It is a with a mixture of emotions that I send this final SALC newsletter of 2014. All of us at SALC are delighted that the past few months witnessed a run of litigation wins in which we were involved, and which promise to promote human rights in the region – from the South African Constitutional Court ruling that South African police must investigate crimes against humanity committed in Zimbabwe; to the ruling that it is unlawful for Botswana not to register a gay, lesbian and bisexual organisation; to the finding in Namibia that those subjected to coercive sterilisation are owed compensation; to the ruling that foreign, HIV-positive prisoners have the right to life-saving HIV treatment at state expense in Botswana (all of which are documented below).
But as this is the last foreword to the SALC newsletter that I will write as director, I also feel great sadness. It has been an enormous, defining privilege for me to have worked at SALC and with its team over the past decade.
There have been many rewards to my work and chief among them has been working with my colleague, Priti Patel. As she is moving continents, she will also be leaving SALC. Her contribution has been immense: as director of SALC’s HIV/Aids Litigation Programme, she has helped build a jurisprudence across the region that protects and promotes the rights of persons and communities affected by HIV/Aids -- of which the recent high court decision concerning HIV-positive, foreign prisoners is but one example. But Priti has, at the same time, served as deputy director of SALC ensuring that her work has been intrinsic to all levels of the organisation. All of us here will find it hard to say good-bye.
Still, while it is hard to leave and to say good-bye to Priti, I am delighted and proud to be able to announce that Kaajal Ramjathan-Keogh will be assuming the role of executive director at SALC, come February 2015. Kaajal is well known and widely admired in the region for her human rights work, having led Lawyers for Human Rights’ (LHR) excellent work on migrants and refugees. Undoubtedly, Kaajal will provide the direction and vision SALC requires in the coming years and she will find she has a truly wonderful team here.
2014 has seemed a long, and sometimes stressful year, and so I hope that the end-of-year offers you some pause and a chance of rest and relaxation. I hope your holidays are happy and peaceful.
If you can, please spare a thought for the many individuals selflessly struggling for democracy and political freedom in Swaziland – individuals like Thulani Maseko, Bheki Makhubu, Mario Masuku and Maxwell Dlamini who will spend the holidays behind bars, without the comfort of their families. If you’d like to help, you can contribute to the costs of their legal defence by donating to SALC using the following bank details:
Account name: Southern Africa Litigation Trust
Account no: 1950 5755 94
Branch code: 195005
Swift code: Nedszajj
Account type: Current
OFF THE DOCKET
Government of the Republic of Namibia v LM and Others
On 3 November 2014, the Supreme Court of Namibia in Government of the Republic of Namibia v LM and Others
held that three HIV-positive women were subjected to coerced sterilisation in violation of Namibian law. The Supreme Court emphasised that the Namibian Constitution affords every individual the right to dignity, to physical integrity, and to found a family. The Court further held that the three women were entitled to damages and the matter was referred back to the High Court. SALC supported the Namibia Women’s Health Network and the Legal Assistance Centre in this matter.
National Commissioner of the South African Police v Southern Africa Litigation Centre and Another
On 30 October 2014, a unanimous Constitutional Court handed down judgment in National Commissioner of the South African Police Service (SAPS) v Southern Africa Litigation Centre and Another,
ruling that SAPS has a duty to investigate the crimes detailed in the dossier complied by SALC.
The decision was the culmination of a battle that began in 2008 when SALC submitted a dossier to the South African National Prosecuting Authority (NPA) containing evidence of widespread and systematic torture by Zimbabwean officials in Zimbabwe. After the NPA and SAPS refused to investigate, SALC and the Zimbabwe Exiles Forum (ZEF) took this decision on review to the High Court. Both the High Court and the Supreme Court of Appeal ruled in favour of SALC and ZEF. This was the first case brought in terms of South Africa’s domestic International Criminal Court Act.
ON THE DOCKET
Rammoge and Others v Attorney General
On 14 November 2014, the High Court in Gaborone, Botswana handed down judgment in Rammoge and Others v Attorney General,
holding that the refusal by the Minister of Labour and Home Affairs to register Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), a civil society organisation, violated the rights to equal protection of the law, association, assembly and expression. The Minister based his refusal on the fact that same-sex sexual acts are prohibited in the Penal Code. In rejecting this reasoning, the Court noted that there is a distinction between consensual, same-sex sexual relations, which are criminalised, and being attracted to someone of the same sex. The Court further highlighted that being a homosexual in itself is not a crime. SALC supported LEGABIBO, Dow and Associates and the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) in this matter. The Government is expected to appeal this decision.
The Consortium for Refugees and Migrants in South Africa v The President of the Republic of South Africa and Others
On 26 September 2014, the North Gauteng High Court dismissed an application lodged by the Consortium for Refugees and Migrants in South Africa (CoRMSA) in The Consortium for Refugees and Migrants in South Africa v The President of the Republic of South Africa and Others.
CoRMSA sought judicial review of the decision to grant former Rwandan general and suspected war criminal Faustin Kayumba Nyamwasa refugee status in South Africa. The Court dismissed the review application, finding that Nyamwasa is entitled to refugee status and that the applicants did not show sufficient cause of there being reason to believe that Nyamwasa was involved in alleged crimes, despite the existence of evidence and indictments from France and Spain. CoRMSA, with SALC’s support, has lodged an appeal in the High Court.
The Chief Justice and Others v Maseko and Another
On 28 November 2014, the Swaziland Supreme Court upheld the Chief Justice's appeal in The Chief Justice and Others v Maseko and Another.
The Chief Justice appealed against an April 2014 judgment of High Court Judge Mumcy Dlamini which found that the arrest and detention of Thulani Maseko, a human rights lawyer, and Bheki Makhubu, a magazine editor, were unlawful. In March 2014, Maseko and Makhubu were arrested and charged with contempt of court, and were remanded into custody by the Chief Justice. They then brought an application to have their arrest and detention declared unlawful, and although Judge Mumcy Dlamini found in their favour, and released the pair, they were re-arrested and later convicted of contempt and sentenced to a two-year jail term. No reasons were given for the decision by the Supreme Court.
Dlamini and Another v The Prime Minister and Others
SALC is supporting a challenge to the constitutionality of the legislation under which President of the People’s United Democratic Party (PUDEMO), Mario Masuku, and Secretary-General of PUDEMO’s youth wing, the Swaziland Youth Congress (SWAYOCO), Maxwell Dlamini have been charged. Dlamini and Masuku face charges of contravening two sections of the Sedition and Subversive Activities Act, and two sections of the Suppression of Terrorism Act. Both pieces of legislation include broad and vague definitions of terrorism and sedition, and have been used to suppress legitimate dissent. Dlamini and Masuku argue that these definitions are an infringement of the constitutionally protected right to freedom of expression. The applicant's written submissions were filed on 4 December 2014.
SALC is also offering technical assistance to the legal team representing Dlamini and Masuku in their criminal proceedings. Dlamini and Masuku were denied bail soon after their arrest in May as the High Court held that they were a flight risk and posed a threat to the community if they were to be released. In October 2014, the pair launched a fresh application based on new circumstances that had arisen since the initial application. Bail was again denied, and they intend to appeal this decision.
Khwarae v Keaikitse and Others
SALC is working with BONELA and Uyapo Ndadi, a private lawyer, to support a challenge to the Adoption of Children Act in Botswana. The Act permits the adoption of a child born out of wedlock without the consent of the child’s biological father, irrespective of the child's best interests. The applicant argues that the Act violates the father's constitutional rights. The High Court in Gaborone heard legal arguments on 15 September 2014. Judgment is expected in the new year.
Mushapaidze v St Anne's Hospital and Others
SALC is working with Women and Law in Southern Africa, Zimbabwe, to challenge the dismissal of a nurse from her employment due to her HIV status. The applicant argues that her constitutional rights have been violated. The applicant's written submissions were filed on 29 October 2014. The Zimbabwe Constitutional Court is expected to hear oral argument in 2015.
TRAINING, ADVOCACY AND OTHER PROJECTS
Advocacy to End Discrimination Against Women
On 20 October 2014, SALC made a submission to the Committee on the Elimination of all forms of Discrimination Against Women (CEDAW Committee) regarding Namibia. The submission was made ahead of the CEDAW Committee’s session in November where the list of issues for the consideration of Namibia’s report were adopted. SALC also met with a representative of the CEDAW Committee at the end of October to discuss this submission and other concerns in the southern Africa region.
Read the submission
On 14 October 2014, SALC together with 13 other civil society organisations issued a statement to commemorate International Day of Rural Women. The statement called on governments to end discrimination in inheritance rights, including inheritance of traditional leadership roles.
Read the statement
SADC Tribunal Advocacy
At the end of October 2014, SALC met with the United Nations desk officer for southern Africa in Geneva and a representative of the United Nations Special Rapporteur on the Independence of Judges and Lawyers where concerns regarding the new SADC Tribunal Protocol were raised. Following this meeting SALC prepared a joint submission with the SADC Lawyers Association and the International Commission of Jurists to the United Nations Special Rapporteur on Independence of Judges and Lawyers.
SALC attends the Universal Periodic Review of Angola
In October 2014, SALC attended the Universal Periodic Review of Angola. In the days prior to the review, SALC met with representatives of the Special Rapporteur on Freedom of Expression, Special Rapporteur on Freedom of Peaceful Assembly, Special Rapporteur on Human Rights Defenders, the Working Group on Arbitrary Detentions and the United Nations desk officer for southern Africa to discuss particular areas of concern in Angola.
Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi and Zambia
In December 2014, SALC released a publication entitled Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi and Zambia.
The publication is a collection of papers presented at judicial colloquia on the rights of vulnerable groups which were co-hosted by SALC and the National Association of Women Judges and Magistrates (Botswana) and the judiciaries in Malawi and Zambia in February and March 2014. The colloquia provided a unique opportunity for judges to discuss and debate the development of constitutional jurisprudence in their courts. This collection of papers seeks to broaden those discussions to judicial officers who were unable to participate in the colloquia.
Download the compendium
Handbook on the Protocol Establishing the African Court on Human and Peoples’ Rights
In December 2014, SALC released a handbook entitled Justice For All: Realising the Promise of the Protocol Establishing the African Court on Human and Peoples’ Rights.
The handbook looks at the provisions of the Protocol establishing the African Court on Human and Peoples’ Rights (African Court) and explains how the African Court can be accessed. While it makes reference to the Protocol on the Statute of the African Court of Justice and Human Rights, which has not come into effect, its main focus is on the existing African Court. The handbook sets out how civil society can engage with the African Court as it stands, and what can be done to ensure its effective operation.
Download the handbook
SALC Biennial Report for 2012-2014
SALC published its Biennial Report 2012-2014. The report details significant cases, advocacy initiatives, trainings and other activities conducted by SALC from March 2012 to February 2014.
Download the report
Mad Hatters Rule in Swaziland Court
In Lewis Carroll’s Alice in Wonderland, Alice mutters bitterly that the game played in the kingdom run by the Queen of Hearts does not "seem to have any rules in particular; at least, if there are, nobody attends to them". Similar murmurs could be heard in a courtroom in Swaziland in November, as the Supreme Court heard two appeals in the series of litigation cases emanating from the contempt of court charges brought against human rights lawyer Thulani Maseko and magazine editor Bheki Makhubu.