The conviction of Hissène Habré by the Extraordinary African Chambers in the Senegalese Courts: Bringing justice in cases of serious human rights violations in Africa
Posted: 30 June, 2016 Filed under: Juan Pablo Pérez-León-Acevedo | Tags: Africa, African Union, Chad, Charles Taylor, crimes against humanity, criminal justice, dictator, domestic courts, EAC, EAC Trial Chamber, Extraordinary African Chambers, gender crimes, genocide, Hissène Habré, human rights, hybrid criminal courts, ICC, ICTR, impunity, international crimes, International Criminal Tribunal for Rwanda, Jean Kambanda, Jean-Pierre Bemba Gombo, justice, Laurent Gbagbo, National Armed Forces of Chad (FANT), Omar Al-Bashir, regional mechanisms, restorative justice, SCSL, Senegal, sexual crimes, Special Court for Sierra Leone, torture, Transitional Government of National Unity (GUNT), Uhuru Kenyatta, universal jurisdiction, victims, war crimes, William Ruto, zero tolerance 1 Comment
Author: Juan Pablo Pérez-León-Acevedo
Vice-Chancellor Postdoctoral Fellow, Centre for Human Rights, Faculty of Law, University of Pretoria
Background
On 30 May 2016, the Extraordinary African Chambers in Senegal (EAC) found the former Chadian dictator Hissène Habré criminally responsible for crimes against humanity, war crimes and torture. The EAC condemned Hissène Habré to life in prison. The EAC indicated that the defence would have 15 days to appeal the conviction. Accordingly, the defence lawyers proceeded to appeal the conviction on 10 June 2016. During the trial that started on 20 July 2015 and ended on 11 February 2016, 96 witnesses, victims and experts participated, and 5600 transcript pages and over 56 exhibits were examined. The trial concerned crimes committed in Chad between 7 June 1982 and 1 December 1990, which corresponded to Habré’s rule. The EAC Trial Chamber convicted Habré, as a member of a joint criminal enterprise (involving, among others, directors of his political police aka the Direction de la documentation et de la sécurité (Documentation and Security Directorate (DSS)), of crimes against humanity of rape, sexual slavery, murder, summary execution, kidnapping followed by enforced disappearance, torture and inhumane acts committed against the Hadjerai and Zaghawa ethnic groups, the inhabitants of southern Chad and political opponents. As a member of a joint criminal enterprise, Habré was also convicted of torture. Additionally, the Chamber convicted Habré, under the modality of superior or command liability, of the war crimes of murder, torture, inhumane treatment and unlawful confinement committed against prisoners of war (international armed conflict), and of the war crimes of murder, torture and cruel treatment (non-international armed conflict). War crimes were examined, on the one hand, in the context of the non-international armed conflict between the Forces Armées Nationales du Tchad (National Armed Forces of Chad (FANT)) and the Gouvernment d’Union Nationale de Transition (Transitional Government of National Unity (GUNT)), and, on the other one, in the context of the international armed conflict between Libya, allied to the GUNT, and Chad supported by France and the United States. Nevertheless, the Chamber acquitted Habré of the war crime of unlawful transfer.
The tragic dialectic between happiness and apartheid
Posted: 21 June, 2016 Filed under: Saul Leal | Tags: apartheid, Barnett Potters, Constitution of South Africa, democracy, discrimination, freedom, happiness, Hendrik Verwoerd, human dignity, human rights, inequality, non-racialism, non-sexism, policy of separate development, prejudice, racism, right to happiness, sadism, segregation, Steve Biko, superiority 3 Comments
Author: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)
Some political speeches announce tragedies. In South Africa, the tragedy was announced during a radio broadcast on 17 March 1961, when the people heard the following statement: “The policy of separate development is designed for happiness, security, and stability (…) for the Bantu as well as the whites”. It was the first phrase proclaimed by the Prime Minister of the Union of South Africa, Hendrik Verwoerd, in his Address to the Nation. The policy of separate development would prove to be a scandalous euphemism. Verwoerd continued to promise that “we shall provide all our races with happiness and prosperity”.[1] Verwoerd would become known as “the architect of apartheid”.
The South African Governor-General was Supreme Chief in the Transvaal up until 1956. At that time, Cape Africans were considered too advanced to be treated as an underclass. Elizabeth Landis, an American expert on Southern Africa affairs, explains that the government had to change this consideration, with the explanation that ‘if we want to bring peace and happiness to the Native population (…) then we cannot do otherwise than to apply this principle which has worked so effectively in the other three provinces, to the Native population of the Cape as well (…)”.[2] Happiness therefore becomes a scapegoat.
Why has the EU’s Temporary Protection Directive not been applied during the migration crisis in order to receive Syrians and other asylum seekers?
Posted: 10 June, 2016 Filed under: Clara Burbano-Herrera | Tags: asylum, civil war, Council of the European Union, Directive on Temporary Protection, EU, EU states, European Asylum Support Office, European Commission, Europol, Frontex, immigration, irregular border crossings, Kosovo, Mediterranean, migrants, migration crisis, refugees, Syria, Turkey, UN Refugee Agency, UNHCR, war, Yugoslavia 1 Comment
Author: Clara Burbano-Herrera
Fulbright Fellow, FXB Center for Health and Human Rights, Harvard University; Visiting researcher, Max Planck Institute for Comparative Public Law and International Law (Heidelberg); and FWO Postdoctoral Research Fellow, Human Rights Centre, Ghent University
The EU Border Agency Frontex indicates that a total of 1.83 million irregular border crossings were detected at the EU’s external borders in 2015, compared to 283 500 in 2014. According to the UN Refugee Agency (UNHCR), 1 015 078 people reached Europe irregularly in 2015 by crossing the Mediterranean, while a further 3 771 are believed to have drowned attempting the same journey. The main country of origin of applicants in EU+ countries (the 28 EU Member States as well as Norway and Switzerland) was Syria.
Uganda: Why the Constitutional Court should rule on the right to health
Posted: 3 June, 2016 Filed under: Michael Addaney | Tags: African Court of Justice and Human Rights, anemia, child birth, constitution, Constitutional Court of Uganda, diabetes, doctrine of political question, duty to fulfil, duty to respect, government health facilities, hepatitis, Kenya, malaria, maternal health, maternal mortality, obligation to protect, public health, South Africa, Supreme Court, Uganda, universal human rights 2 Comments
Author: Michael Addaney
Senior Research Assistant, University of Energy and Natural Resources, Ghana
A case currently before the Constitutional Court of Uganda is providing an interesting test for how far courts can go in protecting basic human rights. Human rights are rights inherent to all human beings. Every person is equally entitled to them without discrimination. They are interrelated, interdependent and indivisible.
Universal human rights are often guaranteed by law through treaties and various sources of international law which generally oblige governments to respect, protect and fulfill human rights and fundamental freedoms of individuals or groups.
Apart from international obligations, countries have various ways of entrenching human rights. Most contemporary constitutions entrench basic human rights. Such constitutions include the 1996 Constitution of South Africa and the 2010 Kenyan Constitution. Likewise, the 1995 Constitution of Uganda contains the Bill of Rights that guarantees fundamental freedoms and basic rights including the rights to health and to life.
The imminent mass exodus from the ICC by African member states: A turning point for justice in Africa?
Posted: 26 May, 2016 Filed under: Thabang Mokgatle | Tags: ACJ, African Court of Justice, Day in Support of Victims of Torture, domestic courts, EAC, Extraordinary African Chambers, Habré trial, human rights treaties, ICC, International Criminal Court, Kenya, loss of lives, post-election ethnic violence, President Uhuru Kenyatta, Senegal, torture, universal jurisdiction 2 Comments 
Author: Thabang Mokgatle
Candidate Attorney, Rushmere Noach Incorporated, Port Elizabeth, South Africa
This post originally appeared on LinkedIn.
After several months of reading headlines, scholarly articles and opinion pieces about the International Criminal Court (ICC) and its alleged anti-Africa agenda, news that Senegal had taken a decision to prosecute former Chadian leader Hissène Habré for, amongst others, crimes against humanity was welcomed.
Implementing the international law principle of universal jurisdiction, the Extraordinary African Chambers (EAC) were opened in Senegal in 2013, giving the domestic courts of the country the authority to try the former leader for war crimes committed in Chad from 1982 to 1990. Universal Jurisdiction, and particularly the jurisdiction of the EAC allows for the African member State to prosecute persons responsible for international crimes, irrespective of whether they are a former or sitting Head of State. As Thulasizwe Simelane of ENCA News aptly puts it, the trial is “‘one small step for a country (Senegal) and one giant leap for the continent” .The move is indeed revolutionary for Africa. Revolutionary because one need only refer to media headlines to deduce that the gripe African leaders have with the ICC is underscored by its persistent ‘targeting’ of African leaders in office.
Happiness as constitutional empowerment in Nigeria
Posted: 20 May, 2016 Filed under: Saul Leal | Tags: Bamidele Aturu, capitalism, constitution, Constitutional rights, Easterlin’s Paradox, economic power, Femi Aborisade, Frantz Fanon, GDP, Justice M. Bello, materialism, Nigeria, oil, petroleum, resistance, right to happiness, socio-economic well-being, Steve Biko, sustainable economy, welfare 5 CommentsAuthor: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)
In Nigeria, happiness is understood as a Constitutional right and is more than a mere linguistic expression. Section 16(1)(b) of the Constitution provides that ‘the State shall, within the context of the ideals and objectives for which provisions are made in this Constitution, control the national economy in such a manner as to secure the maximum welfare, freedom and “happiness” of every citizen on the basis of social justice and equality of status and opportunity’. Nigeria thus constitutionalized happiness as part as its movement toward to a sustainable economy. This prevents the interference of economy with the people’s happiness.[1]
Nigeria shows how commitment to peoples’ happiness is able to diminish the strength of money in areas which must not be sold, thus emphasizing that there are things that money cannot buy. The African collective trauma caused by the intense economic exploitation conducted by the colonial system shows its value by inserting limitative factor into a constitutional provision in order to face the eventual side effects of unlimited economic power. The Nigerian government’s decision to deregulate the pricing of petroleum, the nation’s most valuable asset, ended up in court in a case which reached landmark status.
Challenging anti-terrorism laws in Swaziland: When the judiciary becomes the stumbling block
Posted: 11 May, 2016 Filed under: Kudzani Ndlovu | Tags: Amnesty International, colonial legacy, constitution, democracy, freedom of assembly and association, freedom of conscience, freedom of expression and information, human rights, monarchy, Peoples United Democratic Movement, repression, Sediction Act, STA, Swaziland, Swaziland Solidarity Network, Swaziland Youth Congress, terrorism, Thulani Maseko 1 Comment
Author: Kudzani Ndlovu
Part-time lecturer, Lupane State University, Zimbabwe
On 8 and 9 February 2016 the pro-democracy movement in Swaziland converged at the High Court in Mbabane to attend a hearing on the constitutionality of the country’s two draconian and repressive laws – the Suppression of Terrorism Act No. 3 of 2008 (STA) and the British colonial era 1938 Sedition and Subversive Activities Act (Sedition Act) – which continue to be used by the state to stifle opposition and silence critics of the authoritarian monarchy.
Many, especially those outside Africa’s last absolute monarchy, had labelled this hearing as ‘historic’ but local activists remained less optimistic knowing that most of the country’s judges have sold their independence for thirty pieces of silver. The King’s influence in the appointment of judges has seriously undermined the independence of the judiciary. The Constitution of Swaziland provides that the judges are appointed by the King after consultation with the Judicial Service Commission (JSC). Judges are answerable to the King and hence they can never claim to be independent. It will only take rabid denialists and anarchists to argue that there is hope of an independent judiciary in Swaziland under the current system.
A review of the work of the African Commission’s Working Group on Extractive Industries, Environment and Human Rights Violations in Africa
Posted: 26 April, 2016 Filed under: Miriam Azu | Tags: African Charter, African Commission, African Commission on Human and Peoples’ Rights, African human rights system', Democratic Republic of Congo (DRC), DRC, Environment and Human Rights Violations in Africa, extractive industry, human rights violations, Ken Saro-Wiwa, Liberia, Marikana, Marikana Commission of Inquiry, National Association of Professional Environments, natural resources, Nigeria, non-state actors, Ogoni, special mechanism, toolkit, Working Group, Working Group on Extractive Industries Leave a comment
Author: Miriam Azu
Lawyer, Human Rights Advocate and Environmental Activist
The Working Group on Extractive Industries, Environment and Human Rights Violations in Africa (Working Group) is an oversight mechanism of the African human rights system. Its general mandate is to monitor and report on how extractive activities affect the human rights and environment of the African peoples.[1] This article briefly evaluates what the Working Group has done so far vis-à-vis its mandate, notes some of its challenges and concludes with recommendations on the way forward.
Happiness and same-sex affection
Posted: 22 April, 2016 Filed under: Saul Leal | Tags: autonomy of will, Brazil, Chinelo Okparanta, Civil Code, constitution, fundamental rights, gay, happiness, homo-affectionate, hope of happiness, human dignity, Justice Celso de Mello, Justice Luiz Fux, love, Nigeria, prejudice, privacy, protection of the right to life, right to equal protection under the law, right to happiness, same-sex affection, same-sex couples, same-sex marriage, sexual discrimination, sexual minorities, United States Declaration of Independence 3 CommentsAuthor: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)
Chinelo Okparanta is a Nigerian writer, currently living as a citizen in the United States. She understands the prejudices of her native country, especially against homosexuals. In some parts of Nigeria, a gay individual may be stoned to death under the Shari’a law. Okparanta writes, in her lesbian romance Happiness like Water, ‘yes, our love may be hidden, but it is strong. It can still bring happiness’.[1]
Why must the love between two consenting adults be hidden? Should the State have the power to decide towards whom one may show affection? These disconcerting questions may be answered in terms of global Constitutions.
The most important Brazilian decision which entailed the right to happiness was in 2011.[2] The Supreme Court had to rule on the interpretation to be given to article 1.723 of the Civil Code, which only recognizes a common-law relationship between a man and a woman as a family unit which must be public knowledge, continuous, and long-lasting, and be established for the purpose of building a family. The need for the aforementioned ruling resulted from the fact that government bodies refused to grant these rights to homo-affectionate couples. Therefore, the Court had to decide if this union also covered same-sex couples, even though the provision expressly mentions ‘man and a woman’.[3]
Suppressing dissent: The Gambian reality
Posted: 19 April, 2016 Filed under: Satang Nabaneh | Tags: 1997 Constitution, Abubacarr Saidykhan, Amnesty International, Babucarr Ceesay, Ban Ki-moon, deprivation of life, detention, Ebrima Barry, Gambia Students Union (GAMSU), human rights violations, Human Rights Watch, immunity, insurrection, Lasana Jobarteh, law enforcement, mutiny, Ousainou Darboe, peaceful protests, President Jammeh, Public Order Act, right to protest, riot, rule of law, Solo Sandeng, The Gambia, United Democratic Party (UDP), United Nations, unlawful arrests, use of force 3 Comments
Author: Satang Nabaneh
Gambian Reporter to the Oxford Constitutions Online Project
The right to freedom of assembly as guaranteed by the 1997 Constitution includes the right to take part in peaceful demonstrations. However, people are deterred from organising and participating in such demonstrations. Section 18(4)(C) allows for the use of force and the deprivation of life in the ‘suppression of a riot, insurrection or mutiny’. This gives law enforcement officials with immunity when a person dies under circumstances in which reasonable force was used.
On Thursday, 14 April 2016, Mr. Solo Sandeng, National Organising Secretary and other members of the main opposition United Democratic Party (UDP) were arrested for leading a peaceful protest for electoral reforms and demanding for the resignation of President Jammeh. Two days after the arrest, senior members of the UDP, including the leader Ousainou Darboe, confirmed in a press conference the death of Solo Sandeng while in detention. Lawyer Darboe also stated that two detained female protesters were also in a coma following their arrest and alleged brutal torture by the security agents. Angered by the harsh treatment meted on the detainees, Darboe and a group of UPD stalwarts led began a protest march but were swiftly rounded up by Gambia’s security force and arrested. Eyewitnesses said the security agents fired tear gas at the crowd to disperse it.
AfricLaw 