SOUTHERN AFRICA LITIGATION CENTRE CASE BOOK 2005-2015
10 Years of Strengthening Human Rights in Southern Africa SOUTHERN AFRICA LITIGATION CENTRE
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10 Years of Strengthening Human Rights in Southern Africa SOUTHERN AFRICA LITIGATION CENTRE CASE BOOK 2005-2015 Contents
Foreword 1
1 Women’s Land and Property Rights • Masupha v Senior Resident Magistrate for the Subordinate Court of Berea and Others 4 • Mmusi and Others v Ramantele and Another 7 • The Registered Trustees of the Women and Law (Malawi) Research & Education Trust v Attorney General 10
2 Children’s Rights • GK v K and Others 14 • R v The Republic 15
3 Sexual and Reproductive Health Rights • LM and Others v Government of Republic of Namibia 18 • Mapingure v Minister of Home Affairs and Others 21
4 Lesbian, Gay, Bisexual and Transgender (LGBT) Persons’ Rights • Rammoge and Others v Attorney General of Botswana and Another 24 • S v M and Another 27 • The People v M and M 28 • The People v Paul Kasonkomona 29
5 HIV and Health Rights • Kingaipe and Another v Attorney General 32 • S v Mwanza Police and Others 34 • M v St Anne’s Hospital and Others 36 • Mwanza and Another v Attorney General 37 • Tapela and Others v Attorney General and Others 38
SALC CASE BOOK 6 Prisoners’ Rights • M v Attorney General 42 • M v The Republic 44 • M and Others v The Republic 45 • Paul v Attorney General 47 • Cases brought before the Working Group on Arbitrary Detention 48 • Mareka and 22 Others v The Commander of the Lesotho Defence Force and Others 49
Freedom of Expression 7 • R v The Nation Magazine and Others 52 • R v Masuku and Another 54 • MISA Zimbabwe and Others v The Minister of Justice 57
International Criminal Justice • Bishop Rubin Phillip and Another v National Conventional 8 Arms Control Committee and Another 60 • Southern Africa Litigation Centre and Another v National Director for Public Prosecutions and Others 61 • Mail and Guardian Media Limited and Others v Chipu NO and Others 65 • Consortium for Refugees and Migrants in South Africa (CoRMSA) v President of the Republic of South Africa 67 • Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others 69
Rule of Law • Law Society of Botswana and Motumise v 9 The President and Others 74 • Hashatsi v The Prime Minister and Others 76
SALC CASE BOOK SALC CASE BOOK Foreword
he Southern Africa Litigation Centre consumers. In this respect, accessibility goes (SALC) was officially launched on the beyond the simple availability of laws and T20th June 2005 originally as a joint formal structures of dispute settlement [...] It initiative of the International Bar Association looks at issues of access to basic information (IBA) and the Open Society Initiative for on the legal system, the rules themselves, Southern Africa (OSISA). It was launched the language, institutional culture and as the first organisation dedicated to the law reform. There is no doubt that these training and support of lawyers litigating qualitative aspects of access to justice speak human rights and rule of law issues in directly to issues of basic human rights with southern African countries. which the SALC is concerned.” As part of SALC’s launch in 2005, retired Ten years on and SALC has established South African Constitutional Court Judge itself as a regional NGO which uses public Richard Goldstone highlighted the need interest litigation in domestic courts in ten for specialised training in human rights southern African countries to realise and advocacy: “In the new democracies of our advance the rights of marginalised and region, constitutionalism and the protection vulnerable groups and to strengthen the rule of fundamental human rights are areas in of law. which our lawyers have not been trained, SALC aims to increase public awareness either academically or in practise. It is a within southern Africa of the potential learning curve for us all. The history of legal and importance of litigation and legal activism in South Africa has demonstrated systems in vindicating human rights. SALC the importance of the careful selection of aims to enhance the quality of arguments cases that are on firm ground, both morally made before domestic courts, and to and legally. In providing training in these ensure such arguments are supported by areas, this new Centre will, I am confident, rigorous research and applicable authority. play a crucial role”. In so doing it aims to secure authoritative Also presenting at the launch was court judgments establishing strong legal then-Botswana High Court Judge Athaliah precedents that uphold and protect human Molokomme, who is currently the Attorney rights and the rule of law. General of Botswana. Justice Molokomme as This case book is a reflection of SALC’s part of her address stated: “I have previously cases and importantly the legal successes had occasion to observe that access to of the organisation’s various thematic focus justice can be understood in many different and programme areas. This case book is senses. The most popular sense in which dedicated to the current and former staff the term is used refers to the extent to which members, interns and volunteers who have the formal structures of the legal system, contributed to the body of work which has such as courts, as available, are adequately established SALC as a leading southern resourced, efficient, and easily accessible African human rights organisation. to the public. Another aspect of access to justice, which can be said to be more Kaajal Ramjathan-Keogh qualitative, refers to the extent to which the Executive Director legal system actually delivers justice to its May 2016
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SALC CASE BOOK 3 1 WOMEN’S LAND AND PROPERTY RIGHTS
Masupha v Senior Resident Magistrate for the Subordinate Court of Berea and Others
A first-born female child of a chief challenged the constitutionality of the male-only succession of the children of chiefs to chieftainship under the Lesotho Chieftainship Act.
Country: Factual Background main application, upholding Mr Lepoqo Masupha’s nomination. Lesotho Ms Senate Gabashane Masupha is the first- Programme Area: born and only child of the late Principal Chief of ‘Mamathe, Thaba-kubu and In the High Court, sitting as the Women’s Land and Constitutional Court Property Rights Jorotane, David Gabashane Masupha and his wife, Chieftainess Masenate Gabashane In April 2010, Ms Senate Masupha brought Years: Masupha. When Chief David Masupha a fresh application to the High Court, sitting 2010 – passed away in August 1996, his wife, as the Constitutional Court. She challenged Chieftainess Masupha became Principal the constitutionality of the Chieftainship Act PARTNERS Chief. The Chieftainess passed away on 6 insofar as it could be interpreted to preclude December 2008, leaving the position of first-born female children from succeeding Federation of Women chief vacant. At a meeting to determine the to the position of chief. She argued that Lawyers (FIDA), Lesotho successor to the chieftainship, a Mr Lepoqo as the first-born child of a chief she is Women and Law in Masupha, claiming to be a younger child entitled to be considered for succession to Southern Africa and son of the late Chief David Masupha chieftainship in terms of the Chieftainship (WLSA - Lesotho) (born of a subsequent relationship) was Act, read with the non-discrimination nominated. guarantees and the right to equality before the law enshrined in the Constitution. She In the Magistrates Court submitted that if the Act is interpreted to In February 2009, the younger brother of deny women the right to succeed, it would the late Chief David Masupha, Mr Sempe violate the constitutional rights to equality Masupha, instituted proceedings in the and freedom from discrimination. Ms Magistrates Court seeking to challenge Masupha also argued that there was no rule Mr Lepoqo Masupha’s appointment. Ms in customary law denying women the right Senate Masupha was neither cited in to succeed to chieftainship. the proceedings nor given notice of the SALC intervened in the matter as proceedings. amicus curiae and submitted that if the Once becoming aware of the legislation was interpreted to deny women proceedings in early 2010, Ms Masupha the ability to succeed to chieftainship, it applied to intervene as an interested party. would violate the Lesotho Constitution The Magistrate dismissed her application, as well as Lesotho’s international and holding that under Lesotho law, women regional obligations, including the rights had no direct and substantial interest to be free from discrimination and to in succession matters. The Magistrate equality. SALC advanced an interpretation further dismissed Mr Sempe Masupha’s of the Constitution’s explicit exemption of customary law from the prohibition
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against discrimination as inapplicable in therefore held that Ms Masupha’s unmarried this instance because the infringement status was the cause of any discrimination. of the right to equality is arbitrary and The Court held that the Chieftainship irrational and, as the exclusion of first-born Act was merely a restatement of the daughters’ succession is legislated in the customary law rules in Lesotho, therefore Chieftainship Act, the provision does not there was no conflict with the Constitution amount to “customary law”. SALC submitted as it met the criteria for exclusion from in addition that the discrimination against the discrimination prohibition. The Court women resulted in a disproportionately high reasoned that Ms Masupha had not been impact of HIV/AIDS on women, fueling the discriminated against on the basis of her epidemic. sex. However the Court stated that even The respondents, including relatives if it had found discrimination that would who believed that they were entitled to have been justified as the country would be succeed to chieftainship and the Attorney entitled to “entrench inequality if historical General, argued in part that chieftainship circumstances so require.” The Court held is a customary law institution and thus the that any preferential treatment given to sons right to be free from discrimination does of chiefs amounted to “mere differentiation”. not extend to it. Section 18 of the Lesotho In a separate concurring judgment, Constitution, which prohibits discrimination, Mahase J held that the Chieftainship Act makes an explicit exception for customary was discriminatory toward Ms Masupha and law. all other unmarried women in her position. In a unanimous judgment, the However Judge Mahase concluded that the Constitutional Court, per Monapathi J, legislature must have been aware of this found that the customary law of Lesotho discrimination and of the customs of the did not prohibit all women from succeeding Basotho people when drafting the Act, and to chieftainship: women married into a that the Court must defer to the legislature’s chiefly family are entitled to succeed as judgment. chiefs at their husbands’ passing. The Court
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In the Court of Appeal Court did not need to make reference to the international treaties referred to by the Ms Masupha appealed the decision of the amici. High Court, and on 1 April 2014 the matter The Court held further that because the was heard by the Court of Appeal. Three discrimination against female children of a organisations intervened in the appeal chief is constitutionally sanctioned by virtue as amici curiae: SALC, the Federation of being customary law, there was a rational of Women Lawyers (FIDA-Lesotho) and connection between the differentiation Women and the Law in Southern Africa between female and male children and (WLSA-Lesotho). the purpose of the legislation and it is In a unanimous judgment on 17 April therefore not in conflict with the right to 2014, the Court dismissed the appeal. equality before the law. This conclusion was While the Court held that customary reached by reference to the framers of the law had developed to the extent that Constitution and the Court’s acceptance women could succeed to chieftainship in that they intended communities living their own right, this did not extend to the according to customary law to be governed succession of first-born daughters. The by those laws. Court upheld the constitutional validity of Ms Masupha, SALC and FIDA have now the Chieftainship Act as an exception to brought a complaint before the African the right to be free from discrimination. It Commission, arguing that the Chieftainship rejected Ms Masupha’s argument that the Act and the Constitutional exclusion of Chieftainship Act did not fall under this customary law from the protection against exclusion because it was statutory rather discrimination infringes rights protected by than customary law, and held that the the African Charter for Human and Peoples’ legislation was merely a codification of the Rights and the Protocol to the African customary law. Charter on the Human and Peoples’ Rights The Court held that international on the Rights of Women in Africa (Maputo instruments are merely interpretative aids, and are not a source of rights for Lesotho Protocol). citizens. It held that the interpretation of the Chieftainship Act was clear and so the
“One can therefore say that the differentiation in question was taken up by the Act in order as a matter of necessity to regulate the affairs of the communities which live according to customary law. This is not a case of ‘mere differentiation’. … The inequality of which the appellant complains is the result … of a constitutionality sanctioned discrimination.” (Court of Appeal, Scott AP, 17 April 2014)
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Mmusi and Others v Ramantele and Another
Three sisters challenged the application of a customary law in Botswana, which restricted the inheritance of a family home to the youngest son, on the grounds that it unjustifiably discriminated against them on the basis of their gender.
Country: Factual Background Court of Appeal which held that the last born son inherits the property and ordered Botswana This case begun around a dispute over a Mmusi to vacate the homestead. Programme Area: homestead in Mafhikana Ward in Botswana. After the death of the homeowner, his Women’s Land and In the High Court Property Rights property and livestock was divided between his widow and children, and his widow Mmusi and her sisters then approached the Years: occupied the homestead until her death High Court in 2012, seeking a declaration 2012 – 2014 36 years later. A few years after her death that the Ngwaketse customary rule that the one of their daughters, Edith Mmusi, youngest son inherits intestate property PARTNERS moved back to the homestead, and lived violated their right to equal protection of there, undisturbed, for twenty years until the law and was therefore unconstitutional. Rantao Kewagamang a dispute arose as to the rightful owner The sisters did not rely on the additional Attorneys of the property. Mmusi’s nephew, Molefi right to equality in the Constitution, as that Botswana Network on Ramantele, the grandson of Mmusi’s father provision permits discrimination in the Ethics, Law and HIV and another woman, argued that he had application of customary law. (BONELA) rightfully inherited the property from his Dingake J looked at the requirements own father who had obtained it from for customary law, and held that, as the Mmusi’s brother. Ramantele maintained Customary Law Act defined customary that Mmusi’s brother was the rightful heir in law as a law of a community that was accordance with the Ngwaketse customary compatible with the provisions of written rule that the homestead be inherited by law, morality, humanity or natural justice, the owner’s youngest son. Mmusi and her the question for the Court was whether sisters argued that they had inherited the the Ngwaketse inheritance law was property from their father, and that the compatible with these principles. The customary law that Ramantele was relying Judge concentrated heavily on the right on was unconstitutional. to equality in the Constitution, particularly Ramantele took the dispute with the on what constitutes unfair discrimination, sisters to the Customary Court in Kanye, and undertook a thorough analysis of which found in favour of Ramantele. The comparative jurisprudence. He also sisters then appealed that decision to the analysed Botswana’s obligations under Higher Customary Court which held that international law and held that the country’s the property belonged to all the children signature of various treaties protecting and referred the matter back to the elders to women’s right indicated a commitment to determine which child should be appointed eliminate gender inequality. to manage the property. Ramantele The Court concluded that to the extent appealed this decision to the Customary that the customary rule denies the right of
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female children to inherit intestate solely reiterated that the Higher Customary Court on the basis of their sex it violates their had correctly resolved the dispute and constitutionally protected right to equal found that the property belonged to all the protection of the law. children. One significant difference between In the Court of Appeal Lesetedi JA’s judgment and Dingake J’s in Ramantele appealed the High Court the High Court was how the two Courts decision, and the Court of Appeal heard approached the definition of a customary oral argument on 19 July 2013. Two law. The Court of Appeal held that a practice months later, Lesetedi JA delivered a as a rule only constituted a customary law unanimous judgment holding that the if it was compatible with the provisions property belonged to all the children of of written law, morality, humanity and the homeowner, and that the heirs had to natural justice. Any supposed customary determine themselves who would manage practice that was incompatible with those the homestead on behalf of the others. principles simply was not a customary law. This was the same finding that the Higher Consequently, as the disputed Ngwaketse Customary Court had reached. inheritance law denied female children the Lesetedi JA’s judgment focused on right to inherit their father’s property the the facts of the property dispute and the law infringed the principles of fairness and nature of the disputed customary law, and could not be regarded as an enforceable criticised the High Court for unnecessarily customary rule. Lestedi JA also explained characterising the issue as a constitutional that, when the constitutionality of an act is one. Lesetedi JA also remarked that if the raised, it is important to ascertain whether matter had been a constitutional one, it there is any possible interpretation of the could not have been resolved without legislation that would be constitutional; reference to the right to equality itself, it is only when no such interpretation is and so the High Court was wrong in possible that the law would be declared looking at the right to equality before the unconstitutional. law in isolation from the right to equality. Lesetedi JA commented on the flexible The Court of Appeal also criticised the nature of customary law, and said that Customary Court of Appeal for failing to because it is not static or codified it is able accurately understand the finding of the to adapt and modernise with the times Higher Customary Court. Lesetedi JA and reflect the prevailing social attitude of
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a community. The Judge remarked that that the youngest son would inherit the changes on the national scene, such as the property. recognition of the constitutional values The Court of Appeal, instead, set out of equality and the increased number of the requirements Ramantele would have to women participating as equals in the public meet in order to prove that he had, in fact, and private sphere, means that there was inherited the homestead. Lesetedi JA found no rational basis for retaining old practices that the property had never been distributed which go against these current value to the sisters’ brother, and so that, therefore, systems. Ramantele had never lawfully received the The Court held that Ramantele was homestead. The issue was not whether he wrong in arguing that there was a fixed was constitutionally entitled to receive it Ngwaketse customary rule that the last on the back of a discriminatory law; it was born son inherits the family homestead. rather that he had not, in fact, ever had Indeed, Lesetedi JA pointed out that, in this lawful possession of the property. case, there was significant disagreement The Court of Appeal declared that the among the customary courts as to who Ngwaketse law of inheritance does not should inherit the homestead, and so it prohibit any female children from inheriting could not be said to have been a set rule. their deceased parents’ homesteads, and Lesetedi JA found that the reality was that, in the present case, all the children that the customary rule calling for the inherited the homestead. Lesetedi JA inheritance of the family home to the ordered that should the surviving children youngest-born son was based on the view be unable to agree amongst themselves that the youngest son never leaves the who will maintain the property the parents’ home except when he marries or is dispute should be referred to elders for banished, and that when those conditions resolution, and then, failing that, to a person were not present it was not automatic nominated by the Kgosi.
“A customary rule to receive the status of a law and thus enforceable by the courts must not be inconsistent with the values of or principles of natural justice. It must not be unconscionable either of itself or in its effect. Nor should it be inhuman. Customary law must be applied in accordance with the set out principles of morality, humanity or natural justice with the object of achieving justice and equity between the disputants.” (Botswana Court of Appeal, Lesetedi JA, 3 September 2013)
SALC CASE BOOK 9 1 WOMEN’S LAND AND PROPERTY RIGHTS
The Registered Trustees of the Women and Law (Malawi) Research and Education Trust v Attorney General
A women’s rights organisation in Malawi sought a declaration that a provision of the Married Women’s Property Act was unconstitutional as it did not provide for equal distribution of property at the dissolution of a marriage.
Country: Factual Background In the High Court Sitting as Malawi The trustees of Women and Law Constitutional Court Programme Area: in Southern Africa (WLSA-Malawi) SALC and the Canadian HIV/AIDS Legal Women’s Land and approached the High Court seeking a Network had applied to be admitted as Property Rights declaration that section 17 of the Married amici curiae. At one of the first hearing Women’s Property Act was inconsistent dates, the Court indicated that it was Years: with the right to equality and women’s concerned that only foreign groups had 2008 – 2014 property rights enshrined in the Malawi made an application for amicus curiae Constitution, to the extent that it did not admissions, and requested that this PARTNERS provide for equal distribution of marital case be publicised in an attempt to get property at the dissolution of a marriage. submissions from local organisations as Women and Law in WLSA-Malawi’s alternative argument amici. At a subsequent court hearing, Southern Africa was that the legislation should be read the Malawi Human Rights Commission Research and in light of the constitutional provisions brought an application to be admitted as Education that safeguard women’s property amicus. An individual, Ralph Kasambara, Trust (WLSA-Malawi) rights. In addition, the trustees sought a indicated that he also sought an amicus Canadian HIV/AIDS declaratory order that the government admission on the basis of his human Legal Network was obliged to adopt legislation to rights law qualifications and his position promote gender equality and address as a Malawi husband and parent who Malawi Human Rights inequalities in society and to eliminate would likely be affected by the outcome Commission laws that discriminate against women of the case. The Attorney General, the on the basis of their gender or marital respondent in this matter, indicated that status. In particular, WLSA-Malawi argued she did not object to the admission of the that the government was obliged to pass Malawi Human Rights Commission and legislation that addressed the situation Kasambara, but that she was concerned of women being deprived of a share about the admission of SALC and the of matrimonial property on the basis Canadian HIV/AIDS Legal Network that they had not made a monetary because they were not based in Malawi. contribution to the acquisition of the WLSA-Malawi expressed no opposition property. to the admission of any of the four amici applications.
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In December 2009, the Court heard between men and women in respect of arguments on standing and stated that it marital property. The organisation further would benefit from the expertise that all submitted that many women had made four amici could bring, and so accepted complaints to it about their dispossession of all the applications. The Attorney-General property following a divorce. indicated during the proceedings that The Court gave its judgment on she believed that this case had been 28 February 2014 and held that, in the brought to Court prematurely as there absence of a woman who had experienced was no indication from WLSA-Malawi prejudice as a result of the legislation, the whether they had received any complaints interest WLSA-Malawi had in the matter from women who had been prejudiced was remote and therefore dismissed its under the Married Women’s Property application. Act. WLSA-Malawi submitted that it had The matter was not appealed as the locus standi as a public interest action, new Marriage, Divorce and Family Relations and that its experience working in Malawi Act has addressed many of substantive and the greater southern Africa region concerns raised by the case. had demonstrated vast inequalities
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GK v K and Others
The biological father of a child born out of wedlock challenged the Adoption Act to the extent that it denied him the right of consent to the adoption of his child to a third party, regardless of the child’s best interests.
Country: Factual Background requirement of his consent. He argued that the provision violated his rights to equality, Botswana GK was the biological father of a child freedom from discrimination and freedom born out of wedlock. While not remaining Programme Area: from inhuman and degrading treatment, in a romantic relationship with the child’s Children’s Rights and that the limitation to his rights was mother, he had nevertheless played an unjustifiable as it did not advance the child’s Years: active role in the child’s life from her best interests in all circumstances. 2014 – 2015 conception, through providing financial and None of the respondents opposed material support, having the child live with the application but the Court invited the him and his other children for a period of PARTNERS Attorney General to make submissions. The time at the mother’s request, ensuring the Attorney General argued that there was The Botswana child’s schooling, and in protecting the child no violation of the applicant’s rights and Network on Ethics, from harm. that the provision was in any case an effort Law and HIV/AIDS GK became aware that his child had to codify the common law position that a (BONELA) been adopted or was in the process of child born out of wedlock belongs to the being adopted by a third party. He sought to mother’s family. Ndadi Law Firm prevent the child from being adopted as he On 2 February 2015, the High Court, wished to continue to play a parental role in ruled in GK’s favour. The Court declared the child’s life. the relevant provision of the Adoption Under Botswana’s Adoption Act, only Act unconstitutional insofar as it does not the consent of a child’s mother is required require the consent of the father in the for the lawful adoption of a child born out adoption of his biological child born out of of wedlock. GK’s child could therefore be wedlock in all cases. The Court ordered that adopted, terminating his parental rights, in the child should not be adopted without the absence of his consent and irrespective GK’s consent and any adoption of the child of whether the termination of his parental that may have been already made, was rights was in the child’s best interests. rescinded. The Court held that the exclusion of In the High Court the requirement for the father’s consent GK filed an application in the High Court discriminated against GK on the basis challenging the constitutionality of the of his gender and marital status in a provisions of the Adoption Act that provided constitutionally impermissible manner. for his child to be adopted without the
“[T]he father’s interest in the companionship and generally to take care of his child is cognizable and substantial and it would not make sense for the law to regard such interest as inconsequential, when it has a direct bearing on the interest of a child. The further effect of the section sought to be impugned is that the consent of the father is necessary where he is married and not necessary where he is not – and the underlying purpose, for such a stand point, that potentially has grave consequences for the best interest of the child, has not been shown to be necessary or reasonable.” (High Court, Dingake J, 2 February 2015)
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R v The Republic
After a women serving a sentence for a conviction of robbery gave birth to a baby in prison, she brought an application to be released from prison on the grounds that her release was in the best interests of the child.
Country: Factual Background a child, and that state parties “recognise the right of every child to a standard of Malawi On 17 March 2015, R was convicted of two living adequate for the child’s physical, counts of burglary and one of theft, and Programme Area: mental, moral and social development”. sentenced to 48 months and 15 months Children’s Rights The African Charter on the Rights and imprisonment with hard labour respectively. Welfare of the Child specifically refers Years: She was required to serve 21 months before to the rights of children of imprisoned 2015 she would be eligible for parole. Although R mothers, in which states parties undertook was pregnant during the trial, as she did not to establish and promote measures PARTNERS have legal representation she did not know alternative to institutional confinement that this was a factor to mention to the trial Centre for Human for nursing mothers. The United Nations court. Seven months into her sentence she Rights Education, Minimum Standard Rules for the Treatment gave birth, and the child remained in prison Advice and of Prisoners provides that nursing infants with her (and would do so until the end of Assistance (CHREAA) should be accommodated in a nursery her sentence) as there was no suitable carer staffed with qualified personnel and should Mambulasa and for the child outside of prison. be provided with suitable health care. Associates In the High Court In Malawi, all sentences imposed by a Magistrates Court must be referred to the R then brought an application arguing that High Court for review and confirmation. In as the physical conditions in prison were practice, many convicted prisoners spend not conducive to healthy development of many months in jail before their sentences an infant, and that a child has a right to be are reviewed, and there was a concern raised by their own mother, it was in the that R – whose sentence had not yet been best interests of the child that the mother’s reviewed – would remain in prison with custodial sentence be commuted. The her infant for a significant period of time. R Constitution of Malawi guarantees that highlighted that although the Constitution “[a]ll children, regardless of the conferred on her baby the right to care, circumstances of their birth, are entitled the lack of resources in Malawi prisons to equal treatment before the law, and meant that the right was at risk of not being the best interests and welfare of children realised. R therefore sought bail pending the shall be the primary consideration in all review of her sentence by the High Court. decisions affecting them,” and that The High Court held that the interests “[c]hildren have the right to know, and to of the child would be better served outside be raised by, their parents.” R argued that prison, and ordered that R and her child be Malawi had assumed obligations to protect released on bail pending the determination the rights of the child, and particularly the of the review of her sentence. The Court rights of children of women in custody imposed a non-cash bond on R, and under international law. The United required that she furnish two sureties for Nations Convention on the Rights of a the bond, surrender all travel documents, Child provides that states should respect report to the local police station, and not the rights and duties of parents in raising leave her district.
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LM and Others v Government of Republic of Namibia
Three women sued the Namibian government after learning that they had been sterilised during Caesarean sections, arguing that the sterilisations took place without their informed consent and as a result of their HIV status.
Country: Factual Background had explained the procedure to NH. Namibia The three cases, though initially filed In 2005, LM was admitted to Oshakati individually in 2009, were later joined and State Hospital to deliver her third child Programme Areas: heard together. The women, all living with and, after fourteen hours of labour, signed Sexual and HIV, claimed that they had been sterilised a form consenting to a Caesarean section Reproductive Health at public hospitals in Namibia without and a bilateral tubal ligation (a sterilisation Rights; HIV and their informed consent when they were procedure) while on a stretcher outside Health Rights admitted for Caesarean sections. All three theatre. Hospital records did not indicate women argued that any supposed consent Years: what information was given to her as part to the sterilisation procedures was coerced 2008-2014 of the consent process prior to the bilateral as they had not understood the language tubal ligation procedure, but LM testified in which the procedure was explained, PARTNERS that a nurse told her that she, like all were misled about the procedure they were women living with HIV, would be sterilised. Legal Assistance consenting to, and because they had been In 2007, MI was admitted to Oshakati Centre (LAC) told by doctors that they could only receive State Hospital and signed a standard a Caesarean section if they were sterilised Namibian Women’s consent form for surgery. She signed a at the same time. Health Network second form at the height of her labour, The women sued the government for (NWHN) which indicated consent for a Caesarean negligent harm and submitted that they section and bilateral tubal ligation. There AIDS and Rights were discriminated against because of were no records to show that MI had been Alliance of Southern their HIV status. They argued that their counselled on the proposed sterilisation Africa (ARASA) constitutionally protected rights to life, or on other forms of contraception. MI liberty, dignity, and to found a family had testified that she had been told that she been infringed. would be sterilised whether she liked it or not, and that the hospital staff made it clear In the High Court that it was policy to sterilise all women living with HIV. The High Court was faced with two issues: In 2005, NH was admitted to Katutura whether the women had given informed State Hospital and signed a form consent to the sterilisation procedures; and consenting to a Caesarean section and a whether they were discriminated against bilateral tubal ligation after a prolonged due to their HIV status. labour. The forms were signed on a The state argued that as all three stretcher while NH was waiting to go into women had signed consent forms for the theatre. The form in the hospital records sterilisations they had, in fact, consented indicating consent for the sterilisation was to the procedures. The Court held that the signed by the surgeon confirming that he state had to establish that all elements of
18 SALC CASE BOOK SEXUAL AND REPRODUCTIVE HEALTH RIGHTS 3
consent existed for them to succeed. Hoff had experienced unfair discrimination. J explained that informed consent requires The High Court judgment has been knowledge, appreciation, and agreement widely used in advocacy efforts aimed at to all aspects of the transaction and its addressing practices of coerced sterilisation consequences, and that the consent must in Africa. Following the judgment, on 5 be given freely and voluntarily and should November 2013, the African Commission not have been induced by fear, fraud or adopted a resolution on involuntary force. The Court held that the question sterilisation and the protection of human of whether consent had been given was rights in access to HIV services. a factual one, and that it was therefore The state appealed the judgment, and obliged to determine whether consent was it was heard by the Supreme Court on 17 properly and voluntarily obtained in the March 2014. case before it. The High Court found that the state In the Supreme Court was not able to demonstrate that they In the unanimous judgment Shivute CJ had provided the women with sufficient emphasised the importance of the right information to enable them to make an to found a family, and that the decision informed choice on sterilisation, and that of whether or not to be sterilised was the sterilisations had therefore occurred therefore “of great personal importance without the women’s informed consent. to women”. He explained that this meant However, the Court also found that on that sterilisation could take place only with the evidence put before it, it was unable to informed consent. The Court held that a make a finding that the women had been woman must be in a position to understand sterilised solely because of their HIV status, the nature and the consequences of and so dismissed the claim that the women
SALC CASE BOOK 19 3 SEXUAL AND REPRODUCTIVE HEALTH RIGHTS
the sterilisation procedure and have the who testified for the state, accusing them capacity to consent for such consent to of medical paternalism in some of their constitute informed consent. The Court remarks. found that in the absence of hospital The Supreme Court concluded that records detailing what information had the consent given by the women for the been given to the women before their sterilisation procedures was invalidated sterilisation procedures, it could not accept by their lack of capacity to consent during that sufficient information had been labour, and that the consent was merely provided to the women. written and not informed consent. The Shivute CJ referred to evidence of a Court referred the matter back to the gynaecologist who explained that the pain High Court to determine the quantum of a woman experiences in labour is of such damages to be paid to the three women. an intensity that she may not be able to The Court did agree with the High Court think rationally, and accepted his evidence that there was no evidence that the women that it is not advisable to obtain consent had been sterilised purely on the basis of for sterilisation during labour. The Court their HIV status. was particularly critical of the doctors
“There can be no place in this day and age for medical paternalism when it comes to the important moment of deciding whether or not to undergo a sterilisation procedure. The principles of individual autonomy and self-determination are the overriding principles towards which our jurisprudence should move in this area of the law.” (Supreme Court of Namibia, Shivute CJ, 3 November 2014)
20 SALC CASE BOOK SEXUAL AND REPRODUCTIVE HEALTH RIGHTS 3
Mapingure v Minister of Home Affairs and Others
A woman who fell pregnant after a rape sued the state for damages and maintenance of the child, arguing that the government officials had not done enough to assist her in obtaining emergency contraception or a termination of pregnancy following the rape.
Country: Factual Background abortion. A prosecutor and magistrate erroneously told her that she could not Zimbabwe On 4 April 2006, Mildred Mapingure acquire the magisterial certificate required was attacked and raped by robbers at Programme Area: for termination until the rape trial had been her home in Chegutu, Zimbabwe. She Sexual and completed. When she eventually obtained a immediately lodged a report with the Reproductive Health certificate of termination on 30 September, police and requested that she be taken Rights it was no longer safe to carry out the to a doctor in order to access medication termination, and Mapingure gave birth on Years: to prevent pregnancy and any sexually 24 December 2006. 2013 – 2014 transmitted infections. After some delays at the police station she was taken to the PARTNERS hospital, but the doctor treated only a knee In the High Court Zimbabwe Women injury stating that he could only provide As a result of her failed attempts at Lawyers Association medicine to prevent pregnancy (emergency prevention and termination of pregnancy (ZWLA) contraceptive) and any sexually transmitted following the rape, Mapingure approached infections (STI prophylaxis) in the presence the High Court citing the Ministers of of a police officer. Mapingure repeatedly Home Affairs; Health and Child Welfare; went to the police in the days that followed and Justice, Legal and Parliamentary Affairs but was advised that the police officer as respondents. She claimed damages in mandated to deal with her case was not the sum of US$10 000 for physical and available. When she returned to the hospital, mental pain as well as US$41 904 as costs the doctor insisted that she could only give of maintaining the child that was born as a her the requested medication if a police result of the rape. report was provided. Three days later None of the state respondents responded Mapingure was eventually accompanied to to the suit, but the High Court nonetheless the hospital by another police officer but handed down judgment on 12 December was informed that she could not receive 2012 in favour of the state, holding that the medication she had requested as the Mapingure’s misfortune was a result of her prescribed 72 hours within which the own ignorance as to the correct procedure emergency contraception is recommended to follow in order to undergo a termination to be administered had passed. of pregnancy and not due to any wrong- On 5 May 2006, Mapingure discovered doing on the part of the respondents. The that she was pregnant, and sought a High Court held that it was not the mandate termination of pregnancy under the of the officials involved to advise Mapingure Termination of Pregnancy Act which on the right procedures to follow to ensure permits victims of rape to undergo an that she obtained the services she needed.
SALC CASE BOOK 21 3 SEXUAL AND REPRODUCTIVE HEALTH RIGHTS
The Court also failed to differentiate legal duty to assist Mapingure in her efforts between emergency contraception and to prevent her pregnancy. The Court held termination of pregnancy. that there was a causal link between the negligence of the officials and the pregnancy In the Supreme Court occurring. The Court therefore held that the Mapingure, with the support of Zimbabwe Ministers for Home Affairs and Health and Women Lawyers Association and technical Child Welfare were liable to pay damages support from SALC, appealed the High Court to Mapingure for the harm that she had judgment to the Supreme Court which suffered. The case was referred back to handed down judgment on 25 March 2014. the High Court for a determination of the The Supreme Court explained that it had quantum of these damages. two questions to answer: whether or not However, the Court found that there was there was negligence on the part of officials no duty on the part of the state officials to involved in the manner in which they dealt assist Mapingure in obtaining a termination with Mapingure’s predicament; and, if once the pregnancy had been confirmed. there was negligence, whether Mapingure Patel J held that the obligations of the suffered actionable harm as a result and thus authorities did not extend to assisting whether the state was liable for damages for Mapingure in obtaining a certificate of pain and suffering and maintenance of the termination, and did not find that the child. prosecutor and magistrate were negligent The Court held that the doctor and the in providing Mapingure with incorrect police officers had failed in their duty to information on how she could obtain that assist Mapingure in ensuring that medical certificate. Consequently, the Court held treatment was received immediately that Mapingure was not entitled to receive after her rape so that pregnancy could maintenance for the child, or damages for be prevented. Patel J explained that a harm suffered as a result of the continuation reasonable person in the position of the of the pregnancy. The Judge did concede doctor should have foreseen that a failure that the Termination of Pregnancy Act to assist Mapingure in accessing medication lacked clarity as to what steps a victim would probably result in pregnancy. He should take in order to access a certificate to went on to find that the police officers had a lawfully terminate a pregnancy.
“It is apparent from the foregoing that s 5(4) of the Act is ineptly framed and lacks sufficient clarity as to what exactly a victim of rape or other unlawful intercourse is required to do when confronted with an unlawful pregnancy. This subsection obviously needs to be amended.” (Supreme Court of Zimbabwe, Patel JA, 25 March 2014)
“[T]he underlying rationale of all of the decided cases vis-à-vis the role of the police is that their duty to act cannot be confined to their statutorily prescribed functions. In the specific circumstances of any given case, it may be legally incumbent upon them to act outside and beyond their ordinary mandate, so as to aid and assist citizens in need, in matters unrelated to the detection or prevention of crime. Consequently, where such a legal duty is found to exist, and harm that is foreseeable eventuates from the failure to prevent it, the victim of that harm may be entitled to pursue and obtain appropriate compensation through a claim for damages, having regard in every case to considerations of public policy.” (Supreme Court of Zimbabwe, Patel JA, 25 March 2014)
22 SALC CASE BOOK 4 LESBIAN, GAY, BISEXUAL AND TRANSGENDER (LGBT) PERSONS’ RIGHTS
SALC CASE BOOK 23 4 LESBIAN, GAY, BISEXUAL AND TRANSGENDER (LGBT) PERSONS’ RIGHTS
Rammoge and Others v Attorney General of Botswana and Another
An organisation promoting the rights of lesbian, gay and bi- sexual persons in Botswana brought an application in the Botswana High Court to be formally registered in terms of the law, after their registration application was denied based on the fact that consensual same-sex acts are illegal in Botswana.
Country: Factual Background good order. The Court noted that one of Botswana In February 2012, Lesbians, Gays and LEGABIBO’s objectives was to carry out Bisexuals of Botswana (LEGABIBO) made Programme Areas: political lobbying for equal rights and an application for registration as an Lesbian, Gay, Bisexual decriminalisation of same-sex relationships, organisation to the Department of Civil and Transgender but held that lobbying and advocacy and National Registration, as required (LGBT) Persons’ are neither sinister nor unlawful as they by the Societies Act. The application Rights; Freedom of merely seek to persuade authorities to was rejected on the grounds that the Association institute legislative reform. Rannowane J country’s constitution “does not recognise made it clear that there was a difference Years: homosexuals” and that any registration between engaging in unlawful same- 2012-2016 would violate the Societies Act which sex relationships and advocating for the prevents the registration of organisations decriminalisation of those relationships, PARTNERS that have any unlawful activity as their and that, in a democracy, seeking legislative purpose. Following an unsuccessful appeal Lesbians, Gays reform can never be a crime. of this decision to the Minister of Labour and Bisexuals The Court concluded that the decision and Home Affairs, twenty individuals of Botswana to refuse to register LEGABIBO was wrong interested in joining LEGABIBO launched (LEGABIBO) as it was based on the misconception that proceedings in the Gaborone High Court, the objective of the organisation was to Botswana Network seeking a review of both these decisions to engage in unlawful conduct, rather than to, on Ethics, Law and refuse to register the organisation. inter alia, advocate for the decriminalisation HIV/AIDS (BONELA) In the High Court of homosexual practices. Rannowane J Dow and Associates stated that the decision was unreasonable On 14 November 2014, Rannowane J, with as it prevented the lawful advocacy for Bayford and reference to LEGABIBO’s constitution, found legislative reform. Associates that its objectives were harmless, and in The Court then turned to the question fact beneficial as they promoted human of whether the refusal to register LEGABIBO rights, public health, and a culture of self- was a violation of constitutionally protected reliance. Consequently, the Court held that rights. Rannowane J unequivocally the objectives of LEGABIBO did not offend confirmed that gay and bisexual individuals the Societies Act, which permits the refusal were protected by the Constitution, and to register an organisation on the grounds in doing so rejected the government that the organisation seeks to further an authorities’ contention that the Constitution unlawful purpose, or that its conduct would did not recognise homosexuals and be incompatible with peace, welfare and confirmed that it is not unlawful to be
24 SALC CASE BOOK LESBIAN, GAY, BISEXUAL AND TRANSGENDER (LGBT) PERSONS’ RIGHTS 4
attracted to someone of the same sex. The to lesbian and gay individuals and that Court held that denying gay and bisexual they were not entitled to the fundamental individuals the opportunity to lobby for rights ascribed to “every person” in the decriminalisation of homosexuality was Constitution. a clear violation of their rights to equal On 16 March 2016, a full bench of the protection before the law, freedom of Botswana Court of Appeal ordered the expression, assembly, and association. Registrar of Societies to takes steps to The High Court set aside the decisions register the organisation Lesbians, Gays made by the Director of Civil and National and Bisexuals of Botswana (LEGABIBO). The Registration and the Minister of Labour Court’s ruling was greeted with jubilation and Home Affairs, and declared that the by the activists who packed the court room applicants were entitled to have LEGABIBO and who had been actively advocating for registered as a society in terms of the the registration of their organisation for Societies Act. many years. The Court of Appeal confirmed that In the Court of Appeal it is the democratic right of every citizen On 15 January 2016 a full bench of the to advocate for changes in the law and Court of Appeal in Botswana heard held that the State’s reasons for refusing arguments in the state’s appeal of the High to register LEGABIBO was accordingly Court’s decision. During the hearing, the unconstitutional. The Court of Appeal Attorney General argued that the right emphasised that “all persons, whatever their to freedom of association did not extend sexual orientation, enjoy an equal right to
“The objects of LEGABIBO as reflected in the society’s constitution are all ex facie lawful. They include carrying out political lobbying for equal rights and decriminalisation of same sex relationships. Lobbying for legislative reform is not per se a crime. It is also not a crime to be a homosexual.” (High Court, Rannowane J, 14 November 2014)
SALC CASE BOOK 25 4 LESBIAN, GAY, BISEXUAL AND TRANSGENDER (LGBT) PERSONS’ RIGHTS
form associations with lawful objectives offence is the basis for persecution, stigma for the protection and advancement of and discrimination against gay, lesbian and their interests” and that fundamental rights transgender persons in many countries in applied to “every member of every class of Africa. society”. In coming to its decision, the Court The Botswana Court of Appeal’s noted that the recognition of lesbian, gay judgment signifies the first time an and transgender persons as vulnerable apex court in Africa has provided an individuals in national policies on HIV/ authoritative interpretation on the effect AIDS and in employment legislation, of the criminal laws affecting lesbian and were evidence that “attitudes in Botswana gay individuals, and clarified the common have, in recent years, softened somewhat misconception that homosexuality itself is on the question of gay and lesbian a crime. Referring to the offence of “carnal rights.” Significantly, the Court of Appeal knowledge against the order of nature”, recognised that members of the gay, the Court observed that whilst the offence lesbian and transgender community, whilst has the practical effect of limiting sexual a minority, “form part of the rich diversity activity, “it is not, and never has been, a of any nation” and are fully entitled to the crime in Botswana to be gay”. The same constitutional protection of their dignity.
“Members of the gay, lesbian and transgender community, although no doubt a small minority, and unacceptable to some on religious or other grounds, form part of the rich diversity of any nation and are fully entitled in Botswana, as in any other progressive state, to the constitutional protection of their dignity.” (Court of Appeal, Kirby JA, 16 March 2016)
26 SALC CASE BOOK LESBIAN, GAY, BISEXUAL AND TRANSGENDER (LGBT) PERSONS’ RIGHTS 4
S v M and Another
Two men allegedly took part in an engagement ceremony and were subsequently charged with having carnal knowledge against the order of nature (sodomy) and gross indecency.
Country: Factual Background forced the applicants to undergo medical examinations despite their refusal to do so. Malawi In December 2009, two men allegedly The applicants further requested that any held a traditional engagement ceremony Programme Areas: illegally obtained evidence be excluded at a guesthouse in Blantyre. The two Lesbian, Gay, Bisexual from the criminal trial. On 28 January 2010, were arrested and charged with having and Transgender (LGBT) the then-Chief Justice refused to grant carnal knowledge of any person against Persons’ Rights certification for the matter to be heard on the order of nature and with gross the basis that the criminal proceedings did Years: indecency with another male person. not expressly and substantially relate to or 2009 – 2010 On 4 January 2010, they were refused concern the interpretation and application bail and were subsequently subjected to PARTNERS of the Constitution. medical examinations and psychiatric Centre for the evaluations without their consent. Their Development of People arrest immediately led to an international Criminal Trial (CEDEP) outcry from international organisations, The criminal trial commenced in October 2009. At the close of the state’s case, the International Gay and including Amnesty International, Human defence made submissions for no case Lesbian Human Rights Rights Watch and the International Gay and to answer, on the basis that the state’s Commission (IGLHRC) Lesbian Human Rights Commission. SALC was asked by the Centre for evidence was purely circumstantial. The AIDS and Rights the Development of People (CEDEP) to Court, per Magistrate Usiwa-Usiwa, held Alliance of Southern provide technical assistance to the lawyers that the accused were guilty of sodomy Africa (ARASA) defending the two accused. SALC assisted and gross indecency and that holding otherwise would mean that “the law would Centre for Human in the legal submissions and, with CEDEP fail to protect the community if it admitted Rights Education, and the AIDS and Rights Alliance of fanciful possibilities to deflect the course of Advice and Assistance Southern Africa, conducted advocacy at a justice”. The accused were convicted on 18 (CHREAA) domestic, regional and international level. May 2010 and subsequently sentenced to Constitutional Certification 14 years imprisonment. On 13 January 2010, the prosecutor The advocacy in the case and requests introduced evidence from the medical to the United Nations Secretary General examinations in court. The defence and others to intervene, resulted in the objected and the two accused made an President reluctantly pardoning both application to the High Court which sought accused on 29 May 2010. judicial review of the decision which
“The engagement and the living together as husband and wife of the two accused persons, who are both males, transgresses the Malawian recognised standards of propriety since it does not recognise the living of a man with another as husband and wife. Both these acts were acts of gross indecency.” (Magistrates Court, Usiwa-Usiwa CRM, 18 May 2010).
SALC CASE BOOK 27 4 LESBIAN, GAY, BISEXUAL AND TRANSGENDER (LGBT) PERSONS’ RIGHTS
The People v M and M
Two young men in Zambia were acquitted after being charged with sodomy.
Country: Factual Background had any direct or indirect knowledge of sexual relations between the two accused. Zambia On 5 May 2013, two young men were The police officers who testified relied on arrested in Kapiri Mposhi, Zambia and Programme Areas: hearsay evidence without having conducted charged with the offence of having carnal Lesbian, Gay, Bisexual investigations. The medical doctors knowledge of each other against the order and Transgender who testified could not show that anal of nature (sodomy). In Zambia, this offence (LGBT) Persons’ penetration took place between the two carries a minimum sentence of fifteen years Rights; Prisoners’ accused. The remainder of the witnesses in prison. Rights had known the first accused but not the The men were taken into custody, and second accused and gave contradictory Years: unsuccessfully applied for bail on 22 May evidence about the events leading up to the 2013 – 2014 2013. They then brought a bail application in arrest of the accused. the High Court, which was also refused after At the close of the prosecution’s case a long delay. They remained in detention PARTNERS the defence brought an application for an until their acquittal on 3 July 2014. SBN Legal acquittal of the accused on the grounds Practitioners In the Magistrates Court that the prosecution had not created a prima facie case. Magistrate Mbuzi refused Friends of Rainka The Court proceedings were marked the defence application and ruled that the by numerous procedural irregularities Trans Bantu Zambia defence did have a case to answer. and hurdles faced by the defence. First, (TBZ) The defence called a medical specialist the two men recorded their plea of not to provide expert evidence to address the UNAIDS guilty before they had been given an inherent problems in the State’s medical opportunity to obtain legal representation. evidence. The defence argued that the Second, the defence was hampered by the State medical officers conducted intrusive Zambian practice in subordinate courts examinations of the accused, without their of not requiring the prosecution to share consent and in the absence of their legal information with the defence. This meant representatives. The medical doctors were that throughout the trial the defence was not not trained in forensic medical examinations able to access evidential material held by the and their conclusions were ill-informed and prosecution, including witness statements not supported by medical science. and medical reports. Regular media reports In his judgment Magistrate Mbuzi held of false stories about the men eventually that the prosecution had not proved the case persuaded the Magistrate to order the media beyond a reasonable doubt. He found that to refrain from sensationalist reporting on there was no substantive evidence against the trial. the accused, who were arrested on hearsay The trial commenced on 10 June 2013 and suspicion, and acquitted them on all before Magistrate Mbuzi. The prosecution four charges they faced. called eight witnesses – none of whom
“Suspicions largely attributed to PW1 as to the relationship between A1 and A2 is not sufficient to infer penetration because it is not even supported by medical evidence which proposes many other causes. It still remains mere suspicion. There cannot therefore be odd coincidence because of the other inferences present. The entire evidence is still within the realm of conjecture. (Subordinate Court of the First Class, held at Kapiri Mposhi, Mbuzi PRM, 3 July 2014)
28 SALC CASE BOOK LESBIAN, GAY, BISEXUAL AND TRANSGENDER (LGBT) PERSONS’ RIGHTS 4
The People v Paul Kasonkomona
A Zambian HIV rights activist was charged with idle and disorderly conduct after he called for the legalisation of same-sex relationships as a way to curb the HIV pandemic.
Country: Factual Background the defence with evidence prior to the trial, and that the offence of idle and Zambia Paul Kasonkomona, a respected HIV activist disorderly conduct was not overly vague, and National Coordinator of Engender Programme Areas: and declined to refer those two questions Rights-Zambia, was arrested on 7 April 2013 Lesbian, Gay, Bisexual to the High Court. However, he did refer outside MuviTV station after he appeared and Transgender the question of whether Kasonkomona’s on a television programme. During the (LGBT) Persons’ Rights; conduct was protected by the right to programme Kasonkomona had argued that Prisoners’ Rights; freedom of expression to the High Court the rights of sexual minorities, including Freedom of Expression for determination. He therefore stayed the lesbian, gay, bisexual and transgender criminal proceedings in the Magistrates Years: persons (LGBT) and sex workers, should be Court until that determination had been 2013 – 2015 recognised in order to effectively address made. the HIV epidemic. Kasonkomona was In the High Court, Sharpe-Phiri J, ruled PARTNERS charged with idle and disorderly conduct that the conduct of soliciting for immoral in that he solicited for an immoral purpose Engender Rights- purposes did not equate to the form of by calling for the rights of LGBT persons to Zambia conduct protected by the right to freedom be respected in Zambia. He was taken into of expression, and that therefore there was UNAIDS custody and released on bail on 11 April no constitutional issue to be determined. 2013 only after his lawyers filed a civil case SBN Legal Practitioners She sent the matter back to the Magistrate for false imprisonment. to proceed with the criminal trial. Constitutional Reference The Criminal Trial Before the criminal case commenced Kasonkomona’s criminal trial in the Lusaka in the Magistrates Court, Kasonkomona Magistrates Court commenced on 16 made an application requesting that the October 2013, before Magistrate Ng’ambi. constitutionality of the offence of idle and The prosecution called six witnesses, and disorderly conduct be determined before closed its case on 17 December 2013. his criminal trial began. Kasonkomona Kasonkomona’s legal team then applied for argued that the offence was impermissibly an immediate acquittal on the grounds that vague and infringed on the right to freedom the evidence presented by the prosecution of expression. In addition, he argued that did not provide the accused with a case to the failure of the prosecution to provide the answer. defence with witness statements and other Kasonkomona argued that the Zambian evidence before the trial began violated authorities had misunderstood the elements his right to a fair trial. This application of the offence of soliciting for an immoral was made before the Magistrate, and purpose, and so had incorrectly applied the consisted of a request that the Magistrate offence to his conduct. Kasonkomona also refer these issues to the High Court for submitted that his actions were protected determination on their constitutionality. by the right to freedom of expression in the Magistrate Ng’ambi held that there is no Zambian Constitution and under the African obligation on the prosecution to provide
SALC CASE BOOK 29 4 LESBIAN, GAY, BISEXUAL AND TRANSGENDER (LGBT) PERSONS’ RIGHTS
Charter for Human and People’s Rights. He The Magistrate also found that there was argued that, although the constitutional a difference between engaging in immoral right could be limited on the basis of public sexual practices, and advocating for the morality, this had to be reasonably justifiable rights of those already practicing such in a democratic society, and a limitation of practices to be protected. He concluded his right to speak out was not justifiable in that the prosecution had not established the circumstances of this case. that Kasonkomona’s actions were either Magistrate Ng’ambi agreed with soliciting or for an immoral purpose, and so Kasonkomona and held that, by held that no case had been established and appearing on the television programme, acquitted him. Kasonkomona was merely exercising his The State appealed this ruling to the right to freedom of expression and was High Court. On 15 May 2015, Mulongoti not enticing or persuading other people J confirmed the ruling of the Magistrates to engage in immoral sexual practices. Court.
“From the evidence on the record the accused was not engaging anyone to practice homosexuality. What I heard was that he was advocating for the rights of those already practicing it to be protected. By way of analogy, if someone was to go on TV and advocate that the law on defilement should be amended will they be soliciting for immoral purposes? Or if someone was to engage the public discussing that the death sentence should be abolished, will they also be soliciting for immoral purposes? The answer is not. It is through debate that people share information and ideas whether good or bad.” (Lusaka Magistrates Court, Ng’ambi, 25 February 2014)
30 SALC CASE BOOK 5 HIV AND HEALTH RIGHTS
SALC CASE BOOK 31 5 HIV AND HEALTH RIGHTS
Kingaipe and Another v Attorney General
Members of the Zambian Air Force sued their employer for subjecting them to mandatory and non-consensual HIV testing and dismissing them on the basis of their HIV status.
Country: Factual Background been infringed by the ZAF’s mandatory HIV testing and dismissal on the basis on Zambia The applicants had worked for the Zambian their HIV status. They also argued that Air Force (ZAF) since 1989. In 2001, after Programme Area: the ZAF’s actions were an infringement separately consulting with doctors on HIV and Health of their right to adequate health and various medical complaints, the petitioners Rights medical facilities and equal and adequate were ordered to appear before a Medical educational opportunities as set out in the Years: Board of Inquiry. Shortly thereafter, they Directive Principles of the Constitution. The 2008 – 2010 were given notices to submit to compulsory petitioners requested that the Court declare medical examinations. The examining the ZAF’s conduct unconstitutional, and that PARTNERS doctor conducted HIV tests on both they be reinstated and awarded damages petitioners without informing them of Legal Resources for financial losses and emotional distress. the nature of the tests or providing any Foundation-Zambia The ZAF denied testing them for HIV and pre- or post-test counselling. Some days maintained that they were dismissed as a Zambian AIDS later, they returned to the doctor who did result of their other medical conditions, and Law, Research and not inform either of their HIV-status. They not as a result of their HIV status. Advocacy Network were, however, prescribed antiretroviral In her judgment, Muyovwe J held that treatment. The petitioners alleged that they Law Association of informed consent must be obtained by a were neither informed of the purpose of the Zambia doctor before extracting any blood from a medication nor counselled on adherence. patient. The Court found that the petitioners Network of Zambian In 2002, they were informed that the had been subjected to mandatory HIV People Living with Medical Board Inquiry had decided to testing without their consent and that HIV/AIDS dismiss them from the ZAF with immediate they were put on antiretroviral treatment effect on medical grounds. ZAF documents unknowingly, in violation of their rights to indicated that the Board deemed them privacy and protection from inhuman and permanently unfit for service. In the period degrading treatment. Muyovwe J explained between the check-up in 2001 and their why pre- and post-test counselling is so discharge in 2002, neither man had taken important before an individual undergoes sick leave. At the time of their discharge, an HIV test, and how traumatic it can be both men had reached the rank of sergeant. to learn of the diagnosis at a much later In the High Court stage. The Court did, however, reject the petitioners’ submission that they had not In 2009, the men petitioned the Livingstone been given information on the importance High Court, arguing that their rights to of adherence to the antiretroviral treatment liberty, privacy, life, and to be free from on the grounds that it was improbable that discrimination and cruel, inhuman and the doctor had not counselled his patients degrading treatment under the Zambian on the importance of the medication. The Constitution and international law had Court dismissed the petitioners’ arguments
32 SALC CASE BOOK HIV AND HEALTH RIGHTS 5
that the ZAF’s actions contravened the that necessitated their dismissal. As a Directive Principles of the Constitution result the Court declined to order that the which require adequate medical facilities petitioners be reinstated. for all persons. The Court reasoned that In conclusion, the Court acknowledged the petitioners had not raised sufficient that the applicants’ rights to privacy and evidence to support the claim and had protection from inhuman and degrading both continued to receive medical care at treatment had been infringed as a result the ZAF clinic. The Court further dismissed of the mandatory testing without their the petitioners’ claim that their discharge consent, and ordered the ZAF to pay from the ZAF was solely because of their damages of K10 000 000 (equivalent to HIV status. Muyovwe J explained that US$2 500 at the time) to each of the men. the petitioners’ medical histories, and the Muyovwe J accepted that the antiretroviral deterioration in their health even before the treatment they had received as a result of HIV tests, supported the ZAF’s argument the test did improve their health, which she that it was additional medical conditions considered to be a mitigating factor.
“Indeed, this is how important consent is and in the case of HIV testing, we are referring to not only to consent but informed consent. It is possible that someone can give their consent but without knowing and understanding fully what are they consenting to.” (High Court, Muyovwe J, 27 May 2010)
SALC CASE BOOK 33 5 HIV AND HEALTH RIGHTS
S v Mwanza Police and Others
Eleven women who had been subjected to random arrests and mandatory HIV tests, sought to review the police and hospital’s actions, as well as the action of the magistrate, who disclosed their HIV status in open court.
Country: Factual Background arbitrary and thus constituted an unfair administrative action. The applicants argued Malawi In September and November 2009 the that the respondents’ conduct showed a police in Mwanza, Malawi undertook Programme Areas: complete lack of respect and concern for sweeping exercises in which a number of HIV and Health the applicants and violated their right to women were arrested on the assumption Rights; Sex Workers’ dignity. that they were sex workers. The women Rights The applicants argued that consent is were detained overnight at the Mwanza legally valid only where it is given freely, Years: Police Station without charge and then voluntarily and without coercion by a 2011 – 2015 taken to the Mwanza District Hospital where patient with the capacity to consent on they were subjected to blood tests without the basis of adequate information as PARTNERS their informed consent. The medical officers to the nature and consequences of the noted the women’s names and test results Centre for the proposed HIV tests. They submitted that on pieces of paper and handed these over Development of the respondents took undue advantage of the police. The women were then taken to People (CEDEP) the fact that the applicants were in police the Magistrates Court where some were custody, to subject them to mandatory Centre for Human charged with spreading venereal diseases HIV tests. In the process, the respondents’ Rights Education, in contravention of the Penal Code. In the actions violated the applicants’ rights to Advice and courtroom, the particulars of the offence liberty and security, including their right Assistance (CHREAA) were read out – including the fact that the to bodily integrity as well as their right to women were HIV positive. This was the first freedom from inhuman and degrading time some of the women became aware of treatment. The women also argued that their HIV status. admitting the illegally-obtained HIV test In the High Court results as evidence violated their right to a fair trial. In 2011, eleven of the women filed an Kamanga J heard oral argument on 25 application in the Blantyre High Court February 2014, and on 20 May 2015 she challenging their subjection to mandatory held that the state had violated the women’s HIV tests, the admission of their HIV test constitutional rights and allowed them results as evidence in criminal cases against to proceed with the filing of a damages them, and the disclosure of their HIV status claim. A written judgment has not yet been in open court. The applicants submitted provided. that the respondents exercised their powers in an arbitrary and unreasonable manner. They argued that the decisions of the Officer-in-Charge of Mwanza Police Station and the District Health Officer of Mwanza District Hospital to subject them to mandatory HIV tests without their informed consent was unlawful, unreasonable and
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SALC CASE BOOK 35 5 HIV AND HEALTH RIGHTS
M v St Anne’s Hospital and Others
A nurse sued her employer after she was dismissed for not disclosing her HIV-status and then coerced into disclosing her HIV-status in disciplinary proceedings.
Country: Factual Background an Appeals Committee, which overturned the decision and ordered that she be Zimbabwe A nurse living with HIV, had worked at St reinstated with full pay and benefits. Anne’s Hospital since September 2010. She Programme Area: When the Hospital did not reinstate had undergone a medical examination HIV and Health her, she brought an application to the before she began working and had been Rights Constitutional Court seeking a declaration declared fit to work. She was not legally that her dismissal was unlawful and that the Years: required to disclose her HIV-status to her Code of Conduct was unconstitutional and 2013 – employer, and did not do so. In 2012 she unlawful by requiring employees to disclose suffered a stroke following work-related their HIV status. She sought constitutional PARTNERS stress, and returned to work the following damages, and an order setting aside the year after being declared healthy by her Women in Law disciplinary proceedings and ordering the doctor. Southern Africa hospital to reinstate her. When she returned, her employer (WLSA), Zimbabwe accused her of breaching the Code of Conduct by failing to disclose aspects of In the Constitutional Court her health condition. She was suspended The matter was before the Constitutional without pay and subjected to disciplinary Court on 11 February 2015. The Court proceedings. She submits that during the raised a procedural question of whether disciplinary proceedings her employer’s the case should first be heard in the Labour representative coerced her to disclose Court. The Court reserved judgment on her HIV-status. The Chairperson of the the procedural question without hearing Disciplinary Committee decided that she argument on the merits. We are still had violated the Code of Conduct, and she awaiting judgment on that issue. was dismissed. She appealed the decision to
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Mwanza and Another v Attorney General
Two Zambian prisoners living with HIV sued the government, arguing that the poor prison conditions, including overcrowding and access to adequate nutrition hindered the efficacy of their anti-retroviral medication and violated their human rights.
Country: Factual Background The petitioners argued that the lack of adequate food and poor prison conditions Zambia Two HIV-positive prisoners at the Lusaka violated their rights to life and to be free Central Prison petitioned the High Court Programme Areas: from inhuman and degrading treatment arguing that the poor prison conditions, HIV and Health under the Zambian Constitution. They including overcrowding and lack of access Rights; Prisoners’ also argued that it infringed their right to to adequate nutrition, violated various rights Rights adequate food under international law, and under the Constitution. Years: specifically the International Covenant on 2012 - Economic, Social and Cultural Rights and In the High Court the UN Standard Minimum Rules for the The trial commenced in the Lusaka High Treatment of Prisoners. They also argued PARTNERS Court on 3 December 2012 before Kabuka that the lack of access to medical and Legal Resources J. The petitioners gave evidence that health facilities was in contravention of the Foundation of while incarcerated at the Lusaka Central Directive Principles of State Policy in the Zambia (LRF) Prison they did not receive the necessary Constitution, and that the denial of access food to ensure the full efficacy of their to their antiretroviral medication violated Treatment Advocacy antiretroviral treatment. They alleged that their constitutionally protected right to life. and Literacy they were given only two meals a day The State presented evidence by the Campaign comprised of maize meal for breakfast and Officer-in-Charge of the Lusaka Central (TALC) porridge with beans or anchovies for lunch, Prison, the nurse stationed at the prison, and that many times the food provided and an Environmental Health Officer. The was rotten or uncooked. The petitioners state witnesses testified that prisoners living also alleged that poor prison conditions, with HIV were given adequate food with including the lack of ventilation, unsanitary supplementary food brought in by external toilets, and overcrowding which caused non-profit organisations. They also denied them to have to sleep sitting or standing the petitioners’ allegations of poor prison resulted in the deterioration of their health. conditions and submitted that there was Finally, the petitioners alleged that while a clinic on the prison premises to provide incarcerated, they were denied access to treatment to all HIV-positive prisoners. their antiretroviral treatment and medical Judgment was reserved in December consultations a number of times. The 2013, and despite a number of petitioners presented expert evidence on announcements that it would be handed the nature and progression of HIV and the down, we are still awaiting judgment. impact of antiretroviral treatment as well as the importance of adequate nutrition for the efficacy of treatment.
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Tapela and Others v Attorney General and Others
Two HIV-positive prisoners and the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) challenged a government policy denying government-sponsored antiretroviral (ARV) treatment to non-citizen prisoners.
Country: Factual Background infringed on their rights to life, to not be subjected to inhuman and degrading Botswana Two non-citizen prisoners held in the treatments, and to equality and non- Gaborone Central Prison were diagnosed Programme Areas: discrimination. They argued that these as HIV-positive while in prison. Their low HIV and Health infringements were not justifiable under CD4-counts indicated that, in terms of Rights; Prisoners’ the Botswana Constitution because the Botswana’s HIV/AIDS Treatment Guidelines, Rights policy refusing HAART to non-citizen they were eligible for Highly Active Anti- inmates was not a valid law in terms of Years: Retroviral Therapy (HAART). Citizen which the public interest or the interests 2014 – 2015 prisoners who are eligible for HAART of others are advanced. This was because, receive treatment at the State’s expense. inter alia, in the absence of effective PARTNERS However, the two prisoners were informed treatment on HAART, HIV-positive prisoners that under Presidential Directive number The Botswana are more infectious and thus more likely CAB 5(b) of 2004 they were not entitled to Network on Ethics to transmit the virus to others, and are HAART at state expense because they were Law and HIV/AIDS more susceptible to contracting and non-citizens. The two prisoners, together (BONELA) transmitting opportunistic infections, such with the Botswana Network on Ethics, Law as tuberculosis. Rantao Kewagamang and HIV/AIDS (BONELA), approached the The State respondents raised a number Attorneys High Court seeking to declare this policy of technical objections to the application. as unlawful and unconstitutional and On the merits, they argued that the policy further seeking an order that all non-citizen was not unlawful and did not violate prisoners who meet the treatment criteria foreign prisoners’ constitutional rights. To be immediately provided with HAART. the extent that their rights were limited In the High Court by the denial of state-funded HAART, the respondents argued that the limitation SALC assisted the two prisoners and was justifiable. This was because the BONELA in making an application before Constitution permits discrimination based the High Court. The applicants argued on citizenship, and the financial constraints that the denial of HAART to non-citizen of the state meant they were not obliged prisoners was unlawful for violating to provide foreign prisoners with HAART. the obligations on the State to provide The treatment of foreign prisoners’ adequate medical treatment for prisoners opportunistic infections was sufficient, in without discrimination under the Prisons their submission, to comply with any legal Act. In addition, the policy was unlawful obligations to provide foreign prisoners with for violating the State’s common law duty adequate medical care. to safeguard the health of individuals On 22 August 2014, the High Court, incarcerated under their authority. The per Sechele J, found in the applicants’ applicants argued that the policy further favour that the policy was unlawful and
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unconstitutional and unjustifiably infringed the prisoners’ rights to life, equality, and the prisoners’ rights to life, freedom from freedom from inhuman and degrading inhuman and degrading treatment, equality treatment. Inmates retain the residuum and non-discrimination. The Court ordered of their human rights when their liberty that all foreign prisoners who meet the is removed through imprisonment. The treatment criteria be provided with HAART Court held that under domestic legislation, at state expense. prison authorities are not only obliged The Court dismissed the respondents’ to take measures to restore the health of procedural defences, holding that courts prisoners but also to prevent the spread of must not sacrifice substance over form and disease. Imposing any limit to the rights should not lightly turn away a party who of non-citizen prisoners, the Court stated, seeks “shelter under the sanctuary of the could never be justifiable in a democratic Constitution”. The Court considered the society when the consequence of the applicants’ evidence and found that HAART deprivation in question resulted in the is not only a medical necessity but a life- prisoners becoming more infectious to saving therapy. Withholding HAART would others. In addition, the State had failed to increase the likelihood of HIV transmission raise any evidence to discharge the onus on to other inmates, including citizen prisoners, it to prove that the budgetary constraints as well as the transmission of opportunistic it alleged were valid or had any weight in infections. justifying the unlawfulness of the policy. The Court held that the policy was The Court criticised the State’s position unlawful in terms of the common law, the that convicted criminals did not deserve Prisons Act and the Constitution. It held the same standard of medical care as other that the policy unjustifiably infringed on individuals, and Sechele J reiterated that the
“It is impermissible for the respondents to indirectly extend the limits of punishment by withholding certain services to which inmates are lawfully entitled on account of their status as ‘convicted non-citizen inmates’”. (High Court, Sechele J, 22 August 2014)
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right to liberty is the only right that should treatment of non-citizen prisoners was be affected by a prisoner’s incarceration. constitutionally sanctioned. The Court The Court disagreed with the state’s held that the policy clearly discriminated argument that denying foreign prisoners against non-citizens on the grounds of their HAART was “positive discrimination”, origin. That discrimination, it held, is not and held that the discrimination was not constitutionally permitted because, inter reasonably justifiable in a democratic alia, discrimination is only sanctioned under society. The government was ordered to the Constitution where it occurs in terms of immediately enrol all foreign prisoners who a “law”, which the Presidential Directive that meet the treatment criteria on HAART. enforced the policy is not. The Directive is an exercise of executive power which the In the Court of Appeal Court held to be subject to the Constitution The State parties appealed the High Court and the laws of Botswana, which is “the decision to the Court of Appeal. Oral essence of the rule of law”. arguments were heard on 23 July 2015. The The Court rejected the State’s argument State appellants argued that the High Court that the denial of HAART to foreign had erred in declaring the policy unlawful. prisoners was taken in the public interest BONELA opposed the appeal. because of financial considerations. Kirby On 26 August 2015, the Court of JP acknowledged that courts often defer Appeal dismissed the appeal. Writing for to executive and legislative decisions a unanimous Court, Kirby JP determined on budgetary allocations being matters that the matter could be decided in properly within the domain of government. reference to the legislative regime and However, he reasoned that many court common law, rendering constitutional decisions do carry financial implications and determinations unnecessary. The Court that it is the responsibility of government held that the Prisons Act and its regulations to budget to fulfill its legal obligations. The oblige the state to provide adequate health Court affirmed that a “[l]ack of funds will not care to inmates, as affirmed by the State’s in the normal course justify disobedience common law duty of care. Nowhere did of the law.” In any event, the Court noted the legislative regime or the common law that no evidence had been placed before permit discrimination between prisoners the Court to justify the state’s assertion that in the quality or type of medical care the provision of HAART was unaffordable. provided. In so doing, the Court affirmed The bald assertion that the provision of the High Court’s finding that imprisonment the medication is unaffordable could not equalises all inmates “regardless of their suffice. status or place of origin.” The decision to The Court dismissed the appeal and set deny HAART to non-citizen prisoners while aside the decision to withhold free HAART according the treatment free of charge to from non-citizen prisoners. The state was citizen prisoners was therefore held to be ordered to provide all non-citizen prisoners ultra vires the Prisons Act. with free HIV testing, assessment and The Court of Appeal considered the treatment on the same basis as is granted to State’s defence that the discriminatory citizen prisoners.
“[T]he decision to deny HAART to foreigners while according it free of charge to citizens is, in my judgment, ultra vires the Prisons Act and Regulations, in that it discriminates unlawfully against foreign nationals in a manner not permitted by either the Act or by the Regulations.” (Court of Appeal of Botswana, Kirby JP, 26 August 2015)
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SALC CASE BOOK 41 6 PRISONERS’ RIGHTS
M v Attorney General
A minor, who had been charged with murder, sued the Malawi government, arguing that the ten years he had spent in detention, and the period he had spent in an adult section of the prison, infringed his constitutionally protected rights
Country: Factual Background In the High Court, sitting as the Malawi On 31 July 1997, a sixteen year old, M had Constitutional Court Programme Area: gone to a party with a group of friends. In 2007, M brought an application to the Prisoners’ Rights At the party, a fight broke out between M High Court, sitting as the Constitutional and another boy, Moses Chibwana, and Court, asking it to determine a number Years: Chibwana was fatally stabbed. The next day, of issues relating to his detention. The 2007 – 2015 M went with his parents to the Chiradzulu application was supported by amici curiae Police Station to report the incident, and submissions from the Malawi Human Rights PARTNERS later in the day he was arrested. The friends Commission, Centre for Human Rights, with whom he had attended the party were Education, Advice and Assistance (CHREAA) Centre for also arrested but they were released after a and Eye of the Child. Human Rights, few days. M requested that the Court determine Education, Advice On 10 August 1997, M was moved from whether his ten year detention (five years and Assistance the Chiradzulu Magistrate Court to Chichiri in pre-trial detention at Chichiri Maximum (CHREAA) Maximum Prison in Blantyre where he was Prison and five years in Chilwa Approved Mambulasa and detained in the adult section despite being School) infringed his rights under the Associates a minor. He remained in the adult section Malawi Constitution, the Children and until his trial in December 2002. Young Persons Act, the Convention on the M was found guilty of murder, and Rights of the Child, and the International because he was a minor at the time of the Covenant on Civil and Political Rights. He commission of the crime, the judge ordered also sought compensation if the Court that he be detained at the Chilwa Approved found that he had experienced prejudice School “at the pleasure of the President” in as a result of unconstitutional detention. accordance with the Children and Young In addition M asked the Court to declare Persons Act and the Penal Code. The Court various provisions in the Penal Code did acknowledge that, had M been found and the Children and Young Persons Act guilty of the lesser offence of manslaughter, unconstitutional because the practice of it would have released him immediately detaining young offenders at the pleasure because he had been exposed to adult and of the President usurps the function of the convicted prisoners while he was detained judicial authorities. M submitted that should awaiting trial.
“He was therefore a juvenile and ought to have been treated with due regard to his welfare and steps should have been taken to remove him from his undesirable surroundings, and for securing that proper provision is made for his education and training. …. The primary consideration in dealing with a juvenile whether in criminal matters, or adoption or custody proceedings is what is in the best interest of that child or juvenile.” (High Court, Potani J, 26 August 2009)
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the Court find in his favour on any of these In the Supreme Court of Appeal grounds, it should order his immediate M appealed four aspects of the High Court release or a declaration that his detention be judgment: that the Court erred in finding reconsidered by the relevant Board. that an immediate release from detention The High Court, per Potani J, found constituted adequate compensation; that the detention of M in the adult section that the Court erred in finding that the both before and after his trial was in blatant indeterminate sentence is constitutional; disregard of his welfare and a violation that the Court erred in law by disregarding of his rights under the Constitution, the the right to a fair trial; and that the Court Children and Young Persons Act, and the did not engage with the question of Convention on the Rights of the Child. whether the President’s power to detain a In reaching this conclusion, the Court juvenile “at his pleasure” interfered with the remarked that the Convention on the Rights independence of the judiciary. of the Child was binding on all public and Notably, subsequent to the appeal private institutions in Malawi, but that being noted but before judgment, Malawi’s because the Children and Young Persons Parliament passed the new Child Care, Act gave equal protection to juvenile Protection and Justice Act 22 of 2010, detainees, there was no need to refer to the which replaced the Children and Young Convention. Persons Act, amended section 42(2)(g) In determining whether the of the Constitution to define a child as Children and Young Persons Act was being under the age of eighteen years, and unconstitutional, the Court assessed the amended section 26(2) of the Penal Code practice of detaining individuals “at the by deleting the phrase “during the pleasure pleasure of the President”. It found that of the President” and substituting it with although the system was designed to have “on the advice of the Board of Visitors [now safeguards and to ensure that the welfare the Child Case Review Board]”. The Court of the child is paramount, the system dismissed all grounds of appeal. was failing. However, in finding that the implementation of the system was to blame for the long period of time M spent in detention rather than the system itself, the Court found that the Children and Young Persons Act was not unconstitutional. On 26 August 2009, the Court ordered that, in light of the prejudice M had suffered as a result of being incarcerated with adults, he be released immediately.
“We have considered the issue of costs. These are at the discretion of the court. This was a test case on the constitutionality of some of our penal provisions. Since this matter has come as far as this Court it will put to rest any lingering doubts on the interpretation of our Constitution in respect of these penal provisions. We therefore order that each party should bear its own costs.” (Supreme Court, Twea JA, 29 July 2015)
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M v The Republic
A fifteen year old brought a bail application after spending four years in pre-trial detention where he contracted a life- threatening illness.
Country: Factual Background released based on ill-health. In his judgment, Chirwa J referred to Malawi In 2007, the applicant, fifteen year old M and the medical reports that indicated that his employer were arrested in Blantyre on Programme Area: the applicant’s health would continue suspicion of the murder of a baby by arson. Prisoners’ Rights to deteriorate in detention and that he The applicant was taken to the Chileka needed urgent medical intervention to Years: Police Station, and then to the Chilangoma determine the cause of his ill-health and 2007 – 2011 First Grade Magistrates Court where he the appropriate treatment. While the Court was charged with murder. On 11 October rejected the medical evidence on grounds PARTNERS 2007 he was taken to the Bvumbwe Young of procedural formalities, it held, obiter Offenders’ Centre to await trial. Sometime Centre for Human dicta, that these conditions would “no doubt during his detention he contracted a Rights, Education, have sufficed” to warrant the applicant’s life-threatening illness, and in 2011, SALC Advice and release on bail. The Court held that the state assisted his legal counsel in applying for bail Assistance (CHREAA) was under a legal and moral obligation based on his ill-health and the delay of four to ensure that individuals in detention, Mambulasa and years in bringing him to trial. Associates like all other Malawian citizens, receive adequate healthcare in terms of the Malawi In the High Court Constitution. Traditionally, bail on the basis of illness The Court further held that a delay of was only granted to individuals who were four years awaiting trial amounted to an suffering from terminal illnesses and only unreasonable delay because it exceeded the if that illness had been contracted before maximum period of ninety days established they were detained. The applicant’s case in the Criminal Procedure and Evidence challenged this practice. The state did not Code. oppose the bail application provided that Chirwa J ordered M’s release on bail on strict conditions were imposed. condition that two relatives provide non- The High Court, per Chirwa J, granted cash sureties of K20 000, that he report to the applicant bail in Court through an oral the Chileka Police station every two weeks, directive. Because of its precedential value, that he surrender any travel documents, the applicant’s counsel requested that the and that he not leave the Blantyre district Judge provide a written judgment that could without first informing the Officer-in-Charge be used by future detainees seeking to be at the Chileka Police Station.
“[T]he authorities have a legal and moral obligation to protect the right to health of prison inmates. This Court would however, add that this obligation extends to all other citizens. This is clear from Section 13(c) of the Constitution of the Republic of Malawi.” (High Court, Chirwa J, 21 November 2011)
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Mkula and Others v The Republic
An individual accused of murder and robbery in Malawi challenged the legality of a ten year period in detention awaiting trial.
Country: Factual Background Richard Banda refused to certify the application as he believed it did not contain Malawi Alex Mkula was arrested in 2001 on issues of constitutional importance, and suspicion of murdering a police officer. He Programme Area: instructed the four accused to apply for was brought before the Magistrates Court Prisoners’ Rights bail. On 22 July 2010, SALC assisted all four in August 2001 where he was charged with to apply for bail. The judge released three Years: murder and pleaded not guilty. His case of the applicants on bail after finding that 2009 – 2011 was transferred to the High Court. Between an unreasonable delay in commencing 2001 and 2009 he was not brought before the criminal trial was a ground for bail. any court in connection with that trial. In PARTNERS However, the judge refused Mkula’s December 2007 an application for bail was application on the grounds that he faced Centre for made on his behalf but the court refused his another criminal charge of armed robbery. Human Rights, application because it confused him with Unfortunately, this was the first Mkula’s Education, Advice another inmate with the same name. and Assistance legal representatives had heard of any other (CHREAA) In the High Court charges against him. Mkula’s armed robbery trial began on 6 In 2009, SALC brought an application on August 2010, and all the witnesses called behalf of Mkula and three others who had by the prosecution denied that Mkula been awaiting trial in detention for a period was involved in the robbery. The trial was of between six and ten years, arguing that never finished, as the prosecution ceased the long period of pre-trial detention was attending court and so have not officially an infringement of their right to trial within closed their case. Mkula remained in a reasonable period protected by section detention throughout this process. 42(2)(f)(i) of the Constitution. In March 2011, SALC sought to secure The applicants argued that there Mkula’s release from prison through a had been an unreasonable delay in their writ of habeas corpus. Although the right respective trials which had prejudiced to habeas corpus is protected in the them. They argued that the authorities Malawi Constitution, it is rarely used as have a duty to expedite proceedings: if the a mechanism for obtaining release from authorities fail to advance the proceedings prison. It is also frequently misconceived at any stage due to neglect, allow the as being the same procedure as for bail. It investigation and proceedings to stagnate was hoped that the case would lead to a or if they take an unreasonable time to clarification of the use of a habeas corpus complete specific measures, that time application where detention is unlawful. It should be deemed unreasonable. Similarly, was argued that Mkula should be released if the criminal justice system itself inhibits immediately as his continued detention was the speedy conclusion of trials, the right unlawful, infringing his right to a trial within to trial within a reasonable time may be a reasonable period of time. violated. In May 2011 the High Court released At the end of 2009 the Chief Justice Mkula on the grounds that the facts and
SALC CASE BOOK 45 6 PRISONERS’ RIGHTS
submissions established a “proper case” for Mkula’s release. No mention was made of his release being either on bail or on the basis of the habeas corpus application. Mbuvundla J imposed conditions on the release that Mkula reside at the family home, that he not leave the Blantyre district without informing the Chief State Advocate, that he surrender his travel documents, and that he furnish two sureties bound by the non-cash sum of K20, 000. The Judge ordered that all the conditions of his release would automatically fall away if the trial did not commence within two weeks of his judgment. In March 2010, the legislature amended the Criminal Procedure and Evidence Code to include specific pre-trial custody limits for all offences.
“On the foregoing facts and submissions I am of the view that this is a proper case in which the applicant must be set at liberty forthwith. I am however mindful of the fact that it is in the interests of the public that persons accused of offences, particularly those of a serious nature such as the one the applicant is charged with, ought to face trial.” (High Court, Mbuvundla J, 6 May 2011)
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Paul v Attorney General
The applicant challenged his prolonged detention awaiting trial for being in breach of his right to a trial within a reasonable period.
Country: Factual Background long period pending his trial, that the delay in bringing him to trial had resulted in a Malawi Felix Paul was detained in 2002 on miscarriage of justice, and an order that the suspicion of murder. He was originally one Programme Area: time spent in custody be taken into account of the applicants in a constitutional case Prisoners’ Rights in any consideration of sentence. on the right to a trial within a reasonable The case was heard on 26 June 2011 Years: period of time, and after the then-Chief before Manda J at the Blantyre High 2010 – 2011 Justice refused to certify his case as Court. The state did not file a response a constitutional matter the client was to the submissions and did not appear PARTNERS then assisted to apply for bail. He was in Court. Judgment was delivered on 25 released on bail in 2010 to await trial, eight Centre for October 2011. The Court held that the test years after being incarcerated. Paul then Human Rights in all cases in which there is an alleged approached the civil courts to seek an Education, Advice unreasonable delay is whether the delay has appropriate remedy for the breach of his and Assistance prejudiced the prospects of a fair trial. The right to a trial within a reasonable period of (CHREAA) applicant had previously been denied bail time. Subsequent to approaching the High and the Court assumed, in the absence of Court, the Criminal Procedure and Evidence any reasons on why bail had been refused, Code was amended to impose pre-trial that the interests of justice required the custody time limits and included a new refusal of bail on previous occasions. The provision that trials should be commenced Court held that it had no evidence on the within twelve months from the date the strength of the state’s case and that it was complaint arose. accordingly difficult to assess whether the In the High Court applicant would have a fair trial and that the question of whether there had been Paul sought an interpretation of section a miscarriage of justice as a result of the 42(2)(f)(i) of the Constitution, which states delay should best be left to the trial judge to that every person arrested for, or accused decide. of an offence, shall have the right to a trial The Court held that the fact that there within a reasonable time of having been has been an unreasonable delay does not charged. Arguments were advanced that mean that the accused cannot be made the length of time that Paul had been to stand trial, but that the state should awaiting trial was unreasonable and the endeavour to bring the applicant’s case effect of this delay was that a fair trial would to trial as soon as possible. The Court no longer be possible and that the criminal further held that although sentencing is a proceedings against him should be stayed. discretion which lies in the hands of the trial Paul asked that the court declare that he is court, it recommended that the trial court entitled to a trial within a reasonable time should, if it convicts the applicant, take into of being arrested, that he had a right not to consideration the time spent in custody be detained on remand for an unreasonably when passing a sentence.
“Indeed I would agree that the state has taken too long in this instance without trying the applicant and that the period of 8 years is unreasonable. This is especially in view of the recent amendment to the Criminal Procedure and Evidence Code … introducing pre-trial custody time limits under section 162 A-J.” (High Court, Manda J, 25 October 2011)
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Cases brought before the Working Group on Arbitrary Detention
Four applications were brought before the UN Working Group on Arbitrary Detention in respect of the conditions of pre-trial detention in Malawi.
Factual Background Opinion of the Working Group Between November 2011 and February on Arbitrary Detention Country: 2012, SALC and Centre for Human Rights, The Working Group on Arbitrary Detention Malawi Education, Advice and Assistance (CHREAA) adopted its opinion on 4 May 2012, after Programme Area: filed four applications to the United Nations receiving no response to its communication Working Group on Arbitrary Detention Prisoners’ Rights from the Malawi government. bringing to its attention the separate cases In its decision, the Working Group Years: of four pre-trial detainees in Malawi. The urged the government of Malawi to take 2011 – 2012 facts of their detention were similar and immediate steps to remedy the situation represented a broad category of remandees through instituting fair trial procedural PARTNERS who faced similar violations of their rights guarantees and initiating trials immediately. on a daily basis. In relation to one of the applicants, a Centre for Human These violations negated many of the minor, the Working Group requested the Rights, Education, fundamental fair trial rights that should Malawi government immediately release Advice and Assistance be accorded to remandees under the him in accordance with its obligations (CHREAA) Malawi Constitution and the International and the Convention on the Rights of the Convention on Civil and Political Rights. Child. The Working Group also forwarded the complaint to the Special Rapporteur on torture and other cruel, inhuman and degrading treatment for his consideration.
“[The applicants] have been in detention since 26 October 2006, 4 December 2008, 18 April 2009 and 30 June 2009 respectively. They have been charged with serious offences ranging from theft to murder. Yet they have been kept in detention without a trial for long periods of time and without minimum due process guarantees as required by article 14 of the ICCPR. These include being promptly informed of the charges through presentation of an arrest warrant, caution against self-incrimination, right to access a legal counsel, right to be presented before a judge and right to be tried within a reasonable period of time. Likewise, the Working Group notes that in all the four cases, safeguards under article 42 of the Constitution of Malawi and article 7 of the ACHPR have been disregarded.” (Opinion of the Working Group on Arbitrary Detention, 4 May 2012)
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Mareka and 22 Others v The Commander of the Lesotho Defence Force and Others
The applicant soldiers challenged their ongoing detention under “closed arrest” under conditions in which they have asserted abuse and torture, as well as the convening of a court martial to run parallel to Commission of Inquiry proceedings, both which are charged with investigating the charges of mutiny against the applicants.
Country: Factual Background were tortured, failed to order that everyone be released from custody. Lesotho From May 2015, a number of soldiers were In one such case, the High Court, per apprehended and detained by the Lesotho Programme Area: Peete J, noted that “the detained soldiers Defence Force (LDF). During this time Lt. Prisoners’ Rights were produced before Court on different Gen. Mahao (the former Commander of dates and all were in leg-shackles and had Years: the LDF) was shot and killed by members their hands handcuffed and were being 2015 – of the LDF. The detained soldiers, together escorted by masked and heavily armed with the late Lt. Gen. Mahao were escort personnel. On being asked in open subsequently accused of having plotted PARTNERS Court, each of the detainees complained a mutiny. In the context of this crisis, the of having been subjected to certain cruel Transformation Lesotho government invited the Southern treatments and most showed the Court, Resource Centre Africa Development Community (SADC) fresh and deep cuts and bruises on their (TRC) to intervene. SADC and the Lesotho wrists probably caused by tightened Catholic government set up an independent handcuffs”. These findings were confirmed Commission of Commission of Inquiry to review the by the Court of Appeal, which held in Justice and Peace investigations into the mutiny plot relation to one of the applicants: “Regarding allegations and investigate Lt. Gen. Mahao’s the issue of torture which has been denied Tumisang Mosotho killing. The applicants in the Mareka case by the Respondents, the Court has come to Attorneys sought to cooperate with the Commission the conclusion that the Applicant’s husband Phoofolo of Inquiry. While the Commission has been subjected to torture and inhuman Associates Inc commenced its work, the LDF continued treatment in stark violation of the provisions to detain the applicants under closed of section 24(3) of the Constitution.” arrest and convened a court martial with a prosecutorial team that included parties alleged to be victims of the mutiny plot and In the High Court parties who were subsequently involved The applicants’ challenge to their arrest and in the arrests and investigation of charges detention was heard before the High Court against the applicants. The applicants on 16 September 2015 on an urgent basis. were prevented from participating in the On 5 October 2015, Makara J held that the Commission proceedings. applicants’ detention under closed arrest The applicants brought a legal challenge was unlawful. The Court dismissed the to their arrests and detention and to the remainder of the applicants’ prayers. decision to convene the court martial. The The Court held that the officers of the application was brought in the wake of first respondent had violated the procedural various habeas corpus proceedings which, rights of the applicants since each soldier although acknowledging that the detainees had not been given an opportunity to be
SALC CASE BOOK 49 6 PRISONERS’ RIGHTS
heard before a decision to detain each martial was unreasonable, arbitrary and under a closed arrest was made. The Court irrational and should be set aside on review. held that every soldier has the right to They argued that the unreasonableness complain about a violation of his natural of the decision must be assessed in right to be heard before an adverse decision the context where the credibility of the could be taken against him. investigations into the alleged mutiny plot The applicants appealed the dismissal had been seriously called into question by of those prayers the High Court declined to both SADC and the Lesotho Prime Minister grant, whilst the LDF respondents cross- in setting up the Commission. Additional appealed the order declaring the applicants’ factors, such as the manner of the soldiers’ closed arrest unlawful. arrest, the decision to keep them under Since the conclusion of the High Court closed arrest, and the irregular constitution proceedings, two contempt applications of the court martial, further symptomised were brought against the LDF Commander the unreasonableness of the decision. The for failure to release the soldiers on open soldiers’ argument was not that the court arrest. Most of the applicants (appellants) martial should never be convened but that remain in detention. no reasonable person would have elected The Commission has also since for the court martial and Commission concluded its proceedings and a redacted proceedings to run concurrently in the form of its report has been placed before context: the Minister had the option to Parliament. The Commission’s findings delay a decision to convene the court include that some of the mutiny-accused martial until the Commission concluded its have been tortured in detention and independent review of the investigations that “the alleged mutiny might be a into the soldiers’ conduct. fabrication just to punish those officers who The applicants further argued that the celebrated the appointment of [Lt. Gen.] law permits closed arrest only under certain Mahao as Commander of the LDF.” In its conditions and the decision to hold the recommendations, the Commission stated soldiers under closed arrest had been made that the “whole case of mutiny [is] highly without considering their individual cases suspect.” or allowing them to be heard on the issue. The respondents submitted that the In the Court of Appeal soldiers had not provided any evidence The appeal was argued on 15 April 2016 that they would be prejudiced by the before Farlam AJP, and Louw and Masunda concurrent running of the Commission and AJJ. court martial processes and that the court The soldiers argued that the Minister of cannot second-guess decisions informed by Defence’s decision to convene the court national security.
50 SALC CASE BOOK 7 FREEDOM OF EXPRESSION
SALC CASE BOOK 51 7 FREEDOM OF EXPRESSION
R v The Nation Magazine and Others
The editor of The Nation magazine and a human rights lawyer who had both written articles critical of the Swazi judiciary were arrested and charged with contempt of court.
Country: Factual Background application and the matter was heard by Dlamini J in the High Court. On 6 April 2014, Swaziland In March 2014, human rights lawyer Dlamini J ruled that the arrest warrants, Thulani Maseko and The Nation magazine Programme Areas: indictments and detention were unlawful editor Bheki Makhubu were arrested and Freedom of and unconstitutional and ordered that charged with contempt of court for writing Expression; Prisoners’ Maseko and Makhubu be released. The two and publishing two articles criticising the Rights men were released, but, on 9 April 2014, Swazi judiciary and the then-Chief Justice, after the Chief Justice filed an appeal to Years: Michael Ramodibedi. The articles related Dlamini J’s ruling, Simelane J ordered that 2014 – 2015 to the judiciary’s handling of the arrest of fresh warrants of arrest be issued and the government vehicle inspector, Bhantshana pair was rearrested and taken into custody. PARTNERS Gwebu, on contempt of court charges. Lawyers for Human Rights (Swaziland) then From the outset, the manner in which Amnesty lodged an application challenging Simelane Maseko and Makhubu’s case was handled International J’s order for their re-arrest. was deeply concerning. Soon after their Despite the existence of Dlamini J’s Lawyers for Human arrest, Maseko and Makhubu were brought ruling, and the two appeals filed in respect Rights before the Chief Justice in chambers rather of that judgment and the decision to re- than in open court, and remanded into Swaziland Lawyers arrest Maseko and Makhubu, Simelane J custody by the Chief Justice despite the for Human Rights proceeded with the criminal trial. On 17 prosecution not making an application for July 2014, he found Maseko, Makhubu, SADC Lawyers the detention of the men. Association the magazine and its publisher guilty In the High Court of contempt and, on 25 July 2014, he sentenced the two men to two years in Mpendulo Simelane J, the former High prison without the option of a fine, and fined Court registrar, presided over the criminal the magazine and its publisher E50 000 (the trial. Makhubu applied for bail, but requested equivalent of just over US$4 000). Simelane J’s recusal on the grounds that The Court held that the right to freedom the judge, in his former capacity as registrar, of expression was not absolute, and that it had been personally involved in the vehicle did not extend to comments made in the inspector’s case. However, Simelane J media which destroy public confidence in refused to recuse himself, and refused the judiciary. Simelane J further held that Makhubu’s bail application. because the articles related to an ongoing Maseko then launched an application criminal case they amounted to a “clear challenging the constitutionality of his interference” with that case. The Court’s arrest and detention on the grounds that findings appeared to prioritise the dignity the arrest warrants, issued by the Chief of the court over freedom of expression, Justice, were irregular. Makhubu joined this and could be interpreted as meaning that
52 SALC CASE BOOK FREEDOM OF EXPRESSION 7
no commentary on any ongoing legal Makhubu’s arrest and detention were lawful. proceedings will be permitted. On 30 June 2015, the Supreme Court heard the appeal against Maseko and In the Supreme Court Makhubu’s conviction and sentence. In November 2014 the Supreme Court heard Before argument began, the prosecutor two appeals. The first was the appeal against indicated that the Director of Public Simelane J’s decision to order the rearrest Prosecution’s Office was not defending of Maseko and Makhubu. Ebrahim, Moore the appeal on the grounds that they and Maphalala JJA postponed the appeal believed Simelane J should have recused indefinitely as the Court held it was not in a himself and that his judgment in the High position to decide the matter because of an Court was “unsupportable”. The Supreme incomplete record. Court immediately acquitted the two The second appeal was the appeal men and ordered their immediate release. brought by the Chief Justice against This decision came in the wake of the Dlamini J’s judgment declaring Maseko and suspension of Simelane J, and the removal Makhubu’s arrest and detention unlawful of Chief Justice Ramodibedi on the grounds and unconstitutional. In December 2014, that the two judges were being investigated Levinsohn, Moore and Ebrahim JJA by the Anti-Corruption Commission on delivered an oral judgment in favour of suspicion of defeating the ends of justice. the Chief Justice, holding that Maseko and
“Some journalists have this misconception that just because they have the power of the pen and paper they can say or write anything under the disguise (sic) of freedom of expression … It would be absurd to allow journalists to write scurrilous articles in the manner the Accused persons did. Such conduct can never be condoned by any right thinking person in our democratic country.” (High Court of Swaziland, Simelane J, 17 July 2014)
SALC CASE BOOK 53 7 FREEDOM OF EXPRESSION
R v Masuku and Another
Two Swazi political activists were arrested and charged with sedition, subversion, and terrorism after participating in a May Day celebration in 2014.
Country: Factual Background Bail Application in the High Swaziland Mario Masuku, the President of the People’s Court Programme Areas: United Democratic Movement (PUDEMO), In the new bail application in November Freedom of and Maxwell Dlamini, the Secretary General 2014 Masuku and Dlamini submitted that Expression; Prisoners’ of the Swaziland Youth Congress, were there were three factors that warranted a Rights arrested on 1 May 2014 after participating in reconsideration of their application for bail. a May Day gathering in Manzini, Swaziland. The first factor was that three applications Years: Masuku had delivered a speech at the had already been filed by various individuals 2014 – gathering and Dlamini participated in the to challenge the constitutionality of the singing of songs, and both had chanted sedition and terrorism legislation, and that PARTNERS “viva PUDEMO viva”, and called for the Masuku and Dlamini intended to make end of the Tinkhundla political system in their own application in this regard. These Amnesty the country. The gathering had been an applications would have an impact on International opportunity for political activists to draw Masuku and Dlamini’s criminal trial as it Lawyers for Human attention to various challenges facing would be delayed until the constitutional Rights Swaziland. Masuku and Dlamini were challenges had been finalised, and, in the charged with two charges of contravening event that the Court struck down the laws Swaziland Lawyers the Suppression of Terrorism Act, and two as unconstitutional, the charges Masuku for Human Rights charges of contravening the Sedition and and Dlamini face would fall away. The Subversive Activities Act. second factor was that Masuku’s health, as The pair applied for bail soon after their a diabetic, had deteriorated while he had arrest. Simelane J, who heard the matter, been in detention. The third factor was that delivered an oral judgment in which he the continued detention was obstructing refused bail on the basis that the security Dlamini’s ability to complete his university of the country would be threatened if they studies. were released, and that they were a flight The Court held that Masuku’s ill health risk. Simelane J also ruled that Dlamini was not a new factor, as it had been listed in had a propensity to commit offences, the arguments in the initial application for despite the fact that he had never been bail. Simelane J said that Masuku is entitled convicted of any crime. In October 2014 to receive medical care while in detention they made a fresh application for bail based and his medical condition did not warrant on the presence of new circumstances a release on bail. The Court also held that that had arisen since the initial refusal. Dlamini could not raise the interruption in They also filed an application challenging his education as a new factor because it is the constitutionality of the two pieces of not an automatic right that a prisoner be legislation under which they had been able to study while in detention. charged. This challenge was joined to three The Court held that, given the severity other applications which also challenged of the sentences likely to be imposed in the constitutionality of those two laws. the event of a conviction, the applicants were a flight risk. Simelane J refused
54 SALC CASE BOOK FREEDOM OF EXPRESSION 7
to acknowledge the relevance of their prosecutor indicated that his office was financial and emotional ties to Swaziland no longer opposing bail, and the Supreme in determining whether they would be Court granted bail to the two men and they likely to evade trial. The Court also held that were released that afternoon. The appeal Masuku and Dlamini had uttered threats was one of a series in which the Supreme during the May Day celebration and that Court overturned judgments of Simelane this indicated a likelihood of endangering J in the High Court, and came shortly the safety of the public. after Simelane J had been suspended on The Court held that Masuku and Dlamini suspicion of defeating the ends of justice. were the “architects” of the delay in the commencement of the criminal trial. This The Constitutional Challenges in was despite the fact that at the time of the High Court the November bail application Masuku The consolidated case challenging and Dlamini had not filed an application the constitutionality of the Sedition challenging the constitutionality of the laws, and Subversive Activities Act and the and that their criminal trial would have been Suppression of Terrorism Act was before delayed on the basis of the applications filed the High Court in September 2015 and by other individuals to the same laws. February 2016. Masuku and Dlamini argued that the Suppression of Terrorism Act was In the Supreme Court an infringement of their right to freedom Masuku and Dlamini appealed the High of expression as the definition of “terrorist Court judgment, and the matter came act” was so overbroad that it criminalised before the Court on 14 July 2015. The legitimate criticism. In addition, they
SALC CASE BOOK 55 7 FREEDOM OF EXPRESSION
argued that the legislative provisions which empowered the authorities to declare organisations as terrorist groups on the basis of very little evidence violated their rights to freedom of association and to a fair trial. After the conclusion of oral argument in February 2016, the Court reserved judgment.
"Nevertheless, this Court would like to point out that despite the concession made by the Crown, the evidence contained in the record shows clearly that the appellants had good prospects of success on appeal in the absence of substantial evidence that their release on bail was not in the interests of justice.” (Supreme Court, Maphalala J, 29 July 2015)
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MISA Zimbabwe and Others v The Minister of Justice
The Zimbabwean Constitutional Court confirmed that criminal defamation is no longer an offence in the country.
Country: Factual Background In the Constitutional Court Zimbabwe In 2014, the Zimbabwean Constitutional MISA Zimbabwe and the five media Programme Areas: Court ruled that criminal defamation was practitioners first put up detailed arguments Freedom of inconsistent with the Constitution, and as to why the newly formulated right to Expression therefore invalid. However, the case was freedom of expression would not permit decided under the previous Constitution – the offence of criminal defamation. They Years: despite the fact that the new Constitution submitted that, even with the increased 2015-2016 had already come into effect – which protection given to individuals’ reputations, meant there was uncertainty over the status criminalising defamation would still not be a PARTNERS of the offence in Zimbabwe. The difficulty justifiable limitation to the right to freedom arose because of a paragraph in the 2014 of expression. MISA Zimbabwe judgment where the Court recognised that At the first hearing, in July 2015, the Atherstone and Cook the formulation of the right to freedom of Court requested that all parties provide Legal Practitioners expression in the new Constitution differed supplementary arguments discussing from that in the previous one. Patel J had the effect of the 2014 judgment on the commented that “it is arguable that the offence of criminal defamation. Specifically, freedom of expression conferred by s 61 the Court wanted the parties to make [of the new Constitution] is to be more submissions on whether the effect of the narrowly construed as being subordinate to 2014 declaration of constitutional invalidity the value of human dignity”, and that was to make the offence void ab initio – “[i]t might also be argued that the offence of that is, whether the offence had ceased criminal defamation is a justifiable limitation to exist in Zimbabwe. The question was on the freedom of expression as envisaged whether an offence that had been declared by s 86 of the new Constitution.” unconstitutional, could be revived simply by One of the problems with the existence the adoption of a new Constitution. of a criminal defamation offence is the MISA Zimbabwe and the media “culture of fear” that occurs: journalists practitioners and a new amicus curiae fear reporting on issues that may lead to a made submissions that argued that once charge of criminal defamation irrespective a statutory provision has been declared of whether they would be charged, or unconstitutional it becomes as inoperable would be prosecuted. As a result of the as if it had never been enacted. This means lack of clarity over whether the offence that the 2014 judgment’s effect was to continued in Zimbabwe, in 2015, the remove the offence from the time it was Zimbabwean chapter of the Media Institute first introduced, and so it was deemed not of Southern Africa (MISA Zimbabwe) and to be part of Zimbabwe’s criminal law at the five media practitioners applied to the time the new Constitution came into effect. Constitutional Court, seeking an order that The Court agreed with MISA Zimbabwe the offence was unconstitutional in terms of and the media practitioners, and, on 3 the new Constitution. February 2016, issued an order that clarified that the offence of criminal defamation was
SALC CASE BOOK 57 7 FREEDOM OF EXPRESSION
not a valid and existing law in Zimbabwe when the new Constitution came into force, and therefore criminal defamation was no longer an offence in Zimbabwe. Although the Court indicated that it would provide a written judgment, this has not yet been delivered.
58 SALC CASE BOOK 8 INTERNATIONAL CRIMINAL JUSTICE
SALC CASE BOOK 59 8 INTERNATIONAL CRIMINAL JUSTICE
Bishop Rubin Phillip and Another v National Conventional Arms Control Committee and Another
Members of a religious community in South Africa sought an interdict preventing an arms shipment, from China and destined for Zimbabwe, to enter South Africa’s harbour. At the time, there was significant tension in Zimbabwe when the release of the 29 March 2008 election results was delayed.
Countries: Factual Background In the High Court South Africa/ On 10 April 2008, the merchant vessel On 18 April 2008, the Durban High Court Zimbabwe An Yue Jiang anchored outside Durban heard an urgent application requesting an Programme Area: Harbour awaiting permission to enter interim order suspending the operation of International Criminal Durban Harbour to discharge its cargo. A the conveyance permit and prohibiting the Justice conveyance permit was issued on 14 April delivery or conveying of the consignment 2008. There was evidence that the ship of goods pending the final determination of Year: contained a consignment of arms which the case. 2008 were destined for the Zimbabwe Ministry of The applicants argued that the National Defence. Zimbabwe had ordered the arms Conventional Arms Control Act prohibited PARTNERS in January 2008 and the ship departed from the transfer of conventional arms to China in March 2008. However, the tensions countries where it could contribute to Solidarity Peace Trust that followed the March 2008 elections in an escalation of conflict or human rights Diakonia Zimbabwe and the failure to release the abuses. The Court granted the interim relief election results, raised concerns that the on the same date and the ship immediately weapons might contribute to instability in lifted anchor and departed. The Zimbabwe. International Transport Workers’ Federation Two applicants sought to interdict the actively discouraged its members from South African authorities from allowing assisting in the offloading of cargo from the the ship to anchor and discharge its cargo ship at any other port in Africa. The ship at the Durban Harbour. The first applicant was eventually allowed to dock in Luanda, was Bishop Rubin Phillip, who was the Angola under the condition that it only chairperson of the Solidarity Peace Trust, offloads its cargo bound for Angola, and not and the second applicant was Gerald Patrick the arms, and that it takes fuel and supplies Kearney, a former director of Diakonia, anti- for the crew. The ship then returned apartheid activist and pacifist. At the time, to China with the arms consignment members of the South African Transport undelivered. and Allied Workers Union who worked on the dock refused to offload any cargo from the ship.
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Southern Africa Litigation Centre and Another v National Director for Public Prosecutions and Others
In a case brought under South Africa’s domestication of the Rome Statute of the International Criminal Court, SALC sought to compel the South African authorities to investigate crimes against humanity committed in Zimbabwe, by Zimbabweans and against Zimbabweans.
Countries: Factual Background commission of the crime. SALC submitted that the authorities were obliged to South Africa/ On 28 March 2007, the Zimbabwean police investigate the crimes because the alleged Zimbabwe raided Harvest House, the headquarters of perpetrators regularly visited South Africa the opposition political party, the Movement Programme Area: for official and personal reasons, and so the for Democratic Change (MDC), and arrested International presence requirement could be fulfilled, and and detained suspected and actual MDC Criminal Justice that the victims and witnesses were present supporters. During their detention many of in South Africa. Years: these individuals were allegedly subjected After more than a year, the National 2010 – 2014 to torture under the instruction of high- Prosecuting Authority (NPA) and the South ranking police officers and government African Police Service (SAPS) notified SALC officials. PARTNERS that they would not initiate an investigation Soon after the raid, SALC submitted into the allegations of torture. Considering Lawyers for a detailed dossier to the South African this decision unlawful and unconstitutional, Human Rights Priority Crimes Litigation Unit (PCLU), SALC and the Zimbabwe Exiles Forum (ZEF), as the unit responsible for investigating Zimbabwe with the assistance of Lawyers for Human and prosecuting international crimes in Exiles Forum Rights, approached the North Gauteng High South Africa, and requested that the PCLU Court to review and set aside that decision. investigate the acts of torture committed in Zimbabwe. SALC argued that because the raid and the subsequent acts of torture In the High Court were not isolated and formed part of a SALC and ZEF brought an application larger campaign of state-sanctioned torture against the National Director of Public perpetrated on a widespread and systematic Prosecutions, the PCLU, the Director level they therefore constituted crimes General of the Department of Justice and against humanity. The Implementation Constitutional Affairs, and the National of the Rome Statute of the International Commissioner of SAPS. SALC and ZEF Criminal Court Act (the ICC Act) gives South argued that the decision to not investigate African authorities jurisdiction to investigate the allegations of torture was wrong in and prosecute international crimes as law and based on a number of errors, and defined by the International Criminal requested that the Court set aside the Court, namely crimes against humanity, decision. They submitted that the South genocide and war crimes as long as the African authorities had misunderstood the suspect is present in South Africa after the power and obligations the ICC Act placed
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on them in respect of international crimes not have to be complete in order to warrant committed outside the country’s border, further investigation. The Court stated that and that the decision had been taken based the NPA and SAPS should not have taken on a number of irrelevant considerations into account the foreign policy implications (including that an investigation may hurt of an investigation against Zimbabwean foreign relations with Zimbabwe). government officials, as that was an The crux of the argument SAPS and irrelevant consideration in determining the NPA put before the Court was that whether an investigation should be initiated. they were not permitted to initiate an The Court responded to SAPS’s investigation into crimes committed argument that, as a prosecution could not outside of South Africa, by foreigners who take place unless the suspect was present remained outside of the country, and in South Africa, there was no point in that, in any event, an investigation in this initiating an investigation before knowing matter would be impracticable because whether a prosecution could occur. SAPS most of the evidence is in Zimbabwe and argued that this meant that an investigation any investigation could cause diplomatic could only take place whilst a suspect was tension between South Africa and in South Africa, but Fabricius J held that Zimbabwe. The NPA in particular argued this was absurd, and held that the ICC Act’s that it can never initiate an investigation requirement that a suspect be present in into any crime, because criminal South Africa applied only to prosecutions, investigations fall squarely within the duties and not to investigations. He found that the of the SAPS. SAPS argued that they had South African authorities had the authority taken the decision not to investigate the to investigate international crimes even if crimes because of the paucity of evidence the suspect was out of the country. submitted in the dossier. The Court therefore declared that the In March 2012, the matter came before decision not to investigate the crimes Fabricius J. The Court was tasked with included in the dossier was unlawful, determining whether, in terms of the ICC unconstitutional and invalid. Fabricius J Act, the South African authorities were ordered that the request by the applicants permitted to initiate an investigation into to investigate the crimes against humanity crimes committed outside South Africa be fully assessed by SAPS and the NPA. by foreigners, and against foreigners, and whether the NPA and SAPS should have In the Supreme Court of Appeal investigated the crimes set out in the After Fabricius J refused the NPA and dossier. SAPS’s application for leave to appeal, the Fabricius J held that the NPA and SAPS authorities petitioned the Supreme Court had not acted in accordance with their of Appeal (SCA). In November 2013 the SCA obligations under the ICC Act, as well as the heard the matter and delivered judgment. National Prosecuting Authority Act, and set The NPA had argued that, in light of a aside the decision taken by the authorities newly created priority crimes investigative not to initiate an investigation into the unit in SAPS, the NPA simply was not the alleged torture committed in Zimbabwe. first port of call when a complaint like that He further found that SAPS were incorrect included in the SALC dossier was made. in declining to investigate because the SAPS maintained its position that it had no evidence they had been presented with was jurisdiction under the ICC Act to investigate insufficient, and held that the dossier did international crimes when the suspect was
“It was not their obligation to take political or policy considerations into account. These change in any event from time to time, whilst a proper jurisprudence remains a concrete basis for a stable society living under the twinkling but stern eyes of the Rule of Law. Any such considerations would affectively destroy the efficacy of the ICC Act.” (High Court, Fabricious J, 8 May 2012)
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not within the at some stage (who would then be eligible territory of South for arrest and prosecution), there is no Africa. SAPS also reason not to initiate an investigation in the argued that, even meantime. The Court held that it was clear if it had the power that an investigation was both permissible to investigate and warranted, but declined to order how international that investigation should be carried out by crimes, the the authorities. circumstances in this case did not In the Constitutional Court create a sufficient The NPA accepted the SCA’s decision, basis on which but SAPS appealed that decision to South to launch an Africa’s highest court, the Constitutional investigation. Court. The case was heard on 19 May 2014, In the and judgment was delivered by Majiedt judgment, Navsa J, on behalf of a unanimous court, on 30 JA provided a October 2014. At the Constitutional Court, comprehensive seven amici curiae were admitted and their analysis of the submissions were considered by the Court. different types of Majiedt J characterised the issues facing jurisdiction in the the Court as determining whether SAPS criminal process. has a duty to investigate crimes against He acknowledged humanity committed outside of South that the ICC Africa, and what circumstances trigger Act territorially this duty. He explained that this case constrained South Africa’s “adjudicative called upon the Court to establish South jurisdiction”, which is the power to African powers and obligations to ensure prosecute crimes, to when the suspect is in that perpetrators of international crimes South Africa, but said that this did not have committed outside the country are held a bearing on the other forms of jurisdiction. accountable for their actions. Navsa JA explained that investigating The Court explicitly stated that the crimes fell under “enforcement jurisdiction”, purpose of the ICC Act was to enable the and found that this type of jurisdiction was prosecution of crimes against humanity not limited by the ICC Act. The final form committed beyond South Africa’s borders, of jurisdiction is “prescriptive jurisdiction” and that torture and other crimes against which refers to a country’s authority to humanity had become so universally declare certain conduct as prohibited, condemned that all countries have an and South Africa, in line with international interest in their prevention, irrespective practice, proscribes conduct as criminal that of where the crimes were committed. It does not necessarily have a territorial link was in light of the international nature with the country. The Court found that the of these crimes, that the South African South African authorities had misconceived legislature used the ICC Act to define their jurisdictional power under the ICC Act, genocide, crimes against humanity and war and were mistaken as to their competence crimes – irrespective of where they were to investigate crimes against humanity committed – as crimes in South Africa. committed extra-territorially. Majiedt J also provided a thorough analysis Navsa JA held that the ICC Act of the international law obligations South did confer on SAPS the jurisdiction to Africa has assumed in terms of the various investigate international crimes irrespective international instruments to which the of the territorial location of the suspect, but country is a signatory. cautioned that this investigation could only The Court explained that although all take place in South Africa. He continued to crimes against humanity, war crimes, and say that, in the present matter, if there is a genocide were defined as crimes, the ICC prospect of a suspect being in South Africa Act did set the limits on when and how
SALC CASE BOOK 63 8 INTERNATIONAL CRIMINAL JUSTICE
unwilling or unable to prosecute, and only if the investigation is confined to the territory of the investigating state. In this case, the Court found that it was very unlikely that the Zimbabwean police would have pursued the investigation with sufficient zeal, due to the high profiles of the accused. The Court made it clear that if Zimbabwe was able and willing to investigate and prosecute the alleged instances of torture, there would be no place for South Africa to do so. The principle of practicability requires that before assuming universal jurisdiction over an extraterritorial international crime, South African authorities must consider jurisdiction over those crimes could be whether embarking on an investigation exercised. Majiedt J held that although is reasonable and practicable in light the law requires the presence of a suspect of the particular circumstances of the for their criminal trial, this presence is case. Majiedt J found that foremost not required for an investigation into the among these considerations are whether crime. He said that this was in line with the investigation is likely to lead to a international practice, and was more prosecution, and accordingly, whether practical than requiring presence of the the alleged perpetrators are likely to be suspect for an investigation. present in South Africa either on their The Court examined the three own, or through an extradition request. jurisdictional distinctions: prescriptive; Other factors that would contribute to this adjudicative; and enforcement jurisdiction. likelihood include geographical proximity The Court explained the link between these of South Africa to the place of the crime. forms of jurisdiction and universality, and However, in all cases, the ultimate enquiry said that domestic criminal jurisdiction is “whether, all relevant considerations based on universality applies to prescriptive weighed, the SAPS acted reasonably in jurisdiction, but that investigations – which declining to investigate crimes against constitute an exercise of adjudicative humanity committed in another country”. jurisdiction – are permitted under the In conclusion, the Constitutional Court principles governing universal jurisdiction, held that SAPS had misconceived its duty as long as they are confined to the territory to investigate a crime against humanity of the investigating state. The Court outside the country, and that because of indicated, however, that the universal the substantial connection between South jurisdiction to investigate international Africa and Zimbabwe it was obliged to crimes is not absolute, and is subject to at initiate an investigation in this case. Majiedt least two limiting principles: subsidiarity and J therefore set aside the decision taken practicability. by SAPS not to investigate the dossier The principle of subsidiarity establishes and ordered that it commence with an that South Africa may investigate investigation. international crimes committed abroad only if the state with traditional jurisdiction is
“It is clear that a primary purpose of the Act is to enable the prosecution, in South African courts or the ICC, of persons accused of having committed atrocities, such as torture, beyond the borders of South Africa.” (Constitutional Court of South Africa, Majiedt J, 30 October 2014)
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Mail and Guardian Media Limited and Others v Chipu NO and Others
SALC was admitted as amicus curiae in this South African Constitutional Court case in which a number of media houses applied for access to Czech fugitive Radovan Krejcir’s Refugee Appeal Board hearing.
Country: Factual Background their families, a flexible system is required to allow for that confidentiality to be lifted South Africa In 2007 Radovan Krejcir, a Czech national in some exceptional circumstances. SALC wanted for tax fraud and conspiracy to Programme Area: was concerned that absolute confidentiality commit murder in his home country, International may frustrate the broader purpose and applied for asylum in South Africa, and Criminal Justice objectives of the Refugees Act and affect when that application was refused he the credibility, integrity and sustainability Year: appealed to the Refugee Appeal Board of the refugee protection regime. It may 2013 (RAB). When Krejcir’s appeal was brought also have implications for South Africa’s before the RAB the Mail and Guardian adherence to international obligations it newspaper and two other media houses has assumed under international treaties, requested that the RAB allow their conventions or customary international journalists to attend the hearing. The RAB law. By using New Zealand and Canada’s refused this request on the grounds that all refugee legislative framework as a guide, asylum applications are confidential. The SALC argued that in order to adequately media houses then brought an application protect the right to freedom of expression, to the North Gauteng High Court, arguing South Africa’s refugee law should allow that the RAB’s refusal was an unjustifiable for exceptions to absolute confidentiality. infringement of the right to freedom of SALC submitted that a flexible system expression, including freedom of the media. provided safeguards against the incorrect The High Court ruled that the acceptance of individuals who do not meet confidentiality provision in the Refugees Act the definition of a refugee under South did constitute a limitation on the freedom African and international law, by allowing of the press and other media, but that it for external scrutiny of certain decisions was justifiable given the importance of to ensure compliance with domestic and confidentiality to the integrity of the asylum international law. SALC agreed with the process. media houses’ proposal that the RAB be In the Constitutional Court given a discretion to decide whether to relax the confidentiality requirements on a The media houses then appealed directly case by case basis. to the Constitutional Court, and SALC The Court accepted that the Refugees applied to be admitted as amicus curiae. Act’s absolute confidentiality provisions SALC’s submissions argued that while were a limitation of the right to freedom confidentiality is a vital tool in ensuring of expression, but that the main question the safety of asylum seekers, refugees and was to determine whether that limitation
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was justifiable under the Constitution. cases, the limitation on the right to freedom In applying this limitations analysis, the of expression is unreasonable, unjustifiable Court emphasised the need to achieve and accordingly invalid. proportionality between the implicated The Court ordered a temporary rights. Zondo J highlighted the importance reading in of a discretion on the RAB to of the right to freedom of expression, and “on application or of its own accord allow of the vital role the media plays in ensuring any person or persons to attend a hearing, authorities are held accountable, but also subject to conditions determined by it” the importance of protecting the safety of while allowing Parliament time to correct asylum applicants. The Court concluded the constitutional inconsistency in the that the rights of asylum applicants could legislation. still be protected through less restrictive Nonetheless, the Court declined to means than absolute confidentiality, and make an order permitting the media access so found that the confidentiality provisions to Krejcir’s appeal hearing because the in the Refugees Act were a disproportional applicants has elected not to appeal against limitation to the right to freedom of the High Court’s decision upholding the expression. RAB’s refusal and further because, after The Constitutional Court ruled that to the handing down of the judgment, the the extent that the Refugees Act does not RAB will have the discretion to relax the confer a discretion upon the RAB to allow requirement of confidentiality. access to its proceedings in appropriate
“The limitation serves the purpose of protecting the integrity of the asylum system and of providing asylum applicants with protection against disclosure of the fact that they have applied for asylum and the information in their asylum applications.” (Constitutional Court of South Africa, Zondo J, 27 September 2013)
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Consortium for Refugees and Migrants in South Africa (CoRMSA) v President of the Republic of South Africa
A refugee organisation in South Africa applied for the judicial review of the decision to grant asylum to a suspected war criminal from Rwanda living in South Africa.
Country: Factual Background indictment, which formed the basis of an extradition request to South Africa, South Africa Kayumba Nyamwasa, a Rwandan was issued in February 2008. It charges national living in South Africa survived an Programme Area: Nyamwasa and other former high-ranking assassination attempt on 19 June 2010. International Criminal officials of the Rwandan military with After this attack, he applied for asylum on Justice crimes against humanity and war crimes 22 June 2010 and was granted refugee allegedly perpetrated against civilians in Years: status that day. Rwanda and the Democratic Republic of 2012 – Upon learning of the South African Congo between 1990 and 2002. The alleged authorities’ decision to grant Nyamwasa crimes include the murder of three Spanish refugee status, the Consortium of Refugees PARTNERS nationals and the massacre of 2500 Hutu and Migrants in South Africa (CoRMSA), refugees at the Byumba football stadium. CoRMSA supported by SALC, prepared a legal brief The French indictment and extradition detailing the implications of the decision. University of the request relate to the 1994 aeroplane crash The briefing paper highlighted the fact Witwatersrand Law that resulted in the death of a number of that Nyamwasa had been a high ranking Clinic people including former Rwandan President member of the Rwandan Patriotic Army Habyarimana and three French nationals. (RPA) between 1990 and 1998. Between The Rwandan extradition request is based 1994 and 1998 he allegedly commanded on charges connecting Nyamwasa to fatal troops stationed on the border between the grenade attacks in Kigali in 2010. then-Zaire (which, in 1997, was re-named The Briefing Paper argued that, in the Democratic Republic of Congo) and terms of South African and international Rwanda. The RPA participated in warfare law, the suspicion that Nyamwasa was in Congo and is allegedly responsible for involved in the commission of international the perpetration of war crimes and crimes crimes meant that he did not qualify for against humanity in both territories. The recognition as a refugee. CoRMSA and Briefing Paper set out the reasons why SALC maintained that the decision taken Nyamwasa should be ineligible for refugee by the South African authorities to grant status under South African refugee law. Nyamwasa refugee status was in violation SALC and CoRMSA highlighted that of the Refugees Act and therefore unlawful. Nyamwasa is the subject of extradition CoRMSA and SALC requested that requests from three separate states: the South African authorities withdraw Spain, France, and Rwanda. The Spanish the decision to grant Nyamwasa asylum,
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and when they refused to do so CoRMSA In her judgment on 26 September and SALC made an application for the 2014, nearly two years after the hearing, documents used in the processing of Mngqibisa-Thusi J ruled that Nyamwasa Nyamwasa’s application for asylum. When had been correctly granted refugee status. that was also opposed, on the grounds that She held that Nyamwasa fell within the the contents of asylum applications are vulnerable group the refugee legislative confidential, CoRMSA and SALC launched framework is designed to protect, and review proceedings in the South Gauteng that CoRMSA and SALC had not shown High Court. sufficient cause that there is reason to believe that Nyamwasa was involved in the In the High Court commission of the alleged crimes. CoRMSA and SALC submitted that the The Judge rejected CoRMSA and SALC’s decision to grant refugee status to a argument that the documents related to person suspected of being involved in the granting of his refugee status should be the commission of serious crimes raises made available to the Court and their legal questions about the proper interpretation representatives to ensure transparency of South Africa’s Refugee Act, and about and accountability. She held that when an the intersection between refugee law and applicant qualifies for refugee status the international criminal law. They argued that confidentiality clause in the legislation is South Africa has an obligation to ensure peremptory. that it does not become a safe haven for Unfortunately Mngqibisa-Thusi J perpetrators of international crimes and did not refer to the Constitutional Court that its constitutional mandate is to ensure decision that had held that confidentiality accountable, transparent and rational in asylum applications should not be decision making. absolute. CoRMSA with SALC’s support has filed an appeal.
“I am of the view that the public interest does not demand that openness and accountability should surpass the safety of a vulnerable person..” (High Court, Mngqibiza-Thusi J, 26 September 2014)
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Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and others
SALC sought an order from the High Court that South Africa was obliged to arrest Sudanese President Omar Al Bashir, a fugitive from the International Criminal Court, when he attended an African Union Summit in Johannesburg.
Country: Factual Background Court seeking an order that the failure to arrest the ICC fugitive was unconstitutional, South Africa In May 2015, SALC became aware that and ordering the authorities to take all Sudan’s President Bashir had been invited Programme Area: reasonable steps to prepare to arrest the to attend the 25th African Union (AU) International Sudanese President. Summit to be held in Johannesburg, Criminal Justice South Africa between 7 and 15 June In the High Court Years: 2015. President Bashir was indicted by 2015 – the International Criminal Court (ICC) in On 14 June 2015, the matter came before 2009 on seven counts of war crimes and Fabricius J. After the state requested a PARTNERS crimes against humanity and, in 2010, on postponement in order to prepare for three counts of genocide. The charges all their oral argument, the Court issued an Webber Wentzel relate to suppression of insurgency in the interim order which compelled all the Attorneys Sudanese region of Darfur. In line with the state respondents to prevent President Rome Statute, the ICC requested all states Bashir from leaving South Africa pending parties to arrest President Bashir should the finalisation of the matter before court. he be present in their jurisdictions. In Later that day, the state again requested May 2015, SALC sent a letter to the South a postponement and the Court amended African government reminding officials its original interim order, including further of their obligations under domestic and clauses that required the state to ensure international law to cooperate with the ICC that all ports of entry into and exit out of and arrest President Bashir should he attend South Africa were served with the interim the AU Summit. The letter highlighted that order, and to provide the Court and SALC the Director-General of the Department of with proof of service and contact details of International Relations and Cooperation had the responsible official at each port. previously asserted that South Africa would Oral argument was heard the following arrest President Bashir if he were to visit day, before a full bench convened by the the country. Upon learning that President Judge President of the Gauteng Division Bashir was present in South Africa to attend of the High Court. The Judge President, the Summit, and had not been arrested, Dunstan Mlambo, and the Deputy Judge on 13 June 2015 SALC filed an urgent President of the North Gauteng High Court, application before the North Gauteng High Aubrey Ledwaba, joined Fabricius J on the
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bench to hear the matter. South African law did or did not confer SALC’s argument was that South Africa immunity from criminal prosecution on had to arrest President Bashir in order to President Bashir, as a fugitive from the ICC. comply with international and regional The Court held that there was no legal basis obligations the country had assumed for the Sudanese leader to enjoy immunity. under the Rome Statute of the International First, it stated that as the OAU Convention Criminal Court, and the South African had not been domesticated in South Africa, Implementation of the Rome Statute of the its principles were not legally binding, and International Criminal Court Act (the ICC that the failure to ratify the Convention Act). This Act, in section 4(2), confirms that indicated a clear intention on the part of the the fact that an individual is or was a head legislature not to confer blanket immunity of state cannot constitute a defence to any on AU bodies and meetings. Second, the crime or serve as a ground for a reduction Court said that the agreement between the of sentence. This rejection of head of state AU and South Africa to host the AU Summit immunity is a domestic implementation did not confer immunity on heads of state. of the Rome Statute provision. The ICC The Court agreed with SALC’s position that Act requires South African authorities to the wording of the agreement meant that take steps to detain an individual against AU Commission staff, and delegations of whom an arrest warrant has been issued non-governmental organisations did enjoy by the ICC and arrange for their transfer immunity, but that this did not include to the ICC to stand trial. SALC argued that member states or their representatives. these two legislative provisions meant that Third, the Court held that the Immunities President Bashir did not enjoy immunity Act empowers the Minister of International in South Africa and that the authorities Relations to grant immunity to certain were required, under domestic law, to people, but that this discretion cannot be initiate processes for his arrest. In addition, exercised in such a manner that would the Rome Statute obliges all states parties prevent the arrest of an ICC fugitive. The to “cooperate fully with the [ICC] in its Court said that, additionally, the provision investigation and prosecution of crimes of the Immunities Act that was used in the within its jurisdiction.” adoption of the agreement with the AU The state respondents argued that the cannot be used to confer immunity as it Diplomatic Immunities and Privileges Act does not even relate to immunity, and that (the Immunities Act), rather than the ICC the Immunities Act itself permits immunity Act, applied in the question of immunity for only for those who enjoy immunity under President Bashir. They submitted that this international law – which, by virtue of the legislation, which gives effect to the Vienna Rome Statute, President Bashir does not. Convention on Diplomatic Relations, 1991, Lastly, the Court held that because the confers immunity on President Bashir as Rome Statute and the ICC Act expressly a head of state and diplomatic agent and deny immunity to heads of state, any that the country’s authorities were therefore immunity that he may enjoy because of prohibited from arresting him. In addition, his position as President does not apply in they referred to a cabinet decision which respect of crimes under the Rome Statute. had granted the President immunity and The Court concluded that the state’s to an agreement entered into between arguments that the AU agreement and South Africa and the AU which stated that the cabinet decision trumped the Rome all attendees at the Summit were there Statute and ICC Act was “ill-advised and at the invitation of the AU and not South ill-founded”. The Court also referred to a Africa, and that all those attending the decision issued by the pre-trial chamber Summit were granted immunity under the of the ICC in which it held that members General Convention on the Privileges and of the United Nations (UN) agree to carry Immunities of the Organisation of African out decisions of the UN Security Council Unity (the OAU Convention). (of which the referral of the situation of The case therefore turned on whether Sudan, which then led to the ICC indicting
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President Bashir, is one), and that those would be prosecuted in a domestic court obligations trump those under other or at the ICC. In addition, SALC argued international agreements. that because the situation in Sudan was In the judgment the court also referred to the ICC by the United Nations addressed the fact that President Bashir Security Council, Sudan, by virtue of its was permitted to leave South Africa in membership of the United Nations, was contravention of the interim order, and obliged to cooperate with the ICC as per the invited the National Director of Public Security Council referral. In addition, SALC Prosecutions to consider whether to indicated that the referral constitutes an institute criminal proceedings against those implicit wavier of head of state immunity. responsible for the failure to comply with Sudan is also a signatory to the Genocide that court order. Convention, in which it states that a person’s status cannot shield them from In the Supreme Court of Appeal punishment for committing genocide. The State Respondents filed an application The Helen Suzman Foundation, for leave to appeal the High Court a Johannesburg-based organisation judgment, and when that was refused, seeking to promote liberal constitutional petitioned the Supreme Court of Appeal democracy, was admitted as amicus curiae directly. The State’s argument shifted focus, but a number of groups representing and instead of relying on the argument Sudanese victims were refused admission as that the agreement between the AU and their applications did not comply with the South Africa to host the Summit conferred Rules of the Court. immunity on President Bashir, they argued Writing the majority judgment, Wallis that personal immunity of a serving head JA characterised the issue before the of state continued to exist under customary court as being “whether there is now an international law, even in the context of international law exception to the principle international crimes, and that neither the of head of state immunity, enabling a Rome Statute nor South African law altered state or national court to disregard such that position. immunity when called upon by the ICC to SALC argued that the State’s reliance assist in implementing an arrest warrant.” on customary international law and South The Court stated that, based on an Africa’s Immunities Act was misplaced, and assessment of international jurisprudence that the proper interpretation of the ICC Act and academic debate, there was not an and customary international law resulted in exception to immunity of heads of state for President Bashir no longer enjoying head of international crimes. state immunity and therefore, South Africa However, the Court recognised that was obliged to cooperate with the ICC and this was not the end of the issues as arrest President Bashir. SALC reiterated SALC had argued that the ICC Act placed that the ICC Act, enacted to give effect to obligations on South Africa, irrespective of the Rome Statute, precluded anyone from what customary international law required. raising immunity as a defence when facing Wallis JA said that question as to whether arrest – irrespective of whether the matter the ICC Act “has the effect of removing the
“A democratic state based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by the Court orders. A Court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the State, an organ of State or state official does not abide by Court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.” (North Gauteng High Court, 23 June 2015)
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a head of state in defence to a request for surrender to the ICC. The Court rejected the State’s argument that the ICC Act cannot be read as refusing immunity because that would amount to a tacit amendment of the Immunities Act, and held that the Immunities Act “continues to govern the question of head of state immunity, but the [ICC] Act excludes such immunity in relation to international crimes and the obligations of South Africa to the ICC. Ponnan JA wrote a separate judgment, also signed by Lewis JA, which did not look at the customary international law arguments but reached the same conclusion as Wallis JA. Ponnan JA stated that but for the ICC Act, President Bashir would have enjoyed immunity under the Immunities Act. He goes on to explain that the apparent conflict between the two laws immunity that President Al Bashir would can be resolved by understanding that by otherwise enjoy is a matter of the proper enacting the ICC Act the legislature “made construction of the [ICC] Act.” He said that a clear choice to negate the head of State because the purpose of the ICC Act was immunity that might otherwise have stood to ensure the effective implementation of in the way of the arrest and surrender of the Rome Statute in South Africa, it should President Al Bashir.” be interpreted so as to ensure South Africa does give effect to its obligations under the Rome Statute. The Court undertook a thorough textual analysis of the ICC Act provisions, and concluded that it would be an absurdity to allow an individual to claim immunity as
“I conclude therefore that when South Africa decided to implement its obligations under the Rome Statute by passing the Implementation Act it did so on the basis that all forms of immunity, including head of state immunity, would not constitute a bar to the prosecution of international crimes in this country or to South Africa cooperating with the ICC by way of the arrest and surrender of persons charged with such crimes before the ICC, where an arrest warrant had been issued and a request for cooperation made. I accept, in the light of the earlier discussion of head of state immunity, that in doing so South Africa was taking a step that many other nations have not yet taken. If that puts this country in the vanguard of attempts to prevent international crimes and, when they occur, cause the perpetrators to be prosecuted, that seems to me a matter for national pride rather than concern.” (Supreme Court of Appeal, Wallis JA, 15 March 2016)
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Law Society of Botswana and Motumise v The President and Others
In February 2015, Omphemetse Motumise was nominated for appointment as a judge by the Judicial Service Commission, but the President declined to appoint him. The Law Society of Botswana launched proceedings challenging the discretion of the President to appoint judges and the confidential nature of the proceedings of the Judicial Service Commission.
Country: Factual Background The President, in his answering affidavit, argued that he retains a discretion to decide Botswana In December 2014, Mr Motumise applied for who to appoint and that in making his the position of a judge of the High Court of Programme Area: decision, he takes into account “a broad Botswana. After a short listing and interview Rule of Law range of material considerations, including process, the Judicial Service Commission matters of national security, the socio- Years: unanimously concluded that Mr Motumise political situation in Botswana, public 2015 – had an “outstanding professional history, perceptions of the relevant candidate and experience and disposition” and accordingly the judiciary, and questions of policy”. advised the President that he be appointed PARTNERS The President submitted that these to the post. The President of Botswana considerations involved information which Law Society of refused to appoint Mr Motumise, without the Judicial Service Commission does not Botswana giving reasons for his decision. necessarily have access to and which the The applicants, the Law Society of Rantao Kewagamang Judicial Service Commission would not Botswana and Mr Motumise, sought a Attorneys be properly equipped to evaluate. The judicial review of the President’s decision President further submitted that there may to refuse to appoint Mr Motumise. The be reasons for not appointing a candidate applicants further requested that the which may adversely reflect upon the Court declares that the President is bound integrity, character and reputation of the to follow and implement the advice of candidate, and that withholding such the Judicial Services Commission, as per reasons is in the candidate’s interests. section 96(2) of the Constitution which provides that “judges of the High Court shall be appointed by the President, acting in In the High Court accordance with the advice of the Judicial The case was argued before Judges Walia, Service Commission”. The applicants further Tafa and Solomon JJ on 9 November requested a declaratory order that the 2015. On 5 February 2016, judgment was Judicial Service Commission’s proceedings delivered in favour of the respondents. must as a rule be open to the public, and The Court found that the power to that the Judicial Service Commission appoint a judge vests in the President as must make public the outcome of its the appointing authority, with the only deliberations on the appointment of judges. requirement that he cannot appoint someone who has not been recommended
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by the Judicial Service Commission. The Court held that in so far as the President’s decision was motivated by concerns of national security and policy, he was under no obligation to disclose the reasons for his decision. The Court further held that “in so far as the decision may have been based on adverse information in relation to the person of the applicant, it was, in my view, benevolent of the President to not make a disclosure in public, lest the applicant suffer damage to his reputation”. The Court concluded that the President committed no reviewable wrong in making the decision. The Court concluded that the applicants had failed to show that the procedures adopted by the Judicial Service Commission is contrary to or inimical to public policy. The Court ordered that the applicants pay the costs of the application. The applicants have appealed the entire decision to the Court of Appeal.
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Hashatsi v The Prime Minister and Others
The applicant sought to set aside the proceedings of the SADC Commission of Inquiry into the killing of former army commander Maaparankoe Mahao.
Country: Factual Background of a communique from the Southern Africa Development Community (SADC), that the Lesotho This case concerns an application by the Lesotho Prime Minister had accepted the Special Forces Commander of the Lesotho Programme Area: SADC Commission of Inquiry’s Report. Defence Force (LDF), Tefo Hashatsi, to Rule of Law The applicant specifically challenged have the Commission of Inquiry into the the lawfulness of the SADC Commission Years: killing of the former army commander Lt. on the basis of three grounds: Firstly, that 2015 – Gen. Mahao and allegations of mutiny and the Terms of Reference of the Commission instability in Lesotho, declared unlawful and requires that the Commission’s final report set aside. The state respondents, including PARTNERS be handed to SADC, whilst the Public the Prime Minister who established Inquiries Act requires that the report be Transformation the Commission, did not oppose the handed to the Prime Minister who then Resource Centre application. has the power to redact the report before (TRC) The fifth respondent, the wife of the late handing it to Parliament. Secondly, the army commander, Mrs Mahao, intervened Catholic Commission applicant argued that the manner in which in the proceedings in an effort to ensure of Justice and Peace he was cross-examined and questioned transparency, access to justice and the by the Commission chairperson during Tumisang Mosotho rule of law. The argument advanced by the proceedings suggested that the Attorneys the fifth respondent is that, should the Commission was not impartial. Finally, applicant’s relief be granted, it would deny Phoofolo the applicant argued that the proceedings the respondent an opportunity to have the Associates Inc should be declared unlawful because the death of her husband investigated by an Commission had heard evidence from independent body and the perpetrators held witnesses outside of Lesotho. accountable. On 8 February, the High Court delivered The Transformation Resource Centre judgment, in line with the arguments (TRC) applied to be admitted as amicus advanced by the fifth respondent. The High curiae in the case to argue the public Court dismissed the applicant’s application interest cause. The argument advanced by and affirmed the legality of the Commission the TRC related to the broader importance and its proceedings. The Report was of the Commission of Inquiry to Lesotho formally tabled in the Lesotho Parliament and the problems associated with setting that same afternoon. However, the Prime aside the entire Commission proceedings. Minister had utilised the powers available to In the High Court him under the Public Inquiries Act to redact sections of the report, thus omitting any On 2 December 2015 the High Court in references to alleged perpetrators. Maseru heard the case, at which point the The applicant has appealed the High TRC was successfully admitted as amicus Court’s decision despite the High Court’s curiae. The hearing proceeded on 18 and failure to yet deliver a written judgment. A 19 January 2016 when the matter was date for the appeal has not been set. again postponed following the revelation
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