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Promoting Human Rights and rule of law in Southern Africa

Dear Reader,

Over the past few months, SALC has been in a period of transition with the departure of both Nicole Fritz, SALC's founding Director and Deputy Director, Priti Patel. I arrived officially in February together with Anneke Meerkotter who was appointed as SALC's Litigation Director but who has been with the organisation since 2011. SALC also welcomes Brigadier Siachitema, a Zambian lawyer, in our Women's Land and Property Rights Programme to the SALC team.

It has been a busy and productive few months with much regional travel and activity. SALC attended the April African Commission Session where we presented a broad cross continental statement to the African Commission signed off by 129 organisations raising shared concerns about the xenophobic tensions in South Africa.

SALC ran three very successful judicial colloquiums in Botswana, Malawi and Zambia earlier this year where we launched a new publication 'Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi and Zambia".

The situation in Swaziland with the indefinite suspension of the Supreme Court is an ongoing concern for us and the absence of a regional court to step into this breach deepens the Swazi rule of law crisis further.

We appeal to all our readers to support our Swaziland twitter Campaign on Thunderclap. Go to  http://bit.ly/1EfmNZf and click on support with twitter, then send out this tweet: “If calling for an independent judiciary is terrorism, then I am a terrorist” All the consolidated tweets will go out together at the end of this month.  

Kaajal Ramjathan-Keogh
Director
May 2015
 

OFF THE DOCKET

K v K and Others

SALC supported a challenge to the Adoption of Children Act in Botswana, which permitted the adoption of a child born out of wedlock without the consent of the child’s father. SALC worked with the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) and Uyapo Ndadi, a private lawyer. The High Court gave judgment in the biological father's favour on 2 February 2015, declaring the Act unconstitutional to the extent that it fails to recognise the consent of the biological father. Read more.
 

ON THE DOCKET

Masupha, Federation of Women Lawyers (Lesotho) & SALC v Kingdom of Lesotho

In March the African Commission on Human and Peoples’ Rights became seized of the case of Masupha, Federation of Women Lawyers (Lesotho) and SALC v. the Kingdom of Lesotho. Ms Senate Masupha and the two organisations approached the African Commission following an unsuccessful bid by Ms Masupha to enforce her rights in the Lesotho courts. On 17 April 2014, the Court of Appeal of Lesotho issued judgment against Senate Masupha, the first-born child of a chief who argued that denying her the ability to succeed to chieftainship solely due to her gender violated her constitutional rights to equality and freedom from discrimination. The African Commission next has to determine the admissibility of the matter.  Read more.
 

Tapela and Others v The Attorney-General and Others

SALC is assisting the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) on a case challenging the government’s refusal to provide HIV treatment to non-citizen prisoners. On 22 August 2014, the High Court held that the denial of HIV treatment to foreign prisoners living with HIV violated their constitutional rights. The Attorney-General has appealed the decision to the Court of Appeal. The hearing is anticipated in July 2015.
 
On 1 April 2015, the Attorney General filed an urgent application to stay the execution of the High Court order, pending the appeal in the Court of Appeal. BONELA opposed the application and filed an urgent application to hold the State in contempt of the High Court’s order for failing to comply. On 29 April 2015, the High Court dismissed the applications on the basis that they lacked urgency.
 

Republic v G

In March 2015, Mr G was arrested under section 184(c) of the Malawi Penal Code, which provides that a person is deemed a rogue and vagabond if found in a public place at such time and under such circumstances to lead to the conclusion that he is there for an illegal or disorderly purpose. With the assistance of local lawyers and the Centre for Human Rights Education, Advice and Assistance (CHREAA), a petition was filed requesting certification of the case as a constitutional matter in which Mr G can challenge the constitutionality of section 184(c). We await the decision of the Chief Justice on whether the matter can proceed to the Constitutional Court. SALC supports the attorneys and CHREAA in this matter.
 

Dlamini and Another v The Prime Minister and Others

The bail appeal for Mario Masuku and Maxwell Dlamini, arrested on 1 May 2014 after participating in a May Day gathering in Manzini, Swaziland, was due to be heard on 5 May 2015. However, a warrant of arrest issued for the arrest of the Chief Justice has resulted in a postponement of the Supreme Court’s May session, with their bail appeal postponed indefinitely. On 28 April 2015, Masuku applied for bail in the High Court to enable him to attend his mother’s funeral. The State is opposing his bail application.
Masuku and Dlamini have also filed an application challenging the constitutionality of the two pieces of legislation under which they have been charged. This application has been joined with three other similar applications, and will be heard in the High Court on 8 September 2015. SALC is supporting the constitutional challenge and the bail appeal. Read more.
 

M v St Anne’s Hospital and Others

SALC is working with Women and Law in Southern Africa-Zimbabwe (WLSA-Zimbabwe) to provide assistance on a case in which a nurse was coerced to disclose her HIV-status and fired due to prior non-disclosure. A hearing was held in the Constitutional Court on 11 February 2015. The Court reserved judgment on a procedural point concerning whether the matter should revert to the Labour Court. It is expected that the substantive components of the case will proceed following the Court’s determination of the jurisdictional issue. Read more.
 

TRAINING, ADVOCACY AND OTHER PROJECTS

Reducing overcrowding in Malawi Prisons

On 20 March 2015, the Inspectorate of Prisons in Malawi, SALC and the Centre for Human Rights Education, Advice and Assistance (CHREAA) convened a workshop on the role of the judiciary in reducing overcrowding of prisons. The judiciary agreed to set up a core group which will discuss the recommendations of the meeting and establish systems to improve the rate of confirmation of cases and other problems which contribute to overcrowding. Participants at the meeting questioned the overuse of custodial sentences for petty offences and the delays in confirmation of sentences by the High Court.


Seminars on the Rights of Vulnerable Groups in Botswana, Malawi and Zambia

In January and March 2015, SALC convened seminars on the rights of vulnerable groups for the judiciary, legal profession and civil society in Botswana, Malawi and Zambia.

The book “Using the Courts to Protect Vulnerable People: Perspectives from the Judiciary and Legal Profession in Botswana, Malawi and Zambia” was launched at each of these seminars. A copy of the book is available here and also in hard copy on request.

 

Advocacy against Xenophobic Violence in South Africa

 SALC carried out a number of advocacy initiatives in response to the xenophobic attacks in South Africa. During the 56th Ordinary session of the African Commission on Human and Peoples’ Rights (African Commission), held in Banjul from 21 April – 7 May, SALC read out a statement requesting the African Commission to call upon the South African government to take concrete steps to end xenophobic attacks against foreign nationals in the country, prosecute perpetrators and protect foreign nationals living in their territory from violations of their human rights.

SALC prepared a more detailed version of this statement which was then signed onto by 129 other organisations from throughout the continent and sent as an open letter to the African Commission. In this letter, the organisations requested the African Commission to call upon the South African government to take concrete steps to protect foreign nationals in the country; provide humanitarian assistance to those internally displaced due to the attacks; prosecute perpetrators of acts of violence; and publicly condemn unequivocally comments by persons in positions of authority and influence which may amount to incitement to violence. The letter is available on SALC’s website in English and in Portuguese. It was also emailed directly to the African Commission and some Commissioners. SALC’s Executive Director, Kaajal Ramjathan-Keogh was interviewed regarding this open letter by Channel Africa. Listen to the interview here.

In addition to advocacy at the African Commission level, SALC prepared an open letter to the SADC Chair urging SADC to take action against xenophobia. SALC’s International Criminal Justice Programme Lawyer, Angela Mudukuti, wrote a blog for thoughtleader regarding the xenophobic attacks and the continued suspension of the SADC Tribunal. In this, blog she showed how the continued suspension of the Tribunal and proposed new SADC Tribunal Protocol, which removes individual access to the Tribunal, has seriously impacted the ability of individuals in the region to access justice, including for example the victims of the xenophobic attacks in South Africa. Read the blog here.


SALC Submits  a Shadow Report to the Human Rights Committee on Namibia

In advance of the preparation of the list of issues for Namibia’s report to the Human Rights Committee, SALC prepared a shadow report. The report covered the forced and coerced sterilisation of women living with HIV/AIDS in Namibia and the human rights violations which accompanied this. It was endorsed by the Namibian Women’s Health Network (NWHN), the International Community of Women Living with HIV (ICW) the Southern Africa office of the ICW, ICW-Southern Africa and Her Rights Initiative, South Africa. Read more.


SALC Submits a Shadow Report on Malawi to CEDAW 

On 10 February, SALC made a submission to the Committee on the Elimination of all forms of Discrimination against Women (CEDAW) ahead of the adoption of the list of issues for the consideration of Malawi’s report. In the submission, SALC raises concerns regarding the compulsory HIV testing of women, the discriminatory application of laws relating to divorce and their effect on the health of women, the harsh abortion laws, as well as the intersectional discrimination due to the criminalisation of same sex acts between women. Read the submission here.
 

PUBLICATIONS

Civil Society in Action: Pursuing Domestic Accountability for International Crimes

In January 2014, SALC released a report entitled, “Civil Society in Action: Pursuing Domestic Accountability for International Crimes”. This is a report that draws on workshop outcomes from a conference organised by SALC with the support of Trust Africa. This publication canvases successful case studies of civil society pursuing domestic accountability for international crimes. The publication outlines existing legal frameworks and addresses challenges faced with the investigation and prosecution of international crimes in Africa. Among the recommendations are that existing penal codes be harmonised with international criminal law and the specific assistance to the ICC include the relocation of witnesses, incarceration of convicted perpetrators and the lawful detention of ICC fugitives. Download the report here in English and French.

 

ANALYSIS

Who to Turn to when the Courts Fail You: The Very Real Impact of a Biased Judiciary 

Last year, on 1 May, Swazi political activists Mario Masuku and Maxwell Dlamini attended a commemoration of May Day in Manzini, Swaziland. Masuku spoke passionately about his desire for a multi-party democracy in Swaziland and Dlamini led the crowd in song, calling for the end of the Tinkundla system – the current political system which prohibits the participation of political parties in elections and permits King Mswati III to appoint unilaterally just under 30 percent of the members of the two houses of Parliament.

For Masuku and Dlamini the commemoration was an opportunity for them to highlight what they perceived to be serious failures in the political structure in the Kingdom, as well as various abuses of power they had witnessed in preceding months. For the Swazi government however, the comments made at the commemoration were seen as a threat to the peace, and so as the pair was leaving the venue, they were arrested, detained and charged under Swaziland’s sedition and terrorism laws. Read more.

 

 

SALC on YouTube
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Open Letter to the African Commission Regarding the Xenophobic Attacks in South Africa

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Open Letter: SALC Urges SADC to take Action against Xenophobia

A Monarchical Crisis

Amnesty International Condemns Repression of Fundamental Freedoms in Swaziland

Lawyers, Rights Groups Rally Around Author of ‘Blood Diamonds’, Facing Jail

Courts Urged to Protect Vulnerable Groups

Don’t be Slaves of Precedent, Judges told

‘Review Rogue and Vagabond Laws’

Fighting TB with Prisoners’ Rights

Swazi Lawyer in Solitary Confinement

Women Consent to Sex Stirs Debate

Court Set Up Intimidatory-Judiciary

Open Letter from Human Rights and Free Press Groups Calling for Charges against Rafael Marques De Morais to be Dropped

The Southern Africa Litigation Centre Condemns the use of Solitary Confinement against Swazi Lawyer, Thulani Maseko

What’s with the Heavy-handed Crackdown on Free Speech in Swaziland?

Angola: Detained Activists must be Immediately and Unconditionally Freed

Simone Gbagbo: International Justice v National Justice

2014 AIDS Philanthropy Summit

Discussion on Discrimination against Women in Traditional Leadership in the African Agenda
Regional Rights Body Reports Malawi to the UN

SALC Submits a Shadow Report on Malawi to the Committee on the Elimination of all Forms of Discrimination against Women

Botswana High Court Upholds Children’s Best Interests in Adoption

Botswana Gay Rights Group to Fight Gov’t Appeal on Recognition

Botswana Government to Appeal ARV Ruling

Botswana Govt to Appeal Homosexuality Case




 

 
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