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)
May 3, 2021 | Advocacy, Open letters
In a letter of 3 May, the ICJ called on the Non-Executive Chair of the Multichoice Group, and the board of directors to immediately suspend Emmanuel TV on any of the DSTV platforms for broadcasting of televangelist Pastor TB Joshua’s multiple video clips ostensibly depicting a violent ‘conversion therapy’ and hate speech against LGBT persons amounting to human rights abuses.
One of the videos, shows Joshua slapping and pushing a woman at least 16 times, and telling her: “There is a spirit disturbing you. She has transplanted herself into you. It is the spirit of woman.”
By broadcasting Joshua’s channel, which openly advocates hatred against, and causes harm to, LGBTI persons, Multichoice Group’s actions are inconsistent with human rights law and standards, the South African Constitution and domestic legislation, which all proscribe discrimination based on sexual orientation.
The ICJ therefore urged Multichoice to urgently take the following steps to remedy this situation:
1. Immediately suspend Emmanuel TV on any of the DSTV platforms including Channel 309.
2. Immediately remove the offending video clips and provide an undertaking not to air them or similar offensive materials again.
3. Offer an apology from Multichoice Group to the LGBT persons.
4. Undertake an updating of the MultiChoice Group’s internal policies to bring them in line with human rights standards, the South African Constitution, and local laws on non-discrimination.
To read the full letter, click here.
Contact
Kaajal Ramjathan-Keogh, ICJ Africa Director, Kaajal.Keogh(a)icj.org
Tanveer Jeewa, Legal and Communications Officer, Tanveer.Jeewa(a)icj.org
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
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
