Keynote Address 4^th October 2021 Justice Zione Ntaba

Good morning, I bring you greetings from the Warm Heart of Africa, Malawi. A country blessed with beautiful people, rolling hills, thirst quenching rivers and an amazing lake, fondly called the Lake of Stars or the Calendar Lake. We look forward to your visit.

Let me first say, that is it is great to be among a set of people in the legal profession who I enjoy interacting with, being a former prosecutor myself. It is therefore an honour to address you at this SADC Gender-Based Violence (GBV) Model Law Consultative Meeting for Prosecutors from SADC Member States being held virtually. It is important to note that these consultative meetings are happening at a highly appropriate time right now on the African continent as every country is continuing to grapple with gender-based violence and its impact on the population as well as its economic prosperity and development for its people. Therefore, my keynote address is suitably placed in this discussion that Africa needs to have at this point but more so for the SADC countries which have their own unique issues in terms of gender-based violence.

Let me state from the onset that I find the objectives of the consultative meeting, exciting and extremely important as the issues you aim to achieve are very fundamental for gender and women’s right across Africa. It should be indicated at the beginning that there will be a lot of discussion on women and girls in this address. It is evident that even in the 21st Century, research has shown that most sectors continue to move at a glacial pace in terms of bringing women and girls into a position of achieving highest development but more so the enjoyment and promotion of their human rights.

Estimates published by WHO in March, 2021¹ indicate that globally about 1 in 3 (30%) of women worldwide have been subjected to either physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime. Further that most of this violence is intimate partner violence. Worldwide, almost one third (27%) of women aged 15-49 years who have been in a relationship report that they have been subjected to some form of physical and/or sexual violence by their intimate partner. Incidentally that violence against women and girls particularly intimate partner violence and sexual violence is a major public health problem and a violation of women's human rights. Therefore, as prosecutors we should be very concerned and be working on ensuring that we reduce these numbers.

Distinguished prosecutors, I have gone through the draft SADC Model Law and wish to applaud the SADC Parliamentary Forum for having taken on this task which is critical and

pivotal in the justice sector. Most of us hail from countries that have Constitutions that emphasize human rights including mine where under section 19, it provides for the inviolability of human dignity. It prohibits torture, cruel, inhumane and degrading treatment. Gender based violence bears the marks of torture, and is also, under various circumstances, cruel, inhumane and degrading. The invasion of the body in sexual offences contrary to the victim’s wishes often leaves the victim traumatized, both physically and psychologically violated. It is a fact that consequences of gender-based violence means unproductive citizens and this equates to a lack of development for the citizen, nation and continent as a whole.

It is therefore imperative that as SADC we move and embrace new ways of handling gender- based violence. The words of Gubbay JA in Banana v State² are very poignant and speak to the need to adjust especially in dealing with issues in the gender-based violence context. He stated that in present day society, there was no rational reason to apply the archaic cautionary rule in cases of a sexual nature. This followed changes in neighbouring jurisdictions like South Africa and Namibia. Gubbay JA quoted with approval the Namibian judgment, S v D & Anor³ in which the following was said: "in the end only one test applies, namely, was the accused's guilt proved beyond reasonable doubt, and the test must be the same whether the crime is theft or rape" Gubbay JA went on to quote, again with approval, the South African judgment in S v Jackson⁴, in which the following was said: "In my view, the cautionary rule in sexual assault cases is based on an irrational and outdated perception. It unjustly stereotypes complainants in sexual assault cases (overwhelmingly women) as particularly unreliable. In our system of law, the burden is on the State to prove the guilt of an accused beyond reasonable doubt - no more and no less.”

I am, therefore, particularly pleased that this meeting affords us an opportunity to share knowledge and experiences on this very important topic and in the process build a body of knowledge that can be used to perfect the draft model law. However, it will be remiss of me, if I do not pick out a few areas in the model law which in my opinion need further examination especially taking into consideration, the role of prosecutors in the criminal justice space.

Recently, the Covid pandemic has resulted in many of our countries registering alarming incidences of gender-based violence. The model law has included a very critical area which several the SADC jurisdictions has very little legislation on, that is, the concept of femicide. WHO states that globally as many as 38% of all murders of women are committed by intimate partners. The model law only highlights femicide under the definition part but fails to expand it in terms of the legislation or offer enough insight to the various countries on how to adopt and adapt the model law.

The model law fails to provide parameters for prosecution institutions in dealing with femicide including prioritization of prosecuting such cases, charging aspects to mention a few.

It should be noted that femicide especially in honor killings or domestic situations needs to have a different focus in terms of prosecution policies in our various countries and the model law needs to ensure such is properly highlighted.

Let me take this opportunity to also buttress a critical issue which needs to be fully embraced and noted in the model law. This is in terms of implementation of the law itself especially as it relates to prosecution which goes beyond the training envisaged in section 72 of the draft model law as it relates to the concept of re-victimization. The law needs to address re- victimization to be one beyond access to justice but to one envisaged as an extension of the medical ‘first do no harm’ principle. Further that such should be addressed across the gender- based violence continuum of a victim. Whilst in terms of prosecution, this should include the parameters (policies or otherwise) to be addressed and ensured – pre, during and post prosecution.

Carmichele v Minister of Safety and Security and another⁵ buttresses the importance of prosecution doing their duty. The High Court and the Constitutional Court held that the common law of delict required development to reflect the constitutional duty on the State especially, the police and the prosecution, to protect the public in general, and women, against the invasion of their fundamental and guaranteed rights by the culprits of violent crime. The Court held the Minister liable, in a case of rape, for negligence because the State did not take measures to protect the victim including the prosecutor who had failed to inform the presiding officer that the accused had previously physically assaulted the victim so that he was not afforded bail.

Similarly, Mexico's Supreme Court issued a historic order where the Court analyzed the conduct of each public servant involved in a murder case and revealed how the absence of a gender-sensitive approach had led to human rights violations of the victim, Mariana Lima, the deceased as well as her mother. The court also issued legal protection for Irinea Buendía, the deceased’s mother. Eventually, Julio César Hernández Ballinas, the husband was arrested since the order required México state authorities to reopen the case but also to conduct the investigation "from the perspective" of femicide, or the murder of a woman by a man for reasons related to her gender⁶.

It can be said that Courts have played and continue to play their part in protecting women’s rights. They have consistently highlighted that women and girls continue to face numerous inequalities but also vulnerabilities to their wellbeing and safety. On the African continent, this is worsened due to the patriarchal nature of our society. It is my belief that most courts are moving towards gender responsive judging as well as service delivery, therefore it is critical that prosecutors also inherently adopt policies, systems and processes that are gender responsive as they can affect the delivery of justice if they do not.

Lastly, it is recognized that our courts have made significant strides in the jurisprudence involving women and girls in terms of gender-based violence, however there is some gap when it comes to men and boys who are faced with gender-based violence. Therefore, the issues of gender responsiveness are critical. Consequently, the model law needs to also address aspects of this in terms of how the system is viewing incidences of violence perpetrated against men and boys. Internationally despite the context being highlighted is conflict times related, the significance cannot be underplayed. In the case of The Prosecutor v Bosco Ntaganda⁷ which concerned the Forces Patriotiques pour la libération du Congo (FPLC), an armed group comprised of people from the Hema ethnic group, which was a party to the 2002-2003 DRC conflict. It was recorded that at the pre-trial and trial stage, the Defence sought to have the charges of sexual violence against FPLC child soldiers excluded on the basis that the alleged conduct could not be a war crime because the putative victims and perpetrators belonged to the same military force. However, the Appeals Chamber rejected that argument, and confirmed that the rape and sexual enslavement of child soldiers by their commanders can indeed constitute war crimes under the Rome Statute. The Trial Chamber held that the OTP proved several of the allegations of rape and sexual slavery against child soldiers beyond reasonable doubt, and that Ntaganda bears individual criminal responsibility for those crimes. It also convicted Ntaganda for acts of rape and sexual slavery committed by FPLC troops against non-Hema civilians (both male and female). Furthermore, in addition to those sexual violence crimes, Ntaganda was convicted of conscripting and enlisting child soldiers, using them to participate actively in hostilities, attacking the civilian population, murder and attempted murder, persecution on ‘ethnic’ grounds, forcible transfer, and displacement, attacking protected objects, pillage, and destruction of property. Therefore, he was held responsible for these crimes as a direct perpetrator and indirect co-perpetrator under Article 25(3)(a) of the Rome Statute. Accordingly, there is need for prosecutors in the SADC region to note that there is mounting evidence that gender-based violence committed against men and boys needs to be receiving increased attention.

Access to justice remains a key pillar towards the eradication of violence against women and girls. It contributes to break the circle of violence, provide adequate reparation to victims, and transform the circumstances that make women and girls vulnerable to violence. Enhancing the efforts of prosecutors as part of key justice responders in protecting the rights of women and girls is essential and the model law must do so.

It is important to highlight that we must continue to be determined in terms of promotion and protection of the rule of law with a special emphasis on advancing human rights of everyone but more so women and girls who continue to be vulnerable, despite a lot of efforts. Justice dispensation is a collective determination and effort of every person in the sector. Justice must be transformative and must have a Human Rights face. It is therefore imperative that prosecutors across SADC should be strategic and harnesses all its resources.

We nonetheless commend our legislators for taking such a huge and bold step. It gives us Judiciaries as well as prosecutors, a good basis for expanding the laws on gender-based violence in our various jurisdictions. It offers prosecutors opportunities to go beyond the criminal justice space including advising victims on other possible actions available like taking the civil route in addition to the criminal justice route to redress human rights violations. The need to protect women and girls as well as men and boys from unwanted violence cannot be overemphasized when we talk of gender equality including women’s rights. We must be present.

In conclusion, let me leave you with the words of the Dalai Lama who said peace can only last where human rights are respected, where the people are fed, and where individuals and nations are free. We must remain ready; we must be vigilant but more so ready to reduce the inequalities but also to prosecute with vigour gender-based violence cases in our countries.

I wish you a wonderful consultative meeting and as well wish you well as you continue to help eradicate gender-based violence across the SADC region.

Keynote Address - Justice Zione Ntaba - The SADC Gender-Based Violence (GBV) Model Law Consultative Meeting for Prosecutors from SADC Member States

ON THE OCCASION OF THE CAPACITY DEVELOPMENT SESSION FOR THE SADC PF STANDING COMMITTEE ON DEMOCRATISATION, GOVERNANCE AND HUMAN RIGHTS (DGHR) HELD UNDER THE THEME: “The role of Parliament in protecting Constitutionalism and the Rule of Law in Southern Africa: Prospects and Challenges.’’

13^TH APRIL 2021

SALUTATIONS

• Honourable Members of the SADC PF Standing Committee on Democratisation Governance and Human Rights;
• The Secretary General of the SADC PF, Ms Boemo Sekgoma;
• The Committee Secretary, Mr Sheuneni Kurasha and other Staff from the SADC PF Secretariat;

Our distinguished Resource Persons:

• Professor Lovemore Madhuku, Constitutional Law and Parliamentary Development Expert; and
• Justice Oagile Key Dingake, former Judge of the High Court and Industrial Court in Botswana, Residual Special Court for Sierra Leone, and the Supreme and National Courts of Papua New Guinea;
• Our partners GIZ and Austrian Development Agency (ADA), represented by Dr Adane Ghebremeskel and International IDEA.
• Representatives of Civil Society Organisations.
• Representatives of media organisations
• Ladies and Gentlemen.

It is my singular honour to welcome you to this Capacity Development Session for the SADC PF Standing Committee on Democratisation, Governance and Human Rights (DGHR) which is being held under the theme: “The role of Parliament in protecting Constitutionalism and the Rule of Law in Southern Africa: Prospects and Challenges.’’ This meeting is taking place as part of the SADC PF Committee Session for the 49^th Plenary Assembly Session which will be hosted by the Parliament of Botswana virtually in June this year.

Hon. Members and Distinguished Participants,

Constitutionalism and the Rule of Law lie at the centre of sustainable democracy and Parliaments are the fulcrum of protecting constitutionalism and the rule of law. In this regard, Parliaments must use its constitutional mandate to ensure the observance of the various principles that underline constitutionalism and the rule of law. These principles include separation of powers between the legislature, the executive and the judiciary; independence of the judiciary; due process or fair hearings for those charged with criminal offences; respect for individual rights; accountability in the governance process; equality under the law; strong constitutions with constitutional limits on power; human rights; an effective electoral system; commitment to gender equality; laws to protect minorities and other vulnerable groups; and a strong civil society.

Hon. Members and Distinguished Participants,

As the most representative body in any democracy, Parliaments should not only champion for open and democratic societies but should also serve to ensure that citizen participation and consultation become the hallmark of public policy and decision-making processes. After all, our legitimacy as MPs and that of Parliament derive directly from the citizens.

Hon. Members and Distinguished Participants,

While Parliaments have the mandate to promote constitutionalism and they do face various challenges in this regard. These include but are not limited to power relations which often undermine the principle of separation of powers.

In its seminary documents, Benchmarks for Democratic Legislatures in Southern Africa adopted in 2012 under the auspices of this Committee, SADC PF observed that Africa’s young democracies are still characterised by weak Parliaments and not-so-independent judiciaries that must face very dominant executives.

In most cases Parliaments have been reduced to being primarily reactive institutions rather than proactive ones and are largely unable to respond sufficiently to emerging challenges, opportunities and national emergencies as we experienced in our respective Parliaments during the Covid-19 lockdowns.

Hon. Members and Distinguished Participants,

I wish to call on Parliaments in the SADC region to shake off the “rubber stamping” label and rise up to the occasion by vigorously guarding the ‘separation of powers’ and ‘checks and balance’ and ensuring that relationship between the three arms of government is one of equality and independence. Parliaments should be mindful of the fact that any encroachment on the powers of one arm by another has adverse effect on Constitutionalism and the Rule of Law. If Parliaments become complicit by allowing the balance of power to favour one arm of government, this would be betrayal to public trust.

Hon. Members and Distinguished Participants,

In view of the above, SADC PF has arranged for this capacity development session on the role of Parliament in protecting Constitutionalism and the Rule of Law in Southern Africa for Members of Parliament from the DGHR Standing Committee, Members from other SADC PF Committees and national parliaments.

The Session is in line with the Forum’s vision of “Moving Forward Together as the Flag-Bearer of Democratisation and Socio-Economic Development of the SADC Region” and objective 3 of its PF Strategic Plan, namely “To facilitate capacity development and other programs of support for Members and staff of Parliaments to augment skills, knowledge and competencies to face emerging challenges.”

The specific objectives of the Session are to:

• Raise the level of knowledge of Members of Parliament on the principles of Constitutionalism and Rule of Law in a democratic system;
• Identify opportunities and challenges faced by Parliaments in fulfilling their role in protecting Constitutionalism and Rule of Law through sharing of comparative experiences;
• Enhance the capacity of SADC Parliamentarians to carry out their constitutional responsibility in upholding and championing Constitutionalism and Rule of Law; and
• Build consensus on priority areas for action to enhance the role of Parliament in protecting Constitutionalism and Rule of Law across SADC Member States.

Hon. Members and Distinguished Participants,

On behalf of the Committee and indeed on my own behalf, I wish to express my sincere gratitude to our two experts, Professor Lovemore Madhuku and Hon. Justice Oagile Key Dingake who will take us through the Session as presenter and intervenor respectively.

Hon. Members and distinguished delegates, allow me, as I conclude, to also thank our partners, GIZ and Austrian Development Agency, for the financial support for this session. I also wish to thank International IDEA who are one of our technical partners as a Committee.

Hon. Members and Distinguished Participants,

Allow me to end by wishing me very fruitful deliberations.

It is now my singular honour and privilege to declare this capacity development session on the role of Parliament in protecting Constitutionalism and the Rule of Law in Southern Africa, officially opened.

I thank you.

Official Opening Remarks by the Chairperson of the SADC PF Standing Committee on Democratisation Governance and Human Rights, Hon. Jerónima Agostinho

“The role of Parliament in protecting Constitutionalism and the Rule of Law in Southern Africa: Prospects and Challenges.’’

 CONCEPT NOTE

 Introduction

Constitutionalism and the Rule of Law lie at the centre of sustainable democracy and parliaments are the fulcrum of protecting constitutionalism and the rule of law in any democracy.

Constitutionalism generally refers to various constitutional mechanisms and procedures such as the separation of powers between the legislature, the executive and the judiciary, the independence of the judiciary, due process or fair hearings for those charged with criminal offences and respect for individual rights, which are partly constitutive of a liberal democratic system of government. The Rule of Law, on the other hand, implies that governments are accountable by law and that citizens are equal under the law. A broad conception of the rule of law incorporates such elements as a strong constitution with constitutional limits on power, human rights, an effective electoral system, a commitment to gender equality, laws to protect minorities and other vulnerable groups, and a strong civil society.^[1]

In an open constitutional democracy, the rule of law principle is premised in the principle of participation  and consultation. This means, for laws to be legitimate and enjoy broad adherence, citizens ought to have been widely consulted and the law should be reflective of society’s needs and values. Parliaments as democratically elected and representative institutions play a pivotal role in this regard by serving as the forum for public participation and consultation.

Challenges Faced by Parliament in Protecting Constitutionalism and the Rule of Law

While parliaments are central to protecting constitutionalism and the rule of law, there is evidence that they do not always fulfil this role effectively due to various reasons, including power relations which undermine the principle of separation of powers, for instance.

As observed by SADC PF in the Benchmarks for Democratic Legislatures in Southern Africa (2012)^[2], the re-introduction of multi-party politics in the early 1990s in Africa has led to a renewed interest in institutions of democracy. However, the wave of pluralism has not necessarily produced effective and efficient Parliaments to underpin the democratisation process. To the contrary, most of Africa’s young democracies are still characterised by dominant executives, not-so-independent judiciaries, and weak Parliaments. Without the full development of the three branches of government – the executive, legislative and judicial – prospects for democratic consolidation on the continent are limited.

Thus, SADC PF further observes that: “In southern Africa it has been observed that the executive generally dominates Parliament, including even setting its agenda, appointing parliamentary staff, and determining its calendar. In some cases, the large dual membership of ministers to the executive and legislative branches of government as well as their proportionately large number, have resulted in decreased parliamentary oversight capacity … In many instances, Parliament is primarily a reactive institution rather than proactive one, largely unable to respond sufficiently to emerging challenges, opportunities and national emergencies.”^[3]

Indeed, as Neliswa Nkonyeni (2002) observes, parliamentary effectiveness cannot be satisfactorily treated without confronting issues of power in two dimensions: firstly, power as a capacity: having the relevant legal rights and resources – financial, human and organisational – to carry out necessary tasks, and secondly, power as relational: here having sufficient power and independence in relation to the executive to oversee it effectively.^[4] Parliament, therefore, have to strike a balance between cooperation with, and oversight over, the Executive.

Parliament should vigorously guard the ‘separation of powers’ and “check and balance” and ensure that relationship between the three arms of government is one of equality and independence. Encroachment on the powers of one arm by another would have an adverse effect on Constitutionalism and the Rule of Law. Regrettably, sometimes Parliaments play a complicit role by allowing the balance of power to favour one arm of government, in particular the Executive. This behaviour betrays public trust and compromises democracy.

Building the Capacity of Parliament in Protecting Constitutionalism and the Rule of Law

In line with objective 3 of the SADC PF Strategic Plan which is “To facilitate capacity development and other programs of support for Members and staff of Parliaments to augment skills, knowledge and competencies to face emerging challenges,” the SADC PF has arranged for the training for Members of Parliament from the DGHR Standing Committee, Members from other SADC PF Committees and national parliaments on the role of Parliament in protecting Constitutionalism and the Rule of Law in Southern Africa. The training which is being hosted jointly with International IDEA, GIZ and Austrian Development Agency will focus on prospects and challenges, drawing lessons from a comparative overview regionally and internationally, including case law.

Objectives of the Training

The training aims to achieve the following objectives:

• Raise the level of knowledge of Members of Parliament on the principles of Constitutionalism and Rule of Law in a democratic system;
• Identify opportunities and challenges faced by Parliaments in fulfilling their role in protecting Constitutionalism and Rule of Law through sharing of comparative experiences;
• Enhance the capacity of SADC Parliamentarians to carry out their constitutional responsibility in upholding and championing Constitutionalism and Rule of Law;
• Build consensus on priority areas for action to enhance the role of Parliament in protecting Constitutionalism and Rule of Law across SADC Member States.

Format for the Event

The capacity building meeting will be held virtually during the statutory meeting for the DGHR Standing Committee during the 49^th Plenary Assembly on 13^th April 2021. The Committee will receive a presentation from a leading expert on legal and parliamentary development matters from the SADC region.

^[1] International Institute for Democracy and Electoral Assistance (2014), Rule of Law and Constitution Building: The Role of Regional Organizations

^[2] SADC PF (2012), Benchmarks for Democratic Legislatures in Southern Africa, p. 2.

^[3] Neli PF (2012), Benchmarks for Democratic Legislatures in Southern Africa, p. 2.

^[4] Neliswa Nkonyeni (2002: 2-3), The Challenge of Parliaments in Safeguarding the National Development Interests in an Atmosphere Where the Executive Plays a Dominant Role.

Concept Note Capacity Development Session for the SADC PF Standing Committee on Democratisation, Governance And Human Rights (DGHR) Held On 13th April 2021

“The role of Parliament in protecting Constitutionalism and the Rule of Law in Southern Africa: Prospects and Challenges.’’

PRESENT

• Wavel Ramkalawan, Chairperson       Seychelles
• Josefina P. Diakité (Chairing), Vice-Chairperson Angola
• Leepeetswe Lesedi Botswana
• Mabulala Maseko Eswatini
• Ashley Ittoo Mauritius
• Darren Bergman South Africa
• Dought Ndiweni       Zimbabwe

ABSENT WITH APOLOGY

• Hon. Balamage Nkolo Boniface      DRC
• Maimane. P. Maphathe Lesotho
• Angele Solange Madagascar
• Lingson Belekanyama Malawi
• Jerónima Agostinho      Mozambique
• Member not designated after 2019 General Elections Namibia
• Parliament Dissolved for Elections Tanzania
• Chushi Caroline Kasanda Zambia

OBSERVERS

Stanley Nyamanhindi             CEO SADC Lawyers Association

StephenGoneso                     ECF SADC

Hilda Modisane                      ECF SADC

Taona E Mwanyisa       

Dr. Kundidzora                       Zimbabwe Electoral Commission

Annah Moyo                          Centre for the Study Conflict and Violence

Sammy Alfandika                   Malawi

Tlotlego Chabalala                 GIZ

Dr Adane Ghebremeskel        GIZ

Fiona Mosothwane                 Principal State Counsel Botswana

Hon. Duke Lefhoko                 Botswana’s High Commissioner to Kenya 

Hon. Christian Greeff              Botswana

Advocate Norman Tjombe      Namibia

Advocate Phelex Charamba   Zimbabwe

Justice Oagile Dingake           Botswana

Senelisiwe Ntshangase          UNDP Eswatini

David Owolabi                        UNDP Turkey

Vicente Manjate                      Conselheiro Nacional, Mozambique 

David Takawira                       USAID Zimbabwe

Ernest Moloi

Pablo Valenzela

Martinho Chachiua

Paulina Kanguatjivi

Webster Zambara

Soatsara Benandrasana

Taona E Mwanyisa

Kaelo More

IN ATTENDANCE

Boemo Sekgoma                                                      Secretary General

Sheuneni Kurasha, Committee Secretary                SADC PF Secretariat

Veronica Ribeiro, Staff                                              Angola

Nomonde Nkayi, Staff                                               South Africa

Chawapiwa Mahlaya                                                 Botswana

Natalie Leibrandt-Loxton, Staff                                  South Africa

Geraldina Utchavo Bonifácio, Staff                            Mozambique

Nomfundo Sonjica, Staff                                            South Africa

Monusi Kraai, Staff                                                     Botswana

Jaime Numaio, Staff                                                   Mozambique

Gwakwara Cleophas, Staff                                         Zimbabwe

Maria Mombola, Staff                                                 Namibia

Moses Magadza                                                         Media Specialist

Mompoloki Mosheti, Staff                                           Botswana

Day 1

The meeting was called to order at 13:00 hours with the Chairperson, Hon. Wavel Ramkalawan chairing.

AGENDA

• Credentials of Delegates and Apologies.
• Adoption of Agenda.
• Welcome Remarks by the Chairperson.
• Consideration of Minutes from the previous Meeting held at Southern Sun Hotel O. R. Tambo, Johannesburg, South Africa on 23rd May 2019, ahead of the 47th Plenary Assembly Session.
• Matters Arising from the Minutes of the previous Meeting, held at Southern Sun Hotel O. R. Tambo, Johannesburg, South Africa on 2^nd of November 2019, ahead of the 46^th Plenary Assembly Session.
• Presentation on Trends in Electoral Justice in the SADC Region: Unpacking the SADC Model Law on Elections.
• Presentation on Lessons and Implications from the Malawi Constitutional Court Judgement on the 2019 Presidential Elections.
• Presentation on the role of SADC PF and National Parliaments in Promoting Transitional Justice in the Region.
• Nomination and Election of new Committee Chairperson and Vice Chairperson for 2020 to 2022
• Closing remarks

CREDENTIALS OF DELEGATES AND APOLOGIES

Quorum for the meeting was confirmed for the meeting to proceed.

ADOPTION OF AGENDA

The agenda was adopted on a motion by South Africa, seconded by Angola.

WELCOME REMARKS BY THE CHAIRPERSON, HON. WAVEL RAMKALAWAN

Honourable Ramkalawan opened the meeting with the sombre observation that the Committee was meeting during very extra ordinary circumstances due to covid-19. He thanked the SADC PF Secretariat for their innovation in facilitating the Committee to meet virtually.

The Chairperson reiterated the critical role of parliament in crisis management and called on Members to use of legislative and oversight functions to bring to life the hopes and aspirations of the people they represent. He reminded the Members that they were duty-bound to ensure that government regulation of covd-19 was within the confines of national constitutions and international law by balancing health safety measures with the entitlement to other human rights during times of pandemic.

Hon. Ramkalawan also implored SADC PF to guard against any possible erosion of the gains the SADC region has made towards strengthening of electoral democracy, guided by its mandate in Article 6 (c) of the SADC PF Constitution, which enjoins the institution “to promote the principles of human rights, democracy, peace and security, regional integration, human and social development, economic governance and gender equality through collective responsibility within the SADC Region.”

Turning to the theme of the meeting, Hon. Ramkalawan reiterated SADC PF’s mandate to promote electoral and transitional justice through accelerated implementation of the SADC Model Law on Elections by Member States. In this regard he applauded the pioneering and trendsetting role played by SADC PF in mainstreaming the role of parliamentarians in promoting democratic elections since 1999, including through regional leadership in developing norms and standards for democratic governance and electoral democracy. He singled out the Norms and Standards for Elections in the SADC Region and the SADC Model Law on Elections as part of the sterling work done by the SADC PF.

The Chairperson noted that the Covid-19 pandemic had exacerbated the recurrent and emerging electoral challenges that were undermining the integrity and credibility of elections in the SADC region. In this regard, he hailed the Malawi electoral result as a beacon of credible and democratic elections. He also emphasised that SADC PF wields a unique convening capacity as a critical regional platform for stakeholder engagement to find sustainable local solutions on the various challenges that were affecting electoral and transitional justice in the region.

In conclusion, Hon. Ramkalawan thanked the resource persons for prioritising engagement with the Committee, the SADC PF Secretariat for organising the meeting and GIZ and Austrian Development Agency (ADA) for the financial support.

CONSIDERATION OF MINUTES FROM THE PREVIOUS MEETING HELD AT SOUTHERN SUN HOTEL O. R. TAMBO, JOHANNESBURG, SOUTH AFRICA ON 2^ND OF NOVEMBER 2019, AHEAD OF THE 46^TH PLENARY ASSEMBLY SESSION.

The minutes were unanimously adopted without amendments.

MATTERS ARISING FROM THE MINUTES OF THE PREVIOUS MEETING, HELD AT SOUTHERN SUN HOTEL O. R. TAMBO, JOHANNESBURG, SOUTH AFRICA ON 2^ND OF NOVEMBER 2019, AHEAD OF THE 46^TH PLENARY ASSEMBLY SESSION.

There were no matters arising from the minutes.

PRESENTATION ON THE ROLE OF SADC PF AND NATIONAL PARLIAMANENTS IN PROMOTING ELECTROAL JUSTICE IN THE SOUTHERN AFRICAN REGION BY DR. VICTOR SHALE

Dr. Shale began by emphasising that electoral and transitional justice are concepts that are entrenched within the SADC Model Law on Elections. By way of example he pointed out that section 16 speaks to electoral dispute resolution, section 23 focused on electoral justice directly and section 89 articulates election dispute resolution and articulates the structures and processes that Member States must put in place. He also indicated that another critical provision of the Model Law is section 92 which deals with judicial mechanisms and the phenomenon of election tribunals and the electoral court.

Dr Shale underscored that in developing the Model Law, the SADC PF was alive to the fact that the region had different legal systems, economic conditions and that the law cannot be one size fits all. In this regard he noted that the Model Law encapsulated the aspect of legislative flexibility for various mechanisms that can be applied in delivering electoral justice. All this, he said, was in pursuit of the right to an effective remedy before the electoral court.

Dr Shale also explained that electoral justice as espoused in the Model Law ensured that justice is done in accordance with the law and any deviations are addressed in terms of known and predictable mechanisms. He indicated that this was critical for legitimacy which would lead to political stability, a key condition for human and economic development. Dr Shale also explained that an ineffective electoral justice system would lead to conflict, including violence.

Dr Shale emphasised the importance of the formal and informal components of electoral dispute resolution which form the core of electoral justice. He added that both components must be recognised and interchangeably used for greater efficacy in the interests of electoral justice.

Dr. Shale’s presentation also revealed that there has been a rise in judicial involvement in addressing electoral disputes in SADC and Africa and this had been done with mixed outcomes. In some cases, there has been judicial minimalism as the courts seemed to act cautiously while in other cases the courts have ensured that electoral justice was served. In this regard, he called for capacity building of judicial officials on electoral processes, including familiarisation with the Model Law on Elections. He implored SADC PF, working with stakeholders, to address this gap within the context of the domestication of the Model Law.

PRESENTATION ON LESSONS AND IMPLICATIONS FOR SADC PF ELECTIONS OBSERVATION AND DOMESTICATION OF THE MODEL LAW FROM THE MALAWI CONSTITUTIONAL COURT JUDGEMENT ON THE 2019 PRESIDENTIAL ELECTIONS BY JUSTICE OAGILE KEY DINGAKE

Presentation

The Justice Dingake started by congratulating the SADC PF for the ground-breaking work in developing the SADC Model Law on Elections which he said was a bulwark for the rule of law in the region. He added that the Model Law, by encapsulating universal adult suffrage and equality before the law, was an effective instrument for democratisation.

In giving the context for the Malawi Constitutional Court ruling, Justice Dingake prefaced his presentation by quoting the former Chief Justice of Kenya, Willy Mutunga who in 2011, while presiding over the swearing in of members of Kenya’s Electoral Commission, remarked that: “There is no higher crime an individual, an institution, or group of people can commit than one that subverts the sovereign will of the people, whether through incompetence, negligence, or design make the expression of that will inarticulate.”

Justice Dingake outlined that the Malawi Constitutional court had annulled the 2019 Malawi Presidential elections and ordered a re-run based on wide irregularities. Part of these irregularities was alteration of results through tipexing, leading to the term, “Tipex elections.” Thus the Supreme Court had found that about a quarter of the results were verified and concluded in a grossly irregular manner. The Constitutional Court upheld this position and ordered a fresh presidential election.

Justice Dingake submitted that the decision and implementation of the orders of the Malawi Supreme Court as upheld by the Constitutional Court must count as a triumph for democracy on the continent. In this regard, Justice Dingake narrated that the process leading to the judgement, which included extra ordinary scenes with judges being escorted by the military wearing bullet proof vests. He submitted that credible, free and fair elections form a solid foundation for democracy.

The Judge noted that Malawi followed Kenya to nullify Presidential elections. Kenya in 2017, nullified the Presidential Election results and ordered a new vote after claims from the opposition that the election system was hacked and rigged.

In that regard, he pointed out that the court’s duty to protect the vote and not unduly disenfranchise the people is essential and the courts must only act along the logic and imperatives of the rule of aw. He however, lamented the role of illicit money, manipulation and corruption in destroying electoral democracy on the continent.

In the wake of the nullification of the Malawi Presidential elections in 2020 and Kenya Presidential elections in 2017, after being given thumps up by the regional and international election observers, Judge Dingake questioned the sufficiency of the current practice in selecting observers, training them and the methodologies used by such missions. He noted that the AU and other observer missions were viewed as eager to declare elections as free, fair and credible even in situations where there was evidence to the contrary. Thus given the turnout of events in Malawi, there was a big credibility crisis hanging over the heads of the observer missions that deployed their observers in Malawi.

Justice Dingake also went into detail in addressing the test for determination of irregularities for the purposes of declaring a rerun in an election. He indicated that while disputes are inherent in elections, for many years the yardstick was whether the margin of irregularities raised by petitioners could affect the outcome of the elections. This is the quantitative test. In exemplifying the quantitative test, Judge Dingake cited the English case of Morgan v Simpson, wherein Simpson and others petitioned the court alleging that there were irregularities that denied Simpson some of his votes. The electoral office had not stamped 44 papers and the winner won with the majority of twenty, but if the 44 had been included, the win would have been by 11. The court ruled that the irregularities were not substantial and could not have affected the outcome. However, the court of appeal found that the irregularity in the circumstances would have affected the final result.

The other test highlighted was the qualitative test. This is concerned with the authenticity of the elections, whether they were inherently free, fair and credible as was the case in Kenya. The test does not necessarily zoom on quantity but quality. In the case of Raila Odinga v the Electoral Commission in Kenya, Ibunga J explained that the quantitative test is focused on numbers but the qualitative test is more suitable where the entire process is to be interrogated.

Justice Dingake explained, however, that in Malawi both tests were applied. He submitted that the best approach in his view is the qualitative test. He then proceeded to highlight the exact nature irregularities that led to nullification of results from the court’s perspective in Malawi.

In Malawi the complaint was that that the Malawi Electoral Commission (MEC) had used discretion in circumstances where the law did provide for such liberties. MEC was supposed to follow the dictates of the law, yet it departed fundamentally from the prescriptions of the law. The law required that the result sheet must be mandatorily singed by polling officers, yet the court found that the MEC had used tally sheets that had not been signed. The same tally sheets must be guarded and taken to the District Commissioner’s tally sheet for compilation. However, the MEC ignored this and unproceduraly created constituency tally centres where massive tempering of original tally sheets occurred and the originals replaced were not being kept. Hence there was an avalanche of irregularities.

Justice Dingake also explained that in some instances, improper tally sheets were used and accepted by the MEC in compiling the national result and all this was not permissible in terms of the law. At this stage, issues of verification came up. At the national tally centre the MEC was supposed to resolve all outstanding disputes before compiling results but it lied that it had resolved them by delegating the task to the Chief Elections Officer which was not permissible at law. The MEC then purported to announce the results before complying with this requirement. Justice Dingake pointed out that this was found to be grave and hence the elections were annulled.

Justice Dingake hailed the Malawi judgment as a masterstroke of pure brilliance in terms of the constitutional reasoning adopted. He observed that for the courts to make independent determinations in electoral disputes, there was need for Member States to enact an enabling legal framework. He thus lamented that some constitutional frameworks are still archaic and deficient to the point of crippling the capacity to implement electoral justice. By contrast, Justice Dingake observed that, in Malawi the electoral law was amended to expand the democratic space and re-enforce the power of the courts to uphold the rule of law in electoral disputes.

Justice Dingake underscored that electoral justice lies at the intersection of law and politics and courts are institutional actors that enable electoral justice. He therefore, highlighted the major lessons from Malawi as follows:

• Elections are an important pillar of democracy;
• The need for an independent fearless and courageous judiciary; and
• The importance of competent and knowledgeable judiciary.

He emphasised that without knowledge we can fall into a case of judicial adventurism wherein judgments are not anchored on law or justice. He also singled out the need for a credible EMB, indicating that in the case of Malawi, a new chair was appointed to run the fresh elections and he came with the credentials of impartiality and independence.

On the implications of the outcome of the Malawi electoral process on international observers, Judge Dingake observed that in the Malawi judgment, there was no featured mention of observer missions in any manner that could have been decisive to the verdict of the court. In the case of Raila Odinga v EC of Kenya though, it becomes clear that the court did not think much about the input of observer missions. He decried the fact that international observers were often too quick to endorse elections as free and fair. In this regard he called for appointed observers to have a record of impartiality in observing elections and for the missions to be built on integrity and impartiality.

In conclusion Judge Dingake reiterated that the Kenyan and Malawian Constitutional Court rulings were a source of hope that going forward, Africa may see a situation in which a truly independent judiciary sides with justice. He also emphasised that the critical standard in determining election petitions must and should always be quality over quantity.

Deliberations and Recommendations

In its deliberations on the presentations, the Committee made the following resolutions and recommendations:

• Reiterated that the SADC Model Law on Elections is a valid roadmap toward electoral integrity in SADC countries and emphasised that various electoral institutions such as the judiciary and EMBs should be capacitated to implement the Model Law;
• Emphasised the importance of ensuring the EMBs are truly independent and capable of implementing the decision of the courts as was the case with the Malawi Electoral Commission (MEC);
• Reiterated that SADC PF, through the Model Law, should promote the development of minimum provisions for the independence of institutions of governance such as the judiciary and EMBs;
• Reiterated the need for SADC and AU observer missions to do more to redeem their credibility in view of the contradictions arising from endorsing electoral processes and outcomes that are later reversed by the courts on account of irregularities;
• Reiterated the importance of reforming observer missions in order to ensure that they are composed of trained personnel with the requisite skills sets, for the appointed observers to have verifiable integrity and for the observers to be deployed in the field on time in order to observe all the phases of the election cycle and be able to observe and report objectively;
• Emphasised the need to develop a clear threshold for objective judgements by the courts and for the judges to develop electoral justice jurisprudence further in order to enrich capacity for the judiciary in the SADC region to handle electoral disputes effectively;
• Underscored the need for the SADC PF and other regional observation missions to draw lessons from the Malawi case study and reflect on the quality and impact of election observation by reviewing the methodology and duration of election observation missions;
• Emphasised that while questions are being raised regarding the efficacy of observation missions, the question of whether or not elections should be observed should never arise since observation is critical for tracking progress and documenting the gaps, but attention should rather be given to who is observing, who is being observed, why and who is financing the missions;
• Reiterated the question regarding the political economy of elections in general and observer missions in particular, adding that there was no point in having democracy support groups that observe elections with a preconceived outcome since observation should be about objectivity, accuracy and comprehensiveness;
• Reaffirmed that SADC PF’s momentum in election observation should be maintained, anchored on the Model Law; and
• Regretted the fact that SADC PF has recently failed to consistently observe all elections in Member States due to financial constraints, thereby missing the opportunity to promote the domestication of the SADC Model Law on Elections and to leverage its influence to promote electoral legal reforms through national Parliaments.

Day 2

The meeting resumed at 09:30 with Chairperson, Hon. Ramkalawan in the chair.

REMARKS BY THE CHAIRPERSON

The Chairperson welcomed everyone to the webinar which was focusing on the role of the SADCPF and national Parliaments in promoting transitional justice in the SADC region. He also profoundly appreciated the presence of the resource persons for the session namely, Dr Webster Zambara from the Institute for Justice and Reconciliation (IJR) and Miss Annah Moyo from the Centre for the Study of Violence and Reconciliation (CSVR). The Chair also invited the Committee to observe a moment of silence in honour of Hon. Lucien Malala, a member of SADC PF from Madagascar who had passed on 7^th July 2020.

THE ROLE OF SADC PF AND NATIONAL PARLIAMENTS IN PROMOTING TRANSITIONAL JUSTICE IN SOUTHERN AFRICA

 A History of Injustices in Southern Africa by Dr Webster Zambara

Dr Zambara highlighted that the Committee was considering the issue of transitional justice at a time when there were major developments in the world linked to this subject matter. These include the Black Lives Matter movement, Covid-19 related lockdown which had seen a surge in gender-based violence cases and the recent letter written by the King of Belgium to the people of the Democratic Republic of Congo regretting the atrocities of the past. He pointed out that the King of Belgium, while regretting the atrocities of the past, did not apologise in any way and Belgium was not talking of any compensation to the Congolese and yet Belgium is one of the richest countries in the world because of plundering the economies of the Congo basin.

Dr Zambara commended SADC PF, through the Standing Committee on Democratisation, Governance and Human Rights, for putting transitional justice to the fore, adding that this could be what is missing in the current political discourse. He pointed out that the region was currently struggling with the negative effects of the unwanted trinity of slavery, colonialism and apartheid and their many forms of violence – social and economic, and its negative impact on the majority of people in the region. He cited the Herero – Nama genocide in Namibia where indigenous people were not only killed but were also dispossessed of their land, wealth, identity and dignity. Colonial oppression is what triggered the liberation struggles in search of justice and equality and such just wars are at the core of transitional justice. In the same vein, Dr Zambara lamented the betrayal of the ideals of the liberation struggles by some authoritarian regimes that were treating political opponents in same manner that natives were treated during colonialism and through undermining the rule of law, especially during elections.

Dr Zambara also explained that there were some cultural systems and beliefs that dehumanise other human beings, especially women, children and the disabled. The violation of the rights of persons with albinism was also cited as a case in point. He therefore, implored for SADC and the entire African continent to purse justice, peace, reconciliation and prosperity for all citizens in line with the principles of transitional justice.

Defining Transitional Justice by Miss Annah Moyo

In her presentation, Miss Moyo explained that transitional justice was an effective way to address some of the historical legacies of conflict, authoritarianism and human rights violations in Southern Africa, underscoring that this has to be done in a sustainable manner. She called for measures to be put in place to ensure non-recurrence of conflicts, mis-governance and violence in the future.  Miss Moyo, therefore, welcomed the ongoing analysis of the SADC peace, security, governance and democracy architecture which was meant to identify any gaps and how transitional justice could be used to effectively address some of these occurrences.

Miss Moyo observed that the peace and security approach was static and piecemeal and often does not address the root causes of the conflict and violence and the effects thereof. By focusing on the heavy securitised and militarised approach to addressing conflict, the peace and security approach does not offer any reprieve for the victim. In this regard, there are no victim-centred processes that enable victims to come to terms with the violence, the crisis, the tensions, and gross human rights violations that are attendant in such circumstances. There are also no guarantees of non-recurrence of the tensions, the crisis and the conflicts. Furthermore, issues of collective trauma and the much-needed healing for individual victims and the communities negatively affected by violence and conflicts are also usually left unaddressed.

Miss Moyo noted that the African Union transitional justice policy was comprehensive and goes over and beyond the mainstream transitional justice that is offered by the United Nations when it comes to defining transitional justice. It took into account contextual realities and experiences of African people in their interaction and experiences of violent conflicts and many other challenges and the instances that bring about gross human rights violations. She explained some of the critical components of transitional justice which include the fact that these should culminate in policy measures and institutional mechanisms adopted to overcome past violations, divisions and inequalities. These measures and mechanisms are meant to create conditions for both security, democratic and socio-economic transformation in society.  The adoption and implementation of these measures must be done through an inclusive and consultative process.

Miss Moyo underscored the importance of going beyond retributive justice which focuses on the perpetrator by embracing aspects of traditional justice approaches or restorative justice which focuses more on the victim and emphasises conciliation and reconciliation, community participation. She also emphasised the importance of transformative justice in the quest for transitional justice. Transformative justice seeks to address the victim’s structural and systemic vulnerabilities through the improvement of their circumstances and their political and social empowerment. It was also reiterated that retributive justice is still important in ending impunity and ensuring deterrence on the part of the perpetrators.

Miss Moyo highlighted that one of the critical components of transitional justice is a peace process which is usually realised through a peace agreement signed by the former belligerent parties. It was critical for peace processes to address the root causes of conflict in order to avoid recurrence. Equally important is the protection and security guarantees for civilians in conflict and in violence affected areas. Accordingly, the negotiation and mediation processes should from the onset, include victims and affected communities and the implementation process should also be inclusive in order to have legitimacy.

Truth telling is also another critical component of transitional justice as was witnessed in South Africa through the Truth and Reconciliation Commission. Through investigations of past violations of human rights, victims may begin to get satisfaction, reprieve and some form of justice by just telling their stories and knowing that, through a follow-on process, perpetrators do not get away with it. Similar experiences in Seychelles and Zimbabwe were also cited. Some of the challenges regarding truth commissions include how far back should they go in addressing some of these concerns. 

The presentation also covered other critical components of transitional justice such as reconciliation, reparations and the critical question of justice and accountability in order to ensure that perpetrators are held accountable and that there in guarantee of non-recurrence due in part to impunity. The importance of utilising both formal and traditional justice mechanisms was also reiterated. This was critical given that formal justice mechanisms usually do not address all the violations as well as the conciliation issues important for harmonious living of affected communities which is embedded in traditional justice mechanisms.

Another important aspect of transitional justice that was covered in the presentation is diversity management which addresses the group dimensional conflicts and violations where violence is organised and perpetrated along ethnic, religious originating from any of these lines. Of equal importance is redistributive justice which is about the socio-economic and development measures designed to rectify structural inequalities and contributing to prevent a re-occurrence of violence and conflicts.

Recommendations on the Role of SADC PF and National Parliaments in Promoting Transitional Justice

In deliberating on the presentation, the Committee resolved and recommended as follows:

• Parliamentarians have a critical role in strengthening transitional justice framework and mechanisms at national level;
• Parliaments should play a leading role in creating the regulatory frameworks and monitoring mechanisms for all transitional justice processes in Member States;
• Parliaments should draw lessons from the experiences of some Member States that have adopted regulatory frameworks on the role and capacity Peace or Truth and Reconciliation statutory bodies to ensure the creation of minimum standards through experience sharing;
• Parliaments should introduce legislation that provides psycho-social support to mental health of victims in post-conflict communities, including how societies can improve from a difficult painful past towards a harmonious living;
• Parliaments should uphold and promote indigenous knowledge systems and values that enforce transitional justice at local and national level as part of addressing post-conflict situations in order to enable peace, justice and reconciliation;
• SADC PF should lead the discourse on the formulation of the regional transitional justice framework and mechanisms to guide transition from conflict to post-conflict justice and reconciliation processes in Southern Africa;
• SADC PF should engage civil society and other stakeholders in exploring how to build a transitional justice regulatory framework in the SADC region; and
• SADC PF should facilitate effective implementation of the African Union transitional justice policy in the SADC region.

VOTE OF THANKS BY THE COMMITTEE CHAIRPERSON

The Chairperson of the Committee, Hon. Ramkalawan concluded the session by thanking all the Members and attendees who contributed to the robust deliberations on electoral and transitional justice in the SADC region. He also expressed his appreciation for the support that he as Chairperson and the Vice Chairperson received from the membership. He reiterated the great strides made by the Committee during his tenure, towards the domestication of the SADC Model Law on Elections. He thus implored the incoming Chairperson and Vice to continue to accelerate the implementation of the Model Law on Elections in order to contribute towards more credible elections which aid to democratic consolidation.

ELECTIONS OF THE COMMITTEE CHAIRPERSON AND THE VICE CHAIRPERSON FOR 2020 TO 2022

Guided by the Constitution and the Rules of Procedure, the Committee elected Hon. Jerónima Agostinho from Mozambique as the Chairperson for 2022 on a unanimous vote while Hon. Darren Bergman from South Africa was elected as the Vice Chairperson.

CLOSING REMARKS BY THE NEWLY ELECTED VICE CHAIRPERSON

The newly elected Vice Chairperson, Hon. Bergman thanked the Members for the trust they bestowed hon him and the Chairperson and expressed commitment to carry forward the mandate of the Committee.

There being no further business, the meeting was adjourned sine die at 14h16.

__________________________                        ____________________

Hon. Jerónima Agostinho                          Sheuneni Kurasha

CHAIRPERSON                                       COMMITTEE SECRETARY

Minutes of the SADC PF Standing Committee on Democratisation, Governance And Human Rights Virtual Meeting held on 7th And 8th July 2020

PRESENT

• Jerónima Agostinho, Chairperson Mozambique
• Darren Bergman, Vice Chairperson South Africa
• Josefina P. Diakité Angola
• Leepeetswe Lesedi Botswana
• Mabulala Maseko Eswatini
• Angele Solange Madagascar
• Deus Gumba Malawi
• Hon Hon Ashley Ittoo Mauritius
• Chushi Caroline Kasanda Zambia
• Dought Ndiweni Zimbabwe

ABSENT WITH APOLOGY

Hon. Balamage Nkolo Boniface                           DRC

Hon. Maimane. P. Maphathe                               Lesotho

MP                                                                       Seychelles

MP                                                                      Tanzania

MP                                                                      Namibia

OBSERVERS

• Titus Gwemende, Oxfam International Southern Africa Regional Lead-Natural Resources
• Ipyana Musopole, Anti-Corruption Enforcement Officer, Organ on Politics, Defence and Security Affairs, SADC Secretariat
• Mr Tymon Katlholo, Director-General - Directorate on Corruption and Economic Crime (DCEC), Botswana
• Pusetso Morapedi, Executive Director Botswana Centre for Public Integrity (Southern Africa Anti-Corruption Network)
• Mr Glenn Farred, Executive Director SADC Council of NGOs
• Mark Heywood Editor of Maverick Citizen, a section of the Daily Maverick newspaper
• Justice Oagile Key Dingake, former Judge of the High Court and Industrial Court in Botswana, Residual Special Court for Sierra Leone, and the Supreme and National Courts of Papua New Guinea
• Mr Stanley Nyamanhindi, CEO SADC Lawyers Association
• Dr Adane Ghebremeskel GIZ and Austrian Development Agency (ADA)

IN ATTENDANCE

Boemo Sekgoma, Acting Secretary General     SADC PF Secretariat

Sheuneni Kurasha, Committee Secretary      SADC PF Secretariat

Samueline Kauvee     SADC PF Secretariat

Paulina Kangiatjivi      SADC PF Secretariat

Agnes Lilungwe     SADC PF Secretariat

Ronald Windwaai      SADC PF Secretariat

Veronica Ribeiro, staff     Angola

Rangarirai Machemedze                                          Rapporteur

The meeting was called to order at 09:45 hours.

AGENDA

• Credentials of Delegates and Apologies.
• Adoption of Agenda.
• Welcome Remarks by the Chairperson.
• Consideration of Minutes from the previous Meeting held Virtually on 7th and 8th July 2020 and Matters Arising.
• Presentation and deliberation on Corruption Trends and Framework for Curbing Corruption and Strengthening Accountability
• Presentation and deliberation on Towards a Collaborative Approach in preventing, detecting, punishing, and eradicating corruption in the Public and Private Sectors in the SADC Region
• Consideration and Adoption of a Regional Policy Brief on Curbing Corruption and Strengthening Accountability in SADC

CREDENTIALS OF DELEGATES AND APOLOGIES

Quorum for the meeting was confirmed for the meeting to proceed with 10 of the Members present. It was also reported that three parliament were yet to be constituted after of recent general elections, namely Namibia, Seychelles and Tanzania.

ADOPTION OF AGENDA

The agenda was adopted without any amendment on a motion by Zimbabwe, seconded by Zambia.

WELCOME REMARKS BY THE CHAIRPERSON

The Chairperson welcomed everybody to the Standing Committee session which, she said, was taking place ahead of the 48^th Plenary Assembly Session. She observed that since this was the first meeting after Hon. Darren Bergman and herself were elected as the Vice Chairperson and Chairperson of the Standing Committee respectively, it was only proper for her to express their collective appreciation for the confidence and trust that Honourable Members had bestowed on them to lead the committee. She promised to drive the mandate of the Standing Committee forward over the next two years.

She noted the need to collectively interrogate the issue of corruption as this was one of the greatest threats to democracy undermining economic development, eroding the trust in state institutions as well as violating social justice.

She reminded the committee that the meeting must be viewed within the context of one of the functions of the Standing Committee pursuant to Rule 42(d)(iv) of the SADC PF Rules of Procedure, which is “To promote the principles of human rights, transparent and accountable governance, peace and security through collective responsibility within the SADC Region.”

The function, she observed, dovetailed into Strategic Objectives 1 and 2 of SADC PF as stipulated in its Strategic Plan (2019 to 2023), namely:

• “To promote cooperation, diplomacy and dialogue on issues of regional interest in view of advancing democratisation and socio-economic development for SADC Member States;” and
• “To align, harmonise and create operational and institutional linkages between SADC PF Standing Committees and Programmes, and SADC Organs and Sectors, in view of promoting integration of the region.

On corruption, the Chairperson expressed dismay at evidence through research which shows a surge in corruption in both public and private sectors in the SADC region. For instance, she observed that the Transparency International’s Corruption Perception Index (CPI) which scores and ranks countries globally on a rating scale of 0 to 100, with 0 being highly corrupt and 100 being highly clean, suggests that corruption is becoming an increasingly widespread phenomenon in the SADC region.

She noted that only four countries of the SADC region are in the top 20 in Africa. These are Seychelles (66), Botswana (61), Mauritius (52) and Namibia (52). The rest of the Member States scored below 50. This, she said was an indication of the magnitude of the work which was ahead of the Committee in terms of curbing corruption and strengthening accountability.

She reminded everyone that the theme for the meeting, “Enhancing the Role of Parliament in Curbing Corruption and Strengthening Accountability Through Building Institutional Collaboration with National and Regional Anti-Corruption State and Non-State Actors,”-was timely as it provided Parliamentarians and stakeholders the opportunity to engage and come up with collective solutions to the problem of corruption.

She implored members of parliament to be responsive to citizens demands for accountable governance since they were elected representatives of the people. This, she noted, was the expectation of the people and Members of Parliament should not betray this legitimate expectation and should ensure action was taken in curbing corruption and strengthening accountability by setting the relevant legal framework and exercising oversight on the Executive arms of Governments.

The Honourable Chair commended SADC for developing the SADC Protocol Against Corruption which was adopted in August 2001 in Malawi to assist Member States to prevent, detect, punish and eradicate corruption and to cooperate on related matters. She noted SADC Member States were committed to fighting corruption as was evidenced by their signatories to African Union Convention on Preventing and Combating Corruption and the United Nations Convention Against Corruption.

SADC Member State, she noted, had made steady progress in undertaking various anti-corruption initiatives in the form of laws, policies and institutions since the adoption of the SADC Protocol Against Corruption in 2001. In this regard, many of the Member States created state agencies whose mandate was to fight corruption, among other interventions. However, despite these efforts, the level corruption in the region remains high, she observed.

There was therefore a need for a collaborative approach by national and regional anti-corruption state and non-state actors, hence the meeting whose objectives were to:

• Create a systematic and formalised regional platform for enhancing the role of Parliament in curbing corruption and strengthening accountability through building institutional collaboration with national and regional anti-corruption state and non-state actors;
• Raise awareness on the SADC Protocol Against Corruption and promote its ratification, domestication and implementation by Member States;
• Develop a Regional Policy Brief to inform national and regional policy makers and stakeholders in the SADC region on strategies for preventing, detecting, punishing and eradicating corruption in the public and private sector, including accelerated domestication and implementation of the SADC Protocol Against Corruption; and
• Develop knowledge tools for use by Parliaments and national and regional anti-corruption state and non-state actors in combating corruption and strengthening accountability in the SADC region.

She concluded her remarks by thanking the various experts for their support and technical expertise. She also expressed the committee’s sincere appreciation to GIZ and Austrian Development Agency for the financial support towards the hosting of the meeting and wished everybody fruitful deliberations.

Point of Order-Congratulations to the New President of Seychelles

After the Chairperson’s welcome remarks, Hon. Kasanda from Zambia raised a point of order. The Honourable Member requested the meeting to officially congratulate H.E. Wavel Ramkalawan, a former Member of the DGHR Committee on winning the Presidential Elections in the just ended elections in Seychelles. She said she was happy that SADC PF and indeed the Committee, had produced a President. Hon. Kasanda opined that H.E. Ramkalawan was a humble and inclusive person whose intellect was admirable. Seychelles was blessed to have such a president as he was a great leader already.

After this intervention, the Honourable Vice Chairperson took over the chairing of the meeting after the Chair developed technical hitches with internet connection. The Vice Chair congratulated the previous Chair and the deputy since this was the first meeting after the elections.

The Vice Chair also congratulated the new President of Seychelles. Angola seconded the point raised by Zambia and also congratulated the new President of Seychelles and wished him well in his new role. Angola also congratulated the Chair and Vice Chairperson of the Committee for their election. The Honourable Members expressed their commitment to support them and noted the remarks of the Chair and requested if these could be circulated. He noted that corruption was a cancer that needed to be addressed to ensure the development of the SADC countries and improve the living standards of people.

The Vice Chair thanked everyone for their interventions and concurred with the point of order raised. He noted that Africa was looking for a good news story associated with peaceful democratic transition. He noted it would be great to put up a Facebook post congratulating also the opposition in Seychelles. He noted that the works of the model Law on Elections developed under the guidance of the committee was now bearing fruits and was happy that Seychelles was leading what should be an exemplary process.

The resolution was passed to congratulate the new president of Seychelles.

CONSIDERATION OF MINUTES FROM THE PREVIOUS MEETING    HELD VIRTUALLY ON 7^TH AND 8^TH JULY 2020 AND MATTERS      ARISING

The Chairperson of the meeting was reconnected and thanked Zambia for the point of Order and the support by the Vice Chairperson in chairing the meeting. The minutes were adopted with no amendments, on a motion by Angola, seconded by Zimbabwe.

MATTERS ARISING FROM THE MINUTES FROM THE PREVIOUS   MEETING HELD VIRTUALLY ON 7^TH AND 8^TH JULY 2020

In considering matters arising from the Minutes, the Committee noted there were no matters arising.

PRESENTATION AND DELIBERATION ON CORRUPTION TRENDS         AND FRAMEWORK FOR CURBING CORRUPTION AND         STRENGTHENING ACCOUNTABILITY

Mr. Titus Gwemende from Oxfam International presented on        Corruption in the region and the role of Parliament and noted that corruption assumed different dimensions including:

• ‘Petty theft (acts of stealing, misuse of public funds, or extortion among street-level bureaucrats).
• Grand theft (embezzlement or misappropriation of large sums of public monies by political elites who control state finances e.g Sani Abacha, the military dictator of Nigeria, siphoned an estimated US$4 billion from the central bank into his overseas accounts).
• Speed money (petty bribes that businesses or citizens pay to bureaucrats to get around hurdles or speed things up e.g A typical supermarket must obtain a daunting list of 40 permits, forcing retailers to bribe many officers in order to get these permits faster, which cuts into their thin profit margins).
• Access money (encompasses high-stakes rewards extended by business actors to powerful officials, not just for speed, but to access exclusive, valuable privileges including contracts)

He equated the different corruption dimensions to drugs noting that all corruption was bad – but petty theft and grand theft were like toxic drugs [or drinking bleach, a term suggested by Jordan Schneider]; speed money is like painkillers; access money is like anabolic steroids – they can even help one grow rapidly but come with serious side effects that accumulate over time. He observed that access money functions as an incentive system for politicians and capitalists to work together, especially when massive infrastructure, involving huge sunk costs, is required for an emerging economy to take off. Access money overpays capitalists to do this, through cheap loans, subsidies, state backing, and in return you get feverish growth that lifts people out of poverty like China.

The presentation highlighted corruption trends in the region and touched on the different areas where it was most discernible. In terms of inequality, the presentation noted rising inequality as a major factor leading to growing corruption risks, as they see it as contributing to unequal access to power and influence for private gain. In the long term, he noted, experts highlight that inequality may become deeply ingrained in government systems and further erode the rule of law. Rising wealth inequality is also seen by many experts as a root cause for low levels of trust in governments.

Another major driver and determinant of corruption was reported as technology, which will continue to transform the world including corruption and its many forms. By 2022, the presentation noted that 60% of the world’s GDP is forecast to be digitised. As a result, many in the anti-corruption community are excited by the new opportunities technology offers. But on a second look, they acknowledge that new technologies like Cryptocurrencies and Artificial Intelligence provide new routes to engage in corrupt behaviour. The vast amount of personal data stored online can be abused if exposed to the wrong people, and illicit financial flows are expected to grow, facilitated by ICT networks.

A growing trend in the region was also highlighted aptly called “State capture”, which involves “a situation where powerful individuals, institutions, companies or groups within or outside a country use corruption to influence a nation’s policies, legal environment and economy to benefit their own private interests” He noted that such capture of state institutions by private persons to influence state policies and decisions for their own private benefits has become a significant concern in Africa (Lodge 2018: 23). Its main consequence is that interests of a specific group are prioritised over public interests in the operation of the state.

In like manner, government reliance on extensive patronage networks was also seen as a common feature in some African countries. These patronage networks are part of informal power structures which determine who gets access to public resources. The patronage practices include the three Cs, namely co-optation, control and camouflage, he observed.

Another challenge noted as a challenge to political integrity was the generally opaque funding of political parties. The presentation quoted a report by the International Institute for Democracy and Electoral Assistance, which observed that there is insufficient regulation of political funding and election campaigns in many African countries, making it easier for corrupt activities associated with political financing to continue unchecked. As a result, uundisclosed political funding puts political parties and actors at risk of capture as secret funders will require a “payback” once their funded candidates get into power.

Finally, Mr. Gwemende told the meeting that land was heavily susceptible to corruption. According to a study by Transparency International, one in every two people encounters corruption during land administration processes in Africa, compared to one in five persons for the rest of the world. The presentation observed that private investors were engaging in corrupt deals to access land and to bypass consultations with the affected communities.

In light of the above trends, Mr. Gwemende implored parliamentarians to:

• ensure that state institutions – including parliaments themselves – are so transparent and accountable as to be able to withstand corruption or permit its rapid exposure;
• instil in parliaments' own ranks the notion that parliamentarians have a duty not only to obey the letter of the law, but to set an example of incorruptibility to society as a whole by implementing and enforcing their own codes of conduct;
• create clear and fair legislation, including efficient public supervision, as regards the funding of political parties and election campaigns. The proper declaration of sources of income and of potential conflicts of interest is particularly important;

He concluded the presentation by emphasising the need to question the economic and production system that was being followed by Member States as this determined corruption. There was a need to harness people’s agency in the region and in Africa in order to fight corruption Addressing inequality and adopting national and regional instruments that fight corruption was one sure way of claiming victory against the menace.

In his presentation on Regional Framework on Curbing Corruption and Strengthening Accountability: Unpacking the SADC Protocol Against Corruption (2001), Mr Ipyana Musopole from the SADC Secretariat highlighted that the SADC Protocol against Corruption was adopted in 2001 and came into force in July 2005. The protocol, he noted, provides the framework to fight against corruption in the SADC region and currently there are 13 Member States that are party to the Protocol (with exception of Madagascar, Seychelles and Comoros).

He highlighted the objectives of the protocol as:

• to promote and strengthen the development, by each of the State Parties, of mechanisms needed to prevent, detect, punish and eradicate corruption in the public and private sector,
• to promote, facilitate and regulate cooperation among the State Parties to ensure the effectiveness of measures and actions to prevent, detect, punish and eradicate corruption in the public and private sectors.
• to foster the development and harmonization of policies and domestic legislation of the State Parties relating to the prevention, detection, punishment and eradication of corruption in the public and private sectors.

The presentation gave a summary of the structure of the protocol and highlighted provisions of the following articles:

• Article 3: Acts of corruption
• Article 4: Preventative measures
• Article 8: Confiscation and seizure
• Article 9: Extradition and
• Article 10: Judicial cooperation and legal assistance focus on Cooperation between state parties in the area of Extradition, judicial cooperation and provision of legal assistance.

On the role of parliament vis a viz the protocol, Mr. Musopole observed that Domestication-passing domestic legislation or implementing other actions that conforms to agreements which the country is state party to was one of the major functions of parliaments. He noted that the onus to take the first step to domesticate may be on the executive arm who sign these agreements, however, in some jurisdictions, parliament is involved in ratification which then paves the way for domestication process. The executive introduces legislation or propose amendments to existing legislation to conform to what they have signed up to. For Parliaments, he noted, the role in this case was to scrutinize and support the legislation or proposed amendments meant to facilitate domestication by ensuring they fully conform to what the agreements requires. (some provisions require incremental steps over a period of time so domestication may be spread over time and not achieved by one legislation).

It was observed that Parliaments have the oversight function over the executive which is mostly discharged through its portfolio/standing committees that play a wide range of functions which include reviewing the legislation that is introduced into parliament before it is adopted by the full parliament, exercising oversight functions over the executive. He emphasised that the oversight function can also serve as a mechanism to verify the executive compliance with regional and international agreements which it has signed up to or assessing progress on the domestication process.

In addition, the presentation also articulated the role of parliament in ensuring domestic debate over what should be given priority or requires urgency in terms of domestication because there is so much to be domesticated. Examples were given that countries are normally party to a plethora of agreements even on just corruption (African Union Protocol, UNCAC etc.) hence prioritisation was of essence especially by parliaments.

The presentation concluded by advising parliamentarians to take keen interest in capacity building activities that were meant to raise their consciousness on the issues and agreements and their implications in terms of what obligations their own Governments have to meet under the agreements to enable them to facilitate the domestication process. He noted that they also need to have access to information on what assessment review mechanisms reports have made on their countries about their progress, so that they can play a role in facilitating their Governments to accelerate the domestication process.

In discussion to the above presentations, the committee resolved as follows:

• Appreciated the presentation by the two presenters from Oxfam and SADC Secretariat and noted the need for collaborative effort to fight corruption in the region by all stakeholders, both State and non-state actors;
• Concerned about the high levels of corruption particularly in state institutions including the law enforcement agencies and concurred that corruption was a living menace which was impeding development in the region;
• Reiterated the need to campaign against sanctions imposed on some countries in the region as these were providing the grounds for corruption to thrive;
• Resolved to continue the fight against inequality and the need to level the playing field across different sectors of the economy to ensure equal opportunities for all, which paves the way to fight corruption;
• Underlined the importance of regional integration and cooperation in the fight against corruption particularly in implementing the provisions of the protocol as well as the national laws on corruption.

Presentation and deliberation on Towards a Collaborative      Approach in preventing, detecting, punishing, and eradicating   corruption in the Public and Private Sectors in the SADC Region

The Committee welcomed Commissioner John Makamure, spokesperson of the Zimbabwe Anti-Corruption Commission, who, in his presentation on the theme of the meeting observed that the major obstacle to poverty alleviation in many countries in Africa was poor governance, which includes not simply corruption, but also poor performance of government officials in their management of public resources. The poor management of public resources, he observed, translates directly into poor public service delivery implementation, and thus undermining poverty alleviation policies.

The meeting was informed of the need for good governance, which he said has the following major characteristics. It is participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive and follows the rule of law. He went further to explain that good governance assures that corruption is minimized, the views of minorities are taken into account and that the voices of the most vulnerable in society are heard in decision-making. It is also responsive to the present and future needs of society.

In light of the above, Commissioner Makamure noted that countries in the region have adopted a policy of zero tolerance to corruption. This means fighting both grant and petty corruption. While this is the way to go, he observed that grant corruption must be fiercely fought. This was because it involves abuse of high level power that benefits the few at the expense of the many, and causes serious and widespread harm to individuals and society.

Whilst the presentation highlighted the devastating effects of corruption on the economic, social and political fabric of a society, Commissioner Makamure noted the existence of many stakeholders that hold the key to fighting it namely:

• Anti-corruption agency
• Independent commissions
• Police
• Judiciary
• Prosecuting Authority
• Revenue authorities
• Central Bank
• Parliament
• Auditor General

The meeting was informed that Anti-corruption agencies could only effectively execute their constitutional mandate with increased collaboration with all key stakeholders including business, labour, churches, civil society and NGOs in various shapes and sizes, educational institutions etc. This was further strengthened by the recognition of various stakeholders in the key instruments that prove the framework to fight corruption i.e. the UN Convention Against Corruption, the AU Convention on Preventing and Combating Corruption and the SADC Protocol Against Corruption. All of these underscores the critical role of a collaborative approach in the fight against corruption. He observed that greater external collaboration was key especially in the recovery of assets.

In pursuit of his argument, Commissioner Makamure explained the collaboration the Zimbabwe Anti-Corruption Commission was having with various partners and signed MoUs with the Zimbabwe Republic Police, Auditor General, Parliament of Zimbabwe, Financial Intelligence Unit, Zimbabwe Revenue Authority, National Prosecuting Authority, Immigration Department and Transparency International Zimbabwe, Immigration Department, among others. Hence cooperation among stakeholders was noted to be very critical in the fight against corruption and these engagements have gone a long way in assisting the Commission fulfil its mandate.

He also informed the meeting of the Collaboration and coordination that has been strengthened through the development of a National Anti-Corruption Strategy (NACS) which was officially launched by His Excellency President E. D. Mnangagwa on 11 July 2020. In this regard he noted that most SADC countries have a NACS and went on to highlight some of the objectives of NACS and the intervention strategies contained in the Zimbabwe NACS to fight corruption.

He concluded his presentation by noting that NACS must meet the specific needs of a country and take into account local realities. As there is no one-size-fit-all remedy for corruption, NACS need to be based on rigorous data, a sound understanding of the country-specific social, legal and institutional environment as well as a realistic assessment of the corruption-related problems, he noted. Furthermore, he observed that a good strategy must address underlying causes and not just the symptoms of the problem.

The Committee received a presentation from Mr. Glenn Farred from the SADC Council of NGOs, who in his contribution to the theme noted that the SADC region had made strides in promulgating the SADC Protocol Against Corruption. In this regard he noted that many SADC Member States had made stride to fight corruption given the leal framework in place. However, he noted that the ability to sustain the fight was hampered by the historical legacies that the countries in the region continue to suffer from even in this day and age.

He opined that the particular history of colonialism in different countries & the nature of the bureaucracy inherited in the post-independent states made it difficult for reforms to be instituted smoothly. Therefore, this legacy resulted in the ugly situation of entrenchment of corruption through:

• The politicisation of anti-graft and anti-corruption actions to settle scores, gain advantage or discredit opponents which impacts public confidence in measures and institutions (Botswana; Tanzania; RSA; Angola) – selective and politically motivated actions do little to remove the systemic problems
• Shutting down media and civil society organisations, imprisonment, harassment and legal and extra-judicial means to muzzle anti-corruption information/organisations. Use of international conventions and instruments such as Anti-Money Laundering and Financing Terrorism measures to target media and civil society activists – transforming whistle-blowing into a “terrorist” act
• The horrendous incidents of corruption which we are witnessing now as COVID-19 resources are widely looted (reports suggest all MS’s have been found to have incidents of Covid related corruption)

He concluded his presentation by suggesting someway forward including that SADC-CNGO strongly supports Civil Society Accountability  -  a comprehensive framework for independent civil society with appropriate legislation; self-regulation; transparency and enforcement mechanism’s (Code of Conduct & Ethics; Annual Audits; Legal protections).

In this framework, he articulated The SADC WE WANT Campaign, which has called for:

• A Regional Court of Justice & Human Rights;
• A Regional Parliament;
• A Regional Authority (revision of the SADC Treaty to reconstitute the current Secretariat to become an effective policy making and coordinating body);
• Free Movement of People in SADC & AU

He observed that SADC-CNGO proposes a Liaison Unit and Engagement Framework be established by Regional CSOs & SADC-PF to facilitate contributions to the work of the SADC-PF enabling structured linkages between the parliamentarians and civil society formations (technical support, outreach and public education, research and knowledge production, participation and advocacy).

Ms Pusetso Morapedi from Botswana Centre for Public Integrity and also representing the Southern Africa Anti-corruption network (SAACoN) as well as the Southern African Civic Education Coalition (SACEC) underscored the need for civic education in fighting corruption. She observed that the existence of protocols and other instruments was not a guarantee that corruption would be eradicated unless and until civic education was inculcated in the citizenry through various approaches including incorporating provisions of some instruments in school curricula.

She informed the meeting that her organisation was working closely with SADC NGO through the establishment of a regional anticorruption taskforce whose mandate, among others was to bring together various stakeholders in the fight against corruption.

Mark Heywood, the Editor of the Maverick in his contributions from the Media perspective noted that corruption is a global problem, taking many forms and that it was not a victimless crime as it leads to human rights violations, deepening inequality and weakens the capacity of the State e gave examples of the cost of corruption in South Africa where he noted that is estimated to cost hundreds of billions of Rand per annum. He lamented that the objective of “State capture” was to facilitate corruption. During Covid-19 journalists have played a crucial role in exposing corruption in PPE procurement, for example.

Mark also reiterated that Corruption was a threat to the achievement of Sustainable Development Goals (SDGs).

He posed a fundamental question: who benefits from corruption? He noted that Corruption was not only a problem afflicting governments and the public service, but it was also deeply embedded in the conduct of private business and gave an example that:

2018, UN Secretary General: “Citing estimates by the World Economic Forum, he said the global cost of corruption is at least $2.6 trillion, or 5 per cent of the global gross domestic product (GDP), adding that, according to the World Bank, businesses and individuals pay more than $1 trillion in bribes every year.”

He informed the meeting that tackling corruption required visible political leadership and, in this regard, Parliament has a key role to play in terms of ensuring:

• Leadership
• Legislation
• Monitoring
• Accountability

He reiterated that the battle against corruption cannot be won by Parliament alone. We need a social compact against corruption. Journalists and the media are a key stakeholder in that compact. Hence civil society had a critical role to play in ensuring Monitoring and reporting; Eyes and ears in communities; Protectors of resources; Able to organise and educate around corruption; Able to change the culture that turns a blind eye to corruption; Working in partnership with government.

He noted particularly the importance of the media in the fight against corruption through:

• investigating and publicising corruption;
• Educating and empowering communities about the legal framework around corruption.
• Ensuring accountability.
• Monitoring and supporting the prosecuting authorities.
• A memory that doesn’t forget.
• Revealing the consequences of corruption

He concluded his presentation by posing a question:

How can Parliament support the media and by doing so support the fight against corruption?

Justice Oagile Key Dingake, former Judge of the High Court and Industrial Court in Botswana, Residual Special Court for Sierra Leone, and the Supreme and National Courts of Papua New Guinea made a presentation on the role of the Judiciary in fighting corruption in the SADC region.

Justice Dinkake lamented that corruption was robbing the SADC region and the entire African continent of its future. He noted that the social costs of corruption were incalculable and incontestable. Speaking from the perspective of the judiciary Justice Dingake observed that the judiciary was the last line of defence against any encroachment on rights and freedoms under law. In this regard, he noted the importance of the independence and impartiality of the judiciary saying it was more likely to be effective in fighting corruption than the one that is not.

He reiterated that fighting corruption was fundamentally a political project as the politicians in the executive and legislature must take the lead and the people should trust that they mean what they say when they promise zero tolerance on corruption.

The presentation highlighted the need to seriously pose the question: Are our respective national political leaders leading the war against corruption credible? Do they have the moral standing to win the confidence of our people? Are they perceived to be corrupt?

He noted if they are, winning the war would be a Herculean task. However, the meeting was informed that the unspoken tragedy in Africa that keeps corruption alive was that the proceeds of crime and illicit money were the raw material for election campaigns and election buying, with the result that criminal cartels are now buying governments-in-waiting in advance. This phenomenon, he noted, turns the ruling elites into enemies of their own people, because they are bought in advance to pursue the interests of their sponsors when in power.

The presentation observed the importance of advocating for regulation of finance campaigning which the independent anti-corruption bodies and civil society must focus on. He implored the SADC PF to initiate a conversation about this issue to resuscitate democracy in the region.

There was emphasis that the proceeds of crime and the illicit money funding political parties will destroy any semblance of democracy existing in the region. He noted that they subvert the will of the people and make the expression of that will inarticulate.

Emphasis was made that the judiciary on its own, no matter how independent it may be, will not succeed in breaking the back of corruption until the political question was addressed, that is, – the democratic deficit that makes corruption thrive.

The role of the judiciary was discussed in detail and Justice Dingake pointed out that a judiciary that is independent and impartial is the bedrock of a democracy and the rule of law. He noted, these values were essential in earning and retaining the confidence of the people.

Thus, he observed, the building blocks of a judiciary that can effectively fight corruption start with the procedure in the appointment of judges. This was important because the selection of judges may have an adverse bearing on a judiciary that can credibly and effectively fight corruption.

He lamented the growing phenomenon of cadre deployment – a situation in which the appointment of judges is made purely on political considerations and not merit, which undermines the fight against corruption and the rule of law. Appointments of judges based on political considerations are in themselves a form of judicial capture and should be strongly discouraged.

In term of the enabling legal framework, Justice Dingake pointed out that most countries do not have such. Enabling laws that may contribute to an effective anti-corruption legal framework may comprise those that:

• Criminalise corrupt activities;
• Enhance transparency in public procurement;
• Require public officials to regularly declare assets and liabilities;
• Identify and prevent conflict of interests;
• Protect whistle-blowers;
• Enable tracing, seizure, freezing and forfeiture of all illicit earnings from corruption;
• Improve access to information (allowing citizens to obtain information from the state);
• Define basic principles for decision-making in public administration (objectivity, impartiality, fairness, proportionality, legality, and the right to appeal); and
• Have a legal framework that enables public interest litigation.

He concluded his presentation by noting the importance of MPs to pay attention to passing laws that can aid in fighting corruption. We need laws that protect whistle-blowers, laws on freedom of information, laws on declaration of assets and liabilities, laws on conflict of interests, and laws on public interest litigation – where people other than those directly involved (concerned members of the public) can file a suit on behalf of the public.

Stanley Nyamanhindi from the SADC Lawyers Association informed the meeting that tackling corruption was one of the major activities they were engaged in through:

• Direct formal engagement with SADC, and state party leadership to influence restoration of the SADC Tribunal or adoption of an alternative regional human rights apex tribunal with jurisdiction for individual cases that would also include corruption issues;
• The agreement with state party leadership to enter into Memoranda of understanding in regard to creation of economic justice infrastructure in the mould of a SADC Seat for Commercial arbitration and Investment Dispute Resolution. The agreement also includes partnership in implementing the pro bono network by enabling government legal aid and court structures to access the SADC Regional Pro Bono network for additional lawyers to assist in matters where government is overwhelmed, including on corruption cases.
• Practical Strategies to strengthen human rights and rule of law observance at domestic, regional and international level - The convention of parallel platforms and processes for both state and non-state actors to firmly build the foundational pillars of the human rights and rule of law infrastructure in SADC. Namely Public Interest Law Network. This is constituted of a pro bono network that includes public interest litigation, free legal representation and assistance with transactional legal work aimed at enhancing observation of human rights for vulnerable groups. A key approach is the engagement of big business and investment transactions with the view to ensuring they remain alive to the rights of grass roots communities and thus help in curbing corruption.

The Committee deliberated on the six presentations and resolved as follows:

Commended the presenters for bringing out different dimensions of corruption and the suggested way forward to addressing it;

• Welcomed the recommendations for Parliaments to be conscientized and capacitated on national and regional agreements, protocols and instruments that promote democratic governance and their implications in terms of what obligations their Governments have to meet under those instruments;
• Reiterated the importance of Civic education in strengthening evidence-based approach to combating corruption and the role of Parliamentarians in ensuring adherence to shared norms and principles through civic education of communities;
• Concerned about the slow pace on the ratification and/ or domestication and/ or implementation of national, regional and other international agreements/instruments which Member States are parties to including the SADC protocol Against Corruption and the African Charter on Democracy, Elections and Governance, African Court on Human and Peoples Rights, Protocol on Mutual legal assistance etc;
• Appreciated the role of parliaments to ensure the establishment of independent institutions that support democratic governance and their funding including the independence of the judiciary
• Welcomed the recommendation on the establishment of a Liaison Unit and Engagement Framework for Regional CSOs & parliaments to facilitate contributions to the work of the SADC-PF, enabling structured linkages between the parliamentarians and civil society formations (technical support, outreach and public education, research and knowledge production, participation and advocacy);
• Reiterated the importance of a Ministerial Committee (or some other forum) at SADC level to oversee the implementation of the Protocol Against Corruption with regards to the harmonization of legislation and mechanisms for facilitating cross-border cooperation in investigating and prosecuting cases of corruption;
• Concerned with the attack perpetrated on the Media throughout the SADC especially for its role in investigating and exposing corruption including during the Covid-19 pandemic;
• Reiterated that parliaments tackles corruption through its oversight role in fulfilling civil and political rights by protecting (as provided for in the different charters and instruments):

• • Freedom of expression;
  • Access to information;
  • Freedom of assembly;
  • Freedom of association;
  • Accountability and efficient institutions of state

Closing Remarks

In her closing remarks, the Chairperson thanked the Members for their participation and robust contributions during deliberations.

There being no further business, the meeting was adjourned at 16h20 sine die.

Minutes of the SADC PF Standing Committee on Democratisation, Governance and Human Rights Virtual Meeting held on 26th October 2020 

PRESENT

• Bertha M. Ndebele Malawi (Chairperson)
• Luísa Francisco Pedro Damião Angola
• Hon Deputy Speaker Balamage DRC
• Jerónima Agostinho        Mozambique
• Lucien Rakotomalala Madagascar
• Desmond Lawrence South Africa
• Maria Langa-Phiri Zambia
• Joyce Makonya Zimbabwe
• Ashley Ittoo Mauritius
• Rosie Bistoquet        Seychelles
• Strydom Mpansa                           Eswatini

ABSENT  WITH APOLOGY

• Sebastian Karupu Namibia
• Jamal K Ali Tanzania
• Mokweledi Moswanne Botswana
• Mphosi Nkhase Lesotho

SECRETARY

• Mr Dennis Gondwe, Secretary SADC PF Secretariat

IN ATTENDANCE

• Boemo M. Sekgoma Secretary General
• Ms Jabulile Malaza Eswatini
• Ms Paulina Kanguatjivi          SADC PF Secretariat
• Ms Yapoka Mungandi SADC PF Secretariat
• Mr Raj Khooblall Project Accountant
• Mr Shauneni Kurasha SADC PF Secretariat

The meeting was called to order at 09:30 hours.

AGENDA

• Credentials of Delegates and Apologies.
• Welcome Remarks by the Chairperson.
• Adoption of Agenda.
• Consideration of Minutes from the previous Meeting held virtually on 16^th October 2020.
• Consideration of matters arising from the Minutes of the previous meeting
• Update on the implementation of the SRHR, HIV/AIDS Governance Project
• Briefing on the HSDSP Annual Workplan by the Committee Secretary
• Closing Remarks by the Chairperson

CREDENTIALS OF DELEGATES AND APOLOGIES

Apologies were recorded from the national Parliaments of South Africa, Namibia, Lesotho, Botswana, and Tanzania. 9 out of the 15 Member Parliaments were present. Accordingly, the meeting was deemed to be properly constituted.

ADOPTION OF AGENDA

The draft Agenda was adopted without amendments on a motion by Seychelles and seconded by Zimbabwe.

WELCOME REMARKS BY THE CHAIRPERSON

In her welcome remarks, the Chairperson, Hon. Bertha Ndebele reminded the meeting that one of the guiding principles of the SADC Parliamentary Forum was to promote a culture of human rights and democratisation within SADC which included the enjoyment of Sexual and Reproductive Health and Rights (SRHR) for all without discrimination. On the strength of this mandate, the SADC PF in collaboration with national parliaments embarked on the implementation of a 3-year Project on SRHR, HIV/AIDS Governance. Hon Ndebele informed the meeting that the activity period for the Project was from 1^st July 2019 to 30^th June 2022, and 10 national parliaments were taking part in the implementation of the Project at domestic level. She emphasized that the HSDSP committee was vested with a statutory mandate to oversee and provide leadership in the implementation of the project, and it was against this background that the meeting had been organised so that the Members were updated on implementation processes and the way forward. In its leadership role, the HSDSP Committee is well poised to spearhead the SRHR Project both at regional and national level and ensure that pertinent SRHR related resolutions are tabled at the Plenary Assembly of the Forum.

CONSIDERATION OF MINUTES OF THE PREVIOUS MEETING HELD VIRTUALLY ON 16^TH OCTOBER 2020.

The Committee considered the minutes of the previous meeting, and on the motion by Eswatini and seconded by Zambia, the minutes of the previous meeting held on 16^th October 2020 were adopted as a correct record of proceedings without amendments.

MATTERS ARISING FROM THE MINUTES OF THE PREVIOUS MEETING, HELD VIRTUALLY ON 16^TH OCTOBER 2020

There were no Matters Arising from the Minutes of the previous meeting as previous matters were already actioned by the Secretariat in collaboration with Member Parliaments.

UPDATE ON THE IMPLEMENTATION OF THE SRHR, HIV/AIDS AND GOVERNANCE PROJECT BY THE PROJECT ACCOUNTANT AND THE COMMITTEE SECRETARY

The Committee Secretary Mr D. Gondwe presented a brief overview of the SRHR Project. He explained that the  vision of the Project was  universal access to integrated SRHR and HIV/AIDS services and related rights, including bringing forward social change, improved health and respect for human rights that are enjoyed by all in the SADC region, and consequently, the goal of the Project was  to work towards the achievement of this universal access to integrated SRHR and HIV/AIDS services and related rights through parliamentary action via the legislative, oversight, budgetary and representative roles of MPs.

In terms of implementation, he explained that processes were unique and contextualised to each National Parliament and that activities to be implemented were circulated by a Memorandum issued by the Secretariat at the beginning of the Project. Mitigation measures were also put in place in view of striving to attain the set targets amidst the challenges experienced due to COVID-19. Members of the HSDSP will recall that an adaptive strategy was mapped on the project outcomes of the SRHR Project in view of ensuring that remedial measures are taken to achieve the project objectives. The adaptive strategy was approved by members of the HSDSP at the last meeting on the 16^th October 2020 and was thereafter transmitted to all SADC national Parliaments through SRHR Researchers. Moreover, SRHR Researchers based in national Parliaments met with UNESCO’s representatives for deliberation on UNESCO-SADCF PF Support, which aimed at promoting awareness and acceptance of CSE in the SADC region, as well as securing the ESA Commitment beyond 2020. In February 2021, National Parliaments managed to review their work plans and implemented most of their scheduled project activities by the end of March 2021. Afterwards, National Parliaments are to compile their country level Annual Reports which will be sent for monitoring and evaluation.

The Project Accountant,  Mr Raj Khooblall, explained to the Committee that the SRHR Project was being funded by SIDA to the tune of 3 Million USD for a period of 3 years, and that due to the outbreak of COVID-19, the project encountered some challenges in the 2^nd year of implementation such as difficulties to hold physical meetings both at regional and national level as a result of lockdowns and in-country confinement restrictions. Additionally, most SADC countries had imposed flight restrictions and this was an impediment to the organisation of regional meetings, which as a consequence, resulted to a low utilisation of funding.

It was mentioned that there were some opportunities that arose during the course of the second year of implementation in the sense that the Project had managed to conduct zoom meetings and swiftly shift most of its meetings online. Additionally, the ICT framework under the Project was strengthened by procuring laptops and cell phones for SRHR Researchers, and by providing data allowance to Researchers and key Project staff. This complemented an initiative of the Forum to provide data allowance to recruited seconded staff to service the standing committees of the Forum.

The Project Accountant also explained that for year three the project has a budget of 1.2 million USD and the following activities would be implemented:

• Need to continue holding National Working Group (NWG) meetings at national parliament level;
• To continue holding capacity development for MPs and other stakeholders such as CSOs;
• To facilitate the formulation of the SADC Model Law on Public Financial Management;
• To hold public hearings and sensitisation campaigns where appropriate;
• To continue facilitating E-Communication and the development of e-briefs; and
• To facilitate the recruitment of legal expert at national parliament level to assist on bill analysis and processing.

The Project Accountant further mentioned that the expectation was that 2021 would be a better year for the project because there was high likelihood of conducting physical meetings both at national level and regional level.

The Committee enquired from the Secretariat as to why some countries like Madagascar were not part of the Project and it was explained that in the initial design of the project all countries in the region were included but for reasons beyond the control of the Secretariat, not all countries responded in relation to implementation at national level by the deadline set by the HSDSP of 31^st December 2019. However, it was mentioned that countries which still want to participate in the Project may do so by writing a formal request to the Secretariat, after which the Secretariat will take up the matter with the donor, Sweden.

BRIFING ON THE HSDSP ANNUAL WORKPLAN BY THE COMMITTEE SECRETARY

The Committee Secretary, Mr D. Gondwe explained to the Committee that the mandate of the Human and Social Development & Special Programmes (HSDSP) and its Standing Committee is derived from the Strategic Plan (2019 – 2023), the Forum’s Constitution, Rules of Procedure, Plenary Assembly Resolutions, as well as previous Committee Resolutions, and that the main goal of the programme is to deal with human and social development issues pertaining to health and combating illicit drug trafficking, HIV/AIDS, and education, among others. In addition, professional training, employment and labour, culture and sport, science and technology and humanitarian issues also constitute bedrock themes for the HSDSP Committee.

In this respect, under the objective of enhancing the role of the Forum in the fight against SRHR infringements, HIV/AIDS, and protection of key populations from a parliamentary perspective, the Committee is mandated to hold a dialogue on key issues pertaining to the protection of vulnerable groups, namely, the elderly, women and children, and key populations in the SADC region. In addition, a dialogue meeting will be held on emerging issues pertaining to human trafficking in the light of COVID-19 pandemic.

In accordance with the objective of enhancing cross-learning initiatives for HSDSP and other standing committees, and partners of the Forum, the Committee would conduct a joint session of HSDSP and RWPC on the SADC Model Law on Child Marriages, and hold a training in conjunction with partners on data capturing by reference to the data impact of the SRHR, HIV/AIDS Governance Project.

Additionally, the Committee will hold biannual meetings to discuss the progress in the implementation of the SRHR, HIV/AIDS Governance project and also conduct follow-up meetings to check on the implementation of regional commitments and resolutions e.g. CSE, the domestication of the SADC Model Law on Child Marriages, and Public Financial Management.

The Committee urged the committee secretariat to properly realign the activities with time frames for proper follow up in the implementation processes.

CONCLUDING REMARKS

In her concluding remarks, Hon Rosie Bistoquet, on behalf of the Chairperson thanked the Secretariat for arranging a successful meeting. She also reiterated the Committee’s appreciation to Mr Raj Khooblall, the SRHR Project Accountant for the elaborate explanation to the Committee on the current status of the Project’s finances. She mentioned that the information they had been given on the Project would allow the Committee Members to make evidence-based interventions during deliberations in their national Parliaments and at the Forum.

ANY OTHER BUSINESS

There being no further business to transact, the meeting adjourned at 13:00 hours.

Minutes of the Meeting of the SADC Parliamentary Forum Standing Committee on Human And Social Development and Special Programmes (HSDSP), Held Virtually On Friday 16th April 2021

You are kindly informed that the meeting of the SADC PF Standing Committee on Human and Social Development & Special Programmes has been rescheduled to Monday 31^th May 2021 from 9:30 hours Johannesburg Time..

Among others the meeting will focus on thematic issues pertaining to SRHR and HIV/AIDS in the region. 

Please register in advance for the meeting on this link:

https://zoom.us/meeting/register/tJwtce-prTwiG9UijlZiPaWAFs4ax_fQAKJt

After registering, you will receive a confirmation email containing information about joining the meeting.

Contact Paulina for inquiries: email: [DOT] </" data-ep-a5143="i<small> [A">.

Thank you.

Notice For Meeting for the SADC PF Standing Committee on Human and Social Development & Special Programmes (HSDSP)

ONLINE HOSTING BY THE SADC-PF BY ZOOM LINK

“ACHIEVING HUMAN AND SOCIAL DEVELOPMENT IN THE SADC REGION DURING COVID-19 RECOVERY”

BACKGROUND

The SADC Parliamentary Forum, through its Human and Social Development and Special Programmes (HSDSP) Committee, has over the past years promoted human and social development by advocating for a progressive implementation of common objectives such as the Sustainable Development Goals (SDGs), the implementation of Social, Economic and Cultural Human Rights, and the accomplishment of regional agendas such as the AU’s Africa Agenda 2063, to cite a few.

With the advent of the COVID-19 pandemic, human and social development has faced particular strain, especially in Southern Africa where public health systems were already overstretched with difficulties in fighting HIV/AIDS, TB, malaria and other communicable diseases. According to the World Economic Forum Global Risk Report 2021, growing societal fragmentation is likely in 2021, due to the persistent and emerging risks to human health compounded with rising unemployment, and a broadening of the gap between the “haves” and the “have-nots”. While Governments around the world shall continue to address COVID-19, there is a need to balance other competing priorities such as SRHR, the public debt as well as environmental concerns which were already at a paroxysm well before COVID-19. Heads are now turned to the post-pandemic economy and speculations are diverse concerning how human and social development, including SRHR, will fare in a world that is recovering from the global pandemic. At the same time, human and social development will depend heavily on the global race for COVID-19 vaccines which are so far, sparingly available to developing nations.

In November 2020, the HSDSP Committee of the Forum approved adaptive measures which were mapped on the project outcomes of the SRHR Project (2019-2023) in view of ensuring that SRHR is not left behind whilst confinement restrictions were in place in SADC Member States. Amongst others, the adaptive measures promoted the delivery of Comprehensive Sexuality Education by online schooling, ensured that Gender-Based Violence (GBV) was not overlooked during the pandemic, and above all promoted access to essential medicines despite disruptions in freight and cargo schedules from Europe and Asia.

While remaining true to its Vision as the Flag-Bearer of Democratisation and Socio-Economic Development in the SADC region, the Forum will continue to promote SRHR and more generally the culture of human rights that is quintessential to foster human and social development, notwithstanding the devastating effects of COVID-19. By and large, the international community is in agreement that the pandemic shall not become a convenient excuse for Governments to close eyes on child marriage, torture or infringements of SRHR and other human rights. Accountability, democracy through parliamentary action, and enforcement of the international Bill of Rights remain the hallmarks of human and social development in 2021.

 EVALUATING THE GAINS IN YEAR 2 OF THE SRHR PROJECT

At this juncture, it will thus be opportune for the HSDSP Committee to evaluate the gains in human and social development made under the SRHR Project (2019-2022) in Year 2 which ended in March 2021. While Year 2 of the Project has been particularly challenging due to COVID-19, national Parliaments have nonetheless found the strength to advance SRHR with respect to all the project outcomes and in accordance to the guidance given by the HSDSP Committee. In addition, parliamentary leadership around SRHR has acted as a leverage to ensure that Government is held to account in the House and in parliamentary committees during Year 2 of the Project.

Key achievements and milestones of the SRHR Project will thus be showcased to the HSDSP Committee through snapshots from the draft Narrative Annual Report that will be presented to the donor, Sweden, for Year 2. It should be highlighted that despite the COVID-19 restrictions, the Forum has been able to implement all the main regional initiatives under the Project such as the holding of the Committee of Clerks/Secretaries General of Member Parliaments, the meetings of the HSDSP as well as performing a regional workshop on budget evaluation for SRHR Researchers and partners.

MONITORING OF THE SADC MODEL LAW ON CHILD MARRIAGE

Pursuant to the establishment of the Regional Parliamentary Model Laws Oversight Committee of the Forum (RPMLOC) in 2019, the initial meetings of the RPMLOC have resolved that there is a need to garner empirical data from Member States in view of assisting the Committee to monitor the domestication of the SADC Model Laws in line with its statutory mandate under the Forum’s Constitution. In this respect, there was a need to deconstruct the SADC Model Law on Child Marriage and develop a monitoring tool that could be used to assist the Forum in capturing the requisite information in collaboration with Member Parliaments.

Accordingly, a Scorecard for the SADC Model Law on Child Marriage has been developed to monitor the compliance level of SADC Member States in view of assisting SADC MPs to identify the bottlenecks in domestication, and finding the appropriate means of redress by peer learning and experience sharing. The Scorecard provides a list of straightforward questions obtained by deconstructing the SADC Model Law in relation to which Member Parliaments will report upon in collaboration with the relevant portfolio Ministries.

Pursuant to the approval of the HSDSP Committee, the Scorecard will be submitted to the RPMLOC for consideration and eventual transmission to Member Parliaments via the Secretariat.

AGENDA OF THE COMMITTEE SESSION

• The agenda of the Committee session will be as follows:
• Welcoming Remarks by the Chairperson of the HSDSP, Hon. Bertha Ndebele (Malawi);
• Credentials of Delegates and Apologies;
• Adoption of the draft Agenda;
• Consideration of Minutes of proceedings of the previous meeting of the HSDSP Committee;
• Approval of Minutes of proceedings of the previous meeting of the HSDSP Committee;
• Consideration of key features and achievements of SRHR Project (2019-2022) in Year 2;
• Consideration of the Scorecard for the SADC Model Law on Child Marriage;
• Any other Business;
• Closing remarks and vote of thanks by Chairperson

VENUE AND DATE

• The committee session will take place by online hosting of the SADC-PF over a Zoom link, from 9.30 AM to 11.45 AM CAT.

Session of the Human and Social Development and Special Programmes Committee

Online hosting by the SADC-PF

31^st May 2021

PROGRAMME  

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Concept Note Session of the SADC-PF Human and Social Development And Special Programmes Committee 31st May 2021