Apr 2, 2020 | News, Op-eds
An opinion piece by Shaazia Ebrahim, ICJ Media Officer, and Tim Fish Hodgson, ICJ Legal Adviser on Economic, Social and Cultural Rights, based in South Africa.
The inhumane conditions that most South African residents are subjected to in their daily lives will continue to deepen as the coronavirus spreads.
South Africans are encouraged to take precautionary measures to curb the spread of the pandemic by practising social distancing and intensifying hygiene control. The country will also be under a nationwide lockdown in order to “fundamentally disrupt the chain of transmission across society” from 26 March for 21 days.
The problem is that the recommended measures in South Africa, similarly to those of the World Health Organisation, assume that everyone lives in a house. A house which is at no risk of being destroyed by the state or private owners of the land upon which it is built: a house with access to water, sanitation and other basic services.
But the reality is that millions of South Africans do not live in a house, but in rudimentary structures in poor conditions. In a statement released this week, Abahlali baseMjondolo, a shack dwellers’ movement with members in various provinces across South Africa, articulated this.
Abahali’s frank assessment of the situation is that “it does not seem possible to prevent this virus from spreading when we still live in the mud like pigs”.
It is under the same conditions described by Abahlali baseMjondolo that many of the urban and rural poor in South Africa will be required to live under “lockdown”, commencing from midnight tonight.
Access to basic services: ‘if one person gets infected it’s disastrous’
Speaking before the release of the statement, Abahlali president S’bu Zikode expressed the distress that many around South Africa are currently experiencing. “Abahlali is very concerned about the outbreak of the coronavirus. The reason is, of course, that the conditions that we are subjected [give] us reason to be scared and worried,” he said.
“Social distancing” is difficult for many in South Africa. Government regulations say no more than 100 people should be “gathering” and people are more generally encouraged to keep a distance from one another. In Abahlali’s settlements, Zikode explains, there are thousands living close together under strenuous conditions.
“That on its own is automatically disrespecting the call from the president”, he said.
Abahlali, alongside various other South African movements and organisations, have for years been calling for the state to improve their living conditions and provide them with access to water, sanitation and other basic services.
In 2019 the United Nations Committee on Economic, Social and Cultural Rights noted its concern about “the large number of people living in inadequate housing, including those in informal settlements, without access to basic services; the growing number of informal settlements in urban areas due to rapid urbanisation”.
These calls have not received a sufficiently serious response from the government. Litigation to ensure access to basic services remains commonplace.
In this context, while hygiene has rightly been touted as one of the most important preventatives from spreading Covid-19, it is difficult to imagine how the majority living in South Africa will be able to ensure even basic measures such as handwashing.
Abahlali notes that in many informal settlements “hundreds of people [are] sharing one tap”. In this context, it is easy to see why leaders of Abahlali think that as it stands, preventing the spread of coronavirus is very important, but all but impossible.
“As leaders of Abahlali, we see it as once one person gets infected in the settlements, suddenly the entire settlement will be disastrous,” Zikode said.
A moratorium on evictions: halting evictions ‘will save lives’
Making matters worse, members of Abahlali, like many others in their country, lack security of tenure. As trying as their current circumstances may be, Abahlali warns of the potentially devastating effects of evictions during the pandemic. Another common way to induce evictions is to disconnect existing access to water, electricity and sanitation.
This is why Abahlali demands that “all evictions must be stopped with immediate effect” and that “all disconnections from self-organised access to water, electricity and sanitation must be stopped with immediate effect”. Indeed, it is difficult to see how any eviction during the pandemic could be “just and equitable” in “all relevant circumstances” as is required by South African law.
The call for a “moratorium” on evictions has also been made by a large group of social movements and civil society organisations in South Africa in a letter to the president. It has also received clear support from the UN Special Rapporteur on the Right to Housing, who has called for a “global ban” on evictions worldwide:
“The logical extension of a logical stay-at-home policy is a global ban on evictions. There must be no evictions of anyone, anywhere, for any reason. Simply put: a global ban on evictions will save lives”, she said. The International Commission of Jurists has echoed these calls and the calls for connection of emergency water for all before the nationwide lockdown commences.
Coronavirus, the right to housing and access to land
In February, in giving input to the parliamentary committee contemplating the need to amend the Constitution to expedite land reform, Abahali argued that land is not a commodity and that the Constitution should include a “right to land” which it does not at present.
“Land should be shared and should be viewed as a public good”, Zikode explains.
Abahlali argues that the absence of a right to land in the Constitution undermines the constitutional right to housing: without land there can be no housing. Consistently with this logic, as early as 2000, South Africa’s Constitutional Court held emphatically that:
“For a person to have access to adequate housing all of these conditions need to be met: there must be land, there must be services, there must be a dwelling.”
The current crisis brought on by the coronavirus adds weight to Abahlali’s position on land. Access to land and security of tenure are necessary for access to adequate housing. If people have access to land and secure tenure, evictions are not a constant threat to their well-being.
Without access to housing and basic services, public health is severely compromised on a daily basis. Public health emergencies such as the coronavirus pandemic put even further pressure on an already compromised living environment. They therefore highlight that for many people, the right to adequate housing can only be discharged with full access to land.
The obligations of the South African government
The government of South Africa has rightly been praised for its proactive response to the coronavirus pandemic. The regulations passed in terms of the Disaster Management Act require that measures taken to combat coronavirus are implemented “as far as possible, without affecting service delivery in relation to the realisation of the rights” including the rights to housing and basic services, healthcare, social security and education.
The president’s announcement of a countrywide lockdown included a commitment that “temporary shelters that meet the necessary hygiene standards will be identified for homeless people”. Nevertheless, Abahlali’s members, who are not strictly homeless, might take cold comfort.
Disappointingly, the president failed to announce a moratorium on evictions or make any mention of evictions at all. This not only leaves many more people under the threat of being rendered homeless but may also lead to devastating displacement that will make the further spread of coronavirus possible.
The president did indicate that “emergency water supplies” are “being provided to informal settlements and rural areas”.
However, he did not make mention of whether expedited or emergency provision of other basic services such as sanitation, electricity and waste removal services where they are not currently available would occur. Urgent calls for emergency water connection coming out of Khayelitsha suggest that in many places in major informal settlements such emergency connections have not occurred.
The government of South Africa should be applauded for taking emergency measures. However, in so doing, it is implicitly acknowledging that many — if not most — South African residents have been living on a daily basis in conditions that are insufficient for them to live healthy, dignified lives.
This highlights the government’s existing and continuous failures to respect, protect, promote and fulfil the rights to access to housing and basic services.
The coronavirus, therefore, stands a stark reminder to all in South Africa of the dire impacts of social inequality in the country and the pressing need for government to pursue the realisation of all its obligations in terms of social and economic rights protected in the South African Constitution and the International Covenant on Economic, Social and Cultural Rights. It also lends strong credence to the need for serious consideration of Abahlali’s claim for the need of a constitutionally protected right to land.
As Zikode concludes:
“Abahlali has always been about the land, decent housing, and dignity. Without land, housing is impossible. Without land, dignity is compromised. Land is close to the heart of many mainly black South Africans and it’s very close to the heart of Abahlali.”
Originally published in Daily Maverick
Apr 2, 2020 | News
The ICJ welcomes the decision by the Constitutional Court of Zimbabwe to invalidate the enactment of Constitutional Amendment Bill (No. 1) of 2017 in Gonese and Anor v Parliament of Zimbabwe and 4 Ors. The judgment restores important Constitutional guarantees for the independence of the judiciary in Zimbabwe.
Zimbabwe adopted a new Constitution in 2013 and one of the progressive elements of this Constitution was its provisions regulating the appointment of judicial leaders such as the Chief Justice, Deputy Chief Justice and Judge President of the High Court. These judicial leaders perform important administrative functions with a huge impact on access to justice for the public.
For example, the Chief Justice is the head of the Judicial Service Commission (JSC) and therefore, presides over processes to select and recommend candidates for judicial appointment.
The Judge President is responsible for case allocation in the High Court and therefore, selects judges to sit on cases. It is important that the procedures for appointing these judicial leaders be transparent and independent of executive control in order to maintain the independence and impartiality of judges as well as promote public confidence in the judiciary.
The 2013 Constitution ensured this by prescribing procedures which accorded the executive a constrained role in the selection and appointment of these judicial leaders.
For example, the process of selecting these office bearers was to be led by an independent Judicial Service Commission (JSC) which would publicly advertise the vacancies, shortlist candidates, conduct interviews that are open to the public and recommend candidates for appointment by the President. The President was required to appoint only from the shortlist submitted by the JSC.
In 2017, the then-President of Zimbabwe Robert Mugabe signed into law a constitutional amendment bill which sought to change these provisions and give the President the authority to select and appoint these judicial leaders without conducting public interviews and without being constrained or restricted to the shortlist provided by the JSC.
The enactment of this constitutional amendment bill was challenged in the Constitutional Court on grounds that the amendment had been adopted and enacted into law without following due process.
In its judgment, the Constitutional Court concluded that, “It is declared that the passing of Constitutional Amendment Bill (No. 1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of s 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No. 1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).”
The Court directed the Senate to conduct a vote in accordance with the procedure for amending the Constitution prescribed by s 328(5) of the Constitution within one hundred and eighty days of the order given. Failure to do so will render the declaration of invalidity of Constitutional Amendment Bill (No. 1) of 2017 final, said the Court.
Commenting on this judgment, ICJ Africa Director Arnold Tsunga said: “This is a positive judgment which underscores the vital principle of legality, particularly that changes to the Constitution must be processed and enacted in strict accordance with the laid out procedures. Respect for the Constitution, and ensuring the independence of the judiciary, are fundamental elements of the rule of law; both are advanced by this judgment.”
The decision by the Constitutional Court comes at a time when the Parliament of Zimbabwe has gazetted further proposed changes to the Constitution, which amongst other things seek to give the executive a stronger role in the selection and appointment of judges to the Supreme Court and Constitutional Court.
These proposed changes would undermine judicial independence and undercut public confidence in the independence and impartiality of the judiciary. Further, these proposed changes are contrary to international and African standards. For instance, the United Nations Basic Principles on the Independence of the Judiciary enjoin member states to ensure that “Any method of judicial selection shall safeguard against judicial appointments for improper motives.”
The African Commission on Human and Peoples’ Rights’ Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa further provide that, “The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged.” The ICJ therefore, calls upon the government of Zimbabwe to reconsider its decision to proceed with these proposed changes to the Constitution.
Contact
Arnold Tsunga, t: +26377728 3248; e: arnold.tsunga@icj.org
Mar 27, 2020 | News
The ICJ today called on the responsible authorities to adopt urgent measures to ensure the equal protection of the right to health and life of the country’s inhabitants in the wake of the growing COVID-19 pandemic.
The call came amidst indications that official response has been inadequate and poorly conceived.
Although Zimbabwe has only three officially confirmed COVID-19 cases and one casualty so far, the true figures are likely to be higher.
Media reports indicate that the health care facilities designated to deal with COVID-19 cases are severely under equipped. Doctors and nurses have announced that they are withdrawing their services because government is failing to provide them with protective clothing such as masks and gloves.
“The ICJ is deeply concerned by the poor state of preparedness of the Zimbabwean Government to handle COVID-19 cases,” said Arnold Tsunga, ICJ African Programme Director.
“The COVID-19 pandemic has brought to the fore cracks in health systems and presented governments everywhere with unprecedented challenges. The government’s response should however remain steeped in obligations espoused in the Constitution and international legal instruments to which Zimbabwe is a party,” he added.
The ICJ called on the Government of Zimbabwe to take urgent measures, include those aimed at ensuring that its healthcare system can provide for adequate screening, testing and care for COVID-19 patients.
The ICJ said that the Government must also investigate reports of the mishandling of patients, increase transparency and regular communication with the public and dedicate more resources to dealing with the COVID-19 pandemic.
Background
Zimbabwe announced its first confirmed case of COVID-19 on 21 March. The first casualty was recorded on 23 March. On 25 March 2020, the Ministry of Health and Child Welfare reported that a total of 100 people had been tested for COVID-19. Of these, 96 were negative, three tested positive and one test was found to be inconclusive.
Zimbabwe is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which imposes a duty to protect the right of everyone to enjoyment of the highest attainable standard of physical and mental health. Zimbabwe is also party to the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples Rights, both of which guarantee the right to life.
Pursuant to Section 76 (1) of the Constitution of Zimbabwe, the government must provide access to basic health care services to all citizens and residents. Further, section 76 (3) of the Constitution enjoins government to ensure that no person is denied emergency medical treatment in any health care facility. In addition, government has an obligation, under section 51 of the Constitution, to protect human dignity.
The Committee on Economic, Social and Cultural Rights has set out the minimum standards which must be fulfilled at all times for States that are party to the IECSCR;
- Quality: Heath care facilities should be equipped with necessary equipment and medicine including safe and adequate water, sanitation and skilled medical professionals.
- Availability: Health care facilities with adequately trained and fairly-paid medical personnel and essential medicines should be made available to all.
- Accessibility: Health care facilities should be accessible to all without discriminating. Accessibility also includes physical accessibility, economic accessibility and access to information.
- Acceptability: Health care services should be provided in a manner that complies with medical ethics.
Measures undertaken by the Government of Zimbabwe, in response to the COVID-19 pandemic must adhere to these minimum standards. However, the ICJ has noted the following allegations and reports from credible media sources;
- Gross under-testing of people despite showing most of the COVID-19 symptoms;
- Absence of protective gear for health care workers;
- Lack of training of health care workers on the proper handling of COVID-19 related patients;
- Mishandling/ill treatment of patients at COVID-19 health care centres;
- Absence of equipment such as ventilators and respirators;
- Absence of running water at designated COVID-19 health care centres;
- Insufficient staffing at the designated COVID-19 care and isolation centres, as a result of some doctors and nurses having gone on strike;
- Government is establishing fully equipped COVID-19 health care facilities but exclusively for the political elites and their associates.
Contact:
Arnold Tsunga, Director of the ICJ Africa Regional Programme, t: +263 77 728 3248, e: arnold.tsunga(a)icj.org
Mar 25, 2020 | News
The ICJ today called on the South African government to take urgent and immediate measures to ensure the full protection human rights, including economic, social and cultural rights, in the context of the COVID 19 epidemic.
The call comes as South Africa’s 21-day nationwide lockdown is poised to commence tomorrow, 26 March 2020. As it stands the human rights of the majority of South African residents are under serious threat.
“The ICJ is calling on the South African government to take effective measures ensure that addressing one human rights crisis does need lead to new human rights pressures” said Arnold Tsunga, Director of or the ICJ Africa Programme.
“We therefore call on the authorities to take three urgent steps: 1) Declare a moratorium on all evictions; 2) Ensure emergency provision of water to all; and 3) publically repudiate xenophobic statements made by Minister Khumbudzo Ntshavheni and affirm non-citizens rights to work”.
- Declaration of a moratorium on all evictions:
In the context of COVID-19, evictions are particularly dangerous and life-threatening. Evictions risk the further spread of COVID-19 and make it impossible to stay at home as the World Health Organization has advised.
The UN Special Rapporteur on the Right to Housing, has called for a global ban on evictions worldwide, stressing that: “The logical extension of a logical stay at home policy is a global ban on evictions. There must be no evictions of anyone, anywhere, for any reason. Simply put: a global ban on evictions will save lives”. In South Africa, local social movements and human rights organizations have called for a “moratorium” on evictions, as has Abahlali BaseMjondolo a movement of tens of thousands of “shack dwellers” across the country.
The ICJ calls on President Ramaphosa to declare a moratorium on evictions immediately before the commencement of the nationwide lockdown. South Africa must do so to meet its international legal obligations to protect the rights to housing and health.
- Provision of emergency access to water before the lockdown commences:
Many people in South Africa live in informal settlements and rural settings in which access to water, sanitation and basic services are inadequate or inconsistent. The simple instruction of washing one’s hands to prevent the spread of the virus is extremely difficult, if not impossible, for many.
The President announced on 23 March that “emergency water supplies” would be provided in “informal settlements and rural areas”. However, reports from around the country suggest that with lockdown beginning tomorrow many major informal settlements, including Khayelitsha in Cape Town, still do not have sufficient access to such emergency water.
The ICJ calls on President Ramaphosa to ensure that provision is made for all South Africans to have access to basic services, including water, before the commencement of national lockdown. South Africa must do so to meet its international legal obligations to protect the right to water.
- Protecting the right to work of “everyone” including non-citizens:
On 24 March 2020 speaking on national television, Minister of Small Business and Development in South Africa Khumbudzo Ntshavheni said that only spaza shops “owned by South Africans and managed and run by South Africans” will be allowed to continue operating during nationwide-lockdown, ostensibly to ensure the quality of goods and food.
This statement is discriminatory and in violation of South Africa’s commitments in terms of its own Constitution and international human rights law, to ensure non-discrimination and equal protection of the law. It risks a resurgence of existing xenophobic sentiment at a time of crisis which South Africa can ill afford and threatens the livelihood of foreign nationals.
The ICJ calls on President Ramaphosa to withdraw the statement immediately and reaffirm the internationally recognized right to equality of non-citizens including their right to work.
Contact:
Tim Fish Hodgson, ICJ Legal Adviser, e: tim.hodgson(a)icj.org ; c: +2782871990
Shaazia Ebrahim, ICJ Media Officer, e: shaazia.ebrahim(a)icj.org ; c: +27716706719
Background:
The global Covid-19 pandemic has led South African president Cyril Ramaphosa to announce a 21-day nationwide lockdown which will be effective on 26 March at midnight. This follows on from South Africa’s declaration of a “national disaster” on 15 March and the publication of disaster regulations governing the disaster response.
Global consensus on best practice to combat COVID-19, as recommended by the World Health Organization, is for people to stay at home, maintain social distance and intensify hygiene measures including through frequent washing of hands. However, South Africa has well-documented and extremely high levels of poverty and inequality. A number of problems in complying with global best practice in response to COVID-19.
The disaster regulations require that measures taken to combat COVID-19 are implemented “as far as possible, without affecting service delivery in relation to the realisation of the rights” including the rights to housing and basic services, healthcare, social security and education.
Mar 9, 2020 | Advocacy, Non-legal submissions
The ICJ and Lawyers’ Rights Watch Canada have highlighted the link between human rights violations and corporate accountability in South Sudan, at the Human Rights Council in Geneva.
The statement, delivered in an interactive dialogue with the Commission on Human Rights in South Sudan, read as follows:
“The International Commission of Jurists (ICJ) and Lawyers’ Rights Watch Canada thank the Commission on Human Rights in South Sudan for its report (A/HRC/43/56).
We underline the Commission’s ongoing concerns about lack of access to justice, entrenched impunity for serious crimes and human rights violations; continued threats against human rights defenders, journalists, and dissidents; and corruption in oil and non-oil sectors.
We appreciate the Commission’s continued investigation into enforced disappearances, including the 2017 enforced disappearances and extrajudicial killings of human rights lawyer Dong Samuel Luak and opposition politician Aggrey Idri.
We remain concerned by the lack of effective oversight of oil and non-oil enterprises and revenue misappropriation that has fueled violations. In the light of the findings by the Commission’s 2019 report (A/HRC/40/69, A/HRC/40/CRP.1) pointing to the oil industry as a “major driver” in the continuation of the armed conflict and resulting human rights violations, we would like to ask what follow up to those findings does the Commission intend to conduct in the future?
Potential corporate complicity with crimes under international law demands investigation and a strong monitoring mechanism for the use of oil revenues should be established.”
