In the historic setting of Cape Town’s St Georges Cathedral, over 300 South African and international civil society organisations launched the Right2Know Campaign early last week. This broad based Campaign, which seeks to defend and advance Constitutional Rights to access information and freedom of speech, has the support of inter-faith groups, advocacy organisations and think tanks alike. They have been galvanised by a belief that the proposed Protection of Information Bill (the Secrecy Bill) including the proposed measures to curtail media freedom will take us back towards a past that many ordinary South Africans sacrificed much to overcome. It is also borne out of frustration that detailed submissions to Parliament by civil society groups on the proposed Secrecy Bill have been largely ignored to date. Instead the cogent arguments calling for the Bill to be significantly overhauled have been treated with contempt by our elected lawmakers and their independent advisors who brand such concerns as ‘hysteria’. We view these glib responses in serious light.

While the public are told that the proposed law is in the ‘national interest’, the proponents of this odious legislation seem to have forgotten that democracy, freedom and the right to know are inseparable. Block the free flow of access to information and democracy suffocates.  More accurately it will be suffocated by power given to the security establishment which will suddenly have its tentacles in almost every aspect of public life. The possession of information could be criminalised while journalists and researchers who contributed to the publication face imprisonment of between five and twenty five years. This naturally breeds withdrawal, fear and perpetuates social exclusion. 

The concern of the Right2Know coalition is that ordinary citizens will soon be dominated by powerful predatory elites. The Right2Know is not a fight only for access to information by a diverse, independent and responsible media. It goes to the heart of the struggles which ordinary man and woman have on a daily basis in communities across South Africa. The Secrecy Bill seeks to disempower civic groups working in such communities while it further empowers officialdom to make secret that which should be public. It also assumes that officials are by default benevolent people and always have best interest of citizens.

Imagine burying family members who die of HIV/Aids only to be told by a government official that records of the scale of the pandemic are confidential. Sitting in darkness while Eskom officials announce that they cannot confirm or deny power-cuts. The impact is not only farcical but extends to dangerous if municipalities suppress information of poor quality water before election campaigns. Consider the way in which this will widen the gap between elected officials and the electorate, nullifying the notion of participatory governance which President Jacob Zuma has called on civil society to embark on together with his government. The Bill undermines the basic principle of a social contract, so desperately needed, between the state and citizens.

Greater secrecy translates into greater power for a smaller number of people. When even mundane information is classified it will also contribute to what Nigerian Nobel Laureate Wole Soyinka refers to as a ‘Climate of Fear’. When this happens, he argues, “Caution and calculation replace a norm of spontaneity or routine. Often normal speech is reduced to a whisper, even within the intimacy of the home”.  The Secrecy Bill and related laws seek not only to silence, but create a culture of silence. This climate of fear Soyinka argues is the converse of ‘human dignity’. It is programmed to centralise resources and power and stifle creativity and diversity, which is central to our post 1994 liberation.

While there is a need to replace apartheid era secrecy laws, the question seldom asked is in whose direct interest is the Secrecy Bill and proposed Media Appeals Tribunal? There are three identifiable groups who will benefit from these measures: a group of securocrats and spies who have a natural tendency to want to suppress access to information; the Venal Politicians who are shameful of the trinkets that have been bought through the public pursue such as cars, houses and evenings in five star hotels and; the Predatory power elite who are involved in large scale corruption and move with seeming ease between networks they have established in politics, business and state owned enterprises. The interests of these three groups conflate and overlap at times. They represent the shady end of public life. The shadow state.

If these are the primary beneficiaries of the Bill, then the victim becomes the ‘national interest’. It is apparent that our leaders are walking down a path that could entangle them in the narrow interests of these three groups. This is not, as a column in the Sunday Independent naively suggests a case of the ‘ANC versus society’. Rather it is these three interest groups who seek to undermine the legacy of freedom which the ANC and UDF fought for. The time for ANC MP’s and leaders who register disquiet with the law in private to speak out is now for them not to become accomplice to efforts capture and criminalise the state. They should do so in the same way that prominent individuals such as clerics (Archbishop Tutu), writers (Nadine Gordimer, Zakes Mda and Andre Brink) political activists (Kader Asmal and Mazibuko Jara) and academics (Jonathan Jansen and Max Price) have done. However, their responsibility is not to sign statements and march to parliament during the week of action which the Right2Know Campaign has scheduled for 19 October. Rather their Constitutional obligation is to use the power which we have given them within Parliament to ensure that the Secrecy Bill and all other efforts to muzzle freedom of speech are blocked. Freedom is a common currency to all our people and should not be traded and subjected to speculative market practice as it is priceless. A climate of fear will affect all who live in South Africa equally. Our leaders must speak truth to power or expect to be muzzled by machinations, which will be of their own making.

*This article first appeared in the Mail&Guardian on Friday 3 September

The decision to substantially outsource any core activity of the state to the private sector, particularly criminal justice system functions, is not uncontroversial, nor is it a matter to be taken lightly. Ten years ago the Department of Correctional Services (DCS) in South Africa concluded its first public private partnership agreement (PPP) for the construction and running of two prisons to securing additional prison space as an attempt to address chronic prison overcrowding.

Recently the Minister of Correctional Services, Nosiviwe Mapisa-Nqakula, quietly let it be known that she was undertaking a review of the Department’s policy in relation to public private partnerships for prisons. The result was to place on indefinite hold the processes to acquire four more PPP prisons that had been underway for several years. This has hurt the private sector bidders, which had developed proposals at great cost (estimated to be around R40m per proposal) at the request of  the Treasury and the Department of Correctional Services.

There has been no public announcement of the policy review, nor is it possible to determine with any certainty what the motivation for the review is; how long it will take; whether there will be provision made for public comment; or what change might ultimately be expected.  Nevertheless, is it worthwhile reflecting on some of the key issues relating to such partnerships.

For over a decade the Treasury has refined its tools to assess whether a service or project that may have been performed by a government entity would be better performed by the private sector. Decisions of this nature are guided by three key criteria namely value for money, affordability and risk transfer. What this means is that if the private sector can offer a better service than a state entity; at a price the taxpayer can afford and where the risk associated with the service provision is largely carried by the private entity; the project may be assessed to be suitable for a public private partnership (PPP). The process of assessment is long, resource intensive and rigorous. There are numerous examples of such PPPs in South Africa providing essential services including water, health care, transport and even land reform.

There are several advantages to the taxpayer of such partnerships. One of these is that the state can set the service provision criteria and hold the service provider to account if the service does not meet these criteria; thereby ensuring the quality of the service provided. In a private prison setting this means for example, that the service provider is required to ensure that all inmates take part in a at least 40 hours of some form of educational or vocational training each week. If one inmate in a private prison is not afforded the opportunity to do so, the service provider will have to pay a hefty fine.  This creates a strong incentive for the prison to ensure that all the prisoners benefit from the programmes. Unfortunately there is no similar mechanism by which to hold state prisons to account.  There is no dispute about the fact that the existing two PPP prisons provide a service substantially better than most state prisons. So what are the issues that require review?

The first might be that it is not sufficient to outsource core state functions just because service provision is guaranteed by doing so. Another serious consideration is whether, in principle, building more prisons is the solution to overcome the problem of overcrowding.

Civil society organisations and indeed members of the Parliamentary Portfolio Committee on Correctional Services have repeatedly stated that South Africa cannot and should not build itself out of overcrowding. Rather a thorough assessment should be undertaken of who we incarcerate and why.

There is no dispute that violent criminals should be behind bars.  There is also generally no dispute that the period spent in prison by those awaiting trial should be kept to a minimum.   Few would argue that petty offenders should be incarcerated simply because they can’t afford bail of under R1000. These are just two of the issues that have been raised and discussed ad nauseum over the years without being adequately resolved.

The Judicial Inspectorate of Correctional Services has also argued for several years that overcrowding could be reduced if the number of hours prisoners spend in their cells was reduced by keeping them productively busy during most of the day. This could remove the need altogether for new facilities to be built.

There is also the fact that the current PPP prison agreements span a 25 year period. That is a very long time to tie up a significant proportion of the budget available to the Department (currently at 5%). However, while the two existing contracts will have to run their course, there is no reason why any new contracts should be as long. Nor is there any reason why the existing contracts could not be renegotiated, to for example allow for a change in the profile of prisoners at these institutions.

The argument goes that there is little point in sending our most hardened violent criminals who are serving lengthy sentences to the two facilities that are most able to provide vocational training and rehabilitation services as is currently the case. It is legitimate to ask whether those services should not be available to those for whom there is a greater chance of success in rehabilitation, such as younger and less violent offenders?

While these are all very important issues, they are not new. They have been raised repeatedly over a number of years and yet have not been addressed. The Department of Correctional Services has also had over ten years to learn from the two PPP facilities that provide a service rating amongst the best in the world.  Prisoners spend most of the day engaged in productive activities. Every inmate receives three meals a day and eats with a knife and fork – something that does not happen in state-run prisons. Inmates learn life skills, take part in sport, have access to high quality health care, including mental health care.  All at more or less the same cost per inmate per day as it costs to house inmates in inferior conditions in state-run prisons. The key seems to lie in efficient management and incentive systems. The Department of Correctional Service however, has not yet been able to match what the private prisons are able to achieve by drawing on the lessons offered by these two facilities. 

Indeed there are many questions still to be answered about the best way to handle our prisoner population, and a policy review may not necessarily be a bad place to start. However, by calling for the policy review at this time the Minister risks losing the investment made by both the Department and Treasury, and thereby risks losing private sector confidence.  It is thus not unreasonable to require that the Minister is transparent about the nature, duration and format of the policy review and insist that positive change takes place in the Department under her watch.

The International Police Organisation (INTERPOL) General Secretariat will be hosting the 7th International Conference on Environmental Crime as well as the 22nd Wildlife Crime Working Group meeting in Lyon, France from 13th to 17th September 2010. The conference recognises that environmental crime such as illegal trade of wildlife products is a serious and growing international crime, with criminals violating both national and international laws and treaties that are in place to conserve the environment and natural resources therein. Thus, the transnational nature of environmental crime calls for the need for coordination and collaboration at the national, regional and international levels to combat this crime. This makes the Lyon conference important as it brings together environmental law enforcement officers and stakeholders to discuss and deliberate on issues related to environmental crime management.

The problem of environmental crime has been growing over time, which necessitated INTERPOL’s General Assembly to adopt a resolution that established an Environmental Crime Committee in 1992 to oversee all issues related to environmental crime in the member states. In the same efforts in 2009 INTERPOL General Secretariat established an environmental crime programme to mobilize the environmental law enforcement community and stakeholders globally to combat the scourge.

The conference in Lyon therefore is expected to bring together many of the world’s environmental law enforcement agencies and stakeholders who will share expertise, experience and knowledge ranging from identification, investigation, and prosecution of environmental crimes. It is further expected that the conference will improve and enhance coordination, cooperation and collaboration between and among environmental law enforcement agencies within INTERPOL’s 183 member states.

However, while the world recognises the efforts that INTERPOL has been making to fight and combat environmental crime, there are still some challenges. The growing trade of wildlife products such as ivory and rhino horns means there is demand for the products in some parts/regions of the world, which therefore provide reliable and competitive markets. In the past two years, for instance, the world has witnessed the seizures of thousands of kilograms of ivory and rhino horns in Asia, which are believed to have originated from the Eastern Africa region, Nairobi being the main point of exit. The seizures reveal that some countries in Asia provide safe havens for the environmental criminals to trade and sell wildlife products.

According to the Lusaka Agreement Task Force (LATF), between January 2009 and June 2010 there were 14 international seizures, most of them in Asia, involving over 21 000kg of ivory and rhino horns. These ivory and rhino horns, which were believed to have had originated from eastern Africa were seized in Malaysia, Hong Kong, Vietnam, Thailand and Philippines. Similarly, in August 2010 over 2100kg of ivory and 75kg of rhino horns destined to Malaysia were seized at Jommo Kenyatta International Airport (JKIA), Nairobi, Kenya. These and other seizures are testimony that there are high demands for wildlife products especially ivory and rhino horns in Asia. The question is whether governments in the Asian region are committed to fight and combat the scourge or whether they are part of the criminal syndicates. Reports show that INTERPOL networks conducted all international seizures, which indicates that fewer efforts are put in place by governments of countries at the destination, in this case Asian countries, to combat this illegal trade. Similarly, there are allegations that investigations of these environmental crimes, after seizures, have been delayed due to inadequate cooperation from investigators and institutions from source countries.

The continued trade in wildlife products from Africa to other regions of the world is due to a number of drivers including high profits that the perpetrators of environmental crimes generate from this illegal business. According to LATF a kilo of ivory, which is bought at $20 in Africa fetch over $1500 in the wealthy markets in countries like Japan, Malaysia, Hong Kong, Philippines and Vietnam.

Other drivers of illegal wildlife trade from Africa include the richness of the continent in terms of biodiversity including wildlife resources. Africa therefore provides potential sources of illegal wildlife products. Porous borders are another driver for continued environmental crime in Africa. Although borders are important tools for controlling movements of people and goods from one political entity or legal jurisdiction to another, Africa has long borders, which are unmanned, which enable environmental criminals to cross over without restrictions. Similarly, environmental criminals utilise weaknesses in import and export procedures both at the origin and destination countries to conduct their illegal trade in and out of countries. There also allegations of corruption practices where environmental criminals are believed to collude with law enforcement officers at the source, transit and destination points such as airports to evade apprehension and prosecution. In some instance environmental criminals/syndicates penetrate the political spheres, through corruption, to win/buy political patronage for immunity from exposure and prosecutions.

Since the economy of Africa particularly sub-Saaran Africa is highly dependent on exploitation of natural resources, continued environmental crime is likely to hinder economic development and peace on the continent. This therefore calls for concerted efforts by governments through judiciary, legal and security experts including environmental law enforcement agencies to come up with results-oriented strategies for curbing environmental crime. This will require political will, cooperation and common understanding among and between environmental law enforcement agencies and institutions in Africa and other parts of the world. Thus INTERPOL’s conference on environmental crime and Wildlife Working Group meeting in Lyon is a commendable effort in coordinating environmental law enforcement agencies, institutions and stakeholders in curbing cross-border environmental crime.

Guineans are voting in the second round of presidential elections on 19 September, more than two months after the first round held on 27th June. About two weeks before the election day, negative campaigning and provocative comments are however now emerging from the camps of the two main contenders in the poll, first-placed candidate of the first round Celou Dalein Diallo and second-placed candidate Alpha Condé.

The first one appears to believe that his comfortable 44 per cent in the first round, added to the support of the third-placed (13 per cent) and sixth-placed (3 per cent) candidates would arithmetically assure him victory come 19th September. Statements are therefore being made in his camp as to the “impossibility” of his alliance failing to win the second round vis-à-vis a rival that only garnered 18,25 per cent in the first round.

The second-placed candidate, on the other hand, does not think that his modest score at the first round reflected the true weight of his electoral base, a score he blames on “electoral irregularities” attributable to the electoral commission. He therefore does not see that score as an indicator for his fortunes in the second round, particularly given that the definitive results of the first round were based on only 52 per cent of the electorate. He seems to be comforted in this belief by the fact that not less than 90 of the 126 registered political parties have allied themselves with him, including the fourth and fifth-placed candidates with a total of about 13 per cent of the votes in the first round. Also, all the main candidates in two of the four natural regions of the country and some candidates and scores of political movements from a third region as well as Conakry are part of this “Rainbow Coalition”, as his coalition is called.
Considering that the voting in the first round was mainly made along ethno-regional lines, Condé also believes that there is no way he could lose the second round if the process were transparent.

Meanwhile, Diallo and his camp suspect the Prime Minister of the transitional government of being in favour of Condé, while the latter thinks that some members of the electoral commission deliberately “stole” his votes in favour of Diallo during the first round. Diallo is from the majority ethnic group, from which a Head of State has never hailed, and many in the group think this is their turn to rule the country. But Condé is 72 years of age and most likely believes that this poll is his last chance to ever becoming president in Guinea, which he thinks he deserves to be, having opposed all the successive governments since independence. He hails from the second largest ethnic group. Together, the two ethnic groups of the two candidates constitute nearly 70 per cent of the population.
These high stakes are now coupled with, or perhaps have led to, much negative campaigning by both camps, unlike the more “civilised” campaigning process observed during the first round. In reference to Diallo’s past services under Lansana Conté in various ministerial positions, including that of Prime Minister, Condé has reportedly lambasted his rival as representing a mafia responsible for the country’s economic woes. On the other side, a DVD has reportedly been circulating in the country containing some speeches of former military ruler, Moussa Davis Camara, in which Camara laments at Condé and other opposition leaders, denying them any sense of patriotism. Condé’s camp believes that supporters of Diallo doctored Dadis’ speech in a bid to discredit their candidate and destabilise part of his electoral base (due to alliance-building) that is still sympathetic to Dadis.

Clearly, positions are increasingly being entrenched between the two candidates and the media are not helping the matter. It is the aforementioned stakes and perceptions and these negative campaigns that constitute a source of preoccupation and justification to fear a possible post-electoral violence in the country.  The political situation is already quite tense.  For this reason, it is vital for both candidates to weigh the far-reaching implications of their statements. What is encouraging however is that all the national and international stakeholders are aware of these concerns and seem to be taking appropriate measures to control the situation. For example, leaders of many neighbouring countries, particularly those of Mali, Burkina Faso, Liberia, Senegal and Sierra Leone, have visited the country in recent weeks and met with the two candidates (and other national stakeholders) to whom they conveyed their concerns and urged them to control their utterances and their supporters.

Meanwhile, the ECOWAS-mandated mediator, president Blaise Compaore of Burkina Faso, has invited both candidates to meet him in Ouagadougou and reiterated what he already told them during his recent visit to Conakry, which is to be “civilised” in their campaigns and to commit to accept the results of the poll.  The International Contact Group on Guinea, initiated by the AU and ECOWAS and co-chaired by the two organisations is also holding its 15th periodic meeting in Conakry on 2-3 September in an attempt to calm tensions and ensure a violence-free election. Most importantly, the national electoral commission is striving, in collaboration with representatives of the two candidates and their alliances, to correct the mistakes identified during the first round.
Those are appropriate measures in the right direction, which need to be sustained throughout the transition period. In addition to this, the interim military ruler, General Sékouba Konaté, should also be encouraged to intervene more often than he currently is doing, so that the respect, but also fear, that all stakeholders have for him may deter any violence during or after the poll.

The new UN mission in the Democratic Republic of the Congo (DRC) was shocked when it received news on 12 August this year of the rape and assault of at least 154 Congolese civilians during an attack by two armed groups on the town of Luvungi in North Kivu province. The new mission, with a strong mandate to protect civilians and use force if needed, raised the hopes that the actions of the renamed United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) will change for the better as to the Protection of Civilians.

It is alleged that Rwandan Hutu Forces démocratiques de libération du Rwanda (FDLR) insurgents and Mai Mai militia executed the attacks. This all happened with a mobile operational base of 80 UN soldiers deployed 16 kilometers away in Kibua. The UN peacekeepers report that although they knew of the movement of the Mai Mai militia and FDLR insurgents in the area since the end of July, the incidents of rape was only reported to them on 12 August.

The number of people treated for rape stands now on 242. Aid agencies say that the UN and the Congolese army FARDC were warned of the activities of the rebels and militia and did not act. Exchange of gunfire between MONUSCO, and the FDLR and Mai Mai was however reported. This was not a coordinated effort and MONUSCO did not have detail on the operations of the FARDC.

The incident sparked reaction from the United Nations Security Council and on 25 August the Council held an emergency session to discuss and condemn widespread rape in eastern Congo. "We are horrified, and we are outraged.  This led us, in conjunction with the French, to request this detailed briefing this morning," said Susan Rice, the US ambassador to the UN, on Thursday. "It was a disturbing briefing, both for what we learned and what we still don’t know." The Secretary General of the United Nations, Ban Ki-moon in the meantime dispatched his Assistant for peacekeeping operations Mr. Atul Khare to DRC to work with Roger Meece, his Special Representative in the country. Mr Khare has already arrived in the country and is currently visiting the Eastern part of the DRC.

This incident must be seen against a history of attacks against the population in DRC ranging from assault, kidnapping and rape by the FARDC, FDLR and militia groups and accusations that the previous UN Mission (MONUC) and now the new mission MONUSCO do not implement the mandate to protect civilians.

This must be seen against the fact that the Security Sector Reform and Disarmament, Demobilisation and Reintegration process has not been completed leaving the government with an ineffective police, military and judicial system.

The FARDC is one of the biggest perpetrators of attacks against civilians. This makes it very difficult to execute its constitutional task to protect its citizens, but placing a burden on the UN mission MONUSCO to do it. To complicate things, the Government of the DRC wants the UN to withdraw its mission on the perception that its security forces will be able to ensure peace and stability, an assumption that seems wrong.

Where does it leave MONUSCO? The mission has a mandate to protect civilians and it is expected from the population and the international community to implement its mandate. Because of criticism, the previous mission, MONUC and the new mission MONUSCO has established an practical handbook for the protection of civilians as well as protection of civilian teams consisting of military, police and civilian personnel to be deployed in volatile areas to gather information in an effort to prevent such attacks or to mitigate it from happening.

The question raised in the Security Council of why the UN peacekeepers did not protect the civilians in Luvungi has been raised many times before in Goma, Bukavu etc. Can this situation be changed? Many lessons learned were noted over the last 10 years in the DRC, including leadership on all levels, clear guidelines on all levels on the implementation of the mandate and the rules of engagements, as well as the deployment of troops that are willing to use force in terms of the existing chapter 7 mandate. It is maybe time for the new mission to implement them.

In a great show of support for Africa’s Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba), Russian Federation President, Dmitry Medvedev has submitted two protocols attached to the Treaty of Pelindaba to the lower house of the Federal Assembly of Russia (parliament or Duma) for ratification.

This follows the Treaty’s entry-into-force in July 2009, when Burundi became the 28th African States Party, and the announcement by the United States of America at the Nuclear Non-Proliferation Treaty (NPT) Review Conference in May 2010 that it would submit the protocols to its Senate for ratification.

The Treaty of Pelindaba seeks to ensure that nuclear weapons are not developed, produced, tested, or otherwise acquired or stationed anywhere on the African continent or its associated islands. While enhancing both regional and global peace and security, it also provides for the promotion of co-operation in the peaceful uses of nuclear energy on the African continent.

As of 1 August 2010, all 53 African states, as well as the territory known as the Sahrawi Arab Democratic Republic, have signed the Treaty, and 29 countries have deposited their instruments of ratification with the African Union Commission (the Treaty Depository) - Tunisia having ratified in October 2009.

Like other Nuclear-Weapon-Free Zone (NWFZ) treaties, attached to the Treaty of Pelindaba are three Protocols for the five Nuclear Weapons States (NWS) and other relevant non-state parties to sign and ratify. The NWS are the United Kingdom, France, China, Russia and the United States, while relevant ‘non-state parties’ refer to France and Spain who are de jure or de facto in control of territories situated within the zone.

Protocol I calls on NWS not to use or threaten to use a nuclear weapon against any Party to the Treaty and against any territory within the zone. It has been signed by all the NWS and ratified by France, China and the UK. Protocol II calls on the NWS not to participate or assist in or encourage the testing of a nuclear explosive device on the continent. It has been signed by all the NWS and has, so far, been ratified by France, China and the UK. Protocol III calls upon France and Spain to apply the principles of the Treaty to the territories under their control. Since France and Spain possess islands within the African NWFZ, Protocol III is open for signature by these countries. France signed and ratified the Protocol in 1997, but Spain (which is a non-nuclear weapons state party to the NPT) has not done so. According to Spain, three territories controlled by the country, the Canary Islands, Ceuta, and Melilla (the latter two being coastal enclaves in Morocco) are an integral part of the European Union. Therefore, Spain insists that these three territories should not be included within the African NWFZ. Spain has also argued that the Protocol does not contain any non-proliferation or disarmament provisions that Spain has not already signed on to. Even though Spain cites its adherence to European Atomic Energy Community (Euratom) and International Atomic Energy Agency (IAEA) safeguards, which in its view contain provisions that go considerably beyond those contained in the Treaty of Pelindaba, this should not preclude them from adhering to the Treaty of Pelindaba. By adhering to the Protocols, these states would commit themselves to respecting the status of the zone.

Once Russia has ratified, it will provide a legally binding negative security guarantee that it will not use or threaten to use nuclear weapons against any African state and that it will not test nuclear weapons on the entire African continent as well as the following islands: Agalega Island, Bassas da India, Canary Islands, Cape Verde, Cardagos Carajos Shoals, Chagos Archipelago - Diego Garcia, Comoros, Europa, Juan de Nova, Madagascar, Mauritius, Mayotte, Prince Edward & Marion Islands, Sao Tome and Principe, Reunion, Rodrigues Island, Seychelles, Tromelin Island, and Zanzibar & Pemba Islands.

Russia signed both Protocol I and Protocol II in November 1996 relatively soon after the Treaty was opened for signature on 11 April 1996 in Cairo, Egypt. However, on signing, the Federation made it clear that it would “not use nuclear weapons against a State which is a party to the African Nuclear-Weapon-Free Zone Treaty excluding [emphasis added] the cases of invasion or any other armed attack on the Russian Federation, its territory, its armed forces or other troops, its allies or a State towards which it has a security commitment, carried out or sustained by a non-nuclear-weapons State party to the Treaty in association or alliance with a nuclear-weapon State”.

In addition and importantly, Russia could not regard itself as bound by the obligations under Protocol I with respect of the Chagos archipelago islands (Diego Garcia) as they do not meet the requirements put forward by the Treaty for nuclear-weapon-free territories. In the past, both the UK and the US have argued that Diego Garcia cannot be included in the geographical area of the Treaty of Pelindaba as it is a British possession used by the United States as a major military base. The US lease of Diego Garcia runs until 2016. However, UN resolutions 1514 and 2066 support Mauritius’ claims to these islands.

The map annexed to the Treaty (Annex I), explicitly includes the Chagos Archipelago although with a note in reference to the long-standing diplomatic dispute between the UK and Mauritius. The African Union has also issued a resolution urging the UK Government “to immediately enter into direct and constructive dialogue with Mauritius so as to enable the early return of the sovereignty of Mauritius.” While the airstrip on Diego Garcia played a central role in the war against Iraq and Afghanistan from 1991 to 2006, and by the United Nations during its military intervention in Somalia in 1992, it is not known if the US has ever stored nuclear weapons on the Indian Ocean island. It now provides oil storage tanks and shelters for US naval supplies, accommodates surveillance planes, jet fighters and military transport aircraft, and acts as a staging area for ground troops.

If, and when the US Senate ratifies these Protocols, it will be interesting to see if they recognise that their undertaking also applies to their activities on the island of Diego Garcia or whether they will include a reservation or declarative interpretation. If the latter, Russia will also not feel legally bound by its obligations under Protocol I with respect of the atoll.

Under Article 12 (Mechanism for compliance) and after entry-into-force, the Parties agree to establish an African Commission on Nuclear Energy (AFCONE) in order to ensure compliance with their undertakings. According to the Treaty, a Conference of all Parties to the Treaty shall be convened by the Depositary (that is, the African Union) as soon as possible after the entry into force of the Treaty. The Cairo Declaration, which was adopted on the occasion of the signing of the Treaty of Pelindaba, on 11 April 1996, clearly states that the first session of the Conference of States Parties to the Treaty shall be held not later than one year after its entry into force, and also endorsed the establishment of the headquarters of the African Commission on Nuclear Energy in South Africa [emphasis added]. The African Union is yet to host the Conference.

Foot Notes:

Russia backs African nuclear treaty. United Press International, 24 August 2010. http://www.upi.com/Top_News/Special/2010/08/24/Russia-backs-African-nuclear-treaty/UPI-65881282680525/

Statement by Secretary of State, Hillary Rodham Clinton to the 2010 Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons, General Debate, New York, 3 May 2010.

See www.reconnectafrica.com/…/challenging-colonialism-in-mauritius.html for an interview with the Mauritian High Commissioner to the UK.

Rachael Bradley, Diego Garcia - Britain in the Dock, IBRU Boundary and Security Bulletin, Spring 1999.

The influx of counterfeit goods in formal and informal Southern African markets came under the spotlight again at a recent workshop held in Harare, Zimbabwe. The Interpol Regional Bureau provided an appropriate setting for the discussion, which brought together representatives of some of the affected industries and police officials from twelve countries in the region. Of particular concern was the impact being encountered at present, and what can be expected in the future.

Counterfeiting means “unauthorized representation of a registered trademark, with a view to deceiving purchasers into believing they are buying the original goods.” Counterfeit goods may be defined as goods that imitate other goods, while being different (and usually inferior) in quality or value. Imitation is through the use of markings that are either false or misleading or both. Trading in counterfeit goods has a long history. In Southern Africa today, the variety of what is traded is endless, including consumable substances, such as pharmaceutical drugs. Money, clothing, cigarettes, toothpaste, soap, matches, spare parts for machinery and cosmetics have also been counterfeited. Four countries in the region, namely South Africa, Lesotho, Swaziland and Botswana have had recent experience of counterfeit currency notes. It has therefore become common to use the term commodities in preference to goods.

Worsening economic positions and declining health being experienced in many parts of the region have worsened the exposure to counterfeit goods. The workshop noted that there has been an increase in crimes that utilise a combination of theft, forgery and counterfeiting. In all countries this applies to the use of falsified passports, falsified academic certificates, as well as credit and debit cards. Because not all instances of counterfeiting are reported, and even where reports are made, losses have not been quantified, no accurate figures on the value of the counterfeit commodity industry could be given. It was however agreed that the trade in counterfeit commodities in the region is a multi-billion dollar industry. Case studies show that a fair amount of professionalism is involved in the production, distribution and marketing of the commodities.

As financial gain motivates trafficking in counterfeit commodities, it is inevitably accompanied by money laundering. Opportunistic organised crime networks have taken an interest either in producing and marketing counterfeit commodities or in reaping some benefit from them.

There is very little appreciation in the region of the harm attributable to counterfeit commodity trafficking. Unstructured surveys conducted in various countries ahead of the workshop showed that some influential officials who should know better even regard counterfeit commodities on informal markets as useful to poor people, on account of affordability. This is certainly so in respect of counterfeit sports clothing apparel and related paraphernalia that were so much in abundance during the FIFA World Cup in June and July 2010. A similar argument is raised regarding counterfeit DVDs and CDs. It is contended that if the producers of genuine commodities would only charge affordable prices, this would reduce the market for counterfeit commodities. In response to the ‘competition’ from counterfeit goods, prices should be adjusted downwards. The argument overlooks the factors that influence the cost of genuine commodities – which include tax, research, cost of labour, cost of other inputs, transportation and marketing. Counterfeit commodity barons are able to circumvent some of these costs and to charge a ‘competitive’ price as a result.

The workshop attempted to clarify where these barons operate from. Raids and interceptions in Zambia, Mozambique and South Africa show that some of the most enterprising counterfeit commodity barons in the region live amongst us. They include some that immigrated from China and from south–East Asia. The circulation of spare parts for luxury vehicles has been attributed to their activities. Innovative locals have partnered with these ‘foreign’ barons, and in some cases, set up in competition with them to produce counterfeit DVDs and fake branded clothing. Most of the counterfeit pharmaceuticals appear to emanate from beyond Southern Africa. The trade in them has ensnared reputable professionals, initially in east Africa but gradually in Southern Africa as well.

The last decade has been characterised by an escalation in the volume of counterfeit pharmaceuticals sold out of registered outlets in Zimbabwe to take advantage of the demand exerted by communicable diseases on poor communities. Dar es Salaam and other cities in east Africa have witnessed significant increases in counterfeit medication, prompting three major police operations co-ordinated by the Interpol bureau for East Africa. In Zimbabwe, the Medicines Control Authority teamed up with the police and customs authorities in November 2009 to mount Operation Zambezi in a handful of Harare suburbs.

In Operation Zambezi: ‘36 premises were found selling unregistered medicines, 6 of them being licensed pharmacies, 13 of them run by medical practitioners who were not licensed to dispense medicines, 3 were unlicensed nurses and 1 was a wholesale dealer. The remaining 13 were either running hair salons, or working from flea markets, selling mostly skin lighteners (which contained corticosteroids) and anti-histamines (which are used as appetite stimulants).’ (Rukwata, 2010)

The operations in east Africa led to the seizure of 100 types of pharmaceutical products from 236 establishments. They included anti-malarial, cardiac, anti-fungal, multi-vitamin, hormonal and skin medicines. More than 40 successful prosecutions ensued. (Interpol media release, 29 October 2008)

These successes notwithstanding, discussions at the workshop highlighted the absence of harmonised legal frameworks to prevent, detect and reduce the proliferation of counterfeit commodities. Only three countries appear to have relatively modern laws that could assist in evaluating the quality of traded commodities. In between ad hoc inter-departmental policing ‘operations’ there are no frameworks to guide collaboration among departments located in different areas of the state, or between them and private sector institutions. 

There is no shortage of enthusiasm from the private sector to clamp down on counterfeit commodities, which is understandable. A few associations are active in this sphere, such as the Anti-Piracy Organisation of Zimbabwe and the Consumer Goods Council of South Africa. Apart from the challenge of funding, non-state institutions are constrained by the absence of statutory authority to gather intelligence and act on it without involving government institutions. As was pointed out at the workshop, quite often time and valuable information get lost while consultation is going on to decide what to do. It was not surprising that the adoption of harmonised, co-ordinated laws was one of the priorities identified. The ISS committed itself to play a facilitative and consultative role in that process.

The announcement by the leader of the Democratic Alliance (DA) and Premier of the Western Cape, Helen Zille and the leader of the Independent Democrats (ID), Patricia de Lille, on the 15 August 2010, that the ID will merge with the DA highlights the precarious nature of opposition politics in South Africa. The DA is the official opposition party but its support was limited to 17% of the national electorate, predominantly based in the Western Cape.  The ID has struggled to retain its once promising rise in the Northern and Western Cape, garnering only four parliamentary seats in the 2009 election. The Congress of the People (COPE), a breakaway from the ANC in 2008, had a meteoritic rise and fall as factionalism continues to tear the party apart. The United Democratic Movement (UDM) an earlier breakaway from the African National Congress (ANC) and New National Party has not made significant inroads into the South African electoral landscape.

The ANC continues to enjoy overwhelming support, despite concerns about internal dissent, corruption and lack of service delivery. This we argue is because of a continued pattern of voter behaviour largely influenced by the politics of race and ethnicity and the legacy of the ANC as the bearer of liberation. Even opposition politics, though negated in rhetoric, utilizes the politics of race and ethnicity, taking us into a cul de sac that inhibits our ability to move beyond this narrative of identity based politics.

Analysis of the first three democratic elections in South Africa 1994, 1999 and 2004 predominantly viewed voting behavior in terms of race and ethnicity. The dominance of the ANC was therefore attributed to the fact that the majority of voters in South Africa are black.  Opposition parties also structured their manifestos on racially defined interests, as stated by Taylor & Hoeane in a 1999 article in Politikon. Well-known political analyst Steven Friedman explains that the key to identity politics is the belief by the voter that identity is used to “denote a social self definition based on criteria other than socioeconomic interest”. Identity then lessens the focus on issues of policy that parties uphold and are accountable for,  an argument that seems to hold given that the differences in policy between the parties appeared to be minute.

In 2009 the emergence of COPE presented an opportunity to move away from this discourse as COPE held the possibility of attracting support from all sectors of the population.  All analysis pointed to the fact that a viable opposition party could only come from the loins of the ruling ANC. However, the current internal dissension within COPE as South Africans proceed to the local government elections in 2011 make it timely to ask: what can be expected from a DA and ID merger? How and will this union escape race and ethnicity as a determiner for voter behavior in the 2011 local elections?

One should start by asking why after 16 years of supposed non-racial democratic rule have voters and political parties not been able to transcend the racial divides? Black voters vote overwhelmingly for the ANC, continuing to view it as the protector of their interests and as having given them back their dignity.  This is regardless that under its leadership South Africa continues to be a highly unequal society in which the African majority bear the burden of poverty. The DA’s support is largely White and Coloured. The ID’s support is Coloured. The UDM support is Xhosa. The United Christian Democratic Party support is Tswana speaking, whilst the Inkatha Freedom Party has not been able to move beyond Zulu based support in KwaZulu Natal. It is the failure of these parties to appeal to the national vote that gives credence to the belief that race and ethnicity are the key galvanising factors.  

When analyzing the nature of the ID and the DA then it appears that the ID is in greater need of a partnership with the DA. The DA has been increasing its support base in the Western Cape while the ID has been on the decline. But, the DA is limited in extending its support base to other sections of the population, most notably African, largely because it is deemed to be a White party. Though it has attracted substantial Coloured support, the face of the party, notwithstanding its inclusion of other groups, remains White. Adding De Lille and her supporters to their support base does not essentially change the DNA of the party though it slightly increases the numbers.  There have been overtures made to COPE and the UDM to join forces, but their reluctance yet again speaks to the politics of race: they do not want to be subsumed by a party still viewed as representing minority interests.

The DA can only grow into a party able to govern, if it can make in roads into the African constituency and go beyond the Western Cape. But what will it take to do this? Simply put, South Africa’s realities are still steeped in its apartheid past. Race is still the dominant criteria for life chances. Race still pre-occupies the political landscape where it was used to oppress people in the apartheid era and used as the lens through which power was to be acquired and distributed. In the post-apartheid era it is used as the basis for affirming the previously disadvantaged and continues to be the source of reference for leadership.  This means that in the foreseeable future there will be no White president in South Africa.  Helen Zille, no matter how strong her credentials as a politician will not be elected into the presidential office.

If she steps down as party leader will the party stand a better chance?  With de Lille probably not. But, then even if the whole leadership of the party was to darken its hue it still does not have the liberation credentials that the ANC can still use as its draw card. The DA will have to be content with the position of official opposition for a long time to come. The merger with the ID is unlikely to substantially change their position in the next election.

As long as inequity in South Africa continues to be reflected along the divide of race and ethnicity these variables will be used to determine political interest and therefore party support. Whites and Coloureds will see their interest more protected by the DA for as long as they remain in their enclave (the Western Cape) feeling threatened by the unknown in the other provinces. Blacks will not be able to look past the colour of the incumbents for their experience of racialised oppression is far too recent.

Approximately forty percent of the world population (about 2.5 billion people) lack access to adequate sanitation. One result is that human stool in open sewers sometimes cross open water lines or empty into water sources such as rivers, lakes, and streams that people depend on for drinking water. Industrial pollution and agricultural runoff exacerbate the problem, dumping dangerous chemicals into the water supply leading to the contamination of fresh water and coastal ecosystems.

In many developing nations, the existing under-dimensioned and aged wastewater infrastructure is already overwhelmed, and with predicted population increases and changes in the climate the situation is only going to get worse. Without better infrastructure and management, many millions of people will continue to die each year and there will be further losses in biodiversity and ecosystem resilience undermining prosperity and efforts towards a more sustainable future.

According to a UNEP-HABITAT interagency report up to 90 per cent of wastewater flows untreated into the densely populated coastal zone contributing to growing marine dead zones, which already cover an area of 245 000 km2, approximately the same area as all the world’s coral reefs. This situation poses a threat to food security, access to clean drinking water and providing major health and environmental management challenges.

The toll exacted on human health is staggering. Up to 4,500 people die everyday due to waterborne illness–more than deaths from HIV-AIDS, malaria, and tuberculosis combined.  Not surprisingly, diarrhoea is the second leading contributor to the global burden of disease with two and a half billion cases occurring in children under five years of age every year and an estimated 1.5 million of them dying from it annually.

Throughout Africa, the World Health Organization estimates that 40 billion working hours are lost annually in the search for water. People spend hours daily walking to fetch clean water, taking time away from more productive work and education. In regions where collecting water is time-consuming and dangerous, women and children bear the burden of the daily search for water. Often walking miles per day, they expose themselves to robbery, rape, and physical harm from carrying jerry cans on their backs or heads.

In Ethiopia for example, fetching water is both a daily ritual and a daily danger for women. In the countryside, only 24% of the people have access to clean water, and women walk an average of four miles for water everyday. Often contaminated with disease, the water they fetch causes sickness and death. The government has promised help, but it never arrives. The consequences are serious. Spending their hours in a day fetching water, women and children miss out on school and more productive work.

Water is also a constant struggle in Kenya, both in the cities and in the countryside. In Kakuma, the location of a refugee camp and the homeland of the Turkana people, residents not only have to walk for miles looking for water, but also dig for it despite there being a mechanical pump nearby. The Turkana people simply cannot afford the prices charged by its owner.

In the slums of Nairobi, the setting is different, but the challenges are the same. Government water lines do not penetrate the slums due to concerns about acknowledging the right of squatters to the land. As a result, private contractors deliver water at prices about 100 times its cost. Left without a choice, the poor drink water from pipes that leak and cross open sewers. Sanitation is non-existent—people prefer the flying toilet, also known as a plastic bag. To address the water quality problem, residents are adopting sunlight purification techniques using ordinary plastic bottles. It has reduced diarrhoea cases by 20% since the project started in March 2004. Still, water remains their greatest challenge.

The irony is that unlike many systemic crises around the world, clean water and sanitation are achievable goals. Water purification and sanitation technology exist at affordable prices, and returns on investment are impressive: A $1 investment in sanitation leads to up to $34 in return. The only thing in short supply is the political will for change. Governments in Africa should formulate and implement people centred policies in different sectors including the water sector.

The recently concluded 15th African Union (AU) summit which took place in Kampala from 25-27 July 2010 made it clear that the International Criminal Court (ICC) has not yet succeeded in winning the hearts and minds of African leaders. The summit reiterated its previous decision that AU member states should not cooperate with the ICC in the arrest and surrender of President Omar Hassan Al-Bashir of Sudan. The summit also delayed the opening of an ICC liaison office in Addis, censured the ICC prosecutor, and urged African states not to forget their obligations to the AU when considering cooperation with the court.

The AU has had a frosty relationship with the ICC ever since it issued the arrest warrant for Bashir on charges of war crimes and crimes against humanity in March 2009. The relationship grew colder when the court added the charge of genocide in July this year.

The most significant aspect of the recent AU summit decision is that it restates the agreement reached at the AU’s 13th summit in Sirte, Libya, in July 2009 in which member states decided that because the AU’s request to the UN Security Council (UNSC) for the deferral of ICC proceedings against Bashir had not been acted upon, member states would not cooperate in the arrest and surrender of the Sudanese president.

The 13th summit decision was widely attributed to the influence of the AU chairperson at the time, Libyan leader Muamar Ghadafi. With Malawi’s president, Bingu Wa Mutharika, now in the chair, the 15th summit decision was an unanticipated turn of events. But the main reason for the initial optimism about the course of Africa-ICC relations was the markedly more positive position taken towards the ICC at the AU’s 14th summit in January 2010 in Addis Ababa: member states were silent on the call for non-cooperation with the ICC in the Bashir matter, and encouraged constructive engagement by African states at the ICC review conference.

The outcomes of the review conference provided further reasons for optimism: the conference was successfully held in Kampala, on African soil, and the majority of African ICC states parties sent high level delegations who pledged their commitment to the Rome Statute system. Indeed, it was on the sidelines of the review conference that African states parties prepared a letter to the chairperson of the AU Commission supporting the opening of the ICC-AU liaison office in Addis Ababa. In further efforts to establish this office, ICC president Judge Sang-Hyun Song met in Addis Ababa with Dr Jean Ping, chairperson of the AU Commission on 9 July 2010 to discuss AU-ICC relations and the establishment of the liaison office. Taken together, all these events were surely a sign of better things to come for the ICC in Africa.

Against this backdrop, the 15th AU summit decision is disappointing for those who support the Rome Statute system as a central mechanism for tackling impunity for grave crimes. Nevertheless the decision confirms that AU concerns with the ICC are deep-seated and largely revolve around the Bashir indictment. It is this indictment that sparked AU concerns about the role of the UN Security Council in the work of the ICC; brought debates about the timing of peace and justice to the fore; and raised the thorny issue of prosecuting a sitting head of state.

These concerns motivated the AU to request the UN Security Council, in 2009, to defer the proceedings against Bashir for a year under Article 16 of the Rome Statute. When the UNSC failed to issue a formal response, the AU not only withdrew cooperation with the ICC in the arrest of Bashir, but also proposed that Article 16 be amended to transfer the power of deferral to the UN General Assembly should the Security Council fail to respond to a request for deferral within a period of six months. This proposed amendment is up for discussion at the 9th ICC Assembly of States Parties meeting in New York in December 2010.

How far African states parties will go in supporting the AU on the amendment of Article 16, or indeed the organisation’s other decisions on the ICC, remains to be seen however. When the amendment proposal was tabled at the 8th ASP in November 2009 by South Africa, only two other African states parties supported it. And since the AU first decided not to cooperate with the ICC on the Bashir matter, several African governments have confirmed their intention to fulfil their treaty (and in the case of South Africa, domestic) legal obligations to arrest the Sudanese president should he arrive on their territory.

The fact that individual African states parties do not clearly support AU decisions on the ICC has not escaped the intergovernmental organisation. The recent 15th summit decision called on member states ‘to speak with one voice to ensure that the proposed amendment to Article 16 of the Rome Statute [is acted upon],’ and more significantly, the decision ‘Requests Member States to balance, where applicable, their obligations to the AU with their obligations to the ICC’.

Tensions between states parties and the AU on the matter however persist, with the Sudan Tribune reporting on 17 August 2010 that Botswana Foreign Affairs and International Cooperation Minister Phandu Skelemani told reporters, in response to these clauses in the 15th AU summit decision: ‘We have not surrendered the sovereignty of this country to the AU’ adding that ‘the International Criminal Court (ICC) Rome Statute is signed by a Country not AU. Botswana does not fear being isolated by other African countries since they [Botswana] are implementing the international protocols they have signed’.

These latest developments suggest that much still needs to be done to foster, let alone build, confidence in the ICC at the level of the AU. Until the Bashir matter is resolved – one way or another – it seems unlikely that relations will improve dramatically. Given this, African states parties must be relied upon to take up the responsibility of ensuring that the Rome Statute system they signed up to works in the interests of African victims of mass atrocities.