Sep 9, 2019 | News
The ICJ today called on the South African government to take immediate measures to prevent, investigate and bring to justice those responsible for all discriminatory violence that has occurred in the country, particularly against people based on nationality or national origin.
The authorities should make clear that the rights in the South African Constitution’s Bill of Rights and under international law apply to everyone in South Africa and to take demonstrable measures to protect everyone in South Africa from violence, including discriminatory violence, such as targeted xenophobic violence.
“The hard-fought rights in the Bill of Rights of our Constitution apply to everyone who lives in South Africa without exception. Whatever concerns people have must be resolved through listening and through dialogue. The prevailing violent attacks which seem to target people because they are not South African are cruel and inhuman. They can never be justified and must be condemned in the strongest terms possible”, said ICJ Commissioner Justice Yvonne Mokgoro, a former judge of the South African Constitutional Court.
The ICJ further called on the African Union Member States to take immediate measures to stop the retaliatory attacks against South Africans and South African groups and businesses in those countries where they have taken place, including the Democratic Republic of Congo and Nigeria.
“The current xenophobic attacks in South Africa targeting African immigrants as well as retaliatory violence against South Africans living in the affected African countries is highly regrettable. We call upon the leadership of the affected countries to exercise maximum restraint. We further urge them to take urgent measures to guarantee the security and rights of all immigrants and minorities within their borders, as they are duty bound to do so, under their constitutions and instruments against all forms of discrimination and xenophobia”, said ICJ Commissioner Justice Kathurima M’Inoti of the Kenyan High Court and Director of the Kenyan Judicial Education Institute.
The call by the ICJ comes after South Africa experienced a week of widespread looting and attacking of businesses, perceived to be owned by foreign nationals that saw at least 10 killings and many others injured and displaced from homes. The violence began in Jeppestown, a Johannesburg suburb, on Sunday evening and spread to other parts of Johannesburg including the Johannesburg CBD, Malvern, Tembisa, Alexandra and Katlehong.
The ICJ recalls that the African Charter on Human and Peoples Rights, the International Covenant on Civil and Political (ICCPR) and other universal and African regional human rights treaties to which South Africa is party, require that the rights be guaranteed equally to all persons without regard to citizenship or other status.
This is not the first time that South Africa has been gripped with xenophobic attacks. They have occurred periodically and with impunity over the past decade, with spikes in 2008 and in 2015. In 2008 more than 60 people were killed in a wave of violence against foreign nationals. Another significant flare of xenophobic violence also occurred in 2015 receiving widespread civil society condemnation and response though the perpetrators of such violence operated with some degree of impunity. Civil society will once again proceed with a mass protest on the 14th of September in strong opposition to the increasing climate of fear and xenophobia.
“Impunity for acts of violence, particularly xenophobic violence, is a matter of extreme concern. As a Zambian professor teaching at a leading university in South Africa, I am fearful of the lasting impact that continued xenophobia in South Africa has on the human rights of everyone especially non-nationals living in the country. These xenophobic attacks have the potential to destabilize the unity of Africa around human rights values and create a spiral of violence and impunity across the continent. Xenophobic violence is a threat to the observance of human rights on the continent.” said ICJ Commissioner and Professor Michelo Hansungule, of the Centre for Human Rights at the University of Pretoria.
A number of African countries, including Tanzania, Mozambique, Zambia and Nigeria have responded strongly to such xenophobia, including by suspending flights to South Africa and boycotting South African based events, illustrating the seriousness of the xenophobia. Though the South African government has previously presented such incidents to the world as isolated instances of naked criminality without discriminatory intent, in this instance South African Foreign Minister Naledi Pandor has said that “Afrophobia” can no longer be denied.
In responses to violence in South Africa, in Nigeria, protesters in Lagos and Abuja have targeted South African businesses, some hurling rocks and burning tyres outside their premises, with some explicitly indicating that the acts are retribution for violence against Nigerians in South Africa. In the Democratic Republic of the Congo, protesters also attacked and looted South African-owned businesses, some going on to attack the South African consulate in Lubumbashi. Read the full story here: South Africa-surge in xenophobia-news-webstory-2019-ENG
Contact Details:
Arnold Tsunga (Director): c: +26 37 7728 3249 e: arnold.tsunga(a)icj.org
Solomon Ebobrah (Senior Legal Adviser): c: +23 48 0349 27549 e: solomon.ebobrah(a)icj.org
Tim Fish Hodgson (Legal Adviser): c: +27 82 871 9905 e: timothy.hodgson(a)icj.org
Aug 14, 2019 | News
Today, ICJ Commissioner and former Constitutional Court Justice Justice Yvonne Mokgoro delivered the Keynote Address on Women’s Socio-Economic Rights at an event organized by ICJ and the Centre for Applied Legal Studies (CALS) at the University of Witwatersrand in Johannesburg.
The event, which marked Women’s Month in South Africa, was aimed at promoting the contributions of women human rights defenders and public interest lawyers in advancing women’s socio-economic rights in South Africa.
Justice Mokgoro, the first black women Justice of the Constitutional Court of South Africa, called on human rights defenders, lawyers and judges to recommit to fighting the feminization of poverty in South Africa.
“The indignities suffered by women exposed to poverty in our country are graphic, trauma-inducing and all encompassing. The dire need of women in our patriarchal society must be addressed,” she said.
With reference to the South African Constitution, the International Convention on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination Against Women, Justice Mokgoro implored judges and lawyers in particular to “engender” the full range socio-economic rights by defining their content in a manner which takes into account the impact of human rights violations on women and girls.
The event featured a panel discussion , which included remarks by Tumelo Matlwa and Amelia Rawhani-Mosalakae, lawyers at CALS, who identified who a range of legal provisions and banking practices relating to matrimonial property have a disproportionate impact on women’s rights to property.
The presentation concluded that “poverty is a form of economic violence that has a disproportionate effect on women”.
Fatima Shabodien, Strategy Director at Raith Foundation, focused her presentation on sexual harassment faced predominantly by women in the public interest law sector in South Africa.
Quoting from Indian author Arundathi Roy, Shabodien observed that “there is no such thing as the voiceless only the deliberately silenced”.
Women, she added, “have not been silent in this sector they have been deliberately silenced”. She urged human rights defenders and public interest lawyers to take allegations of sexual harassment seriously.
Nonhle Mbuthuma, a community activist from the Amadiba Crisisis Committee described the difficulties of being a women human rights defender: “I am a human rights activist and it is a difficult task. You are called a lot of names for challenging the government.
All the names don’t scare me – my mother gave me only one name”, she said. Referring to a judgment of the High Court affirming her community’s right to free, prior and informed consent before the commencement of a mining development, she concluded: “I am very proud of the Constitution and judges who said we have the right to give consent to [whether] mining [can take place]. Not the government or big companies. The people.”
She emphasized that women were, and continue to be, at the forefront of the struggle for access to land in South Africa.
Dec 6, 2018 | News
JOHANNESBURG – The ICJ condemns the ongoing violence committed against and intimidation of community members of the Marievale Community Association. Last night a petrol bomb was thrown onto the roof of Chris Koitsioe’s home at approximately 1am while his wife was asleep and alone.
Chris is a community leader and a former SANDF staff sergeant who has consistently opposed the community’s eviction and mistreatment by the SANDF.
The ICJ calls on President Ramaphosa, as Commander in Chief of the SANDF, the Minister of Defence Nosiviwe Mapisa-Nqakula and Lieutenant General Lindile Yam to condemn these outrageous and persistent attacks on members of the community. Furthermore, we call on the SANDF and Minister of Defence and other public officials to comply with and implement all court orders relating to the Marievale community and ensure the safe, expeditious and unimpeded return of community members to their homes. The ICJ further calls for the authorities to openly and transparently investigate this assault on Mr Koitsioe’s home and bring the perpetrators to justice.
The Community was unlawfully evicted from their homes on an abandoned army base near Nigel, Johannesburg South, in late November 2017. They have won repeated court orders from the South and North Gauteng High Courts, ordering the SANDF to return them to their homes and condemning their ill treatment by SANDF members during and after their eviction.
Most recently, with the assistance of Lawyers for Human Rights, the community approached the North Gauteng High Court, seeking the arrest of the Minister of Defence and several army generals involved in the evictions for a failure to comply with orders of the High Court requiring them to be returned to their homes. Though last week, this contempt of court order was denied by the North Gauteng High Court, the court reiterated that the community is to be returned to their homes by Friday 7 December 2018.
Attorney at LHR, Ms. Louise Du Plessis expressed that the “LHR is deeply concerned about the ongoing unlawful conduct taking place at Marievale, especially because of the suspected involvement of the SANDF”. She added: “although, at this stage it is merely an allegation that the SANDF is responsible for the attack on Chris’ family, there is good reason to believe that [Chris] is being targeted for leadership role in the fight to see justice done for the Marievale community, after the appalling and callous eviction at the hands of the SANDF”.
This serious attack on Mr Koitsioe’s home occurred directly in this context.
Mr Koitsioe says “members of the community resisting their eviction in court, feel that the army has encouraged and sown divisions in our midst deliberately”. He adds, “whether this attack was perpetrated with or without the influence and knowledge of the army, it is critical that the SANDF roundly condemn such attacks to prevent further violence against innocent community members seeking only to protect our constitutional rights and internationally recognized human rights”. He concludes “my family and I are traumatised, I have reason to believe that this attack was deliberately perpetrated when it was known that I would be out of town speaking to a group of 25 magistrates in Limpopo about the importance of understanding and protecting communities’ housing rights”.
“While the army should be a source of security for everyone in South Africa, the Marievale community have faced persistent and repetitive violations of their economic, social and cultural rights at the hands of the SANDF. Such conduct is a significant and serious threat to the rule of law” lamented Arnold Tsunga, ICJ Africa Director. “The ICJ is concerned at the pattern of similar attacks against other communities claiming their rights in court such as AbahlaliBaseMjondolo in KwaZulu-Natal and the Amadiba Crisis Committee in Xolobeni who have faced similar harassment, assault and even assassination for claiming their rights” added Tsunga.
Public authorities in South Africa has an obligation under international human rights law and standards to ensure that the bombing of Chris Koitsioe’s home and other such acts of violence and intimidation are promptly, independently and impartially investigated. Those responsible for such attacks must be brought to justice and victims of any human rights violations involved must receive effective redress and remedy.
In October 2018, the UN Committee on Economic, Social and Cultural Rights noted that it was “concerned at reports of human rights defenders, particularly those working to promote and defend the rights under the Covenant in the mining and environmental sectors, being threatened and harassed”. Koitsioe advises that the community has long suspected that part of the motivation for its eviction is the recent initiation of coal mining activities near their homes.
Further comment:
Chris Koitsioe| Marievale Community Association| C: +27738370265
Louise Du Plessis |Attorney | Lawyers for Human Rights C: +27823460744 E: louise(a)communitylaw.co.za
Timothy Fish Hodgson|Legal Adviser on Economic, Social and Cultural Rights| International Commission of Jurists| C: +27828719905 E; timothy.hodgson(a)icj.org
Further Resources:
The judgment handed down on 30 November 2018 is available here.
The judgment handed down in May 2018 is available here.
The judgment handed down in March 2018 is available here.
The judgment handed down in February 2018 is available here.
The South African Constitution is available here.
Nov 22, 2018 | News
The ICJ welcomes the landmark decision by the North Gauteng High Court in the Duduzile Baleni and 128 Others v Minister of Mineral Resources in which the Court affirmed the principle of free, prior and informed consent in relation to mining activities.
On Thursday the 22nd of November 2018, the Court declared that the Minister of Mineral Resources cannot grant a license to any mining company without first obtaining the full and informed consent of the affected community.
It concluded: “The applicants in this matter [have] the right to decide what happens with their land. As such they may not be deprived by their land without their consent. Where the land is held on a communal basis – as in this matter – the community must be placed in a position to consider the proposed deprivation and be allowed to take a communal decision in terms of their custom and community on whether they consent or not to a proposal to dispose of their rights to their land.”
“This decision is a positive step towards protecting the rights of vulnerable communities from the excesses of States in the benefit of corporations. Informed consent from affected communities is vital for economic activities to bring development that enriches the lives of the communities where the companies operate,” said Arnold Tsunga, ICJ Africa Regional Programme Director.
“The ICJ will continue to support the community through its cooperation with Ms. Nonhle Mbuthuma of the Amadiba Crisis Committee. We regard the community as Human Rights Defenders who are fighting to protect their internationally recognized economic, social and cultural rights,” he added.
The ICJ calls on the South African government to respect the judgment which conforms with the requirements of South African legislation, the South African Constitution, judgments of the Constitutional Court of South Africa and international human rights law.
Contact
Arnold Tsunga, Director of the ICJ Africa Regional Programme, m: +263 77 728 3248, e: arnold.tsunga(a)icj.org
South Africa-Xolobeni decision-News-web story-2018-ENG (full stroy with additional information, in PDF)
Oct 3, 2018 | News
Today, the South African Judicial Education Institute (SAJEI) and ICJ held a workshop for judicial officers on housing rights in terms of South African and international human rights law.
The workshop, which was held in Johannesburg, was attended 46 participants from South Africa’s 9 provinces. It formed part of a “Human Rights Week For Judicial Officers” run by SAJEI, which on other days also covered “Refugee Rights”, “LGBTI Rights”, and “Gender and HIV”.
The objective of the SAJEI-ICJ workshop was to discuss the role of judicial officers in housing rights cases.
The content of the workshop was collaboratively determined in consultation with magistrates responsible for conducting the training of other magistrates around the country.
It sought to respond to their requests information and resources to assist in their daily decision-making.
The workshop was facilitated by a range of magistrates from around the country and judicial educators at SAJEI.
A keynote address on “Constitutional Imperatives on Rights to Housing” was presented Judge Antonie Gildenhuys, a retired judge who sat both on the High Court and the Land Claims Court in South Africa.
Workshop facilitators drew on a draft manual on housing rights, which the ICJ is working with SAJEI and a working group of magistrates to develop.
The manual’s particular focus is on international human rights standards from a range of sources including the International Covenant on Economic Social and Cultural Rights, general comments of the Committee on Economic, Social and Cultural Rights.
It is hoped that, when finalized, magistrates will be able to draw on this manual to assist in their adjudication of housing rights cases.
To assist judicial officers in understanding the challenges faced by communities advocating to prevent unlawful evictions and secure access adequate housing, Mr Thapelo Mohapi (General Secretary of Abahlali baseMjondolo) and Ms Susan Mkhwanazi (Slovo Park Community Forum) were asked to make presentations on their “lived experiences” in attempting to access protection on the right to housing.
Their important insights contributed immensely to the success of the workshop and were well received by the magistrates.
Opening remarks were delivered by Dr Gomolemo Moshoeu (CEO of SAJEI) and Mr Arnold Tsunga (Africa Director of the ICJ).
“We at the ICJ are very happy that the magistrates expressed a desire for more continuous legal education in the area of legal enforcement of economic and social rights given that historically very little attention has been paid to equipping magistrates with requisite information and resources to ensure consistent application of human rights standards in this area,” reflected Arnold Tsunga after the event.
Contact:
Timothy Fish Hodgson, ICJ Legal Adviser, t: +27828719905 ; e: timothy.hodgson(a)icj.org
