Category: Documentation

SAHRDN 2020 Human Rights Award Nominations now open

We are seeking nominations for HRDs – an individual or organization working in any of the 16 Southern Africa region  – who have demonstrated an exceptional commitment to human rights defending. In these COVID-19 times,  human rights defenders are continuously under pressure globally, it’s never been more important to raise the profile and honor the work, of brave women and men around the world fighting to promote human dignity usually at great personal risk. To nominate individuals or organizations, please download the nomination forms below. Please use the language of your choice as the nomination forms are in English, French, and Portuguese.

The deadline to submit the nomination forms is 31 August 2020

The Southern Africa Human Rights Round-up

The Southern Africa Human Rights Roundup is a weekly column aimed at highlighting important human rights news in southern Africa. It integrates efforts of human rights defenders and facilitates evidence-based engagement with key stakeholders, and institutions on the human rights situation across the region. The roundup is a collaboration between the Southern Africa Human Rights Defenders Network and Maverick Citizen.

On 7 July 2020, the government of Malawi issued a little-noticed announcement, withdrawing its decision on 12 June that the country’s chief justice, Andrew Nyirenda, had to go on compulsory leave pending retirement. In a nod to both the separation of powers and judicial independence, the notice acknowledged that the matter of the chief justice’s leave and how or when it should be taken was a “matter between the Honorable the Chief Justice and [the] Judicial Service Commission”.

It was a fitting bookend to the recent story of one of Africa’s unquestionably more unlikely political models, where the judiciary has emerged with credit in policing the ground rules of democratic politics.

In the 26 days from 12 June to 7 July, Malawi navigated a tumultuous path back to the future. On Sunday 14 June, the High Court of Malawi issued two orders suspending the presidential notice that would have effectively sacked the chief justice.

Two weeks later, on 28 June, Lazarus Chakwera, a Pentecostal pastor, took the oath as independent Malawi’s sixth president, replacing Arthur Peter Mutharika, the law professor whom he defeated in the rerun in June 2020 of a ballot from May 2019, which Malawi’s courts had found to have been characterised by high electoral larceny.

The path to this outcome was both tortured and, in the view of many people outside Malawi at least, improbable.

The Tipp-Ex elections

When Malawi went to the polls to elect a president on 21 May 2019, there were 10 parties on the ballot paper. They included Peter Mutharika of the Democratic Progressive Party (DPP), first elected in 2014. He was running for a second term.

Mutharika’s vice-president, Saulos Chilima, having fallen out with him, ran on the platform of the United Transformation Movement (UTM). Chakwera was the candidate of the Malawi Congress Party (MCP). Also on the ballot was Atupele Muluzi of the United Democratic Front (UDF).

Malawi’s first-past-the-post  electoral system was designed to produce as the winner the candidate with the highest lawful votes. The Malawi Electoral Commission registered 6,859,570 voters to vote in the ballot.

At the end of the contest, the commission announced a turnout of 5,105,983 votes, crediting Mutharika with 38.57% of the votes, Chakwera with 35.41% and Chilima with 20.24%. Muluzi came a distant fourth with 4.67%.

Both Chakwera and Chilima were unhappy with the declared results. The public mood was also fractious, and there were allegations that the electoral commission, led by supreme court justice Jane Ansah, had rigged the polls. Duelling public protests ensued, with vocal civil society advocating that #JaneAnsahMustFall as others claimed that she was the victim of targeted misogyny.

With the support of civil society, Chakwera and Chilima headed to Malawi’s constitutional court to challenge the results. On 3 February 2020, the court nullified the result and ordered a fresh presidential ballot with two stipulations. First, the rerun had to be held not later than six months from the judgment. Second, the winner had to emerge with a clear majority of at least 50% plus one of the votes cast. This was a high threshold for a country where presidential contests had historically been squeaky affairs.

As he was entitled to, Mutharika appealed the judgment to the supreme court. On 8 May, the supreme court affirmed the judgment of the constitutional court, throwing out Mutharika’s appeal. In doing so, the court identified three categories of irregularities that had marred the elections. It found “documents whose contents were altered by either the use of Tipp-Ex, a manual crossing out of the original content or overwriting on the original document. Then there are … completely new documents. In other words, documents that were never, at all, submitted by the polling station. Examples are duplicate, fake, reserve and uncustomised documents. The third category is unsigned documents.”

Under the terms of the court orders, the rerun was set to take place on or before 2 July. There was not a lot of time to get it done. This was only the second time that a court in Africa had nullified a presidential contest.

The first time, in 2017 in Kenya, ended in a fiasco when the irate ruling party decided in response to eviscerate the electoral process to the point where the opposition effectively pulled out of the rerun, paving the way for the incumbent to emerge practically unopposed.

Courts vs. despots

By the time the Malawi supreme court had handed down its judgment, the world was already in the throes of the Covid-19 pandemic. In other parts of Africa, Mutharika’s peers had set about using the pandemic as cover to retain power. In Guinea, President Alpha Condé used it to amend the constitution in order to secure a life presidency. In Burundi, President Pierre Nkurunziza saw in the pandemic an opportunity to install his hand-picked successor.

This was an appealing playbook for Mutharika. On 20 March, he proclaimed an indefinite “state of national disaster” during which he banned “all gatherings including weddings, funerals, church, congregations, rallies and government meetings” of more than 100 people. With this he sought to ban all political rallies during the period preceding the proposed rerun.

Five weeks later, on 28 April, high court judge Kenyatta Nyirenda stopped Mutharika’s government from “suspending or implementing the complete closure of religious gatherings”.

For Mutharika and his coterie, the courts and the church were tag-team against him in a contest in which his biggest opponent was a pastor. It was an odd place to be for somebody who is arguably Malawi’s best known law professor. He should have known that Malawi’s political history was defined by the contest between courts and despots, one in which his own family members have been prime actors.

On Christmas Eve in 1981, the government of Malawi’s founding president, “Ngwazi” Hastings Kamuzu Banda, abducted Malawi’s exiled first attorney-general and justice minister, Orton Chirwa, and his wife, Vera, from Zambia and returned them to the capital city, Lilongwe.

Orton was the founding president of the MCP, which led Malawi to independence in 1964. He was also Malawi’s first lawyer. As minister in the transitional government of 1962, Orton took issue with the presumption of innocence and burden of proof in criminal trials, arguing for their replacement with traditional African norms and institutions. As attorney-general, he pushed for these reforms but was turfed out of cabinet in September 1964 in a power tussle with Banda, before the reforms were promulgated.

A sequence of unsolved murders in the country ended up in the Chilobwe murder trials in 1969, which collapsed when the prosecution could not meet the standard of proof. In response, Banda scrapped criminal trials by regular courts, transferring jurisdiction over crimes to traditional courts, comprising a traditional chief as chair, with three citizen assessors and one lawyer.

Banda, by this time also his own justice minister, appointed the traditional leaders. They also reported to him. In an ironic twist of fate, Orton would be arraigned for treason in 1983 before the kind of traditional courts he had advocated for as attorney-general. His trial was a charade. The court denied him and Vera – herself Malawi’s first female lawyer – legal defence or the right to call witnesses.

He was initially sentenced to death on conviction, but Banda commuted this to life imprisonment. Orton spent the remainder of his life in solitary confinement at the Zomba prison in Malawi, where, in December 1992, he died at the age of 73.

It was the eve of Malawi’s transition from the despotism of the “Ngwazi”. In 1994, under the new multiparty constitution, Banda ran against and lost to Bakili Muluzi of the UDF, who himself had served Banda as minister. In 2003, a term-limited Muluzi sought to amend the constitution to extend his tenure.

Frustrated by the courts and the people, he chose a little-known economist and former deputy governor of Malawi’s central bank, Bingu wa Mutharika, as his successor. Following a royal falling-out between them, Bingu fled Muluzi’s UDF to start up the DPP. In 2009, Muluzi sought to return to presidential politics, but the courts ruled him permanently term-limited.

Seeking to consolidate power, Bingu tapped his own brother, Arthur Peter, as his closest adviser and minister, before installing him formally as his chosen successor as DPP leader. When Bingu died suddenly in 2012, his brother attempted to short-circuit the constitutional line of succession by hiding his demise and then exporting his body to South Africa in the hope that some malefaction could be invented to stop the vice-president from taking over.

He failed and the body of his older brother suffered the indignity of being buried in a state of considerable putrefaction. A man who could do that to the remains of his brother and benefactor should not have been entrusted with power, but in 2014 the people of Malawi did.

Back to the future

In the end, the country got tired of the despotic sleaze and cronyism of Peter Mutharika. Forcing him out, however, produced a drama fit for the script of Back to the Future. After being thrown out of power in 1994 following the 30 despotic years of the “Ngwazi”, the MCP was reluctantly accepted by Malawians this time as the vehicle for their political progress.

In doing so, however, they forced it to form alliances with nine other parties in the Tonse (together) Alliance, providing the kind of broad platform for what would become a sweeping victory and constraint on abuse of power.

To resist the Tonse Alliance, the Mutharika family made up with the Muluzis, enabling Atupele, Muluzi’s son, to become Mutharika’s running mate on the losing ticket.

The result is a rousing tale of democracy in all its messiness and inspiration. In all this, the people of Malawi found the voice to defend their democracy. When, therefore, Mutharika sought to oust their chief justice and eviscerate their judiciary, they rose as one to defend it.

In an unspoken understanding, Malawi’s judges have earned trust as the representatives of the only institution capable of holding the balance of power against the machinations of these resilient political families. It is an African example that should command attention beyond its own borders. 

Chidi Odinkalu is a former chair of Nigeria’s National Human Rights Commission and works with the Open Society Foundations.

Southern Africa Human Rights Round-up

The Southern Africa Human Rights Defenders Network and Maverick Citizen launched the Southern Africa Weekly Human Rights Roundup, aimed at highlighting important human rights news in Southern Africa. The Human Rights Roundup integrates efforts of human rights defenders and facilitates evidence-based engagement with key stakeholders, and institutions on the human rights situation across the region.

As Covid-19 takes hold in Africa, with rising numbers of infections, governments should prioritise the protection of Women Human Rights Defenders (WHRDs) who remain vital vehicles for social change and rights protection in the region.

The Covid-19 crisis has triggered disproportionate risks for marginalised and vulnerable communities globally and has made plain the structural inequalities built into our world. Across the globe, there has been an increase in authoritarianism and state repression in response to the pandemic, and southern Africa is no exception. Governments in the region have cracked down on dissent, activism and rights and increasingly securitised their enforcement of Covid-19 regulations. Thousands of citizens face fines, arrests, harassment and violence for violating Covid-19 regulations. 

WHRDS have played a significant role in fighting against this rollback of rights. Over the past three months, my organisation, the Advancing Rights in Southern Africa Program at Freedom House (ARISA) has spoken to WHRDs from Angola, Eswatini, Botswana, Lesotho, Mozambique and South Africa and participated in regional discussions to assess the impact of the pandemic and government responses on WHRDs and their work. We found that in addition to the unrelenting nature and impact of the public health crisis, repressive government actions pose a serious threat to WHRDs and the rights of vulnerable and marginalized communities.

International human rights organisations have warned that Covid-19 measures in many countries have further restricted the space for civic activism. WHRDs in southern Africa have long faced government-backed threats and harassment in retaliation for their activism. Those who speak out are routinely subjected to arrests, threats of, and acts of violence, and gendered attacks and harassment, including online.

In the context of Covid-19, this has been reinforced by the particular effects of the pandemic on women, such as the additional burden of care, restricted access to health services, and a reduction in income for women in the informal sector. WHRDs are at the forefront of mitigating these negative effects, calling for greater women’s representation in government health responses and ensuring that women’s rights are protected. This has brought them in direct opposition to some governments and led to attacks and their exclusion from national government health responses to the pandemic.

For example, in Zimbabwe, security forces arrested, abducted and tortured three women members of the opposition Movement for Democratic Change-Alliance in May, after they participated in a citizen demonstration over the lack of government assistance for poor and vulnerable communities during the pandemic. The women were released but later arrested for violating lockdown regulations and making supposedly false reports about their abduction and torture. They spent several days in custody – putting them at great risk of Covid-19 infection – before they were released on bail. 

In South Africa, attacks have taken place in the context of gendered socio-economic rights violations. Soon after a government declared nationwide lockdown in March, security forces evicted hundreds of shack dwellers in parts of the Western Cape and KwaZulu-Natal, despite a moratorium on evictions during the Covid-19 crisis. Evictions often disproportionately and adversely affect women and children. Gender activists seeking to prevent local authority-led evictions faced threats of arrest and violent treatment by the security forces. Police fired rubber bullets at scores of community members and activists protesting the evictions in the Western Cape.

WHRDs face additional barriers of economic and structural discrimination, which have been worsened by the pandemic and government restrictions. WHRDs and human rights organizations in Angola, Eswatini, Lesotho, Botswana informed ARISA that government resources for Covid-19 have failed to reach WHRDs and women’s rights organisations working in remote areas even though many are on the frontline of pandemic responses.

Organisations providing legal services for women reported a reduction in access to courts and legal information on women’s rights due to travel restrictions mainly in rural areas. Organisations have been unable to reach women who have in turn struggled to access courts for adjudication and redress.

In Lesotho and Eswatini, women’s rights organisations reported that they had struggled to provide legal services to women involved in land grabbing and land dispute cases. The organisations reported a fear of a spike in women being evicted from their land due to a lack of access to their services and legal dispute mechanisms.

Indigenous People’s Organisations (IPOs) and those working with indigenous communities in Angola, Botswana and South Africa have also stressed the specific effects of Covid-19 on indigenous women. Indigenous women face multiple layers of discrimination and limited access to health and other social services. Government regulations in response to the pandemic have heightened these challenges.

IPOs in Botswana informed ARISA about the lack of information on the pandemic in indigenous languages and a lack of resources to specifically address indigenous peoples’ needs. Indigenous women, who often have lower literacy rates but have the greater burden of care than indigenous men, are likely to be most affected by the dearth of information.

WHRDs have also reported that governments have failed to take the impact of Covid-19 on women’s livelihoods into account in their legislative responses to the pandemic. While various national regulations in the region have allowed for essential services, including food manufacturing and supermarkets to remain operational, informal traders – a large percentage of whom are women – have been excluded by these regulations.

Initial lockdown measures in almost all countries in the region required informal traders and vendors to vacate their trading sites. In many instances, these bans have remained largely in place, even as countries have eased their lockdowns. The bans and restrictions have impacted rural women and women informal traders.

In Angola and Eswatini, women’s rights organisations reported that many rural women farmers were unable to sell their produce and lost earnings. In Lesotho, Covid-19 regulations failed to include informal traders and rural women farmers as essential goods and services providers leading to questions of whether rural women farmers and traders could continue to operate without violating regulations. In Namibia, the City Council of Windhoek initially closed all informal markets before re-opening some informal markets under strict conditions. In Zimbabwe, even as the government eased restrictions, it retained its ban on informal traders. In one case, police in Mutare, in the eastern province of Manicaland, confiscated and burnt tons of fresh produce at the province’s largest open-air fresh food market as part of enforcing lockdown measures.

WHRDs have also had to deal with a spate of gender-based violence cases during the pandemic. While gender-based violence in southern Africa is endemic, the number of reported cases of violence against women in a number of countries has increased during the pandemic. A women’s rights organization in Lesotho informed ARISA that the country recorded 1,450 cases of gender-based violence, including 12 cases of femicide during the country’s emergency lockdown. They reported that the number had surpassed annual numbers of gender-based violence in the country.

In South Africa, despite police figures indicating a decrease in reported cases of domestic violence during the lockdown period compared to previous years, calls to domestic violence hotlines increased significantly. As Covid-19 restrictive measures eased, a spate of femicides in the country compelled President Cyril Ramaphosa to condemn the rise in gender-based violence cases. Women’s rights activists have called for tougher action by the police and expressed frustration at the slow-pace of reforms to address gender-based violence.

Government-led pandemic health responses in local, national and regional Covid-19 policy and decision-making spaces have in many cases failed to reflect women’s experiences.

Although women constitute over 50% of the poor population in the Southern Africa Development Community, their views are often overlooked. There are few WHRDs or women’s rights organisations represented on national Covid-19 task forces or committees and their expertise and knowledge has not been fully incorporated into public health responses.

In Malawi, WHRDs called for equal representation of women and men in the decision making process after former President Peter Mutharika announced the restructuring of a special cabinet committee on Covid-19 to a task force in May. Only four out of the 21 members of the task force were women. Another organisation, Human Rights of Women and Girls with Disabilities (HRWGD), made a similar call highlighting the lack of women with disabilities on the task force.

In grappling with these multiple challenges from the pandemic, WHRDs are experiencing significant socio-psychological pressure. They face extra burdens of care in their homes, loss of earnings and the threat of infections in their interactions with communities. In Botswana and Zimbabwe, women journalists informed ARISA that the pandemic had added to their hours of work and placed extra burdens on their lives. This was coupled with the fear of infection due to a lack of protective equipment and overexposure to the virus in the course of their work.

The reduced public visibility of WHRDs and their reporting on rights due to Covid-19 restrictions has heightened the risk of violence for many WHRDs and further impacted their social and mental wellbeing. WHRDs reported that they felt less safe during Covid-19 lockdowns. Some reported experiencing more online harassment after they turned to online forms of activism and mobilisation during the pandemic.

However, it’s not all doom and gloom. The crisis has also led to different forms of mobilisation by WHRDS, including in responses to the crisis. Throughout southern Africa, WHRDs are providing essential services, distributing food, care packages and protective equipment to communities and bolstering government responses. They are working closely with local authorities and donors to generate awareness about the needs of the most vulnerable and ensuring that they are catered for. WHRDs have also shone a spotlight on national inequalities and inequities and engendered critical reflection by governments on the need for rights respecting and inclusive political and socio-economic reforms.

The catalytic role that WHRDs play in the region underscores the need for the introduction of government protections for WHRDs in the region that is not only representative and consultative in approach, but responsive to their multiple and intersectional needs. 

Tiseke Kasambala is the Chief of Party, Advancing Rights in Southern Africa Program.

The Southern Africa Human Rights Defenders Stands in Solidarity with Activists against SLAPP Suit Litigation

The Southern Africa Human Rights Defenders Network (SAHRDN) stands in solidarity with six South African human rights defenders (HRDs) who are facing a defamation suit filed by Australian mining company, Mineral Commodities Ltd (commonly referred to as the “MRC”).  The HRDs include Xolobeni community activist Mzamo Dlamini, environmental lawyer Cormac Cullinan, former Centre for Environmental Rights’ attorneys Christine Reddell and Tracey Davies, Lutzville (West Coast) community activist Davine Cloete, and social worker, John GI Clarke.

This week, the Western Cape High Court is hearing an application which finds its roots on MRC’s long-standing journey to develop local mining relating to titanium minerals at Xolobeni, in Pondoland and tormin mineral sands operation, which are both situated on the Wild Coast in the northern part of South Africa’s Eastern Cape province. Since the start of the mine’s project proposal, the community members of Xolobeni have strongly resisted bids against both the State and the MRC to grant mining license for the suggested local mining ventures. They have been subjected to several human rights violations as a result. This includes the murder of Sikhosiphi ‘Bazooka’ Radebe who was killed at his home after receiving anonymous death threats, and the arrests are yet to be made. Additionally, due to the ongoing pressure from both the State and the MRC in fighting to implement the proposed project, members of the Xolobeni community engaged in a landmark public interest litigation in 2018, in which the Pretoria High Court held that “the Minister of Mineral Resources cannot grant a license to any mining company without first obtaining the full and informed consent of the affected community”.

As such, the matter inspired activism on both grassroots, national and international level, with criticisms expressed against the MRC and the State through the use of public platforms by countless individuals, including the six HRDs in which the case is brought against.

In its application, the MRC is claiming damages of R14.25 million ($ 846 000), or in the alternative, public apologies, from the six South African HRDs. However, the HRDs argue in their court papers that the application is part of a strategy employed by the MRC to silence and intimidate them from exercising their constitutional right to freedom of expression, and this is commonly referred to as a ‘SLAPP’ suit. At present, South Africa has no established legislation to regulate the issue of SLAPP suits and there is little legal precedent from courts on this subject matter. Nonetheless, countries such as Canada, Australia and several States in America have enacted anti-SLAPP suits legislation, which mainly find its roots from environmental law. In terms of the international legal framework, the UN Committee on Economic, Social and Cultural Rights in its 2017 General Comment elaborated on States’ obligations to protect individuals under their jurisdiction from interference by third parties, by requiring State Parties to take measures, such as adopting a legal framework guaranteeing the free enjoyment of human rights to its citizens. Additionally, the UN Guiding Principles on Business and Human Rights provide the obligation to respect human rights as a global standard of expected conduct for all business enterprises wherever they operate.

“Now more than ever, we are witnessing an increase of human rights violations committed by both the State and major corporations not only in South Arica, but the entire African region and the world as a whole”, said Arnold Tsunga, Steering Committee Member of the SAHRDN. “The protection and fulfillment of the Constitution is dependent on a number of factors, such as ensuring public participation through safeguarding the right to freedom of expression and ensuring that no person is subjected to intimidation or harassment while exercising such rights”, he added.

The significance of the hearing that is taking place this week relates to the court being asked to consider the objections put forward by the defendants through two special pleas, entitled “Abuse of process and strategic litigation against public participation” and “Failure to plead patrimonial loss and failure to plead falsity”. In addition to the argument that the application amounts to the abuse of a court process that is aimed at silencing the defendants, the HRDs’ second special plea argues that a major corporation such as the MRC should only be able to bring a claim for defamation in circumstances where it can prove, amongst other things, that the statements made were false and it has suffered financial loss as a result. Nonetheless, should the application succeed, the HRDs are asking the court to develop the common law by bringing it in line with the Constitution and ensure that activists and individuals are protected from SLAPP litigation in the future. Additionally, the Centre for Applied Legal Studies (CALS) and the University of Cape Town have joined the case as friends of the court, with each organization arguing that the application should be dismissed on the basis that it is a SLAPP suit and lacks merit and that the protection of academic freedom is fundamental and should be recognized by law as a “qualified privilege for academic speech”.

“As the SAHRDN we reiterate the pleas made by the HRDs and friends of the court in this case and we are hoping for a successful outcome that can create the potential of establishing a necessary legal framework that seeks to prevent the stifling of public participation, that is meant to strengthen the cornerstone of a democracy,” said Mr. Tsunga. “The use of SLAPP suits is a serious emerging threat against several human rights, and we hope that this issue can also be resolved in many parts of the region,” he added. “We are mindful that the fight will be long, but we will continue to stand in solidarity alongside every human rights defender who is faced by this issue and ensure that a better region is created where activists are protected and their safety is guaranteed when exercising their right to freedom of expression and participating in matters of public interest,” Mr. Tsunga concluded.

For more information please contact Simphiwe Sidu our Legal Advisor and RSA HRD Fund Coordinator on ssidu@southernafricadefenders.africa or Washington Katema our Regional Programmes  Manager at wkatema@southernafricadefenders.africa  or +27736202608

Happy Africa Unity Day: Silencing the gun, defeating COVID-19 and protecting human rights defenders


Southern Africa Human Rights Defenders Network and Pan- Africa Human Rights Defenders Network together with our sub-regional partners join the rest of the mother continent and her peoples to celebrate the 57th anniversary of Africa Day. We take this historic opportunity to remind our leaders that “silencing the gun” and defeating COVID-19 are not just mutually reinforcing objectives but are critical enablers of creating an inclusive and prosperous Africa, which is anchored on sustainable peace, justice, equality, human dignity and equal
opportunities for all.

SAHRDN welcomes Malawi’s Supreme Court of Appeal ruling and calls on the authorities in Malawi

Lilongwe and Johannesburg 09 May 2020

SAHRDN welcomes  Malawi’s Supreme Court of Appeal ruling and calls on the authorities in Malawi and SADC to sincerely guarantee a peaceful and credible fresh presidential election in Malawi.

The Southern Africa Human Rights Defenders Network (SAHRDN or the Defenders Network) welcomes the ruling by the Malawi Supreme Court of Appeal (SCA) to uphold the ruling by the Constitutional Court on February 3, 2020 to nullify the May 21, 2019 presidential election and order a fresh presidential election within 150 days, including weekends and holidays from the day of the ruling.  Malawi has set a democratic precedent in a voter-centric ruling,  which gave a new impetus to the imperative of the separation of power as a cardinal principle in a democratic society, and the will of the voters as the flywheel of a democratic and credible electoral process.

While the SAHRDN welcomes the SCA ruling, it is however disturbed by the incidents of politically motivated violence,  which has unfortunately claimed two lives so far and the threats of targeted political assassinations as widely reported in the media.  The SAHRDN, therefore calls for a peaceful, free, fair, and credible election, which guarantees, at the minimum; the security of the voter; security of the vote; and security of the candidates. The SAHRDN acknowledges that the hallmark of a credibly free and fair election is marked by “procedural certainty” in terms of the rules of the electoral game, and equally important, “outcome uncertainty”, – that there should be a no predetermined winner.

The SAHRDN reminds all the contesting candidates that the primary focus of a  democratic contest should be “on the will to transform people’s lives, and not “on the will to power at any cost”, -including walking over dead bodies to the State House, and – ruling over a divided, bitter and broken society. This, just like any other democratic poll  should be a “let live” election not a “let die” election, where intimation, violence and political assassinations are instruments of choice to “harvest fear” on the election day. The SAHRDN abhors an election where the voters will not have to make a choice between contesting candidates but to be coerced to  vote for peace or violence, death or life.

The authorities in Malawi should demonstrate political goodwill, respect for human rights and put in place mechanisms to ensure a peaceful electoral competition with zero tolerance to and no room for the “margin of terror” and enhance the integrity and quality of the election to significantly reduce the “margin of error”. A disputed election is a seedbed of more violence and a threat to regional peace, security, and stability.

Recommendations:

In light of the foregoing;

  1. The SAHRDN calls upon SADC, AU, UN  and the International Community writ large  to deploy qualified and experienced election observers without further delay. 
  2. The SAHRDN  urges all political parties/alliances, and candidates  to commit to a Code of Conduct which makes respective political parties, candidates and individuals accountable for any acts of violence and violation of human rights and other fundamentals.
  3. The SAHRDN calls on the security forces, the parliament, the judiciary, the media and the human rights defenders, in particular, Malawi’s Human Rights Defenders Coalition  to continue defending the Malawian constitution and protect the citizens of Malawi, -including  female and male civic space and human rights defenders and people living with albinism.
  4. The SAHRDN also calls upon President Arthur Peter Mutharika and the Malawi Electoral Commission to implement all key reforms recommended by the Constitutional Court and upheld by the Supreme Court of Appeals to ensure a free, fair and credible  electoral process, – with an undisputed outcome even during the COVID-19 global pandemic.
  5. The SAHRDN encourages all the key stakeholders, domestic, regional and international,  to spearhead an inclusive, sustainable and gender-sensitive Vote in Peace (VIP) “in an election with choice” campaign.
  6. The SAHRDNs also calls for an all stakeholderselectoral risk/integrity assessment to effectively mitigate against current and potential incidents of electoral fraud, electoral malpractice, systemic manipulation and electoral violence among other electoral malfeasances. Malawi should set a “gold standard” for the conduct of a credibly  democratic election in the region, and the world at large.
  7. In conclusion, the SAHRDN reminds the authorities in Malawi of its obligations and urges them to observe and respect their own constitution,  and respect the  international and regional statutes, treaties, protocols they are part too, including but not limited to the Universal Declaration of Human Rights, the African Charter on Human and People’s Rights, the Africa Charter on Democracy, Elections and Governance, the SADC Principles and Guidelines Governing Democratic Elections,  and the Maputo Protocol.

End//

“Standing with HRDs during elections in the COVID-19 global crisis”

For more information please contact Washington Katema, Regional Programmes Manager at wkatema@southernafricadefenders.africa or +27 73 620 2608

Southern Africa Human Rights Roundup

Issue 3, 26– 1 May 2020

The Southern Africa Human Rights Defenders Network and Maverick Citizen launched the Southern Africa Weekly Human Rights Roundup, aimed at highlighting important human rights news in Southern Africa. The Human Rights Roundup integrates efforts of human rights defenders and facilitates evidence-based engagement with key stakeholders, and institutions on the human rights situation across the region.

This week we examine how southern African countries are responding to the dual paradoxical objectives of ensuring that measures to protect people from Covid-19 do not negatively affect human rights and the strengthening of democracy.

The number of Covid-19 cases continues to grow in southern Africa, threatening scheduled elections and democratic processes.

However, in the words of UN High Commissioner for Human Rights Michelle Bachelet, on 27 April, emergency powers invoked to fight Covid-19 “should not be a weapon governments can wield to quash dissent, control the population, and even perpetuate their time in power”.

As a recent article in Maverick Citizen explains, the UN has reiterated time and time again that respect for all human rights — economic, social, civil and political — is fundamental to the success of the fight against Covid-19.

Nonetheless, the chorus of complaints about how Covid-19 measures are deliberately being made repressive by some governments in southern Africa — to produce political outcomes as opposed to public health outcomes — is increasing in volume. 

With Covid-19 hanging over their heads, African governments are faced with a difficult choice: to go ahead with scheduled elections and risk accelerating infections or to postpone and compromise their democracy, including by creating potential leadership legitimacy crises.

Some countries, such as South Africa and Zimbabwe, have already suspended political activity and elections due to fears of spreading the virus. Others like Malawi and Zambia appear to be proceeding with elections as planned or as ordered by the court while implementing measures that have the effect of limiting the enjoyment of fundamental rights in a way that affects the potential freeness and fairness of the polls.

Concerns about preparedness from election authorities and political parties have also been considered.

The African Union’s governance instruments affirm that “regular elections constitute a key element of the democratisation process and, therefore, are essential ingredients for good governance, the rule of law, the maintenance and promotion of peace, security, stability and development”.

It is therefore important to prevent Covid-19 from not just killing people but also from killing electoral democracy.

On 19 March, South Africa’s Electoral Court granted an urgent application by the Electoral Commission to postpone all municipal by-elections and associated voter registration activities that were originally scheduled for March-May 2020.

On 26 March, the Zimbabwe Electoral Commission announced that all by-elections and other electoral activities had been suspended until further notice as part of precautionary measures to protect its employees and the general public from the pandemic.

In Malawi elections ordered by the court are around the corner, in July. The impact of Covid-19 on this vote has been topical in the past month. The general view is that adequate logistical preparation for the election in important key result areas would be difficult within the timeframe. These include procurement of voting materials, recruitment and training of election officials and enabling administrative processes such as voter registration and setting up of election management infrastructure in constituencies.

Voting procedures would have to be adjusted to comply with lockdown regulations.

Altogether it is a mammoth logistical undertaking that requires additional resources, both material and financial, that Malawi does not have. As political analyst Taona Mwanyisa argues, if Malawi goes ahead with the election amid the pandemic there will be serious hurdles to overcome. 

The opposition has expressed the worry that President Peter Mutharika is going to use the pandemic to delay the election and cling on to power.

Malawi is in a difficult situation because the election dates are part of a court order. Any postponement could have far-reaching implications on the health of democracy at a time when there are already significant questions about the legitimacy of Mutharika remaining in power when his term expired.

He has remained in office merely because of technical aspects of the law that will not allow a vacuum at State House. Questions have been raised about the extent of his powers, given that he is in office but unelected.

The AU governance instruments are clear that “democratic elections are the basis of the authority of any representative government”.

Such is the extent of the impact of Covid-19 on electoral contestation in Malawi that efforts by Mutharika’s government to impose lockdown conditions have been widely rejected by the population, resulting in protests and court challenges.

Law enforcement agencies have threatened to use force to ensure compliance with lockdown. 

Threats in 2021

Southern African elections scheduled for next year could also be affected.

Information on whether Zambia will proceed with its 2021 poll remains sketchy. The country is set to conduct its first ever-electronic population census in August this year. But even that has not been officially announced.

Ominous signs that authorities in Zambia are using Covid-19 measures to clamp down on enjoyment of fundamental rights are showing. There have been several reports of police brutality to enforce regulations. The Minister for Lusaka threatened to whip the spokesperson of the Human Rights Commission after he condemned police for whipping people for allegedly violating rules.

Leading lawyer John Sangwa has been disbarred administratively from practicing for opposing a parliamentary Bill centralising executive power and removing effective separation of powers. 

Independent television station Prime Television has been forcibly closed under the guise of protecting public interest and public safety. Restrictions to civic space — oxygen for citizen voices — prevent activists from drawing attention to human rights emergencies and risk creating a wider human rights crisis.

That, after all, is the lesson of China’s suppression of doctors who tried to warn about Covid-19 in early January.

Allegations of weaponisation of the law to restrict civic space and attack human rights activists and institutions — often described as “judicial persecution” or “persecution through prosecution” — keep arising in Zambia.

In Lesotho, where embattled Prime Minister Thomas Thabane is under pressure to resign, fresh elections can happen at any time.

Police Commissioner Holomo Molibeli has raised serious allegations that there were plans to have him killed but was “a free man only because Lesotho Defence Force (LDF) commander Lieutenant General Mojalefa Letsoela defied orders to arrest him” during the army’s deployment by the prime minister on Saturday 25 April.

The International Institute for Democracy and Electoral Assistance (IDEA) raises concern that, while there may be broad political consensus regarding the postponement of elections, the legal basis for such postponement and the modality of governance between the end of term of the current parliament and new elections have raised political and constitutional contestations.

Many constitutions are silent on what should happen if elections fail to take place for one reason or another.

Notwithstanding the devastating effects of Covid-19, the pandemic presents an opportunity for election authorities and legislators in southern Africa to better organise themselves and put in place measures and plan Bs that ensure their citizens are able to exercise their franchise to vote at any given time. We, therefore, agree with Thomas White that “while these measures may mitigate the spread of coronavirus in the short term, they do create another risk that Covid-19 will be used as a smokescreen to rationalise attacks on democracy”.

Status of lockdowns in southern Africa

Southern African countries have continued operating under lockdown conditions with minimum or no cross-border travel. 

As South Africa entered its final week of a 35-day lockdown, the government announced it would gradually ease the restrictions in five stages from 30 April, citing economic concerns. President Cyril Ramaphosa authorised the deployment of an additional 73,180 soldiers to help police enforce lockdown regulations until June, raising concerns in civil society about possible abuses, some calling it “a strategic blunder against an invincible enemy”.

Zimbabwe and Namibia have also remained under strict lockdowns that are scheduled to end on 3 and 4 May respectively.  On 21 April, Lesotho extended a 21-day national lockdown by another 14 days despite not having recorded any cases. On 22 April, Eswatini reversed a decision to relax coronavirus restrictions after infections almost doubled to 31 in one week. During April, Dr Tedros Adhanom Ghebreyesus, the World Health Organisation director-general, laid out six criteria that should guide countries as they consider lifting restrictions.

These include but are not limited to ensuring that transmission is controlled, health systems capacities are in place to test, isolate, treat every case and trace every contact, and that communities are fully educated, engaged and empowered to adjust to the new norm.

Lockdowns and police brutality

Civil society continues recording cases of torture, arbitrary arrest and murder of citizens by law enforcement agencies in all countries.

Police and soldiers in South Africa are accused of assaulting people they allege were breaching lockdown regulations. In one incident, riot police went as far as to fire rubber bullets at nurses protesting shortages in personal protective equipment. To date, reports indicate that eight people have been killed by law enforcement officers and at least 200 cases of police brutality have been recorded.

In Eswatini, the police commissioner warned journalists against writing “negative news” about the kingdom. The warning comes in the wake of the detention of former Times of Eswatini journalist Eugene Dube. The Economic Freedom Fighters of Swaziland issued a statement strongly condemning “the psychological warfare, abuse of power and demonising and torture of innocent journalists and its members by the police”. 

In ZimbabweLovemore Zvokusekwa was arrested for allegedly originating a statement that brought the president into “disrepute”.  There was general outrage when police in Mutare arrested an opposition member of parliament, Regai Tsunga, on 21 April for distributing food as part of measures to mitigate the impact of Covid-19 measures on poor people facing starvation. Ruling party MPs have not faced a similar fate for doing the same thing. To date, reports indicate that there have been 190 assaults by the police, 12 attacks on journalists, 7,000 arrests — mainly people moving around in search of food — and one case of malicious damage to property.

Lockdowns and poverty

Severe hunger continues to threaten southern Africa’s efforts to enforce lockdowns. In its annual Global Report on Food Crises, released on 21 April, the UN World Food Program reported “the number of people battling acute hunger is on the rise again”. Although research for the publication was conducted before the coronavirus outbreak, the WFP supposes the pandemic “may push even more families and communities into deeper distress”. 

On 24 April, a Zimbabwean man was arrested and charged with undermining the authority of President Emmerson Mnangagwa by allegedly circulating a message on social media accusing the country’s leader of ineptitude for not implementing a rescue package like that of his South African counterpart.

Malawi’s lockdown remains suspended until the government puts in place necessary socio-economic protection measures as ordered by the High Court. Authorities must strike a balance between enforcing compliance and ensuring respect for fundamental human rights. The government of South Africa has led the way in this. It allocated R500-billion towards relieving the plight of those most affected by the pandemic.

Access to water

The absence of clean and potable water, a key element in fighting the spread of Covid-19, remains a huge challenge in the region. 

On 21 April, Community Water Alliance, a Zimbabwean civil society organisation, condemned the Zimbabwe Republic Police for arresting one of its staff members whilst she was on her way to help raise funds for sanitisers and public water points — even though she was in possession of a letter from the City of Harare giving her permission to do so.

South Africa should be applauded for availing R20-billion to municipalities tasked with provision of emergency water supply, increased sanitation of public transport and facilities, and providing food and shelter for the homeless.

Covid-19 testing, treatment and vaccination

Health experts have expressed worry over a significant rise in reported Covid-19 cases in Africa. This has prompted most governments to ramp up tests in addition to lockdowns.

South Africa has conducted more than 161,000 tests after rolling out a mass testing exercise earlier in April. On 14 April, the UN’s resident coordinator in Angola announced an additional grant of $12.5-million to combat Covid-19.

The WHO issued a warning that “there is currently no evidence that people who have recovered from Covid-19 and have antibodies are protected from a second infection”. This was after some governments were considering issuing “immunity passports” or “risk-free certificates”  that would enable individuals to travel or to return to work assuming that they are protected against re-infection.

Conclusion 

The Covid-19 pandemic has had a devastating impact on two fronts: health and economy. With the exception of South Africa, the lack of government support for most citizens in the region has been exacerbated by the excessive use of force by authorities in the name of enforcing lockdowns. Denied the right to food, water and other basics, democracy is likely to be the next casualty for citizens as other important events such as elections have been caught in the Covid-19 crosshairs.

Whilst it can be argued that the postponement of these processes is important to constrain the spread of the virus, the implications are very worrisome. Measures ought to be taken to ensure that the interests of human rights and democracy are not unnecessarily sacrificed on the altar of the health emergency.

Southern African democracies are fragile and, in enforcing lockdowns and restrictions, authorities are urged to exercise restraint to limit further regression during this tremendous stress test. 

Arnold Tsunga is a human rights lawyer, the director of the Africa Regional Programme of the International Commission of Jurists (ICJ) and the immediate past-chairperson of the SAHRDN. Tatenda Mazarura is a Woman Human Rights Defender (WHRD), a professional rapporteur and an election expert. Mark Heywood is editor of Maverick Citizen.

Yemen: Urgent Measures Needed to Protect Civilians from COVID-19

We partnered with 29 other organizations and issued a statement on the need for urgent measures in Yemen to protect Civilians from Covid-19.

The conflict in Yemen is entering its sixth year, resulting in what is considered the worst man-made humanitarian crisis in the world. On 10 April, the first COVID-19 case was confirmed in the country. The warring parties, donor states, the United Nations (UN) and the European Union (EU) must take immediate and urgent steps to mitigate COVID-19’s potential outbreak and catastrophic impact in Yemen.

In the face of COVID-19, civilians in Yemen are particularly and acutely vulnerable. Due to the war, the health system has been severely damaged. The warring parties have obstructed and impeded humanitarian aid. Other contagious diseases have spread, including in detention facilities. Thousands of civilians have been killed and injured; more than 3.6 million people have been internally displaced; and over 80 per cent of Yemen’s population is now dependent on humanitarian aid, including for food, shelter and other basic services. According to the UN Humanitarian Coordinator for Yemen, Lise Grande, “ten million people are a step away from famine and seven million are malnourished.”

Addressing the Health, Humanitarian and Economic Crises

The health sector in Yemen has been decimated, the economy has crumbled, and the humanitarian response has been repeatedly and blatantly obstructed and interfered with by the warring parties.

The routine destruction and repeated occupation of health care facilities, as well as the killing and wounding of medical workers, has weakened Yemen’s health system, inflicted widespread suffering on civilians, and contributed to making the country increasingly vulnerable to health shocks like that posed by COVID-19. Only half of the country’s health facilities are functional. Many specialists, essential equipment, and supplies, including medicine, personal protective equipment, and ventilators, are scarcely available. In addition, Yemen has a recent history of outbreaks of communicable diseases, with the highest recorded number of suspected cholera cases in recent history.

The warring parties have blatantly obstructed and impeded the humanitarian response throughout the conflict, as well as weaponized the economy and food[1]. Yemeni civil servants, including some doctors and health workers, in different parts of the country, have not been paid their salaries for nearly two years. In 2019, the Group of Eminent International and Regional Experts on Yemen (GEE) concluded that “starvation may have been used as a method of warfare by all parties to the conflict.”

Some international organizations announced the suspension of certain aid to Yemen in late March as a response to Houthi interference in aid deliveries and misuse of funds [2]. The United States, the largest donor to Yemen, decided to cut humanitarian assistance on 27 March 2020, including funding that would help prevent the spread of the coronavirus. The day before Yemen’s first COVID-19 case was announced, the World Food Programme said it was set to halve aid to parts of Yemen. An end to the interference in humanitarian aid by parties to the conflict is crucial, but the withdrawal of humanitarian aid, including life-saving supplies, at a time of urgent need risks creating an escalating catastrophe in Yemen.

Unsurprisingly, those already vulnerable—the displaced, those deprived of their liberty, refugees, migrants, the sick, hungry, and poor—have been and will be hit the hardest. In calling for the immediate lifting of international sanctions to prevent hunger crises in countries hit by COVID-19, the UN Special Rapporteur on the Right to Food urged the international community “to pay particular attention to the situation of civilians trapped in conflict settings, and notably those already experiencing acute violations of their right to food, such as in Yemen.”

Releasing Arbitrarily Held and Vulnerable Detainees and Improving Detention Conditions

Hundreds of civilians, including journalists and human rights defenders, have been arbitrarily detained and disappeared by the warring parties. Conditions of detention in Yemen are abysmal. Detention facilities are overcrowded, unsanitary, and have already witnessed the spread of contagious diseases. Health care is routinely not available and in some cases all together denied to detainees, while prison systems do not have the capacity, medical supplies or resources to respond to COVID-19.

These conditions put detainees and prisoners at heightened risk in times of a pandemic. The International Committee of the Red Cross (ICRC) warned that “in an overcrowded prison, once one person has COVID-19 it’s likely that hundreds of people will have it […] That means you’ll see a higher mortality rate in this prison population.”

In this context, the Group of Eminent International and Regional Experts on Yemen called on  parties to take effective measures to mitigate the spread of the disease, including by releasing prisoners and detainees who are “particularly vulnerable and exposed to substantial risk” in “appalling detention conditions.” In addition, a coalition of NGOs expressed grave concern over the situation of detainees and prisoners across the Middle East and North Africa, particularly in states where prisons and detention facilities are often overcrowded, unsanitary, and suffer from a lack of resources.

A Complete and Credible Ceasefire; an End to All Attacks against Civilians

Since September 2014 and the escalations of March 2015, the Yemeni government, Ansar Allah (Houthi) armed group, the Saudi/UAE-led coalition and its affiliated proxy forces have persistently committed serious violations of international humanitarian law and gross human rights abuses. Abuses have included unlawful airstrikes, indiscriminate shelling, the use of landmines, arbitrary detentions, enforced disappearances, torture, and the recruitment of children. Various efforts to achieve peace have failed. Accountability has been absent.

On 25 March 2020, UN Secretary General Antonio Guterres, echoing his appeal for a global ceasefire, called “on those fighting in Yemen to immediately cease hostilities, focus on reaching a negotiated political settlement and do everything possible to counter a potential outbreak of COVID-19”. Despite the calls for a cessation of hostilities in Yemen, fighting has continued with the Houthi shelling of a prison in Taiz killing five women, two young girls and a policewoman, and wounding nine, including six other women, two girls and a civilian man in Taiz. On 9 April 2020, the Saudi/UAE-led coalition declared a unilateral two-week ceasefire in Yemen. Civil society from around the world joined the appeal for a global ceasefire, including in Yemen. Yet to date, fighting has continued in Yemen. To ensure a response to COVID-19 is in fact possible, all parties to the conflict must commit to a ceasefire.

Adopting a Human Rights-Based Response to COVID-19

While the authorities in various parts of Yemen have a responsibility to take preventive measures and other steps to protect people in areas under their control from the spread of COVID-19, any response must respect human rights and fundamental freedoms. Any emergency measures should be necessary and proportionate. Yemenis must be informed of such measures, which should be time bound. The enforcement of emergency measures must be carried out in line with international law and without discrimination. In times of pandemic, access to information, including transparent coverage of the humanitarian situation and the spread of the virus in Yemen, is particularly crucial [3].

Times of crises have been repeatedly misused by those in power in Yemen to impose unlawful restrictions. Since September 2014 when Ansar Allah seized control over Sanaa, the warring parties have closed public spaces in the country, restricted the right to expression, and attacked, harassed, and detained journalists, media workers, activists and humanitarian workers.

Considering the dire need for immediate effective measures to be taken by all parties to the conflict and third parties in the face of this pandemic, we urge: The warring parties in Yemen, namely the Saudi/UAE-led coalition, internationally recognized government of Yemen, and Ansar Allah (Houthi) armed group to:

  • Immediately lift restrictions on humanitarian aid and critical life-saving goods going into and across Yemen and end all forms of interference with and obstruction of humanitarian operations. To this end, all parties must abide by international humanitarian aid norms and ensure that no aid is diverted or misused for political and financial gain. The warring parties must facilitate unimpeded access and movement of humanitarian aid, medical supplies, humanitarian workers, and life-saving commercial goods without interference or discrimination throughout Yemen; and end blockades, sieges and other actions that prevent or restrict humanitarian and essential commercial imports;
  • Immediately halt fighting across Yemen and implement a complete ceasefire on the ground. The warring parties should re-focus efforts on countering the outbreak of COVID-19 in Yemen, including through dialogue amongst the warring parties and the implementation of coordinated responses; and work with the UN Special Envoy to urgently restart comprehensive political negotiations to end the conflict;
  • Take urgent steps to reduce the prison population, and to disclose the fate of the disappeared. In this regard, the warring parties should:
    • Release all those arbitrarily detained in a manner which ensures the dignity, safety and security of those released;
    • Conduct a thorough review of the prison population and order the immediate release of “low-risk” detainees and prisoners and the particularly vulnerable, including children, the elderly and those with health conditions that make them more vulnerable to COVID-19;
    • Provide detainees with adequate sanitary installations, regular access to sanitary facilities and prompt accessible health care, including access to COVID-19 testing and adequate treatment on a standard equal to the general population;
    • Ensure access for recognized monitors of detention conditions to all detention facilities, official and unofficial;
    • Ensure that detainees are afforded the right to fair trial, and are provided with means of communication with the outside world.
  • Fulfil their obligations and duties under international law to protect and respect the rights of the Yemeni population in all parts of Yemen in their response to the COVID-19; and,
  • Come to an agreement to immediately begin Yemeni civil servant salary payments, with a priority for health workers, and work to facilitate other forms of support to Yemeni civilians.

The United Nations

Security Council

  • Take measures to ensure respect for a ceasefire in Yemen and a halt to acts of violence by all parties to the conflict in order to coordinate and carry out a response to the COVID-19 crisis.

Security Council and Human Rights Council

  • Demand that warring parties release individuals arbitrarily detained,  take urgent steps to improve conditions of detention and reduce the overall prison population, and demand an immediate end to the obstruction and interference with humanitarian aid and critical commercial imports;
  • Reiterate that accountability and redress are non-negotiable aspects of any sustainable peace.

Human Rights Council

  • Ensure the mandate of the GEE  includes collection and preservation of evidence of human rights violations and abuses, and provide all necessary support for the GEE  to monitor  the human rights and humanitarian effects of COVID-19 in Yemen, including the steps taken by the parties to the conflict to protect the right to health of the Yemen population.

The states, particularly those with influence over the warring parties, including the United States, the United Kingdom, and the European Union and its Member States:

  • Urgently and significantly increase funding for the full range of humanitarian programming in Yemen, including to support the call of the UN Humanitarian Coordinator for Yemen to maintain UN programs running;
  • Lift unilateral measures and reconsider funding cuts to Yemen which would affect the delivery of essential humanitarian services in facing the urgent threat of COVID-19 and pursue alternative, necessary prevention and mitigation measures to avoid obstruction and interference;
  • Increase the provision of basic services, medical supplies, treatment centers, field hospitals and prevention activities, as well as facilitate cooperative measures to avert and mitigate COVID-19 implications to avoid placing Yemenis at further unnecessary risk, particularly women, children, people with disabilities, the marginalized, internally displaced and refugees in northern areas, who are acutely vulnerable to the spread of the disease;
  • End all licensing for and deliveries of arms, ammunition and military equipment to all warring parties in Yemen to promote the implementation of a cessation of hostilities, in line with UN Security Council resolutions 2216 (2015) and 2511 (2020), the Arms Trade Treaty and the EU Common Position on Arms Exports;
  • Continue to effectively support the UN-led processes and tools to achieve an immediate and sustainable ceasefire in Yemen; and,
  • Support efforts related to achieving accountability and redress for violations of international humanitarian law and international human rights law committed by all parties to the conflict.

Endorsing organizations:

  1. Cairo Institute for Human Rights Studies (CIHRS)
  2. Mwatana for Human Rights
  3. Vredesactie
  4. The Conflict and Environment Observatory (CEOB)
  5. The Southern Africa Human Rights Defenders Network (SAHRDN)
  6. Asian Legal Resource Centre (ALRC)
  7. 11.11.11
  8. MENA Rights Group
  9. Campaign Against Arms Trade
  10. The African Centre for Democracy and Human Rights Studies (ACDHRS)
  11. CNCD-11.11.11
  12. GLAN | Global Legal Action Network
  13. Human Rights Clinic (Columbia Law School)
  14. ALQST for Human Rights
  15. Dhameer For Rights and Freedom
  16. Musaala for Human Rights
  17. Peace and Building Foundation
  18. Watch for Human Rights
  19. Global Centre for the Responsibility to Protect
  20. International Federation for Human Rights (FIDH)
  21. Shadow World Investigations
  22. Action Corps
  23. Saferworld
  24. Yemen Relief and Reconstruction Foundation
  25. Yemeni Alliance Committee
  26. PAX for Peace
  27. The University Network for Human Rights
  28. Gulf Centre for Human Rights (GCHR)
  29. Physicians for Human Rights
  30. Center for International Policy

Southern Africa Human Rights Round-Up

Issue 2, 19 – 24 April 2020

The Southern Africa Human Rights Defenders Network and Maverick Citizen launched the Southern Africa Weekly Human Rights Roundup, aimed at highlighting important human rights news in Southern Africa. The Human Rights Roundup integrates efforts of human rights defenders and facilitates evidence-based engagement with key stakeholders, and institutions on the human rights situation across the region.

China-Africa, Covid-19 and human rights

This week, we continue exploring the measures being taken to combat Covid-19 and their impact on human rights. Quite astonishingly, the measures in China had the biggest reaction from the civil society movement in Africa, including in Southern Africa.

Recent media reports and social media video footage suggest that Chinese officials accused African people living in China, mainly in Guangzhou province, of being responsible for the second outbreak of the Covid-19 pandemic in China. 

The reports allege that people of African descent were being systematically targeted and subjected to a variety of human rights violations, and abuses by the Chinese people, including by the Chinese police. Among other things, they were being forcefully evicted from their rented homes without notice, forcefully quarantined for 14 days despite having no symptoms, nor recent travel history or contact with Covid-19 patients, and subjected to forcible random and indiscriminate Covid-19 tests. 

In a number of incidents, people from Africa were being forcibly prohibited from shopping or going to public places such as restaurants. They were also having their travel documents seized without legal basis. 

In response to what was seen as China’s xenophobic violations and abuse of the rights of African people, some African Union (AU) governments and the African Group of Ambassadors in Beijing issued statements condemning the gross human rights violations and demanding the “cessation of forceful testing, quarantine and other inhuman treatments meted out to Africans”. 

Ghana, Nigeria, Kenya, Botswana and South Africa proved more vocal amid concerns that the xenophobic attacks would strain China-Africa relations. Others called on China to ease African countries’ debt burden or totally cancel the same as a sign of remorse. 

On 12 April 2020, the Chinese Foreign Ministry issued a statement affirming how much China values China-Africa relations, insisting that China and Africa are good friends, partners and brothers. In the statement, China committed to continue providing fair, just, cordial and friendly reception to African nationals, and to continue responding to reasonable concerns and legitimate appeals.

Unfortunately, the statement offered no apologies to Africa, despite overwhelming evidence of the racist and xenophobic attacks. 

In an unprecedented move, over 9,000 AU citizens, including Civil Society Organisations (CSOs), women and youth organisations, lawyers, judges, journalists, human rights activists and Africans in the diaspora, have submitted a petition to the AU. The petition was coordinated by the Southern Africa Human Rights Defenders Network (SAHRDN) and Africa Defenders. 

African civil society saw the reactions of the Chinese authorities as wholly inadequate and condescending. The petition urged African leaders to demand a full and independent investigation into the human rights violations in China and to ensure that immediate remedial action is taken, including bringing perpetrators to justice while offering full reparations and compensation to the victims. 

“As Africa civil society organisations and people, we feel that the relationship between the AU and China that our AU leaders always describe as excellent and of all-weather friends has never been sufficiently scrutinised by African civil society in terms of its impact on human rights. The brazen attacks on people of African descent in China have demonstrated that China is a bully in this partnership and part of it is explained on the basis of its clever use of debt diplomacy (large expensive loans) to shackle African leaders and take away their voice in the relationship.”

Charles Chimedza, the protection officer at the Defenders Network and coordinator of the open letter to the AU

African civil society will no longer be silent and will now hold AU and Chinese leaders to account for human rights violations against African people, whether in China or in Africa.

Status of lockdowns in Southern Africa

The spread of Covid-19 is at different stages around Southern Africa and authorities continue to take country-specific measures to contain the situation. While lockdowns were extended by an average of 2-3 weeks in some countries such as Namibia, South Africa, Zimbabwe and eSwatini, others like Zambia remained under partial lockdown across the country with a complete lockdown of Kafue district being in effect from 14 April 2020 after it was declared a hot-spot. 

In Malawi, efforts to lock down by embattled President Peter Mutharika hit a brick wall after High Court Judge Justice Kenyatta Nyirenda ruled against the lockdown, ordering a temporary injunction for seven days pending a full-blooded hearing on whether a lockdown should be imposed or not. 

The challenge in Malawi was made by the Malawi Human Rights Defenders Coalition (HRDC). 

In Zimbabwe, stakeholders are questioning if the country’s lockdown is constitutional. While the Minister of Health promulgated a series of statutory instruments to contain the Covid-19 pandemic, the lockdown restricts freedom of movement and assembly guaranteed by sections 66 and 58 of the Constitution respectively. 

Human rights lawyer David Hofisi argued that: “Not only do the statutory instruments infringe fundamental freedoms, they create new powers, such as those allowing the Minister of Home Affairs to close ports of entry and exit as he deems fit.” 

He added that executive excesses were deliberate “institutional choices by a machiavellian executive. It is not an innocent mistake by a well-meaning administration. These are powerful functionaries circumventing constitutional imperatives to increase the scope and scale of executive power”. 

Lockdowns and police brutality

The week saw continued cases of harassment of defenceless citizens (including journalists), by state security agents, particularly the police and the army for allegedly breaching lockdown regulations or spreading fake news. 

A man from Alexandra, north of Johannesburg, died after allegedly being assaulted by soldiers on 10 April 2020, resulting in the South Africa National Defense Union (SANDU) reportedly calling for a military inquiry into the murder which is still under investigation

In Botswana, two people were severely assaulted by the police for allegedly breaching lockdown regulations. The government issued a statement on 11 April 2020, condemning the assault of citizens and calling for upholding the rule of law and respect for human rights.  

In eSwatini, police reportedly harassed Swaziland news editor, Zweli Martin Dlamini’s wife and children for spreading “fake news”, that suggested that King Mswati III had contracted Covid-19, insisting that the king “is well and in good health”. 

In Zimbabwe,  freelance journalist James Jemwa was temporarily detained by soldiers and police officers and forced to delete the footage he had recorded at Gwenyambira shops. The Zimbabwe Police Commissioner went on to say that journalists should stay at home and be bound by national lockdown regulations, arguing that they are not providers of an essential service and claiming that only journalists from “broadcasting services” (usually government-controlled) are exempted. 

Covid-19 measures should be targeted at producing public health outcomes and not be exploited as an avenue to clamp down on human rights. 

On 17 April 2020, in an unusual step, all the UN Special Rapporteurs expressed “grave concern at the multiplication of accounts of police killings and other acts of violence within the context of Covid-19 emergency measures”, expressing alarm: “At the rise of reports of killings and other instances of excessive use of force targeting in particular people living in vulnerable situations.” 

The UN SRs went on further to state that “breaking a curfew, or any restriction on freedom of movement, cannot justify resorting to excessive use of force by the police; under no circumstances should it lead to the use of lethal force”.

Lockdowns and poverty

Granted, the most effective way of slowing the virus down is isolation and physical distancing. However, the plight of a significant population that practically lives from hand to mouth in informal economies in Southern Africa needs to be taken into account to avoid criminalising normal human behaviour for everyday survival. 

In Malawi, many small-scale traders who declared that “it would be better to contract the virus than die of hunger,” rejected the lockdown through protests. The Malawi situation is worsened by the trust that has been lost between those who govern and the governed. A significant number of people view the lockdown as a means by which the president is trying to stop political activity ahead of fresh elections ordered by the Constitutional Court in February 2020.

Reports of chaotic mealie-meal distribution in Bulawayo, Zimbabwe where even the police are abusing their authority to get the bulk of deliveries for resale at exorbitant prices are disturbing. 

In Namibia on 17 April 2020, over 500 people gathered at the Moses//Garoeb Constituency office in Windhoek demanding Covid-19 food relief packages. The constituency has a population of an estimated 60,000 people yet the councillor’s office had only received 700 food packages. Physical fights reportedly broke out between civilians and law enforcement agents, as the former scrambled for the limited packages.  

The African Commission on Human and People’s Rights has already expressed alarm about the vulnerability “of homeless people, prisoners, the masses of people living in highly congested and poor neighbourhoods like slums lacking sanitation and those who survive on a hand-to-mouth basis, people in Internally Displaced Persons camps, refugees, asylum seekers and migrants with devastating consequences, including the risk of enduring severe illness and losing their lives without receiving adequate care”. 

Access to water 

Despite recommendations by the World Health Organisation (WHO) that water, sanitation and good hygiene are key elements in fighting the spread of Covid-19, access to clean and potable water in Southern Africa’s urban and informal settlements remains a huge challenge. 

Reports indicate that lockdowns may have worsened already existing challenges and inequalities in accessing water, and sanitation services – Cape Town and Harare being some of the most affected areas. 

South Africa’s Human Settlements, Water and Sanitation Minister Lindiwe Sisulu announced that the ministry procured 41,000 water tanks for national distribution to ensure water supply during the lockdown period. She, however, expressed concern that “the threat and risk of coronavirus in our informal settlements is real and that we have to make haste so that we don’t find ourselves overwhelmed”.  

Efforts to ensure that Gweru residents in Zimbabwe are supplied with water received a knock after Bulawayo High Court Judge Justice Maxwell Takuva dismissed an application filed by Zimbabwe Lawyers for Human Rights (ZLHR) on behalf of Gweru Residents Forum. 

The absence of water forces citizens, particularly women, to defy lockdown regulations as they search for water, hence endangering their lives.

Covid-19 testing, treatment and vaccination

Zimbabwe court ordered the government to provide healthcare workers with protective gear and to roll out mass testing. The Zimbabwe Doctors for Human Rights (ZADHR) brought the case to compel the government to provide protection for public hospitals and healthcare workers who are on the frontline of fighting the pandemic.

There is still no good news about the treatment and an effective vaccination against the Covid-19. Sadly, the UN Economic Commission for Africa (UNECA) says that “the Covid-19 pandemic will likely kill at least 300,000 Africans” and push “29 million into extreme poverty” unless a $100-billion (R1.8-trillion) safety net can be found for the continent’s population.

Despite efforts by the US to oppose it, the UN General Assembly led by Mexico on 20 April 2020 adopted by consensus of 193 members, a resolution that calls for “equitable, efficient and timely” access to any vaccine developed to fight the Covid-19 pandemic.

In other news

Lesotho: On 18 April 2020, Prime Minister Thomas Thabane deployed armed soldiers, clad in bulletproof vests and helmets onto the streets to “restore order”, accusing unarmed law enforcement agencies of undermining democracy.  This resulted in South Africa sending a delegation to Lesotho to meet the prime minister, members of the opposition and civil society to mediate, resulting in the news that the PM had agreed to resign. 

Botswana: On 17 April, Botswana’s Ministry of International Affairs and Cooperation in a statement refuted claims that the government of Botswana has embarked on forceful deportation of Zimbabwean nationals, arguing that this was a voluntary repatriation exercise by both governments following requests from Zimbabweans who wanted to be assisted to go back home. 

Mozambique: On 17 April, Mozambique’s public prosecutor reportedly refused to compensate the family of an electoral observer who was gunned down by police in the run-up to the 2019 national elections. The development sparked outrage among local rights advocates. Adriano Nuvunga, head of Mozambique’s Centre for Democracy and Development, said Matavele’s murder was a “state crime”.   

Conclusion

Even though the Covid-19 disaster has engulfed the world with unimaginably disastrous consequences for life, health, economies and way of life, for Southern Africa, it has just served as a stark reminder of the urgent need to always address poverty, inequality and injustice by the Southern Africa authorities.  

Widespread poverty, inequality and injustice have complicated responses to the huge health emergency. Priorities need to change with a more sustained focus on improving almost moribund health systems in many Southern African countries. 

There can be no better way to manage these kinds of crises than investing in resilient systems that make effective responses possible. For now, we can only be thankful that the region is not the epicentre of the pandemic. Otherwise, we would be staring at a disaster of monumental proportions. 

Arnold Tsunga is a Human Rights Lawyer, the Director of the Africa Regional Programme of the International Commission of Jurists (ICJ) and the Chairperson of the SAHRDN; Tatenda Mazarura is a Woman Human Rights Defender (WHRD), a Professional Rapporteur and an Election Expert; Mark Heywood is the editor of Maverick Citizen.

African Court temporarily stops execution of a US$ 29 000 punitive personal costs order against Charles Kajoloweka, a Malawian frontline Human Rights Defender

Johannesburg, Arusha, and Lilongwe

08 April 2020

The Southern Africa Human Rights Defenders Network (SAHRDN or the Defenders Network) and the Pan African Lawyers Union (PALU) have welcomed the ruling by African Court on Human and Peoples’ Rights (African Court) sitting in Arusha, to suspend the enforcement of the decision of the Malawi Supreme Court of Appeal to slap Youth and Society (YAS) Executive Director and frontline human rights defender, Charles Kajoweleka (Kajoloweka) with a K21.6 million (US$ 29 000) costs order. Kajoweleka had filed a case before the national courts,   seeking orders that  President Peter Mutharika  fires his then Cabinet Minister George Chaponda following allegations of corruption in what was referred to as the “maizegate”, a controversial 2017 maize import scandal that caused losses of millions of Kwacha to Malawian taxpayers. The African Court made a finding that the costs order if executed against  Kajoloweka before the case is finalised on its Merits would lead to potentially irreparable harm to the human rights defender (HRD). This would, if it happened, amount to indirect punishment to Kajoloweka for having challenged President Mutharika to act against an allegedly corrupt Minister.

The conduct of Kajoweleka to sue President Mutharika on available evidence to take decisive action against a Minister involved in possible corruption and siphoning of public resources was very responsible and certainly undisputedly in the public interest to promote good and accountable governance”  stated Arnold Tsunga, the SAHRDN chairperson. “ On the face of it, such responsible and courageous conduct to demand public accountability in a very plausible case of corruption costing the country millions of Kwacha in taxpayers money did not warrant such huge punitive costs, let alone any adverse costs order at all and this naturally created the perception that Kajoloweka was facing s reprisal for speaking truth to power” added Tsunga.

The decision by the Supreme Court of Appeal to award such high punitive costs order in a strong public interest case has a potential chilling effect on HRDs or citizens who in the future would want to use public interest litigation as a legitimate vehicle to not just pursue remedies for human rights violations, but also to enforce separation of powers and the rule of law by subjecting questionable executive conduct, omissions or commissions to judicial scrutiny and oversight as a necessary check and balance in a modern democracy.  The impact of the costs order, if it had been executed, would have been an immediate threat of liquidation of Kajoloweka’s estate. This would be the message that would be understood by the HRDs community and citizens of Malawi, especially those in the good and accountable governance sector. On this basis Kajoloweka then decided to take the Malawi Supreme Court decision for scrutiny to the African Court, supported by his lawyers from PALU, under the instruction of SAHRDN.

Having come to the conclusion that if the Malawi Supreme Court of Appeal Order is executed upon Kajoloweka, his immovable property and personal belongings may never be recovered thereby causing irreparable harm, the African Court ruled to;

     a) Stay the enforcement of the order of costs by the Malawi Supreme Court of Appeal against the Applicant (Kajoloweka) pending the finalisation of the application on the merits.

     b) [Malawi to] report to the Court within (15) days from date of receipt of this order on the measures taken to implement it [African Court order].

SAHRDN and PALU raise concern over the trend of awards of punitive costs against public interest litigants, which appears to be on the increase in the Supreme Court of Malawi. This is a cause for concern as it not only affects the rights to equality before the law, equal protection of the law, fair trial and access to justice, but it also generally shrinks the civic space which is the oxygen of citizens and human rights defenders to meaningfully participate in national affairs or issues that affect them. The courts should remain independent and impartial and be the foremost guardians for the protection of civic space and human and peoples’ rights.

The use of Public interest litigation as a tool to advance and protect human and peoples’ rights and the rule of law has become widely accepted as part of addressing inequality, injustice and impunity in African and other societies and to raise issues of public concern” stated Don Deya the Chief Executive Officer of PALU. “We hope that by taking this emerging jurisprudence on costs orders in public interest litigation cases in Malawi (and elsewhere) for scrutiny by the African Court, we are helping the Malawi judiciary (or any other jurisdiction) to re-examine such jurisprudence and evaluate if it is reasonably necessary and justifiable in a democracy” added Deya.

Malawi has a very good record of signing and ratifying international instruments that guarantee the promotion and protection of human and peoples’ rights and the opening up of civic space. The notable international instruments that Malawi has signed and ratified guaranteeing the rights: to establish good and accountable governance; an independent and impartial court system; to a fair trial; to equality and equal protection of the law; to freedom of expression and to receive and disseminate information include the International Covenant on Civil and Political Rights (ICCPR), the Constitutive Act of the African Union, the African Charter on Human and Peoples Rights (ACHPR), with its two Protocols, i.e. the Protocol on the Establishment of the African Court on Human and Peoples’ Rights; and the Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (Maputo Protocol). Malawi has also made the Declaration, under Article 34(6) of the aforementioned Protocol establishing the African Court, which allows its citizens and NGOs direct access to the African Court if they felt that their rights were being violated in Malawi and they have exhausted local remedies.

SAHRDN and PALU therefore jointly call on the Malawian authorities to respect and fully implement the interim Orders of the African Court including reporting to the African Court on measures of compliance as directed.  

Read more on the court ruling here.

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For more information please contact Washington Katema, SAHRDN Regional Programmes Manager at wkatema@southernafricadefenders.africa  or +27 73 620 2608 and or Donald Deya, PALU Executive Director at secretariat@lawyersofafrica.org or +255 787 066 888