South Africa apartheid lawsuit – The end of the epopee?

Marek Jan WasinskiAuthor: Marek Jan Wasinski
Assistant Professor and Chair of Public International Law and International Relations – Faculty of Law and Administration, University of Lodz, Poland

On 21 August 2013, the 2nd United States (US) Circuit Court of Appeal reached a decision on a decade long putative class action suits brought on behalf of individuals harmed by the South African apartheid regime. The suits were originally initiated by two groups of plaintiffs, the Balintulo (or Khulumani plaintiffs) and the Ntsebeza plaintiffs against corporate defendants (namely: Daimler, Ford, and IBM). Plaintiffs asserted that the South African subsidiary companies of the defendants aided and abetted violations of customary international law committed by the (then) South African government. It was claimed inter alia that subsidiary companies had sold cars and computers to the South African government, thus facilitating race-based depredations and injustices, including rape, torture, and extrajudicial killings. A legal basis for the US court’s jurisdiction was the Alien Tort Statute (ATS), a famous part of the Judiciary Act of 1789, conferring federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”. The ATS remained dormant nearly for two centuries until it spectacularly entered the stage before 2nd US Circuit Court of Appeal in a Filartiga v Pena-Irala wherein Paraguay citizens were allowed to sue a former Paraguayan police officer allegedly involved in an extrajudicial killing of a Paraguayan dissident’s son in Paraguay. The decision in Filartiga led to a dramatic rise in international human rights litigation in US courts, involving not only suits against private individuals but also against corporate entities for aiding and abetting violations of the law of nations. There were instances of such litigations ending with profitable settlements. For example, in Abdullahi v Pfizer Inc., Pfizer has reportedly agreed to pay $75 million as compensation for illegal clinical trials in Nigeria. Similarly in Wiwa v Shell Oil Co., faced with claims of complicity in murder, torture, and other crimes related to oil production in the Niger Delta, the Shell provided $15.5 million as compensation to those affected.

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Right to stand for elections as an independent candidate in the African human rights system: The death of the margin of appreciation doctrine?

adem_abebeAuthor: Adem Kassie Abebe
Post-doctoral Fellow, University of Pretoria

Although the right to stand for elections is recognised as an essential aspect of the right to political participation, international human rights law does not specifically address the right of individuals to stand for elections as independent candidates, for example, without being a member of and sponsored by a political party. In fact, the only implied reference to independent candidacy is to be found in General Comment No 25 of the United Nations Human Rights Committee, the organ in charge of monitoring compliance with the International Covenant on Civil and Political Rights, on the right to participation. The Committee observes that “[t]he right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of parties or of specific parties” (paragraph 21). What constitutes an “unreasonable” limit to the right of persons to stand for election is not apparent. As a result of the lack of a clear rule, the law and practice in relation to independent candidates varies across borders. In some countries, individuals must be members of political parties to be able to stand for election. In others, they may stand for elections as independent candidates. In some others, independent candidates are allowed in relation to local elections but not in relation to parliamentary and presidential elections.

It is within this context of uncertainty that the African Court had to decide whether the ban on independent candidacy in Tanzania was compatible with the right to equality, the right to political participation, and the right to association in the African Charter on Human and Peoples’ Rights (Tanganyika Law Society and The Legal and Human Rights Centre and Reverend Christopher Mtikila v The United Republic of Tanzania, Applications 009 and 011/2011). This case is interesting in many respects. Firstly, the case presented the African Court the first opportunity to address the margin of appreciation doctrine. Secondly, the application presented a test case to evaluate the trajectory of the African Court towards the jurisprudence of other international and regional human rights organs on similar issues. Thirdly, Tanzania is not the only African country that bans independent candidacy. The decision of the Court therefore has consequences for many other African countries.

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Unmanned Aerial Vehicles: Call for an African Union resolution on the use of drones in Africa

Benjamin Ng’aruAuthor: Benjamin Ng’aru
Legal Assistant, Local Authorities Pensions Trust; Volunteer Programmes Assistant, Legal Exchange Centre, Nairobi, Kenya

On 15 March 2013 Chief Judge Merrick Garland of the United States (US) Court of Appeals Circuit in American Civil Liberties Union Foundation v Central Intelligence Agency (CIA) dismissed the CIA’s standard Glomar response to its expanded and clandestine programme to carry out targeted killings on suspected terrorist. Barely two months later, a High Court in Peshawar, Pakistan, held that drone strikes (and their continued use) “are a blatant violation of Basic Human Rights and are against the [United Nations] (UN) Charter, the UN General Assembly Resolution …and a violation of the sovereignty [of Pakistan]”. Whereas not fully specific on the human rights instruments violated, these judicial pronouncements point to an increasing dissatisfaction by the international community on the lack of a concise and regulated use of the “CIA’s angry birds”.

This note seeks to merely highlight possible violations of various rights including the right to life, right to fair trial as well as the right to privacy, which are all enshrined in the African Charter; and call upon the African Union (AU), through its various organs, to promote more transparency on the use of drones and foster the enactment of a continental regulatory framework to govern the use of Unmanned Aerial Vehicles by western nations on African soil.

The use of drones in African’s airspace has been on a steep rise. The latest documented incident was on 27 May 2013 when Al-Shabaab allegedly shot down a UAS Camcopter S-100 near the town of Buulo Mareer, southern Somalia. The London based Bureau of Investigative Journalism estimates that over 200 persons, mostly non-combatants, have been killed by drone strikes in Somalia since 2003. American drone support bases have been reportedly set up in Arba Minch (Ethiopia), Seychelles, Camp Lemonnier (Djibouti) and recently in Somali’s shell-crated international airport in Mogadishu. A 2012 study by Stanford Law School and New York University’s School of Law indicated that there were more civilians and innocent residents killed in the drone strikes than militants throughout the period of the drone program.

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Homosexuality v. homophobia, which is criminal?

joelle_dountioAuthor: Joelle Dountio
PhD candidate, Faculty of Law, University of Pretoria

Religion, traditional cultural beliefs and law are all used by humans to fuel hatred, stigma, and discrimination towards homosexuals. The rights to equality, non-discrimination and freedom from torture, cruel, inhuman and degrading treatment as upheld by the International Bill of Rights and other human rights instruments are, for the most part, all recognised in the constitutions and other national laws of most African countries.  However, 36 of the 54 African countries have punitive laws on homosexuality. Meanwhile, homosexuality is a sexual orientation and a prohibited ground for discrimination under international human rights law (Toonen v. Australia).

Historically, religion has been used to justify some of the worst atrocities committed against human beings. Some of these atrocities include: slavery, the holocaust, apartheid, racism and terrorism. Today, the Bible is used to justify homophobia based on the famous kingdoms of Sodom and Gomorrah. The question I ask is, does the Bible really mean that we should kill these people as is happening today? And even if it does mean this, what about other practices for which the Bible says people should be killed? This Bible says married women who have sexual relations outside their marriage should be killed. The Bible says we should sell all we have and give the money to the poor. The Bible says we should not make carved images of anything in heaven. Why do Christians not apply these? Apparently man chooses to follow only those sections of the Bible which suit him and enable him to meet his selfish goal irrespective of the consequences to others. Is this not hypocrisy?

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