Read at the 57th Ordinary Session of the African Commission

Salc : Staff Writer

Held in Banjul, Gambia, 4 – 18 November 2015

Your Excellency Chairperson of the African Commission,

 

Dear Commissioners,

 

State delegates and Participants

The Southern Africa Litigation Centre (SALC) welcomes this opportunity to address you on the human rights situation in Africa. We would like to bring to your attention our specific concerns related to Angola, Lesotho and South Africa.

In Angola at least 20 individuals have been charged with state security crimes, this year alone, under circumstances which amount to a violation of their rights to freedom of expression, association and assembly. Sixteen of these are currently in detention.[1] Cases of concern include:

The conviction of human rights defender, Jose Mavungo, in an unfair trial in Cabinda province.[2]

The charges against human rights lawyer, Arão Tempo and his client, Manuel Biongo for allegedly attempting to invite journalists from the Congo to cover a demonstration.[3]

The continued detention of 15 activists in Luanda who were meeting to discuss a book and arrested on suspicion of preparing to carry out a coup and an attack against the president.[4]

As well as charges brought against two women, Rosa Conde and Laurinda Gouveia also in connection with the alleged attempted coup.

We remind Angola that the accused persons have the right to be presumed innocent till proven guilty. According to the Angolan authorities, the 15 activists were charged 88 days after their arrest. However, the 15 were only informed of the charges against them after the 90 days pre-trial detention period prescribed by Angolan law had expired.[5] All 15 remain in detention awaiting trial scheduled for later mid-November.

In addition, Albano Bingobingo and Benedito Jeremias, were reportedly tortured whilst in detention at the São Paulo prison. According to reports, they were not given medical treatment following their torture.

The health of human rights lawyer, Arão Tempo, is also of concern. He apparently suffered a facial paralysis on 10 October but is unable to leave Cabinda for medical treatment due to the conditions of his release pending trial.

SALC calls on the African Commission to adopt a resolution on Angola requiring the government to:

respect the right to freedom of association, assembly and expression in the country including by releasing and dropping the charges against all those arrested for peacefully exercising their rights;

respect the right to presumption of innocence;

ensure immediate and adequate medical treatment for all political detainees; and

immediately carrying out an independent and impartial investigation into reports of torture and ill-treatment against detainees ensuring that those found to be responsible are brought to justice.

In Lesotho, there have also been reports of torture against detained members of the Lesotho Defence Force (LDF) accused of involvement in an alleged mutiny plot. Some of these reports were captured during court proceedings and recounted in the Press.[6] These accused LDF members have appeared in court during habeas corpus proceedings hooded, shackled and with visible signs of torture.[7] However, no investigations appear to have been carried out into the reports of torture.

On 5 October, the Lesotho High court ordered their release to serve “open arrest” pending trial. However, the soldiers were reportedly only briefly released three weeks after this court order before being immediately rearrested on the same day. As far as SALC is aware, they remain in detention to date despite a contempt of court charge brought by their lawyers.

The disrespect of the judiciary by the LDF has not been confined to ignoring court orders. There have been reports of the LDF, and in particular LDF special forces members, conducting themselves in a manner which seriously compromises the independence of the judiciary, including by:

entering court armed with heavy weaponry and at times with masked men carrying AK47 rifles;

forcing their way into judges’ chambers; and

threatening lawyers for applicants during court proceedings in matters against the LDF.

The lawyers have also reportedly been denied access to their clients in detention. One lawyer is known to have fled the country out of concern for his physical safety.

SALC calls on the African Commission to:

denounce the lack of respect and undue interference with the independence of the judiciary by the LDF in Lesotho and require them to release the detainees in accordance with the High Court decision;

call on the government to ensure the respect and protection of all human rights, including the right not to be tortured and to a fair trial, during all inquiries and investigations related to the political crisis in the country;

ensure that investigations are carried out into acts of torture even without a formal complaint from the victims; as well as

all individuals responsible for human rights violations, including members of the LDF, are held accountable regardless of their rank and/or political affiliation.

With regards to South Africa, SALC condemns the failure of the government to arrest and prevent the departure of President Al Bashir during his visit to South Africa in accordance with the country’s international and national legal and human rights obligations.[8] Such failure displays:

a lack of respect for the judiciary and the rule of law;

a violation of South Africa’s national and international obligations; and

disregard for constitutionally enshrined principles.

It further constitutes a missed opportunity to bring justice to the people of Sudan.

SALC further denounces the decision of the African National Congress political party to withdraw from the Rome Statute. We remind South Africa and all member states to the African Charter of their recognition, in terms of the Charter, that the international protection of human rights is justified.[9] We further remind South Africa and all countries represented here today that the vision of the African Union of, “an integrated, prosperous and peaceful Africa”[10] cannot and will never be achieved by turning a blind eye to the plight of the people of this continent and the atrocities committed against them.

 

SALC urges the Commission to:

publicly condemn the blatant disregard and disrespect for a national court order by the executive of South Africa in failing to prevent President Al Bashir’s departure and to effect his arrest;

call on South Africa to ensure it fully respects decisions of the judiciary; and

encourage the government to fully cooperate with the ICC and to constructively engage with the Court with regard to whatever grievances they may have.

SALC further calls on the Commission to call on all member states to abide by the spirit of the AU and the African charter by not taking steps which would retrogressively and negatively impact on access to justice for victims of war crimes on the continent.

[1] The 15 activists arrested on 20 June (see footnote 4 below) and Jose Mavungo.

[2] He was arrested on 14 March in connection with a planned demonstration and subsequently accused of association with unknown men found with explosives the night before the planned demonstration, as well as the distribution of pamphlets allegedly calling for a rebellion. Despite lack of evidence linking him to the men or the pamphlets,he was convicted of rebellion on 15 September and sentenced to 6 years imprisonment.

[3] They were accused of the crime of collaborating with foreigners to constrain the Angolan state, based on an allegation that they invited journalists from the Republic of Congo to cover the demonstration organised by José Marcos Mavungo. Both deny the accusation. They were released on 13 May 2015 pending trial, but are not allowed to leave Cabinda without permission. On 22 October, they were informed of their indictment on charges of attempting to collaborate with foreigners to constrain the state for which they face up to 5 years imprisonment. Arão Tempo was also indicted of rebellion and in addition faces up to 12 years imprisonment for this crime.

[4] The 15, Luati Beirão, Nito Alves, Afonso Matias “Mbanza Hamza”, José Hata, Hitler Samussuko, Inocêncio Brito “Drux”, Sedrick de Carvalho, Albano BingoBingo, Fernando Tomás “Nicola”, Nelson Dibango, Arante Kivuvu, Nuno Álvaro Dala, Benedito Jeremias, Domingos da Cruz and Osvaldo Caholo, have been charged with carrying out preparatory acts for a rebellion and an attempt against the president. They remain in detention pending trial.

[5] Article 25 and 26 of the Law on Preventive Detention, Law 18-A/92

[6] http://www.publiceyenews.com/site/2015/06/19/court-orders-army-to-stop-torturing-soldiers/

[7] http://lestimes.com/tortured-colonel-bleeds-in-court/

[8] As a member state of the Rome Statute of the International Criminal Court (Rome Statute) South Africa has an international legal obligation to arrest President Al Bashir who has a warrant of arrest against him on charges of war crimes, crimes against humanity and genocide. In addition, South Africa has a national legal obligation to effect his arrest in terms of its Implementation of Rome Statute of the International Criminal Court Act (ICC Act); as well as the court order given in Southern Africa Litigation Centre v Minister of Justice And Constitutional Development and Others

[9] The Preamble of the African Charter states, “Recognizing on the one hand, that fundamental human rights stem from the attitudes of human beings, which justifies their international protection and on the other hand that the reality and respect of peoples’ rights should necessarily guarantee human rights;” [our emphasis]

[10] Vision of the AU as stated on the AU website, http://au.int/en/about/vision