South Africa
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People power is China’s great untapped resource
By Frances Eve, Network of Chinese Human Rights Defenders (CHRD) and Cathal Gilbert, World Alliance for Citizen Participation, CIVICUS
From 3-5 September, the leaders of Brazil, Russia, India, China and South Africa met at the ninth BRICS summit. The venue was Xiamen - a gleaming port city which symbolises China’s rise as the new economic and political force in the world. It is also a fitting venue to mark the continued emergence of BRICS as a bloc with some serious geopolitical heft.
But what does BRICS mean for Chinese people and how can they have any say in these annual meetings, which bring together heads of state from 5 of the most prosperous and populous emerging economies?
These are uncomfortable questions for a group of leaders who, thus far, have not sought any meaningful inputs from their citizens on the future direction of BRICS. They are particularly awkward questions for host, China, where civil society activists, human rights lawyers, and others who seek to have a say in tackling China’s 21st century problems are systematically repressed by a small elite determined to hold on to power.
Regular monitoring of the space for civil society by the CIVICUS Monitor and the China Human Rights Briefing shows the freedoms of association, peaceful assembly and expression are systematically curtailed in China. These research tools show that civic space is ‘repressed’ in China, indicating that citizens are not able to safely and fully exercise their fundamental rights, namely to associate, peacefully assemble and express themselves. Based on these indicators, the state of civil society rights in China is the lowest amongst BRICS countries and in the bottom quarter for all UN member states.
Since 2014, a series of restrictive new laws on national security, non-profit organisations and anti-terrorism have been passed, coinciding with a sustained escalation of detentions of dissidents. The latest of these is China’s new National Intelligence Law, which gives authorities “sweeping powers to monitor and investigate foreign and domestic individuals and institutions”. The Law on the Management of Overseas NGO Activities, which allows the police to control CSOs' funding sources, staffing and activities, came into force on the 1st of January this year.
Aside from laws, China has relentlessly pursued its critics through mass arrests of lawyers and activists in 2015, the shutdown of websites promoting peaceful dialogue and deploying riot police to prevent a demonstration on poor air quality in Chengdu. The list goes on.
The Chinese authorities’ distaste for free speech and human rights activism was perhaps best displayed following the death in July 2017 of China’s only Nobel Peace Prize Laureate Liu Xiaobo. Rather than allow Xiaobo’s colleagues and friends to mourn, the authorities tightly controlled his burial at sea to prevent a commemoration, arrested activists after his funeral and orchestrated the subsequent disappearance of his widow, Liu Xia, whom they have held in arbitrary detention since 2010.
None of these issues were discussed at the summit in Xiamen. The agenda was dominated by concerns of international security, especially as North Korea tested a hydrogen bomb on the first day of the summit, global trade and the rebalancing of the global financial systems.
But if any of this is to be achieved, and particularly if BRICS is to realise its goal of “strong, sustainable, balanced and inclusive economic growth”, its leaders will have to start listening to their people. Fans of China’s spectacular economic growth may say that political reform is not necessary but history shows us that silencing your citizens is always a strategy with a limited shelf life. Either education and prosperity will rise to levels where citizens demand a proper say, or exclusion and frustration will spill over onto the streets.
China’s leaders are smart enough to know that even their industrial-scale repression is only partly successful. Indeed, China does allow for tens of thousands of protests to take place across the country every year. By adopting this pressure valve strategy, China allows citizens to let off steam while it simultaneously goes after the organisers or those who share information. This month’s sentencing of a citizen journalist to four years in prison for documenting labour protests is one such example of this tactic.
Deep down, China’s leaders know that a state can never completely kill the spirit of activism and resistance. Nowadays, the rising influence of the internet, despite being a tool of repression and rigidly controlled and monitored in China, continues to make the spread of ideas and calls to action easier.
BRICS may seem a strange place for China to begin the journey towards a more open society. But within the BRICS framework, China can learn from South Africa, where one of the world’s most progressive constitutions is still largely intact, there is a pluralism in the media and protests take place on a daily basis. This dialogue about the merits of democracy could take place through a genuine South-South spirit of partnership, devoid of the often toxic dynamics of North-South dialogue.
An empowered and engaged civil society doesn’t just mean there will be greater checks on power. It is also a means to create innovation, social cohesion and prosperity within society, share new ideas, challenge the status quo and explore the wealth of generosity and creativity in each individual.
With almost 1.4 billion people, surely this is China’s greatest untapped resource?
Frances Eve is a Hong Kong-based researcher with the Network of Chinese Human Rights Defenders (CHRD), a coalition of Chinese and international NGOs dedicated to the promotion of human rights in China.
Cathal Gilbert is a researcher at The World Alliance for Citizen Participation, CIVICUS
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South Africa celebrates Human Rights Day but major challenges remain
As South Africa commemorates Human Rights Day tomorrow, 21 March 2018, it is an opportunity for the government now led by President Cyril Ramaphosa to situate human rights at the centre of all actions of the government in line with the constitution and address recent human rights violations.
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SOUTH AFRICA: ‘We want to live in an environment that respects women and recognises our human rights’
As part of the #16DaysOfActivism campaign, CIVICUS speaks with Amanda Nomnqa about civil society efforts to eradicate gender-based violence (GBV) in South Africa.
Amanda is the founder of SheIsBrave, a South African civil society organisation that provides mentorship and empowers young girls and women to gain independence and overcome GBV.
The 16 Days of Activism against Gender-Based Violence is an annual international campaign that kicks off on 25 November, the International Day for the Elimination of Violence against Women, and runs until 10 December, Human Rights Day.
How big a problem is GBV South Africa?
GBV is the worst pandemic South Africa continues to face. The country exhibits very high rates of GBV that affect not only women but also children and LGBTQI+ people. The social, political and economic situation so many of them live in exposes them to GBV. This violence has robbed many of their lives, freedom, dignity and more. It is a human rights violation that has a huge impact on the social and development progression of survivors.
The criminal justice system doesn’t support victims and survivors. The national police systematically fails to help them: it doesn’t channel enough resources to help victims, and the available resources are misused due to lack of expertise in using them. Analysing DNA takes them too long and many police officers don’t know how to use a rape kit properly. All this perpetuates GBV and makes the fight against it even more difficult. And there is no political will to implement measures and policies to tackle the problem.
What work does your organisation do?
SheIsBrave is an organisation led by womxn and young people founded and registered in 2018, seeking to empower girls and young women by providing formal and non-formal skills so they can successfully compete in the job market and become independent. Most GBV victims become hopeless and we want to make sure they still feel valuable, can acquire skills and can use them to improve their lives. We want them to have access to socio-economic opportunities so they can overcome situations of GBV and escape their damaging consequences.
We also support survivors by helping them get counselling. Getting professional help is very important for mental wellbeing so we want to provide that kind of help.
We also have programmes for young girls and children to teach them about GBV. We provide activities for them to work on their talents and allow them a space to express themselves. Our aim is to show them that certain situations are not normal and are wrong, and empower them so they are confident enough to speak up if they are facing such situations. We also try to equip them so they can carry on the same kind of advocacy work in the future.
We also mobilise in protest to make noise and draw attention to the scourge of GBV in our communities so that those in power finally do something about it.
What challenges do you face?
Our main challenge is the lack of financial and material resources to work with our target communities. Lack of funding has limited the scope of our work because we are forced to focus mostly on zero-budget activities. We depend on fundraising and sometimes have to contribute funds from our own pockets.
There aren’t enough funds in place to support civil society in South Africa, and most of what’s available doesn’t reach the organisations doing the work due to mismanagement and corruption. During the pandemic we saw a rise in GBV cases but the government failed to provide enough funding for shelters, medical help and legal aid to victims and survivors. Lack of government funding affected most organisations that provide support to victims. Unfortunately, this is what most organisations including ours are still going through. Organisational growth has really been limited as a result.
What will you be doing for the 16 Days of Activism campaign?
This year we will be working on the ground. We are hosting public meetings with activists working on the same issues as us. We want to bring awareness about GBV in general and femicide in particular. SheIsBrave is based in a community that considered one of the top three biggest hotspots for GBV in South Africa. So we are taking advantage of this opportunity to share information among community members on how people experiencing abuse can report cases, seek medical attention and access shelters.
We hope that as a result more people will know what to do if they need help. We want them to know that help is available and they should never shy away from reaching out.
We also hope our work will inspire other organisations working on these issues to reach out so we can collaborate in the future. If we speak in one voice, we will be more consistent and more powerful and we stand a better chance of making the government and other stakeholders see that they must urgently address the problem.
We are aware that on this date many other organisations are mobilising to push the government to enact better laws and implement better policies to address GBV and we hope this year our voices will be heard. We want to live in an environment that respects women and recognises our human rights. Our government should commit to helping us in our struggle.
Civic space in the South Africais rated ‘obstructed’ by theCIVICUS Monitor
Get in touch with SheIsBrave through itswebsite or itsFacebook andInstagram pages, and follow@sheisbrave_za on Twitter.
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SOUTH AFRICA: ‘We were denied the right to give or refuse our consent, so we took Shell to court – and won’
CIVICUS speaks about civil society’s recent court victory against Shell in South Africa with Sinegugu Zukulu, programme manager of Sustaining the Wild Coast (SWC). SWC is a South African civil society organisation that works with coastal communities of Eastern Mpondoland, South Africa, to protect their land, livelihoods and culture.
What inspired you to become an environmental activist?
My personal story made me become an environmental activist. I grew up on communal land, where people shared everything and people could depend on each other. People in my community had little education. I was one of the few lucky ones who were able to attend university. However, people were good at sharing. They practised ubuntu, a concept that refers to our shared humanity and the way we see our humanity reflected in each other. Among us everything is shared, from the water we drink to the land where we grow our crops.
The fact that I grew up in a community where we all took care of each other and shared everything made me who I am. As I got an education while most didn’t, I found I could use it to give back to my community. Because people in communities like mine were so poorly educated, governments could do whatever they wanted. So I decided to step up for my people and help them understand their rights and protect themselves.
It was only natural for me to focus on environmental rights, as I got my degree in environmental studies. When the government started a project to build a highway cutting through my community, I brought a case to the High Court. Unfortunately, this was not successful and we are now renegotiating to have the road rerouted.
Why is it important to protect South Africa’s Wild Coast?
All our coastal communities rely on the Wild Coast for their livelihoods. For most coastal communities, the Wild Coast is also their source of income: they sustainably profit from the environment, for instance by catching fish and selling it in villages and to tourists. The tourism industry employs many people, so this is another way in which people depend on the coastline.
Additionally, the Wild Coast holds spiritual meaning. People training to become traditional healers go to the coast to get in contact with their ancestors. We believe the ocean is our final resting place, so our ancestors lay there. Saltwater is used in most healing practices.
Due to the number and diversity of its marine species, the Wild Coast is also a marine protected area. The extraction of fossil fuel has the potential to destroy it, on top of contributing to climate change when it’s burned. So we should also protect the Wild Coast from extraction for the sake of the Earth.
What challenges did you face when campaigning against Shell?
Just like any other government, South Africa’s wants to attract investment, particularly by multinational corporations such as Shell, with which it has a great relationship. That’s why our court case set us not just against Shell but also against our government.
A big challenge was the government’s delegitimising narrative. The Ministry of Mineral Resources and Energy labelled us as ‘anti-development’. The government refused to listen to us and to have an open dialogue about Shell’s potentially negative impact on coastal communities.
We wanted to have Shell’s exploration permit revoked because we saw it as a threat to our livelihood and to a safe environment. You just need to google what happened with Shell in Ogoniland in Nigeria and you will understand our concerns. We don’t want an oil spill on our coasts.
South Africa has good environmental legislation, but much of it is lacking in implementation, so that is what the environmental movement focuses on. The law is very clear; our constitution says we have the right to a safe and healthy environment. If someone wants to do something on our land, we should be consulted, and we weren’t. We were denied the right to give or refuse our consent, so we took Shell to court – and won.
South African civil society enjoys the freedoms needed to challenge the government in court. But financial resources were critical. We had no money to travel to communities and mobilise them, so we did all our mobilisation work through social media, where we provided information, published press releases and shared videos. We had to look for a law firm that was able and willing to take this matter to court, and that would agree to take the risk even if there were not enough financial resources. Fortunately, we were able to find several legal firms that were willing to come to our rescue. These are firms that prioritise human rights issues and support litigation by Indigenous communities, and fortunately the judges required Shell and our government to pay our litigation costs.
What does this victory mean for South Africa and the environmental movement?
This victory means a lot in terms of our right to self-determination as guaranteed by the United Nations, as it made it clear that free, prior and informed consent must always be sought. It also ratified our constitutional right to a safe and healthy environment.
It is a victory not just for us but also for future generations. We are working so that their right to a safe and healthy environment will also be protected.
We are now working on a documentary about our struggle, which we plan to launch at the upcoming conference of the parties to the United Nations Framework Convention on Climate Change (COP27) in Egypt, although we lack the resources to travel there. We would love to inspire Indigenous communities elsewhere to also rise up and defend their territories. By doing so we will be ensuring life on this planet continues to be possible.
What kind of support do South African environmental activists need from the international community?
The most important thing we need right now are financial resources to continue doing our work.
We also need international partners and support. Shell is a British company, but the UK government has no problem with it going around the world searching for more fossil fuels, in the middle of a climate crisis. These first-world multinational companies are going to third-world countries to extract ever more profit at the cost of compromising our livelihoods and worsening climate change. As always, the real victims are the poorest people.
This has got to stop. Organisations from the countries where these companies come from should work with us and pressure them to stop. Corporations should move to safer energy sources; fossil fuels are not the answer anymore.
Civic space in South Africa is rated ‘obstructed’ by the CIVICUS Monitor.
Get in touch with Sustaining the Wild Coast through its website or Facebook page.
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South Africa: threats and attacks against civil society actors continue
Statement at the 52nd Session of the UN Human Rights Council
UPR Outcomes Adoption – South Africa
Delivered by Nicola Paccamiccio
Thank you, Mr President.
Mr. President, Human Rights Institute of South Africa (HURISA), the Centre for the Study of Violence and Reconciliation (CSVR) and CIVICUS welcome the government of South Africa's engagement with the UPR process.
We also welcome the decisions by the High Court and Constitutional Court in 2019 and 2021 respectively, declaring as unconstitutional the Regulation of Interception of Communications and Provision of Communication Related Information Act (RICA), which was subjected to misuse by the authorities who sometimes used it to spy on journalists. Furthermore, we welcome the 2018 Constitutional Court’ judgement reinstating the High Court constitutional invalidity of section 12(1)(a) of the Regulation of Gatherings Act 205 of 1993 for considering a criminal offence the failure to give notice or inadequate notice. We further appreciate the President Ramaphosa’s decision to return ‘The Protection of State Information Bill’, also known as the ‘Secrecy Bill’, which disproportionately infringes on the rights to the freedom of expression and access to information, to the National Assembly for consideration of his reservations about its constitutionality.
Since its last review, South Africa partially implemented one of the five recommendations relating to civic space. We welcome that South Africa accepted all 19 of the 19 recommendations it received during this cycle.
Despite these improvements, threats, intimidation and attacks against HRDs, in particular women HRDs (WHRDs) and those defending land and environmental rights, housing rights and whistleblowers, and the impunity thereof, remain a grave concern. The killing of Mama Fikile Ntshangase, the repeated attacks and killings of Abahlali baseMjondolo (AbM), of trade unionist Malibongwe Mdazo, of whistleblower Babita Deokaran and the fleeing into exile of whistleblower Athol Williams highlight the dangerous context in which all activists and human rights defenders operate.
Journalists who expose deep-rooted corruption in the security and law enforcement agencies are increasingly targeted by State and private sector spies, as seen in the bugging of journalist Jeff Wicks by officials from Crime Intelligence after his reporting about the police force and Crime Intelligence unit.
South Africa has continued to undermine the freedoms of expression and opinion through restrictive legal framework. The amended Film and Publications Act commenced in 2022 leaves the Film and Publications Board with wide discretion to decide what content is acceptable online, raising concerns that it could be used as a means of censorship for online content. Separately, the Non-profit Organisation Amendment Bill 2021, poses a big risk that the law may be used to control international funding of organisations or media that could be seen as critical of the government. We call on the government to withdraw this Bill as its compulsory registration of foreign CSOs that intend to operate in South Africa represent a threat to the full enjoyment of the right to freedom of association.
The continued use of excessive force and arbitrary arrests by security forces in response to protests is another cause for concern. Peaceful protests have been met with excessive force by police officers, including through the use of rubber bullets and teargas, which at times have led to the killing and injury of protesters and bystanders.
HURISA, CSVR and CIVICUS call on the Government of South Africa to take concrete steps to address these concerns by developing a legislative framework to protect human rights defenders in the exercise of their work, including taking urgent measures to establish a commission of inquiry into the killings, and by bringing the Non-profit Organisation Amendment Bill in line with standards on freedom of association.
We thank you.
Civic space in South Africa is rated as "Obstructed" by the CIVICUS Monitor.
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South Africa: Urgent calls for the government to act against rising killings of HRDs
CIVICUS and Human Rights Institute of South Africa (HURISA) call on the South African government to urgently denounce the ongoing killings of human rights defenders in the country and act decisively to identify the perpetrators of such heinous acts.
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South African NGO scores legal victory in limiting the influence of ‘big money’ on democracy
A South African NGO My Vote Counts recently won a court case in which it asked that political parties must be compelled to publicly reveal their sources of funds. CIVICUS speaks to Elizabeth Biney, a researcher with My Vote Counts on why they had taken this case and why this is an important victory for South Africa’s democracy
Q: Why is it important for political parties to reveal sources of private funding?
My Vote Counts believe that access to the private funding information of political parties is important and reasonably required for the effective exercise of political rights enshrined in the South African Constitution — namely, the right to vote and to make political choices. Political parties in South Africa occupy a unique and influential role in our constitutional democracy. Under our current electoral system, that is, a list system of proportional representation, only political parties determine which persons become members of the legislature as well as the national and provincial executives. These people then go on to shape public policies and the laws of the country. Given their pivotal role in the democratic functioning of the country, we cannot disassociate their activities from their funding sources.
There is also the argument to be made in advocating for the disclosure of private funding information as a deterrent to corrupt activities. Transparency in the funding of political parties is good for our democracy, broadly speaking.
Mandatory disclosures of private funding also allow us to detect and prevent possible cases of corruption and to control the influence of money in our politics. It is reasonable to anticipate that private political contributions can influence the manner in which political parties function. For instance, a political party may take a particular policy position in order to satisfy the expectations of substantial donors, at the expense of the majority that voted for it in an election. Secret funding of political parties creates the scope for and facilitates corruption.
Therefore, the disclosure of this kind of information is not only necessary to preempt future likely behavior of parties, it gives more depth and value to the right to vote. Having all the correct information available to the citizenry before they make a political choice means people are making informed choices — a voter is knowingly choosing a party and its principles and programmes. Having ratified three anti-corruption international agreements, including the United Nations Convention against Corruption, the South African government already acknowledges the relationship between political donations and corruption. The obvious next step is to put appropriate preventative mechanisms in place to guard against political corruption. One such measure is to have formal legislation or regulation that compels parties to publicly and proactively disclose their private funding information.
Q: What are the arguments by those parties who are against revealing funding sources?
Under the South African Promotion of Access to Information Act (PAIA), access to information can be refused for a number of reasons, all of which seemingly pivot on the “right to privacy”. For example, a request for information can be refused if the information contains financial, commercial or technical information of a third party. Another problem with PAIA is when the disclosure of the information “would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement”. This is particularly concerning because it essentially allows parties to enter into confidential agreements with donors in order to avoid disclosing private funding information. In any case, political parties may rely on any of these provisions to deny access to their private funding information.
Some reasonable arguments have been advanced by smaller parties that warrant consideration. Most smaller parties are concerned about the possible intimidation of their funders and subsequently the loss of financial support to compete effectively with the ruling party.
Undoubtedly the effects of funders withdrawing donations to opposition parties for fear of reprisals from a governing party may be a reasonable concern. However, this should be addressed through existing appropriate legislation. In any case, parties cannot sustain this argument since the potential threat is criminal in nature and would warrant legal action.
However, the prevailing contention (mostly by the major opposition party) is that of the right to privacy versus disclosures. For them, a disclosure regime will not only limit the rights of donors to privacy and to express their political support in secret; it limits the privacy of political parties themselves. We find this elevation of the right to privacy over the right of access to information very problematic. Privacy, like any right in the Bill of Rights, is not absolute and therefore can be reasonably attenuated. Our Constitutional Court has said as much when it affirmed that the right to privacy exists on a continuum — so the more public the space, the more it can be justifiably limited. The two rights are equally important so they need to be weighted carefully to ensure our democratic processes are responsive, accountable and transparent.
Q: What are the next steps now that you have won the court case?
The judgment will be referred to the Constitutional Court for confirmation, we will await that decision. In the meantime, we continue with our lobbying for legislative reform. The judgment was handed down after a parliamentary process had been initiated to review the current political financing landscape, with the intention of reforming it. So, there is now a parliamentary Ad Hoc Committee on the Funding of Political Parties investigating the challenges in our party financing regime. We have been engaging with them on some critical issues as well as monitoring the entire process.The Committee has produced a draft political party Bill and is accepting public comments on the Bill. We are in the process of making written and likely oral submissions on this draft Bill with the hope of improving it to meet both international best practices and constitutional standards.
Q: In your opinion, what is the state of democracy in South Africa?
This is never an easy question to answer and besides it can yield such diverse responses given its subjective nature. Personally, I think our democracy is under threat. The level of political impunity and sheer disregard for ethics and good governance, both politically and administratively is alarming. You only need to track the number of issues that civil society has taken the government and Parliament to court on to see that the protection of South Africans and our liberties are in the hands of civil society and the media.Despite the slippery slope that we find ourselves in, South Africa’s democracy will not fail just yet. We have a constitutional democracy which means that despite political and administrative attempts to circumvent our democratic rights, the Constitution is paramount and the role the judiciary in this regard cannot be under estimated. Also, South Africa has a vibrant civil society sector constantly fighting for change and we will need to work together for the broader constitutional goal of a free and democratic society.
Q: What role can civil society play in South Africa to strengthen democracy?
I think civil society is doing what it is intended to and all it can do at the present moment. We are constantly asking the difficult questions that the ordinary citizen may be too scared to ask. We are demanding accountability of our leaders and private businesses.Although government is trying to close down the dissenting spaces that we operate in, we are putting up a fight. Our democracy can only flourish if there are oversight bodies like civil society. You cannot underplay the significant role that public watchdogs play in ensuring accountability, fairness and transparency in democratic governance.
For us specifically, our role is to ensure that a few financial backers do not corrupt our political system. We want to see our democracy be as participatory as possible, and so we need to limit the influence of big money.
- Civic space in South Africa is rated as “Narrowed” by the CIVICUS Monitor
- For more information on My Vote Counts, visit the websitehttp://www.myvotecounts.org.za, see the Facebook pagehttps://www.facebook.com/myxcounts or follow them on Twitter @MVC_SA
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UN Member States must hold South Africa accountable for the escalating crackdown on human rights defenders
Statement at the 51st Session of the UN Human Rights Council
Item 6 General Debate
Delivered by Mqapheli Bonono, Abahlali baseMjondolo
Mr. President,
This Council recognises that civil society is a critical component of the Universal Periodic Review (UPR) process.
As we look forward to South Africa’s UPR in November, we cannot be silent on the killing of human rights defenders, particularly those working to defend land, housing and environmental rights, as well as corruption activists.
I address you today with all the pain I carry from South Africa as the Deputy President of Abahlali baseMjondolo, a social movement of shack dwellers fighting for the right to housing, land, and dignity of the poor.
It is my colleague, Lindokuhle Mnguni, the chairperson of the eKhenana Commune, who should be addressing you. Last month, Lindokuhle was gunned down for fighting for land and equality in South Africa. He was 28 years old. In the last six months, our movement has had to bury four of our members murdered by the police and suspected members of the ruling party.[1]
Since 2009, 24 members of Abahlali baseMjondolo were killed with only two convictions secured. I was arbitrarily detained for 20 days on fabricated charges. Land and housing defenders are increasingly at risk in South Africa.
The South Africa UPR is an opportunity for the country to address these violations, including the root causes leading to the killings of Human Rights Defenders (HRDs) with impunity.
We call on States to submit strong recommendations for South Africa to address historically unresolved issues of land, security of tenure and adequate housing; to adopt legislation that ensures the protection and promotion of HRDs and to allow Special Rapporteurs on housing and HRDs to visit the country.
South Africa is contesting membership to the Human Rights Council. It must fulfill to the highest standards its obligations as enshrined in the Constitution and under International conventions.
Thank you.
[1] For more information, see letterendorsed by more than 100 civil society organisations
Civic space in South Africa is rated as Obstructed by the CIVICUS Monitor
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Victims of human rights violations will be worst affected if South Africa exits the International Criminal Court
CIVICUS speaks to Angela Mudukuti about South Africa’s withdrawal from the International Criminal Court, the implications for human rights and justice and the work which the Southern Africa Litigation Centre is doing on this issue. Angela is a lawyer with the International Justice Programme at the Southern Africa Litigation Centre. Angela is involved in advocacy around international criminal justice issues and strategic litigation, including taking the South African government to court for failure to arrest President Bashir of Sudan
1. What do you think motivated South Africa’s withdrawal from the International Criminal Court (ICC)?
The state seems to advance a number of misplaced excuses for withdrawal in its legal papers and media statements. This includes the allegation that the ICC is targeting Africa, which is of course unfounded as evidenced by the number of self-referrals and the fact that the ICC has preliminary examinations in Afghanistan, Iraq for example. The state also alleges that its commitments to the Rome Statute are a hindrance to peace and security efforts in Africa yet this too does not make any sense as South Africa has been engaged in peace and security initiatives for several years “despite” the obligations in terms of the Rome Statute. South Africa signed the Rome Statute in 1998 and ratified it in 2000 and not once has the Rome Statute been raised as a hindrance to peace-keeping efforts. It is only since the arrival of President Omar Al Bashir in 2015 that South Africa has had problems with the ICC. Thus it cannot really be about peace-keeping as South Africa does not have to host suspected perpetrators in South Africa to successfully conduct peace-keeping activities. They have been involved in mediation efforts since former President Thabo Mbeki’s time and not once have they needed to host President Bashir in South Africa. In fact they explicitly declined to do so in 2009 when President Bashir was expected to attend the 2009 inauguration of President Jacob Zuma. It was made publically clear that President Bashir would be arrested if he came to South Africa and as such he did not come to South Africa in 2009.
The arguments of the state seem to be labouring under the misconception that withdrawal will allow them to host President Bashir, yet as made clear by article 127 of the Rome Statute, the obligations of state party do not evaporate because it decides to leave the Rome Statute, thus South Africa is still duty bound to arrest President Bashir for as long as he is wanted by the ICC. The state has failed to provide justifiable and reasonable excuses for leaving the Rome Statute thus the only plausible explanation was an unfortunate political explanation that only the government itself could provide.
2. What do you think is motivating the antipathy of several African states towards the ICC?
The allegation that the ICC is targeting Africa is the main reason advanced by a number of African leaders. Yet as described above this is not factually accurate. In addition to the fact that this is because of a lack of understanding about the jurisdictional limits of the Court it is also an excuse that is conveniently used by politicians to further their political agenda instead of prioritising justice, accountability and the victims of international crimes. While the ICC is not a perfect institution, it requires support and critical yet constructive engagement from member states.
3. What are the likely implications on human rights and justice for victims of human rights violations?
South Africa leaving the ICC will have serious implications for justice and human rights. It sends the wrong message to the victims of crimes. It also shows that South Africa has chosen to support impunity given its failure to arrest President Bashir and the fact that they seek to abandon the only permanent international criminal court instead of constructively engaging with it. South Africa could potentially become a safe haven for suspected perpetrators of genocide, war crimes and crimes against humanity as the government seeks to repeal the Implementation Act which domesticates the Rome Statute and includes a provision on universal jurisdiction. Should the Implementation Act be repealed a lacuna will be created which could be exploited by potential perpetrators of heinous crimes. In addition, if justice fails at the domestic level, there is no African Court with criminal jurisdiction and if South Africa successfully leaves the ICC, there will be no justice at the international level either. This creates an untenable situation which will leave the victims with nowhere to turn.
4. How is civil society in South Africa responding to the withdrawal?
The Southern Africa Litigation Centre (SALC) is actively involved in legally challenging the constitutionality of South Africa’s notice of withdrawal. The matter was heard in the High Court on December 5 and 6 and the court reserved judgment. SALC will also continue with advocacy to raise awareness and sensitise the general public on the importance of supporting international criminal justice as the move to repeal the Implementation Act should go through the parliamentary process which also includes a process of public participation. Hence it is vital that the general public understand the importance of supporting international criminal justice. Civil society is also actively supporting the development and improvement of domestic justice mechanism as the ICC was designed as a court of last resort and will only function as such if domestic systems are willing and able to deal with international crimes. Though the Rome Statute does not recognise regional courts, civil society are actively seeking to promote credible, impartial regional courts that will not provide immunity for heads of state or senior government officials as we see justice as a three-layer system where each layer functions in a complementary fashion.
5. What are three things South Africans need to know about the ICC as an institution of justice for victims of human rights violations?
a) South Africans need to know that the ICC is an impartial and independent court with limited jurisdiction.
b) They should also know that without the support of the African states, the court may not have come into existence in the first place and thus it is more constructive to work towards improving the ICC instead of simply abandoning it.
c) South Africans should also know that regionally there is no African court with criminal jurisdiction and thus if domestic justice fails it is the ordinary citizens who will have no access to justice.Visit the Southern Africa Litigation website - http://www.southernafricalitigationcentre.org/
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Widespread arrests, attacks and legal restrictions facing LGBTQI+ activists across Africa finds new report
Widespread arrests, attacks and legal restrictions facing LGBTQI+ activists across Africa finds new report
Johannesburg | 4 July, 2023
- Same-sex relations criminalised in at least 27 countries south of the Sahara
- Organisations shut down and offices raided for their work on LGBTQI+ rights
- Widespread bans on the publication of information on gay rights
- Anti-LGBTQI+ laws and practices disproportionately impact other excluded groups including women, children and victims of abuse
From Uganda to Cameroon, LGBTQI+ activists face significant restrictions due to the prevailing social, cultural and legal attitudes towards homosexuality and gender identity. A new report by CIVICUS, Challenging Barriers: Investigating Civic Space Limitations on LGBTQI+ Rights in Africa, looks at some common challenges faced by activists and civil society groups in countries south of the Sahara.
Many African countries have laws that criminalise same sex activity. The laws, often remnants of colonial era legislation, can be used to target and prosecute LGBTQI+ individuals, including activists. Penalties range from fines, imprisonment to even the death penalty in some countries.
Limited legal protection in many African countries offers little or no protection against discrimination based on sexual orientation or gender identity. This lack of protection makes it difficult for activists and civil society groups to advocate for equal rights or seek justice when they face human rights abuses. The offices and activities of civil society organisations advocating for LGBTQI+ rights have been either raided or shutdown in Uganda, Burundi, Rwanda and Cameroon.
Attacks against people who identify as LGBTQI+ are common in countries such as Benin, Cameroon and Kenya. In Cameroon since 2022 there have been over 30 recorded cases of violence and abuse against LGBTQI+ people, while in Kenya sexual minority groups face escalating homophobic attacks. In January 2023, following a series of killings in 2022, unknown assailants murdered and dumped the body of LGBTQI+ activist Edwin Chiloba. Chiloba’s death, which many linked to his sexual orientation sparked public outrage, with civil society groups and members of the public denouncing the murder and calling on the authorities to bring those involved to justice.
“With the escalating hostility towards the LGBTQ+ community in Africa, this report sheds light on the grave reality faced by many, and compels us to challenge prejudice, and advocate for equality - especially for the most marginalised. Governments must ensure equal protection for all people in accordance with their obligations on non-discrimination under international human rights law. We implore governments to take robust measures to safeguard the rights and well-being of all people, regardless of their sexual orientation or gender identity,” said Sylvia Mbataru, CIVICUS’ Civic Space Researcher for Eastern & Southern Africa.
Censorship and restrictions on freedom of peaceful assembly have contributed to a deteriorating environment for activists. In several countries, the publication and dissemination of material on LGBTQI+ issues face strict editorial controls and bans. CIVICUS also documents how protests are being suppressed, including the use of various laws to deny permits for public demonstrations, specifically targeting LGBTQI gatherings.
Despite the hostile environment in many countries, civil society groups continue to advocate for LGBTQI+ rights and score important victories. The report also documents a number of positive developments including the decriminalization of same sex relations in Botswana and Gabon, as well as a recent Supreme Court decision in Namibia to recognise same-sex marriages concluded abroad between citizens and foreign spouses.
The report concludes by demonstrating the impact of civic space restrictions against LGBTQI+ groups, and shows how the ramifications of these restrictions also affect other excluded groups including women and children.
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