Testing the Waters of Transparency: The Impact of Namibia’s Access to Information Act on Constitutionalism
Posted: 18 June, 2024 Filed under: Dunia P. Zongwe | Tags: Access to Information Act, accountability, ‘Fishrot’ Files, constitutionalism, corruption scandal, Gondwana case, Haufiku case, human rights, international standards, Namibia, national security, RAI, right to access information, rule of law, secrecy, secret information Leave a comment
Author: Dunia P. Zongwe
Associate Professor, Alliance School of Law, India; and Adjunct Associate Professor, Walter Sisulu University, South Africa
Abstract
This paper decodes the right to access information (RAI) in the newly enacted Access to Information Act in Namibia. Passed by Parliament in 2022, this Act came on the heels of the infamous ‘Fishrot’ Files, the country’s ugliest corruption scandal, uncovered through massive information leaks. This paper evaluates the efficacy of the Act in advancing the goals of constitutionalism by enabling individuals to access information robustly and transparently, thereby holding the ruling elite accountable to the public.
This paper unfolds in four steps. It begins by describing the loopholes that existed in the law before 2022, pondering what these lacunae imply for constitutionalism. Next, the paper dissects the RAI in theory, doctrine, and as presented in the Access to Information Act 8 of 2022. It then examines the Act’s provisions on RAI against the provisions laid out in the 2013 Model Law on Access to Information for Africa, highlighting key parallels. Lastly, drawing on those parallels, the paper assesses whether the RAI, as consecrated in the 2022 Act, advances the goals of constitutionalism. The paper argues that, by excluding from its scope Cabinet deliberations, the Act watered down the presumption of disclosure, and, in that sense, it failed to close the last loopholes that allowed the executive branch to evade accountability. This paper adds to the relevant literature by revealing that implementing the RAI and the disclosure presumption may constrain the executive more effectively than the other organs of the state.
From limitation to derogation of rights: Revisiting internet shutdowns during elections in Africa
Posted: 14 June, 2024 Filed under: Chrispin Bosire | Tags: Access to Information, Access to the internet, African Charter on Human and Peoples’ Rights, data protection, digital rights, dissemination of opinions, elections, free speech, Freedom of Information and Expression, government-led internet shutdowns, human rights standards, illegitimate restrictions, internet disruptions, internet shutdowns, liberty of expression, national security concerns, press freedom, violation of rights, vital electoral information Leave a comment
Author: Chrispin Bosire
Advocate of the High Court of Kenya
Introduction
Free access to information, free speech and liberty of expression contribute to democratic elections. Article 9 of the African Charter on Human and Peoples’ Rights (the African Charter) guarantees the right to receive information and safeguards freedom of expression and dissemination of opinions. Access to information and press freedom are important elements of free expression. This right is now exercised both offline and online, as provided under Principle 5 of the 2019 press freedom. However, systemic internet disruptions and restrictions on access to communication platforms are on the rise in Africa. This has negatively affected the people’s right to expression during elections, and meaningful access to vital electoral information, necessary to make informed decisions.
Technology and Access to Information: Effect of Search Algorithms on Access to Information
Posted: 12 June, 2024 Filed under: Wendy Ashikomela Ashilenje | Tags: Access to Information, Access to the internet, Artificial Intelligence (AI), Blocking and filtering, Fourth Industrial Revolution (4IR), freedom of expression, increased internet use, right of access to information, Search Algorithms, social media platforms, specific behavioural patterns, technological advances, technology, Universal Declaration of Human Rights Leave a comment
Author: Wendy Ashikomela Ashilenje
Advocate of the High Court of Kenya
Introduction
Are you accessing all the information on your Facebook, Threads, Google, Bing or Instagram? The increased technological advances in Africa have been characterised by the increased use of the internet which is driven by the increased use of Artificial Intelligence (AI), hence confirming that we are in the Fourth Industrial Revolution (4IR). Statistics by Statista show that as at 2024, Africa had approximately 646 million internet users which is a slight increase from the 570 million internet users in 2022. As a result of the increased internet use, there is a lot of information that is out there which can be accessed through the various search engines or social media platforms. The science behind the internet may be complicated but it can easily be described by one word – algorithms. Algorithms are machine learning techniques that have been programmed to provide certain output based on the information that they are fed. Tarleton Gillespie attempts to give context as to what algorithms are and states that they are encoded procedures that transform the input data into a desired or specific output based on certain calculations.
South Africa at 30: Navigating the legacy of policy versus lived realities
Posted: 10 June, 2024 Filed under: Naledi Joyi | Tags: apartheid, coalition government, community development, democracy, democratic principles, economic empowerment, education, equality, freedom, historical injustices, human rights violations, justice, pit toilets, serious crimes, socio-economic challenges, South Africa, structural inequalities, sustainable peace, violence 1 Comment
Author: Naledi Joyi
Gender Officer, Centre for the Study of Violence and Reconciliation
After three decades of democracy, South Africa stands at a crossroads grappling with the interplay between policy aspirations and lived realities of the majority of the black population. The country boasts one of the most progressive constitutions globally because it is based on equality, freedom and justice. Yet the lived realities of its citizens leave one asking ‘what good is a constitution if it cannot be implemented?’. Although policies to address historical injustices and structural inequalities have been developed, implementation has been a challenge leaving many of the previously disadvantaged populations still disadvantaged, resulting in the country being dubbed the most unequal society in the world, with the rich getting richer and poor getting poorer. The country’s identity is closely linked with violence, entrenched in the legacy of apartheid, which used violence as a method of control.
Lost in Faith: The Growing Menace of Religious Fanaticism in Africa and the Need for Intervention
Posted: 7 June, 2024 Filed under: Murithi Antony | Tags: Africa, African Charter on Human and Peoples' Rights, Boko Haram, child sacrifice, ethical principles, fasting to the point of death, fundamental human rights, Good News International Church, human sacrifices, international human rights instruments, Mungiki movement, political instability, religion, religious fanaticism, religious freedom, right to religious freedom, terrorism, Yesu wa Tongaren Leave a comment
Author: Murithi Antony
LL.B candidate, University of Embu
Religious freedom is a cherished right we uphold,
But when it’s misused, the consequences unfold.
Ideologies that propagate self-harm and hate,
Demand constant vigilance before it’s too late!
Introduction
Religion is a system of faith and worship centered around a belief in a supreme being and a set of moral or ethical principles. It encompasses a way of life that provides hope, guidance, and even companionship to many individuals. Religion serves as a source of strength, comfort, and meaning, especially for individuals who seek to understand their place in the world and the purpose of their existence. Religion influences people’s thoughts, actions, and their relationships with others. Such characteristics of religion has made several believers to engage in extreme and controversial actions, including among others; human sacrifices, fasting to the point of death, and terrorism, believing that they will receive eternal rewards from their deity. Such is what is depicted as religious fanaticism, which must be regulated for the sake of sanity and protection of fundamental human rights in society. Upon this background, this article aims to analyse the status of religious freedom in Africa, the impact of the emergence of religious fanaticism, and advocate for intervention.
The election of Mahamat Idriss Déby: What are the security issues for Chad and beyond?
Posted: 5 June, 2024 Filed under: Joris Joël Fomba Tala | Tags: fight against terrorism, freedom of expression, human rights violations, human trafficking, inclusive dialogue, Mahamat Idriss Déby, national unity, political transition, politico-armed groups, President of Chad, regional challenges, Republic of Chad, social inequalities, Succès Masra, violent extremism, Yaya Dillo Leave a comment
Author: Joris Joël Fomba Tala
Researcher, Centre for International and Community Law
On 23 May 2024, Mahamat Idriss Déby was sworn in as the new President of Chad. On 16 May 2024, the Constitutional council officially declared Mahamat Idriss Déby the winner of the presidential election. According to results, Deby won 61 per cent of the votes cast, compared with 18.53 per cent for his main rival Succès Masra. This election brings to an end three years of political transition in the country led by the president-elect. According to some sources, the presidential election in Chad was marred by irregularities and was neither free, credible nor democratic, in a context marked by human rights violations. It is important to remember that the junta had excluded General Déby’s most dangerous opponents from the ballot, in particular his cousin and fierce rival Yaya Dillo, who was assassinated two months before the election. After the proclamation of the results, a few shots were fired by soldiers in the district housing the headquarters of the Succès Masra Les Transformeurs party, forcing people to take refuge in their homes. It has been reported that around twenty people died from gunshot wounds and 60 others were admitted to hospital.
The National Sex Offenders Registry: Offenders’ Right to Privacy v The Safety of Potential Victims
Posted: 3 June, 2024 Filed under: Livhuwani Malelelo | Tags: convicted sex offender, gender-based violence, National Register for Sex Offenders, NRSO, POPIA, potential victims, pursuit of justice, right to privacy, sex offender, sexual crimes, sexual crimes against children, victimisation 1 Comment
Author: Livhuwani Malelelo
LLB candidate, University of Johannesburg
The National Register for Sex Offenders (NRSO) is a list of convicted sexual offenders and although South Africa has an alarming rate of gender-based violence, this list only contains the names of offenders of sexual crimes against children and mentally disabled persons, meaning that the main purpose of this registry is to protect children and mentally disabled persons from these types of offenders. This list is not open to the public but is only open to institutions such as preschools, schools, hospitals etc so they can check if an employee or potential employee is a convicted sex offender. This is so as to protect the offenders right to privacy. Unfortunately, the NRSO seemingly prioritises the right to privacy of the offenders instead of protecting potential victims of said offender.
Protecting African spirituality from stigmatisation: Reflections on the ongoing enquiry by the judicial conduct tribunal into Judge Nomonde Mngqibisa-Thusi’s conduct
Posted: 23 May, 2024 Filed under: Kodisang Bokaba, Konanani Happy Raligilia, Mametlwe Sebei | Tags: African jurisprudence, African spirituality, alleged misconduct, Bill of Rights, culture, Gogo Aubrey Matshiqi, indigenous African people, Judicial Conduct Tribunal, judicial responsibilities, Nomonde Mngqibisa-Thusi, physical isolation, right to religion, Universal Declaration of Human Rights 2 Comments |
Author: Konanani Raligilia Senior Lecturer, Department of Jurisprudence, UNISA |
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Author: Kodisang Bokaba Senior Lecturer, Department of Jurisprudence, UNISA |
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Author: Mametlwe Sebei Contract Lecturer, UNISA |
The question of African spirituality came into the spotlight at the Judicial Conduct Tribunal (Tribunal) into Judge Nomonde Mngqibisa-Thusi’s alleged misconduct for her failure to hand down over 20 judgments due to, among other factors, African spirituality. The Tribunal was held in-camera primarily because Judge Mngqibisa-Thusi was battling with health and personal issues. One of her witnesses was traditional healer, Gogo Aubrey Matshiqi, who testified that the “question of African spirituality must be put on the judicial agenda.” Indeed, African spirituality should not be viewed in isolation from the Constitution. The same Constitution makes provision for the right to religion, belief, and opinion in section 15(1) and to the enjoyment of everyone’s culture, practise their religion and use their language under section 31(1)(a) of the Bill of Rights respectively.
It’s not just you and me, and that’s okay
Posted: 20 May, 2024 Filed under: David Ikpo, Victoria Amaechi | Tags: African continent, Beverley Ditsie, Coming out, Coming out vs Coming home, fight against discrimination, gay, gender expression, heteronormative standards, homonormative, homophobia, Justice Edwin Cameron, lgbtq, Mark Gevisser, multi-institutional relationships, political incorrectness, queer, queer inclusivity, queer persons, queer rights, queer visibility, Sassoi of Ghana, sexuality, Simon Nkoli, The Pink Line, Zachie Achmat 1 Comment |
Author: Victoria Amaechi Centre for Human Rights, University of Pretoria |
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Author: David Ikpo Centre for Human Rights, University of Pretoria |
Queer visibility, and what it accomplishes, turns the social, cultural and legal wheels towards queer inclusivity in society, and is a great complement to the advancement of queer rights on the African continent and globally.
On the African continent, South Africa sets the tone for the merits of queer visibility, through the openly politicised lives of queer icons such as Simon Nkoli, Beverley Ditsie, Justice Edwin Cameron and Zachie Achmat. Other African queer icons have also emerged through their great work, such as Caine Youngman of Botswana; David Kato, Kasha Jaqueline, Richard Lusimbo and Frank Mugisha of Uganda; Abdellah Taia of Morocco; Rev Jide Macaulay and Uyai Ikpe-Etim of Nigeria; Alex Donkor of Ghana and Eric Lembembe of Cameroon. This list does no justice to the infinite number of queer persons within and outside of civil society and government, in the full glare of public visibility, who work tirelessly for queer inclusion on the African continent. This work is no mean feat, and for the most part makes the difference between whether or not a person returns at night to their families after a day’s work, or whether or not there is a family to return to. However, this is not true for all of us.
The rationality of the electorate as a catalyst for political change- Lessons from Senegal
Posted: 16 May, 2024 Filed under: Bonolo Makgale, Matthew Ayibakuro | Tags: Constitutional Council, corruption, democratic governance, diplomatic interventions, elections, political change, political dispute, President Mack Sall, presidential elections, Senegal, social media campaign, Sovereignty, systemic change, transfer of power Leave a comment |
Author: Bonolo Makgale Centre for Human Rights, University of Pretoria |
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Author: Matthew Ayibakuro Governance Adviser and Development Consultant |
The recent presidential elections in Senegal took place against a backdrop of constitutional disputes and widespread political fervour. This was after the Constitutional Council overturned former President Mack Sall’s decree postponing the election, declaring it unconstitutional. This election remains one of Senegal’s most historic. It signalled the end of Sall’s 12-year rule, and with 17 candidates vying to succeed him, it was the most competitive presidential race since Senegal’s independence from France in 1960. It also marked the culmination of a contentious political dispute over the date of the election, which began when Sall moved it to extend his term, sparking widespread protests and boosting support for the opposition.
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