Month: Oct 2020

THE KILLING OF SOMKHELE ENVIRONMENTAL ACTIVIST, FIKILE NTSHANGASE

23 October 2020

I refused to sign. I cannot sell out my people. And if need be, I will die for my people.

Tragically, grandmother Fikile Ntshangase’s words became a reality when she was gunned down in her home at Ophondweni, near Mtubatuba, on the evening of 22 October 2020.

Mama Ntshangashe was the Vice-Chairperson of a sub-committee of the Mfolozi Community Environmental Justice Organisation (“MCEJO”). MCEJO has been challenging the further expansion of a large coal mine at Somkele in KwaZulu-Natal by Tendele Coal Mining (Pty) Ltd. One of the court cases brought by MCEJO is scheduled for hearing in the Supreme Court of Appeal on 3 November 2020.

On Thursday, 22 October 2020 at about 18:30, four gunmen arrived at Mam Nsthangase’s house, where she lives with her 11 year old grandson. Current reports say that they forced themselves into the home and shot her 5 times, and that she died on the scene.

Tendele’s coal mining operations have caused untold destruction of the environment and the homes and livelihoods of the residents of Somkhele. (Photgraphs and video footage available.)

Over the past few months, tension has been rising in the community over the proposed expansion of Tendele’s operations, and MCEJO’s opposition to that expansion.

Recently, Tendele was pushing for an agreement to signed between MCEJO and Tendele to the effect that MCEJO would withdraw its Court challenges of Tendele’s expansion of its coal mine at Somkhele. Mama Nsthangase refused to sign.

She warned sub-committee members that they had no power to make decisions on behalf of MJECO and that the “agreement” only benefited Tendele. She  also refused to attend any of the secret meetings that other sub-committee members held with Tendele. Days before her brutal killing, Mama Ntshangase stated her intention to write an affidavit, revealing that sub-committee members had promised her a payment of R350,000 in return for her signature.

The court challenge that placed a price on Mama Ntshangase’s life is MJECO’s pending review application of Tendele’s new mining right in respect of a 222km2 area in Mpukunyoni, KZN. This review is due to be heard by the North Gauteng High Court in March 2021.

Tendele has publicly characterised MCEJO’s legal challenge as a threat to the mine’s continued existence, stating that, with the current mining area depleted, it needed to expand its mining area, or face closure.

The expansion requires relocation of 19 families from their ancestral land. Many of these families have lived on their land for generations.

Tendele cannot commence any operations in the new mining right area until these families agree to Tendele’s “compensation” offer and sign relocation agreements. These families were subjected to months of violence and intimidation. Despite the clear volatility of the situation, Tendele has accused these families of “holding the Mine, its … employees and many families who have signed [relocation] agreements and indeed the entire community to ransom”. Tendele carried out its pressure campaign even while these families were receiving anonymous death-threats and gunmen opened fire on one of the families’ homes.

In May 2020, Tendele tried to bring an urgent court application to force the families to accept their compensation offer, but abruptly removed the matter from the Court roll when the families opposed the application.    

Tendele has now embarked upon a campaign to pit the State, the Ingonyama Trust Board, traditional leaders and fellow community members against these families to pressure them into signing relocation agreements. Tendele requested the MEC for Transport, Community Safety & Liaison KZN, Minister Ntuli and department officials to set up a “task team”, with the aim of “the two court cases opened by MJECO against the mine remain a threat and needs [sic] to be withdrawn”.

It is against this backdrop that the pro-mining campaign was stepped up during the past week. On 15 October, two sub-committee members, accompanied by two known hitmen, tried to disrupt a MCEJO executive committee meeting with community leaders, which included Mama Ntshangase. One sub-committee member tried to lock the doors, and a prominent leader was assaulted. A criminal case is being opened. This leader, who works in another area, has been warned that his life will be in danger if he is seen in the vicinity.

Billy Mnqondo, a founding member of MCEJO, reports that one of the hitman kept saying “kuzochitheka igazi” (there will be bloodshed). His appeal to the police is: “Make sure that the criminals who murdered our comrade are caught and go to jail. Mam Ntshangase was killed for standing up for what is right. This is wrong and cannot go unpunished.”     

It appears that the mine is being supported by the KwaZulu-Natal government. In July, the Department of Community Safety and Liaison sent a staff member, apparently from its Civilian Secretariat arm (which is conspicuous in its absence whenever the threat of violence looms), to persuade community members to negotiate with the mine.

Since then, after MCEJO members thought it only proper to approach the office of the Ingonyama King Goodwill Zwelithini about their struggle, they have come under even further government pressure via the office of the Premier and COGTA. This is the self-same government that claims to be a custodian for land reform to redress the land imbalance – while wilfully pushing to displace rural farmers from their family land from which they subsist.

For the State and Traditional Authorities actively to assist Tendele in its efforts to bring about MJECO’s withdrawal of its review application is abhorrent to our Constitutional order. Without access to Court, local communities’ right to dignity and section 24 environmental rights are illusory.

The strategies used by Tendele are sadly typical of many companies operating in impoverished rural communities. Mines dangle incentives to impoverished community members with the inevitable consequences of stirring deep community divisions, which almost always lead to violence and deaths. In rural areas that are difficult to police, it takes someone with the determination and the courage of Mama Ntshangase to promote community solidarity and resistance in the face of these strategies. There are other leaders of this calibre in MCEJO and, if anything, the assassination of Mama Ntshangase has renewed their determination to step up the fight against exploitation by the mine.

We mourn the senseless tragedy of Mama Ntshangase’s murder, and condemn her killing.

We call on the South African Police Service to act swiftly to arrest and prosecute her murderers.

We call on the Tendele to stop its campaign of dividing and fomenting violence in the affected community of Somkhele, and to provide funds for Mam Ntshangase’s funeral and for maintenance for her orphaned grandson.

We stand by all defenders of land and environmental rights, and will act to defend their Constitutional rights to life, dignity, free speech, access to justice, access to food and water, and an environment not harmful to health or wellbeing.

Joint Media Statement:,

CER (Centre for Environmental Rights) https://cer.org.za/

Earthlife Africa https://earthlife.org.za/

GET (Global Environmental Trust) https://globalenvironmentaltrust.org/

groundWork https://www.groundwork.org.za/

MACUA (Mining Affected Communities United in Action) https://macua.org.za/

MCEJO (Mfolozi Community Environmental Justice Organisation)

SAHRDN (Southern Africa Human Rights Defenders Network)  http://www.southernafricadefenders.africa/

WAMUA (Women Against Mining United in Action) https://macua.org.za/

——————————————–END——————————————————————

Contacts: Tsepang Molefe; +27 74 405 1257; media@groundwork.org.za

                  Lerato Balendran; +27 79 071 744 ; lbalendran@cer.org.za

                  Sifiso Dladla; +27 78 849 8621; sifiso.dladla@actionaid.org.za

                  Robby Mokgalaka; +27 73 774 3362; robby@groundwork.org.za

Tanzania: Systematic restrictions on fundamental freedoms in the run-up to the national elections

22 October 2020

Civil society letter endorsed by over 65 organisations

To: President John Magufuli

Tanzania: Systematic restrictions on fundamental freedoms in the run-up to national elections Excellency,

We, the undersigned civil society organizations, are deeply concerned about the continued deterioration of democracy, human rights and rule of law in the United Republic of Tanzania. In the past five years, we have documented the steady decline of the country into a state of repression, evidenced by the increased harassment, intimidation, prosecution and persecution of political activists, human rights defenders (HRDs), journalists and media houses; the enactment of restrictive laws; and disregard for rule of law, constitutionalism, as well as regional and international human rights standards. We are deeply concerned that the situation has worsened during the COVID-19 pandemic and as the country heads for general elections on 28 October 2020.1

Tanzania as a party to several regional and international treaties, including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, has a legal obligation to respect and protect fundamental rights, particularly the right to – freedom of expression and the media, peacefully assemble, form and join associations, and to participate in public affairs, which are fundamental rights for free and fair elections in a democratic society. As a member of the African Union (AU) and the Southern African Development Community (SADC), Tanzania has committed to uphold and promote democratic principles, popular participation and good governance.

Leading up to the elections in Tanzania, we have unfortunately documented an unfavourable environment for public participation and free engagement in the political process. The role of the media in providing information and access to varying viewpoints in a true democracy is indispensable. Media houses must be allowed to provide these services without undue restrictions, yet in recent times, several independent media houses have been suspended. These have included the seven-day suspensions of The Citizen newspaper in February 2019,2 Clouds TV and Clouds FM in August 2020, and the six-month suspension of Kwanza online TV in September 20193 and again in July 2020 for 11 months;4 the online publication ban against Mwananchi news in April 2020;5 the revocation, effective June 24, 2020, of the license of the Tanzania Daima newspaper;6 and the fines against online stations, Watetezi TV and Ayo TV in September 2019.7We note, with great disappointment, that the government is yet to comply with a ruling by the East African Court of Justice requiring the amendment of the Media Services Act to address the unjustified restrictions on freedom of expression.8

We are further concerned about the restrictions on individuals peacefully expressing their opinions, including criticising public officials.9 The latter are required to tolerate a greater amount of criticism than others – a necessary requirement for transparency and accountability. Tanzania’s criminal justice system has however been misused to target those who criticize the government. Tito Magoti and IT expert Theodory Giyani were arrested in December 2019 and questioned over their social media use and association with certain government critics.10 The duo was subsequently charged with economic crimes, including “money laundering” which is a non-bailable offence. Despite their case

being postponed more than 20 times since December 2019, and no evidence being presented against them, they remain in pre-trial detention.11 Investigative journalist Erick Kabendera was similarly arrested and charged with “money laundering” where he was held in pre-trial detention for seven months with his case postponed over ten times.12 Several United Nations (UN) mandate holders have raised concern about the misuse of the country’s anti-money laundering laws that “allow the Government to hold its critics in detention without trial and for an indefinite period.”13

Most recently, prominent human rights lawyer and vocal critic of the government, Fatma Karume was disbarred from practising law in Tanzania following submissions she made in a constitutional case challenging the appointment of the Attorney General.14 Other lawyers are also facing disciplinary proceedings for publicly raising issues on judicial independence and rule of law. Opposition leader, Zitto Kabwe was arrested and prosecuted for statements made calling for accountability for extrajudicial killings by State security agents.15 The above cases are clear evidence of an intolerance for alternative views and public debate.

In addition, authorities should ensure respect for the right of individuals to freely form associations and for those associations to participate in public affairs, without unwarranted interference. We note the increasing misuse of laws to restrict and suspend the activities of civil society organisations.16 On August 12, Tanzania Human Rights Defenders Coalition (THRDC) was notified that its bank accounts had been frozen pending police investigations. THRDC’s coordinator was then summoned by the police to explain an alleged failure to submit to the State Treasury its contractual agreements with donors.17 Prior to this, in June, 2020, the authorities disrupted the activities of THRDC for allegedly contravening “laws of the land.”18 Several other non-governmental organisations working on human rights issues have been deregistered or are facing harassment for issuing public statements critical of the government. Ahead of the elections some civil society organisations have reported being informally told by authorities to cease activities. As a result of the repressive environment, civil society organisations have been forced to self-censor activities.

We also note the enactment of further restrictive laws.19 For example, the Written Laws Miscellaneous Amendments Act (The Amendment Act)20 which has introduced amendments to 13 laws.21 The Amendment Act requires anyone making a claim for violation of rights to have been personally affected.22 This limits the ability of civil society organisations to carry out legal aid and law-based activities where they are not personally harmed. It violates Article 26(2) of the country’s Constitution, which provides for the right of every person “to take legal action to ensure the protection of this Constitution and the laws of the land.” Furthermore, it is an internationally recognized best practice that all persons, whether individually or in association with others, have the right to seek an effective remedy before a judicial body or other authority in response to a violation of human rights.23 The Amendment Act further provides that lawsuits against the President, Vice-President, Prime Minister, Speaker, Deputy Speaker or Chief Justice cannot be brought against them directly but must be brought against the Attorney General.24 This provision undermines government accountability for human rights violations. We remind the authorities that international bodies have raised concern about Tanzania’s repressive laws.25

We are especially concerned over the continued cases of verbal threats and physical attacks against members of opposition political parties.26 We note with concern that to date, no one has been held accountable for the 2017 attack against then CHADEMA party leader, Tundu Lissu, who is a

presidential candidate in the upcoming elections. Most recently, opposition leader Freeman Mbowe was brutally attacked and his assailants are still at large. Failure to thoroughly and impartially investigate such cases breeds a culture of violence and impunity, which in turn threatens the peace and security of the country. The government must take steps to bring perpetrators of such violence to account and to guarantee the safety of all other opposition party members and supporters.

Earlier, in November 2019, the African Commission on Human and Peoples’ Rights (ACHPR) issued a press statement on the “deteriorating human rights situation in Tanzania.”27 The Commission specifically voiced concern over “the unprecedented number of journalists and opposition politicians jailed for their activities.” The ongoing crackdown on civic space in Tanzania also led the UN High Commissioner for Human Rights, Michelle Bachelet, to issue a strong warning ahead of the 28 October 2020 General Elections. At the opening of the UN Human Rights Council’s 45th session, she “[drew] the Council’s attention to increasing repression of the democratic and civic space, in what is becoming a deeply deteriorated environment for human rights” and stressed that “[with] elections approaching later this month, we are receiving increasing reports of arbitrary arrests and detention of civil society actors, activists, journalists and members of opposition parties.” She added: “Further erosion of human rights could risk grave consequences, and I encourage immediate and sustained preventive action.”28

While we acknowledge measures taken by your government to halt the spread of the COVID-19 virus and protect the citizens of Tanzania, we are deeply concerned that the pandemic has been used to unduly restrict fundamental freedoms. Examples are the arrest and sentencing of two Kenyan journalists for interviewing members of the public in Tanzania on the status of the pandemic in the country29 as well as, the suspension of Kwanza Online TV for reposting an alert by the U.S. embassy in Tanzania regarding the pandemic in the country.30 The rights to peacefully express one’s opinion, receive information, peaceful assembly and association, and to participate in public affairs are not only essential in the context of the upcoming elections, but also in relation to the current COVID-19 pandemic. Freedom of expression in particular, ensures “the communication of information to the public, enabling individuals to … develop opinions about the public health threat so that they can take appropriate steps to protect themselves and their communities.”31 The UN has repeatedly emphasized that Government responses to COVID-19 must not be used as a pretext to suppress individual human rights or to repress the free flow of information.32

The need for Tanzania to uphold human rights, democracy and the rule of law is now more than ever important as a matter of national security, following recent reports of insurgent attacks along Tanzania’s border with Mozambique.33 Studies have shown that experiences of injustice, marginalization and a breakdown in rule of law, are root causes of disaffection and violence. A peaceful and prosperous nation requires good governance and respect for rule of law, with a society that protects fundamental freedoms and ensures justice for all.

As civil society organisations deeply concerned about constitutionalism, justice and democracy in the United Republic of Tanzania, we strongly urge your Excellency to adhere to your undertaking to ensure a free and fair election in Tanzania. The government has an obligation to create an enabling environment for everyone, including political opposition, non-governmental organisations, journalists, and other online users, HRDs, and other real or perceived government opponents to exercise their human rights without fear of reprisals. As such, we call on the relevant authorities to immediately drop criminal charges and release defenders such as Tito Magoti and Theodory Giyani and any others being prosecuted for peacefully exercising their rights. Suspensions and the freezing

of assets of non-governmental organisations such as THRDC, independent media houses such as Kwanza Online TV and members of the legal profession- particularly Fatma Karume, must be reversed. Opposition parties must be allowed to freely and peacefully campaign and engage with their supporters without undue restrictions such as arbitrary arrests, physical attacks, forceful dispersal and intimidation of supporters and harassment by security forces. The legitimacy of

Tanzania’s elections is at stake.

We call on Tanzania to heed the messages delivered by national, African, and international actors and to change course before the country enters a full-fledged human rights crisis, with potentially grave domestic and regional consequences.

Signed:

  1. Access Now, Global
  2. Acción Solidaria on HIV/aids, Venezuela
  3. Africa Freedom of Information Centre, Africa
  4. Africa Judges and Jurists Forum
  5. AfroLeadership
  6. ARTICLE 19, Global
  7. Asia Dalit Rights Forum ADRF, New Delhi and Kathmandu
  8. Association for Human Rights in Ethiopia (AHRE)
  9. Association of Freelance Journalists
  10. BudgIT Foundation, Nigeria
  11. CEALDES, Colombia
  12. Center for Civil Liberties, Ukraine
  13. Centre for Human Rights & Development (CHRD), Mongolia
  14. Centre for Law and Democracy, Canada
  15. Center for National and International Studies, Azerbaijan
  16. Child Watch, Tanzania
  17. CIVICUS, Global
  18. Civic Initiatives, Serbia
  19. CIVILIS Human Rights, Venezuela
  20. Collaboration on International ICT Policy for East and Southern Africa (CIPESA)
  21. Committee to Protect Journalists (CPJ)
  22. Community Empowerment for Progress Organization (CEPO), South Sudan
  23. Commonwealth Human Rights Initiative (CHRI)
  24. Corporación Comuna Nueva, Santiago de Chile
  25. DefendDefenders (East and Horn of Africa Human Rights Defenders Project)
  26. Democracy Monitor PU, Azerbaijan
  27. Eastern Africa Journalists Network (EAJN)
  28. Ethiopian Human Rights Council (EHRCO)
  29. Ethiopian Human Rights Defenders Coalition (EHRDC)
  30. Espacio Público, Venezuela
  31. Front Line Defenders, Global
  32. Groupe d’Action pour le Progrès et la Paix (GAPP-Afrique), Canada
  33. Groupe d’Action pour le Progrès et la Paix (GAPP-BENIN)
  34. Groupe d’Action pour le Progrès et la Paix (GAPP Mali)
  35. Gestos (HIV and AIDS, communication, gender), Brazil
  36. Greenpeace Africa
  37. HAKI Africa, Kenya
  38. Human Rights Concern – Eritrea (HRCE)
  39. Human Rights Defenders Network, Sierra Leone
  40. Humanium, Switzerland
  41. HuMENA for Human Rights and Civic Engagement (HuMENA Regional)
  42. International Partnership for Human Rights (IPHR) – Belgium
  43. Jade Propuestas Sociales y Alternativas al Desarrollo, A.C. (JADESOCIALES)- México
  44. Ligue Burundaise des droits de l’homme Iteka-Burundi
  45. Maison de la Société Civile (MdSC), Bénin
  46. MARUAH, Singapore
  47. Media Rights Agenda (MRA), Nigeria
  48. Nigeria Network of NGOs, Nigeria
  49. Nouvelle Dynamique de la Société Civile de la RD Congo (NDSCI)
  50. Odhikar, Bangladesh
  51. ONG Convergence des Actions Solidaires et les Objectifs de Développement Durable (CAS-ODD ONG) – Bénin
  52. ONG Nouvelle Vision (NOVI), Bénin
  53. Open School of Sustainable Development (Openshkola), Russia
  54. Open Society Initiative for Southern Africa (OSISA)
  55. Partnership for Peace and Development, Sierra Leone
  56. RESOSIDE, Burkina Faso
  57. Robert F. Kennedy Human Rights, Global
  58. Sisters of Charity Federation, United States
  59. Somali Journalists Syndicate (SJS), Somalia
  60. Southern Africa Human Rights Defenders Network (SAHRDN)
  61. Sudanese Development Initiative (SUDIA), Sudan
  62. The Human Rights Centre Uganda (HRCU), Uganda
  63. Tournons La Page (TLP)
  64. Water, Sanitation and Hygiene Network, Sierra Leone
  65. Women in Democracy and Governance, Kenya (WIDAG)
  66. Zambia Council for Social Development, Zambia

1 United Nations, Office of the High Commissioner, UN Experts call on Tanzania to end crackdown on civic space, July 22, 2020, available at https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=26117&LangID=E.

2 Committee to Protect Journalists, Tanzania imposes 7-day publication ban on The Citizen, March 01, 2019, available at: https://cpj.org/2019/03/tanzania-citizen-7-day-publication-ban/

3 Committee to Protect Journalists, Tanzanian authorities ban online TV station, fine 2 others, January 8, 2020 available at: https://cpj.org/2020/01/tanzanian-authorities-ban-online-tv-station-fine-2/. See also American Bar Association, Center for Human Rights, Report on the arbitrary suspension of Kwanza Online TV for sharing information related to the COVID-19 pandemic, October 22, 2020.

4 Committee to Protect Journalists, Tanzania bans Kwanza Online TV for 11 months citing ‘misleading’ Instagram post on COVID-19, July 09, 2020, available at: https://cpj.org/2020/07/tanzania-bans-kwanza-online-tv-for-11-months-citing-misleading-instagram-post-on-covid-19/

5 Committee to Protect Journalists, Tanzanian newspaper banned from publishing online for 6 months over COVID-19 report, May 11, 2020, available at: https://cpj.org/2020/01/tanzanian-authorities-ban-online-tv-station-fine-2/

6 Committee to Protect Journalist, Tanzanian government revokes license of Tanzania Daima newspaper, June 26, 2020, available at: https://cpj.org/2020/06/tanzanian-government-revokes-license-of-tanzania-daima-newspaper/

7 Committee to Protect Journalists, Tanzanian authorities ban online TV station, fine 2 others, January 8, 2020 available at: https://cpj.org/2020/01/tanzanian-authorities-ban-online-tv-station-fine-2/

8Committee to Protect Journalists, East Africa court rules that Tanzania’s Media Services Act violates press freedom, March 28, 2019, available at https://cpj.org/2019/03/east-african-court-rules-that-tanzanias-media-serv/

9 We refer to cases such as the arrest of prominent comedian, Idris Sultan, in May 2020 (https://thrdc.or.tz/tanzanian-comedian-and-actor-mr-idris-sultan-charged-for-failure-to-register-a-sim-card/), and the disbarrment from practicing law of prominent lawyer and human rights advocate, Fatma Karume (https://www.icj.org/tanzania-icj-calls-for-reinstatement-of-lawyer-fatma-karumes-right-to-practice-law/).

10 Committee to protect journalists, Mwanachi, The Citizen, last seen in Tanzania, November 21, 2017, available at https://cpj.org/data/people/azory-gwanda/.

11 American Bar Association, Center for Human Rights, Tanzania: Preliminary Analysis of the criminal case against Tito Magoti and Theodory Giyani, July 28 2020, available at https://www.americanbar.org/groups/human_rights/reports/tanzania–preliminary-analysis-of-the-criminal-case-against-tito/.

12 Committee to Protect Journalists, Tanzanian journalist Erick Kabendera freed, but faces hefty fines, February 24, 2020, available at: https://cpj.org/2020/02/tanzanian-freelancer-erick-kabendera-freed-but-fac/

13 Mandates of the Special Rapporteur on the situation of human rights defenders; the Working Group on Arbitrary Detention; the Working Group on Enforced or Involuntary Disappearances; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; and the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Letter to President of Tanzania, Reference AL TZA 1/2020, January 31,2020, available at https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25049.

14 International Commission of Jurists, Tanzania: ICJ Calls for the reinstatement of lawyer Fatma Karume’s right to practice law, October 8, 2020, available at https://www.icj.org/tanzania-icj-calls-for-reinstatement-of-lawyer-fatma-karumes-right-to-practice-law/.

15The Citizen, Zitto Kabwe sentenced to serve one year ban not writing seditious statements, may 29, 2020, available at https://www.thecitizen.co.tz/news/Zitto-Kabwe-found-guilty-of-sedition/1840340-5567040-m7pifrz/index.htm

16 The cancellation of a training organised by Tanzania Human Rights Defenders Coalition (THRDC), the subsequent arrest of THRDC’s Director, Onesmo Olengurumwa, and suspension of the activities of the organisation, as well as freezing of their accounts exemplifies the misuse of these laws against civil society (See: https://www.aa.com.tr/en/africa/tanzania-human-rights-group-suspends-operations/1945400)

17 DefendDefenders, Tanzania: Respect the right to freedom of association, August 24, 2020, available at https://defenddefenders.org/tanzania-respect-the-right-to-freedom-of-association/.

18 Two employees of one of THRDC were arrested in Dar es Salaam and thereafter authorities proceed to arbitrarily cancel the hosting of a three-day security training for 30 human rights defenders. The police claimed that the training was in contravention of the “laws of the land” but did not give a specific provision

19 These include the Electronic and Postal Communications (Online Content) Regulations; Media Services Act; Cybercrimes Act; and Political Parties Amendment Act.

20 Written Laws (Miscellaneous Amendments Act (No. 3) of 2020)

21 Southern Africa Litigation Center, Joint letter, The Written Laws Miscellaneous Amendments Act no.3 ( 2020), available at https://www.southernafricalitigationcentre.org/wp-content/uploads/2020/08/Honourable-Minister-of-Justice-for-the-Republic-of-Tanzania.pdf-August-2020.pdf.
22 Section 7(b) of the Written Laws Amendments Act

23 The African Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa provide that States must ensure through adoption of national legislation that any individual, group of individuals or nongovernmental organization is entitled to bring a human rights claim before a judicial body for determination, because such claims are matters of public concern.

24 Amendments to the Chapter 310 of the Law Reform (Fatal accidents and miscellaneous provisions) Act and to the Chapter 3 of the Basic Rights and Duties Enforcement Act

25 See for example communication of the Mandates of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; and the Special Rapporteur on the rights to freedom of peaceful assembly and of association to the government of the United Republic of Tanzania, AL TZA 3/2020, 17 July 2020, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25442

26 These include the verbal abuse and threats of execution against Zitto Kabwe, leader of Alliance for Change and Transparency (ACT) Wazalendo opposition party (see: https://www.bbc.com/news/world-africa-51355148), his conviction for sedition for statements he made at a press conference in relation to alleged extra judicial killings by state security forces (https://www.thecitizen.co.tz/news/Zitto-Kabwe-found-guilty-of-sedition/1840340-5567040-m7pifrz/index.html), and his re-arrested together with several party members while they participated in an internal meeting (https://www.aljazeera.com/news/2020/06/24/tanzanian-opposition-leader-zitto-kabwe-released-on-bail/); as well as the conviction of nine Members of Parliament belonging to the opposition Chama Cha Demokrasia(CHADEMA) party and their sentencing in March 2020 to five months in prison or an alternative fine, for allegedly making seditious statements (https://www.reuters.com/article/us-tanzania-politics/tanzanian-opposition-lawmakers-found-guilty-of-making-seditious-statements-idUSKBN20X2O8); and the attack against the party leader, Freeman Mbowe, by unknown assailants leaving him with a broken leg (https://www.reuters.com/article/us-tanzania-politics/tanzanian-opposition-lawmakers-found-guilty-of-making-seditious-statements-idUSKBN20X2O8).

27 African Commission on Human and Peoples’ Rights, Press statement of the African Commission on Human and Peoples’ Rights on the deteriorating human rights situation in Tanzania,, available at https://www.achpr.org/pressrelease/detail?id=459.

28 Office of the UN High Commissioner for Human Rights, “In her global human rights update, Bachelet calls for urgent action to heighten resilience and protect people’s rights,” 14 September 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26226&LangID=E

29 Tanzania Human Rights Defenders Coalition, Two Kenyan Journalists convicted and fined in Tanzania, repatriated back to Kenya, May 21, 2020, available at https://thrdc.or.tz/blog/.

30American Bar Association, Center for Human Rights, Report on the arbitrary suspension of Kwanza Online TV for sharing information related to the COVID-19 pandemic, October 22, 2020. See also Kwanza TV Instagram, available at https://www.instagram.com/p/CCGT_5ECT_n/?utm_source=ig_web_button_share_sheet
31 Disease pandemics and the freedom of opinion and expression, A/HRC/44/49, para. 30

32 The Guardian, Coronavirus pandemic is becoming a human rights crisis, UN warns, 23 April 2020, available at https://www.theguardian.com/world/2020/apr/23/coronavirus-pandemic-is-becoming-a-human-rights-crisis-un-warns. See also UNHRC,, UN Special Rapporteur on freedom of peaceful assembly and of association, States responses to Covid 19 threat should not halt freedoms of assembly and association, April 14, 2020, available at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25788&LangID=E.

33 BBC, Tanzania border village attack “leaves 20 dead”, October 16, 2020, available at https://www.bbc.com/news/live/world-africa-47639452?ns_mchannel=social&ns_source=twitter&ns_campaign=bbc_live&ns_linkname=5f896f00c4548e02bf3cb441%26Tanzania%20b order%20village%20attack%20%27leaves%2020%20dead%27%262020-10-16T10%3A29%3A29.229Z&ns_fee=0&pinned_post_locator=urn:asset:2f81fc88-030c-49d4-9d25-b8268a2dbf55&pinned_post_asset_id=5f896f00c4548e02bf3cb441&pinned_post_type=share

Joint Civil Society Statement in the Case of Prof. Chidi Anselm Odinkalu v. Kaduna State: An Opportunity to Protect Free Speech in Nigeria

On October 22, 2020, an important case comes for decision before the Federal High Court sitting in Kaduna, north-west Nigeria. The case – brought by Professor Chidi Anselm Odinkalu – will have an important impact on the rights of people in Nigeria to voice their opinions in matters of public interest and question those in authority. We, the undersigned organisations and individuals, see this upcoming case as an opportunity for Nigeria’s judiciary to ensure that the protection of human rights in the country aligns with the Federal Republic of Nigeria’s constitutional, regional and international human rights obligations. In particular, this case provides an opportunity for the judiciary to reinforce the fundamental rights to freedom of expression, access to information, and civic participation.

The case before the Federal High Court challenges the constitutionality of criminal charges against Prof. Odinkalu, a renowned Nigerian human rights lawyer and former Chairperson of Nigeria’s National Human Rights Commission, following a televised interview he gave in February 2019 in Abuja, the Federal Capital. In the interview, Prof. Odinkalu challenged claims by the Governor of Kaduna State Mallam Nasir El-Rufai – made a day before scheduled elections in the State – that 66 members of the Fulani ethnic group had been killed in Kajuru, Kaduna State. Prof. Odinkalu stated that the Governor’s statement appeared to have no basis in reality and could not be verified by the relevant state agents. He further expressed concern that the statement could cause ethnic tensions leading to electoral violence.

Following the televised interview, on March 18, 2019, Prof. Odinkalu was charged by the Director of Public Prosecution (DPP) of Kaduna State with inciting disturbance, injurious falsehood, public nuisance, and furnishing false information. The case, which was initiated before the Magistrate Court in Kaduna, was fraught with numerous procedural irregularities including an undated case file with no file number; closed hearings from the public; and the continuation of the case in the absence of Prof. Odinkalu despite an order from the High Court staying proceedings in the case. On October 26, 2020, the State High Court of Kaduna will preside over the judicial review of the criminal proceedings in the Magistrate Court of Kaduna.

The judgment of the Federal High Court on October 22, 2020 presents a monumental opportunity for the court to recognise the right to freedom of expression and ensure that it is enforced in Kaduna State in accordance with the country’s human rights obligations. Government officials and people in authority are not exempt or protected from criticism. United Nations special experts and mechanisms have specifically highlighted in reference to Nigeria, which includes all its Federal States, that public officials are required to tolerate greater criticism than the rest of society and that actions taken by them should not stifle public debate. While the right to freedom of expression may be restricted for public health and public security reasons, such restrictions – even when provided for by law – must be justifiable in a democratic society and must be necessary to achieve the stated purpose. Furthermore, any limitations must be the least restrictive means to achieve the objective.

The African Court on Human and Peoples’ Rights has held that seeking to impose a prison sentence, let alone corporal punishments such as lashings, for criticism of a public authority – whether true or otherwise – can never be necessary or proportional. Regional and international bodies have further called on all States to repeal criminal defamation laws, as well as all laws which effectively criminalise defamation, sedition, insult and false news. Where necessary, such infractions can and should be dealt with through civil proceedings, which should also be adequately proportionate and provide appropriate defences.

Given Nigeria’s regional and international obligations, as a signatory to several treaties including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, we are concerned that the Kaduna State government chose to undertake a criminal prosecution against Prof. Odinkalu for what is clearly protected speech. The undersigned organisations and individuals thus look forward to the decision of the Federal High Court of Nigeria in this important case.

Organisations

  1. African Centre for Media & Information Literacy (AFRICMIL)
  2. African Defenders (Pan African HRDs Network)
  3. African Freedom of Expression Exchange (AFEX)
  4. Africa Judges and Jurists Forum
  5. AJPD – Angola
  6. Amnesty International
  7. Center for Democracy and Development (CDD)
  8. Centre for Human Rights Education, Advice and Assistance (CHREAA)
  9. Chapter One Foundation
  10. DefendDefenders (East and Horn of Africa Human Rights Defenders Project)
  11. DITSHWANELO – The Botswana Centre for Human Rights
  12. Friends of Angola (FoA)
  13. Gender Centre for Empowering Development (GenCED)
  14. Global Rights
  15. Human Rights Defenders Network-SL
  16. Human Rights Institute of Southern Africa (HURISA)
  17. International Commission of Jurists- Kenya
  18. International Refugee Rights Initiative 
  19. Kenya Human Rights Commission
  20. Media Rights Agenda
  21. MOSAIKO-Angola
  22. Mouvement Inamohoro, Femmes et Filles pour la paix et la sécurité
  23. Open Bar Initiative, Nigeria
  24. Open Society Initiative for Southern Africa (OSISA)
  25. Pan African Lawyers Union (PALU)
  26. Public Interest Lawyers League (PILL) Nigeria
  27. Robert F. Kennedy Human Rights
  28. SADC Lawyers Association
  29. Southern Africa Human Rights Defenders Network
  30. Tanzania Human Rights Defenders Coalition
  31. Tap Nitiative for Citizens Development
  32. The Association of Concerned Africa Scholars (ACAS-USA)
  33. Torture Abolition and Survivors Support Coalition International (TASSC)
  34. Zimbabwe Human Rights NGO Forum
  35. Zimbabwe Lawyers for Human Rights

Individuals    

  1. Delma Monteiro                                 Angola
  2. Lúcia da Silveira                                 Angola
  3. Garcia Mvemba                                  Angola
  4. Godinho Cristóvão                             Angola
  5. Julio Candieiro                                   Angola
  6. Fortunato Paixão                                 Angola
  7. Cristina Gouveia                                 Angola
  8. Alice Mogwe                                      Botswana
  9. Marie Louise Baricaco                       Burundi
  10. Star Rugori                                          Burundi          
  11. Joseph Bikanda                                   Cameroon
  12. Ady Namaran Coulibaly                     Cote d’Ivoire
  13. Hannah Forster                                   Gambia
  14. Edmund Amarkwei Foley                  Ghana 
  15. Abdul Noormohamed                         Kenya
  16. Andrew Songa                                    Kenya
  17. Crystal Simeoni                                  Kenya 
  18. Diana Gichengo                                  Kenya
  19. Donald Deya                                       Kenya
  20. Irene Soila                                           Kenya
  21. James Gondi                                       Kenya
  22. Maureen Achieng Akena                    Kenya 
  23. Patricia Nyaundi                                 Kenya
  24. Roland Ebole                                      Kenya
  25. Charles Kajoloweka                            Malawi
  26. Happy Mhango                                   Malawi
  27. Nikiwe Kaunda                                   Malawi           
  28. Tiseke Kasambala                              Malawi
  29. Victor Mhango                                    Malawi           
  30. Professor Adriano Nuvunga               Mozambique
  31. Custodio Duma                                   Mozambique  
  32. Vicente Manjate                                 Mozambique
  33. Norman Tjombe                                 Namibia
  34. Abdul Mahmud                                   Nigeria
  35. Abiodun Baiyewu                               Nigeria
  36. Ariyo-Dare Atoye                               Nigeria
  37. Cheta Nwanze                                     Nigeria
  38. Chido Onumah                                   Nigeria
  39. Edet Ojo                                              Nigeria
  40. Mbasekei Martin Obono                     Nigeria
  41. Nana Nwachukwu                              Nigeria
  42. Ohimai Amaize                                   Nigeria
  43. Omoyele Sowore                                Nigeria
  44. Steven Kefason                                   Nigeria
  45. Valnora Edwin                                    Sierra Leone
  46. Annah Moyo                                       South Africa
  47. Corlett Letlojane                                 South Africa
  48. Hakima Haithar                                  South Africa
  49. Nomsa Sizane                                     South Africa
  50. Samkelo Mokhine                               South Africa
  51. Simphiwe Sidu                                    South Africa
  52. Shuvai Nyoni                                      South Africa
  53. Sufiya Bray                                         South Africa
  54. Vusumuzi Sifile                                  South Africa
  55. Abdel-Moniem El Jak                        Sudan 
  56. Mary Pais                                            Swaziland
  57. Muzi Masuku                                      Swaziland
  58. Thulani Maseko                                  Swaziland
  59. Vera Mshana                                       Tanzania
  60. Dismas Nkunda                                  Uganda
  61. Jackson Odong                                    Uganda
  62. Lamunu Lamunu Prossy                     Uganda
  63. Nelly Badaru                                       Uganda
  64. Salima Namusobya                             Uganda
  65. Sharon Nakandha                                Uganda
  66. Linda Kasonde                                    Zambia
  67. Professor Michelo Hansungule           Zambia
  68. Muleya Mwananyanda                       Zambia
  69. Muluka Miti-Drummond                    Zambia
  70. Vusumuzi Sifile                                  Zambia           
  71. Justice Alfred Mavedzenge                Zimbabwe
  72. Arnold Tsunga                                    Zimbabwe
  73. Brian Tamuka Kagoro                                    Zimbabwe
  74. Makanatsa Makonese                         Zimbabwe
  75. Charles Clint Chimedza                     Zimbabwe
  76. Deprose Muchena                               Zimbabwe
  77. Fungisayi Patricia Mwanyisa             Zimbabwe
  78. Hardlife Mudzingwa                           Zimbabwe
  79. Janah Ncube                                       Zimbabwe
  80. Janet Zhou                                           Zimbabwe
  81. Kelvin Kabaya                                    Zimbabwe
  82. Lloyd Kuveya                                     Zimbabwe
  83. Mamukeleni Tsunga                           Zimbabwe
  84. Memory Zonde-Kachambwa              Zimbabwe
  85. Mooya Nyaundi                                  Zimbabwe
  86. Muchengeti Hwacha                           Zimbabwe
  87. Munjodzi Mutandiri                            Zimbabwe
  88. Musa Kika                                          Zimbabwe
  89. Otto Saki                                             Zimbabwe
  90. Passmore Nyakureba                          Zimbabwe
  91. Siphosami Malunga                            Zimbabwe
  92. Stanely Nyamanindi                           Zimbabwe
  93. Professor Carl LeVan                         American University 
  94. Desiree Cormier Smith                       Open Society Foundations

Lesotho: Authorities must withdraw proposed Internet Broadcasting rules that would curtail freedom of expression and association

Today we joined hands with the International Commission of Jurists (ICJ) and Transformation Resource Centre (TRC) in calling the Lesotho authorities to withdraw proposed Internet Broadcasting Rules that would result in the freedom of expression and association being severely curtailed.

If enacted into law, the proposed regulations would also classify persons with more than 100 followers on social media platforms such as Facebook and Twitter, as internet broadcasters, thereby triggering the requirement to first register with the authorities, before operating their social media account