OSISA Statement to the 50th Session of the African Commission on Human and Peoples’ Rights, October 2011, Banjul, The Gambia
In OSISA's statement to the 49th session of the Commission, we brought to the attention of the Commission the grave human rights situation in Malawi. In this 50th session, we again draw the continent’s attention to Malawi where the human rights situation has not improved. Indeed, it remains precarious and continues to deteriorate.
The Malawi government’s intolerance of Human Rights Defenders - non-state actors, media practitioners, the academic community, and political opponents, has become commonplace. Equally disturbing is the growing culture of impunity within the state security sector and among ruling party functionaries. Human Rights Defenders have become endangered species, bringing back painful memories of the dark days of pre-1993 Malawi under Dr. Hastings Kamuzu Banda.
Together with a few other countries, Malawi holds the distinction of never having submitted even a State report to this Commission.
Madam Chairperson, on 20 July 2011, thousands of Malawians took to the streets to peacefully protest against the worsening economic conditions which have made the lives of ordinary people difficult to bear. In the exercise of these constitutionally protected freedoms of association, assembly and movement (Articles 10, 11 and 12), the protesters also sought to challenge government’s sustained assault on the Constitution of Malawi through the abuse of the ruling party’s parliamentary majority, passage of anti-democratic legislation, and the violation of fundamental human rights enshrined in the African Charter on Human and Peoples’ Rights. The peaceful protests were met with brute force, and through the barrel of the gun, police killed 20 unarmed Malawians. Hundreds others were injured. To date, no one has been held accountable for this carnage. Life goes on.
In addition to the escalating threats and arbitrary arrests of activists and Human Rights Defenders – many of whom now live in perpetual fear and some have gone into hiding - on 24 September 2011, a well-known critic of the president and the government of Malawi, university student, Robert Chasowa was killed by unknown person(s). In the absence of an independent inquiry into the circumstances of his death, we can only speculate that those who found his criticisms intolerable may have a hand in his death. In the last few months, offices of human rights activists and places of residence have been vandalised and set on fire.
It is disconcerting to note that the government of Malawi has shown very little interest in ensuring that those who orchestrate acts of violence and extra-judicial killings are held accountable. Key state officials have propagated hate speech, openly inciting violence and retribution against government critics.
Against this background, we endorse the submissions of the Centre for Human Rights and Rehabilitation and reiterate our request for the Special Rapporteur on Human Rights Defenders to urgently consider undertaking a promotional visit to Malawi, and provide hope and protection to Human Rights Defenders in that country.
Swaziland is a country with an absolute Monarchy presiding over a regime that has mismanaged state resources and rendered the nation virtually bankrupt and insolvent.
The plight of the citizens of Swaziland was brought to the attention of the Commission during its 49th session. Our statement focused on lack access to justice, erosion of the respect rule of law, abuse of human rights, rampant and endemic corrupt, assault on freedom of press, association, and speech amongst other abuses that are an affront to the African Charter on Human and Peoples’ Rights. As you may be aware, since 1 August 2011, members of the Law Society of Swaziland have been boycotting all the courts in Swaziland. The boycott of the courts seeks to highlight the subversion of the principle of judicial independence and rule of law in the country. The genesis of the boycott lies in a number of actions by the Government, the Judicial Service Commission and the Chief Justice of Swaziland the effect of which is the denial of citizens’ constitutional right to approach the courts, and the introduction of institutional bias in the allocation and determination of matters before the Courts.
For instance, Practice Direction 4 of 2011, the country’s Chief Justice banned all summons/applications citing the name of the King or the Office of the King, directly or indirectly rendering the Monarch above the law. The Law Society is also aggrieved with the decision of the Judicial Service Commission – of which the Chief Justice is the chairperson - to refuse to accept a petition drawn by the Law Society against the Chief Justice.
As a consequence of the non-functioning of the courts, citizens of Swaziland have been deprived of their constitutional right to judicial redress. Criminal prosecutions which are at the instance of the State have continued albeit accused persons are being denied their constitutional right to legal representation as a consequence of the absence of defence lawyers. This has given rise to the conviction and imprisonment of unrepresented accused persons, itself a fundamental violation of their human rights. The Government has increased its suppression of citizens’ rights, on the strength that people cannot obtain any judicial redress or injunctions against the state for any violations.
Given that an independent and functioning judiciary is essential to the functioning of any State, we consider the absence of a proper functioning judiciary system as a gross violation of the rights of the citizens of Swaziland.
Together with the Law Society of Swaziland, which has lodged a formal complaint to the African Commission on Human and Peoples’ Rights against the Kingdom of Swaziland in terms of Article 55 of the African Charter, we request the Commission to urgently undertake a promotional mission to Swaziland, to investigate the factors and issues giving rise to the prevailing judicial crisis.
As we commemorate 30 years of the African Charter on Human and Peoples’ Rights, and collectively work to strengthen the evolving African architecture for the promotion and protection of human and peoples’ rights, is it not ironic that in the southern part of the continent, SADC heads of state and government, have decided to suspend the operations of the nascent sub-regional court, the SADC Tribunal? This deprives the peoples of Southern Africa the right of access to justice at the supra-national level.
We appeal to the Commission, to lend support to the efforts of civil society and national human rights institutions, to ensure that unilateral decisions of governments do not undo the continent march towards the realisation of more and not less rights for the African people.
Persons with Disabilities
We call on the Commission to reaffirm its commitment to the promotion and protection of the human rights of persons with disabilities by appointing a Special Rapporteur on disability.
Finally, Madam Chairperson, distinguished commissioners, we join others in expressing concern at the delays in finalising communications and call on the Commission to prioritise its protective mandate to deal with the backlog of pending communications and avail remedies to the victims who have sought protection.