Mmegi Online :: Challenges of human rights in Africa
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Challenges of human rights in Africa

My Lords and Ladies, I have been assigned to facilitate a discussion on the state of human rights in Africa. A clinical, systematic and comprehensive dissection of the state of human rights in Africa is beyond the scope of this paper.
By Key Dingake Tue 23 Oct 2018, 12:23 pm (GMT +2)
Mmegi Online :: Challenges of human rights in Africa








I only flag some of the ”tough” cases that frequent our courts that require us to re-visit the notion of rights afresh if we are to remain at the cutting edge of our calling and deliver the promise of our constitutions. I imagine that our conversation once it has started in earnest may get difficult, and controversial on occasions, yet we need to engage openly, frankly, robustly and with the requisite decorum. 

Perhaps by way of context and background, and in order to properly anchor the issues of moment, one may make the following preliminary observations: 

The state of human rights in Africa is in many ways linked to the state of democracy in the nation state. One can hypothesize that where there is a democratic deficit, human rights are likely to suffer.

In Africa, as in some other parts of the world, the universality and indivisibility of human rights is still contested, questioned and often denied by politicians, lawyers, judges and the broader public

Africa’s anti-colonial history was inspired by the right to self- determination and human rights generally. Yet, paradoxically, soon after independence, with a few exceptions, human rights were suppressed as authoritarianism took root, as manifested by one party states that brooked no dissent

Authoritarianism and one party states were prevalent from the period 1960’s to mid-1980’s. This was the period of the big man syndrome and privatization of national institutions. The period starting in the late 1980’s saw a concerted attempt to reverse the deplorable state of human rights violations and bad governance in Africa.

Yet it also needs to be said that as early as the 1960’s the idea of building a solid human rights system in Africa, including the possibility of building a human rights court, was debated and rejected.

It may also be correct to observe that in most African states, civil and political rights are more recognized and enforced than socio-economic and cultural rights. When it comes to socio-economic rights the rhetoric of the typical African state is one of not being ready due to resource constraints with the result that socio-economic rights are always pending capacity.

On the whole Africa faces many critical human rights challenges, far too many to enumerate. They include the following: 

The phenomenon of constitutions without constitutionalism

Constitutions with a bill of rights that is not fully enforced

Political institutions of the state that are captured by capital or other vested interests

An executive  captured judicial arm

A yawning gap between ratification of international human rights legal instruments and domestication

The tendency to treat socio-economic and cultural rights as optional and even subservient to civil and political rights

Constitution-phobia by judges – the fear to utilize the constitution in their decision making – some relic of yesteryear jurisprudential school of thought often embraced religiously and uncritically.

An overview of selected human rights 

With the above background in mind I propose to cover only a few selected human rights areas, namely, the rights of Women, TB patients, Refuges, Prisoners, the Media, and Death Penalty and the International Criminal Court.

 

Women 

Significant progress has been made at the regional and national levels towards advancing the human rights of women and ensuring gender equality on the continent. The African Union Commission and its human rights mechanisms have adopted binding agreements, numerous measures and produced recommendations and reports addressing the human rights of women These include, the African Charter on Human and Peoples’ Rights; the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; the Convention Governing the Specific Aspects of Refugee Problems in Africa; the African Charter on the Rights and Welfare of the Child; and the Protocol on the Statute of the African Court of Justice and Human Rights. There are also a number of instruments and monitoring bodies committed to the promotion and protection of the rights of women on the continent. These include, inter alia, the African Union Solemn Declaration on Gender Equality in Africa, The African Union Gender Policy and Agenda 2063. Regional political organizations have also adopted protocols and resolutions as well as issued declarations pertaining to the protection and promotion of women’s human rights, including the Economic Community of West African States ( ECOWAS ) and the Southern African Development Community ( ECOWAS ). 

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa also referred to as the Maputo Protocol has been integrated into several constitutions and into national laws and policies. There are now provisions on sexual and gender-based violence, economic, social and cultural rights and the principle of equality and right to non-discrimination in constitutions, polices and in legislations across the continent. In the area of political participation, female participation in African legislatures outpaces many in developed countries. Rwanda ( at 63.8 per cent ) is ranked number one in the world, with Senegal and South Africa in the top 10. Fifteen African countries rank ahead of France and the United Kingdom, 24 rank ahead of the United States, and 42 rank ahead of Japan. 

Yet, it must be acknowledged that the remaining challenges and gaps for the full realization of women’s rights is daunting. In every country on the continent, as is the case globally, women continue to be denied full enjoyment of their rights. In Africa, 1 in 3 women have experienced either physical and/or sexual intimate partner violence or sexual violence by a non-partner at some point in their lifetime, in 6 countries there is no legal protection for women against domestic violence, in 2013, African women and girls accounted for 62% ( 179 000 ) of all global deaths from preventable causes related to pregnancy and childbirth, in sub-Saharan Africa women comprises the highest percentage of new HIV infections, globally, an estimated 130 million girls and women alive today have undergone FGM, mainly in Africa and 125 million African women and girls alive today were married before the age of 18. Protection gaps in the areas of health, marriage and family relations are particularly striking as is the non-recognition of intersectional forms of discrimination. In many countries, these gaps are also compounded by political instability and conflict.

 

Along with the inequalities in land ownership and the political economy, many Africa countries inherited deep gender inequalities from the colonial state – inequalities that were reflected and continued to be entrenched in the laws and social structures. Despite legislative reforms that are supposed to enhance gender relations and improve the protection of women and girls, these laws are designed and imagined in ways that continue the tendencies of the state to exert power over women – their bodies and their decision making, rather than enhancing their power.

There is a large disjuncture between women’s constitutional rights and statutory and customary laws and this causes serious barriers for women’s empowerment. Customary laws generally dictate unequal gender relations, compounding the discrimination that women face by public and private institutions. Many statutory laws which comprise subsidiary legislation to the Constitution continue to discriminate against women. Citizenship, inheritance, abortion laws, play a strong role in the oppression of women. Consequently, obstacles to gender equality persist because of existing discriminatory statutory and customary laws and practices. Customary laws and norms deny women their constitutional rights and jeopardize women’s access to property, inheritance and divorce. For example, wives are often victims of discriminatory inheritance practices in which the deceased husband’s family unlawfully takes property. Such discriminatory customary laws and practices are in need of being removed and/or amended in order to come in line with constitutional provisions. Chanock points out that the ‘African law of modern Africa was born and shaped in the colonial period. … [It] can be shown that in the areas of criminal law and family law, African law represents the reaction of older men to a loss of control over wrongdoing generally and, more acutely felt, to a loosening of control over women.’ (Chanock, 1978) 

Discrimination, marginalization and abuse of women and girls – often arising from cultural traditions and institutionalized by unjust laws – continued in a number of countries. Women and girls were subjected to rape and other sexual violence, including in the context of conflicts and in countries with large numbers of refugee and internally displaced populations. Pregnant girls continued to be excluded from school in countries including Sierra Leone and Equatorial Guinea. In June, Tanzania’s President announced a ban on pregnant girls returning to public-funded schools – fuelling stigma and discrimination against girls and victims of sexual violence. Gender-based violence against women and girls was prevalent in several countries including Liberia, Malawi, Mozambique, South Africa and Swaziland. In countries including Burkina Faso, lack of medical equipment, medication and staffing in hospitals left pregnant women and infants at serious risk of birth complications, infection and death. Female genital mutilation rates decreased; however, despite being outlawed, the practice remained widespread. 

Unsafe abortions

Unsafe abortions contributed to one of Africa’s highest rates of maternal death and injury in Liberia, where affordable and accessible abortion services were largely unavailable to rape survivors. Despite its progressive abortion laws, women and girls faced substantial barriers to legal abortion services in South Africa and faced serious risks to health, and even death, from unsafe abortions. The government failed to address the refusal of health care professionals to provide abortions. In Angola, the government proposed an amendment to the Penal Code, which would decriminalize abortion in certain limited cases, but Parliament rejected the proposal. After a public outcry, the parliamentary vote on the legislation was postponed indefinitely. 

Women and HIV

Africa’s HIV epidemic remains generalized and feminized. Although the continent has recorded a significant reduction in new HIV infections and AIDS related deaths; adolescent girls, young women and other key populations, particularly in urban areas, continue to bear the highest burden of the epidemic. 

Women in politics

We have seen that women across the continent have not often taken vocal or visible roles in shaping the national discourse when it comes to politics and those that do take a stance are often met with violence and vitriol – in physical and digital spaces. We have witnessed increasing diminishing of civic spaces and this shrinking has had some distinctly gendered manifestations – one example is from Malawi where a gender activist was arrested after a peaceful anti-GBV protest, she was then charged with “insulting the modesty of a woman” for carrying a placard that declared “to be born with a vagina is not a crime/sin”. “Where women have attempted to make their voices heard through informal channels such as marches and demonstrations, these have often been met with heavy repression, and physical and other forms of violence from state machinery” 

 

Sexual abuse and assault

Sexual abuse, assault, and other forms of violence against women and children have been internationally condemned, and over the past ten years, landmark decisions from courts across Africa, including Kenya, South Africa and others, have established jurisprudence that advocacy groups across Sub-Saharan Africa and beyond can utilise to advance women’s and adolescent girls’ rights. Jurisprudence has established that states and other duty-bearers are liable for the failure to effectively protect, respect, and fulfil women and girls’ human rights by protecting them against assault, sexual abuse, and violence. For example, in the Kenyan case C.K. (A Child) through Ripples International as her guardian and Next friend) & 11 Others v Commissioner of Police/Inspector General of the National Police Service & 3 Others,20 the court determined that the state and its organs could not hide behind common law to justify their failure to carry out an effective investigation into reported sexual abuse cases, and that this amounted to discrimination against the group of women and girls who were abused. Allegations of defilement, according to the Court, should be properly investigated and perpetrators of such crimes should be prosecuted to deter others. Further, the Court held that state organs have a duty “to protect” their citizens from sexual abuse, harassment, defilement, and violence, regardless of their gender. The Court held the police responsible for not adequately protecting the interests of the vulnerable women and girls and therefore failing to ensure their safety. 

In W.J. & Another v Astarikoh Henry Amkoah & 9 Others, the Kenyan Court affirmed the constitutional and fundamental rights of women and girls against assault and sexual violence. The Court upheld a petition by two minors and their guardians that school J, its regulatory body, and the state did not do enough to protect the petitioners against the first respondent, their teacher, who raped them. According to the Court, the first respondent should not have been entrusted with the petitioners and other children, given his previous history of sexual violence and assault which had led to his transfer to that school. The Court held that the state is obliged by the Kenyan Constitution and international law to prevent violence against women and girls and to ensure that their fundamental rights to welfare and development; education; health, including reproductive and sexual health; and dignity were protected at all times. The Court also held that the employers of the First Respondent should be held accountable (vicariously) for their omission and that the law should not only focus on punishing the perpetrators of violence, in this case sexual abuse and assault against girls, but should also make provisions for victims and survivors’ rehabilitation process and costs.

 

The girl child

Approximately 39% of girls in sub-Saharan Africa are married before the age of 18. All African countries are faced with the challenge of child marriage, whether they experience high child marriage prevalence, such as Niger (76%) or lower rates like Algeria (3%). Child marriage is widespread in West and Central Africa (42%) as well as Eastern and Southern Africa (36%). The causes of child marriage are common across Africa. Parents may marry off their daughter due to poverty or out of fear for their safety. Tradition and the stigma of straying from tradition perpetuate child marriage in many communities. Crucially, gender inequality and the low value placed on girls underlie the practice. If we don’t act now, the number of girls married as children will double by 2050 and Africa will become the region with the highest number of child brides in the world (UNICEF, 2014). 

Child marriage is a huge problem in Sub-Saharan Africa, such as in Niger where over 75% of girls are married before age 18 and in Malawi and Mozambique, where over 50% of children are married before the age of 18. Child marriage practices infringe on the rights of the child, and are themselves a consequence of violations of the rights of the child. The causes of the phenomenon of child marriage are complex and interrelated. Social, cultural, religious, and economic factors influence norms, values, and behavior on individual, community, and society levels. While poverty is an important driver of child marriages in Africa, one of the rationales for child marriage is related to preservation of the traditional value of girls’ chastity and virginity. Using Malawi as a case study, one of the reasons some communities have resisted raising the age of marriage to 18 was the argument that it would allow a window period in which sexually mature girls would engage in sexual intercourse before marriage. 

The socio-cultural norms about sexuality of the girl-child, the value placed on the girl’s virginity, and the construction of the girl-child as sexually weak against the sexual desires of boys, contributes to parents marrying off their girl-child as soon as she reaches puberty. Such constructions of girls’ sexuality reveal underlying power dynamics in a patriarchal environment that justifies girl-child marriages. In 2014, the African Union launched a campaign to eliminate child marriages on the African Continent. In 2016, the Southern

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African Development Community (SADC) adopted the Model Law on Eradicating Child Marriage and Protecting Children Already in Marriage. In a number of countries, such as Zimbabwe and more recently Tanzania, the courts have supported the application of human rights and legal norms to the eradication of child marriages. It is important, however, that legal and human rights approaches to end child marriages address social and cultural norms around the sexuality of the girl-child. The anxiety that parents have about sexually mature girls who might be sexually active and get pregnant before marriage is a concern that motivates parents to limit the sexual agency of the girl. Parents may therefore feel justified to either restrict normative consensual sexual conduct, or to marry off the girl-child as soon as she reaches or approaches puberty. Clearly, the root problems of why and how society controls the sexuality of adolescent girls must be explicitly addressed by legal and human rights approaches that aim to end the scourge of child marriages.

 

Rights of TB patients and legal challenges

Tuberculosis (TB) remains a critical global health challenge. It ranks as the leading cause of  death  from  an  infectious  disease,  killing  more  people  each  year  than  HIV/AIDS.  An estimated 1.8 million people died and 10.4 million people fell ill with TB in 2016. Nearly 80% of the global burden of TB is found in 22 countries, nine countries in Sub–Saharan Africa  belong to the  22 high  burden countries, and  India  along  accounts  for  27%  of  the global disease burden. 

A  human  rights-based  approach  to  TB  articulates  and  upholds  the  rights  of  people affected by TB, including the rights to life, health, non-discrimination, privacy, informed consent,  housing,  food  and  water.  The  approach  focuses  on  the  social  and  economic determinants  of  the  disease,  addressing  stigma,  discrimination  and  environmental conditions. It articulates the domestic and international legal obligations of governments and non-state actors to ensure good quality testing and treatment for TB is available and accessible without discrimination.  The approach  also  aims  to  create  an  enabling  legal environment  for  the  research  and  development  of  new,  more  effective  TB  drugs  and diagnostics, and to lower the prices of existing drugs, including new medicines for MDR-TB, and advanced diagnostics.

Michael Kirby: “Now more than ever tuberculosis is an illness of poverty: of those that are vulnerable and marginalized and  often  forgotten  by  society.  Historical  epidemiological  evidence  corroborates  the  fact  that   tuberculosis control is more than a biomedical challenge. In the industrialized world, tuberculosis is something rarely encountered. Rates across Western Europe began to fall even before the discovery of  chemotherapy.  And  following  the  introduction  of  chemotherapy  treatment,  the  trend  continued  until the disease was no longer a public health threat. Yet current tuberculosis control approaches, including in parts of Asia and Sub-Saharan Africa, have not been able to achieve similar success. 

The central truth about the tuberculosis crisis, as the cases in this compendium demonstrate, is that social  and  economic  factors  and  structural  barriers  drive  the  epidemic.  Individuals  most  vulnerable  to tuberculosis infection are members of socially and economically disadvantaged groups, including the  poor,  mobile  populations,  persons  living  with  HIV,  prisoners,  and  people  who  use  drugs.  These  groups face significant barriers to preventing and treating tuberculosis including financial and physical inaccessibility to testing and treatment services; a lack of awareness about the modes of transmission and prevention techniques; stigma and discrimination in the health system and society generally; and poor sanitation and unhealthy living conditions. 

The  prevalence  of  drug-resistant  strains  of  tuberculosis  reaffirms  the  socio-economic  character  of  the  disease.  Drug  resistance  develops  as  a  result  of  irrational  or  interrupted  first-line  treatment  and  a  lack  of  infection  control.  These,  in  turn,  result  from  the  unavailability  of  good  quality  first-line  drug  combinations,  interrupted  access  to  treatment  services,  and  poor  quality  health  facilities,  disproportionately impacting the most vulnerable groups. The specter of drug resistance now looms equally over the entire world—developed and developing.”

 

Refugees

Sub-Saharan Africa hosts more than 26 per cent of the world’s refugee population. Over 18 million people in this region are of concern. That number has soared in recent years, partly due to ongoing crises in the Central African Republic (CAR), Nigeria and South Sudan. It has also grown as a result of new conflicts erupting in Burundi and Yemen. 

The crisis in the Democratic Republic of the Congo (DRC) was of particular concern, with renewed unrest triggering displacement on an extraordinary scale. Conflicts in both the Central African Republic (CAR) and South Sudan entered their fifth year while Cameroon, Mali, and the border regions of Burkina Faso and Niger were wracked by fighting, pushing even more people away from their homes. Burundi remains volatile with continued outflows of people to Rwanda and the United Republic of Tanzania. Finding solutions and providing protection to refugees and asylum‑seekers in mixed movements was a pressing priority. Compounding these complex emergencies were challenges related to climate change, which threatened the food security of vulnerable refugees and their host communities across the continent; and increased reports of sexual and gender‑based violence (SGBV), which highlighted the significant challenges faced by a particularly vulnerable sector of an already traumatized population. 

Urgently‑needed humanitarian assistance and protection often could not be delivered sustainably and predictably because of constraints on access, insecurity and underfunding. Allegations of fraud, misconduct and exploitation surfaced in several operations in Africa. This was matched by measures to enhance accountability and transparency and to strengthen protection responses for people of concern.

Kenya’s High Court decision to block the government’s planned closure of Dadaab, the world’s largest refugee camp, prevented the forcible return of more than a quarter of a million refugees to Somalia, where they were at risk of serious abuses.

 

Prisoners

In December 2015, the United Nation general assembly adopted the first update to minimum standards on treating prisoners in 50 years – and named it in late South African president Nelson Mandela’s honour. 

The UN Standard Minimum Rules for the Treatment of Prisoners – known as the Nelson Mandela rules – contain 122 rules which “represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations”. 

The assembly further decided that Nelson Mandela International Day, celebrated on 18 July each year, be used to promote humane conditions of imprisonment. 

The health situation – with regards to risks of tuberculosis and HIV within prisons – is a microcosm of the wider society. High levels of overcrowding have resulted in African prisons becoming a fertile ground for the spread of infectious diseases. 

A widely discussed theme within the international framework of penal reform and prisoners’ rights is juvenile detention; mainly that young adults should be diverted from institutions of criminal justice towards more non-punitive and rehabilitative efforts.

Media (Freedom of Expression)

According to Amnesty International, in at least 30 countries – more than half the countries monitored – media freedom was curtailed and journalists faced criminalization. Misuse of the justice system to silence dissent was common in Angola where the government used defamation laws, especially against journalists and academics. In Uganda, journalist Gertrude Uwitware was arrested for supporting Stella Nyanzi. In Botswana, journalists faced continued harassment and intimidation for their investigative journalism; three journalists were detained and threatened with death by security agents in plain clothes after they investigated the construction of President Ian Khama’s holiday home. Cameroon and Togo blocked the internet to prevent journalists from doing their jobs and closed media outlets. Activists including journalists and bloggers were detained in Ethiopia and many were convicted under the Anti-Terrorism Proclamation which provided vague definitions of terrorist acts. A military court in Cameroon sentenced Radio France Internationale journalist Ahmed Abba to 10 years’ imprisonment after an unfair trial, for exercising his right to freedom of expression. He was released in December following a decision by an appellate tribunal which reduced his sentence to 24 months.

 

Death penalty and euthanasia

Sub-Saharan Africa made great strides in the global fight to abolish the death penalty with a significant decrease in death sentences being imposed across the region, Amnesty International said in its 2017 global review of the death penalty published today. Guinea became the 20th state in sub-Saharan Africa to abolish the death penalty for all crimes, while Kenya abolished the mandatory death penalty for murder. Burkina Faso and Chad also took steps to repeal this punishment with new or proposed laws. 

“The progress in sub-Saharan Africa reinforced its position as a beacon of hope for abolition. The leadership of countries in this region gives fresh hope that the abolition of the ultimate cruel, inhuman and degrading punishment is within reach,” said Amnesty International’s Secretary General Salil Shetty. 

“With governments in the region continuing to take steps to reduce and repeal the death penalty well into 2018, the isolation of the world’s remaining executing countries could not be starker. 

“Now that 20 countries in sub-Saharan Africa have abolished the death penalty for all crimes, it is high time that the rest of the world follows their lead and consigns this abhorrent punishment to the history books.” 

Amnesty International recorded a drop in the number of executing countries across sub-Saharan Africa, from five in 2016 to two in 2017, with only South Sudan and Somalia known to have carried out executions. However, with reports that Botswana and Sudan resumed executions in 2018, the organization highlighted that this must not overshadow the positive steps being taken by other countries across the region. Elsewhere in Africa, Gambia signed an international treaty committing the country not to carry out executions and moving to abolish the death penalty. The Gambian President established an official moratorium (temporary ban) on executions in February 2018.

 Some governments moved to introduce new laws to restrict the activities of human rights defenders, journalists and opponents. Angola’s Parliament adopted five bills containing provisions restricting freedom of expression, establishing a media regulatory body with broad oversight powers. Legislation adopted in Côte d’Ivoire contained provisions curtailing the right to freedom of expression – including in relation to defamation, offending the President and disseminating false news. A draft bill in Nigeria and draft amendments to Malawi’s NGO law introduced excessive, intrusive and arbitrary controls on the activities of NGOs, including human rights groups.

This year marks the 20th anniversary since the United Nations General Assembly adopted the landmark Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms (commonly known as the UN Declaration on Human Rights Defenders). The adoption of the Declaration was a critical moment in human rights history because it recognised, in international law, the importance and legitimacy of fighting for human rights and the need to protect those who carry out the work. Since the UN Declaration on human rights defenders (HRDs), there has been the appointment of a UN Special Rapporteur on HRDs and an African Commission Special Rapporteur on HRDs (2004). Subsequently, in 2009, the Pan African HRDs Network was established (Kampala Declaration of Human Rights Defenders), which includes the Southern Africa HRDs Network, which was established in 2013. More recently in 2014, the UN General Assembly adopted a resolution on protecting women human rights defenders and the African  Commission adopted a resolution which seeks to protect HRDs working on sexual orientation and gender identity. In 2017, the African Commission hosted the 2nd International Symposium on Human Rights Defenders in Africa, which adopted the Cotonou Declaration on strengthening and expanding the protection of all HRDs in Africa. The Declaration specifically noted concerns about “the human rights violations targeting specific groups of human rights defenders, including women human rights defenders, human rights activists working in conflict and post-conflict States, on issues related to land, health, HIV, sexual orientation and gender identity and expression, as well as sexual and reproductive health rights”. The Declaration further noted that “addressing structural causes of human rights violations affecting these human rights defenders should be prioritised since it requires repeal of legislation, removal of policies and practices that create or reinforce violence, discrimination and stereotypes.” Increasingly, the discourse around human rights is being negated and human rights defenders are under attack in many countries in Africa. There is increased characterisation of HRDs as political opponents, threats to national security or promoters of foreign or Western values. There is also a consistent use of laws and the criminal justice system to deter HRDs, including through detentions without charges, prosecution on false charges, or the unwarranted use of criminal laws against HRDs. In many instances we cannot rely on governments to automatically protect the rights to freedom of opinion, expression, association and assembly, even though these rights are critical to the protection and promotion of all human rights.

International Criminal Court

Burundi became the first State Party to withdraw from the Rome Statute of the ICC in October. Despite this, in November, the Pre-Trial Chamber made public its decision to authorize the ICC Prosecutor to open an investigation regarding crimes within the jurisdiction of the Court allegedly committed in Burundi – or by nationals of Burundi outside the country – between April 2015 and October 2017. However, developments in Africa suggested a tempering of the rhetoric calling for withdrawal from the ICC. The AU adopted a decision in January, which despite its misleading title, outlined plans for engagement with the ICC and other stakeholders. More encouragingly, member states – including Senegal, Nigeria, Cape Verde, Malawi, Tanzania, Tunisia, Zambia and Liberia – expressly stated their support for the ICC and rejected any notion of mass withdrawal. Gambia’s new government revoked its withdrawal from the Rome Statute, while Botswana’s Parliament passed a bill incorporating the Rome Statute into domestic law. 

In March, the South African government announced it would revoke its 2016 notice of intention to withdraw from the Rome Statue after the North Gauteng High Court decision held that withdrawal from the ICC without consulting Parliament was unconstitutional and invalid. However, a draft bill to repeal the Rome Statue Domestication Act was introduced to Parliament in early December 2017, signalling the government’s intention to pursue its decision to leave the ICC. 

Meanwhile, the ICC’s Pre-Trial Chamber ruled that South Africa should have executed the arrest warrant against Sudanese President Omar Al-Bashir during his 2015 visit to the country. The ruling confirmed that President Al-Bashir did not have immunity from arrest and that any states party to the Rome Statute were obliged to arrest him if he entered their territory, and hand him over to the Court. In its December preliminary report, the Office of the Prosecutor of the ICC announced that it was continuing its analysis of the potential eight crimes it had previously identified as having been allegedly committed in Nigeria, as well as gathering evidence on new crimes, but was yet to reach a decision on whether to open an investigation. 

Conclusion 

In conclusion, it is fair to say that the journey towards full realization of the rights of every person is clearly on course, albeit at a snail’s pace sometimes.  Judges can expedite this pace given that justice delayed is justice denied. We need to give effect, as judges, whenever appropriate, to the universality and indivisibility of rights. The contemporary African human rights landscape is characterized by an epidemic of bad laws – and a number of gaps: gender gaps, resource gaps, the gap between paper rights and what obtains in practice. The judiciary together with other political arms of the state and civil society should, and must cooperate to ensure that when it comes to rights no one is left behind. 

* An Overview of Human Rights in Africa: A paper delivered by Justice Key Dingake at African Judges Training Session at the University of Cape Town on October 1, 2018.

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