SALC received unexpected coverage during the past few months when SALC’s Executive Director, Kaajal Ramjathan-Keogh, was nominated for the position of Public Protector by Students for Law and Social Justice in July. The Office of the Public Protector is created by the South African constitution to investigate misconduct and impropriety into state affairs. Kaajal was shortlisted and interviewed by the Parliamentary Committee tasked with finding the new Public Protector. Ultimately, Kaajal was not selected but she put up a spirited defence of SALC’s litigation strategy and independence. Notably, Kaajal was also voted as the “People’s Choice for Public Protector” in a poll organised by Corruption Watch.
Watch Kaajal’s interview here
A Daily Maverick
piece summed up the interview process very well.
The questions posed to Kaajal during the Public Protector interviews illustrates that there is sometimes a lack of appreciation of the role played by human rights organisations such as SALC. Regrettably, it is our utilisation of the courts to seek implementation of an arrest warrant for Sudan’s President Omar al Bashir that has drawn most attention to our work. This newsletter reflects the range of advocacy and litigation that we engage in throughout the region. Human rights are under threat in many countries and it remains vital that human rights organisations are able to bring to the fore the human rights violations that are often swept under the carpet in political and diplomatic discourse.
It is in that vein that we celebrate the many different organisations that continue with this difficult work despite the criticisms they often come under. We were thus delighted to attend the annual Probono Awards Ceremony at Constitution Hill earlier this month. As part of the event Probono.org launched its NGO page
and five NGOs received the National Director’s special mention. These NGOs are: the Centre for Environmental Rights, Lawyers Against Abuse, the Legal Resources Centre, Section 27 and the Southern Africa Litigation Centre. SALC is honoured to receive the National Director’s Special Mention for a human rights NGO which is doing impactful work in the Southern African region. We also extend our congratulations to Advocate Isabel Goodman who won the Advocates Award and to Moray Hathorn of Webber Wentzel who was nominated in the category of “Most Impactful Case” for Webber Wentzel's work in Southern Africa Litigation Centre v Minister of Justice and Constitutional Development.
SALC also extends its best wishes to Probono.org on their 10 year anniversary.
We extend an invitation to all our partners and friends to the Southern Africa Litigation Centre's 10th year anniversary event on the 28th of September 2016. The event is scheduled for 2pm to 5pm (including a cocktail event) at the Crowne Plaza Hotel in Rosebank. We will be launching several publications including our 2005-2015 Case book. If you are in the Gauteng region and able to attend, please RSVP to TiisetsoP@salc.org.za by 15 September 2016.
We hope to see you there!
OFF THE DOCKET
Republic v PB and 18 Others
In February 2016, 19 women were arrested and charged with the offence of living on the earnings of prostitution contrary to section 146 of the Penal Code. The women pleaded guilty to the charges and they were convicted upon those pleas and sentenced to a fine. SALC and the Centre for Human Rights Education, Advice and Assistance (CHREAA) are supporting the women to bring a review application on the basis that the police, prosecutor and magistrate had misinterpreted the offence of living on the earnings of prostitution. The applicants submit that an interpretation of the language, purpose and history of the offence clearly indicates that the offence has never been aimed at sex workers, but rather at those who exploit them. The matter was argued in the Zomba High Court before Justice Zione Ntaba on 28 July 2016. Judgment was handed down on 8 September 2016 and the Court agreed with the applicants; finding that the conviction of applicants for living on earnings of prostitution was wrong as the Penal Code does not criminalise sex work. The Court reiterated that the offence of living on the earnings of prostitution was never aimed at sex workers but at those who exploit them. The Court found that the arrest and conviction of the women was procedurally irregular, unconstitutional and not based on evidence. Read more
Chengeto Mashingaidze v Pauline Madigo
On Thursday, 9 June 2016, the High Court of Zimbabwe, granted an order declaring that the applicant, a widow, was the sole beneficiary of a farm measuring close to 1 060 hectares on which she and her husband had lived immediately before the husband’s death. The case concerned a challenge against a decision by the Master of the High Court (Master) that approved a distribution plan awarding equal portions of farm land to the widow and 10 children of her deceased husband, thereby reducing the widow’s share to that of a child. Under the applicable laws of Zimbabwe, a surviving spouse is entitled to inherit the matrimonial house or domestic premises that the couple occupied immediately prior to the husband’s death. In terms of the distribution plan as approved by the Master, the deceased owned three separate pieces of land in addition to the disputed farm. These properties formed part of the deceased's estate. The challenge, however, related to the fact that the widow had not been awarded a matrimonial home although she lived with her deceased husband for 43 years, 33 of which were spent on the farm. Having considered the facts and the law, the High Court set aside the distribution plan as approved by the Master and awarded the farm to the applicant as the sole beneficiary. In rejecting the Master’s suggestion that the farm was too large to be considered a matrimonial home, the Court stated that the size, value or location of the property is not a factor in determining whether it is a matrimonial home. SALC supported this case in collaboration with Women and Law in Southern Africa –Zimbabwe (WLSA – Zimbabwe). Read more
C v Commander of the Lesotho Defence Force and Others
SALC supported an urgent application brought on 31 May 2016, by the wife of a detained Lesotho Defence Force (LDF) soldier who suffers from a number of health ailments. Repeated referrals from medical doctors to allow him to attend urgent specialist consultations at the local hospital have been ignored by the LDF. The applicant argued that the military is subject to constitutional and common law obligations to provide adequate healthcare, from a doctor of the detainee’s choice. The denial of care, it was argued infringes on the prohibition against torture, inhuman and degrading treatment amongst others. On 1 June, the High Court granted an order compelling the Commander of the LDF to arrange for Captain Chaka to attend the Hospital for medical treatment. SALC provided technical and financial support to the case.
ON THE DOCKET
Lois Madikhula v Mary Goba and Idesi Goba
SALC is working with Youth Watch Society (YOWSO) in Malawi to help a poor single woman, Mary and her widowed mother, retain the land that they inherited from their deceased father and husband respectively in 2006. The respondents solely depended on the plot to grow and sell sugarcane to sustain themselves and their families. In April 2012, the Village Headman and the Dwangwa Cane Grower’s Trust allocated Mary and her mother’s sugarcane plot to the applicant, Lois Madikhula. This was done without consent of the two women. Mary was unsuccessful in attempts to resolve the dispute with Madikhula, diplomatically. In August 2013, Mary took the matter to the Magistrate Court. At that time, the Court declared that the property belonged to Mary as she had inherited it in terms of customary law. The court’s decision allowed space for Mary to start working on her land again. However, the respondent insisted that the property belonged to him. To that end, late in 2013, Madikhula commenced an action in the High Court. Three months later, Madikhula served Mary with a court order preventing her and her mother from accessing or using the sugarcane plot. Since then, the women have failed to use the land to grow the crops they need to survive.
On Wednesday, 24 August 2016, the High Court of Malawi, sitting in Mzuzu removed the order granted in 2013 and ordered that the sugarcane be sold and the proceeds paid into court pending the determination of the main matter. Read more
Gwanda v State
In March 2015, the applicant was arrested by police whilst on his way to the market where he works as a street vendor. He was charged with the offence of being a rogue and vagabond in terms of section 184(1)(c) of the Malawi Penal Code. 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. SALC is supporting the applicant’s constitutional petition in the Blantyre High Court challenging the constitutionality of the offence. The applicant argues that section 184(1)(c) of the Penal Code violates the right to dignity; the right to be free from inhumane and degrading treatment; the right to freedom and security of person; the right to equal protection and freedom from discrimination; the right to privacy; and the right to freedom of movement. The applicant further submits that the arbitrary and discriminatory enforcement of section 184(1)(c) and the section’s inherent reversal of the presumption of innocence, is contrary to international human rights law and the above-mentioned constitutional rights.
In July 2016, the Legal Aid Bureau was admitted as amicus curiae
, in August 2016 the Centre for Human Rights Education, Advice and Assistance (CHREAA) and the Paralegal Advisory Services Institute (PASI) were admitted as amicus curiae;
and on 1 September 2016, the Malawi Law Society was admitted as amicus curiae.
Judgment on the procedural issues and arguments on the merits are set down for 27 September 2016. Read more
Thembi Nkadimeng v National Director of Public Prosecutions and Others
SALC is supporting the family of Thembi Nkadimeng in pursuit of justice after the murder of anti-apartheid heroine Nokuthula Simelane who was abducted, tortured and forcibly disappeared in 1983 by members of the Security Branch of the former South African Police. From the time she was abducted to this date, Nokuthula’s remains have never been found. In 2001, the Amnesty Committee of the Truth and Reconciliation Commission (TRC) granted amnesty to some of the perpetrators who violated Nokuthula’s rights. This included amnesty for some police officers who abducted Nokuthula and were found by the Committee to have lied about the brutal torture committed against her. It should be noted that such amnesty was granted, notwithstanding the full disclosure requirement laid down in the TRC law, which the officers had breached. Moreover, none of the perpetrators applied for amnesty for Nokuthula’s murder. Nokhuthula’s family asked the authorities to address the matter. Despite years of meetings, correspondence and engagement with the authorities, no decision was taken to refer the case for an inquest, nor was a decision made to prosecute perpetrators who did not apply for amnesty for Nokuthula’s murder and/or for her kidnapping. In February 2016, after Nokuthula’s family instituted legal proceedings against the authorities to compel them to make a decision, the NPA announced its intention to prosecute four suspects for the murder and/or kidnapping of Nokuthula Simelane. In this regard, the NPA has charged Timothy Radebe with kidnapping and murder, whilst it charged Willem Coetzee, Anton Pretorius and Frederick Mong with murder.
The accused appeared before a magistrate and the trial was set to begin on 25 July. Unfortunately, the trial was postponed pending the resolution of an issue relating to legal fees for the accused. Reportedly, the accused are of the opinion that their former employer, namely the South African Police, now known as the South African Police Service, should cover their legal fees. An agreement to this effect is yet to be reached. The legal proceedings to compel the NDPP to prosecute will be held in abeyance. The significance of this prosecution cannot be understated as the nation marks the 20th
anniversary of the TRC and reflects on the unfinished business stemming from the process of transition from the apartheid era to a free and fair South Africa. Read more
Southern Africa Litigation Centre v The 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 from 7 to 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 and having domesticated it, South Africa is required to arrest President Omar al Bashir if he is found on South African territory.
After hearing of his arrival in South Africa and the fact that he was not immediately arrested, SALC approached the North Gauteng High Court seeking the implementation of the ICC arrest warrant. On 14 June 2015, the Court issued an interim order preventing Omar al Bashir from leaving the country pending the finalisation of the matter which was set for hearing on 15 June 2015. The Court reconvened on 15 June 2015 and after hearing submissions from all the parties, it ordered that President Omar al Bashir be arrested and detained for subsequent transfer to the Hague.
Immediately after the ruling had been handed down, the Court was informed by the legal representatives acting for the state that President Omar al Bashir had already left the Republic in direct contravention of the interim order issued by the Court on 14 June 2015. The Court then requested that the state submit an affidavit explaining how President Bashir was allowed to leave the country. In response to this order, the state submitted an explanatory affidavit and subsequently filed for leave to appeal the High Court judgment. The application for leave to appeal was heard on Friday 14 August 2015 and on 16 September 2015, the North Gauteng High Court denied the state leave to appeal indicating that the issue was moot, and that there were no prospects of success on appeal. The state petitioned Supreme Court of Appeal and the matter was heard on 12 February 2016.
On 15 March 2016, the Supreme Court of Appeal ruled that government’s failure to arrest President Bashir was unlawful and dismissed the application for leave to appeal as brought by the state with costs. On 8 April 2016, the government applied for leave to appeal to the Constitutional Court. The Constitutional Court will hear the matter on 22 November 2016. Read more
TRAINING, ADVOCACY AND OTHER PROJECTS
SALC Hosts Legal Training on Health and Human Rights
From 27 - 29 June, SALC hosted a 3-day regional training event for African lawyers on “Removing legal barriers to treatment: Legal training on health and human rights” under the Africa Regional Grant on HIV. The training focused on practice and strategic litigation to support health and human rights, particularly for persons who face heightened vulnerability to HIV and TB (key populations). Seventy participants from Botswana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Nigeria, South Africa, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe, amongst others, shared experiences, strategies and best practices and workshopped cases together with experts. Resource materials relating to the training are open to access on SALC’s website, here
SALC Makes Submissions to the African Commission on the Draft General Comment on Victim’s Rights to Redress
On 30 June, SALC and the Mental Disability Advocacy Centre (MDAC) made a joint submission in support of the consultation process regarding the draft General Comment on Victim’s Rights to Redress as prepared by the Committee for Prevention of Torture in Africa under the African Commission on Human and Peoples’ Rights. If adopted, the General Comment will provide substantive guidance on the interpretation of Article 5 of the African Charter on Human and Peoples’ Rights. It is hoped that this instrument will support African states in complying with their obligations under article 5 of the Charter.
SALC Submissions to the Parliament of Swaziland on the Suppression of Terrorism (Amendment) Bill and the Public Order Bill
SALC prepared written submissions to the Swazi Parliament on the Suppression of Terrorism (Amendment) Bill and the Public Order Bill. SALC set out why the Bills did not adequately protect and promote the rights to freedom of expression and association, and made recommendations on what should be changed in the Bill to bring them in line with the Swazi Constitution and international human rights law. In May, SALC’s Executive Director made an oral submission to the Parliamentary Committee on the Suppression of Terrorism (Amendment) Bill.
SALC and CHREAA Release Malawi Immigration Law Audit
On 20 May, the Centre for Human Rights Education Advice and Assistance (CHREAA) and SALC launched an Audit of Malawi’s immigration laws making a list of 24 recommendations to ensure compliance with human rights and the rule of law in the government’s response to the ongoing detention of migrants in Malawi’s prisons. The Audit was requested following a High Level Round table Meeting held by SALC and partners last year on policy development for migration regulation in Malawi. That meeting was called in response to the increases in migrant detention in severe prison conditions, particularly of migrants of Ethiopian origin. The Audit can be read here
SALC Joins Malawi Civil Society in Calling for Action to Address Food Shortages and Overcrowding in Prisons
On 7 June, SALC, the Centre for Human Rights Education, Advice and Assistance (CHREAA), Child Rights Advocacy & Paralegal Aid Centre (CRAPAC), the Paralegal Advisory Service Institute (PASI), and the Youth Watch Society (YOWSO) addressed a letter to His Excellency President Peter Mutharika of Malawi calling on him to undertake urgent interventions to protect the lives of prisoners and to prevent unconstitutional treatment of detainees in the face of severe food shortages in Malawi prisons. Efforts at urgent reforms are ongoing. The letter can be read here
SALC Participates in Dialogue between the ICC Prosecutor and Human Rights Actors
SALC was asked to join a panel featuring the Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, and the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein. Hosted by the Graduate Institute for Geneva, and the Permanent Representation of the Kingdom of the Netherlands in Geneva, the panellists discussed the intersection between the United Nations, civil society and the ICC in the common objective to secure accountability. SALC’s International Criminal Justice Lawyer, highlighted our attempts to secure justice for crimes against humanity and genocide using universal jurisdiction and international and domestic laws governing the issue. This included SALC’s Zimbabwe Torture Case and the attempt to secure the arrest of Sudanese President Omar al Bashir, who is wanted by the ICC, as well as subsequent litigation around holding the South African government accountable for its failure to arrest President Bashir during his visit to South Africa in June 2015.
SALC Presents at AFLA Seminar on "Complementarity, the Habre Trial and the Evolution of Universal Jurisdiction"
From 28 May to 1 June, SALC participated in a seminar hosted by the Hague based African Legal Aid (AFLA) in Dakar, Senegal. The seminar was organised around the handing down of the Habré judgment. SALC was asked to share its experience of the use of universal jurisdiction in the Zimbabwe Torture Case and on issues of complementarity related to the Bashir case. The event was covered extensively by local and international media and was well attended by delegates from the African Union, civil society and the International Criminal Court.
SALC and the SADC Summit
SALC and Amnesty International jointly hosted a side-event at the SADC Council of NGO's (SADC-CNGO) Forum in Swaziland. The Forum is held in the week before the SADC Heads of State Summit, and brings together NGO's from accross the SADC region to discuss issues of commonality. The side-event looked at the trend of governments using national security offences against activists who speak out against the state. It focused on Angola, Swaziland and Zimbabwe, and demonstrated how the application of these laws severely curtails the right to freedom of expression.
SALC also participated in a joint statement calling upon the Heads of States at the SADC Summit held in Mbabane (Swaziland), to reinstate the SADC Tribunal with jurisdiction for the Court to hear human rights matters brought by individuals from countries in the region. The statement was prepared by the Coalition for an Effective SADC Tribunal (Coalition), a network of organisations that SALC is a member of. The statement by the Coalition calls upon Heads of States in the countries concerned to abstain from signing and ratifying a new court Protocol adopted by SADC as it withdraws jurisdiction of the SADC Tribunal to hear individual complaints against violation of human rights committed by states. In its spirit, the statement leaves the clear message that failure to allow individuals to access the SADC Tribunal is not in keeping with the principle of access to justice and it violates the rights of SADC citizens to participate as set out in the SADC Declaration and SADC Treaty under Article 23.
SALC Hosts Freedom of Expression Strategic Litigation Workshop
SALC hosted a workshop on freedom of expression litigation in Blantyre, Malawi in June 2016. The workshop was hosted in conjunction with the Malawi Law Society, and brought together lawyers, media practitioners, academics, representatives of the law enforcement authorities, the Malawi Human Rights Commission, a representative of the judiciary, and the Media Institute of Southern Africa. The workshop presentations discussed the importance of the right, and the threats to the exercise of the right in Malawi. It provided stakeholders present at the meeting the opportunity to discuss the issues openly, and to start dialogue to find solutions that could be addressed in a way that involved all the relevant stakeholders.
SALC Supports Advocacy on Ending Child Marriages in Tanzania
SALC supported the Msichana Initiative, a Tanzania based organisation that advocates for the protection of girls’ rights with post litigation advocacy on their case. Msichana Initiative took a case which challenged provisions allowing child marriages in the Tanzania Law of Marriage Act. SALC assisted Msichana Initiative preparing media statements for the judgment release. In addition, on 16 August, SALC supported a strategic meeting with stakeholders working to advocate for the eradication of child marriage in Tanzania under the umbrella of Tanzania End Child Marriage Network (TECMN). During the meeting, advocate Jebra Kambole who acted as litigation counsel on the Msichana child marriages case, presented on the outcome of the case, its scope and impact to the child marriage discourse in Tanzania. SALC shared experiences of using strategic litigation as an advocacy tool to advance women’s rights in Southern Africa.
SALC at the International AIDS Conference
SALC attended the International AIDS Conference which was held in Durban South Africa from 18 - 22 June. SALC attended several pre and post conference meetings.
SALC attended the Ford Foundation AAI Challenging Criminalisation Globally Pre-Conference and presented on the universal application of human rights and that it is the democratic right of all citizens to be able to freely associate and assemble with other like-minded who share their interest and aspirations, even if those views are unpopular amongst the majority.
SALC also presented a paper entitled "A right to preventative healthcare: Motivating access to condoms for prisoners in southern Africa" at a poster discussion session at the International AIDS Conference 2016. SALC and the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) presented a poster at the Conference entitled "Access to ART for Foreign Prisoners in Botswana: Litigation and Strategy in Tapela and Others v the Attorney General and Others
SALC provided free legal consultation services at the AIDS Free World Legal Consultation Centre, together with international lawyers from around the globe to provide confidential legal consultation services for conference participants on HIV and human rights. Read more
Finally, SALC attended the Stakeholders’ consultation on the study of the African Commission on Human and Peoples’ Rights on "Law, Human Rights and HIV in the African Human Rights System: Key challenges and opportunities for rights-based responses to HIV”. The objective of the Consultation was to contribute to, and enrich the study on. Prior to the meeting, SALC had contributed to the editing of the report and continues to be involved in the finalisation of the report.
International Justice: The Good, the Bad and the Ugly
The international criminal justice project can only be sustained when all the stakeholders play their part – governments, civil society organisations and international bodies, courts and tribunals. Unfortunately some governments refuse to play ball, international courts do not have the requisite support and civil society have their names dragged through the mud and face reprisals when they stand up for justice and accountability. Read more
SA’s UN Vote Against Press Freedom NGO is a Vote Against Diversity of Perspectives
South Africa was one of eight countries in the United Nations Committee on Non-Governmental Organisations that voted to deny the Committee to Protect Journalists (CPJ) observer status at the United Nations (UN). South Africa voted against accreditation along with countries like China and Russia who are not known for their commitments to free speech. Read more
Towards an LGBTQ Africa
On Anti-Homophobia Day, Tashwill Esterhuizen examines the state of rights for gay, lesbian, bisexual and transgender people on the African continent and argues that civil society can play a more meaningful role in changing governments’ conservative, sometimes oppressive, approach to the LGBT community. Read more.
Key Developments Towards Increased Recognition of the Human Rights of LGBTI People in Africa
Tashwill Esterhuizen and Anneke Meerkotter, lawyers at the Southern Africa Litigation Centre contributed to an article titled “Key developments towards increased recognition of the human rights of LGBTI people in Africa” in International Lesbian, Gay, Bisexual, Trans and Intersex Association: Carroll, A., State Sponsored Homophobia 2016: A world survey of sexual orientation laws: criminalisation, protection and recognition (Geneva; ILGA, May 2016). The full publication can be accessed here. Click here to go directly to the chapter.
Invitation to the Southern Africa Litigation Centre’s 10 year Anniversary Commemoration
Date 28th September 2016
From 2-5pm including a cocktail event
Venue: Crowne Plaza Rosebank