1 Feb 2014 | News and features, Politics and Society, Zambia
(Photo illustration: Shutterstock)
By Paul Carlucci for Think Africa Press, an online magazine that offers commentary and in-depth analysis from leading African and international thinkers.
Lusaka, Zambia: A little over two years ago, when Michael Sata was campaigning for Zambia’s top office, he promised that, if elected, he would finally bring to an end a decade of abandoned legal reform and deliver the country a definitive new constitution. Not only that, but he would do it within 90 days of taking power.
Sata’s election campaign was successful, and soon after taking office in September 2011, the new president − along with his Patriotic Front (PF) government − tasked a committee of lawyers and academics with drafting the document.
Things soon slowed down however, and it is only now − several shrugged-off deadlines later − that Zambia seems to be nearing the completion of its constitutional process. Though that’s not to say things are necessarily moving smoothly. In December 2013, the government blocked the constitutional committee from releasing its final draft to the public, insisting it be sent to the government alone, while allegations have emerged that Sata has changed his mind about Zambia’s need for a new constitution, believing instead that the existing one can simply be amended.
The government has rejected these claims, asserting that Sata’s commitment to a new constitution remains “unshakeable”, and his two-year-old promise continues to loom large in the psyche of an increasingly outraged brigade of critics. After the 2014 budget revealed a skew of alarming numbers and the global rating agency Fitch downgraded the country’s credit rating, the PF’s economic success story lost its celebrated momentum, leaving it with little more than a narrative of heavy-handed autocracy.
Many of the government’s opponents have closed in on the constitution as a panacea for all that ails the country, a movement that culminated in a major demonstration at the Cathedral of the Holy Cross in Lusaka and which took a sensational twist on 15 January when the outspoken Zambian Watchdog published what it claims is a leak of the final draft.
A torrent of official statements followed as the drafting committee denied originating the leak, the police vowed to clamp down on what they termed a ‘cybercrime’, and the government vowed to track down and punish the perpetrators of the leak. The cabinet, which is meant to be deliberating the final draft, also claimed it hasn’t yet received its copies of the document.
Talking the talk
While the authenticity of the leaked constitution is uncertain, it doesn’t stray far from the publicly available first draft, or even from previous drafts commissioned under past administrations. Zambia’s electoral system is addressed, requiring candidates to garner over 50% of the vote to hold presidential office, while parliament would be composed of members elected through a combination of first-past-the-post and proportional representation.
The draft Bill of Rights − which includes classical first generation rights as well as social, economic and cultural rights − is also more clearly articulated than it is in the existing constitution, and it seems to be these protections, more than technical changes to governance structure, that the opposition is longing for. They complain that their protests have been menaced by police and ruling party thugs, that critical media outlets have been persecuted by the government, and that the general population, especially outside the capital Lusaka, slogs through a life of poverty, illiteracy and environmental degradation.
Indeed, tackling these problems is crucial, but here’s the rub: there’s more than enough substance in the existing constitution to transform human rights in the country. That’s not the issue. The real problem is that successive administrations, including those headed by members of the now opposition Movement for Multiparty Democracy (MMD), simply cast off their legal responsibilities when it suits them. What needs to be tackled is Zambia’s tradition of impunity, which dates all the way back to the era of its independence president, Kenneth Kaunda.
When Zambia was granted independence in 1964, it started its new life with a multiparty framework, led by Kaunda’s United National Independence Party (UNIP), which had won 55 of 75 seats in the pre-independence elections. But this wasn’t to last. In 1972, keen outmanoeuvre political opponents both inside and outside the ruling party, Kaunda banned all political parties apart from UNIP. In 1973, he formalised one-party rule in a new constitution that also that consolidated state power in the president’s office.
It was only 18 years later when Zambia was choked by debt and was facing mounting pressure from the international community that Kaunda commissioned a hasty legal review. That move led to the establishment of the 1991 constitution and multiparty elections that brought MMD leader Fredrick Chiluba to power.
Not a lot has changed since then, despite the reform commissions that have been mandated, the reports that have been produced, and the many amendments proposed. One amendment that has been passed was a provision barring candidates with foreign parentage from running for the presidency. Chiluba, assisted by Sata, who was then a member of the MMD, managed to force through this provision in 1996, effectively blocking Kaunda, whose father was born in neighbouring Malawi, from returning. The amendment still exists today, but the kinds of reforms that would hold leaders more closely to account have remained elusive.
A tradition of impunity
However, in many ways, the existing constitution does a lot of things right. It contains all the baseline requisites such as human dignity, equality before the law, protection from inhuman treatment, freedom from slavery, and freedoms of religion and expression. It also explicitly protects young people from various forms of exploitation. And under the Directive Principles of State Policy section, its clauses address employment, shelter, disability, and education. It does use some derogatory language, but so too do the current drafts of the new constitution.
The problem is that despite these legal mandates, correctional facilities are overcrowded and access to justice fails many prisoners in remand; there’s a long track record of beating, arresting, and criminally charging journalists, civil society leaders, and political figures who criticise government; poverty is endemic in rural areas, where education and healthcare facilities are also inadequate and the means of pursuing a gainful livelihood are largely absent.
When it comes to social and economic rights, many developing countries explain their failures in terms of cost. How can a poor nation like Zambia be expected to improve the lot of its direly undeveloped rural areas? How can it extend its meagre health and educational resources that far? How can it afford what human rights theorists call ‘positive rights’, those measures that require government action to protect and maintain?
Part of the answer is to dam the ever-bubbling backwaters of corruption, which divert enormous sums from the country’s development agenda. While corruption charges and trials do occur – usually motivated by political reasons – leaders from Chiluba to Sata have done little to substantively affect the diversion of public money from development to private bank accounts, while Chiluba in particular oversaw the country’s most notorious chapter of embezzlement.
Steak on the table
In the short term, real change won’t emerge from the government’s legal apparatus. It will have to come from outside. Protesting Zambians have chalked up victories before, as when public demonstrations played a role in dissuading Chiluba from seeking an unconstitutional third term. And if NGOs, beleaguered though they are by looming registration reforms, were to focus their efforts on mobilising not just urban Zambians, but also those people living in undeveloped areas, more tangible results could be achieved.
But it’s not just a case of focusing their efforts. It’s a case of refocusing them. The fight for a new and improved constitution is certainly a worthy one, but civil society organisations have made a holy grail of constitutional reform, as if delivery will automatically slacken the state’s grip on an array of levers it freely abuses, from stacking the judiciary with supporters to deploying waves of violent thugs in by-election campaigns.
The current opposition, meanwhile, is only too pleased to ally itself with activists, but given the MMD’s own history of unjust governance, the teaming up is clearly for self-serving reasons. Rather than giving politicians such an elevated podium from which to reinvent themselves, civil society would do better to zero in on specific rights violations and protest those on the same scale as they do constitutional reform.
The other piece of this puzzle is the international community. That’s a difficult prescription for a continent whose leaders routinely play their populations against what they frame as foreign interference, but sustained pressure from multilateral organisations able to reference even the current set of constitutional guarantees would help consolidate demands made in the streets.
None of this is to say that robust laws can’t lay the groundwork for a future of mature, responsive governance. A strong legal framework, no matter its current irrelevance, will make for useful terms of reference in a more developed future, and human rights theorists habitually point to ambitious laws as key components to equitable progress. Indeed, what is a pie in the sky today could very well become steak on the plate tomorrow. The point is that it will take more than a good-looking tablecloth to make that happen.
This article was originally published on 21 January 2014 at Think Africa Press and is reposted here by permission.
Paul Carlucci is a Canadian writer and journalist based in Lusaka, Zambia. He has reported from Ghana and Ivory Coast for Think Africa Press, IPS Africa, Al Jazeera English, the Toronto Star, and the Toronto Standard. His collection of short stories ‘The Secret Life of Fission’ is available through Oberon Press. Follow him on twitter @PaulCarlucci.
30 Jan 2014 | Ireland, News and features, Religion and Culture
Rory O’Neill’s alter ego Panti
Irish state-run television broadcaster RTE has come under heavy criticism after offering a full apology and possible financial compensation to the Iona Institute, a conservative Catholic lobby groups declared “homophobic” by a talk show guest.
The decision appears to have been reached under pressure from Irish Broadcasting Authority board member John Waters, who was also declared homophobic during the same segment. The allegations follow RTE’s decision to remove the remarks, made by Rory O’Neill who performs as one of Ireland’s most acclaimed drag queens under the name Miss Panti, and extensive popular debate about the treatment of Ireland’s conservative lobby groups in mainstream media.
On RTE’s The Saturday Night Show, O’Neill declared a number of prominent Conservative advocates, specifically Breda O’Brien, John Waters, and “The Iona Institute crowd” homophobic. RTE removed the segment from its online player the following day, citing legal concerns as well as the recent murder of Iona Institute researcher Tom O’Gorman as a matter of “sensitivity”‘ although later admitting O’Gorman was not relevant to the program content. On January 25th, the show’s host Brendan O’Connor formally apologised for the distress caused to John Waters and other columnists. The Iona Institute has thanked RTE for the apology, which it called “an extremely valuable contribution to a calm and reasonable debate” and explained that RTE had also agreed to pay damages to the injured parties. When asked about the claim that damages would be paid over O’Neill’s comments, an RTE television spokesperson declined to comment. Neither side would confirm the identity of the claimants.
RTE’s sudden condemnation of the remarks has been linked to legal action pursued by John Waters, a conservative Catholic commentator and journalist, and board member of the Broadcasting Authority of Ireland . The Irish Independent cite anonymous sources confirming that legal representatives of Waters sent a legal letter to the broadcaster seeking the removal of the interview on the popular Saturday Night Show. It has since been restored to the website, though the offending portions of O’Neill’s interview have been edited out. Waters resigned from his position with the Irish Broadcasting Authority on January 23rd, after the letters had been drafted and sent. His decision to legally challenge RTE has been broadly criticized as an abuse of office. As solicitor Simon McGarr explains, this “was not merely a letter from an aggrieved citizen to a broadcaster. It was also a letter from one of that Broadcaster’s regulators seeking to have that broadcaster censor a citizen, who was both contributing to a matter of public debate and engaging in a defence of a minority of which he is a member, bona fide and without malice”. Waters has declined all requests for media comment.
Since his appearance on The Saturday Night Show, O’Neill has confirmed receiving personal legal correspondence from Breda O’Brien, David Quinn, Patricia Casey, and John Murray, all patrons of the Iona Institute. In a statement released on its blog, the Iona Institute defended the measure, explaining: “The problem is that merely believing that marriage is the sexual union of a man and a woman, and that children deserve the love of both a mother and a father whenever possible is automatically deemed to be ‘homophobic’ by those wishing to close down this debate.” This defamation, they claim, is harmful to political discussion.
Any private claims of defamation, explains barrister Brian Barrington, are unlikely to hold up in court, explaining: “Mr O’Neill’s comments arise in a context where the Iona Institute is well known in Ireland for its opposition to affording equal marriage rights to gays and lesbians and also for its opposition to same-sex parenting. It seeks to maintain the current discrimination whereby same-sex couples are prohibited from marrying whereas opposite sex couples are free to do so. In these circumstances, it is clear that Mr O’Neill was entirely entitled to express his honestly held opinion, which was based on facts that were reasonably known to the public.” Criticism of RTE for reacting to such a baseless legal case is well founded. “‘It is astonishing that RTE, a national broadcaster, should apologise for what Mr O’Neill has stated, censor his interview on the internet and award public money to those in the Iona Institute who have sought to prevent a free debate on equal marriage by preventing gay rights campaigners from uttering in future that opposition to same sex marriage is homophobic,” he explains.
Irish media have come under fire for a number of complaints of homophobia in recent weeks, including a discussion on RTE radio program The God Slot that discussed “curing” homosexuality and a Midwest Radio presenter’s decision to read a text on air that suggested children of gay couples could develop Aids. Ireland will legislate on a number of key gay rights issues in the coming years, including full legal recognition of gay adoptive parents, and a constitutional referendum on the legalisation of gay marriage is scheduled for 2015. The imminent debate has many calling for a “homophobia watchdog” to monitor public statements.
Una Mullally, a columnist for the Irish Times, explains: “‘Free speech’ is not a free pass to inflict psychological trauma just because you don’t want lesbians or gay people to get married. Opponents of marriage equality are not the victims in this debate.”
This article was posted on 30 January 2014 at indexoncensorship.org
29 Jan 2014 | Digital Freedom, News and features, Politics and Society, Religion and Culture
The revelations by Edward Snowden last June about massive, unaccountable surveillance by the US National Security Agency (NSA) and its British counterpart GCHQ have raised one vital question. Is there a global right of privacy? If so, what form might it take?
In November 2013, Kenneth Roth, the executive director of Human Rights Watch, argued in favour of a global human right of privacy. “All [governments] should acknowledge a global obligation to protect everyone’s privacy, clarify the limits on their own surveillance practices (including surveillance of people outside their own borders), and ensure they don’t trade mass surveillance data to evade their own obligations.”
Fundamental to this discussion is the role technology has played in outpacing legal oversight. In April 2013, the report of the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression had one express focus: To examine “the implications of states’ surveillance of communications in the exercise of the human rights to privacy and to freedom of opinion and expression.” In the Rapporteur’s view, it was clear that the march of technology, with its move to low cost mobile communications as opposed to previous fixed-line methods had “increased opportunities for state surveillance and interventions into individuals’ private communications.” Borderless surveillance has become a reality.
In their remarkable article on privacy in the Harvard Law Review of 1890, Louis D. Brandeis and Samuel D. Warren argued that, “The press is overstepping in every direction the obvious bounds of propriety and decency. Gossip is no longer the resource of the idle and the vicious, but has become a trade”. Through sharp, analogical reasoning, the jurists decided that grounds for a civil wrong in breaching privacy might be found. The law had to keep pace with the type of technology involved. In their times, it was the telegraph.
International law accepts that a right to privacy exists and should be protected. Article 12 of the Universal Declaration of Human Rights (1948) makes it explicit. The International Covenant on Civil and Political Rights, through Article 17, has the same effect. Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms has spawned rich jurisprudence on the subject. The Organisation for Economic Cooperation and Development, and the Council of Europe, have various guidelines and protocols in place for data protection.
That said, common law countries such as Britain and Australia have shown a reluctance to find a genuine civil wrong when someone’s privacy is violated. Preference is given to finding a breach of confidence. In the United States, there is a reasonable expectation under the Fourth Amendment that one’s privacy will be protected, though it has no application to foreigners. Civil code countries have shown a greater willingness to identify the human body as inviolable before unwarranted interference.
Analysts have argued that a protected global right to privacy is urgent because the global surveillance state has itself become a reality. It is not merely sufficient to restrain through warrant and judicial control the actions of the NSA regarding American citizens. As David Cole of the Georgetown University Law Centre argues (Just Security, Oct 29, 2013), focus must lie beyond the limited social contract between US government and its citizens. The rights of non-US citizens to privacy, in other words, extra-territorial rights, matter. Privacy rights are transnational issues, requiring transnational measures of protection.
In the United States, President Barack Obama has at least acknowledged the globalised nature of the surveillance problem, and the need for global protections that consider the rights of non-US citizens as well. His latest suggestions can be found in Presidential Policy Directive 28 (PPD-28.
A notable feature in PPD-28 is the restriction on monitoring foreign citizens, which might be termed the “Merkel” clause after it was revealed that the German Chancellor’s phone was being monitored by the NSA. Section 4 of PPD-28 also serves to create the machinery by which the US will form a “point of contact for foreign governments who wish to raise concerns regarding signals intelligence activities conducted by the United States.”
In these proposals, Obama fails, as executive director of Amnesty International USA Steven W. Hawkins explains, to accept “the abusive nature of mass surveillance or put international human rights standards at the centre of US policy”. They do not so much curtail surveillance as simply limit aspects of its reach. Executive Order 12333 still affords Obama powers to authorise surveillance programs without judicial review. The law is still kept at arm’s length.
The normalisation of Stasiland is the great feature of the twenty first century – no political system has been spared that, largely because the technological means have outpaced the legal regulations. A collective of some 500 writers, among them Margaret Atwood, Martin Amis, and Don DeLillo, have argued via a petition in December 2013 that, “A person under surveillance is no longer free; a society under surveillance is no longer a democracy. To maintain any validity, our democratic rights must apply in virtual as in real space.” It is time to consider not merely limits to the bulk surveillance, but enforceable obligations on the part of states to abide by a global rule on privacy.
This article was posted on 29 January 2014 at indexoncensorship.org
23 Jan 2014 | Greece, News and features, Religion and Culture
On 16 January, Greek blogger Filippos Loizos, responsible for the satirical Facebook page of Elder Pastitsios, was convicted for “malicious blasphemy and religious insult” and sentenced to 10 months in prison, suspended for three years.
Loizos has set up the page mocking a well-known deceased Greek Orthodox monk — Elder Paisios — by intentionally combining his name with a popular Greek food called “pastitsio”, a pasta based dish with béchamel sauce.
His arrest in late September 2012, came after Christos Pappas, an MP from the now-banned neo-fascist party Golden Dawn, posed a parliamentary question calling for the blogger’s arrest on the basis of the country’s anti-blasphemy laws.
Pappas is now facing charges of being involved in a criminal organization.
“My prosecution was somehow expected. At the time I drew a lot of attention on social media. The neonazi party saw ‘a chance’ in accusing me as a blasphemer, satisfying a very conservative society and inspiring strong national sentiments,” Loizos told Index on Censorship.
Loizos explained that the court did not understand his intentions — delivering a stinging rebuke for what he perceived as the monk’s dangerous nationalism and intolerance.
“The judges were very aggressive and did not want to understand my argument. They insisted on saying my intention was to insult because I hadn’t censored any posts of visitors which were considered blasphemous or vulgar. I would never do that. In a democracy we are all ‘condemned’ to disagree,” says Loizos.
Reactions in the press and on the internet after the blogger’s conviction were immediate and vociferous. Far-right publishing and Orthodox websites were gloating, while Loizos’ sympathisers and free speech advocates argued it was “a blow to freedom of expression”.
On 20 January 2014, Amnesty International expressed serious concerns over the case, while calling on Greek authorities to “repeal the anachronistic anti-blasphemy legislation”.
The Hellenic League for Human Rights (HLHR), the oldest human rights organisation in Greece, had earlier issued a press release, stating its “unfortunate certainty of an institutional and ideological setback that does not seem to end”.
“Today’s decision shows that freedom of speech, a fundamental pillar of social consistency in a state with ‘rule of law’, is being challenged not only by the enemies of democracy but by the judicial institutions,” according to the release.
Dimitris Christopoulos, an assistant professor of state and legal theory at the Department of Political Science and History at Panteion University in Athens, and vice president of the International Federation for Human Rights, told Index that “this decision is a message on how justice perceives political coexistence in society. It’s like saying ‘when you talk about God in a way we do not like, you will be punished’. In other words, people can joke about everything they want, except religion”.
Contrary to some allegations that the judges suffered social media illiteracy because of their age, Christopoulos told Index on Censorship that they were young and seemed to “fully understand the role of social media”.
In late September 2012, when Loizos was arrested, Vassilis Sotiropoulos, a lawyer and blogger specialising in internet legislation, told Index: “The legislature refuses to address the issue of internet censorship, thereby allowing law enforcers — prosecutors, police officers, judges and lawyers — to freely interpret and utilise the existing legal tools (…) the case of Elder Pastitsios provided perhaps the first example in Greece of an internet company disclosing information to the government in order to identify an individual accused of ‘alleged offences relating to religious satire’.”
However, it is not the first time cases regarding religious blasphemy have reached the courts. In 2012, controversial theatrical play “Corpus Christi” resulted in the legal prosecution and public harassment of the play’s director and actors by Golden Dawn members and Orthodox religious groups.
Legal experts told Index that there are several ongoing cases involving blasphemy in Greece and that the country should follow the Council of Europe’s recommendations and reports on abolishing “the offence of blasphemy”. According to these recommendations, freedom of thought and freedom of expression are being limited by blasphemy laws.
Loizos said he is going to appeal the verdict “for reasons of dignity”.
“We should abolish this blasphemy law in order to protect free expression,” he said.
This article was published on 23 January 2014 at indexoncensorship.org
