SALC Joins the Fight to Repeal Lesotho Law Banning Women from Becoming Chiefs

Through the variety of legal cases and jurisdictions in which SALC has worked, SALC has developed expertise regarding women’s rights as well as comparative constitutional law and international and regional law.

SALC is challenging Lesotho’s discriminatory Chieftainship Act, which only allows the first-born son to succeed to chieftainship. SALC filed submissions in Masupha v Senior Resident Magistrate for the Subordinate Court of Berea and Others a landmark case that is due before the Lesotho Constitutional Court next month with a decision expected in late 2012.

The Applicant, Senate Masupha is the first-born daughter of a chief.  When the Applicant’s father passed away the Applicant’s mother succeeded to the chieftainship and upon her death a vacancy was created in the office of the Principal Chief.  In terms of section 10 of the Chieftainship Act, the applicant is barred from succeeding to the chieftainship on account only of her being a first-born daughter. The Applicant is calling on the Constitutional Court to declare the relevant sections of the Chieftainship Act unconstitutional and permit women to succeed to chieftainship.

Intervening as amicus curiae (friends of the court), SALC’s submissions argue that the law is unconstitutional under the Lesotho Constitution as well as under Lesotho’s international and regional obligations. In SALC’s opinion, universally denying women the ability to succeed to chieftainship entrenches the view that women are subordinate members of society and this is a fundamental breach of their constitutional rights. The submissions highlight how gender inequalities contribute to the disproportionate impact HIV/AIDS has on women and the importance of ensuring the rights of women for an effective response to HIV/AIDS.

The submissions serve to ensure that laws which explicitly promote discrimination in the region are repealed. It is hoped that the Lesotho Constitutional Court will follow the approach that has been used by other courts in the region.  The Constitutional Court in South Africa has struck down laws which promote discrimination in cases of inheritance and succession. Courts in Ghana, Kenya, Nigeria, and Tanzania have also all struck down laws which deny women the right to inherit solely due to their gender. Moreover in Botswana, the Court of Appeal in Attorney-General v Dow struck down a law denying children citizenship only if their mother was a Botswana citizen.

For a copy of SALC’s submissions please click here

SALC receives a disappointing judgement from Malawi on Prisoners’ Rights.

SALC has tried to support criminal justice reform in Malawi for the last four years. We have managed to work with attorneys and civil society to identify the most pressing issues and have supported cases that tests the right to a trial within a reasonable time, the right to bail, and we have fought for change to the law allowing juveniles convicted of murder to be sentenced   “at the pleasure of the President”.

In this period we have been disappointed by the judicial response to our litigation advocacy.  Members of the judiciary seem to be unwilling to engage on issues of criminal justice reform and do not want to acknowledge clear international and constitutional rights of a fair trial.

SALC supported the matter of Felix Paul v The Attorney- General. Briefly the issues in this matter were as follows: Felix Paul was detained whilst awaiting trial for murder since 2002. He was originally one of the applicants in the constitutional case on the right to a trial within a reasonable period of time that SALC tried to run in 2009 – 2010.  When we failed to get certification that the matter was a constitutional case from the Chief justice we proceeded to apply for bail for the individual applicants. Mr Paul was released on bail in 2010, to await trial, some 8 ½ years after being incarcerated. SALC then approached the civil courts to seek appropriate orders to remedy the breach of the right to a trial within a reasonable period of time, to seek a stay of prosecution and to seek compensation for an unreasonable length of detention. SALC advanced arguments that the length of time that Paul has been awaiting a trial means that it is no longer possible that any trial will now be fair and therefore the charges against him should be stayed.

The case was heard on the 27^th June 2011. The state did not file a response to our legal submissions nor did they appear in court for the hearing of the matter.  Judgement was received on the 25^th October 2011. (See full judgement on http://www.malawilii.org/mw/judgment/high-court-general-division/2011/10).

The judgement in this matter was very disappointing and it is SALC’s view that the judge stepped down into the arena from his position as an independent and impartial adjudicator and used the judgement to argue the state’s case for them. None of the applicant’s authorities are referred to or distinguished in the judgment. The judgement makes several egregious mistakes in interpreting the law and the facts. The judge has relied on a small section of an outdated judgement to fit his own personal view of what the outcome of the case should be.  The judge not only failed to consider whether the applicant was entitled to a stay of proceedings but also the constitutional and international fair trial rights as well.

 

 The failure of the state to defend the matter seemed to have prejudiced the applicant, instead of the state, in the matter. At several points in the judgement the judge assumes facts to support a rebuttal against the claims of the applicant, where no facts are presented from the state.  . SALC is concerned about this lack of impartiality and clear bias against the applicant. For a full critical analysis of the Felix Paul judgment see our legal analysis on the matter; http://www.southernafricalitigationcentre.org/library/item/analysis_of_the_judgement_in_felix_paul_v_the_attorney_general_malawian_high_court_misc_civil_cause_ . SALC will provide support for an appeal in this matter.

Southern Africa Conference on Children’s Rights

From the 14 to 16 November 2011, Abeda Bhamjee, SALC’s prisoners’ rights lawyer attended the Southern Africa Conference on Children’s Rights held at the Pan African Parliament in Gallagher Estates, Midrand, South Africa. SALC has worked on ensuring the rights of juveniles in detention facilities in Malawi.

The specific objectives of this conference were to:
a) Increase awareness of regional and international instruments promoting children’s rights.
b) Review southern African countries’ progress towards meeting their obligations in realizing children and young people’s rights as outlined in the African Charter on the Rights and Welfare of the Child (ACRWC) and the UN Convention on the Rights of the Child (UNCRC).
c) Mobilise child rights organisations within the region to formulate strategies and mechanisms to partner with governments to ensure continued implementation of UNCRC and ACRWC and fulfillment of children’s rights in the region.
d) Raise awareness for governments in the region to draft and submit State Party reports to the African Union (AU) and United Nations (UN) on the status of children and youth at national level.

Of particular interest were the presentations on: Children’s Rights Instruments by Professor Julia Sloth-Nielsen, a member of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) and the Dean of Law, University of the Western Cape; Children’s rights and customary/traditional law study findings  by Ms Buyi Mbambo; and the Universal Period Review reporting process by Ms Ulrika Soneson-Cilliers of Save the Children.

Professor Julia Sloth-Nielsen outlined the provisions of both the UNCRC and the ACRWC. She emphasized that reporting to the ACERWC should not be onerous. It was acceptable to receive reports prepared for other committees or bodies as long as they had been intelligently edited. This comment was made in light of the generally delayed initial and interim reports from States party to the ACRWC.

She went on to state that the committee of experts was particularly interested in receiving information that distinguished the provisions in the ACRWC, for example, on customary practices and the responsibilities of children.

Ms Buyi Mbambo presented preliminary study findings around the influence of socio-cultural environments on the realization of children’s rights. The study was undertaken in South Africa and Zambia. It was interesting to note that customary law can either foster or hinder the protection on children’s rights. The study identified practices that hinder children’s rights, such as: child labour, forced child marriage, forced circumcision, female genital mutilation, corporal punishment, virginity testing, general discrimination against girl children, patriarchy, and lack of educational opportunities for girl children. Practices identified in the study that that foster children’s rights are: naming practices, communal parenting, alternative forms of discipline, psycho-social support, customary adoptions, antenatal feeding and infant feeding practices.

Ms Ulrike Soneson-Cilliers, of Save the Children, introduced the use of the Universal Periodic Review to advance children’s rights thorough monitoring and documenting the situation of children at national level. The discussions focused around the fact that the universal periodic review is a) universal – each member state of the UN is obliged to report ; b) it is periodic – 4 yearly ; c) it is intergovernmental – the reports are reviewed by member states of the human rights council; d) it is action orientated.

The discussion focused on how civil societies can engage with government to formulate strategies and mechanisms to ensure that they report on children’s rights. as well as how coalitions can be formed within civil society to produce shadow reports.

Many delegates identified the procedure and structure of UN reporting requirements as a particular challenge to governments. They felt their governments were under-resourced to produce the reports, and even those governments that had engaged consultants specifically to prepare reports were still delayed. In the discussion, a representative from Save the Children stated that Save the Children has produced a manual on how to engage with the African Committee that may be helpful and perhaps delegates should be engaging directly with the UN to see if they have other manuals available. For example, delegates could go to the local UNICEF offices or find appropriate UN offices to assist with the procedure and structure of reports. It would be advisable though to approach the UN well in advance of the deadline to do this.

Conference wrap up: a regional committee was formulated to deal with the issues raised in the conference. It will be worth tracking the progress of this committee until the next meeting.

Litigating for rights of sexual minorities and sex workers

SALC’s HIV Programme Manager, Priti Patel, attended a conference hosted by the Open Society Foundations bringing together lawyers from all over the world who litigate for the rights of lesbian, gay, bisexual and transgendered (LGBT) persons, sex workers, and injecting drug users. The meeting brought together lawyers from southern and eastern Africa, Eastern Europe, Canada, Australia, and Denmark. Check out the work of some of the amazing lawyers who are working with sex workers in Canada to strengthen their rights; supporting the rights of LGBT persons in eastern Africa; and fighting for injecting drug users in Denmark.

CHRR highlights media struggles in gathering mining information

Malawi’s Centre for Human Rights and Rehabilitation (CHRR) has complained that the media in the country is struggling to access information on mining because the players involved are reluctant to release it. CHRR’s Communications Officer Luke Tembo said the challenge is affecting the media’s efforts to relay relevant information that can help uplift the mining sector. He said this during CHRR’s journalists’ orientation in Mzuzu on how they can access mining information from various stakeholders in Malawi. Check out the news report here.

SALC marks Right to Know Day by supporting the SA Golden Key Awards

Freedom of Information Advocates the world over will tomorrow celebrate the Right to Know Day. The decision to mark 28 September each year  was taken by participants in an international conference held in Sofia, Bulgaria in 2002 when the Freedom of Information Advocates Network was also created. The day is used by advocated for free access to information, transparency and accountability to advocate for everyone’s right to know. SALC will support the Golden Key Awards, held by the South African Human Rights Commission to mark this day in South Africa. In this ceremony, the most transparent government department will be celebrated while the most secretive state department will be shamed by being presented with a Golden Padlock!

In pictures: adoption of the Declaration on an African Platform on Access to Information

SALC was one of over 200 participants at the Africa Information and Media Summit (AIMS) that convened as a special session to adopt the Declaration of an African Platform on Access to Information this past weekend. This in a series of events that took place in Cape Town between 17-19 September 2011.

Draft Declaration for an African Platform on Access to Information

Here is the latest version of the draft declaration for an African Platform on Access to Information (APAI) to be presented to delegates at the Pan African Conference on Access to Information.  This document is part of a regional initiative to promote and set minimum standards for Access to Information on the African continent. Another initiative aimed at setting minimum standards for FOI in Africa, which SALC has been involved in, is the draft Model Law for AU Member States on Access to Information.  Check this blog for updates from the conference in Cape Town.

SALC E-Newsletter Issue 4 Available Now!

Check out the fourth issue of our e-newsletter. This issue provides an account of SALC’s most recent work in Malawi and Swaziland. Both have been much in the news of late, each raising concern for good governance, democracy and the rule of law. Please send an email to EthelM@salc.org.za, with “SALC e-newsletter 4” as the subject, to receive the newsletter in your inbox.

For a Chief Justice We Need a Great Judge

Although SALC doesn’t usually work in the South African courts, we do support South African cases where they have the potential to impact human rights and the rule of law beyond South Africa’s borders. More importantly we follow South African legal developments because while we are conscious that South Africa’s size and power mean comparison in the region and on the continent sometimes inspires resentment, it is a fact that much within the South African legal system — like it’s Constitution and Constitutional Court — provide a model worth emulating. And so we have followed South African President Jacob Zuma’s nomination of Justice Mogoeng as South Africa’s next Chief Justice with great concern. Below is a piece that I wrote, published in edited form in Business Day last week, which outlines some of the concerns with his nomination. I want to take the opportunity here to recognise, after having received several corrections, that I wrongly suggested that Justice O’Regan had sat on a judicial bench before which her husband appeared. She never did. 

Also posted below is a product of SALC research — documentation of several cases other than those which appeared in the submission given by Section 27, Sonke and the Equality Project — supportive of concerns that Justice M0goeng’s commitment to equality and regard for those most vulnerable in our society is not what it should be of a chief justice.