Has the COVID-19 pandemic exposed the fragility of South Africa’s constitutional democracy?
Posted: 23 July, 2020 Filed under: Paul Mudau | Tags: apartheid-era, Bill of Rights, Collins Khoza, constitutional democracy, coronavirus, COVID-19, COVID-19 pandemic, Cyril Ramaphosa, democracy, Disaster Management Act, extraordinary legal measures, Gary Pienaar, isolation measures, lockdown, lockdown regulations, National Disaster Management Centre, nationwide lockdown, pandemic, PCCC, South Africa, state of emergency, Table of Non-Derogable Rights 2 Comments
Author: Paul Mudau
PhD Candidate and Researcher, School of Law, University of the Witwatersrand
On 15 March 2020, and while owing to medical and scientific advice and with the aim of controlling and managing the invasion and the spread of the invisible enemy, the Coronavirus (COVID-19) pandemic, the President of South Africa Cyril Ramaphosa introduced extraordinary legal measures, placed the country under a nationwide lockdown and sealed its international borders. The lockdown took effect from 27 March 2020. The President simultaneously declared a national state of disaster in terms of section 27 of the Disaster Management Act (52 of 2002). Apart from the 1996 Constitution, the Disaster Management Act is applicable during lockdown together with other relevant statutes such as the Criminal Procedure Act 51 of 1977 and Prevention of Combating and Torture of Persons Act 13 of 2013. This, was followed by a series of announcements and impositions of numerous lockdown Regulations and Directives that require hygienic practices, physical and social distancing, quarantine, and isolation measures.
Democracy in times of COVID-19: a time for introspection?
Posted: 8 April, 2020 Filed under: Eduardo Kapapelo | Tags: Angola, basic services, China, COVID-19, democracy, global pandemic, government, health systems, human rights, Hungary, inequality, Institutions, lockdown, massive corruption, militarised society, national lockdowns, pandemic, political system, politics, WHO, World Health Organization Leave a comment
Author: Eduardo Kapapelo
Centre for Human Rights, University of Pretoria
My father used to say ‘politics must be conducted in a country which is open, a country which has the space for deliberation and opposing views’. He added that ‘politics must be conducted in a country which is mature’. We find ourselves in challenging times, times in which the openness and maturity of our countries are being tested.
A scale we can use to test the openness and maturity of our institutions is to interrogate (i), the nature our institutions; and (ii) the quality of our institutions. In regards to their nature we can reflect on how they are structured, what they look like on paper, and how they actually function in reality. As regards quality, we can reflect on how institutions respond to stress – how they respond to the demands of the people and whether they are mature enough to understand that when individuals take to the streets in the exercise of their human rights demanding better quality of life, they are not challenging the State, but rather exercise their constitutional right to be heard.
Where is democracy? Reflections on the ascendancy of Mnangagwa as president of Zimbabwe
Posted: 27 November, 2017 Filed under: Charles Ngwena | Tags: Ayi Kwei Armah, constitution, coup, democracy, dictatorship, elections, Emmerson Mnangagwa, ethnic cleansing, Gukurahundi, Matebeleland, military, military intervention, national army, political change, Robert Mugabe, white minority rule, ZANU-PF, Zimbabwe, Zimbabwe Defence Force 2 Comments
Author: Charles Ngwena
Professor of Law, Centre for Human Rights, University of Pretoria
What seemed unimaginable has happened. After an uninterrupted ‘reign’ of 37 years, Robert Mugabe, the de facto emperor of Zimbabwe, has ‘resigned’ from office. There has been genuine jubilation not least among those who have been at the receiving end of Mugabe’s increasingly despotic, corrupt and dysfunctional governance – the majority of Zimbabweans. Emmerson Mnangagwa has taken office as Mugabe’s successor. It is a historic moment. Since attaining independence in 1980, Zimbabweans have only known Mugabe as their political supremo – initially as prime minister and latterly as president. The fact of Mugabe’s departure from office, alone, has raised hopes that we might be at the cusp of a compassionate, fairer, humane and democratic Second Republic. At the same time, the clouds are pregnant with contradictions, counselling us not to throw caution aside even as we pine for change. Why is this?
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.
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.
Biko and the right to happiness
Posted: 24 March, 2016 Filed under: Saul Leal | Tags: apartheid, Biko's legacy, black consciousness, Black Consciousness Movement, civil society, collective, Constitution of South Africa, democracy, equality, freedom, judicial system, material goods, one man one vote, onstitutionalism, plural society, right to happiness, South Africa, spiritual poverty, Stephen Bantu Biko, struggle 7 CommentsAuthor: 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]
Rising against the silencing of the SADC Tribunal: Tanzania
Posted: 5 June, 2015 Filed under: Gertrude Mafoa Quan | Tags: democracy, dispute settlement, good governance, human rights, human rights violations, inter-State disputes, President Jakaya Kikwet, Protocol on the SADC Tribunal, rule of law, Rulings of the Tribunal, SADC, SADC Treaty, SADC Tribunal, South African community, Tanzania, watchdog Leave a comment
Author: 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).
Of Tanzania’s cybercrimes law and the threat to freedom of expression and information
Posted: 25 May, 2015 Filed under: Daniel Marari | Tags: African Charter of Human and Peoples’ Rights, bloggers, criminal, Cybercrimes Bill, cyberlaw, democracy, democratic society, digital communication, electronic communications, European Court of Human Rights, European Union, freedom of expression, freedom of expression and information, human rights, human rights abuses, human rights defenders, information, international treaties, Jakaya Kikwete, journalists, privacy, right to privacy, Tanzania, Tanzanian Constitution, Universal Declaration for Human Rights 4 Comments
Author: 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.
In the absence of democratic principles, tyranny reigns
Posted: 23 September, 2014 Filed under: Thato Motaung | Tags: autocracy, constitution, democracy, Eritrea, freedom, International Day of Democracy, national service, rule of law, tyranny 3 Comments
Author: 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…
A deadly blow for women’s rights in Lesotho
Posted: 19 June, 2014 Filed under: Bamisaye Olawaye Oyetola | Tags: ACHPR, African Charter of Human and Peoples’ Rights, Basotho, CEDAW, chieftainship, constitution, Convention on the Elimination of all forms of Discrimination against Women, customary law, democracy, human rights, ICECSR, inheritance, International Covenant on Economic, International Covenant on Economic Social and Cultural Rights, Kingdom of Lesotho, Lesotho, women's rights 30 Comments
Author: Bamisaye Olawaye Oyetola
LLM Candidate, Human Rights and Democratisation in Africa, Centre for Human Rights, University of Pretoria
This article is a result of field research in Lesotho conducted from 5-12 April 2014.
The Court of Appeal of Lesotho (apex court) gave a decision that will make the hearts of all human rights defenders bleed. The decision is a setback to the fight for equality and for the recognition of women’s rights as human rights.
The case in question is that of SENATE GABASHEANE MASUPHA V. THE SENIOR RESIDENT MAGISTRATE FOR SUBORDINATE COURT OF BEREA & OTHERS. (SENATE’S CASE). The judgment was delivered on 17 April 2014.
The facts of the case in brief are; the appellant is the first daughter and only legal child of the deceased chief in Lesotho. Upon her father’s death, the mother assumed the chieftainship position of the deceased. And not too long, the mother passed on and the appellant sought to inherit the chieftainship of her father which devolved to her late mother, she was denied her right. Her half-brother from another woman who her father had not legally married will be entitled to the said title, based on the fact that women are not allowed to succeed their father with regards to chieftainship matters under the customary law of the Basotho people.
The appellant angered by this discriminatory practice, challenged it at the constitutional court but did not succeed; she appealed the decision at the apex court to enforce her right to chieftainship but also had no success.
