Sep 25, 2020 | News
On 24 September 2020, the ICJ held a webinar in collaboration with the Lesotho National Federation of Organisations of the Disabled on the right to education for children with disabilities.
Presenters and participants included representatives from civil society organizations, teachers’ unions, teachers and the Lesotho Department of Education.
“Children with disabilities have a right to access to education on an equal basis with all other children. The COVID-19 pandemic must not hamper the Lesotho governments efforts to ensure access to inclusive education for all children,” said Kaajal Ramjathan-Keogh, ICJ’s Africa Director.
Participants highlighted accessibility-related problems faced by learners with disabilities in the context of the COVID-19 pandemic. Some examples include:
- Ordinary masks necessary to combat the spread of COVID-19 inhibit communication for learners with hearing disabilities who often communication in part by lip-reading. These require access to face visors and/or transparent masks. Some deaf students also had difficulty in understanding the COVID-19 pandemic and virus, despite efforts to explain it to them.
- Blind learners need more access to hand sanitizer as they need to touch their surroundings for mobility. This also makes social distancing more difficult for them.
- Teachers have trouble understanding how to comply with social distancing measures while assisting learners experiencing epileptic seizures.
- Many learners with disabilities have stayed at home during the pandemic, not understanding why they were not at school.
- Many children with disabilities are rendered more vulnerable to sexual violence and exploitation as they observe stay at home rules.
A representative of the Department of Education explained various measures which government had put in place to ensure that these obstacles could be overcome so that learners with disabilities could enjoy their right to education in the context of COVID-19. Learners’ health and safety would also remain a priority.
The Department noted the delays in the implementation of its inclusive education policy as a result of a lack of funding as government resources are diverted to COVID-19 responses.
The need for compliance with Lesotho’s global and regional international human rights obligations was also highlighted with participants agreeing about the importance of ensuring that there is “strength in numbers” in advocacy efforts toward the realization of children with disabilities’ right to education.
“Ensuring the right to education of persons with disabilities does not imply sacrificing and compromising their right to health. All human rights are interdependent and Lesotho should be guided by all of its human rights obligations as it continues to implement its domestic inclusive education policy during the COVID-19 pandemic,” Ramjathan-Keogh added.
Background
Article 24 of the Convention on the Rights of Persons with Disabilities (CRPD) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa require States parties to ensure that their education systems are inclusive and fully realize the right to education of all children with disabilities. The normative content of Article 24 of the CRPD and corresponding obligations of member States are expanded on in the General Comment No 4 of the Committee on the Rights of Persons With Disabilities.
For more information on the impact of COVID-19 on access to education, find the UN Special Rapporteur on the right to education’s report here.
Contact
Nokukhanya (Khanyo) Farisè, Legal Adviser (Africa Regional Programme), e: nokukhanya.farise(a)icj.org
Tanveer Jeewa, Communications Officer (Africa Regional Programme), e: tanveer.jeewa(a)icj.org
Sep 8, 2020 | Advocacy, News
The ICJ, in collaboration with the Zimbabwe Anti-Corruption Commission (ZACC), today launched a whistleblowing application (tip off) mechanism in Harare.
It is common that people reporting corruption, tipping off and submitting key evidence prefer to stay anonymous, as they may have an often, well-founded, fear of reprisal by the parties involved. In such instances it is imperative for the ZACC to adopt a protective solution that guarantees user anonymity. This tip off mechanism will enable ZACC to receive information and evidence securely while the user of the mechanism remains anonymous. In turn ZACC will be able to use the information received to investigate and prosecute cases of corruption. Additionally, the application will also have a case management dashboard which will aid evaluation of ZACC’s efficiency in handling corruption cases.
Corruption undermines the rule of law by impeding access to justice through diversions of public resources for private gain. As such, the ICJ, through the support by the EU, is working towards increased transparency and integrity in the justice delivery system in order to increase access to justice for all. The whistleblowing application is not undertaken in isolation, as it builds on other initiatives to combat corruption under this programme, which include the Anti-Corruption Campaign, establishment of an anti-corruption court, capacity building, and various research initiatives.
“Corruption remains a key challenge confronting Zimbabwe. If unabated, corruption undermines democracy and the rule of law leading to violations of human rights. Its destructive effect on development disproportionately affects the poor. The participation of the public, in augmenting government efforts in combating corruption is therefore critical. It is our hope that through this awareness programme, ordinary members of the public will be able to recognize corrupt behaviour and feel empowered to take a stand against it. Further, we hope that the mechanism will sustain the momentum against corruption and increase the demand for improved accountability and transparency in various sectors in Zimbabwe thereby contributing to reduction of corruption,” said Blessing Gorejena, ICJ’s Zimbabwe Project Team leader.
Once officially launched, the whistle-blowing mechanism will be available to the public. It will be promoted and encouraged by publicizing stories of successful prosecutions and other actions as a result of information provided by whistle-blowers, as well as reporting on the effective protection of such persons from any form of reprisal or other harm.
The project is facilitated through the support of the European Union.
Contact:
Blessing Gorejena, Senior Legal Adviser and Team Leader of ICJ Zimbabwe Project, t:0772151989, e: blessing.gorejena(a)icj.org
Aug 27, 2020 | Advocacy, News
The ICJ, in collaboration with the Zimbabwe Anti-Corruption Commission (ZACC), convened a virtual Asset Recovery Training Workshop from 18-26 August. The training was part of the ICJ efforts to advance the rule of law in Zimbabwe.
The training was held with investigators from ZACC. It was led by Dr Prosper Maguchu, a legal expert on human rights and financial crimes.
The objective of the training was to enhance the capacity of ZACC investigators to conduct financial investigations and apply asset tracing techniques in relation to corruption and money laundering cases.
Over the past 50 years, it is estimated that Africa has lost in excess of one trillion US dollars in illicit financial flows (IFFs) with claims that this is roughly equivalent to all of the official development assistance received by the continent during the same timeframe.
Zimbabwe is not immune to this challenge of IFFs.
ZACC chairperson Justice Loice Matanda-Moyo remarked that financial crimes and illicit financial flows had become a serious threat the Zimbabwe economy and beyond our borders. She pointed to the prevalence of tax evasion, smuggling, corruption, fraud, drug trafficking and money laundering and noted that ill-gotten proceeds involving money were moving across borders. In such instances it is a daunting task for investigators and asset recovery officers to follow the money trails and recover proceeds of crime. She noted that the virtual asset recovery workshop was an opportune moment time to enhance the capacity of investigators and asset recovery officers.
“This training was very timely and critical. It enhanced the capacity of ZACC in its pursuit to recover assets accumulated though corruption. The investigators were equipped with the requisite skills and techniques involved in asset recovery that include collecting evidence, issuing restraint and freezing orders and making mutual legal assistance requests. Recovering stolen assets is an important process in the fight against corruption as it deters corruption by turning it into a high-risk, low-reward activity. Additionally, asset recovery is a means to obtain resources for the development of the country, which resources can also be channelled towards strengthening the fight against corruption in Zimbabwe, thus contributing to the greater respect for the rule of law,” said ICJ Senior Legal Adviser Blessing Gorejena.
The training workshop provided a comprehensive overview on what asset recovery means, exploring approaches and tools in asset recovery and enhance the technical capacity of the investigators to trace, seize and confiscate and repatriate illicitly acquired assets.
Participants in this workshop included 18 investigative officers and two Commissioners. Overall there were 11 female and 9 male participants in attendance.
This workshop was supported by the European Union Delegation in Zimbabwe.
Contact:
Shaazia Ebrahim (ICJ media officer), c: +277 167 067 19 e: shaazia.ebrahim(a)icj.org
Vimbai Mutandwa (ICJ legal advisor), c: +263 77 351 7733 e: vimbai.mutandwa(a)icj.org
Aug 21, 2020 | News
The order of the Magistrates’ Court of Zimbabwe barring lawyer Beatrice Mtetwa from continuing as defence legal counsel for journalist Hopewell Chin’ono is a violation of Chin’ono’s right to a fair trial and Mtetwa’s right to express her opinions freely, said the ICJ today.
“Hopewell Chin’ono is already facing persecution because of his reporting on alleged corruption and now his lawyer is prevented from defending him properly. The Magistrate Court’s decision violates Zimbabwe’s domestic, international and regional legal obligations regarding freedom of expression and the right to a fair trial,” said ICJ Secretary General Sam Zarifi.
Hopewell Chin’ono, a prominent Zimbabwean journalist, is currently in custody and is facing trial on charges of inciting public violence, related to his reporting on corruption.
He appointed Beatrice Mtetwa, a prominent Zimbabwean human rights lawyer to act as his defence legal counsel.
After Hopewell Chin’ono was denied bail, it is alleged that a Facebook page by the name “Beatrice Mtetwa and The Rule of Law” posted the following statements:
“Where is the outrage from the international community that Hopewell Chin’ono is being held as a political prisoner? His life is in serious peril. Raise awareness about his unlawful imprisonment. Do not let him to be forgotten. You or someone you love could be the next one abducted from your home and put in leg irons.”
On account of these alleged statements and at the instance of an application by the State, the Magistrates’ court barred Beatrice Mtetwa from continuing as defense legal counsel on grounds that she made statements which demonstrates that “she is no longer detached from the case to continue appearing in it” and has lost the “requisite objectivity of an officer of the court”.
The full judgment by the court can be accessed here.
Beatrice Mtetwa denied ownership of or control over the said Facebook page. Filmmaker Lorie Conway is listed as the only administrator of the said Facebook page. Despite this, the Magistrate’s Court ruled that Beatrice Mtetwa is aware of the page, approved its creation and therefore, these statements are attributable to her.
“Regardless of whether or not these statements can be attributed to Beatrice Mtetwa, the International Commission of Jurists is concerned about the chilling effect which the judgment has on the exercise of freedom of expression by lawyers, the accused persons’ right to legal representation and the right to fair trial. The judgment seems to suggest that if a lawyer makes public statements such as those allegedly attributed to Beatrice Mtetwa, the lawyer should be barred from continuing as legal counsel in the matter—and that is contrary to international standards regarding the role of lawyers,” Zarifi said.
This right is underscored in Principle 23 of the United Nations Basic Principles on the Role of Lawyers which states that:
“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 legal representation is recognised in section 70(1)(d) of the Constitution of Zimbabwe. This guarantees an accused person the right to appoint a legal practitioner of their choice to act as their defence attorney. The same right is underscored in article 14(3)(b) of the ICCPR and article 7(1) of the African Charter. The right to legal representation is an integral element of the right to fair trial as elaborately explained under the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.
Contact
Shaazia Ebrahim (Media Officer) email: Shaazia.Ebrahim(a)icj.org
Jul 31, 2020 | Agendas, Events, News
The ICJ, together with the Global Initiative on Economic, Social and Cultural Rights (GI-ESCR) and the Right to Education Initiative (RTE), held webinars on 24 and 31 July.
The discussions explored The Guiding Principles on the Human Rights Obligations of States to provide public education and to regulate private involvement in education (Abidjan Principles) and their application in the context of COVID-19.
The webinars focused respectively on public education and private education.
Participants included judges and representatives of civil society organizations from Kenya, Uganda, South Africa and Sierra Leone.
“The aim of the conversation in these webinars is to better understand the problems facing civil society and judiciaries in the four countries in ensuring the protection of the right to education in the context of Covid-19 and the increased privatization of education,” said ICJ Commissioner Justice Jamesina King of Sierra Leone.
The Abidjan Principles, based in large measures on existing international law and standards, were developed by leading international experts and adopted in 2019.
They clarify and set out elements of State obligations to uphold the right to education and related standards in both public and private educational settings.
Participants were able to deepen their understanding of the Abidjan Principles as well as the increased pressure placed on education systems across Africa as a result of COVID-19.
“COVID-19 has dramatically exacerbated already well-known issues in the realization of the right to education” and the “divide in quality of access to education between public and private sectors,” added Justice King.
“Private actors in particular… have been reported to have capitalized on the pandemic to extend their business in the education sectors.”
Participants raised concerns about the use of public funds to support private actors in education, an issue which is addressed by the Abidjan Principles.
Ashina Mtsumi from the GI-ESCR, summarized the Abidjan Principles and emphasized that “States’ first priority should be public education, as there is no obligation for states to fund private actors in education.”
A theme emerging from the discussions was the important role of the State in regulating private actors in education in the context of the global pandemic. Judges discussed the role of the judiciaries in their respective countries in ensuring the protection of the right to education.
“Can courts force private institutions to continue [operating] or even reduce school fees as an incidence of the right to education?,” Justice Joel Ngugi of Kenya asked.
Justice Ngugi also highlighted the need for governments to ensure that schools are safe for all learners in the context of COVID-19.
Judge Lydia Mugambe said that while in Uganda the pandemic had seen some private schools continuing with online learning, learners in public schools had had to depend on State provision of learning through newspapers and news stations which had not been sufficient. In the COVID-19 context, States must ensure that they continue to “require private instructional educational institutions to meet the minimum standards set by the State”, as indicated by the Abidjan Principles.
“The real problem is that our infrastructure is bad, the education system is bad and we have had a constitutional right to education since 1994 and I am embarrassed to say that the Covid-19 crisis has not exacerbated the problems, but has exposed the problems and have left no place to hide for years and years of government negligence,” said former Justice of the Constitutional Court in South Africa Zak Yacoob.
Representative from civil society organizations from all four countries emphasized the increasing risks introduced to the right to education as a result of privatization of education in Africa.
Watch the first webinar here.
Contact:
Khanyo Farisè (ICJ Legal Adviser) e: Nokukhanya.Farise(a)icj.org
Tim Fish Hodgson (ICJ Legal Adviser) t: +27828719905; e: timothy.hodgson(a)icj.org
Jun 17, 2020 | Feature articles, News
While reports suggest a decrease in crime during lockdown due to restricted movement, violence against women, including gender-based violence (GBV), continues unabated, and has likely worsened throughout Africa, replicating global trends in this regard.
Africa has a serious GBV crisis, which domestic legislative frameworks and accountability mechanisms have failed to fully address.
Various factors contribute to the increasing incidence of GBV in Africa. These factors are facilitated by the failure of States to adequately discharge their obligations to protect persons from gender based violence, through legal reform and administrative actions.
The issues manifest in gender insensitive actors and institutions that administer justice, impunity for abuses, and limited capacity of justice actors to properly handle cases due to lack of training and resources.
There are also challenges in issuance of restraining and protection orders. All these problems are reinforced by a widespread lack of willingness to recognize, understand and engage with women’s rights by State actors.
In Africa, more than one in three women (36.6%) report having experienced physical, and/or sexual partner violence or sexual violence by a non-partner. Studies have also found that the highest prevalence of child sexual abuse is in Africa.
This GBV crisis in Africa has been worsened by the coronavirus pandemic, which has contributed to a surge in GBV. The pattern of rape, sexual violence, and killing of women continues to spread across the continent, even during this health crisis.
On 27 May, the news of the rape and killing of a 22-year-old student while she studied in an empty church in Nigeria sparked outrage and protests in many parts of the country.
In South Africa, the body of 28-year-old woman Tshegofatso Pule was found on 8 June. She had been stabbed and hanging from a tree; she was eight-months pregnant at the time.
There have been several reports of femicide since some COVID-19 restrictions were lifted in South Africa. In Zimbabwe, increasingly there have been reports of rape and other sexual violence being used as political weapons to suppress political opposition in Zimbabwe.
Recently, there have been reports that three leaders of the MDC-A party were abducted and subjected to torture which included sexual violence after staging a flash demonstration against failure of the government to address livelihood issues during the Covid-19 lockdown.
While the demonstrations were led by both men and women, allegations focused on sexual violence against women by State agents have been made on numerous occasion especially following protests against the government. In both instances the response by the State authorities has been to challenge the allegations before conducting a thorough investigation.
In the recent case of the MDC-A leaders, officials have not only refuted the allegations but also charged the victims for breaching Covid-19 regulations and recently arrested them for allegedly ‘faking abduction’ and lying about torture..
Global Standards
All States must protect against gender based violence, whether by State or private actors, pursuant to their obligations under the International Covenant on Civil and Political Rights, the UN Convention Against Torture, the Convention on the Prevention of all forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child. Most African countries are parties to these international treaties.
In addition, States of the African Union are bound to respect a range of international law and standards which prohibit gender based discrimination and sexual violence, most notable are the African Charter, and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women (the Maputo Protocol) and the African Charter on the Rights and Welfare of the Child.
Article 4 of the Maputo Protocol provides that “every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.
States parties shall take appropriate and effective measures to enact and enforce laws to prohibit all forms of violence against women, including unwanted or forced sex whether the violence takes place in private or in public.” Article 16 of the African Charter on the Rights and Welfare of the Child includes sexual abuse of children as a form of torture, cruel, inhumane and degrading treatment.
As explained by the CEDAW Committee, all States, including African States, have a due diligence obligation to prevent, investigate, prosecute and punish rape and other GBV.
It is noteworthy that, 17 years into its existence, not all African countries have ratified or signed the Maputo Protocol, with only 42 out of 55 AU member states having ratified the convention. Of the few countries which have comprehensive domestic legal frameworks to eliminate all forms of violence against women, they too often face challenges in implementation.
States have the primary responsibility to take effective measures to eradicate GBV. States have an obligation to take the necessary action at all levels to ensure the elimination of harmful gender norms and stereotypes, as well as to ensure the elimination of GBV.
African countries need to urgently respond to the scourge of GBV in the region. The ICJ intends to publish a series of legal briefs on the “State of Rape Law” as provided in various jurisdictions in Africa, in order to highlight the challenges in criminal justice systems in relation to addressing the crime of rape and to provide concrete recommendations for reform.
