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The submissions serve to ensure that laws which explicitly promote discrimination in the region are repealed.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

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.

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.

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.

The three day event kicked-off with a joint opening ceremony of the Pan African Congress on Access to Information and Highway Africa 2011. Speakers at the ceremony included H.E Mrs Julie Joiner, AU Commissioner for Political Affairs and a video message from Jacob Zuma, President of South Africa.

Through the various panel discussions at the conference, South Africa’s Protection of Information Bill, that was to be tabled before South Africa’s parliament, remained a concern for the advocates of open governance, transparency and accountability who were present. Having the South African DDG in the Ministry of State Security, Dennis Dlomo at hand to take questions from participants proved very useful. The ANC later announced that they would not present the bill before parliament.

The AU’s Habiba Mejri-Cheikh launced the Pan-African Media Network Project. The PAMEN platform is an African Union initiative, run by the African Forum for Media Development of the Global Forum for Media Development (GFMD) and the African Media Initiative (AMI). It is to serve as an interface between the organs of the AU and the media. 

The highlight of the weekend however, was the adoption of the declaration by an overwhelming majority. The AU Special Rapportuer on Access to Information, Adv Pansy Tlakula is seen here signing the document. There was only one vote against its adoption. The participant concerned refused to adopt the declaration asserting that a (un-named) member of the working committee which prepare the draft declaration has repeatedly refused to apologise for crimes of aparteid, before he shouted out  “AMANDLA!”. 

The call “AMANDLA!” sets the right tone for FOI advocates who adopted the declaration. For us, the struggle for increased transparency and improved access to state held information does indeed continue. Only, we are now armed with one more legal document that provides clarity on the right of access to information and the obligations it imposes on states and private actors.

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. 

In the furore that has greeted the announcement that Justice Mogoeng Mogoeng has been nominated to be the next Chief Justice, there is much that is unfair.

For instance, it is suggested that he is not fit, having acted improperly in not recusing himself in cases in which his wife appeared as prosecuting counsel before him. Yet there is ample precedent, before the Constitutional Court even, of sons appearing before fathers, husbands before wives, without this having triggered any charge of impropriety. And no one, having read Mogoeng’s judgments in which his wife appeared before him, could conceive of any impression of favour.

Then there are the charges that he is too youthful, too inexperienced to assume the mantle of chief justice. One could point to Chief Justice John Roberts of the United States to illustrate the point that democracies around the world have made similar appointments without obviously disastrous consequences for the judciary. But one needn’t look outside our own recent judicial history: Judge Arthur Chaskalson was appointed to the position of President of the Constitutional Court with no judicial experience to speak of; Judge Kate O’Regan was appointed to the Constitutional Court while still in her thirties. Both have been leading lights on the bench.

Others have opined that Justice Mogoeng’s reputation for failing to ask questions of counsel appearing before the Constitutional Court raises questions about his suitability. But the judge forms part of a collective court in which various judges play different roles. Amid the combative, interrogative characters of some of his peers, he may understand his role as one of quiet reflection. 

By all accounts Judge Mogoeng is a studious, apparently unassuming man. It must rankle to watch his honour and integrity be impeached when judicial etiquette permits no entry to him to the cut and thrust of public debate — particularly when unfair allegations are made. But there are two core issues — the first involving some degree of supposition, the other entirely on the record — that underline that Mogoeng’s fitness for the country’s top judicial office must nonetheless be questioned.

Far from depleting our judiciary, the controversy around the appointment of chief justice may in fact show how fine a judiciary we have. It also illustrates that you can’t have strong institutions of government without those institutions being peopled by persons of principle.

Justice Ngcobo honourably withdrew his candidacy rather than see his occupation of the top post besmirched by any suggestion of irregularity. Credible reports suggest President Zuma then offered the post to several other prominent judges but they declined, believing that the post, although not Judge Moseneke’s by rights, was his by due. And now Judge Moseneke, seemingly to quell further controversy and uncertainty, has indicated that he would not be available for elevation to the post of chief justice. In every instance these judicial officers have appeared to place their personal ambitions behind their roles as custodians of our judicial system.

The same cannot be said of Judge Mogoeng and we must wonder how he squares his own conduct with that of his judicial peers.  The way is now open for him however to indicate that he is not available and, with Moseneke indicating likewise, for Zuma to again approach the more senior, more qualified jurists who demurred, believing the post should go to Moseneke.

The behind the scenes negotiations between the executive and members of the judiciary is not a matter of public record. What is clearly documented is Mogoeng’s failure to offer reasons for his dissent from the rest of the court in the case of Le Roux and others v Dey and accordingly his repudiation of the constitutional ethos.

In a seminal piece of academic writing in the early nineties, Etienne Mureinik set out a vision of the Constitution as a bridge, leading from a culture of authority, characterising our past, to a culture of justification, “in which every exercise of power is expected to be justified”.

This culture of justification has become emblematic of our Constitutional Court’s jurisprudence — of what it requires in the exercise of public power from the executive and legislature but also what it requires in the exercise of its own public power.

In the beginning, the court’s judgements were often unanimous — members of the court likely believing that in issuing formative decisions in a newly democratic country it needed to demonstrate unity. Its judgments were sometimes criticised for being unnecessarily long but this was perfectly in keeping with an inclination to err on the side of over-justification rather than under-.  As the court and SA’s democracy matured, a greater number of dissenting opinions were issued. But always these judgments were substantiated with the same rigour and detail — often more — than the majority’s judgements.

It is in this context that Mogoeng’s unprecedented failure to deliver reasons for his dissent must be placed. And his dissent involved no trivial matter. He dissents from this ruling of the court:

“It is not, and should not be, an actionably injurious slight to offend someone’s feelings by merely classing them in a condition the Constitution protects — be it religious, racial, age, birth or sexual. To simply call someone Muslim, Christian, gay, black, white, lesbian, female, male, an old-age pensioner, atheist, Venda, or Afrikaans-speaker is not actionably injurious. Something more is needed.”

Still, not providing reasons may be the lesser evil because it is hard to see how one might dissent from this conclusion unless you were prepared to argue outside the constitution — and that is not an option permitted any judge, certainly not of the Constitutional Court.

As it is, we are left to believe that either Mogoeng does not subscribe to the ethos underlying our constitution — a culture of justification — or to certain fundamental commitments that lie at the heart of our Constitution. Neither conclusion will do of a new chief justice.

Nicole Fritz is the director of the Southern Africa Litigation Centre

SALC Research: Additional Cases Heard by Judge Mogoeng Raising Concern Regarding His Approach to Gender-Based Violence

S v Mathule (CA 243/03) [2004] ZANWHC 6 (19 March 2004)

This case involved an appeal to the Full Bench of the High Court, presided over by Hendriks J, Landman J and Mogoeng JP. The case concerns an appeal against a conviction of rape of a 7 year old girl and the life sentence imposed.

The conviction was upheld. However, the sentence was reduced from life imprisonment, the minimum sentence imposed by law, to 18 years. While rape is a serious offence, the rape of a young child is a particularly egregious act. Nowhere in the judgment did the court appreciate the serious nature of the offence, or reflect on the prevalence of child rape. Hendricks J, writing for the court, in which Mogoeng JP concurred, found that substantial and compelling circumstances existed to justify a departure from the sentence imposed by the court a quo.

The Supreme Court of Appeal has found that the prescribed sentence is life imprisonment in cases of rape of girls under the age of 16 unless “weighty justification” exists justifying a departure.[1] In Mathule the following grounds were listed as serious and compelling circumstances justifying departure from the imposition of life imprisonment –

-       Apellant is 31 years of age;

-       He is unmarried;

-       He is unemployed;

-       He is suffering from chronic epilepsy;

-       His highest qualification is standard 7;

-       He is staying with his unemployed mother.

Yet no explanation was provided for why these factors constitute “substantial and compelling circumstances”. In the main, these factors, apart from the appellant’s illness, do not obviously call for leniency on the part of the criminal justice system. At best, an impression of arbitrariness is created: at worst, that child rape is not among the most egregious crimes in our country deserving the law’s full effect.

S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007)

This case concerned an appeal against conviction of rape of a 14 year old girl. The appeal was dismissed. Yet certain observations by Justice Mogoeng give rise to apprehension as to his ability to comprehend the full and devastating impact of sexual violence. In his evaluation of the evidence, he pointed to certain “shortcomings” in the victim’s evidence:

“She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant.”

Justice Mogoeng fails to acknowledge that victims react to rape in different ways. More disturbingly, he appears to suggest that rape might be perpetrated with solicitous regard:

 “One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.”

S v Serekwane (175/05) [2005] ZANWHC 52 (1 August 2005)

Mogoeng JP, concurring in judgment concerning an appeal of conviction and sentence for the attempted rape of a 7 year old girl, found that the evidence wasn’t sufficient to justify the conviction of attempted rape and instead substituted the conviction with that of indecent assault and reduced the sentence from 5 years to 3.

This case also evinces a disquieting misunderstanding of the responses to rape and the consequences thereof.  

The case turned on the evaluation of the medical evidence. The doctor found bruising in the entrance of the victim’s vagina and this was indicative of “something coming into contact with [the victim’s] genitals” Because the victim’s dress was covering her head she was unable to confirm whether the accused used his finger or penis to abuse her. The court however found that because the victim “did not feel pain whatsoever … at the time of being touched” that this “militates against the Magistrates conclusion that the Appellant’s penis caused the injury”. Yet the complainant testified to the accused using his hands to hold her around the waste during the course of the attack.

The conviction of attempted rape was set aside and substituted with a conviction of indecent assault. In reducing the sentence to three years the following were considered relevant –

-       The accused was 30 years old and a first time offender

-       He is married with two children

-       The accused is a soldier who earns R1800.00 per month.

The relevance of these factors was not explained.

In relation to the harm suffered the court found that

 “The complainant is seven years old, the injury she sustained is not serious. She sustained a bruise on her vestibule. Although there was no direct evidence led, she must have suffered some psychological trauma, as a result of this incident.” (emphasis added)

It is hard to see how an injury to a seven year old which results from sexual abuse, perpetrated by a “friend of the [victim’s] father”, can ever be classified as “not serious”.

S v Maluleka (CA 20/2008) [2008] ZANWHC 23 (4 August 2008)

This case involved an appeal against a sentence of life imprisonment imposed on a man for murdering his wife. The judgment written by Landman J, in which Mogoeng JP concurred, upheld the appeal and reduced the sentence to 18 years on the basis that “substantial and compelling circumstances” had been shown. The circumstances in which the murder took place, and which were taken into account by the appeal court, include:

-       The accused murdered his wife in front of two of his children, aged 9 and 13;

-       He asked the children if he should kill his wife;

-       The murder took place in the course of a domestic quarrel in which the wife was accused of spending too much money;

-       The accused expressed remorse;

-       The accused had no previous convictions;

-       The accused had four young children;

-       The accused handed himself over the police;

-       The accused believed, “albeit unjustifiably”, that his wife was having an affair.

Again, no justification was provided as to why these factors might be classified as “substantial and compelling”, meriting reduction in sentence. Several of the factors cited appear particularly aggravating, not least that he sought to involve his children in the killing and that he required them to bear witness to their mother’s death.