Rhodes House, Oxford
14 February 2013
I am very honoured to deliver the Bram Fischer memorial lecture 2013.
I join you in mourning Arthur Chaskalson, the former President of the International Commission of Jurists and Chief Justice of the South African Constitutional Court. Arthur was a towering human rights activist and a profoundly decent man. Under his presidency the Constitutional Court delivered ground-breaking jurisprudence to ensure the protection of human rights. . We will remember Arthur as a man whose contribution helped shape the new South Africa. And this new South Africa, whatever its flaws, has given all of Africa — and indeed, all of humanity — hope: that out of bitterness and violence, tolerance and peace can come forth.
I stand today before a number of truly inspiring individuals. In the audience I can see Lord Joel Joffe, who represented Nelson Mandela during the Rivonia Trial in 1963, and who also defended Walter Sisulu and Govan Mbeki. I can see Paul Joseph, a former factory worker and trade unionist who was a defendant in the Treason Trial of the 1950s. When I was a young lawyer, in the 1970s, I remember taking a statement from Paul Joseph. I was documenting the systematic use of torture by Colonel Swanepoel — Rooi Nek or Redneck Swanepoel, some people called him, and I'm sure many of you remember him. He had a face like a sledgehammer; he was really a very frightening man.
Paul Joseph was among hundreds of others who had been tortured by R Swanepoel. Paul had been hung out by his feet from a top-floor window at the COMPOL building in Pretoria; the notorious torture centre where many detainees died during detention, including by being thrown out of the this top floor window. And, incidentally, Paul mentioned that while they were interrogating him, the security police were also watching, through binoculars, and laughing at some antics that were underway in another building, where a number of prostitutes were hard at work.
Subsequently, my lead counsel said we couldn't use Paul Joseph's statement. He said it was defamatory of the security police!
So you see, there are human rights lawyers and human rights lawyers.
No such ambiguity touched Bram Fischer: a lawyer of formidable intellect and moral leadership he did not separate fundamental rights from his work as a lawyer.
I never met Bram Fischer, I'm sorry to say. But of course, like every lawyer in South Africa, I knew of him. A colleague of mine, Rowley Arenstein, was, like Bram, a member of the Communist Party, and they had been in Pretoria Prison together. Rowley told me that Bram was given the worst tasks in that prison, because he came, as you know, from a very prominent Afrikaner family and so the warders felt that Bram had betrayed the white cause, whatever that was. The younger prisoners pleaded with Bram to let them scrub the prison toilets and so on in his place. But Bram would not let them do it: he insisted that he would do the job he was assigned. I found this integrity truly admirable.
I felt a bond of pain and empathy for Bram Fischer when he was in prison. My husband Gaby, was also in detention, and his brother died around the same time as Bram's son. I went to Colonel Swanepoel to ask that my husband be permitted to attend his brother's funeral, and miraculously he agreed. But Bram Fischer was not allowed to attend the funeral of his own son. And I knew how very painful that must have been — I felt for him.
II. Human Rights Defenders
I've been told that this series of Bram Fischer Memorial Lectures is intended to celebrate the work of lawyers engaged in fighting injustice around the world, and, moreover, that it seeks to inspire others to join and support those people who are fighting injustice. So I would like to begin my speech by celebrating some of the most important Africans alive today.
I'm pretty sure you've never heard of most of them.
Some of them are not, in fact, lawyers — they are human rights defenders, and they come from every walk of life. They are the living foundation of our systems of justice and human rights. Without them, many democratic societies on our continent — and the many societies that aspire to become democratic — would lose a vital pressure point and resource. Human rights defenders monitor and report abuses and challenge impunity. They uphold the right to education and equality, to freedom of speech and of opinion. They campaign against the exploitation of natural resources by exploitative multinationals and overlords who seek to dispose of the nation's property as though it were their own. They demand an end to the situation where unaccountable governments and anonymous institutions make decisions affecting peoples’ lives without their involvement. No one should be excluded from decision-making because they are African, or female, or belong to a minority, or worship a certain religion; because they are gay, have a disability or particular political beliefs. We all should have a voice that counts in our societies.
At the international level, the whole credibility and value of our UN human rights system—treaty-bodies, the Human Rights Council, Special Procedures (independent experts appointed by the Council), the Universal Periodic Review where the human rights situation of every country is reviewed — is underpinned by the participation of these and other actors of civil society, through their contributions of expertise and awareness-raising, their monitoring and reporting, and their mobilization of public support.
Bram Fischer once said that it was everyone's duty to stand our ground and to oppose the South African government's "monstrous policy of apartheid" with every means in our power. Well, the human rights defenders of Africa are standing firm and staring down monsters — just as Bram Fischer did.
In many countries — and this is true of other regions of the world as well, but today Africa is my focus — human rights defenders are subjected to harassment, death threats, vicious and completely untrue smear campaigns. They may be arbitrarily arrested, tortured, jailed or even killed. Some of them are forced into exile — like Joel Joffe, like Paul and Adelaide Joseph.
So today, I would like to celebrate these men and women for their steadfast courage, their constant, daily action to achieve all rights for all.
They are people like Koffi Kounte, the former Chair of the National Human Rights Commission of Togo, who was obliged to leave his country after he released a report in February 2012 on torture committed by the Togolese Intelligence Agency. Dr. Denis Mukwege of Panzi Hospital in Bukavu, in the Democratic Republic of the Congo, who has repeatedly denounced mass rapes and the impunity of their perpetrators. Dr. Mukwege, who works tirelessly to treat survivors of sexual violence, recently escaped a dramatic assassination attempt. Lawyers Alice Nkom and Michel Togué in Cameroon, who represent a number of individuals charged with offences related to homosexuality, have received severe threats, including death threats, for their work. Abdiaziz Abdimun Ibrahim, a Somali journalist, who was recently sentenced to imprisonment for reporting and alleged rape against a young woman by Government security forces.
Nazik Kabalo, an activist for women's rights who has documented abuses in the Nuba mountains of Sudan, was forced to flee to Egypt in 2011 following her brutal detention by Sudanese authorities. Floribert Chebeya, one of the DRC’s most prominent human rights defenders, was killed after going to a meeting at Kinshasa's Police inspectorate. He courageously documented torture and other rights abuses in the DRC, and has struggled for free expression and a free press.
The international community has made significant advances in our support for human rights defenders. The Security Council and Human Rights Council have condemned reprisals against them. Special Rapporteurs have been appointed to monitor and highlight their treatment, both at the United Nations and at the African Union. We have established regional networks of human rights defenders throughout Africa, and there is increasing awareness of their work across the continent. The Pan-African Human Rights Defenders Network, promotes a safe environment for human rights defenders across Africa and has assisted hundreds of human rights defenders at risk because of their cooperation with the United Nations - according to Hassan Shire Sheikh Ahmed, the Executive Director of the Project in East and the Horn of Africa.
My Office also works closely with the organizers of an NGO Forum that takes place before each session of the African Commission on Human and Peoples’ Rights, which provides an opportunity for NGOs to coordinate their human rights work in Africa, including their assistance to human rights defenders.
Recent events all over the world, particularly in North Africa, illustrate vividly how central civil society can be in sparking change motivated by principles of non-discrimination, participation, empowerment, accountability and respect for human dignity. We know that successful change — change that is sustainable — occurs largely because of actions that arise from within society.
III. Counter-terrorism measures
I would like at this point to discuss the impact on civil society of certain counter-terrorism measures. When facing acute threats to security, State authorities often are under pressure to adopt swift measures to prevent and combat terrorist acts. But at times their actions compromise respect for human rights and the rule of law, and in some instances, the provisions are so broad that even peaceful acts of dissent may fall under the definition of an act facilitating or supporting terrorism. Human rights defenders who seek to assemble peacefully to raise awareness of human rights issues or criticize Governments may be harassed and detained on this basis. I'm thinking here of people like Eskinder Nega, an Ethiopian blogger and advocate for political reform, who in June 2012 was found guilty of charges related to terrorism and espionage. He was sentenced to 18 years in jail.
Even non-peaceful protestors are not necessarily terrorists. In situations of desperation due to oppression, resistance can be legitimate. Let us not forget that even Nelson Mandela was listed as a terrorist for having led a bombing campaign against government targets in the 1960s. The US only took him off its terrorist watch list in 2008!
Counter-terrorism laws must be assessed against international human rights law and reviewed regularly, to ensure that they are specific, necessary, proportionate, and hence effective. For misuse of laws is not only unjust, it is also counter-productive. The way to fight terrorism is to protect and promote human rights and the rule of law, since that will create a climate of trust between citizens and the State. No society can long be sustained if it is not built on values that are inclusive of all. Bram Fischer put it this way — he said, "Our police State ... has used the law with barbarous intensity, to try to break the forces striving for basic human rights. (But) if the struggle for freedom is smothered in one place, it flares up again before long." He also said "Unless this whole intolerable system is changed radically and rapidly, disaster must follow. Appalling bloodshed and civil war will become inevitable, because as long as there is oppression of a majority, such oppression will be fought with increasing hatred."
I'm sure that all of you are aware that our African continent is poised today on the cusp of what may be a key transition. Most visible has been a remarkable trend of economic growth, with one-third of African countries forecast to grow by 6% or more in 2012. In fact, according to the International Monetary Fund's projections, on average, Africa will have the world's fastest growing economy of any continent over the next five years. They're calling Africa the new Asia.
And alongside this, a large number of elections are underway. In 2013, it's possible that we will see national elections of various kinds in Cameroon, the Central African Republic, the DRC, Djibouti, Egypt, Ethiopia, Guinea, Guinea-Bissau, Kenya, Madagascar, Togo, Tunisia, Rwanda, Swaziland and Zimbabwe.
This should rightly be seen as a very positive development. Nonetheless, the ongoing protests in Tunisia, Egypt and Mali alert us to remain vigilant. Elections are of course the defining opportunity for people to freely exercise their civil and political rights. But they are also a critical transitional moment with a great deal at stake; and they can exacerbate, revive or trigger violence or conflict and related human rights violations. So human rights work is very relevant in the context of elections, because it can strengthen the credibility of the process and contribute to upholding a safe and peaceful environment with a positive outcome.
The work of my Office, OHCHR, includes the monitoring of human rights in the context of elections particularly through our field presence. We have offices in 58 countries, 24 of them in Africa. We have played a significant role in a number of electoral processes.
One fine example of this is Togo, where the 2005 Presidential election was marred by political violence and human rights violations. In 2010 many people feared a repeat of this scenario, and the OHCHR Togo Office put in place a comprehensive project to promote peaceful elections and monitor respect for human rights. We worked to involve key actors in the prevention of violence and abuses, focusing especially on political party militants, youth, media, religious networks, security forces and the police. We also helped to establish a monitoring network for human rights abuses and a free telephone hotline to report and prevent violations.
Our programme was widely perceived as very successful. We have learned from this work in Togo that consistent and sustained engagement on the ground is crucial to any effort to influence gains.
The historic referendum in Southern Sudan in July 2011, and the birth of the new country South Sudan, has also been a challenging situation. Both the governments of Sudan and Southern Sudan made tremendous efforts to ensure a peaceful and credible referendum process. The Sudanese government's acceptance of the results and respect for the will of the people should be commended. However, enormous challenges remain. South Sudan urgently needs to accelerate its transition to a responsible and accountable government that promotes and protects fundamental rights. The failure of the two countries to resolve outstanding elements of the Comprehensive Peace Agreement, despite the efforts of President Thabo Mbeki, continues to have dire consequences for the human rights of civilians, particularly those living along the border. Moreover, in Sudan, the conflict in South Kordofan and the Blue Nile continues to exact a heavy toll on civilians, with more than 900,000 trapped without access to humanitarian assistance, according to the latest UN figures.
In light of the importance of human rights in the context of elections, my Office is closely following preparations for elections in the course of 2013 in several African countries, including in Madagascar, Zimbabwe and Kenya.
We South Africans know how very difficult it is for societies to rise above the divisions created by decades of bitter and deeply felt hostility. Often that hostility is built on very real oppression, and the urge to vengeance may be strong. At other times it may be fanned by stereotypes and hate-speech, inciting hatred and violence on spurious grounds of ethnic or cultural difference. From the Democratic Republic of Congo to Cote d'Ivoire, Guinea-Bissau and Zimbabwe, several African countries in recent years have seen elections disfigured by flashes of violence, as well as by unacceptable limits on freedom of expression, assembly and association.
Now from elections, I would like to move onto another vital challenge for our continent: constitution making.
The process of constitution-making is far more widespread than most people realize. Of the close to 200 national constitutions in existence today, more than half have been written or re-written in the last 40 years, and my Office regularly receives requests for assistance. This can include assistance to the State in organizing a consultative process. It can include support to civil society to educate the public about what a constitution is, why human rights are important, and how individuals can participate in constitution making processes. It can include providing information to a draft committee on human rights standards, or technical assistance during the drafting process. And it can involve assistance after a constitution has been adopted, in terms of laws of implementation, and establishment of new institutions designed to protect human rights.
Clearly, the surge of protest in several North African and Middle East countries that is often termed the "Arab Spring" has given rise to a number of very new situations that call for constitution making. Perhaps the most important element of this process of constitutional, legislative and institutional reform should be its inclusiveness. Bodies that are convened to write new constitutions should be representative and ideally should arise from free elections.
In Egypt, which as all of you know is undergoing a difficult period of transition, the lack of inclusive participation of various actors in the constitution-drafting process has been regrettable. The draft constitution contained some important positive elements such as guarantees to some human rights. However, there are also some very worrying omissions and ambiguities, and in some areas the protections in it are, I regret to say, even weaker than the 1971 Constitution it is supposed to replace. I am highly concerned, for example, by the absence in the current draft of any reference to the international human rights treaties which Egypt has ratified, and is bound to uphold.
In Tunisia, the new constitution, which presents a number of positive elements, is expected to be promulgated in 2013. Human rights and rule of law principles are present in the preamble. A separate chapter on rights and liberties is part of the draft document, and a reference to women being "complementary to men" has been removed and the equality principle restored. In several regions of the country, open meetings are planned to empower Tunisians to express their views and concerns through open meetings. However, the political and human rights situation in the country remains worrisome, with political violence including the deplorable assassination of Chokri Belaid, Secretary-General of the Democratic Patriots Movement, this month.
Also this month, the General National Congress in Libya has decided on the formation of a constituent assembly to draft a new Libyan constitution. This decision is an important milestone, paving the way for reform that reflects the needs, priorities, and aspirations of the Libyan people.
In Somalia, meanwhile, the adoption of a Provisional Constitution in August 2012 marked the end of an eight-year transitional period and, we hope, the beginning of a new era — one in which new political institutions will frame a stable and functional state in the country following two decades of disastrous anarchy and civil war. The Constitutional text recognizes important fundamental human rights, as well as gender concerns, and creates mandates for a national human rights institution and a truth and reconciliation commission. It is not a perfect document. It contains contradictions in its guarantees for freedom of religion and in its provisions on amnesty; and these should constitute priorities for future constitutional reforms. However, in the context of one of the world's gravest and most long-running regional crises, I believe the document is a major milestone. What is now required to turn some of these constitutional human rights guarantees into realities for all Somalis without discrimination is the genuine political will, commitment and commensurate resource allocation by the new Government of Somalia.
VI. Conflict and managing post-conflict situations
I cannot speak about human rights challenges in Africa without mentioning conflicts. But let me not only state the obvious, namely that conflicts are major sources of human rights violations in Africa. Rather, let me say a few words about the need for more conscious efforts to use the full spectrum of human rights to more effectively address the root causes of conflict and to manage post-conflict situations better to avoid recurrence. Post-conflict peace building and recovery processes, like those in South Sudan, Liberia, Sierra Leone and Burundi, to name but a few, call for the effective integration of the protection of economic, social and cultural rights, alongside civil and political rights.
The restoration of access of the civilian population to their rights to housing, land, property, water and food are equally important as issues of impunity, accountability and remedies for victims of human rights violations.
Non-discrimination and tolerance must be at the heart of such restoration – particularly in the many African nations which are multi-cultural. Ethnic/religious intolerance is currently fuelling conflict in the region south of Sahara, from Mali and Nigeria in the west through Chad to Sudan/South Sudan.
The protection of economic, social and cultural rights for all conflict-affected populations without discrimination also need to be more clearly articulated in transitional justice processes and in post-conflict recovery strategies. The forced displacement of populations, the use of forced labour, denial of access to food or water as a method of warfare, destruction of hospitals and schools, looting of properties, demolition of homes or the destruction of crops should be recognized as human rights violations and abuses on the same footing as violations of civil and political rights. Meaning, these violations require accountability and redress as an integral part of transitional justice processes.
My Office leads the United Nations system in transitional justice processes, which gives us an opportunity to try and ensure that the full human rights framework can be used as post-conflict management tool – as an opportunity- to prevent relapse into violence and destruction in Africa. The participation of victims affected by conflict, of civil society and of human rights defenders is crucial in such processes.
VII. Multilateralism - Regional Bodies
Bram Fischer expressed his hope that other African States could intervene, via the UN, in support of the anti-apartheid struggle. "Though it is at the moment beyond the powers of the African States to launch any direct attack," he observed, "(...) their existing influence in the United Nations can but grow and, in its turn, influence the countries with heavy investment in South Africa." And indeed, from the young child who refused to eat “Outspan” oranges to the multinational corporations who declined to invest in our country, the world did significantly assist the movement against apartheid.
Since then, a number of important regional bodies and mechanisms in Africa have been created and strengthened. In the past 25 years, the African Commission on Human and Peoples’ Rights has transformed itself from a nascent regional institution into the primary regional institution for the promotion and protection of human rights in Africa. It has developed considerable jurisprudence pertinent to the human rights situations prevailing in African countries, and has established strong relationships with civil society organisations and African national human rights institutions, including the human rights defenders I highlighted earlier. The UN human rights bodies and the African Commission have overlapping and complementary roles in the protection and promotion of human rights.
Regarding the African Court of Justice and Human Rights,it is important that the Court be provided with adequate resources to effectively hold states accountable for human rights violations. It is also important for the Court to be accessible, in legal and practical terms, to individual victims, and I hope this principle can be firmly established. I note the African Union's recent proposal to expand the Court's mandate over criminal matters: this may have the potential to contribute to the fight against impunity for international crimes, but only if the Court is granted adequate resources and enabled to carry out independent and impartial criminal investigations and trial, while also protecting witnesses. But then again, I hope that this development would not impact on the Court's potential to act on matters of human rights. I am very concerned that the SADC Human Rights Tribunal has been suspended by governments in the region. I understand the intention is to withdraw the Court’s jurisdiction to hear complaints from individuals—which will seriously jeopardize the rights of people to seek remedies where access to justice is lacking domestically.
This month a special court was inaugurated in Senegal to try the former President of Chad, Hissène Habré. This court results from an agreement between Senegal and the African Union, and its mandate will be to prosecute the alleged perpetrators of international crimes committed in Chad between 1982 and 1990, including genocide, crimes against humanity, war crimes, and torture. This is a good example of regional ownership in the fight against impunity, and my Office has offered to provide technical assistance to enable the Court to successfully carry out its mandate.
Democracy is not a rigid construction; it is a living, evolving process. The search for realization of all human rights for all is fundamental to democracy. There is a delicate equilibrium, a tension between various aspirations that creates a system that is to some degree responsive. International law is designed to help countries find that balance for their populations, so that no-one is excluded or discriminated against, whether politically, religiously or in any other way.
Great efforts are being made across countries in Africa to ensure equitable sharing of resources and to build inclusive societies in which every individual has the means to fully participate in the governmental, social and economic life of the country. South African Ubuntu needs to be spread across the entire continent.
This year marks the 20th anniversary of the Vienna Declaration and Programme of Action (outcome of the 1993 World Conference on Human Rights), a landmark human rights statement that also, not incidentally, created the Office of the High Commissioner of Human Rights. It was human rights defenders who lobbied for this organization, to give victims a voice. We have achieved some powerful steps forward; in other areas, we have so far failed. To some extent it is necessary that we focus very intensely on the institutional and judicial framework to ensure that rights of minorities are guaranteed. But of course, what matters most to individual human beings is not the rhetoric but the reality — the way these guarantees are exercised in practice.
24 presences as follows: 4 Regional Offices (East Africa, West Africa, Southern Africa and Central Africa); 10 human rights components in peace missions : Burundi, Central African Republic, Côte d'Ivoire, Democratic Republic of the Congo, Guinea Bissau, Liberia, Sierra Leone, Somalia, Sudan (Darfur) and South Sudan; 7 Human Rights Advisors: Chad, Kenya, Madagascar, Niger, Rwanda, Mali and Malawi (under recruitment); 3 country offices: Guinea, Togo and Uganda