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:
- General Comment No. 4 on the Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (article 5 of the African Charter); and
- African Commission guidelines for policing assemblies in Africa: achpr_guidelines_on_policing_assemblies_eng_fre_por_ara.
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.
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.