Mar 8, 2021 | Advocacy, Analysis briefs
On International Women’s Day 2021, the ICJ publishes a paper considering the ways in which women in Eswatini face systematic discrimination in laws and practices, in violation of the country’s obligations under international human rights law with respect to women and girls’ right to health, including sexual and reproductive health.
The publication concludes with recommendations to the Eswatini authorities on how they may enhance women and girls’ ability to fully and equally benefit from and enjoy their right to health and their other human rights without discrimination.
The paper is entitled “Swazi Women’s right to health during the time of COVID-19: Recommendations to ensure enjoyment of the highest attainable standard of physical and mental health”. It was launched through a conversation with Zanele Thabede-Vilakati, the National Director of Women and Law in Southern Africa (WLSA) Research and Educational Trust in Eswatini. In the discussion, Thabede-Vilakati outlined the obstacles faced by Swazi women before and after the COVID-19 pandemic. Talking about the ICJ publication, she added:
“The ICJ report on Swazi Women’s Right to Health during COVID-19 is an in-depth observation of all the issues which women face in their daily lives in getting access to their basic right to health. The recommendations made by the ICJ can only enrich Eswatini authorities’ approach to protecting and empowering women and I hope that they take these recommendations on.”
The report considers Eswatini’s obligations not only under national law, including under the Swazi Constitution, but also under international law in an effort to assess whether Eswatini is complying with its human rights obligations.
The report reflects on the obstacles that Swazi women have faced before and during the COVID-19 pandemic in exercising their right to health. Some of the key human rights concerns include: lack of access to sexual and reproductive healthcare; the high prevalence of HIV/AIDS among Swazi women; obstacles in accessing sexual and gender-based violence-related healthcare services; and inadequate access to shelters and housing for women in Eswatini.
Based on the publication’s assessment, recommendations are addressed to Eswatini authorities for specific measures to be taken to protect women, as well as meet Eswatini’s obligations under national, regional and international law.
Speaking about the report, ICJ’s Africa Regional Programme Director, Kaajal Ramjathan-Keogh stated,
“The right to health is a crucial right to everyone, but in a country such as Eswatini – one of the most severely HIV affected countries in the world – women’s right to health is a priority as women remain disproportionally affected by HIV. We hope that this report and its recommendations cause the relevant actors to reflect on ways in which they can assist Swazi women, especially in light of the increased obstacles that women have faced in accessing their right to health due to the COVID-19 pandemic.”
In order to realize the right to health of women and girls in Eswatini, the report recommends that the Eswatini authorities take certain measures, including the following:
- Ensure access to family planning health services for all women and LGBT persons;
- Parliament must enact domestic legislation, which clarifies the circumstances under which abortion is legally available to women;
- Ensure all health facilities, throughout the country, are equipped with all essential medicines;
- Guarantee access to information and education on sex, sexuality, HIV, sexual and reproductive rights especially for adolescents and youth;
- Prioritise the provision of pre- and post-natal healthcare services in a manner that does not risk COVID-19 transmission; and
- Repeal discriminatory laws, policies and practices in the area of sexual and reproductive health, including restrictive abortion laws and laws and policies that discriminate against LGBT persons;
- Adopt legislation providing for legal aid to enable victims of gender-based violence to be better able to access justice and effective remedies for SGBV, including through courts;
- Ensure comprehensive services for survivors of sexual and gender-based violence are available during the pandemic;
- Increase access to healthcare services for victims and survivors of gender-based violence, including medical and psychosocial support and ensure adequate rape kits in all health centres; and
- Increase access to shelters and alternative accommodation for victims of gender based and domestic violence in Eswatini, including accommodation or shelters that should be made available in all parts of the country.
Background
Eswatini is a monarchy. Under its Constitution, customary law, except insofar as it is inconsistent with the former, is recognized as part of Eswatini’s legal system in addition to common law and statutory law. Eswatini is party to several binding international, including regional, human rights treaties guaranteeing the right to health, including sexual and reproductive health, for everyone, including women and girls. Irrespective of the protections afforded in Eswatini’s domestic legal system, as a matter of international human rights law, Eswatini is bound to fulfil its obligations to realize the right to health, including sexual and reproductive health.
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
Download
Eswatini-Swazi Women Right to Health during COVID19-Report-2021-ENG
Feb 17, 2021 | News
On 17 February 2021, the International Commission of Jurists condemned former South African President Jacob Zuma’s refusal to abide by an order of the Constitutional Court to appear before a commission investigating allegations of corruption during his tenure.
As a former President, Mr Zuma must be regarded as a private citizen and is subject to the same laws as all other private citizens. If found to have committed an offence he must face the required penalties.
ICJ’s Africa Director, Kaajal Ramjathan-Keogh said,
“Zuma’s failure to follow the decision of the Constitutional Court and to refuse the summons of a proper judicial commission disrespects the rule of law and erodes public confidence in the administration of justice.”
She added that,
“Zuma is facing credible allegations of engaging in corruption and misconduct that demand to be investigated properly. His conduct in rejecting to appear before the investigative commission is an afront to the rule of law and the administration of justice and is unbecoming of a former President who took an oath to uphold the Constitution.”
Zuma has refused to appear before the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, despite being called to testify, since November 2020. He appeared before the Commission in July 2019 but refused to answer certain questions and effectively withdrew his participation.
On 28th January 2021, the South African Constitutional Court held that Zuma was obliged to attend and participate in the Judicial Commission’s proceedings and could not claim a right to remain silent in order to avoid doing so, though he retained a privilege against self-incrimination. Rejecting this ruling, Zuma refused a summons to appear before the Commission as a witness and instead issued a statement on 15th February accusing the Commission Chair of “propagating political propaganda” against him. He further accuses the Commission Chair of “misleading the nation” and of “not following due process to the prejudice of himself and his family”. The statement also accuses the Commission of “being unable to conduct an independent, fair, and impartial investigation into state capture”. Zuma’s statement also lambasts the South African judiciary, alleging without evidence that many judges, including specific named judges are “captured” and have over years been conspiring against him.
Ramjathan-Keogh added,
“Zuma’s groundless attacks on the South African judiciary are an affront to the court’s standing and weaken the principle of the judiciary as an independent and equal branch of government with the responsibility to investigate the actions of a president, or in this case, ex-president.”
The ICJ pointed out that a witness’s failure to appear before the Judicial Commission could constitute an offence under section 6 of the Commissions Act. A witnesses’ failure to attend an inquiry or to remain in attendance until its conclusion could mean that they would be guilty of an offence, the penalty for which is imprisonment or a fine or both.
Contact:
Kaajal Ramjathan-Keogh, Africa Director, Kaajal.Keogh@icj.org, +27845148039
Tanveer Jeewa, Legal and Communications Consultant, Tanveer.Jeewa@icj.org
Feb 12, 2021 | Cases, News
Today, the ICJ and The Corporate Responsibility (CORE) Coalition UK, welcomed the judgment of the UK Supreme Court in the case Okpabi et al. v Royal Dutch Shell plc et al as a major step forward for those seeking access to justice for corporate abuses in the Niger Delta and around the world.
The Supreme Court judgment allows the case to proceed in the UK courts, reversing earlier decisions by the Court of Appeal and the High Court, and reaffirming the precedent established in its own previous decision in Lungowe et al v Vedanta resources (2019).
Carlos Lopez, Senior Legal Advisor at the ICJ, said:
“The emphasis of the Supreme Court on the relevance of evidence from internal company documents is of utmost importance for the proper assessment of whether the parent company intervened, advised or controlled the relevant activities of its subsidiary that caused harm, including notably human rights abuses and environmental destruction.
“This should have an impact on future similar proceedings before courts in the UK and elsewhere.”
Mark Dearn, Director of CORE, said:
“This landmark ruling is a vital step towards justice for some 50,000 claimants from the Ogale and Bille communities. It sends a clear message to multinational corporations like Shell – you have a duty of care and you will be held to account for human rights abuses and environmental damage caused by subsidiaries you control.
“Shell brazenly claimed in court that the oil spills were due to ‘uniquely Nigerian problems’. But the unique problem long faced by communities in this region is Shell’s impunity, as it has repeatedly tried to dodge accountability for its catastrophic destruction of the environment and people’s livelihoods.”
“It’s now crucial that governments step up to the plate to create new corporate accountability laws so that businesses know exactly what is expected of them.”
In Vedanta, the Court affirmed that a parent company that sufficiently intervenes, controls or advises the relevant operations of its subsidiary may bear liability for the breach of its duty of care towards the people affected by those operations.
Okpabi and other nearly 50,000 claimants in total – sued Royal Dutch Shell (RDS -the UK based parent company) and its Nigerian subsidiary Shell Petroleum Development Corporation (SPDC) for their alleged involvement in the leakage of oil pipelines which destroyed their farming land, wiped out fish stocks and poisoned drinking water in the Niger Delta, Nigeria.
In 2018 the Court of Appeal dismissed the claimants’ case, but the claimants appealed to the Supreme Court. The ICJ and the CORE Coalition intervened before the Supreme Court.
The Supreme Court has allowed the claim to proceed, focusing on whether the claim had a real prospect of success and the high relevance of the internal company documents for a proper assessment.
Find the judgment here.
Notes to Editors:
- This case was first launched in 2015 in the UK High Court. For a timeline of the case’s passage through the UK court system, see here.
- The ICJ and CORE Coalition submitted a legal brief to the Supreme Court setting out the applicability of comparative law and standards regarding companies’ responsibilities in relation to human rights and environmental protection. These standards showed that Royal Dutch Shell PLC (Shell) could have duty of care in relation to the communities affected by its Nigerian subsidiary’s activities.
- In 2018 the Court of Appeal dismissed the claimants’ case, ruling that Shell did not exercise sufficient control over its subsidiary SPDC for Shell possibly to hold a duty of care towards those affected by the oil spills.
- The Supreme Court judgment reverses that judgment, cautioning against dismissing such claims in “mini-trials” without proper access to all relevant facts and evidence that are in great part in the power of the company. The judgment clarifies the evidential threshold needed for the courts to hear such cases in the UK: “The resolution of the jurisdictional challenge depended upon whether the appellants’ claim satisfied the summary judgment test of real prospect of success.” (para 127 ref. Vedanta at para 45)
- In another section the Court also corrected the Court of Appeal’s view that the promulgation by a parent company of group wide policies or standards can never in itself give rise to a duty of care, saying: “that is inconsistent with Vedanta. Group guidelines … may be shown to contain systemic errors which, when implemented as of course by a particular subsidiary, then cause harm to third parties.” (para 143)
- In Lungowe v Vedanta Resources plc, which CORE and the ICJ similarly filed a joint intervention, the Supreme Court ruled that a duty of care was owed by the UK parent company, Vedanta. A settlement was subsequently reached. As the Supreme Court notes, this ruling was “very relevant to both the procedural and the substantive issues raised on this [Okpabi v Shell] appeal”.
Feb 5, 2021 | Advocacy, Non-legal submissions
Today, the ICJ and other human rights NGOs have written to UN Member States to call for a renewal of the mandate of the UN Commission on Human Rights in South Sudan.
The joint letter highlights the existing remaining concern on the human rights situaion in South Sudan and provide with key recommendation for its functioning.
Find the joint letter here: SouthSudan-UN-JointLetter-Advocacy-NonLegal-2021-ENG
Contact:
Massimo Frigo, ICJ UN Representative, e: massimo.frigo(a)icj.org, t: +41797499949
Feb 4, 2021 | Advocacy, News
The ICJ, in a letter to the Chairperson of the African Union, recommended that the African Union acknowledge that COVID-19 vaccines are a “public good” and all States must ensure access to these vaccines in order to realize the human rights of their inhabitants.
The African Charter on Human and People’s Rights, to which most AU Member States are Party, provides that “every individual shall have the right to enjoy the best attainable state of physical and mental health” (Art 16(1)). The Charter also places an obligation on the States Parties to take all “necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick” (Art 16(2)).
This obligation must be understood consistently with the equivalent Article 12 of the International Covenant on Economic, Cultural and Social Rights (ICESCR), to which most AU Member States are also Party. That provision protects the right to the “highest attainable standard of physical and mental health”, and requires States to take all necessary measures to realize this right including to ensure “the prevention, treatment and control of epidemic, endemic, occupational and other diseases” (Art 12(1)(c)). Vaccines, for some such diseases including COVID-19, are necessarily an integral part of prevention, treatment and control.
“It is essential for the process of vaccine procurement and allocation to be in line with international human rights standards. The African continent and its people cannot afford to be left behind, and the best way to ensure that does not happen is to move forward and prioritize each individuals right to health and corresponding human rights.” –
Justice Sanji Monageng, ICJ Commissioner, Botswana
Therefore, under these treaties and other internationally binding human rights law, it is clear access to certain vaccines is necessary to fulfill a human right, must not be seen as a privilege. Vaccines are a public good and should be treated as such by States. This understanding was affirmed by the UN Committee on Economic, Social and Cultural Rights (CESCR) in December in a statement on universal and equitable access to vaccines. CESCR stressed that: “every person has a right to have access to a vaccine for COVID-19 that is safe, effective and based on the application of the best scientific developments”. It further implored States to “give maximum priority to the provision of vaccines for COVID-19 to all persons”.
Recommendations of the International Commission of Jurists
The AU will be expected by the constituents of its Members to fulfil its proper leadership function in terms its Constitutive Act an ensure the promotion and protection of human rights in Africa. To this end, the ICJ calls upon the AU to adopt resolutions:
- Calling on all member States to ensure that their COVID-19 responses, including vaccine acquisition and distribution, comply with international human rights law and standards including those particularly relating to the rights to health and to duty ensure this right is realized through international cooperation.
- Calling on all member States to endorse and fully participate in the WHO’s COVID-19 Technology Access Pool.
- Calling on all member States to openly support the approval and implementation of a waiver of intellectual property rights in terms of the TRIPS agreement in order to ensure equitable and affordable access of COVID-19 vaccines and treatment for all.
- Calling on all member States to urgently publish public, comprehensive vaccine rollout plans and transparently provide clear and full health-related information to their populations.
- Calling on all participants in COVAX to endorse and fully participate in the WHO’s COVID-19 Technology Access Pool.
- Calling on the WTO to respond expeditiously and favourably to the proposal communicated by India and South Africa for waiver of IP protection for vaccines.
To read the full submission, click here.
Contact
Kaajal Ramjathan-Keogh, ICJ Africa Director Kaajal.Keogh(a)icj.org +27 84 5148039
Tanveer Jeewa, Media and Legal Consultant Tanveer.Jeewa(a)icj.org
