11 May, 2020
SOUTHERN AFRICA HUMAN RIGHTS ROUNDUP
This article was first published by the Southern Africa Human Rights Network
The Southern Africa Human Rights Defenders Network and Maverick Citizen launched the Southern Africa Weekly Human Rights Roundup, aimed at highlighting important human rights news in Southern Africa. The Human Rights Roundup integrates efforts of human rights defenders and facilitates evidence-based engagement with key stakeholders, and institutions on the human rights situation across the region.
This week we examine how southern African countries are responding to the dual paradoxical objectives of ensuring that measures to protect people from Covid-19 do not negatively affect human rights and the strengthening of democracy.
The number of Covid-19 cases continues to grow in southern Africa, threatening scheduled elections and democratic processes.
However, in the words of UN High Commissioner for Human Rights Michelle Bachelet, on 27 April, emergency powers invoked to fight Covid-19 “should not be a weapon governments can wield to quash dissent, control the population, and even perpetuate their time in power”.
As a recent article in Maverick Citizen explains, the UN has reiterated time and time again that respect for all human rights — economic, social, civil and political — is fundamental to the success of the fight against Covid-19.
Nonetheless, the chorus of complaints about how Covid-19 measures are deliberately being made repressive by some governments in southern Africa — to produce political outcomes as opposed to public health outcomes — is increasing in volume.
With Covid-19 hanging over their heads, African governments are faced with a difficult choice: to go ahead with scheduled elections and risk accelerating infections or to postpone and compromise their democracy, including by creating potential leadership legitimacy crises.
Some countries, such as South Africa and Zimbabwe, have already suspended political activity and elections due to fears of spreading the virus. Others like Malawi and Zambia appear to be proceeding with elections as planned or as ordered by the court while implementing measures that have the effect of limiting the enjoyment of fundamental rights in a way that affects the potential freeness and fairness of the polls.
Concerns about preparedness from election authorities and political parties have also been considered.
The African Union’s governance instruments affirm that “regular elections constitute a key element of the democratisation process and, therefore, are essential ingredients for good governance, the rule of law, the maintenance and promotion of peace, security, stability and development”.
It is therefore important to prevent Covid-19 from not just killing people but also from killing electoral democracy.
On 19 March, South Africa’s Electoral Court granted an urgent application by the Electoral Commission to postpone all municipal by-elections and associated voter registration activities that were originally scheduled for March-May 2020.
On 26 March, the Zimbabwe Electoral Commission announced that all by-elections and other electoral activities had been suspended until further notice as part of precautionary measures to protect its employees and the general public from the pandemic.
In Malawi elections ordered by the court are around the corner, in July. The impact of Covid-19 on this vote has been topical in the past month. The general view is that adequate logistical preparation for the election in important key result areas would be difficult within the timeframe. These include procurement of voting materials, recruitment and training of election officials and enabling administrative processes such as voter registration and setting up of election management infrastructure in constituencies.
Voting procedures would have to be adjusted to comply with lockdown regulations.
Altogether it is a mammoth logistical undertaking that requires additional resources, both material and financial, that Malawi does not have. As political analyst Taona Mwanyisa argues, if Malawi goes ahead with the election amid the pandemic there will be serious hurdles to overcome.
The opposition has expressed the worry that President Peter Mutharika is going to use the pandemic to delay the election and cling on to power.
Malawi is in a difficult situation because the election dates are part of a court order. Any postponement could have far-reaching implications on the health of democracy at a time when there are already significant questions about the legitimacy of Mutharika remaining in power when his term expired.
He has remained in office merely because of technical aspects of the law that will not allow a vacuum at State House. Questions have been raised about the extent of his powers, given that he is in office but unelected.
The AU governance instruments are clear that “democratic elections are the basis of the authority of any representative government”.
Such is the extent of the impact of Covid-19 on electoral contestation in Malawi that efforts by Mutharika’s government to impose lockdown conditions have been widely rejected by the population, resulting in protests and court challenges.
Law enforcement agencies have threatened to use force to ensure compliance with lockdown.
Threats in 2021
Southern African elections scheduled for next year could also be affected.
Information on whether Zambia will proceed with its 2021 poll remains sketchy. The country is set to conduct its first ever-electronic population census in August this year. But even that has not been officially announced.
Ominous signs that authorities in Zambia are using Covid-19 measures to clamp down on enjoyment of fundamental rights are showing. There have been several reports of police brutality to enforce regulations. The Minister for Lusaka threatened to whip the spokesperson of the Human Rights Commission after he condemned police for whipping people for allegedly violating rules.
Leading lawyer John Sangwa has been disbarred administratively from practicing for opposing a parliamentary Bill centralising executive power and removing effective separation of powers.
Independent television station Prime Television has been forcibly closed under the guise of protecting public interest and public safety. Restrictions to civic space — oxygen for citizen voices — prevent activists from drawing attention to human rights emergencies and risk creating a wider human rights crisis.
That, after all, is the lesson of China’s suppression of doctors who tried to warn about Covid-19 in early January.
Allegations of weaponisation of the law to restrict civic space and attack human rights activists and institutions — often described as “judicial persecution” or “persecution through prosecution” — keep arising in Zambia.
In Lesotho, where embattled Prime Minister Thomas Thabane is under pressure to resign, fresh elections can happen at any time.
Police Commissioner Holomo Molibeli has raised serious allegations that there were plans to have him killed but was “a free man only because Lesotho Defence Force (LDF) commander Lieutenant General Mojalefa Letsoela defied orders to arrest him” during the army’s deployment by the prime minister on Saturday 25 April.
The International Institute for Democracy and Electoral Assistance (IDEA) raises concern that, while there may be broad political consensus regarding the postponement of elections, the legal basis for such postponement and the modality of governance between the end of term of the current parliament and new elections have raised political and constitutional contestations.
Many constitutions are silent on what should happen if elections fail to take place for one reason or another.
Notwithstanding the devastating effects of Covid-19, the pandemic presents an opportunity for election authorities and legislators in southern Africa to better organise themselves and put in place measures and plan Bs that ensure their citizens are able to exercise their franchise to vote at any given time. We, therefore, agree with Thomas White that “while these measures may mitigate the spread of coronavirus in the short term, they do create another risk that Covid-19 will be used as a smokescreen to rationalise attacks on democracy”.
Status of lockdowns in southern Africa
Southern African countries have continued operating under lockdown conditions with minimum or no cross-border travel.
As South Africa entered its final week of a 35-day lockdown, the government announced it would gradually ease the restrictions in five stages from 30 April, citing economic concerns. President Cyril Ramaphosa authorised the deployment of an additional 73,180 soldiers to help police enforce lockdown regulations until June, raising concerns in civil society about possible abuses, some calling it “a strategic blunder against an invincible enemy”.
Zimbabwe and Namibia have also remained under strict lockdowns that are scheduled to end on 3 and 4 May respectively. On 21 April, Lesotho extended a 21-day national lockdown by another 14 days despite not having recorded any cases. On 22 April, Eswatini reversed a decision to relax coronavirus restrictions after infections almost doubled to 31 in one week. During April, Dr Tedros Adhanom Ghebreyesus, the World Health Organisation director-general, laid out six criteria that should guide countries as they consider lifting restrictions.
These include but are not limited to ensuring that transmission is controlled, health systems capacities are in place to test, isolate, treat every case and trace every contact, and that communities are fully educated, engaged and empowered to adjust to the new norm.
Lockdowns and police brutality
Civil society continues recording cases of torture, arbitrary arrest and murder of citizens by law enforcement agencies in all countries.
Police and soldiers in South Africa are accused of assaulting people they allege were breaching lockdown regulations. In one incident, riot police went as far as to fire rubber bullets at nurses protesting shortages in personal protective equipment. To date, reports indicate that eight people have been killed by law enforcement officers and at least 200 cases of police brutality have been recorded.
In Eswatini, the police commissioner warned journalists against writing “negative news” about the kingdom. The warning comes in the wake of the detention of former Times of Eswatini journalist Eugene Dube. The Economic Freedom Fighters of Swaziland issued a statement strongly condemning “the psychological warfare, abuse of power and demonising and torture of innocent journalists and its members by the police”.
In Zimbabwe, Lovemore Zvokusekwa was arrested for allegedly originating a statement that brought the president into “disrepute”. There was general outrage when police in Mutare arrested an opposition member of parliament, Regai Tsunga, on 21 April for distributing food as part of measures to mitigate the impact of Covid-19 measures on poor people facing starvation. Ruling party MPs have not faced a similar fate for doing the same thing. To date, reports indicate that there have been 190 assaults by the police, 12 attacks on journalists, 7,000 arrests — mainly people moving around in search of food — and one case of malicious damage to property.
Lockdowns and poverty
Severe hunger continues to threaten southern Africa’s efforts to enforce lockdowns. In its annual Global Report on Food Crises, released on 21 April, the UN World Food Program reported “the number of people battling acute hunger is on the rise again”. Although research for the publication was conducted before the coronavirus outbreak, the WFP supposes the pandemic “may push even more families and communities into deeper distress”.
On 24 April, a Zimbabwean man was arrested and charged with undermining the authority of President Emmerson Mnangagwa by allegedly circulating a message on social media accusing the country’s leader of ineptitude for not implementing a rescue package like that of his South African counterpart.
Malawi’s lockdown remains suspended until the government puts in place necessary socio-economic protection measures as ordered by the High Court. Authorities must strike a balance between enforcing compliance and ensuring respect for fundamental human rights. The government of South Africa has led the way in this. It allocated R500-billion towards relieving the plight of those most affected by the pandemic.
Access to water
The absence of clean and potable water, a key element in fighting the spread of Covid-19, remains a huge challenge in the region.
On 21 April, Community Water Alliance, a Zimbabwean civil society organisation, condemned the Zimbabwe Republic Police for arresting one of its staff members whilst she was on her way to help raise funds for sanitisers and public water points — even though she was in possession of a letter from the City of Harare giving her permission to do so.
South Africa should be applauded for availing R20-billion to municipalities tasked with provision of emergency water supply, increased sanitation of public transport and facilities, and providing food and shelter for the homeless.
Covid-19 testing, treatment and vaccination
Health experts have expressed worry over a significant rise in reported Covid-19 cases in Africa. This has prompted most governments to ramp up tests in addition to lockdowns.
South Africa has conducted more than 161,000 tests after rolling out a mass testing exercise earlier in April. On 14 April, the UN’s resident coordinator in Angola announced an additional grant of $12.5-million to combat Covid-19.
The WHO issued a warning that “there is currently no evidence that people who have recovered from Covid-19 and have antibodies are protected from a second infection”. This was after some governments were considering issuing “immunity passports” or “risk-free certificates” that would enable individuals to travel or to return to work assuming that they are protected against re-infection.
The Covid-19 pandemic has had a devastating impact on two fronts: health and economy. With the exception of South Africa, the lack of government support for most citizens in the region has been exacerbated by the excessive use of force by authorities in the name of enforcing lockdowns. Denied the right to food, water and other basics, democracy is likely to be the next casualty for citizens as other important events such as elections have been caught in the Covid-19 crosshairs.
Whilst it can be argued that the postponement of these processes is important to constrain the spread of the virus, the implications are very worrisome. Measures ought to be taken to ensure that the interests of human rights and democracy are not unnecessarily sacrificed on the altar of the health emergency.
Southern African democracies are fragile and, in enforcing lockdowns and restrictions, authorities are urged to exercise restraint to limit further regression during this tremendous stress test.
Arnold Tsunga is a human rights lawyer, the director of the Africa Regional Programme of the International Commission of Jurists (ICJ) and the immediate past-chairperson of the SAHRDN. Tatenda Mazarura is a Woman Human Rights Defender (WHRD), a professional rapporteur and an election expert. Mark Heywood is editor of Maverick Citizen.