The Human Rights Blog

Sumbu Chantraine Temo, President of Amnesty International at Stockholm University

“If you want to go fishing, you have to paddle for about four hours through several rivers before you can get to where you can catch fish and the spill is lesser … some of the fishes we catch, when you open the stomach, it smells of crude oil.” – A local fisherman’s description of his livelihood in the Niger Delta.
(Nigeria: Oil Pollution, Human Rights Violations Still Rampant in Niger Delta, News from Africa, Nov. 2010)

THE NIGER DELTA INTRODUCED
Around 30 million people live in The Niger Delta, one of the world’s most polluted regions. The Niger Delta is Africa’s biggest and the world’s third largest river delta containing a vast oil deposit. The local inhabitants have not benefitted of this richness, Despite the fact that Nigeria ranks 7th among the world’s oil producing nations, the local inhabitants have not benefitted at all from the nation’s oil wealth as The Niger Delta is one of the most polluted regions in the world. Since oil production began in the late 1950’s, more oil has spilled across the region each year than was spilled in the Gulf of Mexico in 2010.

For decades, oil spillage, waste dumping and gas flaring have polluted the Niger Delta. Little has been done to clear up the area even though the region has one of the world’s ten most essential wetlands and coastal marine ecosystems. Severe pollution has caused nearly irreparable damage to the soil, water, air and wildlife. Thousands of Nigerians suffer due to this pollution, as most are dependent on agriculture and fishing as their traditional occupations.

Both the Nigerian National Petroleum Corporation (NNCP) and affiliated companies have interests in the Niger Delta. (NNCP is a public organization that takes care of governmental interests in the country’s oil industry.)

Photo by: Jane Hahn for The NY Times

THE OIL INDUSTRY
The oil and gas sector makes 97% of Nigeria’s foreign exchange. It also makes a majority, 79.5 %, of the government’s income. (Report of the Niger Delta Technical Committee, November 2008, pg. 102)

Many locals blame the multinational corporations like Shell for contamination in the region. Although Shell is not the only actor present in the Niger Delta, the company’s contribution to the pollution is, perhaps, one of the most significant. To date, over 1,000 spill cases have been filed against Shell. For example, in 2010, Shell admitted to spilling 14,000 tonnes of oil in 2009. (See Nigeria’s agony dwarfs the Gulf oil spill. The US and Europe ignore it, The Guardian, May 2010) In May of 2010, ExxonMobil spilled more than a million gallons of oil in the Delta in a span of seven days after one of their pipelines ruptured. Though it is relatively easy to identify the parties responsible for the pollution, the legal system in Nigeria is slow and appeals often take years. More often than not, the communities affected by the pollution never see compensation. (See Shell oil spills in the Niger delta: ‘Nowhere and no one has escaped’, The Guardian, Aug. 2011)

Oil spills occur both on the land and offshore, causing damage to both farmland and water sources. Due to such high risks of contamination in both food and water sources, it is dangerous for locals to cultivate the land, fish, or use water supply. This has posed great hardships on the people o the Niger Delta region, as agriculture, fishing and forest products are traditional to their way of life. In fact, UNCP reports that over 60% of the Niger Delta’s inhabitants need the natural environment for their livelihood. (Id.)

Exposure to petroleum can cause everything from skin rashes to cancer and neurotoxicity. A recent United Nations Environmental Programme (UNEP) report from shows that the region of Ogoniland is still contaminated despite the fact that oil production ceased in the region nearly 20 years ago.

CAUSES
One of the major causes of oil waste is gas flaring, which results when oil is separated from the oil pumped out. In 2007, NPR reported that “[g]as flares emit about 390 million tons of carbon dioxide every year, and experts say eliminating global flaring alone would curb more CO2 emissions than all the projects currently registered under the Kyoto Protocol’s Clean Development Mechanism.” NPR also quotes Chris Elvidge, a research scientist with the National Oceanic and Atmospheric Administration, who says, “Nigeria has brought their gas flaring down by about 10 billion cubic meters a year from the mid-1990s, so Nigeria is actually one of the few countries of the world where gas flaring has been reduced. But there’s still a lot of it.” (See Gas Flaring Disrupts Life in Oil-Producing Niger Delta, NPR, July 2007)

Although the Nigerian government has attempted to curb gas flaring since 1984, the deadline set to end the flares (2008) has proved meaningless, as it has become heavily postponed, thus allowing the flaring to continue.

Oil spills also occur due to corroded pipelines. Pipe corrosion is not a new development. In fact, it was first identified as problematic in the Niger Delta fifteen years ago, yet little has been done since to repair old pipes. Shell, for example, has acknowledged their need to improve their pipes and has also admitted that corrosion was a possible reason for half of their oil spills. In 1995, the company started a decontamination programme, but corroded pipes continue to pose a major problem.

Today, Shell (along with other oil companies) try to pin part of the blame on sabotage. For example, on its website, Shell opines that militant groups are behind the major environmental problems. This creates, according to Shell, rancour towards the oil companies on the delta.

In an article in the New York Times, Caroline Wittgren, spokeswoman for Shell in Lagos, explains, “[w]e do not believe that we behave irresponsibly, but we do operate in a unique environment where security and lawlessness are major problems.”

She went on to say that just 2% of the spill was to human error and failure in equipment.

THE OGONILAND REPORT
While sabotage is a legitimate problem in the Niger Delta region, it simply does not account for all of the pollution as evidenced by the sad situation in Ogoniland.

Ogoniland is an area in the Niger Delta spanning around 1,000 kilometres. Oil production in the region began in 1958. However, due to massive public protests, production ceased in 1993.

Despite the fact that oil production ceased nearly 20 years ago, Ogoniland continues to be ravaged by the effects of oil pollution. Current UNEP research (spanning the course of three years) shows that the pipes, despite the long interruption, are still leaking, due to bunkering, illegal extraction of oil, or corrosion. Since Ogoniland is directly connected with the rest of the Delta, the contamination easily spreads to other regions. Additionally, because of the high rainfall in the region, oil is constantly washed into farmlands and creeks. (See UN environmental assessment of Ogoniland, UNEP, 2011) Of course, UNEP recommends that the contamination must be cleaned up as soon possible and that the mess in Oganiland must be prevented to other areas.

If UNEP’s recommendations are followed, Oganiland could potentially be restored in 25-30 years at an estimated to cost $1bn (£614m), which does not include future damages. (UNEP maintain that the cost is only presumed and preliminary.)

Achim Steiner, Executive Director of UNEP, told The Guardian that the UNEP report “offers a blueprint for how the oil industry and public authorities might operate more responsibly in Africa and beyond at a time of increasing production and exploration across many parts of the continent.” (See Niger Delta oil spills clean-up will take 30 years, says UN, The Guardian, Aug. 2011)

Mutiu Sunmonu, managing director of the Shell Petroleum Development Company of Nigeria, maintains that most of the oil spill is still stalled by sabotage. He does manage to point out that Shell is willing to take its responsibility for the pollution and pledges to collaboration with the Nigerian government.

“All oil spills are bad – bad for local communities, bad for the environment, bad for Nigeria and bad for [the company]. Although we haven’t produced oil in Ogoniland since 1993 we clean up all spills from our facilities, whatever the cause, and restore the land to its original state. (See Id.)

SOURCES

www.cehrd.org pg. 157.
Constitution of the Federal Republic of Nigeria, 1999, clause 44
The Petroleum Act of 1969, clause 1
Report of the Niger Delta Technical Committee, November 2008, p102

http://www.guardian.co.uk/environment/2011/aug/03/shell-oil-spills-niger-delta-bodo?INTCMP=ILCNETTXT3487

http://www.amnesty.org/en/library/asset/AFR44/017/2009/en/e2415061-da5c-44f8-a73c-a7a4766ee21d/afr440172009en.pdf pg.11
Niger Delta Human Development Report, 2006, pg. 74, United Nations Development Programme (UNDP)

http://www.shell.com/home/content/environment_society/society/nigeria/conditions/

http://www.nytimes.com/2010/06/17/world/africa/17nigeria.html

UNDP, Niger Delta Human Development Report, 2006
Niger Delta Natural Resources Damage Assessment and Restoration Project, Phase I Scoping Report, May 2006, conducted by Nigerian Conservation Foundation, WWF UK and International Union for Conservation of Nature (IUCN), Commission on Environmental, Economic and Social Policy, with Federal Ministry of Environment (Abuja).
SPDC, Nigeria Brief, The Environment, 1995

http://www.nytimes.com/2010/06/17/world/africa/17nigeria.html

http://postconflict.unep.ch/publications/OEA/UNEP_OEA.pdf

Popularity: 4% [?]

Sumbu Chantraine Temo, President of Amnesty International at Stockholm University.

Exotic fruits and world-class wine labeled from South Africa are popular in the European market.  More and more wineries claim that their wine is grown and harvested in conditions that conform to human right norms and fair labor practices; however, reports from NGO’s such as Human Rights Watch (HRW) and The South African Human Rights Commission allege the opposite.

South Africa is the seventh largest wine-producing country in the world.  The country’s vineyards are concentrated primarily in Western Cape, known as the “Paradise of South Africa,” a province internationally recognized for its vast wine production.  Six of South Africa’s nine wine regions are located there.

South Africa’s emerging wine export industry accounts for 2.2% of the country’s GDP and generates over $3 billion a year for the South African economy.  In 2009, the export value for wine in Western Cape reached $700 million US dollars. According to the South African Wine Information and Systems, the wine industry supports employment opportunities to over 275,000 workers, most of whom are unskilled (58%).

A recent report by HRW indicates that despite the fact that wine is a profitable industry in South Africa, farmworkers in Western Cape reap little benefit from the flourish in business and rather suffer human rights abuses at the hands of farmers, including uninhabitable living conditions, illegal evictions, and exposure to chemicals and pesticides.

Living conditions unfit for human habitation

In August 2011, HRW published a comprehensive report entitled, Ripe with Abuse: Human Rights Conditions in South Africa’s Fruit and Wine Industries, which includes 260 testimonies from Western Cape’s farmers.  (See REPORT:  Ripe With Abuse, Human Rights Watch, August 2011)  Sinah B.’s testimony is one of them.  She revealed that the farm’s security guards, in an attempt to drive families away, threatened her and her children with dogs and guns in the middle of the night.

“They came at night at 1 or 2 in the morning; slammed on doors, took children over 18 who didn’t work here to the police station… Security would come with dogs and guns at night. It happened a lot of times … [about] three times a week for two to three years.” (HRW report, pg. 52)

40 year old Isaak S. worked on the same farm for a decade. During this time, he and his family lived in a pig stall, which has remained unchanged since he moved to the farm – with no toilet or improvements to the condition of the stall. (HRW report, pg. 46)

Sol C. tells a similar story.  He worked the farm for nearly 20 years until he became disabled in 2010.  Evicted from shacks numerous times following his accident, he and his wife eventually moved into one of the farm’s outhouses.  Landowners simply covered the toilet holes and he and his wife have remained there ever since.

These stories illustrate the biggest problem that South Africa’s land laborers face:  access to safe, stable housing, which is a basic human right recognized in Article 25 of the Universal Declaration of Human Rights as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR).  As Article 25 of the UDHR states, “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

Evictions

In addition to living in very poor conditions, farmworkers also face the constant threat of illegal evictions.

Between 1994-2004, more than 930,000 farmworkers – including dwellers – were evicted from their farms, despite the fact that laws exist that are meant to protect farmworkers from being illegally and unfairly removed from their homes.

In a documentary entitled, “Beneath the Surface, Fruit and Wine Workers in the Western Cape,” Siphokazi Mthathi of HRW reports on the living conditions of the region’s land laborers.  Though inhabitable housing and the harassment are well documented by the government and NGO’s, little efforts have been made by the South African government to curb these illegal activities or strengthen current laws.

To evict a farmworker, the farmer must follow specific regulations stated in the Extension of Security of Tenure Act (ESTA), which also defines who qualifies as a farmworkers.  For example, the ESTA outlines specific situations where a farmworker may not be evicted.  Specifically, “[a] long term occupier is someone who has resided on a farm for more than 10 years and is over 60 years of age or who cannot provide labour to a land owner as a result of ill health, disability or injury. Long term occupiers’ rights of residence may not be terminated unless they have:

1.  intentionally and unlawfully harmed any other person occupying the land, 2. intentionally damaged property of a farmer engaged in behaviour which threatens others occupying the land, 4. assisted other unauthorised people to establish new dwellings on the farm, 5.  breached a condition or term of their residence with which they are able to comply, but have not done so despite being given one month’s notice to comply. (For example: when an occupier allows unauthorised people to reside with them)  6. such a fundamental breach of the relationship between the farmer and themselves that it is not possible to restore this relationship. (For examaple: if the farm worker assaults the farmer.)”  (See A Guide to Tenure Security Rights on Farms, pg. 4)

In South Africa, farm dwellers also have the right to due process under the law before they are evicted.  Procedurally, in order for a landowner to legally evict a farmer, the landowner is require to warn the workers and deliver an eviction order to the court.  Any attempts to evict are illegal without the court order.  However, according to HRW, less than 1% of farm worker evictions are done so legally.

According to the HRW report, many landowners have found illegitimate, but unfortunately effective, methods to evict farm dwellers.  By blocking electricity or cutting of the water supply, landowners can easily drive farmworker away.  Others simply allow new workers to move in without providing an eviction notice to the current resident farm worker.  Despite the fact that these eviction methods are illegal, they have become the norm because South African authorities by and large do not enforce the law and landowners in violation of eviction laws are not sanctioned.

As an ESTA inspector explained in the HRW report:

“If I lose my job here today, I still have a place to stay and so does my wife.  If a farmworker loses his job today, he loses his place to stay and so does his family.”

Health and safety concerns

Lack of access to safe and secure housing is not the only hurdle South African farmworkers encounter.  Testimony gathered in HRW reports show that farmworkers also face health and safety threats in the workplace.

According to HRW, most of the farms in Western Cape do not provide drinking water or toilet facilities on or near the fields.  Furthermore, farm workers are regularly exposed to injurious pesticides without proper safety equipment, which causes rashes and even acute intoxication.  Despite the fact that the South African Occupational Health and Safety Act promulgates that workers should be provided with “suitable respiratory protective equipment and protective clothing,” many farm workers in Western Cape continue to be exposed to health hazardous poisons and chemicals.  These farm dwellers allege that they have developed conditions such as asthma and chest pain as a result of direct contact with these pesticides.

Recent developments and responses to HRW’s report

According to a November 2011 article in the Wall Street Journal entitled, “Becoming Truly South African,” Professor Solms, a neuroscientist turned wine maker, explains that the HRW report only represents the minority of South African farmworkers.  He explains, “The most important thing for people in our industry to face up to is that what the Human Rights Watch report describes is happening.  But it is not the norm, nor the average situation. What I would say is that it is a minority. That is not to excuse it. There is no excuse.”

In order to help break the cycle of extreme poverty among farmworkers, Solms, along with Richard Astor, created a trust for their farmworkers, which was funded by the winery’s profits.  The trust pays for housing, education, health care and music lessons for the workers and can be used as a model for other wineries.  (See Becoming Truly South African, Nov. 11, 2011, WSJ.com)

In October 2011, Andries Burger, member of the Cape’s Winemaker’s Guild, told the Financial Times that despite the fact that even one report of human rights abuse against farmworkers is too many,, the HRW’s decision to maintain the anonymity of the wineries in question raises concerns because it does not allow for actions to be taken against wineries that treat their workers poorly.  As Burger explains, “the problem is that not naming the farms in question has been counterproductive, because how can we rectify it? Let’s name and shame, I say.”

According to the Financial Times, HRW’s reasoning for keeping the identity of offending wineries confidential is as follows:

“Human Rights Watch said it did not want to name or locate its informants for fear of reprisals, and would not even specify which of their more horrific reported examples were wine rather than fruit farms. This, unfortunately, has given those too complacent or mean to bring their workers’ living conditions into even the 20th century, as well as the Western Cape government, the perfect excuse for continued inaction.” (See Cleaning Up the Cape, Oct. 21, 2011, The Financial Times)

Finally, Su Birch, CEO of Wines of South Africa, which is responsible for the promotion of all South African wine in export markets, claims that the HRW report is bias.  According to The Guardian, Birch stated that “most of the farm workers interviewed were identified by unions and NGOs, who have a vested interest in presenting the worst of cases.” (See South African wine industry rooted in human misery, says report. The Guardian, Aug. 22, 2011)

While she admits that some farmworkers live in poor conditions, she maintains that it is a small group that is not representative of the entire South African wine industry.

“For every poor house on a farm, I can show you loads of good ones and some exceptional ones. Wine farmers are currently providing housing for over 200,000 workers, which represents an investment of billions of rands. Our industry is working hard to correct the wrongs of the past, and we accept that there is much work to be done. Even one case of abuse is one too many. But ‘ripe with abuse’? I don’t think so.”  (See South African wine industry rooted in human misery, says report. The Guardian, Aug. 22, 2011)

Decide for yourself!  For more information, please read the following:

Becoming Truly South African, The Wall Street Journal, November 2011

South African wine industry rooted in human misery, says report. The Guardian, Aug. 22, 2011

REPORT:  Ripe With Abuse, Human Rights Watch, August 2011

A guide to TENURE SECURITY RIGHTS ON FARMS, Lawyers for Human Rights.

Popularity: 9% [?]

David Prater, J.D. Candidate 2012, The University of Maryland School of Law

The Appeals Chamber (“the Chamber”) of the International Criminal Court (“ICC”) rejected the appeal of Kenya on an application challenging the admissibility of the case against six prominent Kenyans following the contested 2007 Presidential Election.  In so doing, the Appeals Chamber affirmed that the principal of complementary jurisdiction required Kenya to investigate the same conduct and same persons indicted by the ICC. 

However, the Appeals Chambers did not establish a bright-line rule that an investigation at the ICC and a national investigation must always investigate the same person and same conduct.  Instead, the Appeals Chamber held that because the ICC proceedings were at such an advanced stage, Kenya’s investigation should have investigated the same person and conduct.  By considering the respective stages of proceedings at the ICC and Kenya, the Chamber implicitly judged the unwillingness of Kenya to pursue an investigation and prosecution in the case by the “unjustified delay in the proceedings, which in the circumstances is inconsistent with an intent to bring the person concerned to justice.”  This implicit judgment better achieves the purpose of complementary jurisdiction but blurs the line between the two-step analysis of Article 17(1) established by the Chambers in Katanga.

Background

Kenya is a formal British colony in the Horn of Africa region.  It is a multi-ethnic society whose diversity was exploited by British imperial powers to agitate relations among the various indigenous groups in order to conquer and exploit the natural resources of the land.

An anomalous Kenyan nationalist coalition successfully negotiated independence in 1964, but subsequent leaders employed the resources of the colonial administration-cum-state to the benefit of favored families and ethnic groups.  In 1972, Daniel Arap Moi ascended to the Presidency and ruled the country for thirty plus years.  As reforms were slowly pushed through, Moi was prohibited from seeking re-election in 2002.  The opposition National Rainbow Coalition (“NARC”) candidate, Mwai Kibaki was elected in 2002.  In 2005, a new opposition was formed to prevent the ratification of a new constitution.  The Orange Democratic Movement (“ODM”) succeeded in voting down the Constitution and formed itself as a political party.

In 2007, ODM leader, Raila Odinga, and President Kibaki campaigned in a rigorous and disputed election.  International and domestic observers reported widespread irregularities in the election.    Disregarding these observations, the Kenyan Election Commission declared President Kibaki the outright winner.

Massive violence followed, largely along ethnic lines, which the British previously exploited.  Over 1,000 were killed and numerous cases of rape were reported.  Only through the intervention of former U.N. Secretary-General Kofi Annan were Odinga and Kibaki able to negotiate a unity government and save Kenya from dissolving into civil war.

As part of the negotiation, Kofi Annan sealed six names in an envelope and promised to deliver them to the U.N. Security Council and the ICC Prosecutor, Luis Moreno Ocampo, if Kenya did not pursue the prosecutions.  These six Kenyans, William Samoei Ruto, Henry Kiprono Kosgey, Joshua Arap Sang, Francis Kirimi Muthara, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, are high-ranking members of the Kibaki and Odinga political organization.

At his own motion, Ocampo launched an investigation into the post-election violence in Kenya and subsequently indicted the six Kenyans also known as the “Ocampo Six.”

The Judgment

The decision of the Appeals Chamber of August 21, 2011 came after a long series of procedural moves by Kenya to exempt the Ocampo Six from the jurisdiction of the ICC. The objections at issue in this appeal related to Kenyan’s own investigation of the case.  Under Article 17(1)(a) of the ICC Statute, the Court decide a case is inadmissible when, “the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

Kenya sought to have the Prosecutor’s case against the Ocampo Six deemed inadmissible because Kenya was conducting an investigation into the same conduct, but not necessarily the same people.  Kenya argued that Article 17(1)(a) only required that a State investigate the same conduct and not the same person, because it was unreasonable to assume that the ICC and State party always had the same information relevant to the alleged crimes and that a State party could likely be investigating another suspect.

Analysis

In the Katanga decision, the Appeals Chamber held that determining whether a case was inadmissible under Article 17(1)(a) was a two step analysis that considered: 1) whether there are ongoing investigations or prosecutions; and, if this question is answered in the affirmative, then 2) the unwillingness and inability of the state to carry out the investigation.  Factors to consider when determining the unwillingness and inability of a state to carry out on investigation or prosecution are described in Article 17(2) and include a) the prosecution or investigation was undertaken to shield the person for crimes within the jurisdiction of the court; b) there has been an unjustified delay in the proceedings inconsistent with an intent to bring the person to justice; and c) the proceedings are not conducted independently or impartially, and were being conducted in an matter inconsistent with an intent to bring the person concerned to justice.

In the Ocampo Six decision, the Appeals Chamber held that to satisfy the first question (whether there are ongoing investigations or prosecutions) a State must be investigating or prosecuting the same person for the substantially same conduct because the proceedings regarding the situation in Kenya were at such an advanced stage.   However, this conclusion blurs the clean two-step analysis created by the Court in Katanga.

The existence of an ongoing investigation or prosecution is a wholly objective one:  Is there, in fact, an investigation?  Kenya argued it unequivocally satisfied this question.  The Court, however, disagreed because Kenya was not investigating the same person and should have been doing so at this stage of the proceedings.  But the Court’s reasoning implicitly considered the qualitative substance of the Kenyan investigation and its delay in proceedings.  Secondly, the Court also considered whether the Kenyan investigation was “carrying out steps directed at ascertaining whether these suspects [the Ocampo Six] are responsible for substantially the same conduct as is the subject of the proceedings before the Court.”  Moreover, the Statute itself only explicitly considers a State’s investigation or prosecution of a person in Article 17(2).

Conclusion

The Court’s considerations are directed toward the quality and genuineness of Kenya’s investigation –not whether there is simply an investigation.  The Court adopted a process where the quality of a State’s investigation or prosecution is always subject to the Court’s consideration, and rightfully so.  Continued reliance on the Katanga case’s two-step analysis, as opposed to the Ocampo Six holistic approach, would permit States to immediately stall ICC investigations by merely opening unsubstantial investigations or prosecutions.

This latest decision regarding the Ocampo Six can be considered a purposive one, which better combats impunity and promotes accountability for perpetrators of gross violations of human rights.

Popularity: 5% [?]

Sumbu Chantraine Temo, President of Amnesty International at Stockholm University.

Colonel Nyiragire “Kifaru” Kulimushi, known as Congo’s “rape Colonel” surrendered in early July together with 116 of his soldiers amid accusations of mass rape and looting.

Kifaru was a former member of the militia Maï Maï, which played a significant, and sometimes problematic, role in the Second Congo War. As a result of a peace agreement and palaver, the Maï Maï militia joined Congo’s national army, the Armed Forces of the Democratic Republic of Congo (FARDC) along with other rebel groups in 2009.

At a military training course in South Kivu in late spring 2011, Kifaru learned that he was to be demoted due to a restructuring within the FARDC.  Unwilling to accept the FARDC’s decision, Kifaru and his men defected as a means of protest. In the days that followed, it is alleged that Kifaru and his soldiers looted villages and committed mass rapes.  NGO’s estimate that approximately 250 women were raped between June 10-12 in villages of Nyakiele, Kanguli and Abala, all in eastern Congo.

Because the rapes garnered international media attention, government spokesman Lambert Mende, DRC’s Minister of Communications, declared that the national army would begin a manhunt for Kifaru. The army soon managed to locate Kifaru, and he and his men surrendered.

According to AFP, Colonel Sylvain Ekenge, spokesmen for FARDC, indicated that Kifaru and his men were ordered to surrender and did so with no demands. “He did not negotiate the conditions of his surrender because there were no conditions to negotiate…“[w]e gave him the order to come out and he came out of the bush.”

“He said he is afraid and that he had done nothing,” Ekenge added.

A BBC article dated July 8, 2011, reported that the UN held the FARDC responsible for the mass rapes.  “[T]he rapes highlighted poor discipline in the army, and the failure to properly vet rebels integrated into the army following a peace deal to end years of unrest.”

Though government authorities are watching the alleged perpetrators, Kifaru and his men are not in detention, as AFP reported that the soldiers are located in an army base in wait for an investigation.  As Ekenge told AFP, ”[Kifaru] remains at the disposal of the authorities while waiting for the outcome of a military hearing. He is not in detention.” (See DR. Congo colonel and men accused of mass rape surrenders. AFP, July 8, 2011)

Not the first time…

This is not the first time Kifaru has been accused of involvement in mass rapes. On New Year’s Day 2011, a group of soldiers led by Kifaru’s deputy, Lieutenant Colonel Kibibi Mutware, attacked Fizi, a village in South Kivu.  This time, approximately 50 women were raped.

After an investigation, Colonel Kibibi and his group of soldiers were arrested and later convicted after a hearing in military court.  Nine of Kibibi’s men were sentenced for crimes against humanity. Colonel Kibibi and three other officers were sentenced to 20 years in prison. Five other officers were sentenced for between 10 and 15 years imprisonment for the same crime. One man was exonerated whilst another one will be charged in a juvenile court.

Brief history of rape in eastern Congo.

Rape as a tactical weapon conflict in DRC can be traced back to the 1994 genocide in neighbouring Rwanda. Likewise, during the Congo’s eight year Civil War, rape was used as key weapon of war, just as it had been in neighbouring Rwanda.

Although the spillage from the Rwandan conflict is more or less settled the eastern part of Congo, the violence continues because of the region’s vast minerals resources. Today, the Congolese army, rebels, local militias, and warlords continue to vie for control over the mines. Rising conflicts result in risks to the civilians lives and personal safety.

“Because one mine alone can export upwards of ten million dollars worth of minerals per month, rape is the cheapest and easiest means to keep civilians intimidated, humiliated and in a state of constant fear, thus making them completely powerless against the rebels.  Civilians who favor an opposing rebel group are often times punished with rape by the group seeking power, often done in a public way in order to shock and destroy the local community.” (See UN admits peacekeeping efforts failed to protect civilians of Eastern Congo from coordinated mass rapes, The Human Rights Blog, Sept. 30, 2010)

In July 2011, the United Nations published a report on mass rapes that occurred last year in villages in North Kivu. The report states that 387 people were raped; among the victims were 44 were children and 23 men.

Experts say that the extent of sexual violence in Congo is to be regarded as a strategic move by the armed forces. The rapes take brutal forms, working as a weapon intended to paralyze, degrade, and weaken communities.

Many of the rape victims are rejected by their husbands and families and often find themselves without legal support. Although men are also victims of rape, it is yet a greater taboo that is rarely discussed.  “A recent study found that 24% of men and 39% of women have been raped in Congo while many more cases go unreported.” (See video Nation of Vice – DRC, Journeyman Pictures, 2010.)

Recent reports also show that soldiers and civilian workers in MONUSCO have also been guilty of sexual exploiting the Congolese women by offering food and shelter in return for sex.  (See Mass Rape: Time for Remedies, Amnesty International, pg. 15.)

Amnesty International says that the frequency and brutality of the mass rapes is due, in large part, to the government’s inability to find and prosecute human rights abusers. (See New Mass Rapes in DRC are Result of Horrific Failure of Justice, Amnesty International, June 23, 2011)  However, some rule of law experts on the ground point to barriers in the Congo’s Constitution, particularly Article 166, which prohibits charges from being brought against government officials without an absolute majority of the National Assembly.  (See Constitution of the Democratic Republic of Congo)

On the right path:

In light of the recent convictions of Colonel Kibibi and others as well as the surrender of Colonel Kifaru, the DRC seems to be moving in a more positive direction in preventing future sexual violence against civilians.  As Amnesty International’s DRC Campaigner, Claire Morclette, said, “[The Kibibi] conviction is a step in the right direction…[f]or decades crimes like this have gone unpunished in DRC, their perpetrators never bought to justice. However much remains to be done to ensure victims of gross human rights violations in the country receive justice.” (DR CONGO COLONEL’S RAPE CONVICTION IS FIRST STEP ON ROAD TO JUSTICE, Amnesty International: February 23, 2011)

KÄLLA – Bibliography:

RDC : “Kifaru” et 116 soldats accusés de viols massifs se sont rendus, Jeune Afrique, Aug. 7, 2011.

En RDC, le «colonel Kifaru», présumé coupable de 250 viols, entendu par l’état-major, RFI, 09 Juillet 2011.

DR Congo hunting for colonel suspected of mass rape. The African Confidential.

Congo’s shame: Rape used as tool of war. The Washington Times.

When Rape Becomes a Game. Huffington Post via Enough Project, July 6, 2011.

Popularity: 12% [?]

The US premier of award-winning documentary, Mugabe and the White African airs tonight at 10 p.m. EST on PBS’s acclaimed Point of View series.

Filmed over a twelve-month period, Mugabe and the White African follows the story of white Zimbabwean farmer Mike Campbell, his wife, Angela, their daughter, Laura, and son-in-law Ben Freeth who successfully fought the compulsory Land Reform Programme implemented by Zimbabwean dictator, Robert Mugabe at the turn of this century.  The documentary captures many pivotal moments throughout Campbell’s journey including the challenges he faced in trying to bring the case within the purview of Zimbabwe’s domestic court system, his journey to the Southern African Development Community Tribunal, and the family’s horrific kidnapping and torture in 2008, which ultimately led to Mike Campbell’s death this past April.

Watch the full episode. See more POV.

Mike Campbell’s story and a brief overview of land reform in Zimbabwe 

The Campbell family settled in Zimbabwe over three hundred years ago.  Farmers for centuries, Mike Campbell continued with the family business when, in 1980, he purchased Mount Carmel, a three thousand acre farm located approximately eighty miles outside of Harare.  In addition to employing five hundred people, mostly black Zimbabweans, Mount Carmel served as an environmental conservation site, as Campbell strove to preserve and protect African wildlife.

On April 18, 1980, around the same time Mike Campbell bought Mount Carmel farm, the British government granted independence to Zimbabwe after the Rhodesian Bush War, a violent and long-fought revolution which lasted from 1964 to 1979.  In Zimbabwe’s first general elections, the public elected Robert Mugabe as Prime Minister, and later President, of Zimbabwe.  Mugabe was a black liberation hero and leader of Zimbabwe’s African National Union, which was victorious in the revolution against white minority rule.

Immediately following his inauguration, Mugabe worked to help reconcile peace between warring political movements, which took the lives of thousands.  After years of fighting, the opposing groups finally reached a settlement and Mugabe was free to turn his attention to a series of reforms aimed at bringing equity and balance to black Zimbabweans who were disenfranchised under colonial rule.

In 2000, Mugabe began an aggressive, fast track land redistribution program aimed at removing white Africans from land they acquired during the country’s colonization.  The goal of the program was to “right the wrongs” of Zimbabwe’s colonial rule by redistributing farming lands that had been previously been owned overwhelmingly by white commercial farmers.  At this time, Zimbabwe had a population of approximately twelve million.  Although black Zimbabweans made up ninety-seven percent of the population, white Zimbabweans owned nearly all of the viable farming land.  In fact, in 2000, “there were approximately 4800 large scale commercial farms located on eleven million hectares of land.  Of these commercial farms, 4500 were white-owned.  In contrast, one million black families had been confined to farming in exclusively black communal areas covering sixteen million hectares. Only a small percentage of this communal land, however, was arable enough to farm.” (See Jonathan Shirley, The Role of International Human Rights and the Law of Diplomatic Protection in Resolving Zimbabwe’s Land Crisis, citing Thomas Mitchell, The Land Crisis in Zimbabwe: Getting Beyond the Myopic Focus upon Black & White, 11 Ind. Int’l & Comp. L. Rev., 2001)

Mugabe’s Land Reform Programme was thus born.  White commercial farmers’ lands were compulsorily reacquired by the government and redistributed to black Zimbabwean farmers.  Of course, on its face, the Land Reform Programme appeared to be equitable and justified given Zimbabwe’s harsh colonial history.  However, the implementation of the Programme became increasingly controversial, especially amidst reports of lands being violently seized by veterans of Mugabe’s revolution, who then redistributed the land not to disenfranchised Zimbabweans but either to themselves or those loyal to the Mugabe regime.  Moreover, the Zimbabwean legislature went a step further in 2005 by enacting Constitutional Amendment 17, which denied white farmers access to domestic courts by 1.) stripping the courts’ jurisdiction to hear cases involving the acquisition of agricultural lands and 2.) promulgating that questions related to the proper manner of land acquisition were no longer those for the judiciary.

On July 22, 2001, the Zimbabwean government first attempted to seize Mount Carmel farm, but the High Court of Zimbabwe denied the government’s acquisition attempt.  Soon thereafter, war veterans invaded the property.  In 2006, the Zimbabwean government attempted to transfer ownership of the entire farm to former government minister Nathan Shamuyarira, and though Campbell opposed the action by filing suit, recourse in Zimbabwe’s domestic courts was impossible, as land acquisition was no longer a judicial question as per the Constitutional Amendment 17.  (See Memory Dube and Rob Midgley, Land Reform in Zimbabwe, Chapter 12)

Mike Campbell (Pvt) Ltd et al v. Republic of Zimbabwe

On October 11, 2007, while awaiting judgment from the Supreme Court of Zimbabwe on the same issue, Mike Campbell filed an application with the Southern African Development Community Tribunal (SADC)  to challenge the Zimbabwean government’s compulsory acquisition of the Mount Carmel agricultural lands under Zimbabwe’s Land Reform Programme.  It was not long until 77 other white farmers joined in the claim, asserting that the legislative aim of the Programme was to racial discriminate  against and target white Zimbabwean farmers. Specifically the Applicants challenged Amendment 17 of the Zimbabwean Constitution, alleging that it violated Article 6(2) of the Treaty of the Southern African Development Community, which states, “SADC and Member States shall not discriminate against any person on grounds of gender, religion, political views, race, ethnic origin, culture or disability.”  (Established under Article 9 of the SADC Treaty, the SADC serves as a compliment of the African Union and focuses on promoting sustainable and equitable economic growth and socioeconomic development while the SADC Tribunal hears related disputes.)

Of course, since the case with the SADC Tribunal was filed before the Zimbabwe Supreme Court rendered a verdict, the Republic of Zimbabwe claimed that the SADC Tribunal did not have jurisdiction to hear the case, as the Applicants had not “exhausted all available remedies or were unable to proceed under the domestic jurisdiction.”  The SADC, however, rejected this argument and found that the Applicants were unable to proceed in Zimbabwe’s domestic courts since Constitutional Amendment 17 clearly “obliterated” the jurisdiction of the domestic courts to hear cases involving the acquisition of agricultural lands. Specifically, the SADC Tribunal stated,

“where the municipal law does not offer any remedy or the remedy that is offered is ineffective, the individual is not required to exhaust the local remedies. Further, where, as the African Charter on Human and Peoples’ Rights states, ‘…it is obvious … that the procedure of achieving the remedies would have been unduly prolonged”, the individual is not expected to exhaust local remedies. These are circumstances that make the requirement of exhaustion of local remedies meaningless, in which case the individual can lodge a case with the international tribunal…”

The Tribunal went on to remind the Respondents that,

“[i]t will be recalled that the Supreme Court of Zimbabwe delivered its judgment dismissing the Applicants’ claims in their entirety, saying, among other things, that the question of what protection an individual should be afforded in the Constitution in the use and enjoyment of private property, is a question of a political and legislative character, and that as to what property should be acquired and in what manner is not a judicial question…[B]y the clear and unambiguous language of the Constitution, the Legislature, in the proper exercise of its powers, had lawfully ousted the jurisdiction of the courts of law from any of the cases in which a challenge to the acquisition of agricultural land may be sought. The Court further stated that the Legislature had unquestionably enacted that such an acquisition shall not be challenged in any court of law. The Supreme Court, therefore, concluded that there cannot be any clearer language by which the jurisdiction of the courts has been ousted.” (Opinion, Mike Campbell (Pvt) Ltd et al v. Republic of Zimbabwe, SADC (T) Case No. 2/2007)

After reaching the decision that they also had jurisdiction to decide the overarching issue of the validity of Zimbabwe’s Land Reform Programme, the SADC Tribunal held that while the Programme itself “cannot be attributed to racism but circumstances brought about by colonial history,” and thus was not in violation of Article 6(2), the effects of Constitutional Amendment 17 had “an unjustifiable and disproportionate impact upon a group of individuals distinguished by race.”  After citing the United Nations Charter, Article 2 of the Universal Declaration of Human Rights, Article 2 of the African Charter on Human and People’s Rights, and Article 2 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as well as answering the question, “what is racial discrimination,” the SADC Tribunal ultimately found that the implementation of Constitutional Amendment 17 discriminated against the Applicants on the basis of race and thereby violated its obligation under Article 6 (2) of the Treaty. (Id.)

The kidnapping and torture of Mike Campbell

While the SADC Tribunal’s ruling was a monumental win for Mike Campbell and the 77 other farmers whose property had been forcibly seized, the conclusion of the Campbell family’s story has been tragic nonetheless.

In 2008, Mugabe loyalists stormed the Campbell’s home, captured the then 74 year-old Campbell, his wife, Angela, and their son-in-law, Ben Freeth.  The three endured torture for nine hours, which included whippings to the back and feet, beatings to the face and body, proddings to the mouth and lips with burning sticks, and threats of dismemberment and death.  Freeth sustained a five inch skull fracture and Campbell was beaten beyond recognition.  Those that took them forced them to sign a document stating that they would drop their case against the Mugabe regime.  (See They Beat Him, But Not Into Submission. Los Angeles Times, Aug. 7, 2008.)

Of course, the harassment did not stop there.  In 2009, Campbell and his wife were again “driven from their home and the family’s ancient pet horse, Ginger, who lived in the garden, ran away into the bush. Months later, the house was burned to the ground.”   (See Tough Zimbabwe farm family survives another blow. Los Angeles Times, Sept. 7 2009)

The nine hours of torture ultimately cost Campbell his life, as he died from complications of the beatings this past April.  According to his obituary in the Los Angeles Times, following the beating, Campbell “found he couldn’t solve easy sums, like calculating how much fertilizer to put on a mango tree. His family said he never recovered.”  (See Mike Campbell dies at 78; white Zimbabwean challenged seizure of lands. Los Angeles Times, Apr. 8, 2011)

Today, as stated on Ben Freeth’s fundraising page, Campbell’s remaining family members continue to be harassed.  Their homes have all been destroyed and their crops stolen.

Mugabe and the White African premiers on PBS tonight, July 26, 2011 at 10 p.m. EST.  

Check your local PBS listings for complete details, as local viewing dates and times may differ.

Learn More

Official website

Mugabe and the White African on Facebook

Popularity: 10% [?]