The 50th Anniversary African Union (AU) Heads of State Summit is underway in Ethiopia. Dubbed as a celebration of “African narratives of past, present and future that will enthuse and energize the African population and use their constructive energy to accelerate a forward looking agenda of Pan-Africanism and renaissance in the 21st century” this Summit is an important milestone for the continental body.

Following reports that civil society participation at this year’s Summit would be limited, 22 African civil society groups have requested clarification and stressed the importance of cooperation between civil society actors at the local, national and regional levels with governments and intergovernmental organisations in order to properly address the challenges facing Africa. Whilst the AU reluctantly permits civil society to be present during Summits, access is difficult, limited and dependent on formal accreditation. Any move to minimise the already small space in which civil society has to engage with delegations and AU processes, is worrying, and contrary to the founding principle of AU, “to build a partnership between governments and all segments of civil society”. If anything, more effort should be directed at strengthening the partnership between the AU and civil society.

Whilst many thought the changing of the guard at the AU, following the election of South Africa’s Dlamini-Zuma to AU Chairperson, would bring about some changes within the institution, it must be remembered that decision making in the AU ultimately rests with the heads of state. The AU is one component of African governance, underscoring the need for in country civil society engagement. That said, it is not unreasonable to expect objectivity and fairness in Dlamini-Zuma’s guidance and leadership of Africa’s governing body on issues that ultimately must be benefit the continent and its citizens.

To this end, decisions which have the potential to exclude civil society will only serve to cast a shadow over what should be an inclusive, cooperative event that should see the AU, Africa and civil society tackling the future, celebrating successes and facing challenges together. Civil society has therefore called on the AU to “foster and encourage a sustainable and constructive partnership between the AU and civil society” going forward – Not just at this Summit but at all those to come.

The letter appears below:

24 May 2013

HE Dr. Nkosazana Dlamini-Zuma

Chairperson

African Union Commission

Addis Ababa, Ethiopia

Dear AUC Chairperson HE Dr. Nkosazana Dlamini-Zuma:

RE: AU Anniversary Summit Should seek to Foster the Relationship Between Civil Society and the AU

We, the undersigned civil society organisations working throughout Africa, wish to express our disappointment and concern at the reports of the decision of the African Union (AU) Heads of State, and your Office’s endorsement thereof, to limit civil society participation during the May 2013 AU Summit in Addis Ababa, Ethiopia.

The significance of this Summit in celebrating 50 years of the organisation and in establishing a blueprint for Africa’s future warrants a commitment to even greater collaboration between states and civil society.  This Summit must therefore address the need to foster and encourage a sustainable and constructive partnership between the AU and civil society

The AU should use this Summit as an opportunity to commit itself to creating more space in which civil society and the AU can exchange ideas and interact in a meaningful way. Limiting civil society participation is contrary to the founding principles of the AU which commit it to the principle of public and civil society participation. The Constitutive Act unequivocally recognises that the AU must be guided by a “common vision of a united and strong Africa and by the need to build a partnership between governments and all segments of civil society”. This commitment to partnership between states and civil society has compelled in the past the regular inclusion and participation of civil society in the AU’s processes.

Civil society participation at this Summit should be no different from previous Summits.  To celebrate the AU’s past and look to its future, without meaningful civil society participation seems likely only to project an image of the organisation as defensive and distrustful – a far different projection from what the Heads of State and Commission must intend.

In order to properly address the challenges facing Africa there has to be cooperation between civil society actors at the local, national and regional levels with governments and intergovernmental organisations.

To restrict civil society’s participation at the 50th Anniversary Summit which, according to the AU, seeks to “celebrate African narratives of past, present and future that will enthuse and energize the African population and use their constructive energy to accelerate a forward looking agenda of Pan-Africanism and renaissance in the 21st century” limits the voice of the African people, and ignores the contribution civil society has made to democracy and the realization of human rights in Africa in the last 50 years.

We therefore request clarification as to the extent to which civil society’s participation in this year’s Summit and its role at future Summits will be encouraged and facilitated.  We urge you to address this issue going forward, allowing for full and unimpeded access by civil society organisations so that the AU and its institutions are made fully accessible.

We look forward to a fruitful and collaborative Summit.

1. ALLAMAGAN
2. Amnesty International
3. Cairo Institute for Human Rights Studies, Egypt
4. Centre for Accountability and Rule of Law (CARL)- Sierra Leone
5. Centre for Human Rights and Rehabilitation (CHRR), Malawi
6. Children Education Society(CHESO), Tanzania
7. Coalition for the ICC, Democratic Republic of Congo & Benin
8. Commonwealth Human Rights Initiative (CHRI)
9. Community Empowerment for Progress Organization-CEPO, South Sudan-Juba
10. Darfur Bar Association
11. East and Horn of Africa Human Rights Defenders Project
12. Human Rights Network- Uganda
13. Human Rights Watch
14. International Commission of Jurists – Kenya Section (ICJ-Kenya), Kenya
15. Kenyans for Peace with truth and Justice Coalition (KPTJ), Kenya
16. Protection International
17. South Sudan Human Rights Defenders Network (SSHRDN), South Sudan-Juba
18. Southern Africa Litigation Centre (SALC), South Africa
19. Southern African Centre for the Constructive Resolution of Disputes (SACCORD), Zambia
20. SPEAK Human Rights & Environmental Initiative,  Mauritius
21. The Kenya Human Rights Commission, Kenya
22. Uganda Coalition on the International Criminal Court (UCICC), Uganda

The trial of two Zambian men charged with sodomy was delayed Wednesday and the suspects were remanded in custody, after the constitutionality of the case was challenged by the defence.

Philip Mubiana, a 21-year-old barber, and James Mwape, a 20-year-old bricklayer, have pleaded not guilty to having “carnal knowledge against the order of nature” in case that has become the latest battleground for gay rights activists.

Before a packed courtroom in the small northern town of Kapiri Mposhi, the men’s lawyer William Ngwira successfully applied for an adjournment of the case.

“We wish to raise constitutional issues which we shall submit to your court for determination,” he said, without elaborating.

Magistrate John Mbuzi adjourned the case to June 5, but remanded the pair in custody, fearing they could interfere with a key witness who is believed to live at their residence.

Mbuzi also argued that once granted bail there was no guarantee that the couple would not have sex with each other, alleging this had already happened after inital police bail was granted.

“They were released on bond and they committed a similar offence, I see a danger, the application for bail is refused,” said Mbuzi.

As the magistrate spoke, local residents peeped through the widows to get a glimpse of the proceedings, which have attracted much attention in the highly conservative African nation.

Last month rights activist Paul Kasonkomona was arrested for appearing on television demanding the decriminalisation of homosexuality.

Conviction for sodomy carries a jail sentence of up to 14 years in Zambia, but prosecutions have been extremely rare.

“It is heart-breaking that the law continues to criminalise sexual acts which take place in private between consenting adults of the same sex,” said Anneke Meerkotter, an activist at the Southern Africa Litigation Centre.

“As a result of such laws police are able to arrest innocent young men, expose them to terrible conditions in detention, whilst depriving their families of their much needed support.”

http://www.timeslive.co.za/africa/2013/05/22/zambia-sodomy-trial-delayed

This governmental response illustrates a disturbing trend in South Africa where officials seem to distort the purpose of certain principles to apply them in such a way that permits them to avoid answering uncomfortable questions. This use of the honour of military deaths and national security is one case in point. The digging up of apartheid-era legislation, the National Key Points Act, to avoid questions on public spending on Zuma’s Nkandla residence is another.

Confidentiality is invoked in a variety of contexts, and when asserted in good faith serves an important purpose, protecting deserving interests and rights. Confidentiality must however operate within parameters that guard against its abuse.

Two cases before court involving the confidentiality provisions in the Refugees Act should warrant consideration. The first case, currently before the South Gauteng High Court, is a judicial review of the decision to grant suspected war criminal Rwandan General Faustin Kayumba Nyamwasa refugee status. The second, in the Constitutional Court, involves the application by various media houses for access to the Refugee Appeal Board hearing in which Czech fugitive Radovan Krejcir will appeal the rejection of his refugee status application. Judgment has been reserved in both matters.

Confidentiality is an essential aspect of all refugee application processes across the globe. Asylum seekers are a uniquely vulnerable group; a group defined by their fear of persecution and inability to avail themselves of their own countries’ protection. Asylum is therefore intrinsically political, because it is related to the willingness or ability of the home country to protect the asylum seeker from persecution. It is this that makes confidentiality so crucial because it assists in preventing information provided to the asylum officials reaching those responsible for causing individuals to flee and seek sanctuary elsewhere. Making public this information could put the asylum seeker and their associates in grave danger by alerting their persecutors to their whereabouts, or by making them more of a target. Fear that their information will not be confidential may also prevent asylum seekers from either applying for refugee status or from being candid in their interviews. It is clear then that for the refugee system to operate effectively and fairly confidentiality must be respected.

It is incontrovertible that some persecutors attempt to use the refugee system as a way to avoid accountability for their actions and to protect themselves from potential repercussions in their home countries. For this reason all refugee systems include an exclusion clause which prohibits countries from granting refugee status to those suspected of committing the international crimes of war crimes, crimes against humanity and genocide as well as other serious non-political crimes. The exclusion clauses are a vital element of the system because they ensure that the integrity of the system is maintained; that only those persecuted and not the persecutors are given the benefits of the system. At the same time the exclusion clauses allow states to uphold their obligations to ensure accountability for international crimes by creating the conditions necessary for prosecution of suspects.

However, in exceptional circumstances confidentiality can frustrate the goals of the exclusion clauses, and of accountable and transparent governance. Applying absolute confidentiality prevents any examination of information provided by an asylum seeker, and of the manner in which that information was interpreted by the decision maker. This shields the decision from scrutiny, and removes the possibility of accountability for bad or incorrect decisions.

This means that, unfortunately, confidentiality can be used to hide irregular decision making in the same way that the National Key Points Act and the reliance on national security concerns has been misapplied. The political nature and foreign policy implications of some asylum applications cannot be ignored: a grant of asylum may be seen as a condemnation of the applicant’s home country’s inability to protect its citizens, while a refusal could be seen as a tacit endorsement of that government. Every year thousands of determinations are made by refugee officials acting independently and fairly, but the fact that absolute confidentiality could enable decisions that are influenced by foreign policy concerns to remain untested means that the principle should be rejected. This does not mean that confidentiality should be dispensed with in all cases – just that a flexible system should be adopted which permits lifting confidentiality in certain, exceptional situations.

It is an inseparable part of a functioning modern democracy that citizens have a right to question – and receive answers from – their political leaders. The litigation around the confidentiality provision in the Refugees Act aims to protect this by finding a balance between ensuring protection for the asylum seekers, and facilitating accountable and transparent decision making in governmental departments.

This is the same basic aim for commentators, journalists and the general public in respect of the CAR and Nkandla. Seeking answers from leaders does not diminish democracy, it enhances it. Sometimes recourse to the courts is required, other times parliamentary questions can provide the answers, but whatever the case, and whatever the route, we must ensure that those avenues remain open for individuals, civil society groups and opposition politicians to ensure that government officials remain accountable to their electorate and act in compliance with the rule of law.

The two accused will appear in the Kapiri Mposhi Magistrate’s Court today when their legal representatives will make an application for bail.

“It is heart-breaking that the law continues to criminalise sexual acts which take place in private between consenting adults of the same sex. As a result of such laws police are able to arrest innocent young men, expose them to terrible conditions in detention, whilst depriving their families of their much needed support,” stated Anneke Meerkotter, LGBT/Sex Work Project Lawyer at the Southern Africa Litigation Centre (SALC), who is following the case.

SALC will provide updates on the case on our website.

For more information

Anneke Meerkotter, SALC LGBT/Sex Work Project Lawyer; Tel: + 27 (0)72 234 4763; E-mail: annekem@salc.org.za

Priti Patel, SALC Deputy Director: Tel: + 27 (0)76 808 0505; E-mail: pritip@salc.org.za

Nicole Fritz, SALC Executive Director: Tel: +27 (0)82 600 1028; E-mail: nicolef@salc.org.za

For updates follow SALC on twitter: @follow_salc

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.