94 mental health patients in Gauteng: A lesson for State parties to the CRPD – A classic case of a poor deinstitutionalisation process
Posted: 28 March, 2017 Filed under: Patricia Mwanyisa | Tags: 94 mental health patients, adequate standards of living including adequate food, Centre for Human Rights, clothing and housing, Convention on the Rights of Persons with Disabilities, CRPD, deinstitutionalisation, disability rights, freedom from torture or cruel, Gauteng, Health Ombud, human rights, human rights-based approach, ICESCR, inhumane or degrading treatment, mental disability, Mental Health Care Act, NGO, provincial government, psychosocial, right to highest attainable health, right to independent living and inclusion in society, right to life, South Africa Leave a comment
Author: Patricia Mwanyisa
Consultant – Human Rights and Access to Justice
As South Africa took time to celebrate its annual human rights day on March 21, this year (2017) the deaths of the 94 patients in Gauteng Province in a space of under a year should not be forgotten. The provincial government of Gauteng took the decision to remove persons with psychosocial and intellectual disabilities from government health institutions to reduce spending on their healthcare. The implementation process was poorly planned, rapidly executed and chaotic. The move had fatal and disastrous consequences as it not only contravened national and international law, but also proved cruel and inhumane. The record shows 94 lives were lost, families have been severely traumatised and a healthcare support system regardless of whether it was the most ideal or not was shaken to its knees.
Apart from violating domestic law – the National Health Act 61 (2003) and the Mental Health Care Act 17 (2002)) – as a State party to the UN Convention on the Rights of Persons with Disabilities (CRPD) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), among other international instruments, there are several frameworks that were contravened by South Africa. This case provides an opportunity for some serious learning for South Africa (SA) as well as other African States. Learning from previous mistakes is vital for progress. Focus should be directed on how to avoid making similar mistakes in the future. It is probably more important to provide guidance to State parties or governments when they have made mistakes as opposed to the naming and shaming – particularly after the fact. To be productive, however requires the state or those in power to accept responsibility, acknowledge their mistakes and be receptive to the guidance. Ultimately, objectively and substantively unpacking the critical aspects or points at which things went wrong in the Gauteng saga from an international human rights perspective would be beneficial for the planning and implementation of these types of projects or programmes in the future.
South Africa’s intention to withdraw from the Rome Statute of the International Criminal Court: Time to seriously consider an African alternative?
Posted: 28 October, 2016 Filed under: Rodger Owiso | Tags: Africa, African Charter, African Charter of Human and Peoples’ Rights, African Court of Justice and Human Rights, African Union, AU, Election and Governance, frican Charter on Democracy, human rights, ICC, impunity, International Criminal Court, International Criminal law, justice, Kenya, Malabo Protocol, Omar Al-Bashir, Rome Statute, South Africa, Sudan, Uhuru Kenyatta, United Nations, United Nations Security Council, William Ruto 1 Comment
Author: Rodger Owiso
LLB – Nairobi, PGD Law – KSL
While the decision by South Africa to commence the formal process of withdrawing from the Rome Statute of the International Criminal Court is shocking, honest observers will admit it was not entirely unforeseen. African countries through the African Union (AU) have long voiced misgivings about the International Criminal Court (ICC) and it was just a matter of time before the usually slow-moving AU clock started ticking. The AU had earlier this year urged its members to consider withdrawing from the Rome Statute.[1] This was triggered by the refusal by the United Nations Security Council and the ICC to accede to the AU’s requests for suspension or termination of the cases against Sudan’s president Omar al-Bashir and his Kenyan counterpart Uhuru Kenyatta and his deputy William Ruto.
While South Africa’s decision should be condemned, nothing much is likely to come of such condemnation. Treaties are a product of state consent[2] and it follows that withdrawal is equally a unilateral act of the state.[3] Even if an argument could be advanced against such unilateralism, the process is still a political one which rests almost entirely with the political class, at least in imperfect democracies. South Africa’s move is likely to embolden other African countries to commence similar processes. South Africa is Africa’s biggest economy and the AU’s largest member contributor. It is also arguably one of Africa’s better-off imperfect democracies. For these reasons, it is often the case in continental affairs that other African countries hold on to their cards until South Africa plays after which they emerge from their cocoons and play theirs in more or less similar fashion. With the possible exception of ‘righteous’ Botswana and perhaps Mauritius that considers itself African only when the situation suits it, the possibility that other African countries will follow South Africa’s lead on the ICC cannot be ruled out. In light of such possibility, how then does Africa assure its citizens that the fight against impunity as is entrenched in its founding instrument[4] is still top of its agenda, if at all it ever was?
International human rights advocacy and the abolition of irreducible life imprisonment in Zimbabwe
Posted: 13 September, 2016 Filed under: Andrew Novak | Tags: Constitutional Court of Zimbabwe, Death Penalty Project, domestic law, European Court of Human Rights, foreign jurisprudence, global jurisprudenc, human rights, international death penalty litigation, international human rights norms, Judicial Committee of the Privy Council in London, Justice Bharat Patel, law reform, life without parole, Makoni v. Commissioner of Prisons, parole, Prisons Act, rehabilitative criminal sentences, South African Constitutional Court, Supreme Court of Namibia, Tendai Biti, transnational human rights, transnational human rights advocates, Veritas Zimbabwe, Zimbabwe Leave a comment
Author: Andrew Novak
Adjunct Professor of Criminology, Law, and Society at George Mason University
On July 13, 2016, the Constitutional Court of Zimbabwe (ConCourt) found that life imprisonment without the possibility of parole was unconstitutional as it violated the rights to equal protection and human dignity and the prohibition on cruel and degrading punishment. The decision, Makoni v. Commissioner of Prisons, is undoubtedly a victory for human rights, due to the dismal state of prison conditions in Zimbabwe and the emotional and psychological harm caused by indeterminate sentences. In its decision, the ConCourt cited a wide range of jurisprudence from foreign and international courts, including the European Court of Human Rights, South African Constitutional Court, Supreme Court of Namibia, and the Judicial Committee of the Privy Council in London to discern a global trend toward rehabilitative criminal sentences. Many of these foreign and international legal sources were brought to the ConCourt’s attention by transnational human rights lawyers themselves in their Heads of Argument, underscoring the important role that advocates play in the diffusion of international human rights norms.
The upcoming Hate Crimes Bill: A welcome development in the fight against xenophobia and hate crimes in South Africa
Posted: 5 August, 2016 Filed under: Gideon Muchiri | Tags: Abubacarr Saidykhan, belief, birth, constitution, crime, culture, disability, Equality Act, ethnic or social origin, gender, gender identity, Hate Crimes Bill, hate speech, human rights, language, law, legislation, monitoring mechanism, National Prosecution Authority, nationality, NPA, occupation, police, Promotion of Equality and Prevention of Unfair Discrimination Act, race, religion, sex, sexual orientat, South Africa, South African Constitution, victim, xenophobia 1 Comment
Author: Gideon Muchiri
LLD student, Department of Jurisprudence, University of Pretoria
The Department of Justice and Constitutional Development (DOJCD) of South Africa is working on the Prevention and Combating of Hate Crimes Bill,[1] due for tabling in Parliament in September 2016. This Bill, if enacted into law, will strengthen the role of law enforcement officials including the police, the National Prosecuting Authority (NPA) and courts in holding perpetrators of hate crimes, including xenophobic conduct, legally accountable for not only the criminal acts committed, but also for the hate motive. The new law will foster a rights-based approach to enhancement of the rights of victims and thus send a clear and unequivocal message to the society that crimes motivated by hate and xenophobia will not be tolerated in South Africa and are subject to punishment.
Economic, Social and Cultural Rights under the 1999 Constitution of the Federal Republic of Nigeria and the enforceability problem
Posted: 8 July, 2016 Filed under: Olika Daniel Godson | Tags: Africa, African Charter on Human and Peoples' Rights, Apex Court, constitution, constitutional provisions, economic, enforceability, enforcement, human rights, International Covenant on Economic Social and Cultural Rights, law, legislation, litigation, Nigeria, Supreme Court 1 Comment
Author: Olika Daniel Godson
Student (LLB) Faculty of Law, University of Lagos
The 1999 Constitution of the Federal Republic of Nigeria (hereinafter referred to as the “Constitution”) provides for economic, social and cultural rights in rather grand and lofty terms in form of the Fundamental Objectives and Directive Principles of State Policy in Chapter II of the Constitution. These rights are however denied enforceability under the Constitution as it prefers to see them as goals and objectives which the Government is to strive to attain. This denial of enforceability of these rights contained in this Chapter of the Constitution poses a major problem to human rights activism in the Country, as the specific rights contained in that Chapter of the Constitution are worthy of enforcement in this age and time. Some of those rights include; cultural, labour, economic, political, environmental and educational rights. It therefore comes, now and again, to the fore that some of these rights are not being enforced in the country. This article attempts to analyse the enforceability problem and address some strategies for enforcement.
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 Leave a 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.
