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Promoting Human Rights and rule of law in Southern Africa

Dear Reader,

The last few months at SALC have been intense and busy. We have continued to received good judgments in particular in our Health Rights Programme on cases which SALC has been working on for several years.  Both the Tapela case in Botswana and the  Mwanza case in Malawi are strong victories promoting a common sense approach with regard to access to antiretrovirals for foreign prisoners and the challenging of mandatory HIV testing. The courts recognised the litigant’s human dignity and equality of treatment and have created important legal precedents for the Southern African region.
 
Earlier in June, SALC came under much scrutiny after it launched an application to have Sudanese President Al Bashir arrested when he attend the African Union Summit in Johannesburg. In the following weeks SALC came under more pressure to defend what was perceived as an “un-African” position. We have been firm in our position that our intervention in the Al Bashir matter was within the scope of both international and domestic laws and pursued the enactment of an arrest warrant which was issued by the International Criminal Court for very grave crimes which President Bashir is charged with. We were not the first NGO to pursue this course of action.  In October 2010, the International Commission of Jurists- Kenya section approached the courts to issue a provisional arrest warrant for President Bashir when he was due to attend an Inter-Governmental Authority on Development Summit. The application was successful however, the Summit was moved to Ethiopia. Our case promoted the need to pursue international criminal justice as a deterrent factor and gave due recognition to the thousands of Sudanese victims of the Bashir regime.
 
SALC has been working within the fraught situation in Swaziland  for a long time. However, the convergence of a series of recent developments led to several successful outcomes notwithstanding the acquittal and release of human rights lawyer Thulani Maseko and editor Bheki Makhubu in June. This was followed by the granting of bail after 14 months in jail for the President of the People United Democratic Movement (PUDEMO), Mario Masuku and SWAYOCO leader Maxwell Dlamini.
 
Following a 2014 coup attempt and its subsequent destabilising effect on Lesotho, SALC has been working with Lesotho organisations to raise concerns relating to threats to the independence of the judiciary, allegations of fair trial abuses and torture, and high levels of instability and insecurity in Lesotho.
 
SALC’s work in the gender arena has been a priority focus during this period with our attendance of the 61st CEDAW Session on Namibia and the co-hosting of an event at the SADC Gender Summit in Botswana.
 
It has been a busy and productive period and we look forward to several more successful outcomes before the close of the year. And finally, we extend a warm welcome to  Tashwill Esterhuizen, a new lawyer in our LGBTI/Sex Workers Programme.

Kaajal Ramjathan-Keogh
Director
September 2015
 

OFF THE DOCKET

Botswana: Attorney General and Others v Tapela and Others

On 26 August 2015, the Botswana Court of Appeal ruled that the government’s policy of refusing access to antiretrovirals for HIV-positive foreign prisoners was unlawful. SALC supported the case brought by two HIV-positive foreign prisoners and the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) challenging the government’s policy. A decision in favour of the prisoners and BONELA was delivered by the Gaborone High Court in August 2014, which decision was appealed by the State to the Court of Appeal. Legal arguments were heard on 23 July 2015. The Court of Appeal, in a unanimous judgment by Judge President Kirby, dismissed the appeal and held that the policy was unlawful and contrary to the Prisons Act. The Court ordered that the government immediately provide all foreign prisoners with the same access to free testing, assessment and treatment as enjoyed by citizens. Read more.
 

Malawi: State v Officer in Charge of Mwanza Police and Others

On 20 May 2015, the High Court in Blantyre ruled in favour of eleven women who were subjected to a mandatory HIV tests in Malawi's southern district of Mwanza in 2011. The applicants challenged 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. Justice Kamanga ruled that the mandatory HIV testing violated the applicants' rights to privacy, dignity, equality and freedom from cruel, inhuman and degrading treatment. Read more.
 

Zambia: People v Kasonkomona

On 15 May 2015, the High Court in Zambia confirmed the 2014 ruling of the Lusaka Magistrates Court which acquitted human rights activist, Paul Kasonkomona and ruled that the State had not made out a case against him. Kasonkomona had been arrested in April 2013 after he appeared on a Muvi TV programme where he spoke about the need to recognise the rights of vulnerable groups such as LGBT persons and sex workers in order to comprehensively address the HIV pandemic. He was charged with the offence of soliciting for immoral purposes. Read more.
 

Swaziland: Dlamini and Another v Prime Minister and Others

SALC has been supporting the applications for bail brought by Mario Masuku, the President of the People United Democratic Movement (PUDEMO), and Maxwell Dlamini, the Secretary General of PUDEMO's youth league, the Swaziland Youth Congress (SWAYOCO).  Masuku and Dlamini were arrested on 1 May 2014 after participating in a rally to commemorate May Day and charged with sedition, subversion and terrorism. They made two separate applications for bail in 2014, both of which were denied by High Court Judge Mpendulo Simelane. In July 2015, their appeal against the refusal to grant bail was heard by the Supreme Court. The prosecution indicated that - partly due to the concern over the competence of Judge Simelane who had since been charged with defeating the ends of justice and removed as a judge - they would not oppose bail. The Court ordered the pair's immediate release. Read more here and here.
 

Swaziland: Rex v Thulani Maseko and Bheki Makhubu

SALC provided technical and financial support to the legal teams representing Thulani Maseko, a human rights lawyer, and Bheki Makhubu, a magazine editor, in their appeal against their 2014 conviction on contempt of court charges. The pair had been charged with contempt after writing articles which criticised the conduct of the judiciary – specifically that of former Chief Justice Michael Ramodibedi. On 30 June 2015, the Supreme Court acquitted Maseko and Makhubu and ordered their immediate release after the prosecution indicated, in court, that the conviction was unsupportable. The criminal case in the High Court had been presided over by Judge Mpendulo Simelane, and had been characterised by various concerns over the judge’s impartiality. In the period between the conviction and the appeal, Judge Simelane had been removed as a judge after allegations of corruption and defeating the ends of justice were made against him. Read more.
 

ON THE DOCKET

South Africa: SALC v Minister of Justice and Others (In the matter of President Omar al Bashir)

In June 2015, 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. After hearing of his arrival in South Africa and corresponding with the relevant autorities and their obligation to arrest President Al Bashir, SALC approached the North Gauteng High Court seeking the implementation of the ICC arrest warrant. On 15 June 2015, after handing down an order that President Omar al Bashir be arrested and detained for subsequent transfer to the Hague, the court was informed by the State respondents that President Al Bashir had already left the Republic. This was in direct contravention of the interim court order issued on 14 June 2015 preventing President Al Bashir from leaving the country pending the finalisation of the matter. The Court requested that the State submit an affidavit explaining how President Al Bashir was allowed to leave the country. This was submitted and subsequently the State filed for leave to appeal to the High Court judgment. The application for leave to appeal was heard on Friday 14 August 2015. The Court reserved judgment and will advise in due course as to whether leave to appeal has been granted. Read more.
 

South Africa: Thembi Nkadimeng v National Director of Public Prosecutions and Others

SALC is supporting the family of Nokuthula Simelane to compel the National Prosecuting Authority (NPA) to either refer the disappearance of anti-apartheid activist Nokuthula Simelane for an inquest or to make a decision whether to prosecute. Nokuthula Simelane was abducted, tortured and forcibly disappeared in 1983 by members of the Security Branch of the former South African Police. She was a twenty-three year old university graduate and acted as a courier for Umkhonto we Sizwe, the armed wing of the African National Congress. Her remains have never been found. In 2001, the Amnesty Committee of the Truth and Reconciliation Commission (TRC) granted some of the perpetrators amnesty for Nokuthula's abduction, including certain police officers who the Committee found had lied about the brutal torture. This was notwithstanding the full disclosure requirement laid down in the TRC law. None of the perpetrators had applied for amnesty for her murder. Read more.
 

South Africa: Law Society of South Africa v President and Others

In August 2014, the new SADC Tribunal Protocol was signed by President Jacob Zuma. Under this protocol the SADC Tribunal is only permitted to hear inter-state disputes removing the previous access granted to individual citizens of SADC to bring matters before the Tribunal as stipulated in the 2000 SADC Tribunal Protocol. The applicants in this matter, the Law Society of South Africa, allege that the signing of the 2014 SADC Tribunal Protocol is an infringement on citizens’ access to justice. SALC will be making amicus curiae submissions before the High Court in this case and intends to refer to the international and regional law on access to courts and related constitutional issues. Read more.
 

Zimbabwe: MISA and Others v Minister of Justice and Parliamentary Affairs and Others

In 2014, the Constitutional Court in Zimbabwe ruled that the criminal defamation offence was unconstitutional as it unjustifiably limited the right to freedom of expression. However, the Court explicitly stated that its ruling applied only to the old Constitution – under which the case had been brought – and that the offence may pass constitutional muster under the new Constitution. In 2015, the Zimbabwe Chapter of the Media Institute of Southern Africa (MISA) brought an application to have the offence declared unconstitutional under the new Constitution. SALC is supporting this application. The matter was due to be heard in July 2015, but the Constitutional Court requested that the parties provide argument on additional issues and the matter has been postponed to a date yet to be determined. Read more.
 

Botswana: Tsodilo Services t/a The Sunday Standard and Another v Attorney General

The Corruption and Economic Crime Act in Botswana was enacted to provide for the establishment of a body to investigate economic crime in the country. However, a provision in the legislation prevents the publication of any information relating to investigations under the Act, and this provision has been used against journalists to interdict them from publishing stories on investigations into corruption against government officials. The Sunday Standard and its editor are challenging the constitutionality of this provision on the grounds that it unjustifiably limits the right to freedom of expression, and the Botswana Chapter of the Media Institute of Southern Africa (MISA) has entered as amicus curiae in the case. SALC is supporting MISA’s legal team in the case. A number of interlocutory applications have been filed by the parties, and the substantive merits of the case are now expected to be heard in early 2016. Read more.
 

TRAINING, ADVOCACY AND OTHER PROJECTS

SALC Attends the 61st CEDAW Session for the Consideration of Namibia’s State Report

From 13-16 July 2015, SALC attended the 61st CEDAW Session, where the CEDAW Committee considered the combined fourth and fifth periodic reports of Namibia. SALC and the Namibian Women's Health Network prepared and presented a shadow report which covered the forced and coerced sterilisation of women living with HIV/AIDS in Namibia and the human rights violations which accompanied this. The two organisations also coordinated a civil society lunch briefing where several concerns were raised. In its concluding recommendations, the CEDAW Committee urged Namibia to adopt legislative and policy measures that clearly define the requirement of free, prior and informed consent with regard to sterilisations. The Committee also urged Namibia to conduct a study on the extent of the problem of forced sterilisations and adopt specific measures; including investigating illegal past practices of forced sterilisations and adopt specific measures; including investigating illegal past practices of forced sterilisations and adequately punishing perpetrators and compensating victims. Read more.


SADC Gender Summit Parallel Event

SALC hosted a parallel event, together with Amnesty International and Women and Law in Southern Africa (WLSA) Regional, during the SADC Gender Summit in Botswana in August. Drawing from their various experiences, a panel of speakers highlighted concerns related to women's empowerment and participation in the traditional sphere; women's economic empowerment through land and property rights; as well as how the suspension of the SADC Tribunal affects the realisation of the provisions of the SADC Protocol on Gender and Development. The keynote address was provided by Malawian Gender, Children and Community Development Minister Patricia Kaliati and delivered on her behalf by Emma Kaliya, chairperson of Malawian Gender Coordination Network. Read more.

 

SADC Tribunal Advocacy 

In the run up to the SADC Summit in August, SALC worked as part of the Coalition for an Effective SADC Tribunal to mobilise support from civil society organisations in the region for the reinstatement of the SADC Tribunal with its original mandate. Members of the Coalition featured on a panel discussion related to the SADC Gender Protocol, as well as another on the right to nationality. SALC’s Regional Advocacy Director also made a presentation on elections, democracy and the SADC Tribunal at the SADC-CNGO civil society forum and a resolution for the reinstatement of the SADC Tribunal with its original mandate was tabled. On the eve of the SADC People’s Summit, the Coalition held a SADC Tribunal strategy day which started with a panel discussion aimed at debunking the myths related to the SADC Tribunal. The Coalition ended the strategy meeting with a joint statement which can be accessed here. An online petition for the reinstatement of the SADC Tribunal can be accessed here.
 

Namibia: UPR Training and Submission of a Shadow Report 

In May, SALC held a one-day training in Namibia on the Universal Periodic Review (UPR). The meeting was attended by 11 NGOs who shared their human rights concerns and discussed the possibility of a joint submission. In June, SALC submitted a shadow report jointly with Namibian Women's Health Network (NWHN), the Legal Assistance Centre (LAC), the Women's Leadership Centre (WLC) and the Southern African Christian Initiative (SACHI). In the report, the organisations raise their concerns regarding the continued prevalence of harmful traditional practices; challenges in accessing health care services, particularly for persons with disabilities, sexual minorities and sex workers; failure to take concrete steps to prevent further coerced and forced sterilisations and to provide redress for those who have been previously forcibly sterilised; restrictive laws related to abortion; failure to take steps to align Namibia's national laws and policies with its international obligations regarding persons with disabilities; continued violations of rights in the criminal justice system; as well as steps taken by the Namibian authorities with regard to the Southern Africa Development Community (SADC) Tribunal which impact on the right of access to justice and an effective remedy. Read more.


Advocacy Around Freedom of Expression Concerns in Angola

SALC continued its advocacy work on freedom of expression concerns in Angola. The advocacy specifically related to the cases of journalist, Rafael Marques de Morais; human rights activist, Jose Marcos Mavungo; human rights lawyer, Arao Bula Tempo and his client, Manuel Biongo; as well as 15 individuals detained on suspician of preparing to commit the crime of rebellion and an alleged attempt against the life of the president and other government members. 13 of the individuals had been meeting to exchange opinions on the political situation in Luanda at the time of their arrest. A further two were arrested following the meeting. All were denied bail.

Arao Bula Tempo and Manuel Biongo, had been detained on 14 March 2015 on charges of the crime of collaborating with foreigners to constrain the Angolan State, based on an allegation that they invited journalists from the Republic of Congo to cover the demonstration organised by Jose Marcos Mavungo and others. They have not yet been indicted and were conditionally released on 13 May 2015 pending trial. However, Jose Marcos Mavungo, was indicted in July on what appear to be fabricated charges of rebellion. If convicted, he faces up to 12 years' imprisonment. His trial started on 25 August 2015.Judgement is due on 14 September 2015.

Rafael Marques de Morais was convicted of criminal defamation and sentenced to six months suspended sentence on 28 May 2015. The charges against him stem from public interest litigation he instituted against military generals for human rights violations in the diamond mining areas of Angola. Read more.


SALC Participates in the Public Interest Law Gathering (PILG) 2015

In July 2015, SALC participated at the Public Interest Law Gathering (PILG) at the University of the Witwatersrand in Johannesburg, South Africa. PILG is an annual event which provides individuals and organisations working in public interest litigation in South Africa an opportunity to share and develop knowledge. SALC presented a panel discussion on using courts to vindicate the right of human rights defenders to freedom of expression in southern Africa. Zambian HIV activist, Paul Kasonkomona, Zimbabwean artist, Owen Maseko, and Swazi lawyer Sipho Gumedze spoke on the panel and provided personal experience of infringements of their right to free expression and their experiences of using the courts in the three countries. Read more.
 

Discussing International Criminal Justice in Africa

SALC participated in the Annual African Legal Aid (AFLA) International Criminal Justice Symposium entitled “Universalising the Rome Statute of the ICC.”  The event, which took place on 18 and 19 May 2015, included presentations from Fatou Bensouda, Prosecutor of the International Criminal Court and other leading international judges like Justice Richard Goldstone. At this event, SALC was able to present on its efforts to seek accountability for international crimes on the domestic level and to emphasise the importance of nations domesticating and applying the Rome Statute of the International Criminal Court.
 

Presentation at Mandela Memorial Dialogue

SALC also presented at the Mandela Memorial Dialogue on Social Justice & Development which took place on the 30th of July with panelists: Public Protector, Thuli Madonsela, Commissioner Pregs Govender, the South African Human Rights Commission (SAHRC), Mark Heywood, Director of Section 27 and trade unionist Zwelinzima Vavi.
 

ANALYSIS

If not the ICC, What Else is There? 

Imperfect as it is, it is the only judicial mechanism fighting for justice and defending the rights of African victims, writes Angela Mudukuti.

Sudanese President Omar Al Bashir has left the Republic of South Africa but his visit has had far-reaching consequences. Media reports indicate that the State intends to appeal the judgment handed down by the High Court in Pretoria. The Court ruled that South Africa had an obligation to arrest and detain President Bashir during his visit to the 25th AU Summit in Sandton last month. This case has reignited the anti-International Criminal Court (ICC) rhetoric, fueled threats of withdrawal from the Rome Statute of the ICC and brought into focus the glaring deficiency that exists when one looks at African regional and sub-regional accountability mechanisms. Read more.
 

Apartheid-era Crimes Still Haunt Us

August 9 marked national Women's Day - the day that 20 000 women marched to the Union Building in 1956 to protest against pass laws under the apartheid government. What better opportunity to commemorate other women who were part of the struggle, such as Nokuthula Simelane.

Simelane was a 23-year-old university graduate with a promising future. But she put her country’s freedom before her own ambition and acted as a courier for Umkhonto we Sizwe, the armed wing of the ANC, moving between Swaziland and South Africa. She was abducted, tortured and forcibly made to disappear by members of the security branch of the former South African Police in 1993. Read more.

 

 

SALC on YouTube
Angela Mudukuti, SALC’s International Criminal Justice Lawyer speaks about the Al Bashir case

SABC insert on the Botswana Court of Appeal judgment ordering the immediate provision of treatment to foreign prisoners


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