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SADC human rights defenders statement
Zimbabwe Lawyers for Human Rights (ZLHR)
October 20, 2011

Introduction

As the African Charter on Human and Peoples' Rights (Charter) marks its 30th anniversary during this 50th Session of the African Commission on Human and Peoples' Rights underway in Banjul, Gambia, the majority of citizens from Southern Africa Development Community (SADC) continue to be confronted by numerous human rights challenges due to acts of omission or commission by their respective governments.

These are the countries that were for some decades destabilised by the dark period of apartheid in South Africa some of these countries enjoy first generation rights and second generation rights while others battle to enjoy both generation of rights.

General Overview

A snapshot of the current human rights landscape shows some of the following trends;

State reporting under the Charter

With this deplorable and regrettable state of affairs, it is disconcerting to note that state reporting of members of the SADC region continues to lag behind and is not timeous. Needless to say that Malawi had not submitted a single periodic report to the Commission. This lack of commitment and non compliance with the provisions of the ACHPR, which is now 30 years old, makes it impossible to meaningfully assess progress in the promotion and protection of human and peoples' rights in the sub-region. Of particular concern is the fact that the provisions of the Charter are not automatically applicable in the member states of the sub region, the majority of which are dualist in nature and not monist. Even for those SADC member states that have a monist legal tradition the charters provisions and protection remain unattainable and unenforced by the concerned government. It is therefore correct to conclude that not all provisions of the Charter have been domesticated or respected in the legislative frameworks of the SADC countries.

Participation in the United Nations Universal Periodic Review

Commendably all SADC states participated in the first cycle of United Nations Universal Periodic Review that was facilitated by the United Nations Human Rights Council over the last four years with the most recent participating countries being Zimbabwe and Swaziland. However, such participation has been tainted with the general lack of political willingness by the member states to ensure citizen participation in the consultations leading to the development of the national reports that were reviewed. For these processes to be meaningful, they have to be participatory ensuring that all citizens from these respective countries, including the grassroots are able to contribute their views to the state of compliance with human rights norms and standards of their states.

The lack of progress in the protective mandate of the African Commission with the inordinate delays in the determination and subsequent finalisation of communications filed on behalf of SADC citizens leaves the citizenry exposed to rampant abuse by state actors who continue to violate fundamental rights and freedoms with impunity with no tangible remedy as the domestic courts continue to fail to provide access to justice, with the sub regional judicial organ the SADC tribunal not functioning after its suspension leaving the citizens exposed to further violations.

Freedom of Assembly and Association

Disquiet over bad governance and undemocratic practices by governments have prompted peaceful protests in a number of SADC countries during the inter-session. In Malawi, protests were experienced in June and July. In Angola and Zimbabwe peaceful protestors were also victimised during their activities marking the United Nations World Peace day in September and this clampdown culminated in a spate of arbitrary arrests and unwarranted detentions which in some cases have been followed by prosecution of the Human Rights Defenders targeted. A case in point Zimbabwe has also repeatedly experienced the same problem with the recent arrests of women HRDs who were participating in peaceful protests to mark the United Nations International Peace Day.

Freedom of expression

Security of journalists and even citizens is a major concern with rampant violations of the right to freedom of expression. In particular, security of journalists and citizens before and after expression is under attack. Open attacks on media practitioners continued to be experienced in Lesotho, Malawi and Zimbabwe and there are imminent attacks on free expression in South Africa with the pending Secrecy Bill to classify information is fear of seen as a reminiscence of the apartheid era where the media and public lived under severe state censorship. In Zimbabwe laws such as the Access to Information and Protection of Privacy Act, Broadcasting Services Act, Criminal Codification and Reform Act continue to be applied with citizens being caught up in this onslaught and of particular concern the Inclusive Government of Zimbabwe has rejected some recommendations made by other member states of the United Nations General Assembly calling upon it to repeal draconian laws and amend and reform administrative practices that violate the right to freedom of expression. Arbitrary arrests, selective application of the law continue to be commonplace. In Swaziland the media remain largely not free with journalists practising self-censorship as a result of threats from the state. The Suppression of Terrorism Act (STA), which, has been used as an instrument for violations of human rights continues to be applied.

The right to liberty, protection of the law and security of the person

Liberty of SADC citizens and their security continues to be under threat. Their ability to receive protection of the law continues to be undermined. Malawi, Zimbabwe, Mozambique and Swaziland are some territories within the region where these challenges remain. As a result Human Rights Defenders exercising their rights continue to be arrested arbitrarily, detained in filthy police cells for long periods without being afforded due process of the law and exposed to the ravages of torture and other cruel inhuman and degrading treatment that is synonymous with such detention. In Malawi police brutality resulted in the loss of human lives with at least 20 civilians' rights to life being violated. In Zimbabwe, political violence continues with torture and other cruel, inhuman and degrading treatment has automatically followed when Human Rights Defenders are targeted. The conditions of prisons remains a concern and in Zimbabwe and Mozambique prisoners are exposed to further violations of their economic, social, civil and political rights. The failure of the police to uphold the right of citizens and protect them from executive excesses is greatly affecting citizens in Malawi and Zimbabwe. Following unrest in Malawi due to bad governance Malawi police have failed to protect citizens furthering the interests of the few ruling elite at the expense of millions of Malawians. Although some civilians in Malawi have lost their lives for merely expressing their dissenting view police have failed to facilitate protection of the law, through investigations and ensuring accountability. In Zimbabwe incidents of political violence have been unattended. In July rowdy political party supporters disrupted public hearings of the Human Rights Commission Bill that had been organised by the Parliamentary Portfolio Committee and the police failed to take any action to bring accountability of this breach of peace.

The right to education

Gaps towards the progressive realisation of the right to education continue to be witnessed in the sub region. In Mozambique, the literacy rate remains very low whilst on the other hand in Zimbabwe although there is a high literacy rate there is no universal primary education. Human rights education to sensitise the SADC populace of the provisions of the African Charter continues to be lacking.

Violence against women

Women in SADC continue to experience violence in the private and public sphere, perpetrated by state and non state actors with impunity. In Zimbabwe violence against women has culminated in dragnet arrest with recent experiences of women who were arrested for participating in peaceful protests and detained in cells whose conditions are tantamount to cruel inhuman and degrading treatment. Mozambican women are still exposed to circumstances that facilitate their trafficking from Mozambique to South Africa and elsewhere, for purposes of sexual exploitation and forced labor there is a need for the government to address these issues.

Rights of refugees

Rights of refugees remain a major concern in Mozambique. Exacerbated with xenophobic attacks and intolerance to non nationals in South Africa.

Recommendations

The identified human rights violations must be urgently addressed with the following recommendations embraced;

Reforms to reflect implementation of the African Charter as well as treaty obligations under the United Nations human rights regime

As we celebrate 30 years of existence of the African Charter, SADC members states must take urgent measures to evaluate their shortcomings and reform legislative and other administrative frameworks to ensure that the rights enshrined in the African Charter are enjoyed by all citizens. The states that have been reviewed by the UN Universal Periodic Mechanism must embrace positive recommendations and implement them and in cases where they have rejected some recommendations they must review these decisions urgently to protect the rights of citizens especially article 25 and 26 of the Charter.

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