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Promoting Human Rights and rule of law in Southern Africa

Dear Reader,

This has been an exciting time particularly in the LGBT sector. SALC has been supporting the registration of LGBT organisation, Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) for several years. In March after a long 4 years the Botswana Court of Appeal held that the refusal by the Registrar of Societies to register the organisation was unlawful and a violation of the right to associate.

SALC has further been working to develop the right to palliative care in Malawi with its long term partner the Centre for Human Rights Education, Advice and Assistance (CHREAA). SALC challenged a prisoner applicant’s rights to freedom from torture, inhuman and degrading treatment to motivate for his release on bail which was successful.

SALC successfully incorporated arguments involving the best interest of the child doctrine in a case which we intervened in jointly with CHREEA in Malawi to obtain the unconditional release of a woman on bail pending review. The case involved a mother incarcerated with her three infant children.

SALC remains concerned about the situation in Lesotho where we have failed to secure the release of Lesotho Defence Force soldiers some of whom will have been in detention for nearly a year this month. Despite High Court orders for the release of these soldiers they remain in detention pending the outcome of a court martial process. This is notwithstanding the fact that a SADC Commission on Inquiry from late 2015 found no evidence of a mutiny and could not attribute any wrongdoing on the part of the soldiers. The stability of the country remains in the balance with the Lesotho Defence Force continuing to keep a firm hold on politics and power.

And finally SALC claimed a victory before the Supreme Court of Appeal in South Africa which ruled that the South African government acted unlawfully when it failed to arrest President Omar Al Bashir when he attended an AU Summit in Johannesburg in June 2015. This finding was a validation of SALC’s efforts and a vindication of SALC’s attempt to have President Bashir arrested as war criminal sought by the International Criminal Court. Notwithstanding the state are currently seeking leave to appeal to the Constitutional Court as they believe that a different court will find that heads of states have immunity from prosecution and may not be arrested to be handed over to the ICC. SALC is preparing for round three before the highest court in the country. We are disappointed by the state’s refusal to accept that their positon is wrong and they failed to act in accordance wot their domestic and international obligations. We are confident that the Constitutional Court will pronounce with finality on this situation. We are hoverer disappointed at the state’s disregard for court judgments and the waste of tax monies in pursuing this case but are hugely encouraged by the country’s strong, independent judiciary.

Kaajal Ramjathan-Keogh
Director
May 2016

 

OFF THE DOCKET

Rammoge and 19 Others v Attorney General

On 16 March 2016, the Botswana Court of Appeal, held that the refusal to register the organisation Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) was not only unlawful, but a violation of the right of LGBT activists to freely assemble and associate. Four years earlier in April 2012, LEGABIBO, was refused registration by the Registrar of Societies on the basis, amongst other things, that same-sex practices are criminalised in Botswana, and therefore lesbian, gay and bisexual individuals were not recognised as persons protected by the rights provisions in the Constitution. The activists then took their plight to the High Court of Gaborone which rejected the state’s argument as irrational and ordered that LEGABIBO be registered as an organisation. The Court of Appeal has now reaffirmed the decision of the Gaborone High Court, by holding that the refusal to register LEGABIBO was not only irrational, but a violation of the right of LGBTI activists to freely assemble and associate. Read more.
 

MISA Zimbabwe and Others v Minister of Justice and Others  

In February 2016, the Constitutional Court of Zimbabwe confirmed that criminal defamation is no longer an offence in Zimbabwe. In 2014, the same Court had ruled that the offence was unconstitutional under the previous Constitution on the grounds that it unjustifiably limited the right to freedom of expression. However, there was a great deal of uncertainty over the status of the offence under the current Constitution, and so the Zimbabwe chapter of the Media Institute of Southern Africa (MISA) and five media practitioners brought an application in the Constitutional Court to clarify the effect of the 2014 ruling. The Court found in MISA’s favour and confirmed that the offence was unconstitutional. Read more.
 

Pelesi v The State 

SALC supported a case seeking to develop the right to palliative care in the context of bail for terminally ill remandees. In previous years, SALC worked with partners in Malawi on bail reform to ensure that the health status of terminally ill remandees is taken into account when considering bail applications. Working with the Centre for Human Rights Education, Advice and Assistance (CHREAA), the applicant in the present case sought to raise his right to freedom from torture, inhuman and degrading treatment, amongst others, as establishing a right to palliative care that in the absence of being afforded to him under remand detention, motivated his release on bail. The applicant was granted bail by the Lilongwe High Court on 24 March 2016. A written judgment is expected in due course. Read more
 

The Republic v SN

SALC supported CHREAA to file an application for the release of a woman incarcerated with her three infant children at Dedza Prison in Malawi. The applicant was sentenced to 30 months imprisonment with hard labour for intimidation. An application to the High Court to release the woman in the best interests of her infant children or in the alternative to grant her bail until review of her case and further order by the Court was filed on 22 February 2016. The client was granted unconditional bail pending review on account of her children. The Court ordered that the file should come before it for review within 14 days. SALC is now monitoring the review of her case. Read more.
 

The Republic v DB 

SALC supported CHREAA to make arguments in mitigation of sentence in a matter involving a woman convicted of arson and unlawful wounding. The Magistrates Court while recognising the gravity of the offence, considered the fact that the accused was a primary care giver to four young children aged between 3 and 12 years. In their submissions, the accused’s legal representatives requested the Court to take cognizance of the fact that the female section of the prison closest to the accused’s home has been closed for maintenance purposes and that if the court imposed a custodial sentence, it would result in the accused person being sent to a faraway prison contrary to Section 23(3) of the Constitution which provides for children’s right to know, and to be raised by, their parents. On 11 March 2016, the Court did not hand down a custodial sentence and indicated that in reaching this decision, it had taken into account the best interests of the accused’s young children. Read more.
 

Mareka and 22 Others v Commander of the Lesotho Defence Force and Others  

SALC worked with a team of lawyers in Lesotho, the Transformation Resource Centre (TRC) and the Catholic Commission for Justice and Peace to challenge the constitution of a court martial and the ongoing detention of members of the Lesotho Defence Force (LDF) charged with plotting a mutiny. The challenge related to the convening of a court martial at the same time as the SADC led Commission of Inquiry investigated the alleged mutiny plot and the killing of the former army commander, Lt General Mahao. The LDF detainees have alleged torture in detention, have been refused access to their lawyers, and denied the prospect of cooperating with the Commission. The High Court granted the applicants an order for their release on “open arrest” on 5 October 2015 but the LDF had refused to release them. The remaining prayers were dismissed. The applicants filed an urgent appeal in pursuit of those prayers dismissed by the High Court whilst the LDF cross appealed the order for open arrest. Arguments were heard on 15 April 2016. On 29 April 2016, the Court of Appeal dismissed the detainees’ appeal and upheld the LDF’s cross appeal. Read more
 

ON THE DOCKET

Southern Africa Litigation Centre v Minister of Justice and Others

On 15 March 2016, the Supreme Court of Appeal ruled that the South African government’s failure to arrest President Bashir was unlawful and dismissed their application for leave to appeal with costs. In June 2015, SALC sought the implementation of an arrest warrant issued by the International Criminal Court (ICC) for Sudan’s President Omar al Bashir who had arrived in South Africa to attend the African Union (AU) summit. SALC approached the North Gauteng High Court seeking the implementation of the ICC arrest warrant and the Court issued an interim order preventing Bashir from leaving the country pending the hearing of the matter  on 15 June 2015. The Court ordered that President Omar al Bashir be arrested, but after handing down this order the Court was informed by the state respondents that President Bashir had already left the Republic in direct contravention of the interim court order issued on 14 June 2015. Upon the Court’s request, the state submitted an explanatory affidavit explaining how President Bashir was allowed to leave the country 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 and 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. The Supreme Court of Appeal ruled that the government’s failure to arrest President Bashir was unlawful. On 8 April 2016, the government applied for leave to appeal to the Constitutional Court. Read more.
 

Thembi Nkadimeng v National Director of Public Prosecutions and Others 

SALC is supporting the family 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. Nokuthula acted as a courier for Umkhonto we Sizwe, the armed wing of the African National Congress, moving between Swaziland and South Africa. Her remains have never been found. In 1996, a police docket was opened and 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. Despite repeated requests by the family to the authorities, no decision had been taken to refer her case to an inquest, neither had a decision been made whether to prosecute the perpetrators who did not apply for amnesty for murder or kidnapping. After much pressure from Nokuthula’s family, the NPA finally announced its intention to prosecute four of the suspected perpetrators for the murder of Nokuthula Simelane in February 2016. The accused have appeared before a magistrate and the trial has been set down in the Pretoria High Court for 25 July to 29 August 2016. Read more.


Hashatsi v Prime Minister of Lesotho and Others  

SALC supported the wife of the late former army commander Lt General Mahao to oppose an application by the Special Forces commander of the Lesotho Defence Force (LDF) who sought to set aside a Commission of Inquiry established by SADC and the Lesotho government to investigate Lt General Mahao’s killing in May 2015 and certain allegations of mutiny in the LDF. Mrs Mahao requested that the Commission’s independent investigation of the circumstances surrounding her husband’s death be allowed to proceed and that the Commission’s Report be made public. On the morning of 8 February 2016, the High Court dismissed the commander’s application in its entirety, affirming the legality of the Commission and its proceedings. The applicant has appealed the decision to the Court of Appeal although the written High Court judgment remains outstanding. That same afternoon the Commission’s Report was tabled in parliament in redacted form. The Report indicates that Lt General Mahao was likely murdered and that the charges of mutiny against the soldiers are suspect. Read more
 

Masuku and Another v The Prime Minister of Swaziland; Dlamini and Others v The Prime Minister of Swaziland 

On 8 and 9 February 2016, the High Court in Swaziland heard final oral arguments in the matter challenging the constitutionality of the Sedition and Subversive Activities Act and the Suppression of Terrorism Act. SALC has been supporting five activists to challenge these pieces of legislation on the grounds that they are an unjustifiable limitation of the rights to freedom of expression and association and various fair trial rights. The High Court has reserved judgment, and we hope to receive the judgment before the end of 2016. Read more.


Botswana: Law Society of Botswana and Another v President of Botswana and Judicial Services Commission

SALC is supporting the Botswana Law Society with technical and monetary assistance to challenge the President’s refusal to follow the advice of the Judicial Service Commission in appointment of judges. The Constitution provides that the President must appoint judges “in accordance with the advice of the Judicial Service Commission” but he has repeatedly refused to appoint judges recommended by the Commission. The case also challenges the transparency of the Judicial Service Commission’s procedures. The matter was heard on 9 November 2015 and judgment was received on 5 February 2016. The judgment found against the applicants and they have taken a decision to appeal. The appeal is anticipated to be heard in October 2016. Read more.

 

TRAINING, ADVOCACY AND OTHER PROJECTS

SALC Participates at the NGO Forum and the 58th Ordinary Session of the African Commission on Human and Peoples’ Rights

From 3 to 13th April 2016, SALC attended and participated in the NGO Forum and the 58th Ordinary Session of the African Commission on Human and Peoples’ Rights in Banjul, the Gambia.
 
At the NGO Forum, SALC gave a presentation on the state of human rights in Namibia based on SALC’s joint UPR shadow report on Namibia. SALC also chaired a panel which discussed the role of SADC in the restoration and maintenance of peace. SALC also spoke on a panel discussing the attacks against human rights mechanisms in Africa including the SADC Tribunal.
 
SALC’s concerns relating to Lesotho, Angola, Namibia and HRDs were included in the opening speech of the NGO Forum at the African Commission. The resolutions which were adopted by the NGO Forum, can be accessed here and here.

Three oral statements were presented during the 58th Ordinary African Commission session. The first was under the agenda of the human rights situation in Africa, where SALC made a statement on concerns relating to forced and coerced sterilisation in Namibia. The statement reflected recommendations from SALC and the Namibia Women’s Health Network’s joint shadow report for Namibia’s 6th periodic report to the African Commission. The statement is available here and the shadow report is accessible here. The second oral statement was presented under the agenda of the Special Rapporteur on the Rights of Women in Africa and covered age of marriage and detention of children with their mothers in places of detention in Malawi. The statement is available here. The third statement was under the agenda of the Special Rapporteur on HRDs in Africa and covered the conviction of the Angola 17 and the continued imprisonment of Jose Marcos Mavungo. It is available here.
 
SALC also participated on the panel on decriminalisation of petty offences held during the session of the African Commission.
 

SALC Submits Shadow Report report to the Committee on the Rights of the Child for the pre-session of Malawi’s review

In March, SALC and CHREAA submitted a shadow report to the Committee on the Rights of the Child for the pre-session of Malawi’s review. The report covered concerns related to the detention of primary caregivers and the best interest of the child; the detention of unaccompanied migrant children; the incarceration of minors; and laws related to child marriages in the country. Read the press release and submission.

 

Namibia Human Rights Committee Advocacy

From 1 – 2 February 2016, SALC worked with the Centre for Civil and Political Rights to host a training on working with the Human Rights Committee in Namibia and to assist civil society in drafting a shadow report to the Committee. Following the training, the joint civil society shadow report was completed and submitted to the Human Rights Committee. SALC supported the submission. The Human Rights Committee review of Namibia’s report took place from 7-9 March 2016 during the 116th session of the Committee. SALC attended the review and presented an oral statement at the session focusing on forced and coerced sterilisation. The Namibia NGO Forum Trust (NANGOF) and Legal Assistance Centre (LAC) also presented statements. The oral statement is available here.
 

SALC Hosts Judicial Colloquiums on Goal 16 of the Sustainable Developments Goals

SALC  hosted three judicial colloquiums in Malawi on 8 and 9 January 2016, Botswana on 11 and 12 April 2016, and Zambia 21 and 22 April 2016. The colloquiums were entitled Working Towards Peaceful and Inclusive Societies: Promoting Rule of Law and Equal Access to Justice. The colloquiums will culminate in a publication to be launched in December 2016.
 

SALC Hosts Strategy Meeting on Prisoners’ Health Rights in Botswana

On 25 February 2016, SALC, BONELA and the AIDS and Rights Alliance (ARASA) co-hosted a meeting in Gaborone as a follow-up to the successful Court of Appeal judgment in the Tapela case which ordered equal access to antiretrovirals to all prisoners. The purpose of the meeting was to bring together government and civil society stakeholders in the prison sector in Botswana to discuss and formulate strategies to implement the Tapela judgment and strategies to advance prisoners’ health rights. The meeting report is available here.
SALC Hosts Freedom of Expression Strategic Litigation Workshop
SALC and the Zimbabwe chapter of the Media Institute of Southern Africa hosted a two-day workshop on freedom of expression strategic litigation in Bulawayo in February 2016. The workshop brought together twenty-five lawyers from around the country, and covered topics including the importance of freedom of expression, specific threats to free speech, the limitations analysis, and digital security. 

 

SALC Advocates for Eradication of Child Marriages in Southern Africa

On 17 and 18 March 2016, SALC co-hosted a Consultative Meeting on the Draft Model Law on Eradicating Child Marriages and Protecting Children already in Marriages in the SADC Region, with the SADC Parliamentary Forum, Girls Not Brides: The Global Partnership to End Child Marriage, UNFPA and Plan International. The consultative meeting brought together civil society organisations working on child marriages to review the draft model legislation on child marriages which has been developed thus far, and formulate practical recommendations to be incorporated into the final draft of the model law. Participants considered whether the current draft of the model legislation effectively prevents, prohibits and responds to all concerns regarding child marriages. The meeting also began a conversation on post adoption strategies to ensure that the model law is adopted and implemented at country level. It is anticipated that the SADC Model Law will be adopted at the SADC Parliamentary Forum (SADC PF) Plenary Assembly Meeting to be held from 25 May to 5 June 2016 in Swaziland. 
 

Universal Periodic Review Pre-Session on Swaziland  

On 1 April 2016, a pre-session for the Universal Periodic Review (UPR) of Swaziland was held in Geneva, Switzerland. SALC supported the participation of civil society at the pre-session and had prepared a joint shadow report with the International Bar Association Human Rights Institute, Lawyers for Lawyers and Judges for Judges. Further information on the UPR pre-session is available here

 

ANALYSIS

Angola Can No Longer be Regarded as a Democracy 

Freedom of expression and association suffered another blow in Angola recently with the conviction of 17 young activists. These activists were sentenced to jail terms of between two and eight years after being convicted of various offences against state security in connection with their participation at a gathering in which their dissatisfaction with the political governance in the country was discussed. Their trial is emblematic of deep structural problems in Angola and demonstrates the extreme level of control over dissent that is exercised by President José Eduardo dos Santos Read more.
 

Al-Bashir Ruling-Will SA Do The Right Thing? 

There have been many significant developments in the world of international criminal justice recently. Last week the International Criminal Court confirmed charges against Ugandan Dominic Ongwen, recorded a guilty plea from Ahmad Al Faqi Al Mahdi and convicted the former vice-president of the Democratic Republic of Congo, Jean-Pierre Bemba Gombo.

The International Criminal Tribunal for former Yugoslavia also convicted and sentenced Radovan Karadžic, one of the masterminds behind the 1995 Srebrenica massacre. But it is the Southern Africa Litigation Centre’s recent court victory that warrants further attention as it has raised pertinent questions about South Africa’s future with the International Criminal Court (ICC) and indeed South Africa’s role in supporting international justice. Read more.

Botswana Court Of Appeal Unanimously Recognises Gay Rights Organisation

On 16 March, the Botswana Court of Appeal unanimously delivered a landmark judgment in which it dismissed the government of Botswana’s appeal against a Gaborone High Court decision which allowed for the registration of the Lesbians, Gays and Bisexuals Organisation of Botswana (LEGABIBO).

The case is a victory for the advancement and recognition of fundamental, universal human rights for gay, lesbian, bisexual and transgender persons, both in Botswana, and throughout Africa. Read more.
 


 

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SALC’s Statement to the Special Rapporteur on the Rights of Women in Africa

One Step Closer to Eliminating Child Marriage in Southern Africa

Triumph for World Justice

Sudan Blocks Civil Society Participation in UN-LED Human Rights Review

SADC Legal Drafters Approve Model Law

Advancing HIV and TB Treatment and Prevention in Botswana Prisons

NGO Statement on Helen Suzman Foundation Raid

Joint Civil Society Statement on Rwanda’s Withdrawal of its Article 34(6) Declaration from the Protocol on the African Court on Human and People’s Rights  

Government has a Duty to Arrest Bashir

Supreme Court of Appeal Rules on Bashir Case

Angola Chairs Security Council but Refuses to Release Human Rights Defender

Museveni vs The People: Elections in a Time of Social Media  

Four Former Apartheid-Era Guards on Trial Over 1983 Student Murder

Justice for Nokuthula, Please

Lawyer for Detained Lesotho Soldiers Arrested

Call for Immediate Release of Detained Soldiers Following the Report of SADC Commission of Inquiry on Lesotho

Justice for Family of Slain Heroine Nokuthula Simelane

Lesotho Rule of Law Crisis

Endangering Lawyers and the Rule of Law in Lesotho and Swaziland

Angola: UN Working Group on Arbitrary Detention Calls for Release of Human Rights Activist Jose Marcos Mavungo

 
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