LRC submissions to 60th Ordinary Session of the African Commission

The Legal Resources Centre (LRC) attended the 60th Ordinary Session of the African Commission on Human and Peoples’ Rights (African Commission), held from 8 May 2017 in Niger, as well as the NGO Forum that took place over the preceding weekend.

During the NGO Forum, the LRC and the Kenya Human Rights Commission, on behalf of the International Network of Civil Liberties Organizations (INCLO), hosted a panel on “Surveillance as a threat to privacy rights and doorstep to further violations: A discussion on Africa’s unfolding experiences”. The purpose of the panel was to raise awareness of the case studies and recommendations contained in the report prepared by INCLO members titled “Surveillance and democracy: Chilling tales from around the world”.  A copy of the INCLO report is accessible here (PDF).

While surveillance has a clear and direct impact on the right to privacy, it is well-established that such violations of the right to privacy also impact the enjoyment of other rights, including the rights to freedom of expression, association and assembly, and hinder the work being done by civil society organisations and the media.  Surveillance is therefore a matter of importance that affects all organisations, regardless of the specific focus area of work.

The LRC also delivered a statement (see below) to the African Commission, focusing on specific issues raised by the African Commission in its concluding observations and recommendations following the 2016 review of South Africa’s second periodic report under the African Charter on Human and Peoples’ Rights (African Charter). The concluding observations and recommendations were adopted by the African Commission in June 2016, and a copy is accessible Concluding Observations and Recommendations (PDF).

Building on these concluding observations and recommendations, our statement to the African Commission during the current session dealt with the following three key issues: (i) information rights, in particular the rights to freedom of expression and privacy; (ii) the extractives industry and the environment, as well as corporate accountability more broadly; and (iii) the need for effective remedies for victims of torture.

The South African government also delivered a statement to the African Commission, in which the following issues were highlighted: (i) the right to education; (ii) the plight of women; and (iii) the challenge of migration and the attacks against foreign nationals.

During this statement, Ambassador Ntshinga, delivering the statement, stated that “[h]uman rights remains embedded in our foreign policy”, and that South Africa will “continue to work towards the entrenchment of democracy and the respect for human rights on the African continent through continental and regional bodies”.  Regarding the violent attacks against foreign nationals, Ambassador Ntshinga stated to the African Commission that “[w]e condemn the violence in the strongest possible terms and sincerely apologise to those who were affected”. A copy of the South African Government statement 60th session African Commission is accessible.

Lastly, this session marked the launch of two important legal documents by the African Commission, both of which are important contributions to the work being done on these issues in both regional and domestic contexts:

For more information about the work of the African Commission, visit www.achpr.org.  The next session of the African Commission, scheduled to be held in October/November this year in The Gambia, will celebrate the 30th anniversary of the African Commission coming into existence.

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STATEMENT OF THE LEGAL RESOURCES CENTRE

AT THE 60TH ORDINARY SESSION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS, HELD IN NIGER

9 MAY 2017 | OBSERVER STATUS NUMBER 376

Honourable Chair, Honourable Commissioners, state representatives, national human rights institutions and fellow NGOs:

Last year, South Africa came before the African Commission on Human and Peoples’ Rights (African Commission) for its review of compliance with its obligations in terms of the African Charter on Human and Peoples’ Rights.  The Legal Resources Centre (LRC) urges the South African government to pay due regard to the concluding observations adopted by the African Commission at its 20th Extraordinary Session during June 2016, to recognise their binding nature and to take concrete steps to implement these recommendations.  In this statement, we wish to highlight three broad areas that arose within these concluding observations: (i) freedom of expression; (ii) the extractives industry and the environment, as well as corporate accountability more broadly; and (iii) the need for effective remedies for victims of torture.

As a point of departure, we recall that one of the concluding observations was to expedite the establishment of the Information Regulator in terms of the Protection of Personal Information Act, 2013.  We note that, since the publication of the concluding observations, the five members of the Information Regulator have now been appointed, and in this regard we wish to extend our sincere congratulations to the Honourable Chairperson, Advocate Tlakula, on her appointment as the head of the Information Regulator in South Africa.  We urge the South African government to provide the Office of the Information Regulator with all necessary support and resources to ensure that it is able to fully establish and operate without delay, and to ensure that it enjoys complete structural and functional independence to be able to undertake its mandate effectively.

Notwithstanding this development, we remain deeply concerned about ongoing surveillance in the country.  There are a number of documented allegations of members of civil society and the media have been placed under surveillance.  This is not only a violation of the right to privacy, but also directly affects the right to freedom of expression, the right to freedom of assembly and the right to freedom of association.  As a matter of first-hand experience, the LRC received a ruling from the Investigatory Powers Tribunal in the United Kingdom in 2015, revealing that an email address associated with the LRC had been subject to unlawful surveillance by the British Government Communications Headquarters.  Surveillance activities such as this will undoubtedly hinder the work of members of civil society and the media, and should be strongly condemned.  We further urge the South African government to fulfil its undertaking to reform the current surveillance framework to ensure that it is constitutionally-compliant.

We are further concerned by the proliferation of draft laws that, if passed into law, would likely have a deeply harmful impact on the right to freedom of expression.  We note, in this regard, the concerns expressed by the African Commission in its concluding observations regarding the Protection of State Information Bill and the Cybercrimes and Cybersecurity Bill, noting in particular the provision permitting journalists and members of the public to be prosecuted for possessing or disclosing state information.  We echo the call made by the African Commission in its concluding observations for the Protection of State Information Bill and the Cybercrimes and Cybersecurity Bill to be brought in line with regional and international standards and best practices.  In a similar vein, as noted by the African Commission in its concluding observations, we remind the government of its undertakings to decriminalise the common law crime of defamation, and urge the government to take steps in fulfilment of these undertakings.

We also take this opportunity to commend the 2017 Joint Declaration by Special Rapporteurs on Fake News, which was a well-timed and important contribution to the discourse, and was of significant value for civil society organisations in seeking to curb efforts by governments to use the so-called fake news rhetoric to unduly restrict the right to freedom of expression.  Across the continent, we see governments clamping down on the right to freedom of expression – particularly freedom of expression online – which affects all members of the public.  We urge the African Commission to continue its important work focusing on freedom of expression online specifically, including the impact that digital surveillance has on the enjoyment of this right.

With regard to the extractives industry and the environment, we note that mining and resource governance remains of serious concern to the LRC and the communities that we assist.  We remind the South African government of the African Commission’s 2012 resolution that emphasised “the disproportionate impact of human rights abuses upon the rural communities in Africa that continue to struggle to assert their customary rights of access and control of various resources”.  We urge the South African government to act with haste in considering and implementing the detailed recommendations contained in the African Commission’s concluding observations in relation to the extractives industry and the environment.

In particular, as we still wait for justice for those Lonmin mineworkers who were tragically killed at the Marikana massacre in 2012, we note the call from the African Commission for the South African government to report on the steps taken to implement the recommendations of the Marikana Commission of Inquiry and to address the underlying factors that precipitated the massacre.  Scant information is known about the efforts being undertaken to fulfil the recommendations of the Marikana Commission of Inquiry, and we urge the South African government to report comprehensively about the investigations undertaken and the consequences thereof.

This raises a broader question of corporate accountability.  In this regard, we note the ongoing work of the Inter-Governmental Working Group of the United Nations to develop a binding treaty for transnational corporations for violations of human rights.  The resolution establishing this working group was co-sponsored by South Africa, and provides an important opportunity for local communities to participate in their own development by ensuring community participation in the drafting of the treaty.  Given the direct impact that this has on Africa, it is imperative that African organisations play an active role in this process, and urge all organisations present to make sure that your voices are heard in this process.

The third issue relates to the lack of measures to provide reparations for victims of torture, which the African Commission urged the South African government to take measures to provide for.  The LRC currently represents a number of persons who allege having been tortured whilst incarcerated at the Mangaung Correctional Centre, a private prison operated by G4S Correction Services.  Our clients allege having suffered an array of violations, including having been electro-shocked, assaulted, forcibly injected and held in solitary confinement for extensive periods of time.  In our pleadings, we contend on behalf of our clients inter alia that this is a violation of their fundamental rights to human dignity, life, freedom and security of the person and of every detained person to conditions of detention consistent with human dignity.  It is self-evidently of significant importance to ensure that victims of acts of torture are able to access appropriate remedies for the violations that they have suffered.  In this regard, we welcome the adoption of the General Comment No. 4 on the Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment, and commend all those involved, as General Comment No. 4 provides uniquely useful guidance on this matter.

Moreover, the LRC and our partner organisations in the International Network of Civil Liberties Organizations (INCLO) welcome the adoption and publication of the Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa.  The LRC notes in particular the forward-looking nature of the Guidelines, and commends the African Commission, the African Policing Civilian Oversight Forum and the Danish Institute for Human Rights for the various participatory processes which led to the finalisation of these Guidelines.  Particularly, we welcome the progressive guidance given to law enforcement officials on the use of force and firearms, including the proper use of less-lethal weapons.

Finally, as a general note, we call on the African Commission to urge the South African government to respect the rule of law, and to respect both the authority and the independence of those institutions mandated to protect the rule of law in South Africa.  The ability of such institutions to function independently is critical to the maintenance of democracy and rule of law in South Africa, and must be fiercely guarded.

[Ends]

 

 

 

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Binding Treaty on Transnational Corporations discussed at the African Commission

On the 6 April 2016, the Legal Resources Centre (LRC) held a side event at the 58th session of the African Commission on Human and Peoples’ Rights in Banjul, The Gambia. The side event discussed the United Nations proposed treaty on transnational corporations and other business enterprises with respect to human rights.

The side event attracted participants from various organisations across Africa. Our panel consisted of three staff members of the LRC and a member of the African Commission’s Working Group on Extractive Industries, Clement Voule. Unfortunately, Nomonde Nyembe from the Centre for Applied Legal Studies was unable to join us as a panellist due to an unanticipated injury.

LRC researcher, Mabatho Molokomme, facilitated the session. She gave a brief background on the Human Rights Council resolution and what it envisages for the treaty. This was followed by a summary of the first open-ended intergovernmental working group (IGWG) session that took place in Geneva, Switzerland in July 2015.

IMG-20160428-WA0002
The 58th session of the Africa Commission on Human and People’s Rights

 

Drafting the binding treaty

LRC attorney, Sayi Nindi, spoke about community participation and the drafting process of the binding treaty. Some of the key points she raised are as follows:

  • The drafting process of the binding treaty is at its preliminary stage and no one knows how the treaty will look like.
  • The following still need to be determined, amongst other questions: what rights will be covered by the treaty; what companies the treaty should apply to; if the treaty should define in greater detail the content of states’ duties to protect human rights and ensuring access to justice for the affected people.
  • There are different views on whether corporations should be subjected to international law. Positivists say corporations should not be subjects of international law because no international law instrument recognises them as such. Other flexible interpretations say that corporations may have limited international legal personality. Pragmatists are of the view that the issue of whether corporations are subject to international law (and what legal responsibility can be imposed on them) is irrelevant as clearly corporations have both rights and responsibilities.
  • The development of this treaty has to be people- and community-centred. Local communities must be empowered to lead and participate in this process. They must bring their experiences to the table.
  • Communities have to bear the brunt of the so-called “development” that allegedly comes with transnational corporations.
  • There’s a clear gap in the international human rights law framework in its failure to address human right abuses by transnational corporations. They can now participate in debates and resolutions. This is the perfect opportunity to state the importance of Free, Prior and Informed Consent (FPIC)* and insist on it to be a requirement for developmental projects.
  • African civil societies should lobby their governments to participate and contribute at the IGWG sessions.

Cases that the LRC are litigating were used to illustrate how the treaty would be beneficial in situations where individuals or communities are victims of human right violations by multinational corporations. There are many examples on the continent where victims of human rights violations perpetuated by multinational corporations are left with no recourse if they solely relied on their domestic laws, which may not be as effective as an international instrument such as the binding treaty.

The LRC have been working with the South African government and we were encouraged that other civil society organisations do the same. The participants were informed of ways in which they can engage with their governments in order to promote the treaty movement at the UN level. A draft letter to be sent to governments was offered to those in attendance.

Right to Development

LRC attorney, Wilmien Wicomb, spoke on Right to Development as enshrined in the African Charter on Human and Peoples’ Rights and Free, Prior and Informed Consent. She raised the following key points:

  • The question is sometimes raised why we need yet another treaty with so many existing international and soft law instruments. It was noted that the treaty represents an acknowledgement that transnational corporations have become powerful enough as players in international relations and domestically to perform governmental functions; such as delivery of services and contributing to policy and development decisions. As such, the treaty represents a radical departure from existing international human rights law.
  • If that is the case, a key question that continues to be debated is whether transnational corporations should also be the bearer of international human right’s duties?
  • To answer this and other difficult questions, it is important to look at the current context. The current resource wave is targeting mainly rural communities – the poorest and furthest away from basic services – in South-South countries: in part because of their insecure and cheap tenure.
  • She noted that Africa can bring something different to the transnational corporation discussion. The African context has important differences: a different legal context (from, for example, Latin America with International Labour Organisation 169, FPIC entrenched in domestic law); a different history (in particular to indigenous peoples); old and new mining sectors.
  • From our unique legal context, Africa can contribute the African Charter and its Right to Development as a procedural and a substantive right; real choice with an emphasis on outcome and on community-driven development.
  • Furthermore, African customary law requires principle of consent, of local decision making, of local living law. Increased recognition of customary law must be utilised to counter common law and business-heavy legal frameworks.

There was a general discussion on why the treaty is not being favoured across the board, given that everyone is aware of human rights violations happening. There was general consensus in the room that the United Nations Guiding Principles on Business and Human Rights (UNGP) are preferred by the home states of the transnational corporations because of their voluntary nature. Much work and negotiation will be required before the treaty can reflect all we hope it will contain.

There was acknowledgement of the high standard of rights as set out in the African Charter. No one will be campaigning for anything less than that standard.

IMG-20160428-WA0004
Mabatho Molokomme, Sayi Nindi, & Wilmien Wicomb

 

African participation

Clement Voule spoke on civil society advocacy and mobilisation. He emphasised that there has been marginal participation from Africa in the process thus far. He encouraged people to be a bit more proactive in their involvement in the upcoming IGWG session in October 2016. He noted that the content and its negotiations will take a long time. There may not even be a treaty in the end but this should not deter people from joining the process. He also stated that the treaty conversation should not be kept separate from the UNGP conversation. The treaty must be viewed as the next step in the process and not a replacement of the other. States reaching common ground on the UNGP may be a window of opportunity and a better space to discuss the treaty.

Outcomes

The side event induced a worthwhile conversation and we invite the proposals that were put forward. A participant who works for the African Commission proposed that they could assist us to host a panel discussion at the next African Commission session in November 2016 in order to reach a broader audience. We also made contact with one of the Commissioner’s working with the Working Group on Extractive Industries, who is interested in participating – through the working group – in the work of the binding treaty. The participants at the side event also suggested that this conversation be opened at the African Union Summit.

 

By: Mabatho Molokomme, Sayi Nindi, and Wilmien Wicom

 

 

*Read more about the FPIC principle here: https://za.boell.org/sites/default/files/perspectives_april_2016_web.pdf

**Read more about the treaty debate here: https://realisingrights.wordpress.com/2016/03/31/south-africa-debates-the-merits-of-the-proposed-treaty/

Free Prior and Informed Consent for Indigenous Communities

The LRC’s regional project focuses on the protection of community rights to resources and, in particular, aims to find ways in which to improve the imbalance of power between rural communities in Africa and those interested in their resources; be they government or potential investors.

The imbalance of power is not only a function of the gross inequality of financial resources between these parties, but exacerbated by the fact that the resource rights of rural communities on the African continent continue to be unrecognised within the formal legal systems of their countries. Ironically, while the British Privy Council’s pronouncements in 1919 in In re Southern Rhodesia that, “some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society”, seem outrageous in a world that now accepts equality as a fundamental right, African governments and investors continue to regard customary tenure as inferior to titled ownership and treat it with the associated indifference. The result is the displacement and resource dispossession of millions of people across the continent as the demand for Africa’s land and resources increase.

Our advocacy for the proper recognition of customary law as a source of community rights and resources aims not only to establish community ownership, and the protections that that will entail, but also to promote the principle of free, prior and informed consent. This principle has been established in international law as a right of indigenous groups. But rural communities consulting with potential investors can only have actual bargaining power if they have the right to say “no”. We argue that this principle is one found in customary legal systems and, as such, should be applied to all customary communities.

The nature of customary law also provides the basis for our understanding of compensation and reparation. In cases where communities are compensated after removals, the measurement of their loss is generally reduced to the hectares of grazing land and the square metres of their houses. However, if the nature of customary communities is to be understood and recognised, reparation will have to take into account the loss of community, custom and culture. We are actively engaging with the African Commission on Human and Peoples’ Rights and, in particular, its Working Group on Extractive Industries, Environment and Human Rights Violations. Notably, we successfully lobbied for the Commission to adopt a resolution on the situation of extractive industries in Africa, which acknowledges the problem of the non-recognition of customary tenure and the right to free, prior and informed consent. To read more about the Working Group, please visit the website.