Furaha-Joy Sekai Saungweme Regional Coordinator, Africa End Sexual Harassment Initiative (AESHI) Events of a catastrophic nature whether they be public health outbreaks, civil conflict, or economic instability are often experienced by women in a manner which is very uniquely linked to gender constructs. For this reason and in response to the global pandemic, the African Union’s Women, Gender and Development (WGDD) [i] produced guidelines intended to work in partnership with COVID-19 interventions which are tailored to meet the needs of women. The UN Human Rights’ East Africa Regional Office also partnered with the African Union Commission’s Gender Directorate to produce Seven Possible Actions- Women’s Rights and COVID-19 which is described as a ‘tool that States and civil society actors can use to monitor whether Governments are meeting their obligations and duties under international human rights law.’[ii] These two initiatives are cognizant of the existing socio-economic and cultural inequalities which justify and necessitate gender focused COVID-19 strategies and because sexual and gender-based violence are unfortunately inevitable offshoots of manmade or natural disasters they both make reference to this issue. The WGDD provides nine guidelines relevant for ensuring gender equality and women empowerment during this global pandemic. The most critical guideline addressing gender-based violence falls under the ‘Impact on women’s physical and psychological integrity’ category and was developed to address increasing and alarming reports of domestic violence, child marriage and online sexual exploitations resulting from the lockdowns. Guideline recommendations include setting up hotlines, budgetary allocation, information dissemination, online counseling services, safe houses, speedy prosecutions and police support. The next guideline which is intertwined with protection and prevention of violence against women outlined in the WGDD document is the category titled ‘Impact on women’s legal protection.’ This guideline recognizes that the ‘disruptive impact of COVID-19 on existing legal, social and judicial structures means that security, justice and social services are likely to be severely curtailed, leaving limited avenues to services, safety and justice such as for survivors of Gender-Based Violence’ and therefore recommends for judicial services to remain operational, for COVID 19 laws to be enacted through a gender lens and for the implementation of provisions in relevant gender focused regional instruments such as the Maputo Protocol[iii] and the Solemn Declaration on Gender Equality in Africa.[iv] In a similar vein, the Seven Possible Actions- Women’s Rights and COVID-19 publication under action 3 of its 7 point action plan also noted with concern rising cases of gender based violence and reaffirmed state obligations under for example the Maputo Protocol to eradicate violence against women. It mirrors most of the WGDD guidelines addressing violence but places more emphasis on technology innovations to assist women in reporting cases and assisting victims. The guidelines and actions plans are relevant and necessary yet they seem to exist in a vacuum as more cases of violence against women and children are exposed across the continent without most victims experiencing real interventions. Such gaps are more worrisome given that the perpetrators’ of violence against women in African countries are not just limited to intimate partners but include state sponsored violence which has witnessed security forces using excessive use of force when enforcing lockdown measures; in addition politically motivated acts of violence have continued with impunity in some countries and at a time where women who are subjected to violence and sexual perversions do not even have the option of escaping the country where the harm is occurring. It is imperative for African governments and African leadership to roll out an integrated gender response to the challenges resulting from COVID-19. Parliamentary responses to violence against women and the socio-economic inequalities disproportionately affecting women and the girl-child during this period must be specifically addressed. Nigeria has been one of the first African countries to begin to work towards this goal when the President Muhammadu Buhari led government announced the immediate inauguration of a Gender-Based Violence Management Committee,[v] after growing national outrage on increased levels of GBV. The progress of this committee must be carefully monitored and should be informed by the following factors: 1. The need to make the wheel of justice more accessible to victims and at risk categories of women and children by removing barriers to reporting and hostile court settings. 2. Ensuring that legislation on violence against women is developed in manner which is evidence based, taking into account national realities. 3. Allocation of resources including budgetary considerations must be directed towards the legislative priorities enshrined in addressing vulnerable groups of women and children. 4. Holding regular consultations with female parliamentarians, women’s organizations, civic society, grassroots activists and traditional leaders on development and implementation of gender sensitive COVID 19 policy responses. 5. Engaging and constantly negotiating with frontline workers such as nurses of whom a large proportion consist of women and work towards meeting their demands for safety, living wages and compensation as opposed to firing them or criminalizing peaceful acts of protests. 6. Creation of specific institutional mechanisms to monitor implementation and for the collection of statistical data. 7. Mandatory gender awareness training of security sectors especially the police. 8. Protect women’s rights and dignity in the workplace. Finally, there must be regional and national consensus that violence against women is unacceptable and carries severe penalties. This consensus building process requires the participation of everyone in a period where no woman or girl child can claim total immunity from the dangers and various factors that increase vulnerability to GBV during COVID-19. [i] Available at
[ii] Available at
[iii] Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa. Adopted by the 2nd Ordinary Session of the Assembly of the Union Maputo, 11 July 2003.
The Institute for African Women in Law is excited to release our latest project, the Pioneer African Women in Law Project (PAWLP). PAWLP is a digital archive documenting the lives and contributions of the first women in law and modern-day trailblazing women in law across Africa. This project falls under one of our focal areas— research. We have adopted a R.A.D.I.C.A.L approach in our documentation by: Restoring and preserving the historical agency of the African woman in law. Analytically appraising the contributions of the African woman in law. Demarginalizing the voices of African women in law. Intellectually centering the lived experiences of the African woman in law. Conscientiously mainstreaming the contributions of the African woman in law. Agenda setting for research on African women in law. Leading the wa for future generations of African women in law. Visit the page at: We are still accepting submissions, send as an email of interest with the name of the pioneer or trailblazer you would like to write about and we will get back to you. Email us at firstname.lastname@example.org.
Unveiling Subalternity: Women and the Legal Professions Across Africa
The Institute for African Women in Law (IAWL) in collaboration with Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) GmbH is organizing a 3-day webinar series from July 29-31, 2020 on the subject of women lawyers across Africa. Date: July 29-31 2020 Time (each day): 9am Eastern Time-US/: 1pm GMT/Gh: 2pm GMT+1/Lagos: 3pm SAT/Johannesburg: 4pm EAT/Nairobi Place: Click to Join Microsoft Teams Meeting ( You can join via web browser or the app) Wednesday, July 29: Conditioned to Silence? Gender-Based Discrimination in the Legal Profession Thursday, July 30: Shifting the Burden of Care: The Role of Law Firms Friday, July 31: Women in Law and Leadership Background In 1933, Stella Marke (neé Thomas) made history as the first Nigerian woman called to the (English) Bar in all of British West Africa. Since then, women have made progress in attending law school and entering the legal professions. Emerging research shows the incremental progress women have made as judges across Africa, as documented in a pioneering volume, Gender and the Judiciary in Africa: From Obscurity to Parity (Dawuni and Bauer, Routledge, 2016). African women have also made remarkable progress as judges in international courts as captured in International Courts and the African Woman Judge: Unveiled Narratives (Dawuni and Kuenyehia, Routledge, 2018). While research on women judges across Africa is slowly growing, little remains know about women as lawyers. Globally, there is a growing feminization of the legal professions as a record number of women are attending and completing law schools. How have women lawyers across Africa experiencing their positionality in a profession once considered to be the sole preserve of men? Is the legal profession gender neutral? How do women lawyers negotiate the multilayered and intersecting power hierarchies? How have women broken professional barriers and risen to important leadership positions? This 3-day webinar will help us unveil and contextualize the positionality of women in the legal professions across Africa as we discuss women lawyers—the challenges, contributions and leadership roles. For more information or follow up discussions, email us at
The Effect of Covid-19 on Women in Artisanal Mining
Tina Blazquez-Lopez Counsel, BCLP, Dubai Artisanal and small-scale mining (“Artisanal Mining”) is an extremely complex and widely diverse sector. There is no homogeneous definition and the practice ranges from wholly informal subsistence mining using handheld tools to operations which have access to mechanised technologies and small-scale processing plants. According to the International Institute for Sustainable Development 2018 the sector is estimated to produce approximately 80% of global sapphire production, 20% of gold mining, 20% of diamond mining, 26% of global tantalum and 25% of all tin. According to the World Bank, there are approximately 100 million artisanal miners globally in approximately 80 countries worldwide, 30% of which are women. Women face a number of existing challenges in Artisanal Mining and the impact of COVID-19 will not be gender neutral. The response to COVID-19 in the sector must recognise that women in Artisanal Mining communities are disproportionately impacted by the virus. Also, that women within these communities will be crucial to the successful implementation of any mitigation and recovery strategies. Women in Mining Women make up a large portion of the Artisanal Mining workforce and although few actually go into the mines, they are a significant part of the mineral value chain working in extraction, transport and trade of minerals. Activities undertaken include sorting, sluicing, washing, panning, sieving, mercury-gold amalgamation, crashing and amalgam decomposition. Women face a number of structural, institutional and cultural challenges in the mining sector. This has meant that their participation in the most value bearing activities is low. Challenges faced in the Artisanal Mining sector include lack of ownership, control and access to resourceful land and an inability to access finance to invest in essential equipment in order to upscale activities. Women working in the Artisanal Mining sector also lack access to technology and the geological data needed for successful mining operations. Market access is also low or non-existent for many women in Artisanal Mining. The Effect of COVID-19 on Women in Artisanal Mining The effects of, and measures introduced to contain the spread of COVID-19 are likely to exacerbate the existing inequalities faced by women in Artisanal Mining and further expose them to health and safety issues including increased gender based violence. Lockdowns have forced women back into the home where their share of unpaid work is likely to increase. School closures mean that women are more likely to take on the primary responsibility for childcare and housework as well as taking care of the sick and elderly. Many live in abject poverty and in communities with poor access to reliable energy, and internet access is either limited or non-existent. This will make any form of home schooling difficult and, unfortunately, some children may never return to school. Economic crises and severe external shocks can impact young girls disproportionately. Simple things such as access to feminine hygiene products can mean that girls stay in the home. Young girls may also be required to stay at home to assist with increased household chores and, in some communities, are at greater risk of early marriage. Pandemics and other crisis situations can also lead to increased levels of both physical and sexual based violence against women and children. Quarantine and forced social isolation coupled with poverty related stress can mean that women are left face to face with their abusers with no means of relief or escape. Access to Justice Access to justice for women is a key issue that must be addressed in the current pandemic. As lockdowns are imposed, courts in a number of jurisdictions have closed and proceedings delayed. In jurisdictions where access to justice for women is not always guaranteed, this causes great concern. The World Bank, in collaboration with the International Development Law Organisation, UN Women, UNDP, UNODC and The Elders Foundation, launched the “Justice for Women Amidst COVID-19 Report”, which highlights the challenges faced by women in times of pandemic. We are likely to see increased delays in adjudicating divorce, domestic violence and the issuance of restraining and child protection orders. Inheritance and land claims are also likely to augment existing case backlogs. In jurisdictions that do not have developed e-justice systems or capacity to operate remotely using video or tele conference facilities, the impact is likely to be greater. As part of the COVID-19 response, and as the formal court system struggles to adapt to the “new normal”, increased investment in customary and informal justice systems, which have been traditionally under-funded, may be beneficial. Leveraging Women in Artisanal Mining for Solutions Women form a significant portion of subsistence farmers, providing most of the labour required to produce food crops. The central role of women in food security and the management of household water and energy needs mean that they are acutely aware of the interlinkages between food security and mining and the environmental threat posed by Artisanal Mining. Women in Artisanal Mining are therefore well positioned to lead and to help to mitigate a number of the negative effects of Artisanal Mining. This will inevitably help to promote better practices and to build a more integrated and sustainable model for rural development. Access to open and affordable finance and credit lines is fundamental to the survival of small and informal businesses. Focused strategies for a COVID-19 response in the Artisanal Mining sector may include microfinance initiatives and gender focused banks in villages with incentives to encourage land ownership for women. Government and regulatory entities should also look at the process of how mining licences are awarded and how the criteria is applied to, and enforced with respect to, women. Networks which encourage the pooling of mining equipment and technology among women could also be extremely beneficial. Information sharing and providing access in local communities to the market price of commodities is also crucial in enabling women to achieve fair market value for minerals. The provision of institutional services such as affordable childcare facilities would also be a game changer. Targeting women with progressive education at all levels of the Artisanal Mining supply chain is also fundamental in promoting sustainable economic development and achieving a reduction in poverty. Basic skills training, literacy support and training in how to access information should also be a priority. Women should also be supported in the professions to become engineers, geologists, electrical engineers and surveyors. Conclusion As steps are taken to ease lockdown restrictions around the world, the effects of COVID-19 are likely to be long term. It is important that the road to recovery includes a gendered response if we are not to undo much of the good work already done in terms of gender equality and poverty reduction. Dr. James Emmanuel Kwegyir-Aggrey, a Ghanaian statesman, famously said, “If you educate a man you educate an individual, but if you educate a woman you educate a family nation.” Targeting women in Artisanal Mining has the potential to touch on all 17 of the United Nation’s Sustainable Development Goals. Therefore, gender equality, generally and within Artisanal Mining, must be a key priority for governments in order to achieve inclusive growth and sustainable economic and social development in a post COVID-19 world. Tina Blazquez-Lopez is Counsel in the law offices of Bryan Cave Leighton Paisner (BCLP) in Dubai.
Sexual harassment in the era of COVID-19 in Ghana: Is the law enough?
Bashiratu Kamal Gender Expert, Ghana Trades Union As the world continues to battle with the devastating effects of the novel coronavirus on economies and the lives of vulnerable workers, UN Women declared gender-based violence a shadow pandemic that is threatening the lives and existence of vulnerable groups—especially women and children. As disturbing reports about the upsurge in gender-based violence garnered attention from the world, there is silence on its perpetration in the workplace where women are especially vulnerable. Also, while there continues to be appreciable human and material resources available to address domestic violence in Ghana, not enough systems are in place to protect women workers against sexual harassment and other forms of violence in the workplace. Several research findings and reports show the importance of developing responsive mechanisms on gender-based violence as part of the recovery and containment measures of the pandemic. However, there has been no research to ascertain the increase in the vulnerability of women workers to sexual harassment and GBV at workplaces. Sexual harassment is a type of Occupational Safety and Health defined as a form of sex discrimination characterized by unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment. The introduction of different work systems in dealing with the fallouts of the pandemic by employers including shift systems, rationing and work from home have left some victims with their abusers or harassers. In other instances, abusers and harassers in positions of power could manipulate to get victims in shifts that allow them to carry out their inhumane acts. With the absence of legislations and policies in several countries to deal with workplace violence and sexual harassment, workers remain at the mercy of their perpetrators and abusers who are mostly in positions of power, and Ghana is no exception. Until the adoption of the new ILO Convention 190 on eliminating violence and sexual harassment at the workplace, workers relied on cumbersome legislative processes and interpretations to deal with cases of workplace violence and sexual harassment. Researchers like Heather McLaughlin have posited in the past that “a really large percentage of women quit their jobs” due to sexual harassment. Sexual harassment is an act most women make the difficult choice of keeping silent about for fear of losing their jobs or being alienated in the workplace. Any protection from existing legislations? Notably, this pandemic has left most women workers stranded with their harassers on shifts while others are stuck through uncertain and increased demands of ‘quid pro quo’ - a favor or advantage granted in return for something related to unequal power relations between the harasser and the victim. Quite often for majority of these vulnerable women, a refusal to succumb to the sexual advances mean a reason to be put up for termination, redundancy or lay off in moments when several organizations are undergoing restructuring, re-organizations or closure. Section 175 of the Ghana Labour Act 2003 (651) interprets sexual harassment as “any unwelcome, offensive or importunate sexual advances or request made by an employer or superior officer or a co-worker, whether the worker is a man or woman;” However, the law does not offer enough practical and sustainable protection for victims of the menace. Similarly, as provided for in Section 63 (3) b) of the Act, a worker’s employment is deemed to be unfairly terminated if “the employer has failed to take action on repeated complaints of sexual harassment of the worker at the work place.” Evidence has shown that many women refuse to take advantage of this provision for fear of being blacklisted for future references from the organization or being labeled as the black sheep. While there are no explicit parts or sections that comprehensively address sexual harassment, women workers may fall on provisions in section 9 (c) on the duties of employers that enjoins them to “take all practicable steps to ensure that the worker is free from risk of personal injury or damage to his or her health during and in the course of the worker’s employment or while lawfully on the employer’s premises.” Other provisions include section 118 (1) which stresses on “…works under satisfactory, safe and healthy conditions…” and section 119 (1) which allows workers to remove “…themselves from imminent and serious danger to his or her life, safety or health…” and protection to their remunerations in section 119 (2). Guaranteeing protection As noted earlier, existing legal protections and workplace initiatives do not adequately address the scale and seriousness of sexual harassment. Ghana needs a national workplace policy backed by the ratification of ILO C190 that puts all protective responsibility on employers and not victims. Since addressing issues of sexual harassment increases productivity and promotes respect for human dignity, we need stricter measures such as the establishment of structures to protect victims and clearer punitive measures to deal with this increasing trend of workplace gender-based discrimination. Similarly, the on-going review of the Labour Act 2003 (651) must reflect full commitments towards making the workplace safe from sexual harassment. Just like the #MeToo gave voice to survivors and victims, other strategic and creative methods should be adopted to create a common platform that supports advocacy and laws in dealing with the menace. These measures must be grounded in what women want, and that means listening to the voices of victims and advocates. As Trade Unions have shown the way with sexual harassment clauses in collective agreements, government must work closely with unions and businesses to develop policies and provisions in employee handbooks that address sexual harassment. The COVID-19 pandemic has lifted the veil of silence that victims of workplace sexual harassment suffer. From a human rights perspective, let us not standby idly as some women continue to suffer in silence. From an economic perspective, a sexually harassed woman means a less productive worker—why would any employer stand by and watch that happen? Bashiratu Kamal is the Gender Equality Officer for the General Agricultural Workers Union of Trades Union Congress-Ghana. She is a feminist, a gender and labor expert who believes in equality and equity of all persons. She is a graduate student at the Penn State University majoring in Labor & Global Workers Rights. If you wish to share a story or reach her Email: or Twitter: bkamal20002000
Quality Education in A COVID-19 Era: Formative Assessment Challenges and Worries of E-Learning
Blessing Onuora-Oguno* Globally, educational systems have been affected by the corona virus, resulting in school closures in all the affected countries. By March 28th, 2020, it was estimated that over 1.7 billion students were out of school. According to UNESCO monitoring, over 100 countries have implemented nationwide closures, impacting nearly 90% of the world's student population. The worldwide closure of schools has led many schools to introduce the e-learning platform. The worst hit in these categories are women and especially the girl-child who are more susceptible to losing out on education due to poverty, early child marriage, sexual abuse and domestic violence. In the ensuing discussion, I intend to assess the possible disadvantages of E-learning that defeat the purpose of formative assessment, and provide possible solutions to mitigate the effect of COVID-19 on quality education. Education is the process of facilitating learning or the acquisition of knowledge, skills values belief and habits. UNESCO classifies education to be a means of empowerment and transformation. Assessment is at the heart of the teaching and learning process. Formative assessment can be achieved through processes such as sharing criteria with learners, effective questioning and providing constructive feedback. To achieve quality and inclusive education there is the need to consider the impact of teacher use of formative assessment during the teaching and learning process with e- learning. E-learning is utilizing electronic technologies to access educational curriculum outside of the normal classroom environment by delivering teaching through online platforms. The disadvantages of e-learning are that the feedback students get is limited compared to the normal traditional classroom settings that students get when in class. Another disadvantage of e-learning is that it requires strong self-motivation and time management. In the use of formative assessment in the formal classroom, students are motivated especially with peer- to-peer activities. In order for students to get feedback regarding their performance during the teaching and learning process, teachers need to be proactive for the use of formative assessment to be effective. E-learning is a welcome idea for most people because it provides access to a wider audience. Child poverty is a universal problem and the use of e-learning is taking over the norms of the normal traditional classroom. E-learning is inaccessible to the less privileged and to the computer illiterate population, particularly the girl-child. How can the mandate of “Leaving no Child Behind” in this era of e-learning be actualised to increase education achievement generally and raise the performance of all students? This is applicable in the Nigerian context as the statistics on out-of-school children and poor completion rates of girls continues to be worrisome.E-learning is limited to some private schools and few privileged government schools where there is internet availability. Many schools in the rural and urban areas suffer from the lack of technological support and lack of expert guidance. According to the World Bank Report there are millions of children out of school. Acknowledging this impact on girls, the national High Commissioner for Human Rights (OHCHR), in a statement, stated that “girls globally have less access to the use of internet and cell phones than boys”. Teachers and students should be introduced to the offline e-learning platform to supplement the normal classroom teaching and learning process so that students who do not have access to the internet can benefit. Teachers and students especially the girl-child should be taught how to effectively use technology for instructional practice in the wake of such challenges in our educational system. For e-learning to be sustainable, provision should be made on how the less privileged can get access to the use of a computer and afford the expenses involved particularly in data accessibility. This can be achieved by sustainable approach to poverty reduction, teacher training to appreciate use of technology and perhaps increasing access to computers and internet by the creation of telecentres. Blessing Onuora-Oguno holds a B.sc (Ed) from the Ambrose Ali University Ekpoma Nigeria, she is currently an MEd. Student in Assessment and Quality Assurance in Education and Training at the University of Pretoria.
When COVID-19 Silences Core Principles of Democracy
Sarah Kam On April 16, 2020 as part of the fight against COVID-19 the government of Burkina Faso requested the approval of the national assembly, to enable the executive to legislate by ordinance any laws related to the fight against COVID-19. The National Assembly then, adopted on Tuesday May 5, 2020, the Enabling Bill. Does that mean the government is now all powerful and mighty? Under article 101 of Burkina Faso’s Constitution of June 2, 1991, an Enabling Act is a delegation of the legislative function to the executive branch of government. To put it simply, through the Enabling Bill, the National Assembly transfers to the executive, for a limited period, its power to legislate in the areas provided for. This is done to allow decisions to be enacted faster by the executive and to circumvent debates and possible blockages in the National Assembly. An enabling law is a device that exists in all modern democracies. In the case of Burkina Faso, the Enabling Law has been granted for a period of three months from May to July 2020, and orders should be taken in the Council of Ministers after consulting the Constitutional Council. Since the government is not required to make known the content of the orders it will take, the Constitutional Council must play its part by ensuring that a priori and a posteriori surveillance of the ordinances so that the laws made by the executive abide by the legal texts which pertain to a state of sanitary emergency. This somewhat abides by the separation of powers doctrine which ensures that a scrutiny mechanism is placed on the three branches of the state (executive, legislative and judiciary). In this case the judiciary will stop the executive from exercising beyond the powers that it has been given. So far, it appears that the judiciary still has an eye on the executive’s decisions, but how is this likely to trample the core principles of democracy? Well, the current political narrative of the country is not favorable to the passing of an Enabling Act. At the outset of the pandemic on March 9, 2020 in Burkina Faso, a curfew was imposed by the government and there have been many reports of abuses by police forces. The Prosecutor of the State only issued a warning against these practices, but no judicial proceedings were undertaken. For a few years now the judiciary has been under much criticism. The main criticisms are that judges have given the impression that they no longer care about the fate of the people; prominent files are piled up in the drawers, and litigants complain about the slowness of legal procedures. Sometime in February this year, judges had gone on strike because their salary had been cut by the government, but they did not receive any support from the population who rather upheld their criticism of the judiciary. Now back to the COVID-19 crisis, whereby the executive will be allowed to pass orders only under scrutiny of the Constitutional Council, subjected to social scrutiny and pressure, judges today find themselves between the hammer and the anvil. It is highly likely that judges will not effectively review orders before they are passed by the executive. They will be less willing to make opposing comments to passing of laws related to COVID-19 and risk judgement from the public and further affect the image of the judiciary. One might ask, how will the population know that judges are abdicating their functions of checking the executive? Well as in most African states, the people always find out anything that concerns them. Burkina Faso has known years of active terrorism, but no enabling law was passed since 2016; when the first terrorist attack occurred on January 15, 2016 targeting a restaurant and a hotel simultaneously. As the years pass, Burkina Faso is continuously faced with recurring terrorist attacks and one would have expected an enabling act to be passed long before the health crisis, to enable the executive to act expeditiously to curb the mounting terrorist threat. What then is the significance of such enabling law during a sanitary crisis? It is probably a favorable time for the executive to hold such powers? In such a context, where elections are due in November 2020, the passing of the Enabling Bill may be an opportunity for the President of Burkina Faso to extend mandates and postpone the elections. Consequently, granting of exorbitant powers to a government during an election year—even in the face of a global pandemic, can be dangerous for democracy. Sarah Kam is a Policy Analyst based in Burkina Faso. She has a Masters in Law (LLM) from University College London.
COVID-19: A Threat to Decent Work & the Law in Ghana
*Bashiratu Kamal With an increase in the number of novel coronavirus cases in Ghana, the country continues to witness a surge in people’s vulnerabilities and a recorded increase in inequalities between and amongst people of different classes, status, gender and especially workers in the labor market. The pandemic continues to affect the world with millions of workers being impacted negatively. The world is witnessing a progressively weakening bargaining power due to globalization which has brought an increased uncertainty and insecurity in the world of work. The outbreak of COVID-19 has become an emerging threat on the decent work agenda and achievement of the United Nations Sustainable Development Goals. According to the International Labour Organization (ILO), decent work involves opportunities for productive work that delivers a fair “income, security in the workplace, social protection and the freedom for people to express their concerns. It also recognizes the right of workers to organize and participate in the decisions that affect their lives and equality of opportunity and treatment for all women and men. As a country, Ghana introduced measures including promoting entrepreneurship and job creation aimed at achieving the pillars of decent work – job creation with full and productive employment, adherence to International Labor Standards that guarantee rights at work, social protection that emphasizes stability and security and the promotion of social dialogue. It also aims to promote equal treatment and opportunity whiles guaranteeing social security and the ability to join or form a trade union for all categories of workers. Unfortunately, the Ghanaian labour market has been bedeviled with people losing jobs through terminations without benefits and no regard for what it means to work for these vulnerable workers to meet their basic needs and that of their dependents. In all of these, there has been a discrepancy in attempts by employers to severe the employment relationship with workers. Whiles employers experienced the effects of the pandemic differently; their actions have been similar in pulling the termination button. It is important to also acknowledge that, the Labor Act 651 (2003) is silent on how an employment contract should be severed during a pandemic. While emphasizing redundancies in section 65 during re-organization, restructuring, and termination in section 15, the Act misses out on procedures and reasons in the event of layoffs. Meanwhile, as some employers close down their factories, suspend production or re-structure work during this pandemic period, they are mostly terminating employment contracts except for Unionised workers who are adequately protected through the representation of trade unions. Is the law enough? The rights of workers have been threatened severally since the emergence of the new forms of employment like outsourcing, casualization, and subcontracting which blur the status of workers as stakeholders in organizations. Ironically, Article 21 (e) of the 1992 Constitution guarantees “freedom of association, which shall include freedom to form or join trade unions or other associations, national or international, for the protection of their interest” which is further stated in the rights of workers in Section 10 (e) of the Labour Act 651 (2003) that a worker has the right to “form or join a trade union.” Unfortunately, this right has been abused by employers through the help of recruitment agencies who help in breaching Section 75 (1) of the Labour Act 652 (2003) which stipulates that “a temporary worker who is employed by the same employer for a continuous period of six months and more shall be treated under this Part as a permanent worker”. Workers who attempt to join unions are threatened with abrogation of contracts, no over time or non-renewal of contract after expiration. An increase in the threat of job losses due to technology and growth in ghost or invincible form of work exposes the failure of some employers to comply with provisions of Section 9 (d) of the labour Act 651 (2003) enjoining employers to “develop the human resources by way of training and retaining of the workers” and further reiterated in Section 10 (e) under the rights of a worker “to be trained and retained for the development of his or her skills”. This will contribute to preparing workers for the emerging Information Communication Technology (ICT) revolution that threatens their livelihoods and is a core component of the future of work and industry 4.0. Cumulatively, there is equally the threat on the social securities of workers especially on pensions and other benefits as workers continue to suffer pay cuts, no wage and job losses. Next steps It is paramount that all ambiguities’ creating the discrepancy on redundancy, layoffs and termination of employment sections in the Labour Act 651 (2003) be properly defined during periods as this as the review of the Act is on-going. Stakeholders in the labour market especially workers and their trade union representatives have a duty to ensure the enforcement of laws and legislations binding employers to be responsible for guaranteeing decent work. Government need to resource relevant institutions like the National Labour Commission, Labor Department and inspectorate division who have the duty to ensure compliance in protecting workers. Our Social Protection interventions should include consolidating protection for women who are active in the labour market by guaranteeing their rights against all forms of discrimination, exploitation and harassment. Corporations and employers should be discouraged from continually squeezing blood out of vulnerable workers. These corporations and companies are unfairly terminating the employment of workers without benefits, only to turn around and donate huge sums of money to the COVID-19 relief fund. To quote Anita Roddick, “the business of business should not be about money, it should be about responsibility, it should be about public good, not private greed.” Bashiratu Kamal is a Gender Equality Officer for the General Agricultural Workers Union of Trades Union Congress-Ghana.
Challenges Facing Women of Colour in the Legal Profession in South Africa
Mollica Dubey Maharaj Rahman and Rahman Law, Gauteng, South Africa In the late 1990s, the South African Department of Justice stated that the legal profession in South Africa needed to be transformed not only to cater to the legal needs of South Africans from all backgrounds, but also to ensure that the profession represents the diversity of South African society. For example, last year, a group of senior women lawyers wrote a letter to President Cyril Ramaphosa expressing their outrage that no female advocates of colour were appointed to assist the National Prosecuting Authority (NPA) with state capture prosecutions. The appointment of male prosecutors was justified by the appointing authorities by the fact that those lawyers were well versed on the case. This highlighted the status of female lawyers of colour, revealing that they do not share the same access to opportunities as their male counterparts within the field. While black female lawyers remain underrepresented in the legal profession, many have opened their own practices and provide the necessary legal services required by their clients. The 1996 Constitution of South Africa grants women wider representation, but more transformation is needed because female lawyers of colour still face many hurdles on their path to building a career in law. This blog post will look at a few of the challenges that women of colour face in the legal profession in South Africa. 1. Lack of basic skills The observation in the legal fraternity is that graduates are not adequately skilled in areas such as comprehension and reading ability. The appointment and adequate training of female paralegals of colour would help mitigate the imbalance by giving them the experience they need to excel with these skills. 2. Reinforcement of gender stereotypes The misconception that women lawyers are less capable of doing their job persists. Many female lawyers of colour suffer with ‘imposter syndrome’ – the idea that they are not good enough to be in the field. It is perpetuated by the assumption that race and gender determine capability. According to this interview with Belinda Mapongwana, this limiting belief prevents them from taking on challenging cases and pursuing leadership positions. 3. Workplace harassment A survey conducted by the International Bar Associations revealed that South Africa has the worst rates of bullying and harassment within the industry. According to the report, only 42% of South African respondents said they had confidence in those responsible for handling their complaints, and only 7% of legal professionals had undergone relevant training. Towards transformation While government has an important role to play in creating pathways for graduates to enter the field, it is up to the public and private sectors to ensure that these opportunities are made available to those that need them most. This applies to the legal sector as well. At Rahman & Rahman, we believe that transformation in the legal sector is the key to unlocking the potential of young lawyers from previously disadvantaged and vulnerable backgrounds. Our programmes are designed to equip graduates with the skills they need to pursue a fruitful career in the legal sector and contribute meaningfully to the legal sector. Rahman and Rahman began the paralegal empowerment and transformation programme in 2014 to do just that – provide young graduates an opportunity to put their theoretical knowledge into practice, thereby preparing them for the real challenges of the legal profession. We urge and encourage other BBBEE businesses to commit to a training programme which will mitigate the impacts of gender imbalances.
COVID-19: Indian Judicial System Moving Beyond the Traditional Conventions of ‘In-Court’ Hearings
Rishika Arora Advocate, Delhi High Court, New Delhi (India) The outbreak of COVID-19 rapidly escalated into a global pandemic. The 1918 influenza pandemic killed approximately 50 million people and arguably as high as 100 million in 1918–1920. As a driver of incremental mortality in the last century, few other events even compare: total deaths from World War II are estimated to be between 35 and 60 million, and HIV/AIDS has killed nearly 40 million people since the start of the epidemic. Moreover, despite enormous advances in medicine and scientific understanding, and the containment of recent pandemic threats such as severe acute respiratory syndrome (SARS), H1N1 influenza, and, eventually, Ebola, we should not be complacent about future risks. The draft COVID-19 ‘Operational planning guidelines to support country preparedness and response’ prepared by WHO on 12th February, 2020 as Strategic Preparedness and Response Plan of 12th February, 2020 prepared by WHO outlined the public health measures that need to be taken to support countries to prepare for and respond to COVID-19. The preparedness and response plan urged political action in order to prepare for health emergency and to mitigate the effects of the global health emergency. The health emergency preparedness and response plan required not only State actors to be involved in the process but also community-participation and engagement that included identifying trusted community groups. Thus in essence it required each and every sector of the society to prepare for the health emergency and prepare a response plan to mitigate the effects of the health emergency. COVID – 19 hugely impacted all of us from all walks of life, and the legal fraternity is no exception. The world is facing a major economic crisis due to loss of manpower, retrenchment, lay-off and closure of businesses. Finance Ministry, Government of India on 19.02.2020 issued an office memorandum stating that the current pandemic as a force majeure event. In the light of the global outbreak of COVID-19 the Government of India came out with several advisories, guidelines and notifications/orders keeping in mind the safety of the people. The Ministry of Health and Family Welfare, Government of India issued an office Memorandum on 5.03.2020 cautioning against mass gathering and mass congregation. The Indian Judicial system while maintaining it’s reputation to administer justice started hearing matters of urgency initially by reducing the individual presence in the court room and thereafter by enabling video conferencing facility. The courts had started taking strict precautionary measures from 13th March, 2020. The Supreme Court of India being the highest court in India exhibiting statesmanship issued notification to minimize physical presence in courts. Immediately thereafter the respective lower courts had started taking precautionary measures to declutter the crowded courts in India. There were temperature guns at every entry point of the Courts to test the temperature of lawyers and litigants entering the premises. The Supreme Court, High Courts and lower courts were hearing only matters of urgency. The physical presence in the courts were reduced and the Supreme Court of India and High Courts adapted to video conferencing to hear matters of urgency. The courts had asked the lawyers and staff members to vacate their premises for sanitation. The Indian Judicial system moved beyond the traditional conventions of ‘In Court’ hearing to hearing matters via video conference. During these testing times when the economy is on standstill and the courts are closed, it was not just the Indian Judiciary that took on the leadership role. The Bar Council of India, State Bar Councils and the State Bar Associations demonstrated a great sense of responsibility towards the fraternity by announcing Financial Assistance for lawyers in financial need during the lockdown. The Supreme Court Bar Association started a COVID-19 helpline scheme for providing financial assistance to lawyers in need during the lockdown period. The Delhi High Court Bar Association was the first amongst the other State Bar Associations to extend ex-gratia relief to advocates who have been severely affected by the lockdown. The Bombay Bar Association extended help to both members of the bar and non-members in providing financial assistance. Kerela High Court Lawyer Association launched junior scheme to help junior lawyers. The Bar Council of Delhi invited applications from advocates who are in financial need in light of loss of income due to the lockdown. The money is being transferred directly to advocates bank accounts from the allocated fund of USD 303560 (i.e Rupees Two Crore Thirty One Lacs and Ninety Five Thousand). The Bar Council of Tamil Nadu and Puducherry called for application up till April 20, 2020 and mobilised close to USD 87688 (i.e. Rupees Sixty Seven Lakhs) as lockdown relief fund. Karnataka State Bar Council (KSBC) launched a KSBC Covd-19 Advocates Relief Fund to help young, women and financially strapped lawyers practicing in the State. Odisha Bar Council issued financial assistance scheme to assist young lawyers having less than 10 year practice. The Allahabad High Court while hearing a case suo-moto sought detailed report from Bar Council of India as well as UP Star Bar Council regarding assistance to the needy advocates and the steps taken by them to ensure their well-being. The pandemic has made us realise not just the value of human life, but also a sense of solidarity and empathy that has never been experienced before. There seems to be a transformation and evolution in approach where the old conventional ways are giving way to the new normal. The need for space to conduct a hearing is no more an obstacle with video conferencing being introduced. Moreover we are saving the time and resources spent in travelling from one court to the other. The traditional way of court proceedings are seeing a new modern turn with technology which is not just an easy medium to hold the proceedings but might just be a solution to a lot of problems faced by the Indian Judicial System due to lack of space and time.
Impact of COVID-19 Legal Measures on Widows in Nigeria
Fatimah AbdulRasaq, Ph.D., Senior Lecturer, Faculty of Law, University of Illorin Ayinla Lukman, Ph.D., Reader, Faculty of Law, University of Illorin The outbreak of the COVID-19 pandemic means different things to different people. While pharmaceutical companies and technological industries globally see the pandemic as an opportunity to make profit, others consider it a threat to their socio-economic activities. However, the majority of people see it as a life threatening and unprecedented phenomenon, especially considering its rapid global spread. Meanwhile, COVID-19 has complicated the psycho-social and economic challenges of widows in Nigeria— a phenomenon not being talked about. Apart from the psycho-economic and emotional brunt of losing a bread winner to death, the economic burden shouldered by widows in Nigeria has also received a dampening threat as a result of the various regulations from government to curb the spread of the pandemic. Hence, COVID-19 pandemic has thereby increased the vulnerable status and plight of widows amidst government struggle to combat it on the one hand and has put widows in dilemma of shouldering personal and children economic needs on the other hand. Unfortunately, widowhood is a social phenomenon that cannot be eliminated or avoided; widows are not only exposed to the brunt of various regulations set in motion by government to flatten the curve of COVID-19, but also pressured to adapt to threatening socio-economic impacts that consequently arose from those regulations. Globally, women are likely to experience significant burdens on their time given their multiple care responsibilities as school closures and confinement measures are adopted, possibly leading to reductions in working time and permanent exit from the labour market. In this context, widows, many of whom are not prepared for emergency situations as this, are forced to take extreme and dishonourable means to survive the legal impacts of COVID-19 pandemic and consequential measures due to the entrenched gender roles among African homes. Further, the widows that were economically empowered before the emergence of the pandemic are now facing intense pressure on their resources by unprecedented increase in demands from their children amidst government restrictions which confine means of livelihood. Most alarming is the condition of widows who lost their husbands in the wake of the COVID-19 pandemic in Nigeria. Apart from the legal impacts of government regulations, religion and cultural regulations also make immediate confinement obligatory for widows within some specified period. Government lockdown measures further complicate their plight since close relatives that are usually expected to lend helping hands are also confined under government lockdown. Additionally, in lower income geographical settings such as Nigeria, women are largely engaged in informal work and other vulnerable forms of employment (e.g. self-employment in small subsistence businesses and domestic works), which often leave them out of formal social protection measures targeted at workers in the informal sphere. A review of the various measures put in place to curb the spread of COVID-19 in Nigeria revealed that the most vulnerable sectors in the country are targeted. The relief packages from the Federal government, State government, private individuals, and non-governmental organizations are aimed at assisting the widows, orphans, persons with disabilities, children and small scale business owners that are most affected by the lockdown measures across the country. However, there is no assurance or verifiable parameter to ascertain the rate of accomplishment or implementation of these relief packages. Despite the huge resources dedicated to this laudable policy as announced in the media, the outcry or distress calls from genuine vulnerable groups such as widows make a mockery of the whole exercise. There is no evidence to corroborate the success of the direct cash transfer and other palliative measures to the widows in states across the country, thus reducing the whole program to unrealistic ideas without any manifest impacts on the vulnerable, due to the long duration of the lockdown. The legal impact coupled with the religious and cultural impacts of COVID-19 on the plight of widows in Nigeria is difficult to measure. Apart from the multiplier effects of the lockdown prescribed by the government to prevent the spread of the contagious disease, widows are often subjected to extreme inhumane treatments and oppression from the family of the deceased under the guise of observing or upholding rituals prescribed by culture or religion, causing multiple negative effects on the psycho-emotional conditions of the widow. In essence, the legal impact of the restrictions order not only affects psycho-emotional well-being of widows resulting from emotional, physical and sexual exploitation commonly orchestrated by the family deceased, it has also increased poverty, economic exploitation and hardship due to lack of physical and emotional capacity of widows. Widows who are pressed by personal and family demands amidst basic inadequacies often succumb to decadent advances, exploitation and deceit that they are forced into as a result of COVID-19 and a pure desire to survive. In conclusion, the legal and socio-economic impact of COVID-19 on the plight of widows in Nigeria is difficult to measure accurately. Thus, the restriction order among other things places a burden on widows, further complicating the existing economic, financial and emotional pressure on them. Despite the relief packages and palliatives provided by government, private individuals and organizations to the populace, much ought to be done to specifically target the welfare of widows and ensure that their plight is positively addressed.
Law versus Coronavirus: Issues of Legality, Necessity and Adequacy
By Babacar Kanté, Ph.D. Former Constitutional Court Judge, Senegal Former Professor and Dean, Faculty of Law, University of Gaston Berger According to many experts, the new coronavirus which emerged in December 2019 is no more serious than other pandemics mankind already experienced. Nevertheless, it is unprecedented, both in terms of its brutal and speedy spread, as well as its wide-ranging political, economic, social, cultural and environmental impact. By April 2020, four months after its emergence, it had affected two hundred and four (204) countries and territories, that is more than the total United Nations membership, and the death toll standing at 364,000 as of 30 May 2020. In this chaotic situation, governments are endeavoring to provide emergency responses, in almost every aspect of public and private life, giving at times the impression of muddling through rather than implementing a well-thought-out strategy. Among the measures taken, legal acts account for a quantitatively and qualitatively important place. Indeed, a series of legislative and regulatory acts have been taken, in order to establish a state of health emergency and thus provide legal basis for the various measures envisaged. These decisions put legal doctrine into a terrible state. These measures trigger various reactions because, while their objective— the right to health, is given a constitutional rank, they carry the risk, whether real or potential, of infringing on fundamental rights or civil liberties. Such violations deserve all the more consideration since measures such as the lockdown or closure of public places, applied on a very large scale, relate to fundamental rights such as freedom of movement or assembly, concern sometimes the entire population of countries where they are applied and in some cases cover the entire national territory of the States where they are in force. The observations of the doctrine are commensurate with the importance of the special measures taken by government authorities. Their conclusions are often skeptical, sometimes critical and rarely positive. The issue with the matters covered relate to consideration of the legality and expediency upon which the legal acts are based. But it is important to recall the background, and the factors in the light of which the authorities act. Indeed, solid analysis of these elements is required in order to take the hubris out of the debate and assess "objective subjectivity." The fundamental question is whether, and to what extent, the law can or should be conceived as part of the strategy to combat the new coronavirus and not as an instrument to repress people through the exceptional circumstances of the health crisis? It is particularly sensitive because it means evaluating the trade-off between a sanitary requirement and a constitutional one. The authorities are thus reduced to attempting to reconcile apparently conflicting requirements such as focusing on effectiveness and respect for the rule of law. Assessing the expediency and constitutionality of laws and administrative acts taken by government authorities faces several challenges, one of the most important being their adequacy. Answering the question ultimately implies conducting a proportionality test on them. It covers their compliance with the judicial theory of exceptional circumstances. The challenge facing administrative police measures, even in the context of a health crisis, is to avoid shifting from limitation to restriction on freedoms. As much as limitation is necessary to prevent disruptions of public order, restriction that deprives freedom of its meaning is unacceptable. One of the legality requirements of such measures is to comply with this balance. This review is well known under administrative law; however, the sensitivity of health matters makes its application particularly delicate. Even in the case of pandemic-related measures, its terms and conditions remain the same. They can be briefly recalled. They should consist in ensuring that they are not only necessary but also adapted to pursuing continued satisfaction of public interest. 1. Necessary Nature of the Measures Taken In order to be legal, the measures taken must be necessary. But in the context of the new coronavirus, where scientists and politicians are caught off guard and learn daily about the virus on an urgent basis, sometimes by improvising, it is not easy to appreciate the necessary nature of the freedom-restricting measures that are taken. There is no unanimity on either the characteristics or the evolution of the pandemic, which could serve as a criterion for assessment. What discretion then does the lawyer have to assess the legality of these measures in relation to this classic legality requirement? Prudence and humility are required. 2. Adequate Nature of the Measures Taken Measures taken in response to the pandemic have, in principle, a public health purpose. But, in a situation of scientific uncertainty such as the one created by the new coronavirus, how can we judge, beyond sensitivities, anxieties and fears, the adequacy of the measures taken in relation to the objective of preventing infections? It needs to be recalled that the favorite domain of application of the proportionality principle remains the administrative police, which aims at preventing disruptions to public order. The definition of public order is essentially within the purview of the constitutional or administrative judge. Will the new coronavirus be an opportunity to give new content to this concept? Unfortunately, a definitive answer seems premature. There is a great deal of concern in the legal doctrine. The fear is that governments, under the pretext of combating the pandemic, will take legal acts that infringe on the rights and freedoms of citizens and surreptitiously pass them into the general law. However, it is to be hoped that, when they emerge from the lockdown, constitutional and administrative courts will resume, under normal conditions, their role as watchdog and guarantor of the rule of law, which will then emerge strengthened from this health crisis. Professor Babacar Kanté is currently a Visiting Researcher at the Institute for Advanced Studies (IMÉRA) AIX- MARSEILLE UNIVERSITE where he is working on "Structural Transformations and Structural Dynamics in Francophonie."
By Jeannette Bayama Burkina Faso, like most countries, has been shaken by the coronavirus pandemic commonly known as Covid-19, which was brought into the country on March 09, 2020, by an evangelist couple after a trip to France. To date, over 800 positive cases and close to 50 deaths have been reported. The worsening situation compelled the government to take drastic measures on March 20, 2020, to curb the losses of lives and the livelihoods of people. These measures include, among others, the lockdown of all cities with positive cases of COVID-19, the closure of major markets, the confinement of people and, the shutting down of schools and universities. Unfortunately, thousands of people, predominantly women, found themselves without any source of income. Besides, the measures enacted by the government to cushion the adverse effects have proved inadequate and insufficient to uplift the affected communities. Koudougou, a town located 100 kilometers from the capital city, Ouagadougou, in the mid-west, has been hard hit. Although it has registered a few positive case so far, its economy has been severely affected as most cities in the country. Well-known for its mass production of mangoes, Koudougou is also the preferred venue for seminars and workshops. Regrettably, it sits between Ouagadougou and Dédougou, two cities locked down because of the pandemic. As a result, all economic activities were brought to an abrupt halt: seminars and workshops, weekend visitors for cultural events, pubs and nightclubs, everything vanished. We went to meet a group of women, who sell mangoes a few yards away from the National Office for Water and Sanitation (ONEA) to inquire about the progress of their sales in these times of the lockdown. Noéllie YAMEOGGO, one of the vendors, has been selling mangoes for more than two decades. She has no income-generating activity other than the sale of seasonal fruits and tuber (Papaya, Guava, sweet potatoes, yams). Her business collapsed during the lockdown. Her mangoes got rotten for lack of buyers. In a similar vein, Rasmata KAMOUNI has done the same business for over twenty years. When mangoes are out of season, she usually sells condiments such as cabbage, onions, and fresh corn. This year, Rasmata remarked that she has earned only a quarter of the turnover she usually makes every year. Moreover, when the mangoes are ripe at the same time, to avoid unnecessary losses, they are compelled to break down the prices to ensure a quick sale. These two examples point to the challenges most women face across the country. The logical question that springs to mind is the issue of sustainability. What is the best way forward? What should or must the government do to achieve women's self-reliance? The women themselves have suggested the best course of action. They want the government to provide them with training to acquire skills in mangoe processing (in jam, jelly, syrup, dried mangoes, candies, etc.) as a way to secure their income-generating activities for the well-being of their families. Jeannette Bayama holds a Master’s degree in journalism from the University of Ouagadougou, Burkina Faso. She is currently working for Caritas Burkina, and actively involved in social work, education, and advocacy. Jeannette is passionate about women empowerment and self-reliance.
Covid-19: Courts and Domestic Violence Cases in Kenya
By Ann Shikongigi Advocate of the High Court of Kenya The Ministry of Public Service, Youth and Gender Affairs has reported a 42 per cent increase in the number of domestic violence cases in Kenyan homes. This increase is partly due to the curfew and partial lockdowns imposed as part of measures to curb the spread of the coronavirus pandemic. Being locked at home has made it a complete nightmare for victims to escape from abusers. Measures taken to contain the rise in domestic violence cases during the current pandemic are grossly insufficient and portray the government’s apathy towards victims. Victims continue to suffer pain and suffering, actual bodily harm, emotional pain and agony, exposure to sexually transmitted diseases and HIV/AIDS, early and unwanted pregnancies, unsafe and illegal abortions, stigma and trauma. How long can the victims wait for justice to be served? There is an urgent need to address the issue of domestic violence as a priority. Prioritization has become a challenge because Kenyan courts have scaled down their operations, resulting in limited access to a few courts in the intervening period. The National Council on Administration of Justice reported that “in some cases, the perpetrators are close relatives, guardians and/or persons living with the victims, and that the courts, will consider giving directions on early hearing dates on such matters.” These indeed, are unprecedented times, but the attempts at digitization of court operations has been frustrated and delayed for years, and that clearly does not work in the best interest of the people. The Kenyan justice system needs to align itself with the demands and realities of the contemporary world to enable easy and speedy access to justice especially for victims of domestic violence. According to Martin M. Mbui, the benefits of digitization of the courts includes improved cost effectiveness of judicial services because virtual appearances will reduce the frequency and costs of transporting litigants and witnesses. It will also result in improved access to justice, as technology reduces two significant barriers to accessing justice, the cost of litigation, and the geographical distance between litigants and court stations. Reduced operational costs translate into a reduction in the overall cost of litigation, which then means that more cases are reported, and the perpetrators brought to justice more quickly. A number of the victims who are most likely going through economic hardships, due to closure of businesses and loss of jobs, tend to believe that litigation is an expensive and time-consuming affair hence failing to report the cases. Justice delayed, is justice denied, and digitization could ensure that there is faster and expeditious disposal of cases. The hearing of cases will be less predisposed to the common causes of adjournment, and the unavailability of litigants and witnesses. There are obvious concerns from all members involved in the issue of digitization of judicial proceedings. Primary concerns are insufficient technologies, and poor infrastructure in court stations especially in courts outside the capital city. Additionally, there is the problem of unstable internet connectivity across the court stations in the country, and access to technology by the victims of domestic violence. Other complaints include cases of inefficiency of the e-filling system and delays in getting responses from the judicial officers. There is hope, albeit temporary, for the victims of domestic. The president of the Law Society of Kenya ( LSK) in a webinar session stated that, the LSK and FIDA-Kenya, are now working hand in hand to help victims of sexual and domestic violence, in this Covid-19 period. There is a form that is available to help with separation of the victims from their abusers, considering the limitation of abusers to be put away in police cells and remand due to the issue of social distancing. This is a relief, to those victims who cannot afford legal services, because, they are the target group of FIDA-Kenya. Organizations and the general public will have to work with the police, to establish serious cases that require victims to be separated from their abusers. The media also needs to come in and help the department of justice, on sensitization of issues of domestic violence and the available helpline numbers that people can use to report these cases. Ann Shikongigi is an Advocate of the High Court of Kenya.She is a human rights champion (women and children).
Locked Down Justice: Gender and Access to Justice Under COVID-19 in Uganda
By Michele Lynda Mugenyi On March 12th WHO pronounced the COVID-19 outbreak a pandemic, leading a number of countries to go into partial or complete lockdown. In Uganda, private and public transport was suspended, non-essential services closed, and gatherings of more than five people were banned. Going into lockdown has meant that all aspects of ‘normal’ life have taken an unexpected turn, and legal and judicial practice in the country is no exception. Following the announcement of the nationwide directives, the Chief Justice of Uganda released guidelines of mitigating and preventative measures that would be taken by the judiciary in response to the pandemic. These included the suspension of all court hearings, appearances, and local and foreign conferences. Staff was encouraged to work from home and use video conferencing where possible. In addition, they were encouraged to deliver submissions strictly in written form via electronic means, as opposed to either delivering them orally or in written form. Another guideline permitted the hearing of urgent cases only. Under these circumstances, an urgent case is a criminal case that requires bail – e.g. murder, aggravated robbery, domestic violence (assault). All of these guidelines were put in place to ensure business continues as usual without risking further spread of the disease. However, the implementation of these guidelines has limited access to justice in a number of ways, particularly for women, who already struggle to access justice under ‘normal’ conditions. By considering criminal cases urgent, these cases get prioritized over legal issues predominantly reported by women. These include family cases, which women are 32% more likely to report than men, and children’s cases, which women are 4% more likely to report than men. In addition, the physical restrictions on movement have made it difficult for women to access courts and lawyers for legal help. Further, while making access to justice more of a digital experience has served as part of a solution, it has also created another issue by ignoring the digital gender gap. According to the Groupe Speciale Mobile Association’s (GSMA) Mobile Gender Gap Report 2020, women have a harder time accessing digital technology and the internet compared to their male counterparts because of obstacles such as affordability and IT illiteracy. The report states that the digital gender gap in Uganda for mobile ownership is 17% and 48% for mobile internet use, both in favor of men. Making judicial practice digital limits women’s access to justice at a time when they may need it the most. Digitalization in the judiciary is an innovation that needs to be paired with other legal services in order to expand access to justice beyond those with technology and access to the internet. Fortunately, a number of organizations provide legal aid to people either living in remote areas or with little access to technology. For example, the Uganda Network on Law Ethics and HIV/AIDS (UGANET) runs legal aid clinics in ten districts across the country and mobilizes 100 community paralegals to travel to remote areas and inform people of their rights. Organizations like these create new ways to improve access to justice on a regular basis. Another recommendation for improving women’s access to justice is that interim judicial orders should be made to address the legal challenges that fall outside the "urgent" cases category. The orders may serve as temporary solutions until full trials can take place when the pandemic ends. An example of this is the District of Columbia's Superior Court extended protection orders that were due to expire over the next few months in order to ensure women's security. Similar orders can be made about child custody or preventing evictions of widows and children from matrimonial homes. Pandemics and crises tend to exacerbate existing problems such as poverty, non-observance of human rights, and gender inequality. In these uncertain times, vulnerable and marginalized groups are at a greater risk of having their rights and access to justice abused compared to others. We can not afford to take holistic approaches to this pandemic without considering the unique ways marginalized groups are affected. Now more than ever, access to justice for vulnerable groups must be preserved. Michele Lynda Mugenyi holds a BA (Hons) in International Relations and Development from the University of Sussex, UK.
Ethiopia: Using the Coronavirus “State of Emergency” to Silence Critics
By Courtney Veneri Washington College of Law, American University In the wake of the coronavirus pandemic, leaders around the world are using the virus to curtail freedom of expression. From Cabo Verde to Hungary, states of emergency are being declared and used as an excuse for leaders to push authoritarian forms of governance. Ethiopia declared a state of emergency on April 8th, allowing the government to restrict the rights of citizens without limits or oversight. The Ethiopian government has been using this power to silence dissenters and limit free speech, rights that are protected in both the Ethiopian Constitution and the International Covenant on Civil and Political Rights (ICCPR). Ethiopian Prime Minister Abiy Ahmed announced directives as well as declared a state of emergency to stop the virus’s spread. Part of this order is intended to prevent misinformation from spreading along with the virus; however, it has been used mainly to arrest people spreading ideas critical of the government. Journalist Yayesew Shimelis was arrested for spreading false news about the virus via social media. Further, Elsabet Kebede, a member of the Ethiopian Women Lawyer’s Association, was arrested after speaking out and writing criticisms against the government. She was subsequently released, but she still awaits her trial. Although many believe her arrest was political, the charges against her are for spreading false news about coronavirus on her Facebook. People arrested under the law have, so far, not shown a compelling threat to public health or safety or a likelihood of increasing the spread of coronavirus. Since the arrests have been mainly political, Ethiopia is arbitrarily restricting free speech and is thus not following its international obligations under the ICCPR or the self-imposed obligations under the Constitution. Ethiopia is a state party to the ICCPR which provides freedom of expression in Article 19(2). The ICCPR does provide governments with the means of restricting freedom of expression in Article 19(3), but only to respect the rights of others or to protect national security, public order, or public health. In this case, Ethiopia is ostensibly using its power to protect public health to curtail freedom of speech; however, people arrested during the state of emergency have not actively interfered with public health. Further, Ethiopia’s Constitution guarantees free speech “without interference” in Article 29. The Constitution allows limitations only if the laws restricting the freedoms are neutral — not limiting them on the content or point of view expressed. In this way, the Ethiopian Constitution is actually stricter than the ICCPR, and the restrictions put forth by the government are therefore unconstitutional. Despite the unprecedented risks coronavirus has brought, human rights should only be restricted as much as necessary to protect public health and the safety of the population. Ethiopia has joined the ranks of many nations using the virus as an excuse to push authoritarian laws under the guise of a “state of emergency.” This has allowed the government to make arbitrary arrests of political critics and dissenters and puts them out of compliance with their international obligations and their own Constitution. Courtney Veneri is a JD/Master's student at American University Washington College of Law, focusing on human rights. She currently works at Lawyers Without Borders, and prior to law school was a Peace Corps Volunteer in Botswana.
Cases, Courtrooms and Covid-19 in Cape Verde: A Judge's View
By Ângela Rodrigues Criminal Court Judge, Praia, Cape Verde I joined the Public Prosecutor's Office in 2003, and I have been a judge in the District of Praia since May 2010 in the criminal division. Within the scope of the powers of the judiciary, in addition to being a trial judge, I execute acts of the competence of investigating judge under the terms defined by the Code of Criminal Procedure, and also the execution of criminal sentences. Cape Verde, like other countries, has not escaped the coronavirus (COVID-19) pandemic. Cape Verde declared the situation of emergency on March 18, 2020 due to the registration of cases of COVID-19 on the island of Boa Vista, and on March 26, 2020, the state of public calamity was declared by Resolution No. 53/2020. The resolution effectively prohibited travel (air and sea) of passengers, throughout the national territory, the closure of public services, with the exception of certain essential services, including the urgent services of the Judicial Courts and the Public Prosecution Office. Given the entry into force of the state of calamity by Government Resolution no. 53/2020, the Superior Council of the Judiciary issued a Circular (no. 6/2020) establishing that during this period only procedural and judicial acts related to the fundamental rights of citizens would be carried out. These “urgent” cases included minors at risk, trials, other procedural acts of accused persons on remand, and first judicial interrogations. The judiciary directed that electronic procedures be given precedence, as well as reducing the number of people in court. For purposes of combating the pandemic, the Court organized itself and made available to judges and court officers protective equipment such as masks, gloves, alcohol and alcohol gel (in small quantities), as well as cleaning and disinfection products (in acceptable quantities). In order to manage my courtroom efficiently and reduce close contact with courtroom users. I also instructed my court clerks to prepare a notice, which was placed at the door of the secretariat requesting that the physical distance of one meter be respected, and each user would be attended to one at a time inside the secretariat. Also during this period I was on shift for a period of 20 days (cumulatively) assuming the functions of Investigating Judge, so I had to perform judicial hearings of first interrogations of accused detainees, even during weekends, whose acts were performed without any use of mask or other personal protective equipment. However, the room where the judicial hearings are performed is spacious, and by that date the city of Praia had not registered any positive case. On March 28, 2020, for the first time in Cape Verde's history as an independent country and a democratic constitutional state, a state of emergency was decreed by Presidential Decree no. 06/2020. With the state of emergency, Law No. 83/IX/2020 of April 4 was approved, which regulated the processing of procedural acts that ran their terms in the different types of courts. Thus, only acts and urgent proceedings would be carried out during the crisis period, thereby constituting the suspension of the judicial periods of limitation and forfeiture for all acts and proceedings. Thus, with the first declaration of the state of emergency, I had to postpone all the trials of defendants who were not pre-trial detainees that were scheduled for the first fortnight of April, and I went ahead and rescheduled new dates for the first fortnight of May, which were later postponed until further notice. During the declaration of the third State of Emergency, I conducted two pre-trial hearings of defendants, and although the trials were public, there was no public attendance due to social distancing measures. In one trial I had to appoint an interpreter because the accused was a foreigner who did not speak or understand Portuguese. Both trials were conducted wearing masks, I also decided that for each intervenor heard, the bailiff should clean the space where the intervenor stands and the microphone, with water and disinfectant. During this period of emergency, I have been in court regularly in order to make orders in cases of arrested defendants, and to process cases of non-arrested defendants because it is not possible to take a large number of cases to my home that need to be dispatched. However, my stay in court has been limited to my office and without any personal contact with other colleagues and other court users. I have only established personal contact, if necessary, with the duty officer, and always with great care within hygiene rules. Given the increase in the number of cases in the city of Praia where I live and where the Judicial Court of Praia is situated, the capital city is now in the third period of the State of Emergency, decreed on May 2 effective until May 14th. I am concerned about the possibility of not extending the state of emergency, given the economic and social consequences that the capital city of the country is going through. It is true that since the first state of emergency was decreed, there has been almost no turnout in the court, and our role has therefore been limited to trials of imprisoned defendants. But what will happen after May 14, after the resumption of business and the new normality? I often wonder what the trial sessions will be like in cases with several procedural actors (sometimes more than a dozen), how will my staff and I be protected, given that during the periods of the state of emergency, no more than five individual masks and some gloves were made available to us. I question what will happen if the court actors who are to attend the trials do not have a mask or other personal protective equipment and the judiciary does not provide such protective equipment? Will I postpone trials because those parties (defendants and witnesses) are not protected with protective equipment? Should the courts make masks and/or other personal protective equipment available to those who do not have them? I believe that the courts should make such equipment available so that trials and other judicial acts (especially first questioning of accused persons in detention for enforcement measures) can take place with the necessary protection. However, the question is not only the existence or availability of personal protective equipment, it is necessary to organize and adapt the rooms where these acts take place, which in some cases are small rooms, which make it difficult to respect physical distancing rules. Can the principle of public trials be limited when it is not possible to respect physical distancing, leaving only the presence of the critical staff, i.e., judge, prosecutor, lawyers, defendants and witnesses? I answer yes, but instinctively. I do worry about a return to the so-called “new normal” if the courts are not properly protected. Are we in any way limiting the fundamental right of access to justice enshrined in Article 22 of the Constitution of the Republic of Cape Verde by not holding trials for lack of personal protective equipment or by enforcing the public health physical distancing regulations? I would argue, that trials, even if they are not of defendants who are pre-trial detainees should resume, and new hearings scheduled. The courts may have to consider alternative scheduling mechanisms such as holding a few trials at a time and having a small number of trial participants in the courtroom. Despite these turbulent times, I have great faith and hope that Cape Verde and the world at large will overcome this pandemic and we will return to normality in the near future where our fundamental rights will not be limited in the way we have seen in recent months. _____________  In accordance with Articles 60 and 61 of Law No. 88/VII/2017 of 14 February, which defines the organization, jurisdiction and functioning of the courts Ângela Rodrigues is a Judge of Criminal Court No. 1 of the District of Praia, Cabo Verde. The original version of this post was written in Portuguese and translated by Dr. Saidu Bangura, Director, Masters in English Studies and Language Teaching. University of Cape Verde.
Legal and Judicial Practise In Kenya Post Covid-19
By Amos Onyango Undoubtedly, the novel coronavirus has completely changed how we live and do things. Globally, court and legal processes remain shrouded in traditional processes of rigidity and very slow to adapt to change. Court processes require human contact, however, the coronavirus has predisposed such interactions to increased chances of getting infected. Cutting down on human connections has become necessary, but these changes should not negatively affect the delivery of justice. The disease seems to be here to stay. As such, the justice systems and actors cannot continue with operations as before. These actors have to embrace new ways of operating. Embracing technology has never been more relevant, and judicial and legal officers must acquaint themselves with communication platforms both for written and audio-visual communication. So far, Kenya’s Court of Appeal has delivered more than 18 appeal rulings, and made several other decisions which were transmitted to the remand prisons where the suspects are being held. This move was welcomed by lawyers and prison officers who asserted that costs and other security logistics of transporting suspects to court were unnecessary with such developments. Legal practitioners must learn to digitize their files and other data formats to replace the traditional paperwork for written judgements and pieces of evidence. But that will not be enough. It becomes a matter of priority that all courts and legal officers have access to the internet, power, and assistive devices that will enable the digitization process. In case of these supporting services having problems, legal practitioners should think of back up plans for power, as well as standby technicians who will be vital in cases of technological hitches. By going digital, the judicial and legal processes may be exposed to cyber risks. Having secure platforms and systems for administering justice must, therefore, be taken into account. Filling of cases and other legal matters will also have to be done electronically. To avoid the vulnerability that comes with soft copy detail, formats that are edit proof, and those that can assure transparency will be most critical. In cases where transparency lacks, it may as well hinder the much-needed trust in judicial and legal procedures. Lack of transparency will test the levels of trust that the courts and legal officers are required to exhibit by their codes of conduct and other professional rules, as well as fidelity to the rule of law. Finally, the turnaround time for service provision must be clear. The courts will have to revise their service charters to reflect the new nature of service delivery. Clients should understand the time aspect of service delivery, which in turn will affect the expeditiousness of justice delivery. The wheels of justice, if anything, should not be grounded, but be made faster with the changes that continue to evolve out of the restrictions to human movement occasioned by the global pandemic. The pandemic should be an opportunity to leapfrog and advance legal and judicial practices for all citizens. Amos Onyango is a cross cultural communication professional and author of three books. He is in charge of programs at the PLO Lumumba Foundation in the 39 African countries where it operates.
COVID-19 Lockdown: South Africa Battles the Deadly Epidemic of Gender-Based Violence
By Fidelis Udo ‘Men in our country have declared war on our women’. This was South Africa’s President Cyril Ramaphosa’s statement during his televised address to the nation on the evening of the 48th day of the lockdown of the country due to the prevailing coronavirus pandemic. The statement expressed concerns over the rising cases of gender-based violence against women during the lockdown. Even though the South African government and some civil society organisations such as the National Shelter Movement have generally taken measures to curb the increased epidemic of gender-based violence in the country, it is necessary to draw specific attention to the needs of women in rural settlements who, arguably, seem to be the ones that bear the greatest brunt of the problem. Globally, it has been documented that the pandemic has unleashed high levels of gender-based violence. The global data and statistics prompted Dr. Phumzile Mlambo-Ngucka, Executive Director of UN Women, and former Deputy President of South Africa to characterize violence against women and girls as a shadow pandemic. Alarmingly, records of gender-based violence in South Africa have skyrocketed during the country’s lockdown because of the novel corona virus pandemic. The South African Police Services received about 87,000 gender-based violence calls during the first week of the lockdown. This number included those who only expressed fears that the lockdown might worsen gender abuse incidences. Still, in the first three weeks after the lockdown started on March 27, more than 120,000 victims had rung the South African National helpline for gender-based violence. With this upsurge, it is evident that South Africa battles another deadly epidemic of domestic violence amidst the coronavirus lockdown. Tragically, this is not the first time a rapid surge in gender-based violence in South Africa has been compared to a war. In 2019 during his speech to the country’s Parliament, President Ramaphosa compared incidences of gender-based violence in South Africa to that of a ‘country at war’. That year, about 2,700 women and 1,000 children were reported to have been maimed and murdered, and about 100 raped daily in the country in 2019. The situation then was so bad that many women in the country seemed to have been living in perpetual fear, always asking themselves, ‘Am I Next?.’ The violence has gotten worse during this lockdown that South Africa’s Public Works Minister, Patricia de Lille, during her briefing on the government’s effort to curb gender-based violence, grieved that ‘we live in a sick society’, with women under siege in South Africa. The South African government and other civil society organisations are not silent to the plight of abuse of women in the country. On May 13, President Ramaphosa mentioned in his weekly newsletter that ‘one of the interventions we have made is to ensure lockdown regulations be structured in a manner that a woman can leave her home to report abuse without the fear of a fine, intimidation or further violence’. Since December 2019, the South African government has also been reported to have refurbished about ten State-owned buildings and converted them into havens for abused women. Similarly, at the early stage of the lockdown, The National Shelter Movement of South Africa and other partner organisations had devised lockdown safety plan for victims of domestic violence. The plan mainly involves advising victims to call for help, either from neighbours or appropriate government designated help centres. Despite these measures being put in place by the government and civil society organizations, it seems that for these interventions to be equitable, attention needs to be paid to the plight of women in rural settlements. Rural women arguably are at a greater disadvantage of getting help from the gender-based violence interventions. Due to the nature of their locations, they are less likely, than their counterparts in the urban areas, to readily get access to news media through which most of the interventions are publicised. Besides, many rural women, due to lack of awareness are also less likely to report abuse. Besides the fact that some may be afraid of not being believed, some are likely to fear secondary victimisation from their perpetrators, whom, in the long run, they will continue to live together in the rural areas. As some of the abusers are also providers of food for the family, some dependent women from the rural areas may fear that if they report their perpetrators, they might stop providing food for them and, if any, their children. In light of these thoughts, it seems plausible to suggest that the government pay much closer attention to rural women. Efforts at curbing gender-based violence during this lockdown and beyond needs to embark on a massive campaign to enlighten rural women of their rights, and to erase any fear in them that deter them from reporting violent abuse. Giving them enough confidence and assurance of continued safety from their perpetrators even after they have reported them will go a long way to arm women in rural settlements against this incessant gender-based violence war. Fidelis Udo is a Doctoral Candidate in the School of Social Sciences, University of KwaZulu-Natal, South Africa. He is interested in identity politics, issues of gender, race, class socio-cultural and socio-political dynamics.
Could COVID-19 Change the Face of African Customs and Customary Law?
By Beatrice Akua Duncan, Ph.D. Customs and customary laws impact every facet of life of the African, intersecting each point of the life cycle—from birth, through puberty, marriage, and ultimately death. Customs are lifestyles and practices which are peculiar to communities. Customary law may be defined as the community norms which govern these practices. Building on my Ghanaian identity and research experience as entry points, I highlight some of the potential consequences of the pandemic on the ways of life of African communities as exhibited through customs and institutionalized through customary law and in some cases, statutory law. COVID-19 has altered social organization across all continents, causing unprecedented disruption to the ways in which people live and work, with governments implementing various degrees of social distancing, lockdowns, and quarantines. These government measures are a nemesis to African customs and customary laws, which are predicated on social organization and social mobilization. Africans had devised their own means of connecting with each other across families, lineages and communities centuries before the internet, social media and other forms of technology. Social cohesion is achieved through social gatherings of varied sizes, specific objective and execution in a manner that not only gave significance to the occasion, but also the status of the individual or groups concerned. Families and lineages converge to celebrate the birth of a child, puberty, a marital union or mourn the dead. Such events place a requirement on members of these social organizations to participate by being physically present. Admittedly, the practice of polygamy in Africa across the centuries has meant that even nuclear families have tended to be much larger in size in contrast to many other parts of the world. These occasions presented opportunities to exchange conversations about the achievements, well-being and challenges of members of the group. Through these interactions, conflicts and economic hardships of members are sometimes resolved. In the case of customary marriage ceremonies which are largely undocumented, the presence of family and lineage members on the side of each party serves as an invaluable source of evidence that a marriage took place. While these events across the life cycle remain essential, many of them tend to be marked by ostentation, in some cases revealing underlying class distinctions and inequalities. Parties to marriage and funeral ceremonies can be saddled with debt due to pressure on couples or families to spend above their means. The expectations and requirements of customary marriages in particular, are either delaying marriages or resulting in consensual unions (common law marriages or mpena awaree in Twi, a Ghanaian dialect). Could COVID-19 therefore signal the need to shear off the pomp, and pageantry associated with life’s milestones and by implication the costs? Similar questions may arise in relation to customs and traditions which are harmful to the well- being of women and girls and which may be classified as forms of gender based violence in line with United Nations General Assembly Resolution 48/104, Declaration on the Elimination of Violence against Women, the Agreed Conclusions of the 2013 Commission on the Status of Women on the elimination and prevention of all forms of violence against women and girls and the CEDAW Committee’s recent recommendation, General Recommendation No. 35 on Gender-Based Violence against Women, Updating General Recommendation No. 19. These frame violence against women within the overall context of discrimination against women as defined by the Convention on the Elimination of All Forms of Discrimination against Women. Contrary to the rationale behind social distancing measures, several harmful practices such as widowhood rites, puberty rites, early marriage and female genital mutilation require the close physical presence of family and community members. During this period of the pandemic it cannot be assumed that such practices have ceased on account of official social distancing directives. This is because the former tend to occur in communities that are less endowed with law enforcement and protection services. It can therefore be argued that several harmful practices potentially pose a threat to reversing the pandemic and therefore must be framed in terms of corresponding risks to public health. In some African countries, the existence of a discriminatory law or the absence of laws to protect women and girls from harmful practices provide sufficient justification for the continuation of such practices. For example, to date, 11 African countries permit the marriage of girls below 18 years, 27 countries allow for marriage at 18 years with exceptions and in and one African country no particular minimum age exists in law. African parliaments which maintain such provisions in their laws or do not afford sufficient safeguards against the continuation of early marriage must institute gender sensitive legal reforms to address such gaps in the law as part of their response to the COVID-19 crisis. The good news is that the Commonwealth Parliamentary Association has demonstrated through recent guidance that parliamentary business can continue during this period of the pandemic. The contagious nature of the coronavirus disease and the consequential public health decisions requires advanced thinking on the future direction of African customs and customary laws. This must be done earlier, rather than later, to avoid unforeseen consequences on the social fabric and the risks of losing positive elements of African cultures and traditions. The crisis also presents an opportunity to revisit and prevent the escalation of harmful practices which existed before the pandemic. An important component would be reversing statutory laws which reinforce these practices, through parliaments which can continue parliamentary business through a range of innovative channels and applications. Beatrice Akua Duncan, Ph.D. is a Child and Women's Law Expert at UN Women. *The views expressed in this entry belong entirely to the author.