Nov 1, 2019 | News, Op-eds
An opinion editorial by Shaazia Ebrahim, Communications Consultant for ICJ’s Africa Programme.
Nomfundo Ngobese (25) was used to waking up at 4am to walk the 35km from her home in Nquthu, northern KwaZulu Natal (KZN) to school. In the blistering heat and the freezing cold, crossing rivers and sometimes dodging rain and lightning, Ngobese, was like many South African school learners who walked for hours to get to and from school each day.
“We had to wake up past 4 so that at past 5 we can go to school. In winters when we had to go to school, it was dark. We didn’t feel safe… We didn’t even realise the difficulties our smaller siblings were facing. It’s a thing that we just got used to,” Ngobese said.
While learners all over South Africa walk for hours every day to get to school and back home, KZN has the greatest need for scholar transport. According to the 2016 General Household Survey done by Statistics South Africa, some 483 633 learners in KZN walk more than half an hour in one direction to school each day.
But the end of the battle for learners with similar experiences to Ngobese could be in sight.
On October 23, Ngobese joined other Equal Education (EE) post-school youth organisers in picketing outside the Pietermaritzburg High Court. EE, represented by the Equal Education Law Centre (EELC), had sued the KZN Department of Education (DoE) to court to force the government into releasing the provincial scholar transport policy, which should have been available in December 2018.
They emerged victorious when government committed to releasing its Scholar Transport Policy for public comment by 31 January next year. Should the KZN DoE fail to comply, it will have to answer to the courts. The release of this policy is a critical step in ensuring that more learners will be able to have access to school transportation.
EE has been working to achieve free and safe scholar transport in Nquthu since 2014, after Equalisers told EE about the difficulties they faced with scholar transport. Learners highlighted the challenges they faced walking very far distances in extreme heat and in thunderstorms, and crossing rivers and mountains, at great risk of violent crime including sexual assault. Many learners said they felt tired and hungry after the long walk, and could not concentrate properly in class or perform well at school.
“I was once an Equaliser myself and I once walked to school every morning and afternoon,” Palisa Motloung (21) said. “We were never sure what’s going to happen on those routes. I remember this one time when I was walking with my friend, and then we passed a bush and there were men there talking. We couldn’t tell if they were talking on this side or that side of the fence because it was dark. It was very scary, we literally had to run. It was quite an experience and I don’t wish any child should go through that,” Motloung said.
After local visits to schools in Nquthu in 2014 and 2015, EE wrote to the KZN Department of Transport (DoT) and KZN DoE about these hardships learners were facing, and requested information about how they were providing scholar transport in the province. Governments’ replies were unsatisfactory, with the DoE responding that it found that only one of the 12 schools EE discussed qualified for scholar transport.
After long back and forth with government, who provided scholar transport in dribs and drabs, EE found that there was still a desperate need for scholar transport. Government officials claimed that five of the 12 schools did not qualify for scholar transport because learners were not attending the schools closest to their homes. They conceded that seven of the 12 schools did qualify for scholar transport, but said there was no money to provide it. EE took the matter to court.
This is not the first time that a provincial department of education has sued in South Africa for a failure to provide transport for learners. In 2015 the Judge Plasket of the Eastern Cape High Court held in a similar case that “The right to education is meaningless without … transport to and from school at state expense”.
The initial case was set to be heard at the Pietermaritzburg High Court. But before the hearing began, the lawyers representing EE and the lawyers representing the KZN government entered into negotiations with the KZN DoE and KZN DoT made certain promises. The order granted by the Pietermaritzburg High Court stated that the KZN DoE promised to provide scholar transport to learners in the 12 Nquthu schools by 1 April 2018.
While this was a momentous victory for EE, as part of ongoing court processes, the organisation filed a response to the KZN DoE report to the court, recognising the important steps that it had taken, but also noting significant gaps that remain.
The EE urged the KZN DoE in June last year to provide clear timelines for the finalisation of its scholar transport policy. This is a crucial step to clarify which learners qualify for government-subsidised scholar transport, how the KZN DoE and the KZN DoT will work together to provide scholar transport, and how learners’ safety will be ensured.
This report has been delayed for over a year now, but if the decision of the Court is to be implemented, it will be released in January next year.
After coaxing from South African civil society, including EE, The National Learner Transport Policy was finally published in October 2015. The policy contains important scholar transport guidelines and principles that provinces should adhere to. However, while this policy has been finalised, it has yet to be adopted.
The government’s failure to provide learners with transport is a violation of the right to basic education which is protected under the South African Constitution and international law. The International Covenant on Economic Social and Cultural Rights, which South Africa ratified makes clear that education must be free for all learners at a primary school level and should progressively be made free for all learners at all levels.
Free education includes not only the absence of fees but also all other costs include free, reliable and safe transport. This means learners have a right to access their schools safely, and on time, so that they can use their energy to concentrate in class. For many learners in South Africa this is impossible without government funded transport.
“Most of the time, [schoolchildren] wake up very early and they get to school very hungry and tired. This affects their school percentage, the pass rate of the school also gets affected because of the long kilometers that children have to walk to school,” Sanele Zulu (22) said.
“I walked to school but I didn’t even know it was a wrong thing to do until Equal Education came and opened our minds. Even our parents didn’t know it was wrong, they thought that because in the olden days they walked long distances, so we must get used to it. But when EE came to our rural village, something went off in our eyes and we saw things in a different way,” Ngobese said.
Reflecting on their own experiences during school Ngobese, Motloung, and Zulu, continue to use their voices for learners who walk long distances to go to school. Equal Education, with the legal assistance of EELC, continues to advocate for the rights of learners in KwaZulu-Natal and all over South Africa.
Even though the persistent delays in the development and implementation of government policies to facilitate free, safe transport to and from schools is a cause for concern, learner’s faith in the judicial system and rights-based advocacy should be a source of optimism about the future of constitutional democracy in South Africa.
This op-ed was originally published in the Mail & Guardian.
Oct 31, 2019 | News
On 29-30 October the ICJ, in partnership with dhColombia and the Argentine Forensic Anthropology Team (EAAF), hosted a two-day training workshop in Bogotá on the legal framework around enforced disappearance and extrajudicial killings.
The training aimed to improve the understanding of victims and human rights lawyers of the domestic law on extrajudicial killings and enforced disappearances in Colombia. It included an analysis of both the ordinary justice system, as well as transitional justice mechanisms. It also explored the role of the forensic sciences in tackling impunity for those crimes.
The ICJ in furtherance of its objective to promote accountability, justice and the rule of law in Colombia, has been continuously monitoring the investigation and prosecution of serious human rights violations and abuses, particularly extrajudicial killings and enforced disappearances. Perpetrators of such violations, which constitute crimes under international law, have enjoyed a high level of impunity. While there are numerous unresolved cases dating back to the 1970s, violations have continued even after a comprehensive peace agreement was signed in 2016 following decades of armed conflict.
In Colombia, achieving accountability for those crimes has proven difficult for several reasons, including the ineffective functioning of the justice system. Victims and their lawyers have faced serious obstacles in gaining access to effective remedies. In addition, the creation of new institutions by the Peace Agreement has changed some basic rules and procedures for the investigation and prosecution of those crimes. Consequently, the Colombian justice system is more complicated to understand not only for victims but for lawyers.
The training workshop was part of a broader regional project addressing justice for extrajudicial killings and enforced disappearances in Colombia, Guatemala and Peru. Participants were victims and human rights lawyers from different regions of the country, especially those where that is less opportunity to access legal and forensic training. Considering that capacity building activities are essential to the effective achievement of accountability, it is expected that participants of the training will obtain valuable tools to demand justice and remedy and reparations for serious human rights violations.
Contacts:
Rocío Quintero M, Legal Adviser, Latin America. Email: rocio.quintero(a)icj.org
Carolina Villadiego, ICJ Legal and Policy Adviser, Latin America, and Regional Coordinator of the Project. Email: carolina.villadiego(a)icj.org
Oct 30, 2019 | News
The ICJ hosted a two-day workshop on 28-29 October 2019 in Myanmar’s capital, Nay Pyi Taw. Organized jointly with the Union Attorney General’s Office (UAGO), 15 prosecutors and ten members of the Myanmar Police Force attended this event, entitled “Workshop on the Minnesota Protocol.”
Participants included persons involved in the conduct of criminal investigations, as well as senior members with oversight of their work. The workshop was opened with remarks by His Excellency U Win Myint, Deputy Attorney General of the UAGO, and Sean Bain, Legal Adviser for the ICJ in Myanmar. Both speakers underscored the importance of conducting effective investigations according to international standards.
The Minnesota Protocol provides guidance on the State’s implementation of its duty under international law to effectively, thoroughly and impartially investigate potentially unlawful killings, including when State actors may have been involved. It applies to deaths under custody, suspicious deaths, and suspected cases of enforced disappearance. The workshop takes place in a context in which Myanmar has experienced well documented and widespread incidences of such unlawful killings amounting to serious crimes under international law.
An overview of the international human rights law framework was provided by ICJ Associate Legal Adviser Jenny Domino, highlighting how the conduct of prompt, effective and impartial investigations into unlawful killings is a core component of the State’s obligation to uphold the right to life, binding on all States under international law. ICJ Legal Researcher Ja Seng Ing provided an overview of the contents of the Minnesota Protocol, including a discussion of its 2016 revision to align it with contemporary norms and practices.
Glenn Williams, an experienced international criminal investigator and Detective Inspector (Retired) of the New Zealand Police Force explained how to properly secure a crime scene and chain of custody in order to preserve the integrity of the evidence. Participants applied these skills in a group exercise based on a real-life case from the Solomon Islands. He also presented on the proper conduct of witness interviews, emphasizing the need to frame questions in a manner that would avoid the re-traumatization of victims. Glenn Williams further shared the investigative challenges of dealing with telecommunications evidence from his time at the Special Tribunal for Lebanon.
Dr. Porntip Rojanasunan, a forensic pathologist in Thailand and Member of the Expert Advisory Panel during the Minnesota Protocol revision process, shared her forensic expertise through illustrative cases that she had worked on in Southeast Asia in the past two decades. Dr Porntip stressed the importance of forensic pathology in determining the true cause of death. She also emphasized the importance of conducting an autopsy in potential cases of human rights violations.
The workshop is part of the ICJ’s ongoing promotion of international human rights law and standards globally. In Asia, this has included engagement with Myanmar authorities as well as authorities in neighboring countries.
See also:
Myanmar: ICJ discusses the Minnesota Protocol with prosecutors
ICJ Oral statement in the interactive dialogue with the fact finding mission on Myanmar
Report: Achieving Justice for Gross Human Rights Violations in Myanmar
Related material:
Minnesota Protocol (English)
Minnesota Protocol (unofficial Burmese translation)
Oct 25, 2019 | News
Today the ICJ condemned the response of Lebanese security forces to predominantly peaceful protests that erupted across Lebanon on 17 October following the government’s attempt to introduce a daily tariff on voice calls made through applications such as WhatsApp.
The ICJ called on the Lebanese authorities to respect and protect the right of protestors to peaceful assembly and freedom of expression; to refrain from using unlawful force to disperse protests and ill-treatment of protestors and; to effectively investigate and ensure accountability for any abuses committed in connection with the protests.
Security forces in Lebanon have employed excessive and unlawful force against protestors, amid nationwide dissent over Lebanon’s worsening economic crisis.
NGOs and video footage circulating on news and social media platforms document a number of disproportionate measures used to disperse crowds and quell the unprecedented protests, including by firing tear gas, beating protestors and forcefully removing them from their peaceful sit-ins.
“The Lebanese authorities must ensure the effective investigation and prosecution of all abuses committed in the context of these protests by State or Non-state actors, including the arbitrary use of force, arrests and ill-treatment,” said Said Benarbia.
With respect to the use of force, the Lebanese authorities are bound by international law and standards, which stipulate that the use of force by law enforcement officials is only permissible when it is a last resort, is strictly necessary and is used to the extent required for the performance of their duty.
Attacks by armed groups affiliated with the Amal Movement and Hezbollah have also been reported by local organizations and media.
At least 15 protesters were injured in Nabatieh and six persons in Riad al-Solh and admitted to hospital. Additional violent attacks on protesters, allegedly attributed to the Amal Movement, also took place in the city of Soor.
Background
The protests purportedly broke out in response to years of rampant corruption, unemployment and poverty.
By 18 October, protests were characterized by calls to oust governmental authorities perceived as Lebanon’s ruling elite, including the president, government and legislative authority, and fundamental change to the sectarian political system.
In an attempt to diffuse the increasingly tense situation and appease protestors, Prime Minister Saad Hariri announced the adoption of a raft of economic reforms on 21 October.
Anti-government protests however, which have now entered their ninth consecutive day, have gained considerable momentum.
Lebanon is a party to the International Covenant on Civil and Political Rights and the Arab Charter on Human Rights. Both of these treaties require the State to guarantee and protect the rights to freedom expression and freedom of assembly and freedom from torture and other cruel, inhuman or degrading treatment or punishment, including through the unlawful use of force.
Lebanon-Protests-News-web story (story in Arabic, PDF)
Oct 24, 2019 | News
The ICJ in collaboration with the Judicial Institute of Africa (JIFA) and Democratic Governance and Rights Unit (DGRU) convened a three-day training workshop for Zimbabwe court researchers.
The training workshop was held from the 21 to 23 October 2019 at the University of Cape Town, South Africa.
The judicial research programme is an initiative that was established to increase the research capabilities of the researchers, which would in turn improve the jurisprudence emerging from the courts.
Court researchers play a crucial role in the development of Zimbabwean jurisprudence through the work they undertake on behalf of the judges.
Furthermore, the increased efficiency that they bring to the courts allows judges to expend more of their efforts on well-informed analysis and administration of cases.
This brings a better quality of justice and reduces waiting periods for judgments and case backlog.
Arnold Tsunga the Director of the Africa Regional Programme of the ICJ remarked that “given the importance of the space that these researchers occupy, it is important to ensure that their legal knowledge and skills continue to be relevant and comprehensive so that they can provide a service of quality that adequately responds to the needs of judges. This in turn will also contribute to attainment of the UN Strategic Develop Goal (SDG) 16 and 5 on access to justice for all as well as SDG 5 on leaving no one behind.”
The areas of discussion for the three-day training workshop focused on judicial ethics, accessing judgments, accessing research materials, judgment writing and memo writing.
The training workshop was facilitated by judges, university teaching staff, and external resources. Twenty researchers are took part in the training workshop, including 17 women.
Contact
Arnold Tsunga, t: +26377728 3248; e: arnold.tsunga(a)icj.org
Rumbidzai Muyendesi, t: +263771666579; e: rumbidzai.muyendesi(a)icj.org
Oct 22, 2019 | News
On 25 and 26 October, the ICJ in Central America will hold the VII Regional Conference on Judicial Independence, with the central theme of the protection and security of Judges.
The Conference will discuss the role that governments should play in the protection of judges, as well as the relationship between judicial independence and security of those who deliver justice.
Participants from outside the region include Radmila Dragicevic Justice of the Supreme Court of Cassation of Serbia and Vice-President of the ICJ; José Antonio Martín Pallín, Judge Emeritus of the Spanish Supreme Court of Justice and ICJ Commissioner, and Erland Flaterud and Finn Arne Schanche, both judges from Norway.
Nine other judges from Central America will attend, including Leonardo Ramírez of the Supreme Court of Justice of El Salvador Murcia and Fernando Cruz Castro, President of the Supreme Court of Justice of Costa Rica.
The ICJ regrets that the Supreme Court of Justice of Guatemala has not been in a position to receive this important delegation at its plenary on 23 October to address the issue of the security of judges.
The ICJ recalls that this Conference is held within the framework of a letter of cooperation and understanding agreed with the former President of the Judicial Branch and the Supreme Court of Justice, Ranulfo Rojas Cetina in 2015.
The ICJ is particularly concerned that there is presently an unfilled vacancy for Chief of Security for the judiciary, following the resignation of the former Chief who had allegedly engaged in conduct not consistent with his function.
Ramón Cadena, Director of the ICJ for Central America, said: “It is the duty of the Supreme Court of Justice to inform the Guatemalan public about the Judges Protection System, so that it does not become a source of corruption or in any way interferes with the work of independent, and impartial judges.”
In Guatemala, the international delegation will meet with judges such as Yassmín Barrios, Ericka Aifán, Miguel Ángel Gálvez, Carlos Ruano and Pablo Xitumul among others. They have been the subject of seemingly unfounded complaints which have posed risks to their personal security and independent judicial functioning.
