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Promoting Human Rights and Rule of Law in Southern Africa

Dear Reader,


As 2013 ends, there is cause for some optimism, especially in relation to the impact of litigation and courts in advancing human rights and the rule of law in southern Africa.

In just the last four months, SALC has secured three significant legal victories in courts in South Africa and Botswana. In November, the Supreme Court of Appeal in South Africa unanimously ordered the South African Police Service to initiate investigations into whether key Zimbabwean officials committed crimes against humanity in torturing members of the opposition party in 2007. In 2008, SALC compiled and submitted evidence of systemic torture by Zimbabwean officials to the National Prosecuting Authority calling on them to investigate the allegations. SALC and the Zimbabwe Exiles Forum initiated the case after the National Prosecuting Authority refused to initiate an investigation into the actions. The judgment is the first of its kind on the continent.
 
Earlier, the Botswana Court of Appeal, also in a unanimous decision, affirmed that any customary law which discriminates solely on the basis of gender would violate the Constitution. The judgment clearly rejected the argument put forth by the Attorney General that all laws dealing with marriage, inheritance and other matters of personal law could be blatantly discriminatory and still be constitutional. This judgment is expected to have far-reaching consequences not only with respect to discriminatory customary law, but also discrimination with respect to non-citizens and other marginalised groups in Botswana.
 
Finally, in a case in which SALC intervened as amicus curiae, the Constitutional Court in South Africa held that requiring all refugee board proceedings to be confidential violated the right to freedom of expression. The Court ruled that in some cases access to refugee board proceedings would be needed to ensure the right to free expression, an argument SALC made in its submissions.
 
It is almost trite to note that litigation is slow. The Supreme Court of Appeal decision was the result of a process that began over 6 years ago. Yet, when a positive decision is issued, it is hard to understate the impact and reach of litigation.
 
We at SALC will be closing our offices during the festive season. We wish everyone a happy and healthy festive season and 2014.
 
Sincerely,
Priti Patel
Deputy Director
December 2013


OFF THE DOCKET

National Commissioner of the South African Police Service and Another v Southern Africa Litigation Centre and Another 

On 27 November 2013, the Supreme Court of Appeal issued a unanimous judgment in National Commissioner of the South African Police Service and Another v Southern Africa Litigation Centre and Another. The Court ruled in SALC’s favour, holding that the South African Police Service (SAPS) must investigate allegations of torture committed in 2007 in Zimbabwe by Zimbabwe 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. 

Read more.


Ramantele v Mmusi and Others

On 3 September 2013, the Court of Appeal in Botswana issued judgment in Ramantele v Mmusi and Others, a landmark case challenging a customary law, which arguably provided for male-only inheritance. The Court held that denying women the ability to inherit solely on the basis of their gender would violate the right to be free from discrimination guaranteed under the Botswana Constitution. The Court further rejected the Attorney General's argument that the right to be free from discrimination did not apply to any law addressing inheritance. 

Read the judgment here.


Mail and Guardian and Others v Chipu and Others 

On 27 September 2013, the South African Constitutional Court issued judgment in Mail and Guardian and Others v Chipu and Others, a case in which SALC appeared as amicus curiae. The Court ruled that the requirement of absolute confidentiality for Refugee Appeal Board hearings was an unjustifiable and unreasonable limitation on the right to freedom of expression.The ruling mirrored SALC’s submissions, which argued that although confidentiality served an important purpose, a discretionary power to allow access in certain circumstances was needed to ensure respect for the right to freedom of expression. 

Read the judgment here.

 

ON THE DOCKET

Mwanza and Another v Attorney General 

In September 2013, the High Court in Zambia heard evidence in a matter challenging poor prison conditions and the lack of adequate food provided to HIV-positive prisoners on treatment in the Lusaka Central Prison. The trial has concluded and a judgment from the Court is expected in early 2014. SALC is working with the Legal Resources Foundation in Zambia on the case.

Read more.
 

P v Kasonkomona

SALC is supporting a case before the Zambia Magistrates Court challenging the arrest of Paul Kasonkomona, an HIV activist who was charged with soliciting for immoral purposes in a public place after appearing on a television programme in which he spoke in favour of the rights of  lesbian, gay, bisexual and transgender  persons and sex workers. The trial is expected to continue on 17 December 2013.
 
Read more.

 

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 lawyers for the accused have applied for bail in the Magistrates Court and High Court on behalf of the clients without success.The trial is expected to continue on 27 December 2013.
 
Read more.

 

TRAINING, ADVOCACY AND OTHER PROJECTS

SALC Collaborates with the African Commission on a Resolution on Involuntary Sterilisation

SALC worked with the African Commission on Human and Peoples’ Rights Committee for the Protection of the Rights of People Living with HIV and Those at Risk, Vulnerable to and Affected by HIV in Africa, to pass a resolution entitled Involuntary Sterilisation and the Protection of Human Rights in Access to HIV Services. The resolution was adopted during the African Commission's 54th session in Banjul, the Gambia held from 22 October to 5 November 2013. The resolution condemns the practice of coerced sterilisation in Africa.

Read the resolution here.
 

SALC Hosts Disability Rights Training 

On 2 and 3 October 2013, SALC hosted a workshop on litigating issues affecting people with disabilities in Windhoek, Namibia.The training brought together eight organisations from Namibia, including legal organisations, representatives from the University of Namibia and groups working on disability rights issues. The aim of the training was to deepen understanding of the Convention on the Rights of People with Disabilities, and its interaction with domestic legislation, and to provide a platform for sharing experiences and expertise. 

Read more.
 

SALC Hosts Meetings on International Criminal Justice 

In November 2013, SALC hosted a series of meetings in Botswana, Malawi and Zambia to follow up on its May 2013 report, Positive Reinforcement - Advocating for International Criminal Justice in Africa, which examined the implementation of international criminal law in Africa and emphasised the importance of engagement and advocacy on issues of complementarity. The meetings brought together key members of the judiciary, lawyers, national prosecutors and civil society organisations. SALC presented the report’s findings and discussed opportunities to implement the report’s recommendations domestically with participants.  

Read more.
 

SALC Advocates for Amending Swaziland's Suppression of Terrorism Act 

On 19 November 2013, SALC and 24 local and international organisations sent a letter to the Swazi Prime Minister calling on the government to amend the Suppression of Terrorism Act (STA), which has been used to target opposition leaders and activists since its enactment in 2008. The letter was sent in response to a commitment made by the then Labour Minister, Lutfo Dlamini, in June that the government would amend the definition of terrorism in the STA. 
 
Read the letter here
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RECENT PUBLICATIONS 

SALC Releases Sexual Reproductive Health Rights Manual

In November 2013, SALC released Dismantling the Gender Gap: Litigating Cases Involving Violations of Sexual and Reproductive Health Rights. The manual focuses on two specific sexual and reproductive rights issues: discrimination in accessing sexual and reproductive health services; and failures in obtaining informed consent in the context of sexual and reproductive health services. The manual seeks to be a resource for private and public lawyers in southern Africa who are litigating such cases in domestic courts. The manual may also be useful to civil society organisations seeking to use litigation as part of an advocacy strategy to promote and protect the rights of women. The manual is the third in SALC's litigation manual series.

Download the manual here.

 

ANALYSIS

Judgment in Zimbabwe Torture Case: A Victory for Local and International Criminal Justice

The recent Supreme Court of Appeal judgment in National Commissioner of the South African Police Service and Another v Southern Africa Litigation Centre and Another, is a victory for international and local justice. International criminal justice has been under attack in Africa. Factors, including the tension between the International Criminal Court and the African Union, continue to jeopardise the African international criminal justice project. However, this decision is a positive development in that it shows that international crimes can be handled by African countries provided the correct legislative framework exists. 

Read more.


News You May Have Missed

Zim Torture Investigation Must Go Ahead, Says SA Court

SA Judgments 'Do Not Apply in Zimbabwe'

South African Court Orders Probe Into Zimbabwe Torture

South African Police Must Investigate 'Zimbabwe Torture'

Human Rights Activist Paul Kasonkomona was Expressing His Own Opinion-Muvi TV

Appeals Court to Rule in Zim Torture Case

Time to Overhaul Swaziland's Oppressive Suppression of Terrorism Act, Say Local and International Organisations

ICC: Africa Should Reject ‘Free Pass’ for Leaders

African Commission Condemns Coerced Sterilisation of  Women Living with HIV

The Sisters who Beat Botswana’s Chiefs to Change Law

Reach of  Rome Statute to Head Back to Appeal Court

Zambian High Court Must Proceed with Bail Application for Accused in ‘Carnal Knowledge Case’, Say SALC and OSISA

ICC Withdrawal Not a Wise Move for SA

130 Groups Across Africa Call for Countries to Back ICC

South African Government Must Support the ICC and the Fight against Impunity, Says SALC

Why Kenya's Terrorist Attack Might be the ICC's Saving Grace

Inmates with HIV Deserve Balanced Diet

South Africa Causes Blushes in Handling of Policy on Syria

 
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