Transitional Justice and Women in Africa: How the Material Turn is still difficult to be seen?

Author: Cristiano d’Orsi
Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg

As envisaged in the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), transitional processes should recognize the gendered nature of conflicts in which women are affected disproportionately, both directly and indirectly, by violence (see, for example, Article 10 –Right to Peace- and Article 11 –Protection of Women in Armed Conflicts-).[1] However, gender concerns in Africa have been rarely incorporated into Transnational Justice (TJ) through mainstreaming gender as a crosscutting issue. The nature of the violations to which women are usually subjected on the continent, and the impact of such violations on them, means that the issue of women and TJ should be treated on its own. Nevertheless, there is still a long way to go to comply with this measure. Normally, states emerging from conflicts or authoritarian repression should ensure women’s representation and participation at all stages of TJ processes by writing women’s participation into peace agreements and TJ laws and policies. Nevertheless, seldom has this been the case in Africa.

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A critique of the Resolution (PAP-Res. 06(VI)/06) and Recommendation (PAP-Rec. 08(VI)/06) of the Pan-African Parliament (PAP) on migration in Africa.

Eva-AbugabeAuthor: Eva Abugabe
MPhil candidate, Centre for Human Rights, University of Pretoria

Introduction

The PAP[1] in its sixth session of the First Parliament in 2006 resolved to ending migration in Africa.[2] Based on PAP-Rec(08(VI)06), the PAP acknowledged migration as a regional priority due to increasing refugee crisis, migrant remittances, movement of labour, the African Diaspora and brain drain, feminisation of migration, xenophobia and human trafficking.[3] In PAP-Res (06(VI)06), the PAP furthermore demanded continuous agenda setting in its debate, regional and national collaborations in learning best practices including encouraging governments to address the challenges by observing good governance and promoting investment in economies, infrastructure and creating employment.[4]

The article[5] critically analyses the PAP’s resolutions and recommendations against regional and international human rights instruments. It aims to position the PAP as an active protector of human rights while making it more visible to Africans, its primary constituents. Its thrust is to also evoke deliberate interventions and broadly contribute to the actualisation of the Africa We Want Agenda, Agenda 2063[6] and to the 2030 Agenda for Sustainable Development[7] specifically target 10.7 of Goal 10.[8]

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Politics of witchcraft and mental illness in the black communities

Konanani-Happy-RaligiliaAuthor: Konanani Happy Raligilia
Acting HoD, Department of Jurisprudence, University of South Africa

When asked by Judge Boshoff about his views on witchcraft, Steve Biko had this to say; “we do not reject it [witchcraft], we regard it as part of the mystery of our cultural heritage, [and] we feel for ourselves it has not been sufficiently looked into with available scientific approaches as of this moment.” Indeed, issues relating to witchcraft are public interest matters and that is so because ordinarily they highlight conflicting and contending views about spirituality. Arguably, the attributing factor to this contesting view is the fact that at the time of the enactment of Witchcraft Suppression Act in 1957, South Africa was still a Christian state as opposed to the current secular post-democratic one which embraces all religious denominations and cultural heritage. The Witchcraft Suppression Act of 1957 exposes a reality that this law failed to divide matters of spirituality and witchcraft, thereby creating a vacuum which often results in members of the communities resorting to judging those who are perceived as witches based on Christian standards of acceptability and norms. Regrettably, the Witchcraft Suppression Act does not provide a definitive answer of what constitutes witchcraft, yet its founding purpose is aimed at suppressing practices of witchcraft and similar practices. However, Reverend Riaan Swiegelaar and Dr Adri Norton announced the country’s first Satanic church in June 2020. It remains to be seen whether its practices would fall out of this witchcraft’s legislative framework and whether those potential witchcraft practitioners would then be prosecuted and punished.

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Ballot or bullet? Time for African youths to make a choice

Murithi-AntonyAuthor: Murithi Antony
LL.B student, University of Embu

“I call heaven and earth as witnesses against you today, that I have set before you life and death, the blessing and curse; therefore, you shall choose life in order that you may live, you and your descendants…”

– The Holy Bible, Deuteronomy 30:19 (Amplified Version)

Introduction

The message in the Book of Deuteronomy generally is directed to the new generation that was born in the desert during the 40 years of wandering in which the generation of exodus passed away. The Book puts forward foundational truths, which if the young generation shall abide by, they will succeed. It states that there is life and death, and advises them to choose life, but leaves the option to their discretion. This can to a large extent be equated with the happenings of contemporary African societies whereby the current youth generation, which was born in the desert of problems, neo-colonialism, tribalism, corruption and violence have an opportunity to change the status quo through voting and advocating for peace. Similar to how the Israelites were given choices, the current generation also has a choice to either vote and take charge of their future; or abstain from voting, and choose political, social and economic death. I tell them: “Choose to vote, in order that you may take charge of your destiny, and your generation shall find a better place to live in.”

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The High Court disbars a famous lawyer: Disbarment in South Africa

Sandile-NhlengetwaAuthor: Sandile Innocent Nhlengetwa
LLB candidate, University of the Western Cape

In an unreported judgement in South African Legal Practice Council v Teffo (10991/21) [2022] ZAGPPHC 666, Adv Malesela Teffo was removed as a legal practitioner. A total of 22 complaints from 2019 to 2022 were filed with the Legal Practice Council (LPC), a statutory body responsible for regulating the legal profession, against Adv Teffo. These include intimidation, assault, contemptuous behaviour, bringing disgrace upon the Court’s moral authority, violating the Legal Practice Act 28 of 2014 (the LPA) on numerous counts and misappropriating of clients’ funds. In this regard, the LPC filed a motion with the High Court to have him disbarred. In its notice of motion, the LPC outlined the basis upon which they seek an order to strike Advocate Teffo off from the roll of legal practitioners. Adv Teffo replied with a bare denial in essence pleading not guilty to all these complaints.

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What is next after the graduation of the necessary unified forces?

Garang-Yach-JamesAuthor: Garang Yach J
South Sudanese Political and security analyst and PhD Student, University of Juba, South Sudan

Summary

The article attempts to answer the question of what is next after the parties have finally graduated the long-awaited necessary unified forces in accordance with the Revitalised Agreement on the Resolution of Conflicts in South Sudan (RACRSS). It identifies four key issues and their respective security implications at the center of the transitional security arrangements. The author concludes that the graduation of the necessary unified forces is not the surest guarantee of a stabilised security situation although it is a show of political will that has been lacking since the coming to effect of the RARCSS in 2018. Addressing the identified key dilemmas will in turn address their respective security implications thus tranquilise the problematic security situation across the country.

The author ends by giving three pertinent recommendations for policy action if the transitional security arrangements were to set a stage for a democratic South Sudan by the end of the 24-month extended period.

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The Jagersfontein tragedy of 11 September 2022: Who must be held accountable for mine tailings dump management failure – the DMRE or De Beer or Superkolong?

Gaopalelwe-MathibaAuthor: Gaopalelwe Mathiba
Senior Lecturer, Department of Private Law, UCT

Introduction

In the early hours of Sunday 11 September 2022, the Jagersfontein diamond mine tailings dump in the Free State failed by bursting as a result of a sudden collapse of the dump embankment walls. The cause for this collapse remains unknown at this point. The spill of the tailings greyish mud is reported to have stretched widely covering a considerable portion of land surface area of the Jagersfontein farm community. At the time of writing this piece, evacuations were still ongoing in the area and the concrete impact and damage report of the incident was not yet ripe. However, the little that could be ascertained from the Department of Mineral Resources and Energy (DMRE) Minister, Gwede Mantashe’s press briefing, where he presented a preliminary incident report, is that at least 28 people suffered minor injuries; while over 40 people were critically injured and hospitalised, with over 5 confirmed fatalities as of that fateful Sunday. In terms of infrastructural damage, the Minister reported that over 9 houses were completely swept away by the spill while around 20 houses were severely damaged. As it should be, this major crisis gives rise to critical questions of accountability, as to who must be held accountable for it and how exactly that accountable person or entity must respond. But not only that, more action is yet to be witnessed on the side of the DMRE in ensuring that this incident is not left unaccounted for and that similar incidents do not recur in the future. This might not be an easy task for the DMRE given the wrestling history it has with De Beers over the Jagersfontein dump, as will be briefly discussed below. What the DMRE actions and the content informing them would entail this time around is yet another fascinating point to observe as the case develops. The aim of this piece is to share some insights into these important issues.

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Does the New Media Law of Ethiopia condone keeping accused journalists behind bars for the duration of a trial? A reflection on the recent ruling of the Federal Supreme Court

Zelalem-Shiferaw-WoldemichaelAuthor: Zelalem Shiferaw Woldemichael
PhD candidate, Melbourne Law School

The decision of the Federal Supreme Court of Ethiopia, rendered on July 28, 2022, to deny bail to Temesgen Desalegn, an editor of Feteh, a privately owned magazine, has put the potential of the New Media Law to end the repressive environment of the prior regime of the Ethiopian People’s Revolutionary Democratic Front, which subjected journalists and media personnel to multiple forms of human rights violations, including torture, arrest, and detention, into question. Perhaps, the case does not represent the only instance of the upholding of the continued detention of journalists by the judiciary after the expulsion of the previous regime and the coming into force of the New Media Law. On several occasions, courts have considered issues of bail of journalists and ordered the continuation of pre-trial detention. Apparently, the present case attracted huge public concern as the journalist was made to remain in custody by the decision of a judicial organ placed at the apex of the federal judicial structure, which renders final decisions on federal matters. The Supreme Court denied bail, accepting the objection of the public prosecutor, who argued that “keeping the accused behind bars was necessary so he could not continue spreading false rumours and leaking secrets through his writing.”

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The Shell seismic survey judgment: A further endorsement of meaningful consultation

Gaopalelwe-MathibaAuthor: Gaopalelwe Mathiba
Senior Lecturer, Department of Private Law, UCT

On 1 September 2022, a full bench of the Division of the High Court, sitting in Makhanda and presided over by Mbenenge JP, handed down a significant judgment in respect of a review petition that sought to challenge the lawfulness of the granting of an exploration right for the exploration of oil and gas in the Southeast Coast by the DMRE to the multinational petroleum company – Shell South Africa (Sustaining the Wild Coast NPC & Others v Minister of Mineral Resources and Energy & Others Case No.: 3491/2021). The relevant facts of the case can be summarised as follows: The petroleum company was awarded an exploration right on April 2014. The right was renewed two times, in December 2017 and again in July 2021. Further, the right was supposedly awarded in terms of the applicable laws i.e. the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) which requires, inter alia, environmental impact assessment and authorisation. It would appear that the only way Shell could exercise its exploration right was by conducting a seismic survey off the Southeast coast that was planned to commence in December 2021. Loosely described, the offshore seismic survey mechanism involve using explosive sound-waves using air-guns directed downwards as part of a mapping technique to determine whether oil or gas deposits may be present deep below the seabed of a surveyed area. It is exactly at this point where the contention arose between, on the one hand, the local customary communities and public interest entities and, on the other, the DMRE and petroleum companies.

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Right to housing as an aspect of the demand for social justice*

Bahar-BayhanAuthor: Bahar Bayhan
Urban Policies Programme Coordinator

*This article was originally published in Turkish on IHO Blog. Translated by Virtus Çeviri

The right to housing is a fundamental human right emphasised in both the Constitution of the Republic of Turkey and the Universal Declaration of Human Rights.[1] Although it does not include details on how this right will be exercised, how fair access to it will be ensured and how it will be secured, Article 57 of the Turkish Constitution reads: “The State shall take measures to meet the need for housing within the framework of a plan that takes into account the characteristics of cities and environmental conditions, and also support community housing projects.” The United Nations Special Rapporteur on the Right to Adequate Housing expands the definition of the right to housing as “the right to housing adequate for habitation” and defines the necessary conditions of housing for a sustainable and dignified life. Before discussing the above-mentioned conditions and how they relate to social justice, it is worth tackling the meaning the word “housing” assumes today.

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