia is a violation of human rights. They explained that the negative practice heightens the vulnerability of non-nationals and called upon the Commission to impress South African authorities to ensure that the country takes steps to address the problem. Read the statement here.
 

Submission to UN Special Mechanism on the Right to Freedom of Peaceful Assembly and Association

In March 2017, SALC and Swaziland partners made a joint submission to the UN Special Rapporteur on the Right to Freedom of Peaceful Assembly and Association (SRP). The submission was made ahead of an informal visit by the UN SRP to the Republic of Swaziland. It focused on developments and challenges affecting the enjoyment of the right to freedom of peaceful assembly and association in Swaziland. Particularly, the joint submission comprised an overview of the historical limitations on the rights to freedom of association and assembly in Swaziland, it highlighted concerns around police brutality and intimidation during protests, as well as some of the challenges associated with Swaziland Public Order Bill which remains problematic.


Human Rights Council told about Unfair Sentencing of a Man with Albinism in Malawi

During the 34th Session of the UN Human Rights Council (HRC), SALC, the International Bar Association Human Rights Institute (IBA) and the Malawi Centre for Human Rights Education, Advice and Assistance (CHREAA) made a joint submission focusing on discrimination against people with albinism in Malawi. In part, the submission sought to support the mandate of the UN Independent Expert on the Enjoyment of Human Rights by Persons with Albinism. More specifically, the statements raised concerns about the fact that a Malawian court had sentenced a man with albinism unfairly by applying a sentence that was ten times tougher than the normal sentence prescribed, simply because the offender was a man with albinism. Read more here.
 

SALC Attends South Africa's UPR Pre-Session in Geneva

On 7 April 2017, SALC, the International Bar Association’ Human Rights Institute (IBAHRI) and the Law Society of South Africa (LSSA) participated in South Africa’s UPR pre-session at the Human Rights Council in Geneva. The three organisations raised common concerns over burning human rights issues in South Africa. The list of items highlighted in their submission included, South Africa’s position regarding the International Criminal Court, the country’s involvement in weakening the Southern African Development Community Tribunal (SADC Tribunal), and the question of lack of adequate representation of black lawyers in the legal professional. The reoccurrence of violent attacks against non-national living in the country was also discussed. It is hoped that UN members States participating in the Human Rights Council will make recommendations for South Africa to address the concerns highlighted. Read the submission here.
 

''Using Complaints to Address Healthcare Violations in Botswana, Malawi and Zambia''

In February 2017, SALC hosted three workshops with representatives of community-based organisations (CBOs), civil society organisations (CSOs) and healthcare complaints processes on the use of complaints to address discrimination and human rights violations in healthcare. The workshops follow a Research Report and Complaint Guide developed by SALC in 2016 on the topic. Workshop reports and more information can be accessed here from the workshops in: BotswanaMalawi and Zambia.
 

"Removing Legal Barriers to Prison Rights and Health: Training for African Lawyers"

From 13-16 March 2017, SALC held a training for African lawyers on “Removing Legal Barriers to Prison Health and Rights in Johannesburg. Approximately, 82 participants attended the training providing a platform for sharing knowledge on a number of issues including international and regional frameworks on the protection of the rights of persons in detention, strategic litigation on prisoners’ health and rights, and strategic alliances with domestic and international actors to support the realisation of prisoners’ rights. An optional evening session focusing on Migration Detention was held on 14 March and participants were provided with an opportunity to visit the Number 4 Prison and the Constitutional Court of South Africa on 16 March. A comprehensive resource package was developed and podcasts (audio clips) of select presentations published on SALC’s website, accessible here
 

UPR training for Swaziland CSO's Cluster Group

On 6-8 March 2017, SALC together with Amnesty International, CIVICUS, COSPE and the Geneva based UPR-Info implemented a training workshop aimed at assisting Swaziland civil society groups to understand and develop skills to engage meaningfully in the UN Universal Periodic Review (UPR) process. The training also aimed at helping civil society follow and support implementation of UPR recommendations. More than fifteen delegates from organisations participating in the Swaziland UPR cluster groups attended the Johannesburg event.
 

Calling on Governments to Respect Prisoners' Human Rights and Unite to End TB

On 24 March 2017, World TB Day, SALC, the AIDS and Rights Alliance of Southern Africa (ARASA), Enda Santé and the Kenya Legal & Ethical Issues Network on HIV and AIDS (KELIN) issued a statement calling on African governments to respect prisoners’ human rights and unite to end TB. The statement can be accessed here.

 

Publication

Booklet: "A Victory for the Right to Fair and Substantial Justice: Recent Cases from the Malawi High Court"

The booklet on the victory for the Right to Fair and Substantial Justice explores 3 cases in which the High Court of Malawi has recently been critical of the way in which police and lower Courts have applied certain offences and emphasised the obligation of the State to protect and uphold rights of all persons. Read more here.

 

ANALYSIS

SALC Calls for #EqualHealthForALL

1 March is internationally known as Zero Discrimination Day. Discrimination undermines human dignity and is a violation of human rights. As stated by the Joint United Nations Programme on HIV and AIDS (UNAIDS), the effects of discrimination aren’t isolated to the suffering of an individual person or group experiencing a particular incident: Discrimination undermines social cohesion; it prevents society from benefiting from a richer and deeper pool of talent; and it stigmatises people living with and most at risk of HIV, while undermining HIV treatment and prevention efforts. Read more here.
 
SALC on YouTube


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Vendor who changed the Law

Malawi High Court Declares Rogue and Vagabond Offence Unconstitutional


 
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