Africa

Prohibition on Labor Brokering not to be Included in SA’s Labour Relations Amendment Bill

By Ryan Aliman
Impunity Watch Reporter, Africa

 PRETORIA, South Africa – The Congress of South African Trade Unions (COSATU) finally conceded to the African National Congress (ANC) MPs in Parliament that a ban on labor broking will not be included in the Labour Relations Amendment Bill on August 1, 2012.

COSATU protesters rallying against Labor Brokering. (Photo Courtesy of Mail and Guardian)

Despite being able to come into terms on important contract issues between labour brokers and their clients, COSATU failed to get an agreement for a complete and full ban, according to COSATU parliamentary officer Prakashnee Govender.

Labor brokering is the process where a person or a firm provides clients with temporary or casual workers. Labor brokers, instead of clients, directly hire employees.

Hiring a labor broker precludes the establishment of an employer-employee relationship between the client company and the workers; thus, their transactions fall outside the jurisdiction of labor courts.

ANC MPs argued that including a total prohibition on labor broking into the draft legislation would become a disincentive to employment and investment. For them and other labor broking proponents, such a ban will make it difficult for employers to hire temporary workers as employers would be directly liable to the latter and be forced to pay them on time. Contrast this to the present situation where labor brokers are allowed to bear the cost of paying employees when labor brokers’ clients cannot give wages yet.

Judge President of the Labour Court Dunstan Mlambo described labor brokers as synonymous with “bakkie brigades”. “Bakkie brigades are those who pick up workers from the streets to serve the clients. These employees are abused and receive a pittance for their work. If a labor broker, who had engaged workers for a client, failed to pay them, these employees have no recourse against the client because the client is not their employer,” he told a recent labor law conference.

Another point raised by Mlambo is that “labor broking fills the pocket of labor brokers at the expense of the employee, while the client gets the fruit of the employee’s labour, leaving the employee with no protection.”  For every R100 paid by a client to a labor broker, only R30 is left for the worker. The worker receives neither pension nor medical benefit as the remaining money goes to the labor broker. “Allowing labour brokers to continue to place workers in terrible and uncertain working conditions on the contention that ‘half-a-loaf is better than none’ will only serve to alienate the working class and harden the attitudes of unions with labour broking. Yes, we need employment. But we also need decent work. In that way, at least the individual has dignity and spirit, and [it] gives him or her a sense of pride in being able to do an honest day’s work at decent pay,” Mlambo stressed out.

Meanwhile, Ms. Govender stays optimistic about COSATU’s fight against labor broking. Although COSATU failed to ban labor broking this year, she said that it remains an objective of COSATU to prohibit it. She hopes for the Parliament’s labour portfolio committee to reconsider the inclusion of the total ban in the Labor Bill during its meeting on August 7.

 

For further information, please see:

EastCoast Radio – Parliament to Thrash out Labour Laws – 7 August 2012

EastCoast Radio – SA ‘Heading for Trouble” Over Jobs – 6 August 2012

IOL – Cruelty of Labour Brokering is Unforgivable – 5 August 2012

SABC – Revisit the LRA and Register Labour Brokers – Labour Appeal Court – 2 August 2012

Business Day – COSATU Gives up on Ban on Labour Brokers – for now – 1 August 2012

IOL – SA Firms Avoid Labour Laws: Mlambo – 1 August 2012

Truth Commission Tries to Reconcile and Rebuild a Nation

By Tara Pistorese
Impunity Watch Reporter, Africa

YAMOUSSOUKRO, Cote D’Ivoire—Former Ivorian President Laurent Gbagbo’s failure to admit defeat during the 2010 presidential elections gave rise to months of controversy, fighting, displacement, and death. Following the post-election tumult, an eleven-member Commission on Dialogue, Truth and Reconciliation (CDVR) was formed in an effort to promote unity and healing throughout the country.

During the post-election period, an anti-Gbagbo protester stands beside a sign, which reads, “Gbagbo–too much blood poured because of you.” (Photo Courtesy of Boston.com)

The Commission—comprised of religious leaders, regional representatives, and soccer star Didier Drogba—is modeled after South Africa’s Truth and Reconciliation Commission, which was passed in 1995 as the Promotion of National Unity and Reconciliation Act.

Aiming to uncover the truth behind the post-election tragedies of 2010-11, CDVR members have begun organizing confrontations between victims and those accused of committing atrocities. Notably, however, unlike the South African Commission, CDVR will not afford amnesty to those who confess to committing such crimes.

“We need to know the truth, even if it’s not pretty,” said Charles Konan Banny, a long-time ally of President Alassane Outtara and head of CDVR.

Sadly, however, halfway through its two-year mandate, the Commission faces a stifling lack of funding, which is evidenced by its very slow and seemingly unnoticeable progress, although CDVR Spokesman Franck Kouassi Sran believes it inaccurate to declare the Commission has had no impact.

“If we haven’t deployed all of our actions, it’s because we’re being held back by a lack of resources,” he said. “We hope that soon we can restart our activities to do everything necessary to complete our mission.”

The Ivorian government claims reconciliation is a priority, and has focused much of its recent attention on prosecuting Gbagbo’s supporters and those responsible for the crimes committed during the conflict.

Gbagbo, however, is still awaiting trial at The Hague for charges of crimes against humanity for murder, persecution, rape, and sexual violence that allegedly occurred at his hand during the post-election period.

The initial hearings were scheduled to take place in June; however, per defense counsel’s request for additional time in order to prepare, the hearing was rescheduled for August 13.

But, yet again, the hearing has been postponed to determine whether Gbagbo is healthy enough to stand trial. Defense counsel has consistently maintained Gbagbo was “tortured” during his detention in Korhogo. The attorneys claim their client needs time for psychological and physical recovery.

Although the Court offered no specific information on the state of Gbagbo’s health, it issued a statement announcing that Gbagbo’s attorneys appointed three doctors to assess the detainee’s health. The physicians filed confidential medical reports in July and the pre-trial chamber has ordered “the prosecutor and the defense to submit their observations on (medical) reports, respectively, by 13 and 21 August.”

 

For further information, please see:

BBC News—Ivory Coast Truth Commission ‘Not Working’—3 August 2012

Capital FM News—ICC Puts Off Gbagbo Hearing Over Health Fears—3 August 2012

Reuters—Hague Hearing for Ivory Coast’s Gbagbo Postponed—3 August 2012

The Hague Justice Portal—Trial of Suspected Génocidaire Begins at ITCR—28 September 2011

Uganda Fights the Spread of Ebola

By Vicki Turakhia
Impunity Watch Reporter, Africa

KAMPALA, Uganda – The deadly Ebola outbreak is sweepings its way across Uganda. The fast acting disease has taken the life of a 3-month-old girl, at her funeral 15 others contracted the disease, 11 which have died.

Ebola in Uganda (Photo Courtesy of CNN)

According to the U.S. Centers for Disease Control (CDC) diagnosing someone who has Ebola can be difficult because the early symptoms are similar to other more common and less dangerous diseases. The fatality rate for Ebola is 65%, requiring most people to be in a strong, healthy condition in order to survive.

Police intervention has become necessary to prevent hostility among Ugandan citizens. Ugandan officials have asked that anyone who is suspected of dying from Ebola not be buried, instead officials should be contacted immediately so actions can be taken to prevent the further spread of Ebola.

Some Ugandan people are fearful of the treatment and the hospital stay. One patient ran away from the hospital and was tracked down, now the concern becomes who the patient may have come in contact with and if the disease has spread to those people.

There was a month delay in identifying the outbreak because there was a belief in the community that there was a curse. This delay prevented any early detection and prevention.

However, the World Health Organization (WHO) has not recommended any travel nor trade restrictions for Uganda. Instead, there is an advisement to refrain from public gatherings. Over 250 schools are closed in Uganda as well as markets and public gatherings.

An additional difficulty in combating the spread of Ebola has been the shortage of healthcare workers. Uganda has only 56% of the healthcare worker positions in the country filled. Other healthcare workers are frightened after seeing colleagues pass away.

Some health centers do not have the vital supplies to protect from Ebola and have been unable to provide the full healthcare needed to patients. Food shortages have also been present in Uganda this year.

The hospitals do not have enough money to feed the patients, but arrangements are being made to provide for them. Such as the $1 million dollar reserve fund that Uganda keeps for emergencies, decisions are being made now about the use of the reserve.

For further information, please see:

All Africa – Uganda: Containment Worries As Ebola Numbers Rise – 2 August 2012

All Africa – Uganda: Ebola Claims Four More At Kagadi, Mulango – 1 August 2012

CNN – Ugandan officials, international experts tackle Ebola outbreak that’s killed 14 – 1 August 2012

Huffington Post – Ebola Virus Uganda Outbreak: What is it? – 30 July 2012

Yahoo – Ebola was spread widely at funeral of first victim – 2 August 2012

SA Constitutional Court Prohibits Extradition of Individuals at Risk of Death Penalty

By Ryan Aliman
Impunity Watch Reporter, Africa

 PRETORIA, SOUTH AFRICA – In a landmark decision, the South African Constitutional Court ruled, on Friday, 27 July 2012, that any person living in South Africa accused of offences abroad cannot be extradited or deported to a country that allows the death penalty unless that country provides written assurance that the accused will not be executed.

 

South African Constitutional Court decides on the Phale and Tsebe case. (Photo Courtesy of Eyewitness News)

The Constitutional Court in Johannesburg rejected an appeal brought by the government in an attempt to overturn an earlier ruling that any transfer of Batswana nationals Jerry Phale and Emmanuel Tsebe to Botswana without prior assurances that the death penalty would be unlawful.

The highest Court’s ruling applies to any extradition or deportation case that puts an individual at risk of the death penalty.

Both Phale and Tsebe were wanted in Botswana for murder — an offense punishable by death. To escape prosecution, they fled to South Africa illegally. Upon notice of their illegal status, South Africa’s Department of Home Affairs sought to deport them.

If extradited, the two men were likely to face the death penalty.

Both Phale and Tsebe were included in the judicial process and decision despite the fact that Tsebe had already died before the Court could render a verdict. This was because both his lawyers and the state wanted the original application to be heard.

In the ruling, Justice Edwin Cameron reasoned, “when the constitution was adopted in 96 we as a nation chose a path to create a new society based among others the values of human dignity and the advancement of human rights and the court holds that handing over someone to a state will be a breach of the state’s obligation.”

The South African government voiced concerns over the ruling. The government was highly concerned that South Africa could be perceived “as a safe haven for illegal foreigners and fugitives from justice”. Acting Justice Zondo said that the situation would not arise “if countries seeking an extradition of someone in Mr. Phale’s position would be prepared to give the requisite assurance”.

Meanwhile, Amnesty International Africa Deputy Director Noel Kututwa said that the Constitutional Court’s decision is meant to exemplify to other states who have abolished the death penalty that they cannot simply “wash their hands” of their possible contribution to death sentences elsewhere. “Under international law, an abolitionist state is absolutely prohibited from forcibly transferring a person, who could be subject to the death penalty, to a retentionist State, unless reliable assurances have been obtained which effectively eliminates that risk,” Kututwa added.

 

For further information, please see:

Amnesty International – Landmark Legal Ruling says South Africa Cannot Deport People at Risk of Death Penalty – 30 July 2012

East Coast Radio – Concourt Upholds Death Penalty Ruling – 27 July 2012

Eyewitness News – Death Penalty Ruling Welcomed – 27 July 2012

Business Day – Top Court Clamps Down on Extradition to Death- Penalty Countries – 27 July 2012

SABC News – Two Botswana Citizens won’t be Deported – 27 July 2012

DRC Combats Sexual Violence with Mobile Gender Courts

By Tara Pistorese
Impunity Watch Reporter, Africa

KINSHASA, Democratic Republic of the Congo—Since 1996, approximately 500,000 people in the Democratic Republic of the Congo (DRC) have fallen victim to sexual violence according to United Nations (UN) estimates. Although UN members and the Security Council have condemned the sexually motivated injustice, the sufferers of these violent crimes are often stigmatized by their own communities and rarely see their attackers brought to justice.

Mobile court hears a rape case in South Kivu. (Photo Courtesy of ABA Rule of Law Initiative)

“As violence escalates in the eastern [DRC], I am deeply concerned that sexual violence is once again a pattern of the conflict,” said the acting Special Representative of the Secretary-General on Sexual Violence in Conflict, Vijay Nambiar, in a statement. “In the context of illegal activities of armed groups, serious crimes have been reported.”

A lack of funding and issues of integrity have contributed to the overall failure to bring many perpetrators of these crimes to justice in DRC. Moreover, many victims are unable to reach a police station or afford the costs of bringing a case to trial.

Specifically, in South Kivu in 2005, fewer than 142 of incidents of sexual violence faced a tribunal, although 14,200 were recorded that year. Similar failures have surfaced within DRC’s national courts, although the Ituri district boasts some progress, including ten recent rape convictions.

In an effort to curb judicial shortcomings, a project was initiated in South Kivu in 2009 whereby mobile courts travel from city to city to bring justice to the victims of sexual violence. The mobile gender courts—supported by the Open Society Justice Initiative, the American Bar Association Rule of Law Initiative, and the Open Society Institute for Southern Africa in collaboration with the Congolese government—have emphasized locally-led justice.

The project has enjoyed considerable success. Within the first twenty months of its existence, fourteen court sessions took place, 248 cases were tried, and 140 perpetrators were convicted of rape. Mobile courts have held sessions in many cities and villages from urban regions, such Baraka and Bakavu, to more remote villages, like Kamituga and Mwenga.

However, limitations on the mobile courts call their sustainability and effectiveness into question. The itinerant agencies often require staff to travel by plane and automobile very far distances and through difficult terrain to reach remote service areas. Sadly, the courts also lack funding for basic and necessary equipment and supplies, such as paper.

Mobile trials typically last two weeks, in compliance with international law requiring crimes of this nature to conclude within three months. Additionally, this timeline provides “timely redress to individual victims in communities still struggling with the chaotic aftermath of war and political upheaval,” according to Judge Mary McGowan Davis, who was recently invited to assess the productivity of the mobile courts. On the other hand, the speed of the trials and their conclusions make important components of an effective trial, such as obtaining witnesses, very difficult.

The court sessions, which are exclusively staffed by Congolese citizens, are typically made open to the public in an effort to break down the stigma surrounding victims of sexual crimes.

 

For further information, please see:

All Africa—Africa: Mobile Gender Courts-Delivering Justice in the DRC—30 July 2012

UN News Centre—UN Official Condemns Sexual Violence by Renegade Soldiers—18 July 2012

News 24—UN Condemns Eastern DRC Attacks—17 July 2012

Open Society Initiative for Southern Africa—Helping to Fight Impunity for Sexual Crimes in DRC—7 May 2012