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?
Posted: 16 September, 2022 Filed under: Gaopalelwe Mathiba | Tags: collateral damage, De Beers, Department of Mineral Resources and Energy, DMRE, hazard categorisation, infrastructural damage, Jagersfontein tailings dump, Jagersfontein tragedy, mine tailings dump management failure, Mineral and Petroleum Resources Development Act 28 of 2002, Precious Stones Act of 1964, Superkolong Consortium Leave a comment
Author: 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.
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
Posted: 12 September, 2022 Filed under: Zelalem Shiferaw Woldemichael | Tags: continued detention, Criminal Procedure Code, Ethiopian Human Rights Commission, Ethiopian People’s Revolutionary Democratic Front, federal judicial structure, Federal Supreme Court of Ethiopia, journalists, New Media Law, pre-trial detention, right to liberty of journalists, Temesgen Desalegn, unlawful Leave a comment
Author: 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.”
The Shell seismic survey judgment: A further endorsement of meaningful consultation
Posted: 6 September, 2022 Filed under: Gaopalelwe Mathiba | Tags: biodiversity, decision-making process, DMRE, environmental impact assessment, High Court, marine life, ocal communities, petroleum companies, seismic survey, seismic survey judgment, Shell seismic survey, Southeast Coast 1 CommentAuthor: 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.
Right to housing as an aspect of the demand for social justice*
Posted: 31 August, 2022 Filed under: Bahar Bayhan | Tags: Access to housing, COVID-19, financial burdens, fundamental human right, Housing Development Administration, Problem of Housing, Republic of Turkey, Right to Adequate Housing, right to housing, social justice, Sulukule Urban Renewal Project, Universal Declaration of Human Rights, urban transformation Leave a comment
Author: 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.
The misconceptions in section 35 (1)(e) of the Nigerian constitution and the right to liberty of persons with mental disability
Posted: 25 August, 2022 Filed under: Abasiodiong Ubong Udoakpan | Tags: addicted to drugs, compulsory detention, constitution, Convention of the Rights of Persons with Disabilities, CRPD, human rights instruments, incompetency, mental disability, mental health, mental illness, negative stereotypes, Nigeria, psychosocial disabilities, right to liberty, unsound mind Leave a comment
Author: Abasiodiong Ubong Udoakpan
Data Protection Advisor, Researcher and a Human Rights Lawyer
The basic principle of any type of essential psychosocial care, is to respect the safety, dignity and rights of anyone you are helping, but can this be excused? An aspect of the Convention of the Rights of Persons with Disabilities (CRPD) appears to be particularly challenging to conventional mental health practice. This concerns involuntary treatment. Along with the general right to liberty, similar to that contained in other human rights instruments, the CRPD provides that ‘the existence of a disability shall in no case justify a deprivation of liberty,[1] but what happens when the Constitution set out standards and procedures by which psychiatric interventions can be imposed against the will of a person?
Is South Africa turning a blind eye to climate injustices?
Posted: 8 August, 2022 Filed under: Sandile Nhlengetwa | Tags: carbon budgets, Carbon Tax Act 15 of 2019, climate change, Climate Change Bill, Convention for the Protection and Assistance of Internally Displaced Persons in Africa, Disaster Management Act 57 of 2002, environmental laws, gas mitigation plan, greenhouse gases, human rights-based approach, Kwazulu-Natal floods, National Environmental Management Act 107 of 1998, policy framework, socio economic development, South Africa, statutes, threat Leave a comment
Author: Sandile Innocent Nhlengetwa
LLB candidate, University of the Western Cape
Climate change is the greatest threat to mankind as it poses a major threat to the survival of humans on earth. It has a negative impact on the prospects of economic and social prosperity of any nation. South Africa has over the years witnessed a number of her citizens; particularly poor susceptible groups being severely affected by the impacts of climate change. Most recently, the Kwazulu-Natal floods did not only displace indigent people it also led to the loss of lives. The South African government turned a blind eye to this and has been the slowest to react. Two months after the floods occurred, the government is yet to allocate satisfactory financial and human resources to redress the situation. This can be partly linked to the absence of a legislative regulatory framework which provides for an effective, clear and comprehensive response to climate change in order to minimise its impact. Currently, climate change is regulated in a piecemeal manner. Since the Constitution was adopted, an overwhelming number of statutes of environmental nature were enacted including the National Environmental Management Act 107 of 1998 and the National Environment Management: Air Quality Act 39 of 2004. Though both these statutes do not refer to climate change in explicit terms they require the environment to be utilised in a sustainable manner that is not harmful to human beings and regulate the emission of greenhouse gases respectively. Worth mentioning, however, is the Carbon Tax Act 15 of 2019 as well as the Disaster Management Act 57 of 2002 both of which have a direct bearing on climate change. The latter Act is the legislative framework within which the government responds to the impacts of climate change. The former makes explicit reference to climate change in its efforts to avoid dangerous anthropogenic climate change by stabilising greenhouse gas emissions while also ensuring sustainable socio economic development.
To whom it may concern: South Sudan may not be ready for elections, yet democracy cannot wait
Posted: 25 July, 2022 Filed under: Joseph Geng Akech | Tags: African expert, challenges, democracy, democratic future, Election Commission, election readiness, elections, Humanitarian relief, International Institute for Democracy and Elections Assistance, legislation, permanence of transitions, political transition, public perceptions, Revitalised Peace Agreement, security stabilisation, South Sudan, Transitional Period, United Nations Mission in South Sudan, unprepared 2 Comments
Author: Joseph Geng Akech
Assistant Professor of Law, University of Juba, and independent researcher in human rights & constitutional designs
Introduction
Early this year, Yach Garang, political science PhD student at the University of Juba authored a blog piece asking ‘will South Sudan be ready for its first democratic elections come 2023?’ According to him, certain benchmarks are critical for South Sudan’s democratic election readiness. These include security stabilisation, enactment of electoral laws, adoption of a new constitution and conduct of population census. While I agree with his ‘benchmarks’, I contend that South Sudan may not be ready for elections, but it is imperative to note that democracy cannot wait for a perfect environment.
This piece, therefore, is addressing those to whom the democratic future of the country remains a priority.
Regulating cryptocurrencies in the Central African Republic: Has the cart been put before the horse?
Posted: 21 July, 2022 Filed under: Rimdolmsom Jonathan Kabré | Tags: 2015 Paris Agreement, Bank of African Central States, bitcoin, carbon footprint, Central African Economic and Monetary Community, Central African Republic, cryptocurrency, electronic transactions, greenhouse gas, Law n°22.004, legal framework, legal tender, National Electronic Transaction Regulatory Agency, political opposition, tax contributions 7 Comments
Author: Rimdolmsom Jonathan Kabré
Postdoctoral researcher, Centre for Human Rights, University of Pretoria
Introduction
On 22 April 2022, the Parliament of the Central African Republic (CAR) adopted the Law n°22.004 governing cryptocurrency in the Central African Republic (hereinafter the Law). This is the second time in the world, and the first time in Africa, that a country adopts cryptocurrencies as legal tender. Previously, some other African countries considered the issue of cryptocurrencies: In Algeria, for example, they are prohibited (see art 117 of 2018 Financial law). In Egypt, bitcoin transactions were classified as haram (in a non-binding religious decree of 2018) until the recent Central Bank and Banking Sector Law No.194 of the year 2020 which contains some rules regarding the use of financial technology. Nigeria has prohibited the trading of cryptocurrencies and launched its own digital currency called eNaira. In South Africa, the regulation of cryptocurrencies is imminent (see here and here).
Women and Disability in Africa: African Disability Protocol to the Rescue?
Posted: 18 July, 2022 Filed under: Farirai Sinothando Sibanda | Tags: abuse, Africa, African Disability Protocol, communication, disability rights, discrimination, exclusion, forced sterilisation, poverty, sexual and reproductive health rights, UNCRPD, women with disabilities 2 Comments
Author: Farirai Sinothando Sibanda
Master’s Candidate, Centre for Human Rights, University of Pretoria
It is a gross injustice that disability rights in Africa have previously not been prioritised given that 80% of persons with disabilities live in developing countries. However, this situation seems to be gaining some attention with most African states having ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) with the exception of three, namely Cameroon, South Sudan and Eritrea. Following this trajectory, in 2018, the African Union (AU) member states adopted the African Disability Protocol which will enter into force after ratification by 15 AU member states. Despite its potential to enhance persons with disabilities’ enjoyment of their rights, as of March 2022, the African Disability Protocol has only been ratified by three countries namely; Mali, Kenya, and Rwanda which is disappointingly low.
The UNCRPD is a key instrument in advancing the rights of persons with disabilities, but it lacks the specificity to the African context. Due to poverty and other issues in Africa, the situation of persons with disabilities, especially women, differs radically from that in other regions. Article 6 of the UNCRPD addresses women in two general provisions by obligating states to protect them from discrimination, ensure enjoyment of their rights and empower them. However, it does not specify the actions that states must take to fulfil these obligations. Resultantly, the UNCRPD does not adequately address the unique situation of persons with disabilities in Africa.
Read the rest of this entry »Climate change and internal displacement
Posted: 14 July, 2022 Filed under: Bernice Asante, Meron Eshetu Birhanu, Zanele Christine Fengu | Tags: climate change, climate policies, climate refugees, climate-related displacement, conflict, gender-based violence, global justice, human trafficking, IDPs, internal displacement, Kampala Convention, medical services, mental health, vulnerable communities Leave a comment
Authors: Zanele Christine Fengu, Meron Eshetu Birhanu and Bernice Asante
“Internal Displacement and climate change are both highly complex phenomena. In the public debate we often hear about ‘climate-related displacement’ or even ‘climate refugees’, and very often this is done with a note of alert”.
The Global Classroom on Human Rights recently held its annual meeting, which was hosted by the Centre for Human Rights, University of Pretoria with Internal Displacement as its theme. The programme featured enlightening presentations from members across the world who reflected on legal and non-legal approaches to the matter. A key message which came from the engagement was the need to adopt a climate justice approach to climate change and how our legal frameworks could embody this principle.
AfricLaw 