The South African local government elections and the COVID-19 pandemic

tariro-sekeramayi
Author: Tariro Sekeramayi
Centre for Human Rights, University of Pretoria

South Africa’s local government elections, to elect the municipal tier of government, are constitutionally mandated through section 159 of the Constitution of South Africa to take place every five years. These elections were scheduled to take place towards the end of 2021 and have been the subject of great deliberation in the nation. Conducting elections during a pandemic has been the subject of much debate on the continent and worldwide, with certain countries choosing to continue with elections amid the pandemic and others choosing to postpone their elections amid concerns of the risks involved. Nations on the continent that have held elections during the pandemic include Zambia, Malawi, Ghana, Rwanda, Uganda and Côte d’Ivoire. Given the extent of the risks of holding elections during the pandemic and mixed calls on whether to postpone or continue with elections in the nation, the Independent Electoral Commission (IEC) of South Africa ordered an inquiry commission to determine the nation’s capacity to hold free, fair elections during the initially scheduled period in October.

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Constitutionalisation of public service and administration in Africa

Author: Paul Mudau

Senior Lecturer in the Department of Public, Constitutional and International Law at the University of South Africa

‘Modern African constitutions’ produced by the recent wave of constitutional reforms that swept across Africa generally transpired in the constitutionalisation of public service and administration. Public administration is any institution with operations aimed at applying, enforcing or fulfilling public policies and programmes or undertaking public service duties as well as regulating the conduct of public servants. Public service is any service or public-interest activity provided by government under the authority of the relevant administration.

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Africa is bleeding: The Anglophone crisis in Cameroon

Author: Mary Izobo
International Human Rights Lawyer and Gender Advocate

Introduction

The failure to promote the rule of law and democracy creates an environment for conflict, often exacerbated by marginalisation, discrimination,  inequality and inequity. The bitterness of citizens roused by violence is usually entrenched in lack of basic services and public infrastructure, corruption, lack of personal and economic security and lack of transparency and accountability of government to its citizens.  Thus, the greatest problem of African countries is their failure to protect the economic, political, social, and cultural concerns of its people. This year, 2020 has been marred by a series of human rights violations from Lagos to Kumba, Africa is bleeding.

On 24 October 2020, at least eight children were killed, and dozens wounded by a group of armed men at the Mother Francisca International Bilingual Academy  Kumba, in the Southwest Region of Cameroon. There has been a lot of attacks in Cameroon since 2016, however, these attacks have intensified dramatically.

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Has the COVID-19 pandemic exposed the fragility of South Africa’s constitutional democracy?

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.

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Democracy in times of COVID-19: a time for introspection?

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.

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Where is democracy? Reflections on the ascendancy of Mnangagwa as president of Zimbabwe

Charles NgwenyaAuthor: 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?

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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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