Blog: South Africa
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October 26, 2018
We are sad to share the news that James Tamboer, one of the clinic’s clients in the apartheid litigation, passed away this week. Here, several of the attorneys who worked with James on the case, reflect on his life and this loss.
From Judith Chomsky:
James Tamboer critically set the stage for my understanding of the workers’ struggle against apartheid. Like others who came forward in the struggle against apartheid, his courage and steadfast commitment inspired both his comrades and those of us who came to know him working on the apartheid case in U.S. courts. Meeting and learning from James has given meaning to our work and pride in our association with him.
From Susan Farbstein:
James Tamboer died this week, and I don’t have words to adequately describe the loss. How do I explain my love and respect for a man who started out as a client but became a friend, an inspiration, and the source of so much wisdom and kindness. How do I describe my grief that another member of this generation of South Africans—a generation that struggled and fought and persevered and survived—has died, and that with his death we lose another piece of history and another connection to that past.
Representing James was one of the greatest honors of my life. For nearly a decade, we worked together on a case which sought to hold multi-national corporations accountable for their role in supporting and assisting the apartheid government to commit gross human rights violations. James, who was born in 1959, worked at the General Motors plant in Port Elizabeth from 1977 until 1986. As he said, “I started as a laborer and ended as a laborer.” He worked the trim line, fitting together truck parts, including chassis for military vehicles.
Before joining GM James had been politically active in the student movement, although he had never been arrested. He continued his organizing efforts with the union at GM, first as a shop steward and later as a senior shop steward. James worked not only for pay increases but also to break down racial barriers, such as separate toilets and canteens, within the plant.
He paid heavily for this involvement. He recalled 1982 being one of the worst years for him, a year in which he was arrested on a regular basis—including being taken from the GM plant—because he was a vocal and visible union leader. Security branch personnel often came into the plant, and to his mother’s home, to question James about plans for strikes or other political activities.
During intense union negotiations that year, James was detained for three weeks at St. Alban’s, a notorious prison facility where hundreds were often held without charge and subjected to police abuse. He was tortured. He described being beaten over a bench and waterboarded as the security police attempted to extract information from him about the union’s plans.
James was held again for several months in 1985-86, swept up following the government’s declaration of a state of emergency. The security forces, interrogating James about his role organizing a major strike at GM, stomped on his legs and chest. They bashed his head into the walls so forcefully that he would suffer from memory loss and epilepsy for the rest of his life.
But James was so much more than an activist and survivor. He was a husband, a father, and a pastor. He hesitated before joining the apartheid litigation as a plaintiff. He was concerned that if his children knew more about the abuse that he had suffered, they might hate the white people who had mistreated him. And he had spent his life working against hatred, and for equality and reconciliation.
Ultimately he joined the case because he wanted stories like his to be heard and because he hoped for some measure of justice and accountability, or at least acknowledgement, by GM and the other corporations. He was clear-eyed about the immense legal hurdles that we would face, but he believed in the importance of the case.
When I think of James now, my strongest memories are of him laughing—deep and loud and heartily, with his whole body—and of the way that he would lean in close, look you right in the eye, and wag his finger a bit when making an important point. I remember speaking with him after we had suffered a major setback in the case. I was apologetic and also, I’m sure, quite upset. As was his way, James offered reassurance and perspective: “We always knew this would be hard. And we have suffered so much worse.” Of course.
James, I will miss you tremendously. I will be forever grateful for the privilege of working with you and learning from you. And I will honor your memory, in my own small way, by carrying your wisdom and passion for justice with me, and by sharing it with others.
From Tyler Giannini:
When Diana Tamboer emailed me on Monday that her husband, James, had passed that morning, I was physically shaken. Sitting with it, I went to a moment etched in my mind forever; I can see James’ face – it was a conversation that he and I had at a fast-food restaurant near his house. We settled in a corner booth away from others. We sat across from each other, the Formica table top between us, and we talked. We had spoken before about his experiences – the torture at the hands of the Special Branch, the struggles to fight against apartheid. But this conversation was about whether he would be a plaintiff and a class representative in the apartheid litigation pending in New York.
I explained how much of a long shot the litigation was going to be; how many years it would take; how hard it would be; how he would have to talk about experiences that are hard to relive.
He was unphased. James simply said that he lived under apartheid and he knew all too well about the law, about the way legal systems do not lead to justice. He had no illusions about where this might go, and yet he was fully on board for the years of struggle that were ahead.
And then he said to me he wanted to do this because he had never told his children what had happened to him. He wanted them to know – not just so that they would know, but because he wanted to break the cycle of violence and hatred that defined apartheid.
No more needs to be said about James. I will miss him. And I will forever remember him and his strength, his wisdom, and his humanity.
September 11, 2018
Emily Nagisa Keehn Co-Authors Case Study on Reducing Overcrowding in South African Detention Facility
Emily Nagisa Keehn, Associate Director of the Academic Program, has recently co-authored an article with Ariane Nevin from Sonke Gender Justice on human rights advocacy to reduce overcrowding in South African incarceration facilities and its relationship to HIV/AIDS, tuberculosis, and other health outcomes. Part of a research series under the Evidence for HIV Prevention in Southern Africa (EHPSA) initiative, the case study focuses on advocacy and impact litigation directed at Pollsmoor Remand Detention Facility, one of South Africa’s most notoriously crowded and inhumane detention facilities and where Nelson Mandela was previously incarcerated and developed tuberculosis. Keehn and Nevin place the attempt to reduce overcrowding within the broader landscape of criminal justice reform in South Africa.
Pollsmoor Remand houses people awaiting trial and sentencing; it has experienced acute overcrowding since the early 2000s, with its occupancy spiking over 300% capacity. As the coauthors state:
“In 2015, after years of lobbying to reduce overcrowding and in the face of inertia on the part of policymakers and legislators, civil society escalated its advocacy and mounted a constitutional challenge in the Western Cape High Court with the case, Sonke Gender Justice v. the Government of South Africa.
In 2016, the judge ruled against the government and made a historic order to reduce occupancy to 150% of its capacity over a six-month period. By February 2017, the Department of Correctional Services…had already taken steps to reduce overcrowding at the facility from 252% to 174%…This case study describes the complex change process that enabled this reform and the contributions of different forms of advocacy by key actors.”
This paper is part of the series Included! How change happened for key populations for HIV prevention, commissioned by EHPSA to Sonke Gender Justice. EHPSA is a multi-country research initiative that examines HIV prevention in incarcerated populations, adolescents, and men who have sex with men. The full series of nine case studies and a discussion paper is available on the EHPSA website.
September 27, 2017
Thursday, September 28, 2017
“Rights, Action, and Accountability: Tackling Gender-Based Violence and HIV in Southern Africa”
A talk by Dean Peacock, Executive Director, Sonke Gender Justice
12:00 – 1:00 p.m.
Lunch will be served
Please join us for a talk by Dean Peacock, Co-Founder and Executive Director of Sonke Gender Justice, an award winning South African NGO working across Africa to prevent gender-based violence, reduce the spread and impact of HIV and AIDS, and promote human rights. Dean is a visiting scholar at the University of California, San Francisco Center for AIDS Prevention Studies and is an honorary senior lecturer at University of Cape Town’s School of Public Health. He is an internationally recognized expert on masculinities and serves on many advisory boards, including the Nobel Women’s Initiative Campaign to Stop Rape and Domestic Violence in Conflict, and was a member of the U.N. Secretary General’s Network of Men Leaders.
October 25, 2016
We’re very pleased to cross-post this piece by Emily Nagisa Keehne, Associate Director of HRP’s Academic Program, who argues in The Guardian that it’s vital the court of appeals uphold a ruling that makes South Africa’s gold mining industry accountable to women whose husbands died from silicosis. Emily co-authored the piece with her former colleague, Dean Peacock, Executive Director of Sonke Gender Justice in South Africa.
“Justice is long overdue for the widows of South African mineworkers”
For decades, women in rural South Africa have shouldered the burden of caring for mineworkers who return home with silicosis contracted in South Africa’s gold mines. These women do the back-breaking and emotionally taxing work of caring for men who are dying slow and painful deaths, their lungs irreparably scarred by the silica dust they breathe in underground.
Testimony from women in South Africa’s Eastern Cape province reveals the brutal toll silicosis has taken on families. “My husband was the sole breadwinner,” recalled one woman. “If we had money, he had sent it. During his last days, he lost his strength and his chest closed up. It was difficult for him to cover himself with blankets, so I would cover him up. He could not go outside to relieve himself, so he would do it right there in the bed. I would have to throw it away. On his last day his chest closed up completely. I am left with almost nothing.”
From village to village, such stories were a recurring refrain. “I used to carry [my husband] around,” said another woman. “I used to go from house to house asking for food, we had children going to school. At times I would get piece jobs so we could eat.”
Eventually, this woman’s husband became unable to breathe. He died before he could even get in a car to go to hospital.
These conditions are the predictable outcome of deliberate mining policies.
Starting in the 1880s, when gold was first discovered, gold mining houses colluded with British colonial governments to put in place a range of taxes and legislation that forced black men to leave their land to work in the mines.
Once there, these men were forced to do dangerous jobs. Their work exposed them to malnutrition, tuberculosis and dangerous levels of silica dust. Many developed silicosis, which scars the lungs, makes breathing difficult, increases vulnerability to tuberculosis and can ultimately cause asphyxiation.
Black women, on the other hand, were required to remain in rural areas, where they carried out the work of raising workers and, often, caring for them when they later returned home desperately ill.
This exploitation remained entrenched for most of the 20th century. The mining industry corrupted the medical examination boards ostensibly in charge of mineworkers’ health. The boards then underreported cases of silicosis, decreasing workers’ eligibility for compensation. Together with the apartheid government, the industry set up a distinct and difficult to use compensation scheme. One study by Deloitte found that less than 1.5% of claims had been paid out to eligible miners.
The consequences of this arrangement were predictable. A 2009 report revealed that almost all miners interviewed in the former republic of Transkei, the largest provider of mining labour, had symptoms of respiratory illness. None were formally employed. About 92% said they went without food or experienced hunger on a monthly basis.
South Africa’s post-apartheid constitution has allowed human rights lawyers and mineworkers to begin to hold mines accountable.
In 2011, South Africa’s constitutional court issued a landmark ruling allowing Thembekile Mankayi, who had contracted silicosis working underground, to sue AngloGold Ashanti for full loss of wages, damages and medical expenses, regardless of what was already available to him under the miner-specific compensation scheme.
Human rights lawyers subsequently petitioned the courts to allow a class action lawsuit; potentially, hundreds of thousands of miners would join together to sue for as much as 20-40bn rand (roughly £1.2bn-£2.3bn).
Two South African NGOs – the Treatment Action Campaign (TAC), an Aids activist group, and Sonke Gender Justice, a gender equality organisation – applied to join the case as amici curiae (impartial advisers to the court), introducing evidence on the social costs of silicosis.
TAC drew attention to the relationship between silicosis and TB. Sonke offered evidence on the gendered impact of silicosis, particularly the financial, emotional and physical burden borne by women and girls who care for sick mineworkers when they return home, often foregoing their own income and education. The amici argued for the authorisation of the class action, and the transmission of claims to widows and dependents.
Despite opposition by the mining houses, the court admitted them as amici. Sonke’s affidavit on the gendered impact of silicosis was also admitted into the proceedings.
In May this year, the Johannesburg high court granted its historic ruling. It amended existing common law to allow general damages to be transmitted to the widows and dependents of miners who died in the early stages of litigation. Prior to this ruling, if plaintiffs died before pleadings had closed their claims would become void.
The ruling sets an important precedent that affirms women’s rights and the imperative to remedy the gendered harms imposed by the mining industry. The mining companies are appealing the decision, however.
As the case unfolds, it is critical to remember what is at stake. A century of damage caused by the South African gold mining industry requires remedy. The mining companies must pay long overdue compensation to the workers, widows, children, and communities they impoverished.
October 12, 2016
For Immediate Release
South Africa: Protect Residents’ Rights from Effects of Mining
Government Response to Environmental and Health Threats Falls Short
(Cambridge, MA, October 12, 2016)—South Africa has failed to meet its human rights obligations to address the environmental and health effects of gold mining in and around Johannesburg, the Harvard Law School International Human Rights Clinic (IHRC) said in a new report released today.
The 113-page report, The Cost of Gold, documents the threats posed by water, air, and soil pollution from mining in the West and Central Rand. Acid mine drainage has contaminated water bodies that residents use to irrigate crops, water livestock, wash clothes, and swim. Dust from mine waste dumps has blanketed communities. The government has allowed homes to be built near and sometimes on those toxic and radioactive dumps.
Examining the situation through a human rights lens, the report finds that South Africa has not fully complied with constitutional or international law. The government has not only inadequately mitigated the harm from abandoned and active mines, but it has also offered scant warnings of the risks, performed few scientific studies about the health effects, and rarely engaged with residents on mining matters.
“Gold mining has both endangered and disempowered the people of the West and Central Rand,” said Bonnie Docherty, senior clinical instructor at IHRC and the report’s lead author. “Despite some signs of progress, the government’s response to the crisis has been insufficient and unacceptably slow.”
The report is based on three research trips to the region and more than 200 interviews with community members, government officials, industry representatives, civil society advocates, and scientific and legal experts. It provides an in-depth look at gold mining’s adverse impacts and examines the shortcomings of the government’s reaction.
For example, although acid mine drainage reached the surface of the West Rand in 2002, the government waited 10 years before establishing a plant that could stem its flow. In addition, the government has not ensured the implementation of dust control measures and has left industry to determine how to remove the waste dumps dominating the landscape.
The Cost of Gold calls on South Africa to develop a coordinated and comprehensive program that deals with the range of problems associated with gold mining in the region. While industry and communities have a significant role to play, the report focuses on the responsibility of the government, which is legally obliged to promote human rights.
The government has taken some positive steps to deal the situation in the West and Central Rand. This year, it pledged to improve levels of water treatment by 2020. In 2011, it relocated residents of the Tudor Shaft informal settlement living directly on top of a tailings dam. The government along with industry has also made efforts to increase engagement with communities.
Nevertheless, The Cost of Gold finds that the government’s delayed response and piecemeal approach falls short of South Africa’s duties under human rights law. As a result, the impacts of mining continue to infringe on residents’ rights to health, water, and a healthy environment, as well as rights to receive information and participate in decision making.
“The government should act immediately to address the ongoing threats from gold mining, and it should develop a more complete solution to prevent future harm,” Docherty said. “Only then will South Africa live up to the human rights commitments it made when apartheid ended.”
For more information, please contact:
In Cambridge MA, Bonnie Docherty: email@example.com
September 20, 2016
Posted by Cara Solomon
Now that we’re in the rhythm of the semester, it’s time to introduce some new faces in the International Human Rights Clinic. We’re thrilled to welcome five new clinical advocacy fellows, all accomplished lawyers with different expertise and experiences. They’re leading clinical projects this semester on a range of new topics, from human rights protection in investment treaties to armed conflict and the environment.
In alphabetical order, here they are:
Fola Adeleke is a South African-trained lawyer who specializes in international economic law and human rights, corporate transparency, open government and accountability within the extractives industry. This semester, his projects focus on human rights protection in investment treaties and reconfiguring the licensing process of mining to include more consultation with communities.
Rebecca Agule, an alumna of the Clinic, is an American lawyer who specializes in the impact of conflict and violence upon individuals, communities, and the environment. This semester, her project focuses on armed conflict and the environment, with a focus on victim assistance.
Juan Pablo Calderón-Meza, a former Visiting Fellow with the Human Rights Program, is a Colombian attorney whose practice specializes in international law and human rights advocacy and litigation. This semester, his project focuses on accountability for corporations and executives that facilitated human rights abuses and atrocity crimes.
Yee Htun is the Director of the Myanmar Program for Justice Trust, a legal non-profit that partners with lawyers and activists to strengthen communities fighting for justice and human rights. Born in Myanmar and trained as a lawyer in Canada, Yee specializes in gender justice and working on behalf of refugee and migrant communities. This semester, her project focuses on women advocates in Myanmar.
Salma Waheedi is an attorney who specializes in international human rights law, Islamic law, gender justice, family law, comparative constitutional law, and refugee and asylum law. Born in Bahrain and trained as a lawyer in the U.S., Salma currently holds a joint appointment with Harvard Law School’s Islamic Legal Studies Program, where she focuses on family relations in Islamic jurisprudence. This semester, her project focuses on gender justice under Islam.
We’re so pleased to have the fellows as part of our community this semester. Please swing by at some point to introduce yourself and say hello.
August 22, 2016
Posted by Gerald Neuman
Today I have the honor of announcing an exciting new appointment at the Human Rights Program. Emily Nagisa Keehn has joined HRP as Associate Director for the Academic Program. Emily is a dynamic and skillful human rights lawyer, who will bring leadership and experience to the work of the Academic Program, and who looks forward to developing strong relationships with our students. She will also act as an important liaison between the HRP Academic Program and other parts of the Law School and the University.
Emily joins the Human Rights Program from Sonke Gender Justice in Cape Town, where she was the head of policy development and advocacy. In this role, she directed strategic litigation, research, parliamentary engagement, and advocacy pertaining to human rights, gender, and HIV. She primarily focuses on human rights issues at the intersection of criminal justice, gender, and health.
Previously, Emily worked for UCLA School of Law, where she developed and ran a post-graduate legal fellowship for Southern African public interest lawyers, culminating in an LL.M. and a one-year work placement with a human rights organization. Emily’s experience spans Southern Africa, Southeast Asia, Israel and the U.S. She holds a B.A. in Anthropology from the University of California, San Diego, and a J.D. from UCLA School of Law.
At HRP, Emily will play a substantive and managerial role in innovating and implementing academic activities, including the speaker series, conferences, and the Academic Program’s various fellowships.
We welcome her warmly and look forward to your meeting her soon.
June 29, 2016
Statement on the end of the In re South African Apartheid Litigation
June 29, 2016
Last week, the U.S. Supreme Court declined to hear a major corporate accountability case, Ntsebeza, et al., v. Ford Motor Co., et al., that represented the last opportunity for South Africans to achieve justice in U.S. courts for apartheid-era crimes. The U.S. corporations – Ford and IBM – were alleged to have purposefully facilitated violations of international law by enabling the denationalization and violent suppression, including extrajudicial killings, of black South Africans living under the apartheid regime. What began fourteen years ago as litigation against dozens of multinational corporations has effectively ended without ever even entering discovery.
We are deeply disappointed for our clients and the communities who suffered as a direct result of corporate complicity in violence and oppression. We are also extremely concerned about the reluctance of U.S. courts to take on powerful corporate actors that have involved themselves in human rights abuses abroad. Continue Reading…
June 3, 2016
Posted by Tyler Giannini and Susan Farbstein
Last week, the International Human Rights Clinic and co-counsel filed our reply brief with the U.S. Supreme Court, responding to Ford and IBM’s opposition to the petition for a writ of certiorari in the in re South African Apartheid Litigation. The reply brief points out the clear circuit splits that require the Supreme Court’s attention, flatly rejecting Defendants’ claim to the contrary. Continue Reading…
April 5, 2016
The challenges are immense: schools built of mud, overcrowded and collapsing classrooms, unsanitary toilets, inadequate water supply, insufficient electricity, and a painful lack of science labs, libraries, computer access, and sports fields. For years, our partners in South Africa, Equal Education (EE) and Equal Education Law Centre (EELC), have fought for safe, quality schools—and won many important victories. Now a new short film is documenting their ongoing work, sharing the stories of affected students and highlighting how community activism and creative lawyering can bring about real change.
EE first launched its infrastructure campaign back in 2010; a hard-won court victory against the Minister of Basic Education led to the promulgation of binding norms and standards for school infrastructure in 2013; and by November 2016, all schools across the country will be required to have running water, basic sanitation, and electricity, while no schools can be built entirely from wood, mud, metal, or asbestos.
The film, made in partnership with Adam Stofsky’s (JD ’04) New Media Advocacy Project, documents infrastructure problems in the Eastern Cape in particular. Students, teachers, parents, and principals speak about the devastating impact that poor facilities have on learning outcomes. The piece is an inspiring testament to the power of storytelling and to the movement that EE and EELC have built. Our Clinic is proud to have supported it since 2012.
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