Situation of human rights defenders in Africa - Contribution to the 55th ordinary session of ACHPR

55th ordinary session

Luanda, Angola

April 28 - May 12, 2014

Contribution of the InternationalFederation for Human Rights (FIDH)

and the

World Organisation Against Torture (OMCT)

In the framework of their joint programme,

The Observatory for the Protection ofHuman Rights Defenders

Under agenda item 9: “Situation of humanrights defenders”

Madam President,

Madam the Special Rapporteur for HumanRights Defenders,

Madam and Sir Commissioners,

Madam and Sir Delegates,

FIDH and OMCT, in the framework of theObservatory for the Protection of Human Rights Defenders, once again expresstheir grave concern about the situation of human rights defenders in Africa.

Since the last session of the Commissionin November 2013, the Observatory has reported, with great concern, multipleviolations of human rights defenders’ rights and freedoms all across thecontinent, especially in Angola, where the Observatory carried outa fact-finding mission in 2013, Burundi, Cameroon,the Democratic Republic of Congo (DRC), Djibouti, Egypt,Kenya, Rwanda, Sudan, Swazilandand Uganda.

Judicial harassment based on falseaccusations, accompanied by arbitrary arrests and detentions, remains the mostcommon harassment technique, especially in Angola, Cameroon,Djibouti, Egypt, The Gambia and Sudan.

In several countries, including the DRCand Djibouti,human rights defenders have also been subjected to threats and defamationcampaigns.

Acts of intimidation have beenparticularly directed against lesbian, gay, bisexual, transgender and intersex(LGBTI) rights defenders in Cameroon.

Major obstacles to freedom of associationwere also reported, as for instance in Algeria, Angola,Burundi, Kenya, Rwanda and Uganda.

Violations were suffered, among others, bymembers of non-governmental organisations (NGOs), lawyers, journalists,bloggers, land and environmental rights activists, civil society organisationswho defend the rights to freedoms of expression, association and peacefulprotest, denounce human rights abuses by the State or powerful companies, andfight for the respect of the rights of LGBTI people and for fundamentalfreedoms in general.

I. Continuationand intensification of the judicial harassment of human rights defenders

Judicial harassment, arbitrary arrests anddetention of human rights defenders remain widespread practices in manycountries, and the situation in this respect is particularly worrying in Angola,Egypt, the DRC, Cameroon, Sudanand Swaziland.

In Angola,charges remain pending against Mr. Rafael Marques de Morais, well-knownfor his publications denouncing corruption and human rights abuses in theAngolan diamond industry, after he was charged in March 2013 with 11 criminalcounts for allegedly libelling Generals together with business entrepreneurs.The case was referred to the National Directorate of Investigation and PenalAction (DNIAP). The charges pending against Mr. Marques, the lack of access, byhim and his lawyer, to all the documents related to the case, the transfer ofthe case to DNIAP upon request of the Attorney General, constitute seriousinfringements to Mr. Marques' right to due process and illustrate theauthorities' willingness to hamper his freedom of expression and undermine hisdocumenting and reporting activities. Moreover, on February7, 2014, Mr. Queirós Anastácio Chilúvia, Director of the Despertarradio, was sentenced to six months' suspended imprisonment for expressinghis concerns about conditions of detention in a Luanda prison.

In Egypt, members of the “Noto Military Trials for Civilians” group have been regularly targeted byEgyptian authorities for denouncing Article 198 of the draft constitution thatallows for civilian trials before military courts, and more generally forcriticising human rights abuses committed by security forces and the army underrule of the Supreme Council of the Armed Forces (SCAF) and afterwards. OnNovember 26, 2013, at least nine members of the “No to Military Trials forCivilians” group were arrested as they were demonstrating near Tahrir Square inCairo. Police forces beat them up and sexually harassed both men and women. Twodays after the protest, Mr. Alaa Abdel Fatah, member of the “No toMilitary Trials for Civilians” and a famous civil and political rightsactivist, was arrested at his home by security forces. On January 5, 2014, alongwith Ms. Mona Seif, co-founder of the movement, and Mr. AhmedAbdallah, member of the 6 April Youth Movement and co-founder of theEgyptian Commission for Rights and Freedoms, Mr. Fatah was sentenced toone-year imprisonment, suspended for three years, on charges of “arson”,“theft”, “damage to property”, “violence” and “danger to public safety”. Theconvictions are based solely on the evidence of so-called eyewitnesses who wereeither agents of the government or persons with criminal records or with criminalinvestigations pending against them. On March 23, 2014, the 16thterrorism circuit of South Cairo Criminal Court ordered the provisional releaseof Mr. Alaa Abdel Fatah on a bail of LE 10,000 (approximately EUR 1,042). Thesecond hearing of Mr. Abdel Fattah’s trial was held on April 6, 2014, when hislawyers obtained an adjournment of the trial pending a review of JudgeEl-Fikki’s involvement in the case.

Egyptian authorities have also beenharassing members of the Egyptian Centre for Economic and Social Rights(ECESR). On December 18, 2013, more than 60 heavily armed operatives ofAzbakeya and Abdin police stations and the Homeland Security Agency stormed theheadquarters of the ECESR in Cairo. Without any search or arrest warrants, theybrutally manhandled and arrested Mr. Moustafa Eissa, Head of ECESRDocumentaries Unit, Mr. Mahmoud Belal, ECESR lawyer, and Mr. HosamMohamed Nasr, Mr. El Sayed Mahmoud El Sayed, Mr. Sherif Ashourand Mr. Mohamed Adel, all four ECESR volunteers. All were working on adocumentary about an ongoing strike of the Iron and Steel Workers' Union, inpreparation for its screening at a press conference the following day. Apartfrom Mr. Mohamed Adel, all were released the following morning but werereportedly beaten several times during their detention. Moreover, on April 7,2014, Mr. Mohamed Adel was sentenced in appeal to three years' imprisonment for“organising a protest on November 26 without notifying the Ministry ofInterior”, and “assaulting security forces in charge of securing the Abdeencourt on November 30”. The November 26 demonstration had been held to protestagainst the military courts.

Arbitrary detentions and judicialharassment of human rights defenders also occur regularly in the DRC.Mr. Abedi Ngoy and Mr. Gervais Saidi, members of the ManiemaFarmers Alliance (Alliance paysanne du Maniema - ALLIPAM), were arrestedrespectively on December 2 and 16, 2013 for defending farmers whose houses inKasongo were burnt in 2008. Both defenders have been held with 20 prisoners ina cell conceived for 10 persons, without aeration, bed, access to sanitaryfacilities and medical services. They have also been deprived of food and haveto pay 10 $USD to their jailers to be able to receive food sent by theirfamilies. While Mr. Ngoy was released on bail, Mr. Saidi remains detained todate.

In the territory of Tshikapa in WesternKasaï, Mr. Albert Fwamba Kabasele, Territorial President of the NationalFarmers’ League of Human Rights (Ligue nationale paysanne des droits de l’Homme- LINAPEDHO), has been arbitrarily detained since his arrest on February 14,2014, after a meeting held between the Vice-Governor of Kasaï Province andcivil society actors to discuss the exploitation of Mpokolo diamonds quarry.Mr. Kabasele has been defending Kamonia population's rights and encouragingthem to resist to the exploitation of the mineral quarry, which is their solesource of income.

In October2013, the Supreme Court of Justice of Kinshasa finally decided to grant bail tothe nine members of the Association forthe Advocacy of the Interests of the City of Bandundu(Association pour la défense des intérêts de la ville de Bandundu -ADIVB), who were detainedsince March 2013 for calling upon the population to take part in a peacefuldemonstration to protest against the raise of the prices of electricity andwater. Yet their release was subject to the payment of an exorbitant bail (500,000 Congolese francs each - over 400 euros) as well as to thecondition not to leave Bandundu without the permission of the Attorney Generalto the Appeal Court.

In Cameroon, Mr. CélestinYandal, President of the Collective for Young People of Touboro (Collectifdes jeunes de Touboro), a local NGO defending youth's rights in theAdamaoua region, was arrested on November 23, 2013 and placed in provisionaldetention. Mr. Yandal was coming back from a meeting with members of theNetwork of Human Rights Defenders of Central Africa (Réseau de défenseursdes droits humains de l'Afrique centrale), which took place on November 19,2013 in Douala. Mr. Célestin Yandal had denounced in particular the arbitraryarrest of 14 young people in Rey Bouba, ordered by Vice-President of theCameroonian Senate. After being released by the Prosecutor of Tcholliré, he wasimmediately re-arrested as he was leaving the tribunal. He appeared for thefirst time before the North Appeal Court on January 16, 2014, which rejectedthe request for provisional release lodged by his lawyer. As of April 19, 2014,Mr. Yandal remained in detention in the central prison of Garoua.

In Sudan, a number ofdefenders of peaceful student activists have been arrested by the NationalIntelligence and Security Services (NISS), and detained incommunicado. Forinstance, Messrs. Gazi Alrayah Al-Sanhouri and Abdulmonim Adamwere respectively arrested on March 12, 2014 and March 13, 2014 in Khartoum, inconnection with a demonstration organised at the University of Khartoum onMarch 11 to denounce the human rights situation in Darfur. The protest washarshly repressed by the authorities, resulting in the killing of one studentand in seven others being seriously injured. As of March 18, 2014, thewhereabouts of Mr. Al-Sanhouri remained unknown, and Mr. Adam was detainedwithin the NISS offices in Khartoum Bahri with no access to his lawyer andfamily members.

In Swaziland, Mr. ThulaniRudolf Maseko, a prominent Swazi human rights lawyer, senior member ofLawyers for Human Rights Swaziland and the Southern Africa Human RightsDefenders Network, and Mr. Bheki Makhubu, a columnist andEditor-in-Chief of The Nation, considered as the sole independentnewspaper of the country, have been repeatedly harassed for denouncing abusescommitted by the Swazi judiciary. The two human rights defenders were initiallyarrested on March 17 and 18, 2014 and kept in provisional detention for threeweeks, on charges of “scandalising the judiciary” and “contempt of court”. Theywere temporarily released on April 6, 2014 before being rearrested on April 9,2014. Both are currently kept in the provisional detention centre ofSidwashini, Mbabane, pending trial.

In Zimbabwe, while policeand security agents are often responsible for the arbitrary arrest, abduction,harassment or intimidation of human rights defenders, some positive developmentshave been noted with the acquittal of Mr. Abel Chikomo and Ms. BeatriceMtetwa, on November 22, 2013 and November 26, 2013 respectively. Mr. AbelChikomo is the Executive Director of the Zimbabwe Human Rights NGO Forum, acoalition of 20 Zimbabwean human rights organisations advocating againstorganised violence, torture and impunity in Zimbabwe. Ms. Beatrice Mtetwa is ahuman rights lawyer and board member of Zimbabwe Lawyers for Human Rights(ZLHR).

II. Threats and slandering campaignsagainst human rights defenders

On several occasions, human rightsdefenders have suffered threats or acts of intimidation in an attempt tosilence them. Such acts were committed either directly by State agents or bynon-State actors with the silent complicity of the authorities, thereforeencouraging further acts of violence against human rights defenders.

In the DRC, Mr. MéméAwazi Nengo, ALLIPAM Executive Secretary, Mr. Angali Salumu Yemoko,President of the Network of Associations for Human Rights in South Maniema (Réseaudes associations de défense des droits humains dans le sud Maniema -RADHOSMA), and Ms. Salufa Aziza, President of ALLIPAM Women, have beenthreatened after having initiated proceedings against the Maniema ProvincialGovernment. They were also publicly insulted and received death threats fordefending farmers whose houses in Kasongo were burnt in 2008 (see above). OnNovember 28, 2013 a group of non-identified armed men attacked of the house ofMr. Awazi Nengo. Since this incident, the three defenders have been intohiding.

In Djibouti, repression andharassment of human rights defenders remain a general and widespread practice,which was condemned on January 22, 2014 by Ms. Reine Alapini Gansou, ACHPRSpecial Rapporteur for Human Rights Defenders. Mr. Zakaria Abdillahi,President of the Djiboutian League of Human Rights (Ligue djiboutienne desdroits humains – LDDH), was arrested on January 24, 2014 before beingeventually released on January 26, 2014. As the lawyer of many human rightsdefenders harassed by Djiboutian authorities, he was subject to intensepressure and received threats prior to his arrest. On the day of his release,the journalist Maydaneh Abdallah Okieh, working for La Voix deDjibouti newspaper, was arrested for covering it, before being releasedshortly after.

III. Intimidations and violence againstLBGTI rights defenders

In Cameroon, the defendersof LGBTI people still face threats and judicial harassment. The Observatoryconducted a mission from January 7 to 16, 2014, and could witness anenvironment marked by overall insecurity and intimidation against health rightsand LGBTI rights defenders, in a country where homosexuality is alsocriminalised. To date, Cameroon is the country with the highest number ofpersons being prosecuted, sentenced and imprisoned for “consensual sexualrelations with a person of the same sex” (Article 347bis of the Penal Code).The Cameroonian authorities are showing no perceptible signs of willingness tostop these persecutions, none of the persons responsible for blackmail orextortion has ever been arrested or troubled, and the complaints filed by thedefenders have all been ignored. The investigation into the death of EricOhena Lembembe, Executive Director of the Cameroonian Foundation for AIDS(CAMFAIDS) and journalist who actively defended LGBTI rights, remains in adeadlock, as the only procedural act carried out by the investigating judge upto now was to summon six of the victim's friends to testify and to bequestioned about charges of aggravated theft.

In Uganda, theanti-homosexuality bill promulgated on February 27, 2014 provides imprisonmentin case of “promotion” of homosexuality and against anyone who would fail todenounce a homosexual act within 24 hours while having authority to do so.These provisions place human rights defenders, and in particular those whoseorganisations provide healthcare, social and legal services to LGBTI persons,in a vulnerable situation and expose them to criminal prosecution. Suchprovisions constitute a grave violation of the principles and fundamentalfreedoms guaranteed by the African Charter, and notably the principle ofnon-discrimination, freedom of expression, freedom of association and freedomof assembly.

IV. Obstaclesto the rights of freedoms of association, expression, movement and peacefulassembly in African countries

Since the last session of the ACHPR, theObservatory has continued to witness several obstacles to freedom ofassociation, expression movement and peaceful assembly, as for instance in Algeria,Angola, Burundi, Kenya, Rwandaand Uganda.

In Angola, human rightsorganisations remain in a situation of vulnerability, due to the voluntarilymaintained ambiguity of their legal status or the use of subtle acts ofintimidation against their members, aimed at undermining their actions. TheAssociation Justice, Peace and Democracy (AssociaçãoJustiça Paz e Democracia), Mãos Livres, Omunga or SOS-Habitat are amongthese organisations. It is also prohibited to report on the human rights violationscommitted in the Cabinda province, as exemplified by the ban of the NGOMpalabanda in 2006 and the continued harassment of its members.

Despite its accession to the UnitedNations Human Rights Council in January 2014, Algeria remains the onlycountry among its neighbours that generally restricts access to human rightsorganisations. The Algerian authorities have not agreed to visits requested bythe UN Special Rapporteur on Torture and the UN Working Group on Enforced orInvoluntary Disappearances, and have restricted access for other human rightsobservers. Algerian authorities have also refused to grant visas tointernational human rights NGOs for several years. At the domestic level, theright of Algerian NGOs to operate freely has been violated in many ways. In2012, Algerian authorities have even adopted a new law on associations morerepressive than the previous one. Law No. 12-06 forbids associations fromreceiving any foreign funding or cooperating with or seeking membership inforeign organisations without the government’s agreement. The law also requiredall associations already registered under the previous law to submitorganisational bylaws that comply with the new legislation, by January 15,2014. All existing associations not successfully registered under the new lawcan be considered illegal, exposing their members to penalties of up to 6months in prison and a 300,000 Algerian dinar (€2,800) fine.

Similarly, in Kenya, a newproposed bill submitted on October 30, 2013 was aiming to provide thegovernment with the ability to control all funds coming into the country. Thebill was aiming to limit to a maximum of 15% the proportion of foreign fundingthat an NGO would be allowed to receive from external donors, and to impose anyfunding to be channelled through a new “Public Benefits Organizations (PBO)Federation”, rather than directly from donors. The text was further providingfor the creation of a “PBO Authority”, with a chairperson appointed directly bythe President of the Republic, to “impose terms and conditions for the grant ofcertificates of registration, permits of operation, and public organisationsstatus”. While the bill was rejected by Parliament at the second reading –following strong national and international pressure – it gave an illustrationof the political environment within which civil society organisations areoperating in Kenya.

In terms of obstacles to freedom ofexpression, in December 2013, the Parliament of Kenya adopted two bills aimedat regulating the media sector, which provide for discretionary powers of theauthorities over media houses and journalists. Both have been signed into lawby President Kenyatta. The first text, titled “Information and CommunicationAct, 2013”, creates a government-appointed Communications and MultimediaAppeals Tribunal with unfettered powers to impose penalties on mediapractitioners, including revocation of accreditation, seizure of property, andheavy fines of up to 1 million Kenyan shillings (US$12,000) on journalists, andup to 20 million Kenyan shillings (US$235,000) on media companies. The Actprovides that such fines could be imposed on the basis of anonymous complaints.The Act also restricts advertising revenues, a provision which could force somemedia houses to close down. The second text, entitled “Media Council Act,2013”, establishes a Media Council of Kenya and a Media Council's ComplaintsCommission with powers to ban any media content that is “prejudicial to publicor national interest” and impose penalties against the publishers of suchcontent, while failing to clearly define “national or public interest”.Following the passage of these two laws, two different petitions were filedbefore the High Court in Nairobi to challenge their constitutionality. OnJanuary 31, 2014, the High Court, which decided to consolidate the two cases,ordered to halt the implementation of both laws pending its ruling on themerits of the case. To date, the Court has not yet rendered its decision on themerits.

In Uganda,the Public Order Management Act (POM Act), which was signed into law on October2, 2013 by President Yoweri Museveni, restricts freedoms of expression andpeaceful assembly and further deteriorates an already shrinking space for civilsociety and human rights defenders in the country. Although protecting publicorder is a legitimate concern recognised by international instruments, thescope and nature of the restrictions provided by the POM Act, which was passedby Parliament in August 2013, go well beyond the restrictions permitted underinternational and regional human rights law and therefore contradict Uganda'sinternational and regional commitments. In particular, the POM Act fails toestablish a presumption in favour of the exercise of the right to freedom ofpeaceful assembly as it fails to recall the duty on the State to facilitatepeaceful assemblies. In circumstances where a public meeting is held contraryto the Act, participantsin the meeting may be criminalised and are liable of an imprisonment notexceeding 12 months or a fine not exceeding 480,000 Uganda shillings (about 140€) or both. The POM Act also grants the Interior Minister the power, subject toParliamentary approval, to declare any area as “gazetted” where public meetingsare absolutely prohibited, and prohibits public meetings at and around publicinstitutions by designing them as “restricted areas”, where entry is prohibitedwith punishment of two years’ imprisonment and/or a fine of 960,000 Ugandashillings or both. These areas notably include Parliament and Courts.

In Rwanda, the authoritiescontinue to interfere in the internal affairs of independent associations, andimpede in particular the legitimate board of the Rwandan League for thePromotion and Defence of Human Rights (Ligue rwandaise pour la promotion etla défense des droits humains - LIPRODHOR) to be reinstated. The LIPRODHORwas one of the few independent human rights organisations in Rwanda, until itsboard was ousted during a meeting convened on July 21, 2013 by the formerLIPRODHOR President, unbeknownst to the members of legitimate board. At thatmeeting, the legitimate board that was in office at the time was replaced bypeople believed to be favourable to the Government. The meeting was laterrenamed as “ extraordinary assembly”, in violation of the association's bylaws.A few days later, the Rwanda Governance Board (the public body in charge of theregistration of associations) expeditiously recognised the new board. On July24, bank accounts of the LIPRODHOR were frozen and the police cancelled atraining workshop that was to be organised by LIPRODHOR about the UN UniversalPeriodic Review mechanism. The outset legitimate board initiated proceedings tovoid the decision taken during the “extraordinary assembly” of July 21, 2013 soas to destitute the new, illegitimate, LIPRODHOR board. The first hearing tookplace on March 6, 2014, followed by a second hearing on April 10, where thejudge again announced a postponement to May 15. The case of the LIPRODHOR isillustrative of the governmental interference in the functioning of independentcivil society organisations, in violation of the right to freedom ofassociation protected under the Rwandan Constitution.

In Burundi, some humanrights NGOs still face pressure from the authorities that impede their properfunctioning. On April 4, 2014 the Mayor of Bujumbura unilaterally rejected thenotification submitted by the Observatory for the Fight against Corruption andEconomic Embezzlement (Observatoire de lutte contre la corruption et lesmalversations économiques - OLUCOME) to organise a commemoration of theassassination of its Vice-President Ernest Manirumva, which has remainedunsolved to date. The Burundian Prosecutor General has even made wrongful andfallacious public accusations against the current OLUCOME President, Mr. GabrielRufyiri, accusing the latter - without any grounds - of being possiblyinvolved in the assassination of Ernest Manirumva.

Recommendations:

1) In view of the above-mentionedelements, the Observatory reminds States Parties of their obligation to complywith all the provisions of the African Charter, in particular those relating tothe protection of human rights defenders. In that regard, States shouldimmediately and unconditionally:

- Implement all the provisions of the 1998United Nations (UN) Declaration on Human Rights Defenders, especially byguaranteeing in all circumstances their physical and psychological integrityand their capacity to operate in a safe and enabling environment;

- Release all defenders who arearbitrarily detained for merely exercising their rights to fundamentalfreedoms, in particular freedoms of expression, peaceful assembly andassociation;

- Put an end to all acts of harassment -including at the judicial level - against human rights defenders;

- Order immediate, thorough, transparentinvestigations into allegations of violations of human rights defenders’rights, in order to identify all those responsible, bring them before anindependent tribunal, and apply them the sanctions provided by the law;

- Refrain from adopting any provisionsthat do not comply with international and African standards with respect to theexercise of the right to freedoms of expression, peaceful assembly andassociation, and abrogate or revise any such provisions that may be in force;

- Send a standing invitation to the UnitedNations and ACHPR’s Special Rapporteurs on Human Rights Defenders andfacilitate their country visits.

2) TheObservatory also calls upon the ACHPR to:

- Systematically raise the question of the situation of human rightsdefenders during the examination of the periodic reports of the States partiesto the ACHPR, and on the occasion of all visits conducted in a State party;

- Adopt the Report of the ACHPR Study Group on Freedom of Association,entitled “Freedom of Association and Freedom of Assembly in Law and Practice inAfrica”;

- Ensure the effective implementation of its concluding observations inorder that everyone, including human rights defenders, be able to effectivelyenjoy all the rights and freedoms recognised by the ACHPR and the UniversalDeclaration of Human Rights;

- Continue and strengthen the collaboration with the United NationsSpecial Rapporteur on Human Rights Defenders, as well as with the otherregional mechanisms for the protection of human rights defenders.

***

Luanda,April-May 2014