17 May 2013, Mail&Guardian

Radovan Krejcir’s controversial case has called into question the blanket ban on revealing asylum seekers’ details.

The Constitutional Court must grapple with how to balance several fundamental rights, following the application by three media houses to have it review whether there should be blanket confidentiality for asylum seekers who want refugee status in South Africa.

The matter was heard by 10 judges of the court in Braamfontein, Johannesburg, on Tuesday after the Mail & Guardian, Independent Newspapers and Media 24 sought leave to appeal a North Gauteng High Court judgment that held that section 25(1) of the Refugees Act, which allows that the “confidentiality of asylum applications and the information contained therein must be ensured at all times”, did not allow the media to have access to Czech national Radovan Krejcir’s refugee appeal hearing.

The counsel for the media, advocate Geoff Budlender, noted that there was a tension between the rights to access information and freedom of expression and that of confidentiality, which was protected by section 25(1) of the Act. He noted, too, that the “commitment in the Constitution to openness and transparency” and, subsequently, accountability in the functioning of the state and the decisions it made required that exceptional hearings such as Krejcir’s be open to public scrutiny.

He advanced the position that introducing a discretionary element for exceptional cases to the current blanket ban on public airing of these hearings would remedy the apparent unconstitutionality of section 25(1).

Krejcir, who arrived in South Africa in 2007 on a passport bearing the name Egbert Jules Savy, is a controversial character. He was picked up on an Interpol red notice by South African authorities because he was wanted for tax fraud and other offences in his native Czech Republic. He has since been convicted in absentia on some of these charges.

His associates, including bouncer boss Cyril Beeka and strip-club owner Lolly Jackson, also have the nasty, Sopranoesque habit of turning up dead.

Krejcir’s application for refugee status, based on allegations that the Czech authorities were persecuting him for political reasons, was rejected by his home affairs case officer.

Krejcir, however, appealed in terms of the Refugees Act.

Proper process
It is the refugee appeal board hearings that the media argue are of public interest, as is whether refugee status is granted to Krejcir, and the process that led to the decision.

Public scrutiny of the process was significant, Budlender maintained, to ensure “proper process” was followed and that, if Krejcir did receive refugee status, it was not because of “favours” or “influential connections”.

Representing Krejcir, advocate Gilbert Marcus advanced the position that his client’s rights to “dignity” and “freedom of the person” had to be considered equally when the Constitutional Court was balancing the rights in tension, and that it was “impermissible” to focus on freedom of expression over other equal rights.

Marcus also emphasised that the public airing of refugees’ information could lead to the “risk of retaliation” against asylum seekers’ families in the country of origin.

When asked by Deputy Chief Justice Dikganag Moseneke whether the “absolutism” of the Refu­gees Act’s confidentiality provision was justified, Marcus responded that the “efficacy of the asylum system” required that applicants were protected by confidentiality.

“It is essential that [asylum seekers] know in advance that confidentiality is protected at all times,” said Marcus, who maintained that this would ensure full disclosure of personal information by asylum seekers.

Some of South Africa’s decisions to grant refugee status to individuals have caused controversy. The Southern African Litigation Centre has challenged government’s decision to grant refugee status to a former Rwandan general and suspected war criminal, Faustin Kayumba Nyamwasa.

Increasing pressure
Nyamwasa, who is the subject of an arrest warrant and extradition request from Spain, is alleged to have ordered war crimes – committed on displaced Hutus on the border between Rwanda and the Democratic Republic Congo while he serving in the Rwandan army between 1994 and 1998.

The matter was set down for final argument in the South Gauteng High Court on May 17.

Applications for refugee status are becoming increasingly controversial around the world, especially as there is increasing pressure from civil society groups for adjudication processes and government attitudes to move away from criminal-based to human rights approaches.

But there are nettles. The British authorities were criticised when, in 2011, the immigration and asylum tribunal in Wales granted refugee status to Phillip Machemedze, a Zimbabwean national who had worked at the notorious Central Intelligence Organisation (CIO).

Machemedze admitted to smashing the jaw of a Movement for Democratic Change supporter and using pliers to pull out his teeth. He also admitted to kidnapping and torturing several MDC activists, including a farmer thought to be funding the party, electrocuting and beating him until he lost consciousness.

Machemedze was granted asylum by the tribunal after it ruled that Machemedze, who had since left the CIO and fled Zimbabwe with his wife, who claimed to be an MDC activist, would be in mortal danger if he was returned to Zimbabwe.

http://mg.co.za/article/2013-05-17-00-krejcir-appeal-tests-rights-of-refugees

This is in sharp contrast to South Africa’s 2008 Constitutional Court ruling that recognised the right of a 66-year-old woman to become chief of her Limpopo tribe. The court upheld the appeal by Tinyiko Nwamitwa-Shilubana, whose chieftainship of the Valoyi tribe, near Tzaneen, was taken away in 1968 because of her gender.

The Lesotho Constitutional Court ruling is seen as a serious blow against women’s rights and gender equality.

“This is a dark day for women in Lesotho. The Constitutional Court has basically re-affirmed the view that women are second-class citizens in Lesotho,” centre deputy director Priti Patel said.

She said the decision went against the trend of African courts upholding the rights of women.

The centre was admitted as a friend of the court in the Lesotho case in which Senate Gabasheane Masupha, the firstborn child of a chief, argued that denying her the right to hold the chieftainship because of her sex violated her constitutional rights to equality and freedom from discrimination. Upon her father’s death, Ms Masupha’s mother was appointed caretaker of the chieftainship.

Following her mother’s death, the chieftainship was contested by Ms Masupha’s uncle and half-brother. Ms Masupha intervened, seeking to takeover the chieftainship as she was the firstborn child. However, she was denied the right because she was a woman.

Although the court held that the customary law was protected by the constitution of Lesotho, it reasoned that a mere differentiation did not mean that there was discrimination and did not raise a constitutional issue.

It said there were cases which stated that treating men and women differently did not result in illegal discrimination.

The centre had argued that section 10 of the Chieftainship Act discriminated against firstborn daughters and favoured firstborn sons. The centre had argued that this discrimination was based on sex because it favoured succession according to the male line.

“Although firstborn daughters are also related to chiefs by blood, there is an absolute bar against them succeeding to chieftainship. They are not even permitted to succeed on the limited basis provided for in section 10(4) of the act,” the centre had said in heads of argument filed last year.

In Botswana, the high court recently struck down a customary law which denied women the right to inherit.

http://www.bdlive.co.za/africa/africannews/2013/05/17/lesotho-denies-women-right-to-be-chiefs

Civil society groups from more than 30 African countries called on African Union (AU) member countries to ensure that the AU promotes justice for grave international crimes, in a letter to the foreign ministers of African Union member states which was made public by the groups today.

The letter was sent in advance of the 21st summit meeting of the African Union, at which it will celebrate 50 years since the establishment of its predecessor, the Organization for African Unity. The summit is scheduled for May 19 to 27, 2013, at the seat of the AU in Addis Ababa, Ethiopia.

The groups noted that recent strain in the African Union’s relationship with the International Criminal Court (ICC) has created significant risks to ensuring victims of the gravest crimes and their families have access to redress. As a result, they said, “[m]uch more remains to be done to advance accountability. Cooperation between international, regional, and national levels is crucial to promote justice and peace.”

The letter was endorsed by 60 African civil society organizations and international organizations with a presence in Africa. The groups recognized a number of achievements by African Union members to promote justice on the continent, including supporting accountability for crimes committed in Sierra Leone, Rwanda, Democratic Republic of Congo, Central African Republic, Chad, Côte d’Ivoire, Mali, and Uganda.

The groups urged African Union members to press the AU to:

• Take account of Africa’s support for the ICC and its role activating ICC involvement in AU countries. Thirty-four out of 54 African countries are ICC members and African countries brought most of the situations the ICC is considering before the court.
• Take steps to strengthen domestic criminal justice systems to deal with international crimes. This is the best way to ensure victims have access to redress over the long term, while addressing AU concerns about holding perpetrators to account outside the continent.
• Ensure that any expansion of the jurisdiction of the African Court advances justice by carefully considering the resource implications for an expanded mandate. This would include supporting the wide range of needs associated with a criminal jurisdiction, such as witness protection and fair trials for the accused;
• Improve communications between the AU and the ICC. Both institutions have nuanced mandates, and more frequent information exchange could help advance dialogue and clarify misconceptions.

May 14, 2013

Foreign Ministers

African Union Member States

Re: 50^th Anniversary and Advancing Justice for Grave Crimes

To Foreign Ministers of African Union member states:

We, the undersigned African civil society organisations and international organisations with a presence in Africa, working on human rights and international criminal justice, are pleased to congratulate the Organisation of African Unity (OAU), now the African Union (AU), on the occasion of its 50^th Anniversary.

We commend the Organisation for its key achievements during the past 50 years and to express our continued commitment in working with the AU towards promoting and protecting human rights, peace, and justice on the Continent. In this regard, we wish to take this occasion to applaud the AU and the African continent for:

• The establishment of the African Commission on Human and Peoples’ Rights in 1987, and the African Court on Human and Peoples’ Rights in 1998, to promote human and peoples’ rights and ensure their protection in Africa.
• Support for the International Criminal Court (ICC). Currently, 34 African countries are states parties to the Rome Statute of the ICC and Africa remains one of the largest represented continents in the Court’s membership. In addition, five African states have asked the ICC to investigate crimes committed on their territories, and at least nine African states have adopted implementing legislation of the ICC’s Rome Statute.
• Substantial contributions to safeguarding accountability through the work of the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the case of Chad’s former President Hissène Habré, and efforts to prosecute grave crimes domestically in some African countries, such as in Côte d’Ivoire and Guinea.

 

These examples bear testament to the contribution and commitment of Africa to advance justice. Yet, recent strain in Africa’s relationship with the ICC creates significant risks to ensuring victims of the gravest crimes and their families have access to redress and much more remains to be done to advance accountability.

Building on the gains made in the last 50 years, we believe that there exist important opportunities to advance justice for serious crimes committed in violation of international law as an essential component of the AU’s contribution to peace and security on the continent. Consistent with this approach, we believe cooperation between international, regional and national levels is crucial to promote justice and peace, and regional initiatives will not work if not poised within the international criminal justice framework.

In this effort, we wish to offer several recommendations that we urge your government to take up at the AU summit in May, as well as subsequent summits, through decisions, press statements, and other actions. These are:

• Take account of Africa’s role in calling for ICC involvement in its countries

While concerns that the ICC is targeting Africa seem to abound in some public and diplomatic discourse in recent years, this conclusion overlooks important facts that we urge your government to work to incorporate into AU documents and policy.

Specifically, while the ICC’s current investigations are entirely in Africa, the ICC prosecutor has only acted on its own authority to open an investigation in Africa without a request by the relevant state in one situation, Kenya. All other African situations under ICC investigation came about as a result of voluntary referrals or requests by the state affected or referral by the United Nations (UN) Security Council. Uganda, the Democratic Republic of Congo, Central African Republic, Mali, and Côte d’Ivoire asked the ICC to investigate and the Security Council referred the situations in Darfur and Libya.

There are of course situations outside of Africa that cry out for ICC involvement, such as Syria, which have not been brought before the court. However, this is a product of legal limitations on the ICC’s jurisdiction that are beyond its control. The ICC cannot assert jurisdiction over states that are not parties to the ICC Statute unless the UN Security Council refers the situation or the relevant state asks the court to become involved. Meanwhile, the ability of permanent Security Council members to use veto powers on the basis of political considerations has crippled opportunities to advance justice in certain situations.

It appears that much of the frustration that has emanated from the AU on the ICC relates more to the Security Council, and not to the court itself.  In light of this, we encourage your government under the umbrella of the AU to convey concerns over Security Council actions directly to the council, including the need for more consistent action to promote justice and specifically calling for referral of Syria to the ICC. This would help ensure that the AU’s views are more accurately conveyed and hopefully promote a more principled approach by the council. Many of our organizations are also currently working to promote more consistent action on justice by the Security Council.

• Take account of strong support for the ICC in Africa

As noted above, 34 African states out of 54 are party to the Statute, Africa’s engagement played a pivotal role in the establishment of the ICC, and a number of African states have asked for the ICC to open investigations into crimes committed on their territories. A growing list of countries—including Botswana, Burkina Faso, Malawi, South Africa, Niger, Uganda, and Zambia—also have expressly stated that they will arrest individuals subject to ICC arrest warrants if they enter their territories.

African support for the ICC is, however, often overlooked in AU decisions and communications, and we believe it will be important for your government to urge the AU to reflect African support for the court in future AU decisions and public statements. This includes reversing decisions that call for non-cooperation with the court in the arrest of President Omar al-Bashir of Sudan. These calls run counter to African ICC states parties’ obligations to cooperate with the court, the Constitutive Act of the AU on ending impunity, and puts African ICC states parties in an awkward position in upholding their international treaty obligations to cooperate with the ICC.

•  Strengthen domestic criminal justice systems to deal with international crime

We urge your government to press for the AU to strengthen technical and legislative capacity at the national level to dispense justice in line with the spirit of complementarity, the principle by which the ICC is only involved when a state is unable or unwilling to prosecute grave crimes. This will not only address AU concerns about justice efforts rendered outside the continent, but enable Africa to best ensure victims have access to redress. In addition, strengthening national systems will advance public confidence and promote respect for rule of law in the affected countries and sub-regions.  This can be achieved through partnerships with stakeholders including civil society.

• The expansion of the jurisdiction of the African Court

As you know, the AU has embarked on an initiative to expand the African Court of Human and Peoples’ Rights to include criminal jurisdiction over international crimes. We believe increased opportunities for justice are positive in principle. However, it will be crucial to ensure that an expanded court is able to advance justice and human rights for all crimes under its jurisdiction. As such, careful consideration should be given to ensuring adequate resources for an expanded mandate, including to support the wide range of needs associated with a criminal jurisdiction—such as witness protection and fair trials for accused, and that the expanded mandate would not constrain the ability of the ICC, as supported by the majority of African states, to conduct its work. More information on this issue is available in a 2012 letter, available at: http://www.coalitionfortheicc.org/documents/Letter_on_African_Court_May_2012_FINAL.pdf.

• Improve communications between the AU and the ICC

We call upon your government to press for continued dialogue between the AU and the ICC; both institutions have nuanced mandates and more frequent information exchange could help to advance dialogue and clarify misconceptions, where these may exist, as well as advance cooperation.

Recent seminars at the African Union where the ICC has opportunities to discuss its work are positive and should be continued. Another key step would be establishment of an AU-ICC Liaison Office, similar to the ICC liaison office that exists at the UN. Notably, African states parties wrote a letter to the AU in 2010 calling for the establishment of the office, and we encourage your government to revisit the establishment of the office with the AU.

We trust this information will be of use as we move forward towards the next 50 years. Please do not hesitate to contact us should you require further information or clarifications relating to the contents of this document.

Sincerely,

African Assembly for the Defense of Human Rights, Guinea

African Assembly for the Defense of Human Rights, Senegal

African Centre for Justice and Peace Studies, Uganda

African Union Club of Ivory Coast, Côte d’Ivoire

Amnesty International Togo, Togo

Amuria District Development Agency, Uganda

Ark of the Covenant, Republic of Congo

Arry Organization for Human Rights, Egypt

Benin Coalition for the International Criminal Court, Benin

Burkinabè Movement for Human and Peoples’ Rights, Burkina Faso

Cairo Institute for Human Rights Studies, Egypt

Centre for Accountability and Rule of Law, Sierra Leone

Centre for Democracy and Development, Nigeria

Chadian Coalition for the International Criminal Court, Chad

Children Education Society, Tanzania

Christian Activists Actions for Human Rights in Shabunda, DRC

Church and Society Programme of the Church of Central Africa Presbyterian Synod of Livingstonia, Malawi

Civil Liberties Committee, Malawi

Coalition for the International Criminal Court, Cameroon

Coalition for the International Criminal Court, DRC

Community Empowerment for Progress Organization, South Sudan

Congolese Coalition for Transitional Justice, DRC

Counselling Services Unit, Zimbabwe

DITSHWANELO – The Botswana Centre for Human Rights, Botswana

East and Horn of Africa Human Rights Defenders Project, Uganda

Equitas Network, Côte d’Ivoire

Forum for Awareness and Development, Burundi

Forum for Strengthening Civil Society, Burundi

Foundation for Human Rights and Democracy, Liberia

Guinean Center for the Protection and Promotion of Human Rights, Guinea

Horn of Africa Human Rights Committee, Somaliland

Human Rights Concern, Eritrea

Human Rights Network, Uganda

Human Rights Watch with offices in DRC, Kenya, Rwanda, and South Africa

International Crime in Africa Programme, Institute for Security Studies, South Africa

International Commission of Jurists-Kenyan Section, Kenya

International Commission of Jurists-Regional Office, South Africa

International Society for Civil Liberties & the Rule of Law, Nigeria

Ivorian Coalition on the International Criminal Court, Côte d’Ivoire

Kenya Human Rights Commission, Kenya

KISIMA Peace & Development, Somaliland

League for Peace, Human Rights and Justice, DRC

Legal Resources Centre, South Africa

NamRights, Namibia

Regional Associates for Community Initiatives, Uganda

Rwandan League for the Promotion and Defence of Human Rights, Rwanda

Saxafi Media Network, Somaliland

Sierra Leone Coalition for the International Criminal Court, Sierra Leone

Social Justice and Advocacy Initiative, Nigeria

South Sudan Human Rights Defenders Network, South Sudan

Southern Africa Litigation Centre, South Africa

Southern African Centre for the Constructive Resolution of Disputes, Zambia

SPEAK Human Rights Initiative, Mauritius

Synergy of Congolese NGOs for Victims, DRC

Transformation Resource Centre, Lesotho

Uganda Coalition on the International Criminal Court, Uganda

Vision Sociale, DRC

Women’s Centre for Democracy and Human Rights, Côte d’Ivoire

Women Lawyer’s Association, Burundi

“This is a dark day for women in Lesotho. The Constitutional Court has basically re-affirmed the view that women are second-class citizens in Lesotho,” said Priti Patel, Deputy Director of the Southern Africa Litigation Centre (SALC), which intervened as a friend of the court (amicus curiae) in the matter. “In recent years, Lesotho had made significant strides towards eradicating gender discrimination, by ending male marital power among other things. Today’s decision is a significant step backwards for Lesotho in achieving gender equality.”

The case, Masupha v The Senior Resident Magistrate for the Subordinate Court of Berea and Others, was brought by Senate Masupha, the first-born child of a chief. Upon her father’s death, her mother was appointed as caretaker of the chieftainship. Following her mother’s death, the chieftainship was contested between Masupha’s uncle and half-brother. Masupha intervened seeking to succeed to the chieftainship as she was the first-born child. However, she was denied the right to succeed solely on the basis of her gender.

The decision goes against the trend on the continent of courts upholding the rights of women. The Constitutional Court in South Africa has struck down laws which deny women the right to inherit or succeed to chieftainship. In Botswana, the High Court recently struck down a customary law which denied women the right to inherit. Courts in Ghana, Kenya, Nigeria, and Tanzania have also all struck down laws which deny women the right to inherit due solely to their gender.

The parties can appeal the judgment to the Court of Appeal.

For more information: Priti Patel, Deputy Director, SALC

+27 (0)11 587 5065 (o)

+27 (0)76 808 0505 (m)

pritip@salc.org.za

For the judgment click here.

For background on the case click here.

“South African and international law prohibit granting refugee status to suspected international criminals,” said Nicole Fritz, Executive Director of SALC. “This case raises important questions of law that speak to South Africa’s international obligations, and we hope there will be no further delays in the finalisation of this matter.”

What: Judge Mngqibisa-Thusi will hear argument in the case of Consortium for Refugees and Migrants in South Africa v the President of the Republic of South Africa and Others

Where: South Gauteng High Court, Johannesburg

When: 10:00, Friday 17 May

Who: CoRMSA and SALC are represented by Advocates Anton Katz SC and Max du Plessis, and the Wits Law Clinic

For more information and interviews contact:
Kaajal Ramjathan-Keogh, CoRMSA representative; +27 11 339 1960; +27 84 514 8039.
Nicole Fritz, executive director, SALC; +27 11 587 5065; +27 82 600 1028
Alan Wallis, international justice project lawyer, SALC: +27 11 587 5065; + 27 82 826 5700

For updates from the court room follow SALC on twitter - @follow_salc (#Nyamwasa)

Further information can be found on the SALC website:  http://www.southernafricalitigationcentre.org/cases/ongoing-cases/south-africarwanda-consortium-for-refugees-and-migrants-rights-in-south-africa-v-president-of-the-republic-of-south-africa-and-others-2/

Background

This case concerns the judicial review of the decision to grant former Rwandan general and suspected war criminal, Faustin Kayumba Nyamwasa, refugee status. Nyamwasa is implicated in the commission of war crimes committed on the border between Rwanda and the Democratic Republic Congo whilst he served in the Rwandan army between 1994 and 1998. Nyamwasa is the subject of an arrest warrant and extradition request from Spain, for international crimes. Upon learning of Nyamwasa’s presence in South Africa CoRMSA submitted a legal briefing paper detailing the legal implications of granting Nyamwasa refugee status. Under refugee law a country is prohibited from granting persons accused of war crimes refugee status. CoRMSA requested the South African government to revisit and withdraw their decision to grant Nyamwasa refugee status. This was not done and CoRMSA instituted review proceedings in the High Court. This case was partially heard in October 2012, but was postponed. Argument will be concluded on 17 May 2013.

“Denying all women the possibility of succeeding to chieftainship not only violates the right to equality under the Lesotho constitution but also reaffirms the notion that women are subordinate members of Lesotho society,” said Priti Patel, Deputy Director of the Southern Africa Litigation Centre (SALC), who intervened as friends of the court (amicus curiae) in the matter. “We will see tomorrow whether the court will affirm the rights of women in Lesotho or further entrench women’s secondary status.”

In its submissions, SALC argued that the law is unconstitutional under the Lesotho Constitution as well as under Lesotho’s international and regional obligations. The submissions also document how laws that discriminate against women significantly harm the government’s ability to effectively respond to Lesotho’s HIV epidemic.

This case is part of a broader trend in the region to change or repeal laws which explicitly promote gender discrimination.

The Constitutional Court in South Africa has struck down laws which deny women the right to inherit or succeed to chieftainship. In Botswana, the High Court recently struck down a customary law which denied women the right to inherit. Courts in Ghana, Kenya, Nigeria, and Tanzania have also all struck down laws which deny women the right to inherit due solely to their gender.

For more information:

Priti Patel, Deputy Director, SALC: +27 (0)11 587 5067 (o); +27 (0)76 808 0505 (m); pritip@salc.org.za

For background on the case click here.

Although Kasonkomona’s case was scheduled for trial today, his lawyer Sunday Nkonde SC from the firm SBN Legal Practitioners indicated that the defence had filed a constitutional application which should be heard prior to the trial. The prosecution argued that they would need to peruse the application and the case was accordingly postponed until the afternoon on 4 June 2013.

Whilst the arrest and prosecution of Kasonkomona relates directly to his right to freedom of expression, the case will also serve to highlight the challenges accused face within the criminal justice system in Zambia. The practice in subordinate courts is for the prosecution not to provide an accused with detailed information about their case against him or her. This is also an issue in this case.

Thus, the constitutional application by the defence is on two grounds:

1. That section 178(g) of the Penal Code, which deals with soliciting in a public place for immoral purposes, is unconstitutionally vague and overbroad and contravenes article 20 of the Constitution which protects the right to freedom of expression; and

2. That the failure by the prosecution to avail the defence with statements of the witnesses the prosecution intends to call and other evidence, violates an accused’s right to a fair trial under article 18(1) of the Constitution.

On 4 June 2013, the prosecution will argue its response to the defence’s constitutional application. The magistrate will then make a decision on whether to refer the case to the High Court for a determination of the constitutional issues before the trial commences.

SALC is working with SBN Legal Practitioners on this matter and will provide regular updates on the case on this site. A summary of the case is available here.

14 May 2013, Mail&Guardian

The Constitutional Court has reserved judgment on whether the media has the right to access the Refugee Appeal Board hearing of Radovan Krejcir.

The Mail & Guardian along with other media houses had sought leave to appeal a previous North Gauteng High Court judgment that held that a section of the Refugees Act that permits for the “confidentiality of asylum applications and the information contained therein must be ensured at all times”, did not allow the media access to Krejcir’s refugee appeal hearing.  

Acting for the media, advocate Geoff Budlender on Tuesday argued that section 25(1) of the Refugees Act, which ensures such confidentiality, was “in tension” with the right to freedom of expression guaranteed by the Constitution.

Budlender argued that the Constitution and constitutional jurisprudence had established that “there is no hierarchy of rights” and that “when rights are in tension with each other [as in this case], they must be balanced by each other … One [right] can’t obliterate the other.” He said this was especially so because of the “commitment in the Constitution” to accountability, openness and transparency – whether for civil and criminal proceedings, or in public administration.

The M&G, Independent Newspapers and Media 24 maintain that it is in the public interest that Krejcir’s appeal to the board for refugee status, and how and why it is granted, if it is, is reported upon. 

Krejcir arrived in South Africa in 2007 on a passport bearing the name Egbert Jules Savy, but was picked up on an Interpol red notice because he was wanted for tax fraud and other offences in his native Czech Republic.

Krejcir’s application for refugee status, based on allegations that the Czech authorities were persecuting him for political reasons, was rejected by his home affairs case officer. Krejcir however appealed in terms of the Refugees Act.

Krejcir embroiled in fraud
AmaBhungane, the M&G‘s investigative unit, has detailed Krejcir’s relationship with a series of local netherworld figures, including the late strip-club boss Lolly Jackson, and his becoming embroiled in fraud and other charges. Jackson is one of five associates of Krejcir who have turned up dead, along with the likes of Cyril Beeka.

Highlighting the “ugly history of secrecy in apartheid South Africa” which led to abuse of power and corruption, Budlender maintained the importance of transparency and openness in democracies. ”Openness”, he said in his attack on the “total blanket protection” of confidentiality that the Refugees Act ensures, is “basic to our constitutional order, not an optional extra … There can be no accountability without openness”.

Deputy Chief Justice Dikgang Moseneke – noting that society ensured confidentiality “protection for a particular class of vulnerable people”, including female survivors of sexual offences, children and the HIV status of individuals – wondered whether there was a need to “calibrate the exception” to section 25(1) of the Refugees Act. Budlender agreed, saying that the act “doesn’t allow calibration at all”.

Responding to Budlender’s remarks that Krejcir “doesn’t have a good public reputation”, Moseneke pressed the advocate on whether this was not an “irrelevant consideration” in a “constitutionality attack”.

Budlender responded saying it was relevant in so far as that the public had a right to know – considering the various allegations swirling around the Czech national – whether proper process had been followed and that if Krejcir was granted refugee status, whether it was not because of improper conduct, that “favours” were given; or because of an “influential connection”.

Advocate Susannah Cowen, acting for amicus curie, the South African Litigation Centre, had then argued that “truth finding” was prevented by the confidentiality provisions in the Refugees Act.

Cowen argued that the “open justice principle” required the discretionary opening and closing of cases to the public for both judicial and quasi-judicial hearings. She also raised concerns about Krejcir’s lawyers “wholly blinkered” approach to section 25(1) and the assertion that its reach was “very extensive”.

Constitutional law heavyweight Gilbert Marcus, acting for Krejcir, had argued that the rights to “dignity” and “freedom of the person” had to be equally considered when the Constitutional Court was balancing the rights in tension – and that it was “impermissible” to focus on freedom of expression over other equal rights. 

Applicants protected by confidentiality
Marcus has also sought to emphasise that the public airing of refugees’ information could lead to the “risk of retaliation” against asylum seekers’ families in the country of origin.

When quizzed by Moseneke on whether the “absolutism” of Refugees Act confidentiality provision was justified, Marcus responded that the “efficacy of the asylum system” required that applicants were protected by confidentiality.

“It is essential that [asylum seekers] know in advance that confidentiality is protected at all times,” said Marcus, who maintained that this would ensure full disclosure of personal information by asylum seekers. 

Responding to questions by Moseneke and Chief Justice Mogoeng Mogoeng about reading in a discretion to the confidentiality regime, Marcus argued that the “very purpose” of the confidentiality regime “will be negated by discretion”.

“If discretion existed, it would be a disincentive to disclose fully,” said Marcus.

The Refugees Appeal Board had, in the lower courts, argued that the Refugees Act did not allow it discretionary powers to decide whether cases it hears should be opened or not.

The Constitutional Court will now have to decide on whether the Refugees Act does actually allow for discretion on the part of the board, or not. It must also decide whether section 25(1) is constitutional and if not, whether it is required to send it back to Parliament to address.

The court will also mull over whether it can fill (if it considers there is one) any hole in the act around confidentiality and exceptions to the provision of the Refugees Act in the interim. – Additional reporting by amaBhungane.

http://mg.co.za/article/2013-05-14-concourt-reserves-judgement-on-medias-access-to-krejcir-hearing

14 May 2013 - South Africa: Mail and Guardian Media Limited and others v Chipu NO and others.

This case began when the Mail and Guardian and other media houses applied for access to Czech fugitive, Radovan Krejcir’s hearing before the Refugee Appeal Board. The media houses were refused access on the basis that the asylum application process is confidential, and they then instituted legal proceedings in the North Gauteng High Court. Judge Fabricius found that under South Africa’s Refugees Act confidentiality “pervades the entire proceedings, from lodgement of the application until after the conclusion of an appeal or review,” and that the asylum seeker’s interest in having the proceedings confidential outweighed the public’s interest in having access to hearings. The media houses appealed this ruling to the Constitutional Court.

SALC has been admitted as amicus curiae (friend of the court) and has provided submissions that argue that while confidentiality is a vital tool in ensuring the safety of asylum seekers, refugees and their families, a flexible system is required to allow for that confidentiality to be lifted in some exceptional circumstances.

SALC will be providing updates on the trial via twitter using the hashtag #Krejcir. Follow us here, @follow_SALC.

For more information on this case see our case page.

15 and 16 May 2013 - Zambia: People v Paul Kasonkomona

On 7 April 2013 Paul Kasonkomona, a respected HIV activist, was arrested outside Muvi TV station after he appeared on a television programme where he spoke about the rights of LGBT persons. Mr Kasonkomona was eventually released on bail on 11 April 2013. His trial is scheduled for 15 and 16 May 2013 in the Lusaka Magistrates Court. Mr Kasonkomona was charged with an offence in terms of section 178(g) of the Zambian Penal Code which provides that “every person who in any public place solicits for immoral purposes” is deemed an idle and disorderly person, and liable to imprisonment for one month or to a fine.

SALC is providing legal support in the case.

SALC will be providing updates on the trial via twitter using the hashtag #Kasonkomona. Follow us here, @follow_SALC.

For more information on this case see our case page.

16 May 2013 - Lesotho: Masupha v Senior Resident Magistrate for the Subordinate Court of Berea and others

This case before the Lesotho High Court, sitting as the Constitutional Court, involves the constitutionally-guaranteed rights to equality and to be free from discrimination. It was brought by Senate Masupha, the first born child of a chief, who argued that her rights are violated as she is prevented from succeeding to chieftainship solely because of her gender.

SALC intervened as amicus curiae (friend of the court) in this matter, and argued that this customary law not only violated the right to equality but also conflicts with Lesotho’s regional and international obligations.

Judgment is expected to be handed down on 16 May 2013.

SALC will be providing updates on the trial via twitter using the hashtag #Masupha. Follow us here, @follow_SALC.

For more information on this case see our case page.

17 May 2013 - South Africa: Consortium for Refugees and Migrants in South Africa v President of the Republic of South Africa

In June 2011 former Rwandan army general and suspected war criminal, Faustin Kayumba Nyamwasa, survived an apparent assassination attempt and was soon thereafter granted refugee status in South Africa. The Consortium for Refugees and Migrants in South Africa (CoRMSA) supported by SALC submitted a briefing paper to the South African refugee authorities explaining why the grant of asylum was problematic. After receiving no meaningful response CoRMSA and SALC launched judicial review proceedings in the North Gauteng High Court seeking a declaration that the decision to grant Nyamwasa refugee status was unlawful.

The matter was postponed last November, and will be heard on Friday 17 May 2013 at the South Gauteng High Court.

SALC will be providing updates on the trial via twitter using the hashtag #Nyamwasa. Follow us here, @follow_SALC.

For more information on this case see our case page.

*This blog was updated on 15 May 2013 to include the information on Masupha v Senior Resident Magistrate for the Subordinate Court of Berea and others