The tragic dialectic between happiness and apartheid

saul_lealAuthor: 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.

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Challenging anti-terrorism laws in Swaziland: When the judiciary becomes the stumbling block

kudzani_ndlovuAuthor: 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.

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Biko and the right to happiness

saul_lealAuthor: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)

Stephen Bantu Biko occupies a singular place in South African history, precisely because of the manner in which his legacy affected South African constitutionalism.

Biko fought for equal treatment under the law, and proudly founded the Black Consciousness Movement in order to achieve this goal. Biko engaged in a fearless debate related to the victims of racism and colonialism which encompassed the degradation of self-esteem and the inflicted inferiority complex of black South Africans. Biko’s struggle against white authority in order to promote and defend democracy has left a legacy of ideas which would influence future South African generations, including the sentiment of “one man, one vote”.

In 1970, Steve Biko stated that “in order to achieve real action you must yourself be a living part of Africa and of her thought; you must be an element of that popular energy which is entirely called forth for freeing, the progress and the happiness of Africa”.[1] At the time, Biko was a doctoral student and political activist. He was arrested in August 1977. Biko was kept naked and manacled, and died twenty-five days later from brain damage.

Biko envisioned a more inclusive and deeper interpretation of democracy, as opposed to its purely material application. For him, “material want is bad enough, but coupled with spiritual poverty it kills. And this latter effect is probably the one that creates mountains of obstacles in the normal course of emancipation of the black people”.[2]

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Rising against the silencing of the SADC Tribunal: Tanzania

Gertrude Mafoa QuanAuthor: Gertrude Mafoa Quan
Candidate Attorney; LLM (Multidisciplinary Human Rights) student at the Centre for Human Rights, University of Pretoria

‘We have created a monster that will devour us all’.

These were the words of Tanzanian President Jakaya Kikwete regarding the SADC Tribunal. This is at best an expression that is the epitome of the fear of SADC leaders of an existing and functioning Tribunal.

Like in many other regions, the SADC tribunal served as the mechanism through which the region’s dispute could be settled. One of the goals of the treaty was to establish a tribunal (which it did) and that the “[t]ribunal shall be constituted to ensure the adherence to and the proper interpretation of the provisions of this Treaty and subsidiary instruments and to adjudicate upon such disputes as may be referred to it” ( SADC Treaty, 1992, Article 16.1). Perhaps one of its most striking promises was in Article 4(c) which bluntly states that ‘ SADC and its Member States shall act in accordance with the principles of human rights, democracy, and the rule of law’. The implication is that all member States could indeed be held accountable should any of the said principles in Article 4(c) be violated. According to the Protocol on the SADC Tribunal, subject to the exhaustion of local remedies, all companies and individuals may approach the Tribunal to seek remedy if and when a member State has infringed on their rights (Article 15).

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Of Tanzania’s cybercrimes law and the threat to freedom of expression and information

daniel_marariAuthor: Daniel Marari
LLM, International Human Rights Law, Lund University, Sweden

On May 8th, 2015 a press release revealed that the Tanzanian President, Jakaya Kikwete, has signed the controversial Cybercrimes Bill which seeks to criminalize acts related to computer systems and information and communication technologies and to provide for a system of investigation, collection and use of electronic evidence. The said law has serious implications for constitutional and international human rights, particularly freedom of expression and information online and the right to privacy. The most controversial provisions relate to criminalization of sharing of information, extensive police powers of search and seizure, surveillance without judicial authorization as well numerous vaguely defined offences.

It is important to note that that freedom of expression is one of the fundamental aspects of human life. As human beings, we need freedom to develop and share thoughts or ideas about things that happen and influence the way we live. Freedom of opinion, expression and information encourages free debate and plurality of ideas which is important for development of any society. More importantly, these rights are internationally recognised human rights. They are engrained in the Universal Declaration of Human Rights 1948 (art.19), the International Covenant on Civil and Political Rights, 1966 (art.19) and the African Charter on Human and Peoples Rights 1981 (art.9), all of which have been ratified by Tanzania.

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In the absence of democratic principles, tyranny reigns

thato_motaungAuthor: Thato Motaung
Researcher, Centre for Human Rights, Faculty of Law, University of Pretoria

International Day of Democracy: 15 September 2014

“You may choose to look the other way but you can never say again that you did not know.” – William Wilberforce​

When the world celebrated the International Day of Democracy (15 September 2014), I reminded myself of some of the key tenets of democracy, namely: free and fair elections, the rule of law, the upholding of fundamental rights and freedoms — to name but a few. The mention of the rule of law in particular raised red flags in my mind as I pondered where to place Eritrea when choosing between definitions of democracy and autocracy.

The rule of law and the respect for human rights stand as prerequisites to realising democratic statehood. The laws which govern a state are enshrined in a constitution; a constitution sets the parameters for lines that cannot be crossed; the principles by which a state should conduct itself. Where then does one begin to place or reference these barriers in a country with no constitution? Who has legitimacy in decision-making? What legal standards are used? The lines continue to blur…

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