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?
20 years after the TRC: Are we any the better?
Posted: 18 August, 2016 Filed under: Thabang Mokgatle | Tags: African Charter on Democracy, Amnesty Committee, apartheid, conflict, Constitutional Court of Uganda, Desmond Tutu, El Salvador, Human Rights Violations Committee, justice, Khulumani Support Group, maximalists, minimalists, Mpho Tutu, Patricia Campbell, peace, pragmatics, rainbow nation, reconciliation, Reparation and Rehabilitation Committee, retribution, rule of law, social intervention, South Africa, survivors, TRC, truth, Truth and Reconciliation Commission, Tshepo Madlingozi, victims 2 Comments 
Author: Thabang Mokgatle
Candidate Attorney, Rushmere Noach Incorporated, Port Elizabeth, South Africa
“We are looking to maintain not retribution but reparation; we are seeking room for humanity rather than revenge”
– Desmond Tutu, First hearing of the TRC in April 1996
15 April 2016 marked the twentieth anniversary since the Truth and Reconciliation Committee (TRC) first commenced in South Africa. In reflecting on the occasion, the words of Desmond Tutu above quoted have unveiled two pertinent questions: Did post-apartheid South Africa, in 1996, require a moment for justice or for reconciliation? Would the pursuit of the former in the first instance, not have led to the achievement of the latter? There is a growing sense that in prioritising the ‘rainbow nation’, the TRC substantially undermined the realisation of justice (institutional justice through the court system). Victims of apartheid-era crimes have supposedly been short-changed, leaving much to be desired since the TRC first convened.
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.
The right to happiness in Africa
Posted: 13 July, 2016 Filed under: Saul Leal | Tags: Africa, apartheid, Christopher Mbazira, colonialism, constitution, David Bilchitz, economic development, Egypt, employment, Frederick Fourie, freedom, Ghana, Justice Albie Sachs, Leopold Sadar Senghor, Liberia, liberty, Namibia, Nigeria, racism, right to happiness, right to life, safety, security, South Africa, Steve Biko, Stu Woolan, Swaziland 3 Comments
Author: Saul Leal
Vice-Chancellor Postdoctoral Fellow, Institute for International and Comparative Law in Africa (ICLA)
Leopold Sedar Senghor said: emotion is African.[1] This emotion has been channeled to constitutions. Happiness is a core value in many African constitutions. It was explicitly mentioned in Liberia, Namibia, Ghana, Nigeria, Swaziland, and Egypt.
Article 1 of the Constitution of Liberia, 1986, proclaims that all free governments are instituted by the people’s authority, for their benefit, and they have the right to alter and reform it when their safety and ‘happiness’ require it.[2] The preamble of the Egyptian Constitution, 2014, cites ‘a place of common happiness for its people’. The Namibian Constitution, 1990, assures the right ‘to the pursuit of happiness’. In this regard, Frederick Fourie defends the preamble of the Namibian Constitution, explaining that it is coloured by the struggle against colonialism and racism; that it is built around the denial of the ‘right of the individual life, liberty and the pursuit of happiness’ by colonialism, racism and apartheid.[3]
Uganda: Why the Constitutional Court should rule on the right to health
Posted: 3 June, 2016 Filed under: Michael Addaney | Tags: African Court of Justice and Human Rights, anemia, child birth, constitution, Constitutional Court of Uganda, diabetes, doctrine of political question, duty to fulfil, duty to respect, government health facilities, hepatitis, Kenya, malaria, maternal health, maternal mortality, obligation to protect, public health, South Africa, Supreme Court, Uganda, universal human rights 2 Comments
Author: Michael Addaney
Senior Research Assistant, University of Energy and Natural Resources, Ghana
A case currently before the Constitutional Court of Uganda is providing an interesting test for how far courts can go in protecting basic human rights. Human rights are rights inherent to all human beings. Every person is equally entitled to them without discrimination. They are interrelated, interdependent and indivisible.
Universal human rights are often guaranteed by law through treaties and various sources of international law which generally oblige governments to respect, protect and fulfill human rights and fundamental freedoms of individuals or groups.
Apart from international obligations, countries have various ways of entrenching human rights. Most contemporary constitutions entrench basic human rights. Such constitutions include the 1996 Constitution of South Africa and the 2010 Kenyan Constitution. Likewise, the 1995 Constitution of Uganda contains the Bill of Rights that guarantees fundamental freedoms and basic rights including the rights to health and to life.
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]
