Promoting Human Rights & Rule of Law in South Africa
9 December, 2016
Every year, on 10 December, the world celebrates International Human Rights Day – the day the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly in 1948. The celebrations recognise the commitment by nations in the world to uphold human rights, and serve as a reminder of the promises made under the UDHR. While the celebrations are laudable, the day provides us with an opportunity to highlight progress and challenges affecting human rights. 2016 is celebrated under the theme on standing up for “standing up for someone’s rights today”, #standup4humanrights.
At SALC, we look at developments in key areas of our work and highlight the challenges in 2016. At the international level, for the first time, the world saw the appointment of UN independent expert on the protection against violence and discrimination based on sexual orientation and gender (UN Expert on LGBTI rights). This is a welcome development. At regional, sub-regional and domestic levels there are numerous promising developments in Africa. However, there remain challenges needing immediate attention.
In the context of sexual and reproductive rights, mmomentum on work aimed at eradicating child marriages continued to grow in 2016. In June, the Southern African Development Community (SADC) Parliamentary Forum finally passed its much awaited Model Law on Eradicating Child Marriages and Protecting Children Already in Marriages, while in August the High Court of Tanzania passed a judgment in favor of eradicating marriage of underage girls. This was followed by several key legislative reforms to protect girls. The low point for sexual and reproductive rights in the region in 2016 was probably the recent trial and sentencing of the so-called hyena in Malawi. The case, the first case to be tried under the Malawi Gender Equality Act 2013, under the harmful cultural practices provision was a bitter reminder of how the system at all levels tends to fail women and girls.
In regards the protection of health rights and addressing HIV, the southern African region saw a huge scale-up of HIV treatment with some governments undertaking to implement test-and-treat policies. However, despite progresses, there are a number of challenges that remain to be addressed. Stigma and discrimination against people living with HIV and people disproportionately affected by HIV (key populations) persists in laws, policies, institutions, and communities that inhibits equitable access to treatment and prevention services. Significant challenges remain in removing legal barriers to effective HIV and TB responses, to respecting the dignity and lives of key populations, and to ensuring accountable healthcare systems.
There were some positive developments in the protection of prisoners’ rights. Some jurisdictions sought to protect these rights by affirming State obligations to reformatory and human-rights based approaches to imprisonment. In Zimbabwe, for instance, the Constitutional Court declared “whole life sentences” (sentences without the prospect of parole) unconstitutional and a violation of human rights. In Malawi, courts have affirmed the obligation to take into account children’s best interests when sentencing their mothers and the right to bail of detainees with unmet palliative care. However, governments continue to fail in their legal obligations to persons in detention. In this regard, prisons in southern Africa are often grossly overcrowded, and access to healthcare services and safe food and sanitation is desperately inadequate. Moreover, prison systems in the sub-region are faced with serious challenges in addressing torture and inhuman and degrading treatment and punishment as cases are not adequately investigated and seldom, if ever, prosecuted.
Freedom of expression has come under increasing threat in southern Africa in 2016. The space in which journalists are able to operate appears to be shrinking, protesters face growing repression and violence, and the rights of internet and mobile phones users are becoming more regularly targeted. During the year social media websites and mobile apps were unavailable in Uganda, the Gambia, and Zimbabwe, and there are reports that Lesotho may seek to permanently ban access. It was an election year in Zambia, and the Post newspaper and a number of radio stations were forcibly shut down at certain times during the year, and various journalists were arrested and assaulted in incidents directly related to their media work. In Botswana, a freelance journalist was detained in March this year after publishing a story on government corruption. In addition, there are concerns that many of the media outlets are losing their independence, and their ownership by politically-connected individuals is harming the integrity of their content. A series of protests and the growth of new citizen movements in Zimbabwe has highlighted the repressive environment in that country. Protest leaders have been abducted and arrested, and the media harassed when covering the protests. In Lesotho, the editor of the Lesotho Times was shot in an apparent assassination attempt, the newspaper’s publisher was charged with criminal defamation and a journalist was interrogated by police and forced to reveal her sources. Two laudable developments was the Zimbabwe Constitutional Court’s confirmation that the offence of criminal defamation was no longer valid, and the Swaziland High Court’s judgment declaring sections in the terrorism and sedition laws unconstitutional. These cases highlight the importance of ensuring an independent judiciary that will not shy away from making judgments that will be unpopular with the State.
An independent judiciary is important to protect rule of law, as was so clearly illustrated by the South African Supreme Court of Appeal in the President Omar al Bashir case. It is also important to challenge pervasive forms of discrimination. In this respect it is encouraging to see court cases throughout the region challenging discrimination against women including cases challenging property grabbing in Malawi and marital power in Swaziland.
The protection of lesbian, gay, bisexual, transgender and inter-sex person’s rights (LGBTI rights) also recorded laudable progress. Thus, in the Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) case the Court of Appeal in Botswana emphasised that human rights applies to all human beings, simply by being human and that “members of the gay, lesbian and transgender community, although no doubt a small minority, … form part of the rich diversity of any nation and are fully entitled in Botswana, as in any other progressive State, to the constitutional protection of their dignity”. The decision was handed down after an application was brought against the government of Botswana’s decision rejecting an application to register LEGABIBO as an organisation which advocates for the rights of LGBTI people in Botswana. The Botswana Court of Appeal observed that the right to freedom of association is a fundamental human right and that “fundamental freedoms are enjoyed by every class of society, the rich, the poor, the disadvantaged, and even criminals and social outcasts…and to deny any person their humanity is to deny such a person their human dignity”. Regrettably, however, several African countries continue to criminalise intimacy between adult men and woman who love, care and are attracted to persons of the same sex. While these criminal provisions do not extend to criminalising LGBT persons themselves or “homosexuality”, for that matter, they nevertheless perpetuate and promote stereotypes and increase vulnerability of the LGBTI community.
As we commemorate International Human Rights Day, we celebrate the progress highlighted as evidences of tangible victories for the advancement and recognition of human rights. However, we call upon States to continue taking all necessary action to improve the human rights situation in their domestic jurisdictions. It is our hope that 2017 will be earmarked many positive developments in line with the promises under the Universal Declaration of Human Rights and other prominent human rights instruments.