SALC has had a busy and productive 2015. We have supported several important cases regionally and eagerly await judgments in these cases. In Malawi, SALC supported an application for the release of a young woman who gave birth in prison. The case was brought in the best interests of the child.
SALC’s Women’s Land and Property Rights Programme has seen several important developments during the course of this year. In Zimbabwe, SALC is supporting a surviving wife’s right to inherit the matrimonial property. In Zambia, SALC is supporting an eviction case to prevent a community from becoming homeless, landless and without any means of livelihood.
SALC's Health Rights and Rule of Law Programmes have been following worrying developments in Lesotho in the aftermath of the assassination of Lesotho Defence Force (LDF) army commander Brigadier Maaparankoe Mahao. SALC has supported the case of 23 LDF soldiers who are challenging the lawfulness of their prolonged detentions. Despite a court ordering their release on open arrest, a form of bail, and two subsequent contempt applications, the soldiers remain in detention. Respect for the rule of law is at an all-time low in Lesotho and judicial independence is a serious concern. SALC is also supporting the wife of the late Brigadier Mahao in a case which challenges the legality of the Phumaphi Commission of Inquiry which was initiated by SADC. This hearing commenced in December and will continue in early 2016.
These developments in Lesotho follow on from a 2014 coup attempt and is continuing to have a destabilising effect on that country. SALC has been working with international organisations and Lesotho groups 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 is also supporting judicial independence issues in Botswana where we have provided technical support to the Botswana Law Society in a case dealing with the Botswana President’s powers in the appointment of judges.
SALC staff participated in the NGO Forum and the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights. SALC also attended the 14th Annual Assembly of States Parties to the International Criminal Court in The Hague.
We wish you all a restful December holiday. Please note that SALC’s offices are closed from the 15th
December 2015- 6th
OFF THE DOCKET
R. v The Republic
SALC supported a case seeking the release of a young woman who gave birth while in prison in the best interest of her infant child. SALC worked with the Centre for Human Rights Education, Advice and Assistance (CHREAA) and Mandala Mambulasa, a private lawyer. The Applicant requested that the High Court release her in the best interest of her infant child or that in the alternative, she be granted bail until review of her case and further order by the Court. She was granted bail pending review on Friday 13 November 2015. Read more
ON THE DOCKET
Zimbabwe: M v The Master and Others
SALC is working with Women and Law in Southern Africa - Zimbabwe (WLSA - Zimbabwe) to provide assistance on a case in which the master of the High Court (Master) approved a distribution plan awarding a farm equally amongst the surviving spouse and all the 10 children to the deceased husband. Under applicable law in Zimbabwe, a surviving spouse is entitled to inherit the matrimonial house or domestic premises that the couple occupied immediately prior to the deceased’s death. In this case, no matrimonial home or domestic premises was awarded to the surviving spouse despite the couple having lived on the farm immediately prior to the husband’s death. The Master considered the farm as a commercial or business venture and not a matrimonial home. This decision effectively reduced the surviving spouse’s share to that of a child contrary to the law. In March 2015, the surviving spouse commenced proceedings seeking to be declared the sole beneficiary of the farm. The matter is about to be settled for determination by the High Court.
Zambia: Cosmas Mweemba and 34 others v Chikankata District Council and Attorney General
SALC is working with the Zambia Land Alliance (ZLA) to provide assistance on a case challenging the newly created Chikankata District Council’s taking over of individual farms and grazing land from a community of 4429 people without providing them with compensation or alternative land. Upon taking over the land, the Council cleared the communal grazing land and started constructing administrative offices, staff houses, a market and a police station. Sometime in 2014, the Council started subdividing the farms into small plots and offered them for sale to the public. Once the sale transactions are completed, the entire community will be evicted from their land and their houses will be demolished. Consequently, the affected community will become landless and homeless, without any means of livelihood. On 14th November 2014, 35 members of the affected community commenced proceedings challenging the Council’s action.
Swaziland: Challenges to the Constitutionality of Sedition and Terrorism Laws
On 8 and 9 September 2015, the Swazi High Court heard a challenge to the constitutionality of the Sedition and Subversive Activities Act and the Suppression of Terrorism Act. This hearing was a consolidation of four separate applications, all filed by activists who had been charged under these laws. The applications all argue that the sedition, subversion and terrorist offences created by the legislation unjustifiably limit the right to freedom of expression because they criminalise legitimate criticism. In addition two of the activists argued that the provisions in the Suppression of Terrorism Act which allow for the designation by the Attorney General of organisations as terrorists unjustifiably infringe their rights to a fair trial and to freedom of association. The Court heard oral submissions from the applicants, and, due to time constraints, postponed the matter to 8 February 2016 for oral submissions by the state respondents and for closing arguments from the applicants. Read more.
Lesotho: Mareka and 22 Others v The Commander of the Lesotho Defence Force and Others (Lesotho)
SALC is supporting an application by 23 members of the Lesotho Defence Force (LDF) to challenge a concurrent court martial process to a SADC Commission of Inquiry set up to investigate the same crimes of which the soldiers are accused. The applicants seek that the Commission be permitted to conclude its processes before the court martial is pursued. The applicants also challenge the lawfulness of their prolonged detention on “close arrest” and seek that they be released on “open arrest”, a form of military bail. On 5 October the Maseru High Court ordered that the 23 applicants be released on open arrest. Two contempt applications have been brought subsequently as the state respondents have not complied. The applicants are appealing the High Court’s dismissal of their other prayers and the state respondents have cross-appealed the order for the applicants’ release.
Lesotho: Hashatsi v the Prime Minister and Others
The Phumaphi Commission of Inquiry was initiated by SADC and promulgated by the Lesotho Prime Minister to investigate the killing of former army commander Brigadier Maaparankoe Mahao and an alleged mutiny plot. This case concerns a challenge by a Special Forces commander Tefo Hashatsi to the legality of the Commission in an effort to set it aside. SALC is supporting the fifth respondent, the wife of the late Brigadier Mahao. She argues that the independent SADC Commission of Inquiry should be permitted to complete its processes and make its report and the applicant is not entitled to the relief that he seeks. The Transformation Resource Centre has joined as amicus curiae. An initial hearing was held in the High Court on 2 and 3 December. A further hearing is scheduled for 18 and 19 January 2016.
Lesotho: Mosito v the Director of Public Prosecutions and Another
SALC is supporting the Judge President of the Court of Appeal, Dr Kananelo Mosito in challenging the institution of criminal charges against him in relation to an alleged failure to file his tax returns timeously. Justice Mosito has faced repeated attempts to remove him from office since his appointment in January 2015 and the subsequent change of political regime in February 2015. SALC is concerned that this new effort to unseat the Judge President threatens the independence of the judiciary in Lesotho.
Botswana: Law Society of Botswana and Another v President of Botswana and Judicial Services Commission
SALC is providing technical support to the Law Society of Botswana in a case which seeks to interpret the meaning of section 96(2) of the Botswana Constitution. The section provides that the President shall appoint High Court judges “in accordance with the advice of the Judicial Services Commission”. The matter was heard before a full bench of the High Court on 9 November. The President and the Judicial Service Commission argued that the section gave the President a discretion to refuse recommendations from the Judicial Service Commission. The Law Society of Botswana further challenged the fact that the Judicial Service Commission proceedings are not public and that the appointment process of judges lacks transparency. We are awaiting judgment.
TRAINING, ADVOCACY AND OTHER PROJECTS
SALC Submission to the South African Ad Hoc Committee on Probing Violence against Foreign Nationals
At the end of August, SALC made a submission to the South African Ad Hoc Committee on Probing Violence against Foreign Nationals
. The submission raised concerns about the violations of rights, including non-derogable rights; incitement to violence by persons in positions of authority; and mass deportation of foreign nationals without due process. It then went on to give recommendations to the ad hoc committee on steps to be taken by the government, including carrying out of investigations, setting up of special courts and ensuring redress for victims.
In November, the South African Ad Hoc Committee on Probing Violence against Foreign Nationals made its recommendations, which included some suggested by SALC in its submission to the ad hoc Committee. SALC was thanked for its submission which was seen to contain “very important information and add much of value to the discussion on this issue.”
SALC Submits Shadow Report for Swaziland’s Universal Periodic Review (UPR)
In September, SALC submitted a shadow report for the second cycle of Swaziland’s UPR. The report focused mainly on the right to freedom of expression, association and assembly; as well as violations of the rights of arrested and detained persons and lack of independence of the judiciary in the country. It was submitted jointly with Lawyers for Lawyers, Judges for Judges and the International Bar Association’s Human Rights Institute. It can be accessed here
SALC Participates at the UNDP Regional Meeting on HIV and Transgender Issues
On 26-28 October 2015, SALC presented at a regional workshop hosted by UNDP, on the issues faced by transgender individuals and communities within the region. Participants discussed issues faced by the transgender community around identity and lack of proper documentation, education and livelihood challenges, family rejection, stigma, discrimination and violence experienced, as well as challenges of access to specialised services. SALC primarily focused on the need to plan litigation and advocacy strategically and the current regional legal barriers and challenges with regard to transgender identity rights.
SALC Participates in ICC Meeting in Botswana
SALC was invited to take part in a high level cooperation seminar organised by the International Criminal Court for southern African government delegations. SALC was the only invited civil society organisation and was asked to contribute to the discussion with regard to issue of complementarity and the need for domestic courts to share the burden of administering international criminal justice. Given SALC’s extensive experience with domestic litigation on matters of international criminal justice, we were able to make a meaningful contribution and give states practical examples displaying the interplay between international criminal law and domestic courts.
SALC Hosts Freedom of Expression Strategic Litigation Workshop
In September, SALC and the Media Legal Defence Initiative hosted a workshop in Johannesburg on freedom of expression litigation. Fourteen lawyers, who work on freedom of expression issues, were selected from Botswana, Malawi, Swaziland, Zambia, and Zimbabwe and the workshop aimed to deepen their knowledge of the right to freedom of expression, as well as trends in legal reasoning in freedom of expression jurisprudence in southern Africa and further afield. A publication in SALC's Litigation Manual Series following on from the training will be available in early 2016.
SALC Participates at the NGO Forum and the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights
From 31 October to 2 November, SALC attended the Forum on the Participation of NGOs in the 57th Ordinary Session of the African Commission on Human and Peoples’ Rights (NGO Forum), which was held prior to the 57th
African Commission session. At the NGO Forum SALC raised concerns and contributed to resolutions related to the human rights situation in Southern Africa, Angola and Lesotho, as well as the SADC Tribunal. All the resolutions were adopted by the NGO Forum. SALC published a blog regarding the participation of Angola at the NGO Forum, which can be read here
Following the NGO Forum, from 4 to 11 November, SALC attended the 57th
Session of the African Commission and presented an oral statement
regarding Angola, Lesotho and South Africa. SALC and other organisations also hosted a side event on the SADC Tribunal. The Lesotho Minister of Law and Constitutional Affairs, Hon. Motlalentoa Letsosa, participated on the panel and gave a government perspective on the concerns regarding the SADC Tribunal.
SALC Hosts a Side Event at the 14th Annual Assembly States Parties to the ICC (ASP)
SALC co-hosted a side event at the 14th Annual Assembly States Parties to the ICC (ASP), in The Hague with African Legal Aid (AFLA). The ASP is the largest gathering of all the stakeholders in international criminal justice. The theme of the side event was “Complementarity: Beyond the ICC” and was a great success drawing a large crowd and canvassing important issues. The panelists discussed many of the emerging issues in the wake of the attempt to arrest President Bashir, including possibility of South Africa’s withdrawal from the Rome Statute, the true meaning of complementarity, the proposed African Court with a criminal jurisdiction and other topics.
SALC Hosts Community Facilitators Paralegal Training in Namibia
On 12 and 13 November 2015, SALC in collaboration with the Namibia Legal Assistance Centre (LAC) convened a training workshop for the Rights not Rescue Trust of Namibia (RnRT). The training was geared towards improving the capacity of RnRT community facilitators as human rights defenders in the community they are working. The director of RnRT echoed sentiments that she hoped such training would eventually lead to the decriminalization of sex work in Namibia and also the recognition and respect of the human rights of the LGBTI community.
The Dangerous Accountability Deficit in Malawi's Health Sector
Malawi is one of the poorest countries in the world and is heavily dependent on aid. About 40% of its annual budget comes from international donors. However, following the revelation of a massive corruption scandal dubbed “cashgate”, donors have been slashing their disbursements. In October, the IMF also suspended loans to Malawi due to its failure to implement reforms and improve revenue collection. Read more
Justice at the Barrel of a Gun: A Court Diary from Lesotho
Lesotho has faced repeated political
and security crises
over the last years. Factions within the military have jostled for power, frequently transgressing lawful means. In August 2014, factions loyal to the previous army commander, General Kamoli, allegedly lead a coup attempt against President Thabane. The home of the then-Lesotho Defence Force (LDF) commander, Brigadier Maaparankoe Mahao was peppered with bullets. Read more