Category: South Africa

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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

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 weekly roundup is a collaboration between the Southern Africa Human Rights Defenders Network (SAHRDN) and Maverick Citizen

Civil society leader Timothy Mtambo, now the Minister of Civic Education and National Unity in Malawi, explains how civic activism defeated the authoritarian regime of president Mutharika and created a foundation for building a durable and strong democracy. His recipe for social mobilisation has lessons for citizens of many other countries in Africa who are living under the yoke of oppression and authoritarian rule.

Far too many people in Africa are yearning for change and opportunity and unfortunately denied by those who govern them. A system of dictatorship can take its toll on ordinary people and create a sense of siege and helplessness with no clear pathway to freedom.

In the words of our own Africa liberation icon, Nelson Rolihlahla Mandela, “it looks impossible until it happens”.

Starting with the end in mind

In May 2019 when the Malawi Electoral Commission (MEC) announced election results that were not credible and the international observer teams endorsed what we Malawians were seeing as fatally flawed electoral processes, we knew immediately that the fate of Malawi was largely in the hands of ordinary Malawians. It is a truism that every country’s fate is largely in the hands of its own people. However people are paralysed by fear because of the ruthlessness of autocratic regimes.

As leaders of Malawi civil society we realised that without an independent, impartial and effective electoral commission, open civic space, effective civic engagement and participation and political reforms, that elections in Malawi were chronologically compliant meaningless rituals with no substantive value to ordinary people of Malawi.

We were determined to change that when we formed the Malawi Human Rights Defenders Coalition (HRDC) in December 2017.We wanted to put the agency for accountable governance back to ordinary Malawians. Free, fair and credible elections were central to governmental legitimacy, important for implementing the social contract. But without MEC institutional reform, free and fair elections were a pipe dream. Yet we also knew that MEC reform would not be possible without people agency and power. Every generation has a mandate that it must achieve or betray. Our generational mandate was clear and we were not prepared for anything to stop us.

First things first – People power: Giving Malawians back their collective voice

As a human rights activist, leading the HRDC, we chose to mobilise and give the people of Malawi their voice. Thousands of people bravely took to the streets on a regular basis to peacefully campaign against bad and corrupt governance including the 2019 election.  We declared 2020 the year of mass protests. We actively and consistently called for the resignation of the chairperson of the MEC, Jane Ansah, and the holding of fresh elections. The message was simple, clear, and unambiguous. The demonstrations ranged from organised large-scale marches to smaller spontaneous outbursts. Teachers, sanitation workers, truck drivers, airline staff, students, lecturers, churches took to the streets. It was unprecedented.  

Some  of the most notable demonstrations that changed the democratic terrain include the demonstrations for resignation of MEC Chair Jane Ansah; the anti-bribery march to defend judicial independence; demonstrations for nullification of elections results of 2019; 16 January 2020 MEC reform Jane Ansah resignation Lilongwe demonstration; demonstrations to use chains to lock MEC offices, demonstrations for investigations of sexual assault and rape allegations against the police in Msundwe.

Mutharika’s reaction and the battle for the independence of institutions of democracy

President Mutharika tried various tricks to try to delay the elections. This included refusing to assent to the Electoral Reforms Bill that had already been passed by parliament, trying to get Members of Parliament to change the date of the elections and refusing to fire the then MEC chairperson, Jane Ansah and her team of commissioners who were found incompetent by the courts. 

Once it became clear that the HRDC leadership had mobilised ordinary Malawians to take agency for accountable governance into their own hands, Mutharika became paranoid and started constricting civic space and persecuting human rights defenders.

The law became weaponised. Arbitrary arrests and detentions of HRDC leaders became commonplace.

At a personal level I was arrested and experienced direct threats to my life and that of my wife and children, cyberbullying, character assassination, arson attacks and shooting incidents. My children were threatened at school and in social media messages. One such nasty posting encouraged people to mass-rape my wife on sight. I was forced, with the support of the Southern African Human Rights Defenders Network, to evacuate my family to safety in order to tackle the dictatorship bare knuckled.

Israeli agents were conscripted into the state house with sinister motives to  either rig elections or harm civil society leaders, human rights defenders and legitimate political opponents. I wonder till today how much Malawi paid to the Israelis to frustrate our democratic growth.

Deployment of Democratic Progressive Party (DPP) cadres to spread fear and disrupt civil society meetings became commonplace. With HRDC and later Citizens for Transformation Movement (CFT), we mobilised more people to build a critical mass of courageous citizens who had passed the threshold of fear. In one instance, despite having security personnel with us, we were still attacked in the city of Mzuzu by 20 DPP cadres who pelted our convoy with stones.

We were very grateful that the Malawi Defence Forces were extremely professional and protected everyone, the protesters and the DPP cadres, and filled a critical gap in national security that arose as a result of the total loss of support and confidence in the police force by the Malawi people following their ready acceptance of being co-opted as a militia to protect the interests of president Mutharika.

The HRDC took an uncompromising demand that the MEC needed reform, in particular resignation of the MEC Chair as a precondition for free, fair and credible elections. Mutharika resisted this until the very last minute when in May 2020 under relentless HRDC-led civil society pressure, the MEC Chair resigned forcing the president to reluctantly appoint a new commission just 2 weeks before elections. According to a blog from Oxfam, Chifundo Kachale, the new MEC Chair, “brilliantly navigated a combination of political and logistical obstacles, despite only taking over two weeks before the election”.

As he realised that power was slowly but surely slipping away from him, an increasingly paranoid Mutharika turned into vandalising state institutions and behaving like an absolute monarch. In the run up to his predictable electoral defeat he started to rule almost by decree. In a spectacular period of less than two weeks, he fired his entire cabinet including a minister who was less than 2 weeks old in office; he fired the army commander Ndundwe; he fired the police commissioner. All the fired senior government officials were replaced by his cronies and relatives.

I was so terrified that the moves by Mutharika to summarily dismiss respected army generals would trigger instability in the army and also cause the army to lose its professionalism and be used to attack civilians as happens in other jurisdictions. We had meetings with the army and thankfully they remained professional and insistent on carrying out their mandate of protecting everyone in Malawi without fear or favour.

I would emphasize the role of a professional, disciplined and well trained army in the protection of participatory democracy. This distinguishes Malawi from many countries where the army is deployed to harm or even kill unarmed civilians and thwart democratic growth of our societies.

In his last days Mutharika converted the courts and judicial arena as a battle front in his insatiable quest for power retention.

He went after Chief Justice Nyirenda trying to force him into early retirement but this was resisted by the HRDC, the Association of Magistrates and the Law Society of Malawi, and in a quite  unprecedented way by the Chief Justices of the whole region under the auspices of the Southern Africa Chief Justices Forum (SACJF).

Despite his background as a former professor of law, Mutharika tried to put a knife into separation of powers by addressing parliament suggesting that in Malawi we did not have separation of powers but parliamentary superiority over the judiciary. The judiciary had really angered him by the decisions they made especially of nullifying the 2019 elections.

Happily the judiciary survived and again as a result of the resilience of civil society represented by the HRDC to fight for and claim the independence of their institutions, we now have a judiciary that is more independent than at any other time in the history of Malawi.

Citizens of SADC and indeed the AU must fight for and defend the independence of their judiciaries and election management bodies so that they are not co opted by the authoritarian regimes to be instruments at the hands of oppression.

Covid-19 measures as a political weapon

Like other despots around the world, Mutharika tried to use the Covid-19 pandemic to stifle dissent and prolong his stay in power. The HRDC challenged this approach in the streets through protests and in the courts through strategic litigation. The Covid-19 measures Mutharika was trying to impose were to be implemented by his cronies who aimed to milk national resources for political objectives.

This irregularity coupled with lack of safety nets for the socioeconomic effects on ordinary people left the HRDC with no option but to successfully challenge Mutharika’s announcement of a lockdown in the courts. Protests erupted in informal settlements, and in small towns and trading centers — all places predominantly made up of people working in the informal economy. Nurses and doctors embarked on go-slows and sit-ins, while the civil servants’ union also announced plans for a general strike in response to this and other issues such as corruption, the rising cost of living and drug shortages.   

These different aspects of Malawian civil society worked together to safeguard the democratic process despite the opportunity Covid-19 offered for Mutharika to undermine our democratic process that would culminate in elections. Thankfully, while Covid-19 posed a real and significant threat to both the public health of Malawians and to our democracy, elections were held and the rest is history.

In the end a government was elected that has strong legitimacy stands better prospects of getting people’s active and conscious cooperation in a sustainable fight against Covid-19.

From the terraces to the theatre: Entering the quasi-political zone 

Back in April 2020, upon the realisation that the Mutharika regime could not be shaken by human rights activism alone, and in a bid to encourage widespread participation and directly influence the democratic process, I decided to establish a politically oriented peoples movement comprised of vibrant young men and women who were determined to be governed better and actively announce their preferred political choices.

We announced the formation of a movement called Citizens for Transformation Movement (CFT), a people powered movement that was the first of its kind in Malawi. It was a new approach founded on “the values of human rights, peaceful co-existence, rule of law, active and patriotic citizenship in pressing for inclusive social, political and economic transformation and a prosperous future for all Malawians”.

Faced with and bearing the brunt of authoritarian practices of president Mutharika, we endorsed the candidature of Dr Lazarus Chakwera and his running mate Dr Saulos Chilima and actively and publicly conscientised citizens of our views holding large meetings covering the width and breadth of Malawi.  

Our philosophy as the CFT peoples movement was that we did not want to govern, but we wanted to be governed better.

This is an important philosophy for African people still suffering from the yoke of oppression by their own post-independent governments. A demand for accountable governance is indeed a legitimate demand to be governed better. It is not a demand to govern neither does it necessarily amount to a choice of any specific political party being in power. It is about constitutionalism. With this philosophy, electoral choices become easy. People’s movements actively associate with political formations that demonstrably promise better accountable governance. This is a post independence generational mandate that must be fulfilled if Africa is to be better.

Human rights as a people movement and election issue

The CFT people’s movement elevated human rights as an election issue in Malawi. We spoke against gross human violations and inequalities and became the voice of the voiceless. We spoke against the targeted attacks on people with albinism who had experienced ritual killings and yet the government had done little to either bring perpetrators to book or to protect them. We spoke on behalf of the women from Msundwe area in Lilongwe who were openly abused and raped by police officers but never got justice. All these issues, including dwindling educational standards, high unemployment levels, lack of quality healthcare and drugs and health personnel in hospitals resonated with the people’s day to day struggles. 

People’s movement and defending the vote

Due to Covid-19, we did not have international election observers. This left everyone in Malawi in no doubt that the responsibility to protect the vote resided in Malawians. This was especially so when confidence in the efficacy and utility value of international observation was in question given that in both Malawi and Kenya, international observers seemed to certify faulty elections as free, fair and credible only for domestic courts to overturn such elections.

Come Election Day, the people demonstrated a strong will to guard and defend their vote. Activists, civil servants, university lecturers and bankers were deployed to polling stations across the country to observe and to guard the vote.

This effort was complemented by informal patrols established by community leaders, composed predominantly of young men, who kept watch for any unusual activity in their areas. They fed information about suspicious people or vehicles to social media, and also informed units from the Malawi Defence Force, which was also deployed on Election Day. These informal patrols resulted in the arrest of several individuals allegedly carrying bundles of cash to bribe election monitors, and handed them over to the police in areas such as Nkhotakota, Salima and Rumphi districts.

People’s victory

Ultimately fresh presidential elections were held on 23 June 2020, following the annulment of last year’s elections first by the Constitutional Court and later upheld by the Supreme Court, citing serious irregularities. This was the second time on the continent and the first in the Southern Africa region where an African Court overturned a presidential election and called for a fresh election. The first was in Kenya in 2017, but saw the opposition boycotting the rerun election.

The Malawi Congress Party led the Tonse Alliance (meaning “all of us” in the local Chichewa language) of nine opposition political parties and Dr Lazarus Chakwera, won the elections by 58.5% of the votes against President Peter Mutharika’s 39.4%. The voter turnout was 64.8%. 

To many Malawians this was the dawn of a new era. 

Impact of people power acknowledged

This ‘people power’ as reiterated by Nic Cheeseman, a professor and African politics expert at the University of Birmingham, and Golden Matonga, a Malawian award-winning journalist, significantly increased pressure on key democratic institutions and those working within them. 

Afrobarometer’s Director of Surveys also echoed this:     

“Malawi was soon swept up in one of the most encouraging political revolutions to hit Africa in the last two decades — the rise of the activist generation. Indeed, an Afrobarometer survey at the time found that there was strong opposition to any attempt to subvert the democratic process, with 68 percent of its citizens believing that the opposition parties were justified in filing their case. 

“Nine months later, in February 2020, bolstered by its people, Malawi’s supreme court mandated fresh elections … The courts have really stood up to defend democracy, but so [has] civil society.” 

The fact that a coordinated opposition, protesters in the streets and independent judges in Malawi’s high courts sufficiently safeguarded Malawi’s democracy, cannot be overemphasized. 

Indeed, Malawians should be commended for adopting a “home-grown ownership” of this election process. 

Looking into the future with cautious optimism

As Malawians thronged the streets celebrating and dancing, and as the new President was sworn in, it was indeed a breath of fresh air.

As Dr Chakwera began forming his government and the realisation that I had been selected as one of the Ministers in his Cabinet, I sat down and reflected on the journey. A journey that saw blood, sweat and tears. A journey that had seen Malawians hit the streets demonstrating against the government more than any other time in the history of the country.

Today I find myself as Minister in a new ministry of Civic Education and National Unity. This is a perfect challenge for me. As someone who was being accused of being a terrorist and of bringing chaos in the country by former President Mutharika, now I find myself at the centre of promoting national unity. 

I am again reminded of Mandela’s words that it looks impossible until it happens. I sign off by sharing in solidarity with the oppressed people of Africa what Frederick Douglass said: “Power concedes nothing without a demand. It never did and it never will. The limits of tyrants are prescribed by the endurance of those whom they oppress.” 

Timothy Mtambo is the Commander in Chief of the CFT People Power Movement and the Minister of Civic Education and National Unity in Malawi. 

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Stop interfering with the Right to Fair Trial in Zimbabwe

24 August 2020

GABORONE/HARARE/JOHANNESBURG/LILONGWE /LUSAKA /MAPUTO/WINDHOEK

Today the Southern Africa Human Rights Defenders Network joined hands with civil society from Africa and beyond to call on the judiciary in Zimbabwe to stop interfering with the rights of prominent human rights lawyer Beatrice Mtetwa to represent her client, the detained internationally recognized journalist Hopewell Chin’ono. Hopewell has a constitutional right to be defended by a lawyer of his choice before an independent and impartial tribunal.

In an unprecedented act of rallying together of civil society to defend a leading human rights defender in Africa civil society argued that the right to freedom of expression of Beatrice Mtetwa is protected under international law. In terms of Principle 23 of the United Nations Basic Principles on the Role of Lawyers (UN Basic Principles):

“Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights…..”

The right to freedom of expression is also “guaranteed in section 61 of the Constitution of Zimbabwe, article 19 (2) of the International Civil and Political Rights (ICCPR) and article 9(2) of the African Charter on Human and Peoples’ Rights (African Charter)” read the statement.

Consistent with the previous observations of the SAHRDN that the phenomenon of judicial persecution had reached unprecedented levels, the civil society leaders expressed concern at the violation of the right to fair trial.  “By disqualifying Beatrice Mtetwa, the court has undermined the accused person (Hopewell Chin’ono)’s right to legal representation, which is guaranteed in section 70(1) (d) of the Constitution of Zimbabwe, article 14(3) (b) of the ICCPR and article 7(1) of the African Charter. Subsequently, this undermines the accused person’s right to a fair trial” read the statement.

Notable pan-African leaders of civil society who signed on to the statement include Justice Willy Mutunga, Former Chief Justice of Kenya 2013-2017, Alice Mogwe (Botswana), Nikita Kaunda, Achieng Akena (Kenya), Chikosa Banda (Malawi), Don Deya (Kenya), Makanatsa Makonese, Muleya Mwananyanda (Zambia), Martin Masiga (Uganda), Norman Tjombe, Tiseke Kasambala (Malawi), Dr. Justice Alfred Mavedzenge, Dr. Musa Kika, Dr. Rose Nakayi, Dr Walter Chambati, Professor Chidi Anselm Odinkalu, Professor Danwood Chirwa, Professor Dzodzi Tsikata, Professor Hugh Corder, Professor Issa Shivji, Professor Michelo Hansungule, Professor Paris Yeros, Professor Praveen Jha, Professor Reg Austin and Professor Adriano Alfredo Nuvunga to name a few.

We call on the Zimbabwean authorities to respect, protect, promote and fulfill the human rights of everyone, including Beatrice Mtetwa’s right to freedom of expression and to practice her profession, the right of the accused persons to a fair trial including legal representation by a lawyer of their choice.

WeStandwithBeatrice

StandwitHER

For further information please contact Washington Katema the Regional Programmes Manager and Team Leader at the SAHRDN on wkatema@southernafricadefenders.africa or +27736202608 or Simphiwe Sidu the Regional Legal Adviser at SAHRDN on ssidu@southernafricadefenders.africa or +27766758168

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.

Zambia recorded its first two cases of the Covid-19 virus on 18 March 2020. At first, the virus appeared to be contained but gradually, as the number of local transmission cases increased, the virus increased exponentially. According to the latest official statistics, Zambia has recorded a total of 10,372 cases of Covid-19 (by 21 August) with the official number of Covid-19 related deaths at 274.

Zambia is hitting the peak of the pandemic.  Yet the government has announced that there will be no lockdown, so as to avoid curtailing the means of survival for ordinary Zambians. This is because the majority of Zambians live from hand-to-mouth, a situation now made worse by the Covid-19 pandemic.

So far, we have been very lucky. We are not seeing apocalyptic numbers of deaths and our health facilities are just about coping with the numbers of the sick. Only a few months ago, in May, President Edgar Lungu announced that the government was advising citizens to follow the health guidelines laid down. He talked about “transitioning to a new normal”. But effectively our “new normal” meant each man for himself and God for us all.

Whilst the jury is out on whether the official figures tally with the actual numbers, it appears that the pandemic in Zambia is being managed reasonably well. Despite a shortage of protective clothing and testing kits, the health facilities are generally adequate.

However, as with many countries across the globe, the pandemic has also created an opportunity for political expediency that has had a detrimental effect on the human rights situation in the country. This is in the context of the fact that Zambia will be going to the polls to elect a new government in 2021.

All roads lead to 2021 and as a result political expediency has been the order of the day. For example, the Government has introduced two statutory instruments under the Public Health Act in order to manage the pandemic. Both are thin on the details as to how the health regulations will be enforced.

Just a few days ago the police spokesperson, Esther Mwata Katongo announced that the police would start arresting and fining people the equivalent of $US39 for not wearing masks in public. The police did start making arrests accordingly, but the Home Affairs Minister Stephen Kampyongo rescinded the decision days later as it became apparent that there was no legal backing for the move in the health regulations. 

In terms of human rights, probably Zambia’s most well-known Covid-19 victim is Prime Television, a popular independent television station that had its broadcasting licence revoked following its refusal to broadcast government adverts and programmes on the Covid-19 pandemic for free in the midst of the economic crisis facing the country. The current Zambian government already has a history of clamping down on media freedoms following the closure of the largest independent newspaper in Zambia, The Post in 2017, and various other radio stations that have been critical of the government. The official reason given for closing the television station was that its broadcasting licence had expired.

Another casualty has been the restrictions on freedom of assembly. Public gatherings in Zambia are governed by the Public Order Act, a notorious piece of legislation whose constitutionality has been challenged several times on the basis that its provisions are arbitrary and not necessary in a democratic state. To adhere to the provisions of the Public Order Act, Zambians now have to get authority from the Ministry of Health or the Local Authority to hold public gatherings of more than five people.

These restrictions are being selectively applied. Government officials and individuals considered close to the ruling party freely hold rallies and large public gatherings without the appearance of any health and safety regulations being adhered to. Zambians have been told that government officials cannot be blamed for people following them around. This has led to many Zambians either resenting any restrictions placed on them or believing that the pandemic is a hoax.

However, when it comes to dissenting voices such as opposition political parties, the restrictions are applied with efficient (and sometimes inefficient) responses. A group of youth protestors attempted to hold a public protest on the socio-economic challenges faced by Zambian youth on 22nd June 2020. The police came out fully armed in riot gear and roamed around the streets in armoured vehicles in an attempt to intimidate the protestors into stopping their protest.

However, the quick-thinking youth took their protest to the bush and beamed it live to an audience of around 300,000 people on their social media platforms. In June there were reports of police arresting opposition members for attempting to hold intra-party elections.

As always, the hardest hit by any crisis are the poor and vulnerable. As with most countries, we are grappling with how to send our children back to school.

Like countries all over the world, our ailing economy has been further crippled by the loss of business and resulting unemployment or underemployment. The government has partnered with donors to provide social protection to the most vulnerable but with 58% of the Zambian population of around 17 million living below the poverty line according to 2015 World Bank figures, resources are stretched. There has been little done to ensure that the rights most affected by the pandemic are still protected, promoted and fulfilled and this is impacting on the overall effectiveness of the government’s response to the pandemic.

Ultimately, whilst the Covid-19 pandemic has been a universal crisis, Zambia’s is a crisis of leadership. Our government needs to put the interests of the country above partisan interests and unite the country regardless of the upcoming general elections. We need to take a human rights-based approach to tackling the pandemic specifically and to tackling governance issues generally.

Our “new normal” should leave no one behind. 

Linda Kasonde is a lawyer and human rights activist heading Chapter One Foundation, a civil society organisation that promotes and protects human rights and the rule of law. She is also an Archbishop Desmond Tutu Leadership Fellow.

South Africa: SAHRDN and ICJ call on authorities to end continued intimidation, harassment of residents of Happiness Village

The ICJ and the South African Human Rights Defenders Network (SAHRDN) have written to the United Nations Special Rapporteur on the Situation of Human Rights Defenders, the African Commission on Human and Peoples’ Rights Special Rapporteur on Human Rights Defenders, and the Chairperson of African Commission on Human and Peoples’ Rights.

They have detailed the continued intimidation and harassment of the residents of Happiness village by the South African National Defence Force (SANDF).

“We have written to the Special Rapporteurs because the SANDF is unrelenting in its abuse of the resident’s despite the best efforts of their legal representatives and repeated court orders,”

ICJ Legal Adviser in South Africa Tim Fish Hodgson.

“A community leader was placed under house arrest guarded by four soldiers for seven days. Another resident was subjected to a punishment by which was told to lie flat on the ground and ‘pray to his God’ for simply leaving his home. Others have been assaulted. The SANDF deliberately conducts military exercises near the residents’ homes late at night to scare and intimidate them. All this with utter disregard for the law and in direct violation of a number of court judgments and orders”,

added Tim Fish Hodgson.

The residents, who were forcibly and violently evicted from Marievale military base beginning in 2017, have repeatedly been granted court orders by the High Court declaring such evictions unlawful and directing the SANDF to refrain from harassing, threatening and intimidating the residents and not to restrict their movement.

Despite this, and in the midst of the COVID-19 pandemic, further evictions and constant harassment and intimidation continues unabated and has intensified to a point that the residents describe the SANDF as having “laid siege” to their homes in Happiness Village which is adjacent to Marievale military base.

Soldiers now police checkpoints, preventing visitors from entering the area and even journalists have been prevented from entering Happiness Village. The residents’ legal representatives were only allowed to visit a single community representative under armed military guard.

As the letter reveals, the SANDF’s actions amount to violations of the residents’ right to adequate housing protection in terms of the South African Constitution, the African Charter on Human and People’s Rights and the International Covenant on Economic, Social and Cultural Rights.

The intimidation, harassment, humiliation and assault of the residents’ amount to violations of the residents’ rights to liberty and security of person and may also amount to cruel, inhumane and degrading treatment or punishment in violation of the South African Constitution and international human rights law.

They seem to be geared at making the resident’s lives intolerable in order to secure evictions “through the backdoor”, which is explicitly prohibited in South African law.

The residents, represented by Lawyers for Human Rights, will once again be in urgent court on July 31 seeking an interdict to prevent further harassment, intimidation and restrictions on their movement by the SANDF. The legal representatives of the SANDF have indicated that they intend to oppose their application.

The SAHRDN and ICJ has therefore implored the Special Rapporteurs to:


1. Call on the SANDF, the Minister of Defence and Military Veterans and on the Ekurhuleni Municipality to desist from any further evictions, relocation, intimidation, harassment, humiliation, and assault of the Marievale community residents;
2. Call on the SANDF, the Minister of Defence and Military Veterans and the Ekurhuleni Municipality to immediately lift and ensure the non-recurrence of restrictions on the movement on Happiness Village residents;
3. Call on the President of South Africa, as the Commander in Chief of the SANDF, to take appropriate action to ensure that the human rights violations that the residents of Marievale have suffered at the hands of the SANDF on a continuous basis since 2017 be investigated, and that appropriate action be taken to ensure access to justice and effective remedies for the residents; and
4. Call on the Parliamentary Portfolio Committee on Defence and Military Veterans to ensure the accountability of the Minister of Defence and Military Veterans for the human rights violations to which the SANDF has subjected the residents on a continuous basis since 2017.

Contact

Simphiwe Sidu (SAHRDN Legal Adviser) t: +2776 675 8168; e: ssidu@southernafricadefenders.africa

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

Zimbabwean government must stop misusing the legal system to arbitrarily arrest and detain human rights defenders.

The Southern Africa Human Rights Defenders Network (SAHRDN) demands the immediate release of Journalist Hopewell Chin’ono and opposition leader Jacob Ngarivhume, who were arrested earlier today and are being arbitrarily detained at Harare Central Police Station.

The arrest of Hopewell Chin’ono was captured on camera when police armed with guns, vandalized his property, breaking a glass door to forcibly gain entry. He was dragged away from his home without a warrant of arrest and no identification from the officers, in an incident that was tantamount to an abduction. Chin’ono, an award-winning investigative journalist has recently been instrumental in exposing high levels and systemic corruption in Zimbabwe.


“We deplore the increasing weaponization of the law to attack civic space and silence human rights defenders in Zimbabwe. Over the years we have seen the systematic misuse of the law by state security institutions, including the police and central intelligence agents, to target dissenting voices and those advocating for accountable governance. These were the same tactics used in pre-independent Zimbabwe and it’s unfortunate the phenomenon continues to exist in what is supposed to be a democratic and free Zimbabwe. Criminalizing defenders which undermines rule of law cannot be a good state policy and must be stopped immediately”

Professor Adriano Nuvunga, a steering committee member of the SAHRDN and Executive Director at the Centre for Democracy and Development (CDD) in Mozambique.

Leading human rights lawyer Beatrice Mtetwa later posted a video standing in front of the shattered door of Hopewell Chin’ono’s house, confirming the arrest of her client, but unbale to verify who had taken him and where he had been taken to. SAHRDN is aware that for several hours, Chino’ono was denied access to his lawyers, nor was he promptly informed of the charges he is facing, which was in violation of his due process rights.

Preceding his arrest, Hopewell Chin’ono had reported receiving verbal threats from ruling ZANU PF members following his corruption exposé that eventually led to the firing of Zimbabwe’s Minister of Health who was implicated in the diversion of public funds meant for COVID-19 purposes.

Jacob Ngarivhume is the President of Transform Zimbabwe, an opposition political party in Zimbabwe, who has been calling for a public protest against bad governance and corruption that is scheduled for on 31 July. Prior to his arrest, he had been similarly receiving death threats from suspected government agents or sympathizers.

The arrest of Chino’ono and Ngarivhume are the most recent in a series of arrests and attacks of human rights defenders and legitimate political opponents, targeted for merely speaking out against corruption and bad governance in Zimbabwe. Just this past week suspected state security agents broke into the house of Mr Obert Masaraure, who is the President of Amalgamated Rural Teachers Union of Zimbabwe (ARTUZ). They briefly but forcibly held his wife demanding to be told the whereabouts of Masaraure. Masaraure has been a victim of abduction and torture by state agents for his activism. ARTUZ has been key in calling for better living conditions of Civil Servants, particularly rural teachers. We also saw nurses being arrested and detained for striking for better working conditions and essential protective clothing in light of Covid-19. Young human rights activists, Namatai Kwekeza, Youngerson Matete and Prince Gora were recently arrested for staging a protests against proposed constitutional amendments. This was the second arrest of Namatai Kwekeza in less than a month.

“We urge the Zimbabwean government to comply with its obligations under regional and international law, as well as the Constitution of Zimbabwe,” said Prof Nuvunga. “Section 58, 59, 60 and 61 of the Constitution of Zimbabwe specifically guarantee freedom of expression, peaceful assembly, and association”

added Professor Adriano Nuvunga

The United Nations Special Mechanisms have recently written to Zimbabwean authorities on the abuse of human rights defenders and violation of the rights to freedom of expression, association and assembly. The continued targeting of defenders especially during a global pandemic where government should be more accountable is counterproductive.

The SAHRDN strongly calls on Zimbabwean authorities to stop persecuting human rights defenders, journalists, and democracy activists who are legitimately exercising their constitutional rights. We also call for the immediate and unconditional release of Hopewell Chin’ono and Jacob Ngarivhume and that their safety be guaranteed.

For more information please contact Simphiwe Sidu the Regional Legal Adviser at ssidu@southernafricadefenders.africa or +27736202608.

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 weekly roundup is a collaboration between the Southern Africa Human Rights Defenders Network and Maverick Citizen.

When the World Health Organisation (WHO) declared Covid-19 a global pandemic on 11 March 2020, most governments in southern Africa swiftly introduced lockdowns and curfews to curb the spread of the virus.

The measures slowed the infection rates, potentially preventing calamities associated with the poor state of public health facilities in Africa. However, their most severe consequences were on livelihoods and national economies in a way that threatened stability. It came as no surprise that from May, we saw most countries slowly easing restrictive measures and opening up again — even though the peak of Covid-19 infections has not yet been reached. 

In this article, we take a look at the rate of infections vis-à-vis the state of lockdowns and the challenges that are complicating reopenings across the region.  

Lockdown measures and economic carnage

Reports indicate that 15 sub-Saharan African governments went so far as to partially or fully close their borders – closing airports, ports and in some cases land borders – before they had even confirmed a single case. 

As of 30 March, 46 of sub-Saharan Africa’s 49 sovereign states had imposed partial or full closures of their borders; 44 had closed schools, banned public gatherings, or put in place other social distancing measures; and 11 had declared a state of emergency. 

On a regional level, sub-Saharan Africa arguably responded more quickly and decisively than anywhere else in the world. 

While Africa hasn’t yet suffered the ravages of the pandemic on the scale that has hit other continents like Asia, Europe and America, analysts say Covid-19 could still have a devastating impact on the continent’s already strained health systems and is quickly turning into a social and economic emergency. According to the African Union, the continent faces its first recession in a quarter-century and has lost nearly $55-billion in the travel and tourism sectors in the past three months. 

South Africa, the continent’s largest and most developed economy, is the only African country among the 10 hardest hit Covid-19 countries in the world. South Africa is expected to experience its deepest recession for a century with at least a 7.1% contraction in GDP while the collapse in oil prices has hit Africa’s third-largest economy — Angola — as well as the second-biggest economy, Nigeria, hard. 

In May, the United Nations Economic Commission for Africa (Uneca) estimated that Africa could lose up to $65.7-billion (2.5% of annual GDP) for every month of lockdown. 

 Covid-19 update and status in the region

Worldometer reported that as of 14 July, Africa had registered 616,345 cases and more than 13,500 deaths. According to WHO regional director for Africa, Dr Matshidiso Moeti, “Even though these cases in Africa account for less than 3% of the global total, it’s clear that this pandemic is accelerating.” 

South Africa reported its biggest increase in Covid-19 infections on 9 July when the Health Ministry reported that there had been 13,674 new confirmed cases in one day. By 14 July, the number of confirmed cases in South Africa had surpassed 280,000. A record 192 people succumbed to Covid-19 in 24 hours on 7 July. Fatalities increased from 3,502 to 4,172 within a week. 

Reports indicate that by 14 July, DRC had recorded 8,135 cases, Malawi 2,430, Zambia 1,895, Eswatini 1,434, Mozambique 1,268 and Zimbabwe stood at 1,064. Namibia had 864, Angola 525, Tanzania 509, Botswana 399, while Lesotho, one of Africa’s least affected countries, had recorded 256 cases.

It is not clear what is driving the significant differences in infection rates, but there is belief that the differences in numbers may be a factor of the capacity to test and compile up-to-date statistics. South Africa has carried out and continues to carry out extensive testing while some countries like LesothoZimbabwe and Eswatini have limited capacity and therefore their infection-rate statistics will not be reliable.

Reopenings: Economic necessity or health suicide?

Due to the enormous stress the lockdowns have imposed on economies, governments in the region have gradually been reopening economies from May. Zero economic activity is unsustainable. The balance between maintaining some economic activity and containing the spread of Covid-19 is delicate.

The opening up of economies has been accompanied by some strict measures, including quarantining returnees, enforcing the wearing of masks in public, restrictions on public gatherings and continuation of physical distancing. 

The conditions in some quarantine zones in some countries and how they then become zones for the spread of Covid-19 is a matter for another day.

Despite experiencing the highest number of cases, which continue to rise, South Africa continues to move forward with its phased reopening strategy. In June, schools, churches and businesses such as restaurants, hairdressers, and hotels, among others, were allowed to reopen. On 6 July, more pupils returned to school after nearly four months of interruption. 

In a nationally televised address on 12 July, President Ramaphosa, however, announced that while the country would remain on Level 3, regulations would be tightened to ease pressure on the country’s healthcare system and slow the spread of the virus, adding that top health officials had warned of impending shortages of hospital beds and oxygen as South Africa reaches a peak of Covid-19 cases. Ramaphosa reintroduced a ban on the sale of alcohol, arguing that since the sale and distribution of alcohol was permitted again in June, hospitals have undergone a spike in admissions in their trauma and emergency wards. A night-time curfew was also reintroduced and he extended the national state of disaster to 15 August.

In response, the National Liquor Traders Council, South African Liquor Brand Owners Association (Salba), the Beer Association of South Africa, Vinpro, and the Liquor Traders Association of South Africa expressed concern that the ban will lead to more job losses. According to News24, the country’s alcohol industry directly employs about 90,000 people. 

In Tanzania, where President John Magufuli has been accused of taking an aggressive reopening strategy and has criticised local health officials for inflating the country’s Covid-19 numbers, larger gatherings – including weddings and at schools – were allowed to reopen from 29 June. 

Angola lifted its Covid-19 state of emergency at the end of May and reopened businesses at 50% capacity.

African authorities have also decided to reopen airspaceSouth Africa has resumed domestic flights while Tanzania and Zambia now have commercial flights. Tanzania opened its skies weeks ago, hoping for a tourism boost despite widespread concern that it is not being honest about the extent of infections. The country has reportedly not updated case numbers since April.

Tanzania was also the first country to reopen its borders to tourists and international travel as Africa’s tourism gears up for a comeback. 

Other countries such as Zambia and Zimbabwe have followed suit. 

Zambia’s President Edgar Lungu addressed the nation on 25 June and announced the reopening of international airports to boost international tourist arrivals. On 30 June, the government of Zimbabwe announced the easing of regulations in the tourism and hospitality sector. Restaurants will be allowed to welcome sit-in patrons, national parks will reopen and safari operators will resume economic activity. Restaurants may only occupy 50% of their licensed capacity. However, international travel remains banned. 

Zimbabwe remains under an indefinite “partial” lockdown, with a fortnightly review to determine when to reopen. Given the allegations of violations of fundamental freedoms and the arbitrary arrests and detentions of human rights defenders and political opponents, questions continue to be asked whether the indefinite lockdown in the country is meant to achieve public health or rather political outcomes.

As more African countries open their borders, the World Tourism Organisation (UNWTO) led Global Tourism Crisis Committee has drawn up guidelines to restart tourismSouth Africa, one of Africa’s most popular destinations, but unfortunately the epicentre of the pandemic in Africa, has however opted to reopen its tourism sector in early 2021.

Covid-19 and the informal economy

The impact of lockdown measures on the formal economy has been the largest trigger of efforts by many governments to reopen. Yet a significant number of African economies and livelihoods have been supported by the informal economy. In other words, Covid-19 has had a disproportionate impact on the poor and people who operate in the informal economy. 

The majority of the peopl live off the informal sector and cross-border trade. As long as the informal sector and borders remain closed, a lot of families face a humanitarian catastrophe. 

In addressing a SADC Parliamentary Forum Standing Committee on Trade, Industry, Finance and Investment meeting, Amnesty International “reckons that informal cross-border trade accounts for between $17-billion and $20-billion per annum” in southern Africa and “so if cross-border informal traders are unable to move and do business, the impact on household incomes would be dire.” 

This led Deprose Muchena, the Amnesty International Director for Southern and East Africa, to conclude that:

“While the globe is dealing with a health pandemic, Africa in general and southern Africa in particular, will be dealing with an economic pandemic.” 

The majority of the people, however, live off the informal sector and cross-border trade. As long as the informal sector and borders remain closed, a lot of families face a humanitarian catastrophe. 

In Zimbabwe, the suffering has raised political tensions with threats for a national anti-government strike on 31 July, led by the Movement for Democratic Change (MDC) Alliance, the country’s main opposition party. Faced with a combination of increasing infection rates and threats of protests, President Emmerson Mnangagwa has extended lockdown measures indefinitely, subject to review every two weeks. The reopening of schools in Zimbabwe has also been deferred owing to the rising number of Covid-19 cases. For now, it appears that the lockdown measures will respond to both the threats posed by Covid-19 and potential demonstrations.

Covid-19 reopening setbacks

Until June 2020 Seychelles had gone for “70-plus straight days without a single infection” before “two chartered Air Seychelles flights carrying more than 200 passengers also brought the coronavirus”, resulting in a situation between 24 and 30 June, where the country’s confirmed cases shot from 11 to 81. This made authorities “delay the reopening for commercial flights for its lucrative tourism industry until 1 August, if all goes well”. 

In Eswatini, the reopening suffered a huge setback when judges of the Mbabane High Court contracted the virus on 6 July, forcing the courts to close just a week after a cabinet minister had also tested positive. Schools are still closed and government plans to reopen them has sparked a fierce debate. So serious is the standoff between the government and civil society that the Swaziland National Association of Teachers has filed a court appeal against the government’s plan to reopen schools. The association argues that independent inspections at more than 22 schools had established that conditions were not conducive to learning. 

After easing restrictions for the first time in 48 days on 21 May, Botswana was forced to bring back a strict lockdown in its capital city, Gaborone, and surrounding areas after recording 12 new cases on 12 May. The lockdown was to be lifted on 16 June. On 3 July, the government announced the Ministry of International Affairs and Co-operation was being shut “due to Covid-19 exposure”.  

With Covid-19 being a poverty, inequality and human rights violations multiplier, serious questions continue to be raised on the adequacy of the Covid-19 lockdown measures and current efforts at tweaking such measures in order to facilitate the reopening of the economies. 

At the beginning of July, the president was back in quarantine for the fourth time “due to the discovery of a positive Covid-19 test result on one of the officials closely serving His Excellency the President Dr Mokgweetsi Eric Keabetswe Masisi”.

On 15 July, BBC News reported that as doctors, unions and management fight over scarce resources in South Africa, one senior doctor described the situation as “an epic failure of a deeply corrupt system”, while another spoke of “institutional burnout… a sense of chronic exploitation, the department of health essentially bankrupt, and a system on its knees with no strategic management”.

RFI reported on 28 May that more than 400 people escaped from Kamuzu Stadium quarantine centre in Malawi — at least 46 of them had tested positive for the virus. Reasons for desertion included complaints of inadequate food, not enough bathrooms or other facilities at the stadium they were placed in while others simply bribed the police to escape. On 6 July, Malawi, which took to the polls on 23 June in a fresh presidential election, cancelled its independence celebrations that had been scheduled to coincide with the new president’s inauguration ceremony owing to a sharp rise in Covid-19 cases. 

In South Africa, teacher unions have strengthened calls for schools to close again after President Cyril Ramaphosa confirmed that the country’s Covid-19 peak is yet to come. Several teachers and students were infected with the virus at schools.

“Covid-19 is a global public health challenge, but in Africa, the malady has metamorphosed into an “economic pandemic” requiring bold and innovative parliamentary and governmental responses.” 

Deprose Muchena of Amnesty International says

While governments have been pushed to reopen economies largely by the impact of Covid-19 measures on the formal economy with estimated losses of $65.7-billion per month for each month of lockdown, according to Uneca, it is the carnage on the poor who rely on the informal economy worth $17-billion to $20-billion a year in southern Africa alone that the greatest impact on household incomes is felt. 

With Covid-19 being a poverty, inequality and human rights violations multiplier, serious questions continue to be raised on the adequacy of the Covid-19 lockdown measures and current efforts at tweaking such measures in order to facilitate the reopening of the economies. 

The predominantly weak economies in the region cannot cope for long without opening up. Yet without measures to enforce the conditions necessary for safe reopenings, it appears there is a looming danger of a further spike in infections and with it a possible return to strict lockdowns. The cost of another wholesale lockdown in southern Africa is economically unfathomable and a potential human rights disaster of incalculable proportions. 

Arnold Tsunga is a human rights lawyer and the technical and strategy adviser of the Southern Africa Human Rights Defenders Network. Tatenda Mazarura is a woman human rights defender (WHRD), a professional rapporteur and an election expert. Mark Heywood is editor of Maverick Citizen.

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.

The Southern Africa Human Rights Defenders Condemns Xenophobic Attacks against Foreign Nationals in South Africa

The Southern Africa Human Rights Defenders Network (SAHRDN) calls on the Government of South Africa to immediately adopt measures that guarantee the protection of foreign truck drivers from the ongoing violence, intimidation, and harassment that is occurring in the country.

Since the start of July 2020, calls were made by several local organizations, including the All Truck Drivers Foundation (ATDF), for a national truck shutdown over the hiring of foreign nationals in South Africa. Actions taken by the ATDF thus far have included blocking several roads across the country, looting, torching of trucks and attacks of foreign national drivers. Furthermore, several reports indicate that there are also widespread plans to attack foreign-owned shops across the country. 

“The attacks on foreign nationals in South Africa, particularly those who come from other parts of Africa and Southeast Asia, are not new”, said Simphiwe Sidu, Legal Advisor of the SAHRDN. “What we are witnessing is part of a larger societal issue concerning the ongoing systemic challenge of achieving an equal society, particularly in relation to race, class and nationality”, added Miss Sidu

The Constitution of South Africa is founded on the values of equality and the creation of a non-racial and non-sexist society. Section 9 of the Constitution guarantees the right to equality and equal protection and benefit of the law for every person, including foreign nationals who are within the borders of South Africa. In addition, South Africa is a party to a number of international human rights instruments, which promote the right to equality and non-discrimination. Some of these instruments include the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights, which all prohibit discrimination and guarantee the equal protection of every person according to the law.

According to previously published reports by Xenowatch, more than 300 deaths and 900 physical assaults related to xenophobia have occurred since 1994 in South Africa. Additionally, more than 100 000 foreign nationals have been displaced within this period. Although the South African Government has recently adopted a National Action Plan to combat xenophobia, research shows that the attacks continue to worsen, and little has been done by the criminal justice system of the country to hold perpetrators of such actions accountable.

While President Cyril Ramaphosa has previously spoken out against the attacks on foreign nationals, we believe that there further needs to be a strong demonstration of leadership from all sectors of government in order to protect the rights and interests of all foreign nationals in the country. The SAHRDN embraces the spirit of Ubuntu and Pan-Africanism, and we call on Mr. Ramaphosa as both the President of South Africa and Chairperson of the African Union to safeguard the unity and protection of all Africans, by ensuring that:

  1. The Police and every other relevant stakeholder to immediately investigate the criminal acts and ensure that perpetrators are brought to justice for the harm done.
  2. Government needs to take urgent measures in reforming and implementing the National Action Plan to combat Xenophobia, by inviting all relevant stakeholders, including Civil Society Organizations and the public for comments.
  3. Government needs to urgently tackle the root cause of Xenophobia in South Africa, including eradicating inequalities in the country in order to promote peace and stability, within the framework of the South African Constitution and any other relevant instruments.
  4. Government should promote the founding values of the Constitution by seeking to ensure the need for equitable access of services for every person who lives in the country.