Jun 1, 2021 | News
President Abdel Fattah al-Sisi of Egypt should immediately end a crackdown on freedom of association, independent groups, and peaceful dissent, 63 organizations, including the ICJ, said today.
هذا البيان الصحفي متوفر باللغة العربية أيضاً
The groups issued the following public statement recommending a series of actions Egypt should take to make tangible improvements in the human rights situation in Egypt and to ensure that Egypt complies with its international obligations:
We the undersigned 63 organizations call on the Egyptian authorities, including President Abdel Fattah al-Sisi, to take immediate action to end the Egyptian authorities’ wholesale crackdown on independent organizations and peaceful dissent.
More than 30 countries at the United Nations Human Rights Council issued a joint statement on 12 March 2021 expressing their deep alarm over “the trajectory of human rights in Egypt and share[d] the concerns expressed by the [UN] High Commissioner for Human Rights and [UN] Special Procedure mandate holders.”
Our organizations have been calling for the establishment of a monitoring and reporting mechanism on Egypt at the Human Rights Council and will continue to do so until there is meaningful and sustained improvement in the country’s human rights situation.
We remain greatly concerned over the arbitrary arrest, detention, and other judicial harassment of human rights defenders. Those held unjustly include NGOs directors Mohamed al-Baqer and Ezzat Ghoniem, human rights researchers Patrick George Zakiand Ibrahim Ezz el-Din, and lawyers Mahienour al-Massry, Haytham Mohamdeen, and Hoda Abdelmoniem. The founder and director of the Cairo Institute for Human Rights Studies (CIHRS) Bahey Eldin Hassan was handed down an outrageous 15-years imprisonment sentence in absentia.
Other attacks against human rights defenders include travel bans, asset freezes, additions to the “terrorists list” in arbitrary proceedings, protracted criminal investigations under case No. 173 of 2011, and reprisals for their engagement with UN mechanisms. We share concerns by seven Special Procedures mandate holders – United Nations experts – about Law No. 149/2019 on Non-Governmental Organizations, as it fails to meet Egypt’s international obligations to ensure the right to freedom of association.
We also have serious concerns over the overly broad definition of terrorism in Law No. 94 of 2015 on counterterrorism and in the Penal Code that contravenes international standards and allows for the criminalization of acts falling within the scope of the rights to freedom of expression, association and peaceful assembly, as well as the misuse of “terrorism circuits” of criminal courts and the Supreme State Security Prosecution to target human rights defenders and other peaceful critics in order to silence dissent.
We are also deeply concerned over the crackdown on independent journalists and media, as hundreds of websites remain blocked and at least 28 journalists remain behind bars for simply doing their work or expressing critical views, including Esraa Abdelfatah and Ismail Iskandarani.
We share the assessment of the UN Working Group on Arbitrary Detention that arbitrary detention is a systematic problem in Egypt. Since President al-Sisi came to power, Egyptian security forces, with the complicity of prosecutors and judges, have arbitrarily arrested and detained thousands of people on the basis of unfounded terrorism-related charges. They include human rights defenders, religious minority rights activists, peaceful protesters, journalists, academics, artists, lawyers, opposition politicians, and relatives of dissidents forced into exile.
Egyptian security forces routinely subject those in custody to enforced disappearance and torture, which the UN Committee against Torture concluded to be “a systematic practice in Egypt.” Those disappeared and tortured are then routinely convicted in grossly unfair mass trials, in some cases before military courts.
Since 2014, hundreds have been sentenced to death and dozens executed after trials that rely on torture-tainted “confessions.” Thousands of others are being held in prolonged pretrial detention without the opportunity to meaningfully challenge the lawfulness of their detention, sometimes for periods exceeding the two-year maximum permissible under Egyptian law.
Even when prosecutors and judges order their release, the National Security Agency (NSA), with prosecutors’ complicity, routinely accuse them of similar charges in new cases to keep them detained indefinitely without trial, in the practice known as ”rotation.”
We also share the UN experts concerns over cruel and inhuman prison conditions, and the deliberate denial of adequate medical care that has led or contributed to preventable deaths in custody and serious damage to prisoners’ health. In 2020 alone, at least 35 people died in custody or shortly after following medical complications. The health and human rights crisis in prisons was further exacerbated by the authorities’ failure to adequately address Covid-19 outbreaks.
We share the High Commissioner’s concerns regarding worrying patterns in the Sinai peninsula of forcible displacement, enforced disappearances, and torture and other ill-treatment of detainees. We note her call to the Egyptian authorities “to recognise that, as in all countries facing security challenges and violent extremism, depriving people of their rights will not make the State safer, but more unstable.”
Discrimination against women and girls remains entrenched in law and practice. The authorities have not only failed to address pervasive sexual and gender-based violence, but have also targeted women’s human rights defenders and campaigners against sexual violence and harassment through arrests, harassment, threats, and other reprisals. The authorities have also used morality and debauchery laws to arbitrarily arrest, detain, and prosecute survivors and witnesses of sexual and other gender-based violence, women social media influencers, and LGBTQI+ people and activists.
This catalog of serious violations continues as a result of endemic impunity that prevails in Egypt, as highlighted by UN experts and the UN Committee against Torture.
We urge President al-Sisi to order and ensure full implementation of the following recommendations in order to secure tangible improvements in the human rights situation in Egypt and to ensure that Egypt complies with its international obligations:
- Immediately and unconditionally release anyone held solely for peacefully exercising their rights to freedom of expression, association and assembly; and release others detained arbitrarily, including those held in prolonged pretrial detention without trial or the possibility to challenge the lawfulness of their detention; cease the practice commonly called “rotation”, and protect those in custody from torture and other ill-treatment and ensure their regular access to their families, lawyers of their choosing, and adequate medical care;
- Publicly condemn and order independent, impartial, thorough, and effective investigations into extrajudicial executions and other unlawful killings, enforced disappearances, torture, and other serious human rights violations and crimes under international law, including those committed in custody and in the context of counterterrorism operations in Sinai, with a view to bringing those responsible to justice; and guarantee the victims’ rights to truth, justice, and reparation;
- Establish a moratorium on executions, pending the abolition of the death penalty;
- Create a safe and enabling environment for human rights defenders, including by effectively protecting them from arbitrary arrest, detention, and other forms of reprisal or harassment; instructing the public prosecution to close Case No. 173 of 2011; removing all arbitrary measures including travel bans and asset freezes against human rights defenders and their families; quashing verdicts against human rights defenders including those sentenced in their absence; and removing human rights defenders from the “terrorists list”;
- Prevent sexual and gender-based violence and prosecute offenders; put a stop to the policing of women’s bodies and behavior as well as prosecutions over vague charges of “indecency”, “violating family principles and values”, and “debauchery”;
- End arbitrary arrests and prosecutions against LGBTQI+ people, including police entrapment of LGBTQI+ through dating apps or social media and quash the verdicts of anyone already convicted; instruct officials to end forced anal examinations and sex determination tests as they can amount to torture; and
- Amend Law No.94 of 2015 on counterterrorism, Law No.8 of 2015 on terrorist entities, Law No.175 of 2018 on cybercrime, and Law No. 149 of 2019 on NGOs to bring them in line with Egypt’s international obligations.
Signatories:
Access Now
Amnesty International
ANKH (Arab Network for Knowledge about Human rights)
Association Beity (Tunisia)
Association for Juridical Studies on Immigration (ASGI)
Association for the Defense of Human Rights in Morocco (ADDHOM)
Baytna
Cairo Institute for Human Rights Studies (CIHRS)
CELS Centro de Estudios Legales y Sociales
Center for Reproductive Rights
Center of Studies and Initiatives for International Solidarity (CEDETIM, France)
CNCD-11.11.11
Committee for Justice
Committee for the Respect of Liberties and Human Rights in Tunisia (CRLDHT)
DefendDefenders (East and Horn of Africa Human Rights Defenders Project)
Democratic Association of Tunisians in France (ADTF)
Democracy for the Arab World Now (DAWN)
Dignity – Danish Institute Against Torture
Egyptian Human Rights Forum
Egyptian Initiative for Personal Rights (EIPR)
EgyptWide (Egyptian-Italian Initiative for Rights and Freedoms)
English PEN
EuroMed Rights
Freedom House
Front Line Defenders
Geneva Bridge Association
Global Voices
Gulf Centre for Human Rights (GCHR)
Hassan Saadaoui Association for the Defense of Democracy and Equality (Tunisia)
humanrights.ch
Human Rights Watch (HRW)
Initiative Franco-égyptienne pour les Droits et les Libertés
International Commission of Jurists (ICJ)
International Federation for Human Rights (FIDH)
International Service for Human Rights (ISHR)
Karapatan Alliance Philippines Inc.
Lawyers for Lawyers (L4L)
Legal Resources Centre
Mawjoudin Initiative (Tunisia)
MENA Rights Group
Minority Rights Group International (MRG)
Mwatana for Human Rights
Nachez (Dissonance), Tunisia
The National Union for Tunisian Journalists (SNJT)
Odhikar, Bangladesh
PEN Norway
People in Need
Project on Middle East Democracy (POMED)
REDRESS
Réseau des Organisations de la Société Civile pour l’Observation et le Suivi des Élections en Guinée (ROSE)
Robert F Kennedy Human Rights
South East Europe Media Organisation (SEEMO)
The Freedom Initiative
Tunisian Association of Democratic Women
Tunisian Association for Democracy and Civic State (AVDDH)
The Tunisian Association for the Defense of Academic Values (ATDVU)
The Tunisian Association for the Defense of Individual Liberties (ATDLI)
Tunisian Center for Press Freedom (CTLP)
Tunisian Coalition Against Death Penalty
The Tunisian Federation for Citizenship on both Shores (FTCR)
The Tunisian Human Rights League (LTDH)
UIA-IROL (Institute for the Rule of Law of the International Association of Lawyers)
Vigilance for Democracy in Tunisia (Belgium)
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Asser Khattab, Research and Communications’ Officer, ICJ Middle East and North Africa Programme, e: asser.khattab(a)icj.org
May 26, 2021 | News
Prosecutors must perform an active role in proceedings before Tunisia’s Specialized Criminal Chambers (SCC), including by prosecuting the cases referred by the Truth and Dignity Commission (IVD) without indictment, and by ensuring the effective and timely execution of court decisions, such as judicial summons and other orders to compel the presence of the accused in court, the ICJ said today.
هذا البيان الصحفي متوفر باللغة العربية أيضاً
To date, prosecutors have automatically transferred around 200 cases, to the SCC pursuant to the Law on Transitional Justice. Beyond this, however, they have played little or no part in the conduct of trials thus far.
“Prosecutors are abdicating their primary responsibility to uphold the rule of law and the rights of victims, and, in so doing, they are contributing to perpetuate decades of impunity in Tunisia,” said Said Benarbia, ICJ MENA Director.
Accused are absent in most of the SCC trials. Measures ordered by the courts to compel their presence have remained mere ink on paper.
“The systematic absence of the accused defeats the very purpose of setting up the SCC as transitional justice mechanisms, including their role in establishing the truth about past abuses, and in granting victims their long overdue day in court,” added Benarbia.
Tunisian prosecutors and law enforcement officers acting under their authority must ensure that court summons and related orders be implemented in a timely manner.
Prosecutors should also ensure that effective investigations be conducted, evidence collected, and prosecutions instituted, when warranted, in those cases that the IVD referred to the SCC without indictment.
“The automatic transfer of cases to the SCC does not absolve prosecutors from their obligations under Tunisian and international law, including in respect of their duties as public interest representatives,” Benarbia added. “It’s high time for the prosecutorial authorities to live up to these obligations and uphold the rights of victims to truth, justice and effective remedies.”
Background information
The Specialized Criminal Chambers were established in 2014 to adjudicate cases involving alleged “gross human rights violations” perpetrated between 1955 and 2013 and referred by the Truth and Dignity Commission (Instance Verité et Dignité, IVD) to the SCC.
The 2013 Transitional Justice Law empowered the IVD to investigate crimes, collect evidence and refer cases to the SCC for prosecution.
At the end of its mandate in December 2018, the IVD’s referred to the SCC 200 cases of arbitrary deprivations of life, arbitrary deprivations of liberty, torture and other ill-treatment, enforced disappearance, rape and sexual assault and crimes against humanity committed by the past regime.
For more information see the ICJ Practical Guide Series on Accountability Through the Specialized Criminal Chambersand findings on the role of international law and standards in proceedings before the SCC (Practical Guide 1), the investigation and prosecution of gross human rights violations under Tunisian and international law (Practical Guide 2), and the application of principles and best practices on evidence in the administration of justice before the SCC (Practical Guide 3).
Download this press release in PDF form here.
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Valentina Cadelo, Legal Adviser, ICJ Middle East and North Africa Programme, e: valentina.cadelo(a)icj.org
Asser Khattab, Research and Communications’ Officer, ICJ Middle East and North Africa Programme, e: asser.khattab(a)icj.org
May 25, 2021 | News
As the third anniversary of the opening of trials before Tunisia’s Specialized Criminal Chambers (SCC) is approaching, the ICJ denounces the Tunisian authorities’ failure to adopt reforms necessary to advance accountability and justice for victims of gross human rights violations.
هذا البيان الصحفي متوفر باللغة العربية أيضاً
Trials before the SCC started on 29 May 2018. Since that first hearing, evident gaps and shortcomings in the Tunisian Criminal Code, the Code of Criminal Procedure and the Transitional Justice law have undermined efforts to hold perpetrators to account, bring justice to victims and prevent recurrence of gross human rights violations in the future.
“The Tunisian authorities have abdicated their responsibility to ensure the effective functioning of the SCC, depriving judges of basic tools to ensure that trials are conducted without undue delay and consistent with international fair trial standards,” said Said Benarbia, the ICJ’s MENA Programme Director.
Many offences referred by the Truth and Dignity Commission to the SCC are not adequately defined in the Tunisian law. Judicial rotation occurs mid-way through SCC trials, impacting the continuity of trials. Prosecutors are not effectively engaged in the conduct of trials. Accused are absent in most of the SCC trials, and the transitional justice framework does not provide for appeal chambers.
“By failing to address these obstacles, the Tunisian authorities are undermining the right of victims to truth and to effective remedies, and betraying the very promise of the transitional justice process to end impunity,” added Benarbia.” It’s high time for them to reverse course and live up to that promise.”
Background information
The ICJ has recommended reform to ensure the compliance of SCC proceedings with international law and standards, including through:
- Ensuring the adequate criminalization of gross human rights violations amounting to crimes under international law;
- Fully ensuring the rights of the accused to a fair trial;
- Ensuring the rights of victims, including their families, to an effective remedy and reparation;
- Ensuring the protection of victims and witnesses;
- Ensuring that the collection, admissibility and assessment of evidence guarantee the right of the accused to a fair trial and the victims’ right to an effective remedy.
In addition to the above reforms, the Tunisian authorities should remove all obstacles preventing the SCC and other judicial authorities from exercising their function in a manner that complies with international standards. To this end, the authorities should:
- Ensure that the Office of the Public Prosecutor and other investigative authorities carry out their mandate in an independent and impartial manner, as defined under the Code of Criminal Procedure;
- Ensure that the annual judicial rotation, as regulated by Organic Law No. 34 on the High Judicial Council, be consistent with the right of the accused to a fair trial
- Ensure that newly appointed SCC judges and prosecutors receive timely and adequate training in transitional justice as provided for by Organic Law No. 53 on Establishing and Organizing Transitional Justice;
- Ensure that, if the annual judicial rotation occurs mid-way through trials, safeguards be implemented with the view to ensuring that newly appointed judges hearing the case have the appropriate understanding of the evidence and arguments.
These recommendations are informed by the ICJ Practical Guide Series on Accountability Through the Specialized Criminal Chambers and findings on the role of international law and standards in proceedings before the SCC (Practical Guide 1), the investigation and prosecution of gross human rights violations under Tunisian and international law (Practical Guide 2), and the application of principles and best practices on evidence in the administration of justice before the SCC (Practical Guide 3).
The SCC were established in 2014 to adjudicate cases involving alleged “gross human rights violations” perpetrated between 1955 and 2013 and referred by the Truth and Dignity Commission (Instance Verité et Dignité, IVD) to the SCC.
At the end of its mandate in December 2018, the IVD’s referred to the SCC 200 cases of arbitrary deprivations of life, arbitrary deprivations of liberty, torture and other ill-treatment, enforced disappearance, rape and sexual assault and crimes against humanity committed by the former government.
In a briefing paper published in October 2020, the ICJ called on the Tunisian authorities to undertake substantial legal and policy reforms with a view to strengthening accountability and removing all obstacles preventing the SCC from functioning effectively.
Download this press release in PDF form here.
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Valentina Cadelo, Legal Adviser, ICJ Middle East and North Africa Programme, e: valentina.cadelo(a)icj.org
Asser Khattab, Research and Communications’ Officer, ICJ Middle East and North Africa Programme, e: asser.khattab(a)icj.org
May 19, 2021 | News
The International Commission of Jurists (ICJ) and the Libyan Women’s Platform for Peace (LWPP) on 19 May 2021 convened a webinar on ‘Advancing women’s human rights in the constitutional reform process in Libya’.
The webinar was moderated by Zahra’ Langhi, co-founder and director of LWPP, with speakers: Jaziah Shaitier, Professor at the Criminal Law Department, University of Benghazi; Ibtisam Bahih, member of the Constitution Drafting Assembly; Nahla Haidar, Vice-Chair of the UN Committee on the Elimination of Discrimination against Women and an ICJ Commissioner from Lebanon; and Azza Maghur, a Libyan lawyer.
In her opening remarks, Zahra’ Langhi stressed that advancing women’s rights in in the constitutional reform process should not be limited to the protections of women’s rights in the draft Constitution, which were any way inadequate, but also the effective the participation of women in the entire constitutional-making process
Jaziah Shaitier focused her remarks on the limitations the Constitution:
“I had hoped that the constitutional process that followed the Revolution would state clearly that any person born to a Libyan father or a Libyan mother would be Libyan.”
“Libya needs gender-inclusive constitutional provisions, and implementing laws that would protect women against all forms of violence”, Shaitier said.
Langhi pointed out that Libyan women who are married to non-Libyans cannot even access essential COVID-19 vaccines.
Nahla Haidar spoke of the importance of states to comply with their obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), a treaty to which Libya is a party:
“Sharia’s place within the Constitution should be made clear, otherwise there would be no need for a Constitution at all.”
Haidar also stressed the need to address problematic provisions in the Libyan Draft Constitution, including draft discriminatory provisions and provisions perpetuating stereotypes about the role of women and men in society and in the family. “Women may also choose not to start a family at all, and that should not have any bearing on the enjoyment of their rights.”
Azza Maghur highlighted the inadequate representation of women in the Libyan constitutional process:
“Libyans dreamed of a Constitution that is theirs, one that guarantees rights and liberties. The representation of women was not adequate.”
A member of the Constitution Drafting Assembly herself, Dr Ibtissam Bahih, highlighted how the process had failed Libyan women, and how the need for reform was as urgent as ever.
You can watch the full webinar here.
Contact:
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Asser Khattab, Research and Communications Officer, ICJ Middle East and North Africa Programme, e: asser.khattab(a)icj.org
May 6, 2021 | News, Publications, Reports
Southern African States have individually and collectively failed to provide sufficient and equitable COVID-19 vaccine access to meet their human rights obligations, the ICJ said today in a new briefing paper entitled The Unvaccinated: Equality not Charity in Southern Africa.
The paper focuses on the impact of COVID-19 on countries of the Southern African Development Community (SADC), a regional economic community comprising 16 Southern African countries whose goal is to enhance the standard and quality of life of the peoples in the region.
The publication considers SADC and its Member States’ collective failure to ensure access to COVID-19 vaccines despite more than 63,000 lives lost to the virus and countless others’ lives and livelihoods affected in the region.
This is due to a multitude of reasons, some common amongst the countries and others unique to individual Member States. While Tanzania and Madagascar denied the existence of the virus and rejected COVID-19 vaccines respectively, other countries with relatively greater resources, such as South Africa, failed to mobilize their resources adequately and equitably.
“COVID-19 is a global pandemic, but its impact was aggravated in southern Africa by the failure of governments to prepare and respond, individually or through SADC,” said Tim Fish Hodgson, ICJ’s Legal adviser on Economic, Social and Cultural Rights, in Johannesburg.
Combatting deadly communicable diseases like COVID-19 is one of the founding objectives under SADC’s founding treaty, and is also accounted for under the SADC Health Protocol. Yet, SADC has failed to provide almost any concrete guidance or coordinating role in regional procurement of COVID-19 vaccines since October 2020, prior to the availability of COVID-19 vaccines. While SADC’s chair, President Filipe Nyusi of Mozambique has encouraged a regional pooling of resources to facilitate procurement of necessary vaccines and distribution in a statement in January 2021, SADC has since taken no clear action towards this goal.
“While powerful global actors have erected roadblocks to equitable vaccine access in southern Africa, this should not conceal the burning need for SADC States to take essential measures to mobilize their collective resources towards efficient and equitable vaccine acquisition, allocation and distribution. As our research shows, they have failed to do so and SADC has been conspicuously silent,” Hodgson said.
These dire circumstances have led Fatima Hassan, South African human rights defender and director of the Health Justice Initiative, to observe that “philanthropy [and] benevolence cannot fund equality” in vaccine access. Indeed, the donation of vaccine doses through COVAX and other measures are not enough, and without rapid and adequate action to ensure equitable access to COVID-19 vaccines, it might be too late.
The ICJ’s research at a global and regional level have emphasized the urgent need for international institutions like the World Trade Organization and wealthier States to help countries to manufacture or otherwise acquire and distribute vaccines at affordable prices unimpeded by rigid intellectual property rights restrictions.
“All States should urgently heed the proposal by South Africa and India before the WTO for a waiver of the TRIPS intellectual property rules to allow faster, wider, and better distribution of COVID-19 vaccines,” Hodgson said.
“It is encouraging to see the United States end their opposition to the TRIPS waiver, and we hope that other States, in the European Union, Switzerland, Norway, and Brazil, will end their opposition and recognize that until everyone is safe, no one is truly safe.”
The ICJ emphasized that efforts by SADC and Southern African States is essential alongside ramped up global action.
“The pandemic is raging around the world even though a few countries, mostly the wealthiest, are now able to look beyond the worst of it. Most countries in Southern Africa remain unvaccinated, and in fact we are looking at new devastating waves of the illness. SADC should immediately improve efforts at collaboration and coordination to ensure compliance with their human rights obligation to provide everyone in the region with vaccine access as soon as possible,” Hodgson added.
The ICJ makes recommendations to specific States including Malawi, Tanzania, Madagascar, Zimbabwe and South Africa as well as a range of general recommendations to the SADC, including:
- The SADC Secretariat should urgently and actively facilitate and advance sub-regional COVID-19 vaccine procurement and distribution between the Member States.
- The SADC Secretariat should provide clear guidance to Member States on their human rights obligations pertaining to vaccine access. They should take effective action to address the failure of Member States to act according to their obligations under international law, including under regional agreements.
- All SADC member States should, as a matter of priority, develop, publish and publicize national vaccine acquisition and rollout plans and procurement strategies, detailing concrete measures to ensure non-discriminatory access to vaccines to all people.
Contact
Timothy Fish Hodgson, Legal Adviser on Economic, Social and Cultural Rights, timothy.hodgson(a)icj.org
Tanveer Jeewa, Legal and Communications Officer, tanveer.jeewa(a)icj.org
Download
Africa-The Unvaccinated-Publications-Reports-2021-ENG (full report, in PDF)
Apr 26, 2021 | News
Homophobia is against African notions of ubuntu.
Over the past month, the killings of four gay men have made headlines in South Africa. Lonwabo Jack, a 22-year-old gay man, was killed on his birthday, 18 April. Earlier in April, two more gay men, were killed – Nathaniel Mbele in Vanderbijlpark and Sphamandla Khoza in Durban.
Lonwabo Jack’s killing occurred just two days after advocates for the human rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI) led protests in front of Parliament in Cape Town demanding that the South African government address the countrywide homophobic violence that continues unabated.
The group Justice for Lulu, founded after Andile “Lulu” Ntuthela, a 40-year-old gay man, was killed in the Eastern Cape on 10 April. The group handed a memorandum to Parliament calling, among other things, for an urgent debate on hate crimes. The Gay and Lesbian Alliance of South Africa (GLASA), in turn, called for the government to speed up the adoption and enactment of the Prevention and Combating Hate Crimes and Hate Speech Bill B9 of 2018.
These hate crimes and attacks on the LGBTI community have been ongoing for many years. Homophobia is endemic in South Africa, despite the comprehensive and progressive legal framework, including legal protection for the human rights of LGBTI persons.
As attested to by the ICJ’s recent report, “Invisible, Isolated, and Ignored: A report on Human Rights abuses on Sexual Orientation and Gender Identity/Expression in Colombia, South Africa and Malaysia”, and illustrated by these ongoing attacks, these legal protections do not translate into real protection of human rights in practice.
“South Africa is a heteronormative society where patriarchy is deeply rooted; this contributes to violence and discrimination against LGBTI persons. The view that homosexuality is un-African is held by many. Political and cultural leaders have in the past publicly espoused anti-gay sentiments and this encourages discriminatory attitudes and violence against people based on their real or imputed sexual orientation, gender identity or expression”, said Kaajal Ramjathan-Keogh, Director of ICJ Africa.
Section 9(3) of the South African Constitution provides that the State may not unfairly discriminate directly or indirectly against anyone on the ground of sexual orientation, and the African Charter on Human and Peoples’ Rights (African Charter) grants protection against prohibited discrimination, and entitles every person to equal protection of the law.
Additionally, the African Charter entitles every individual to respect of their life and the integrity of their person, and prohibits torture, cruel, inhumane or degrading punishment and treatment.
In its Resolution on ‘Protection against Violence and Other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity’, the African Commission strongly urged “States to end all acts of violence and abuse, whether committed by State or non-state actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims.”
Notwithstanding South Africa’s legal obligations, LGBTI persons face significant barriers in accessing justice and effective remedies for human rights violations; particular challenges affect the criminal justice system, resulting in many cases concerning the protection of human rights of LGBTI persons not reaching the courts.
These barriers to access to justice and effective remedies for human rights violations include experiences of discrimination within the criminal justice system, as well as societal homophobia and transphobia. This is in contravention of South Africa’s duties under international, regional and national law to afford every person equal protection of the law.
The Prevention and Combatting of Hate Crimes and Hate Speech Bill needs to be adopted as a matter of urgency. It is important as measure of deterrence and to ensure that perpetrators of hate crimes be brought to justice.
The ICJ condemns the killings of members of the LGBTI community and calls on the South African government to acknowledge the discrimination, hatred and violence that LGBTI persons face every day in South Africa and to act decisively to address these harms.
Progressive legislation is not enough, the criminal justice system needs to be sensitized and educated to eliminate experiences of societal homophobia and transphobia. We echo the demands in this joint statement by multiple human rights organizations in South Africa.
Whatever one’s real or imputed sexual orientation, gender identity or expression, nobody should have to live in fear, everyone should be able to have trust in the police and judicial system. The homophobic acts and sentiments in South Africa are against African notions of ubuntu. Society cannot be free, until all its people are free, and treated with dignity.
Contact:
Nokukhanya (Khanyo) Farisè, Legal Adviser (Africa Regional Programme), e: nokukhanya.farise(a)icj.org
Tanveer Rashid Jeewa, Communications and Legal Officer, e: tanveer.jeewa(a)icj.org
