Defend Truth


African states must man up in the fight against SGBV


Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

The subject of government accountability for sexual and gender-based violence is either absent from or peripheral to the agenda of African governments in general. The African Union is full of promises, but short on delivery, particularly when it comes to human rights issues affecting ordinary people.

President Cyril Ramaphosa spent a good part of last week addressing the scale, prevalence and magnitude of sexual and gender-based violence (SGBV) directed against women, girls and LGBTQ2 individuals in South Africa. The latest trigger moment was the rape and gruesome killing of Precious Ramabulana in Limpopo.

So enthralled was the president on the issue of SGBV that he made commitments that would not pass any constitutional scrutiny, at least until some constitutional provisions are amended. Launching the 16 Days of Activism campaign in Lephalale, Limpopo last week, he did not mince his words declaring SGBV a shame of South African society. But after all the tough talk and rhetoric, the moment of silence, inaction from our government sets in. The sad reality of victims of SGBV in South Africa is that of people left out in the cold, afraid and forgotten.

I can spend pages addressing what should be done to combat SGBV and how as a society we should deal with perpetrators. But I would rather not go on that path of broken-record messaging. My interest in this column is on South African government accountability.

The subject of government accountability for SGBV is either absent from or peripheral to the agenda of African governments in general. One perhaps expected too much that the establishment of institutions such as the African Court on Human and Peoples’ Rights (AfCHPR) would ensure the promotion and protection of human rights and freedom in terms of the African Charter on Human and Peoples’ Rights (Banjul Charter). Through institutions like the AfCHPR, we have largely experienced an African Union (AU) that is full of promises, but short on delivery, particularly when it comes to human rights issues affecting ordinary people.

A let-down of the AU, which has trickled down to AU member states, is that instead of being held accountable for SGBV, for example, African governments and leaders receive praise and protection. Nobody is effectively and efficiently protecting ordinary people beyond the aimless talk and rhetorical actions of our leaders.

The report of the African Commission on Human and People’s Rights, the African Commission on Human and Peoples’ Rights (ACHPR) in EIPR and Interights v Egypt, African Commission on Human and People’s Rights, which I will touch on later, could have been one of the rarest positive developments towards government accountability for SGBV in Africa had Egypt implemented the recommendations of the ACHPR.

In an interview with Al Jazeera, President of the AfCHPR, Justice Sylvain Ore, stated that the mandate of the AfCHPR is not different from the European Court of Human Rights (ECtHR). Perhaps I must hasten to add that the mandate of the AfCHPR is also not different from that of the Inter-American Court of Human Rights (IACtHR).

The main difference is that the IACtHR and its commission, for example, have shown the resolve to enforce accountability of their state parties. In November 2018 the Inter-American Court of Human Rights, for instance, published a report (López Soto v Venezuela) in which it held the Bolivarian Republic of Venezuela internationally accountable for acts of SGVB perpetrated against Linda Loaiza López Soto.

The AfCHPR can learn from the fact that in deciding this case of López Soto v Venezuela, the IACtHR said that the state of Venezuela was responsible for acts of SGBV. The IACtHR judgment was that acts of SGBV by private individuals can be attributed to the government; and thus the government can be held accountable to and liable for such acts.

The case involved 18-year-old Linda Loaiza López Soto, who was kidnapped and subsequently subjected to rape, sadistic psychological and sexual abuse, and tortured during three months of captivity by Luis Carrera Almoina in Caracas. Through the testimony of López Soto, the IACtHR learnt that Venezuelan authorities failed to investigate and prosecute the serious GBV crimes, and instead opted to convict her abductor of lesser charges.

State of Venezuela held that it is not responsible for violations of the American Convention, the Convention of Belem do Para, or the ICPPT… It also submitted general information on the framework and public policies on violence against women,” states the López Soto v Venezuela Report (at Para 3).

South Africa and the rest of the African governments who are generally complicit, by way of action or in omission, in SGBV can learn a lot from the decision of the IACtHR. Showing that there is “general information on the framework and public policies on violence against women” was not enough to shield the government of Venezuela from accountability. The IACtHR found the government of Venezuela not to have acted with due diligence with regard to taking measures reasonably available to prevent or avoid SGBV risk.

Although the facts were committed by a private individual, the State failed to comply with its enhanced obligation to prevent, investigate, and punish acts of violence against women”, said the IACtHR (Para 15). Here at home, the government of South Africa through its Post Office failed to appreciate the fact that Uyinene Mrwetyana’s killer, Luyanda Botha, posed a situation of real or imminent risk to patrons at the Clareinch Post Office. Unfortunately, Uyinene suffered a gruesome death and was cut down in the prime of her life at the hands of a government of South Africa employee with a criminal record. A Post Office probe showed that State Security had alerted officials to Botha’s criminal record, yet the Post Office continued to employ him. This is a clear case of government accountability for the untimely death of Uyinene Mrwetyana.

Another exemplary position on government accountability taken by the IACtHR in López Soto vs Venezuela is that the due diligence standard on the state to prevent SGBV meant that the report of an abduction or disappearance of a woman is, in itself, sufficient to trigger the state’s due diligence duty to act. The fact that López Soto’s sister, Ana Secilia López, “went to file a report with the police, but they would not accept it because they said the issue was a ‘domestic problem’ and they had to wait it out” (at 10) was evidence enough that Venezuela failed in its responsibility to protect her.

Her sister went several times to the police to report her kidnapping and threats the family received from the kidnapper, and this heightened the responsibility of the state. Yet the police did not take the matter seriously. It is worth repeating:

Ana Secilia López went to file a report with the police, but they would not accept it because they said the issue was a ‘domestic problem’ and they had to wait it out” (at 10).

How often are women victims of SGBV in South Africa told by law enforcement authorities to go and try to resolve the matter at home with their assailants? How many of these women, girls, and LGBTQ2 individuals are accused of inviting the violence upon themselves? And in all these cases, is South African law expressly dealing with state accountability for SGBV, even in offences perpetrated by private individuals who are in no shape or form attached to state departments or institutions?

An important observation by the IACtHR, which in my view is a common occurrence in South Africa, is that the following critical omissions were identified by the Inter-American Human Right Commission when it first was seized with the Lopez petition:

  1. Failure to collect evidence fundamental for duly resolving the facts, causing the case to stall due to lack of evidence;
  2. Authorities do not have protocols to deal with the complexity of the evidence in these cases or the minimum amount of evidence that needs to be collected to establish adequate evidentiary grounds;
  3. The delay in the collection of evidence following the attack and the key challenges involved as a result of the difficulty in obtaining certain evidence that is lost with the passage of time;
  4. Incomplete collection and processing of the evidence;
  5. Lack of trained, specialised personnel to collect the evidence and prepare the necessary expert reports for these cases; and
  6. The failure to incorporate evidence offered by the victims or the families of the victims into the case files.” (para 235)

For a continent which in 2013 was reported by the World Health Organisation (WHO) to have 45.6% of women 15 years and older experiencing intimate partner violence or SGBV violence or both, AU states should do better. There is something the AU can build on in embracing government accountability for SGBV.

In its first case on SGBV and freedom of speech, EIPR and Interights v Egypt, African Commission on Human and People’s Rights, the ACHPR held that Egypt failed its obligation to protect four women journalists — Shaimaa Abou Al-Kheir, Nawal Ali Mohammed Ahmed, Abir al-Askari and Iman Taha Kamel — from violence they suffered while trying to cover a demonstration of the Egyptian Movement for Change (Kefaya). In this case, Egyptian police/security forces did nothing to intervene when the journalists were insulted and abused by the demonstrators (and the party).

When women are targeted due to their political opinion for the mere fact of being women, and are not assured the necessary level of protection by the State in the face of that violence, a range of their fundamental human rights are at stake, including their right to sexual equality,” said the Commission (para. 155). In my view not only did the EIPR and Interights v. Egypt recognise SGBV as discrimination and a violation of women’s human rights, but it has also paved a way of finding African governments accountable for SGBV in the way the IACtHR explicitly held Venezuela responsible in the López Soto vs Venezuela matter.

The South African government can also do better than to simply embark on a charm offensive to pacify the movement against SGBV. When President Ramaphosa, ministers, government officials, and different state institutions talk about SGBV they must show seriousness of action. In my world, “seriousness” means explicitly holding the South African government and its different institutions accountable for SGBV against largely vulnerable women and children in the same way the IACtHR held Venezuela accountable for the SGBV López Soto suffered. DM


Please peer review 3 community comments before your comment can be posted