Blog: South Africa

October 12, 2016

Clinic Highlights Human Rights Costs of South African Gold Mining

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.

sareportpicExamining 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: bdocherty@law.harvard.edu

June 3, 2016

Clinic Files Reply Brief in Petition for Certiorari in Apartheid Litigation

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…

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February 10, 2016

Clinic Files Petition for Certiorari in Final Attempt to Hold Two U.S. Corporations Accountable for Supporting Apartheid

Posted by Tyler Giannini and Susan Farbstein

The Clinic and its partners today filed a petition for writ of certiorari with the U.S. Supreme Court in the In re South African Apartheid Litigation suit, asking the Court to clarify the circumstances under which defendants may be held accountable in U.S. courts for human rights violations. The case, which involves the actions of U.S. corporations IBM and Ford, raises questions about whether a defendant’s knowledge is sufficient to establish aiding and abetting liability, or whether specific intent or motive must also be demonstrated. It also concerns how closely a human rights violation must be connected to the United States in order to sue under the Alien Tort Statute (ATS), and whether corporations can be held liable at all under the ATS.

The petition argues that through their actions, and decades-long support for violations associated with apartheid, defendants IBM and Ford 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.” According to the petition, “IBM and Ford purposefully designed, sold, and serviced customized technology and vehicles for the South African government that they knew in advance would be used to racially segregate and systematically oppress black South Africans.”

Despite the corporations’ knowledge and deliberate action, in 2015 the Second Circuit concluded that IBM did not aid and abet international law violations because there was no evidence that “IBM’s purpose was to denationalize black South Africans and further the aims of a brutal regime.” In an equally striking 2011 decision, the Fourth Circuit imposed an aiding and abetting standard requiring defendants who supplied mustard gas to Saddam Hussein’s Iraqi regime to not just know but rather intend that it be used against civilians.

The petition argues that, if left to stand, the Second and Fourth Circuits’ rulings will protect U.S.-based aiders and abettors of international law violations from liability. The Second and Fourth Circuits implicitly rejected the standard set at Nuremberg, under which industrialists who knew that Zyklon-B gas would be used to commit genocide, and deliberately decided to sell it to the Nazis, were convicted. Unlike the Second and Fourth Circuits, the Nuremberg courts did not require that the defendants intended their products to be used against civilians, or that they shared the genocidal motives of the Nazis.

As the petition explains, “the Second Circuit’s standard is thus so restrictive that it is now easier to convict individuals of international crimes before the [International Criminal Court] than to find individuals civilly liable under the ATS for the same acts.” In other words, perpetrators convicted of international crimes at Nuremberg would not be civilly liable under the ATS for aiding and abetting the Holocaust.

Continue Reading…

August 10, 2015

New Revelations of Political Interference in Prosecution of Apartheid-Era Crimes

Posted by Susan Farbstein

Back in 2009, when our Clinic published a book about the prosecution of apartheid-era crimes in South Africa, we knew that state prosecutors had brought shockingly few charges since the Truth and Reconciliation Commission (TRC) concluded its work—but we didn’t know why.  Now, thanks to a recently-filed case in the Pretoria High Court, we’re starting to get an answer.  And it isn’t pretty.  The new case alleges that South Africa’s ruling ANC government sought to protect apartheid-era security forces from prosecution, in order to protect itself.

The case was filed by the family of Nokuthula Simelane, who was 23 years old in 1983 when, while acting as a courier for the armed wing of the ANC, she was abducted, tortured, and disappeared by the Security Branch of the former South African Police.  Her remains were never found.  Although the TRC granted amnesty to some of the perpetrators in Simelane’s case in 2001, it also recommended that the National Prosecuting Authority (NPA) investigate further with an eye towards prosecuting those not granted amnesty.  No such investigation or prosecution occurred.

The lack of progress in Simelane’s case is representative of numerous others.  Under the terms of the TRC, any perpetrator who did not apply for and receive amnesty could be prosecuted.  In its final report, the TRC recommended that the state pursue a bold prosecution policy, and in 2003 referred approximately 300 cases to the NPA for investigation and potential prosecution (as well as an additional 500 missing persons cases). The prosecutions never materialized.

New court filings now allege that the South African state “put in place measures to manipulate, control or obstruct prosecutorial decisions dealing with political cases of the past.”  In particular, supporting affidavits—from extremely important public figures including the former director of the NPA and the head of its Priority Crimes Litigation Unit (PCLU)—provide detailed accounts of high-level interference by ministers and senior government officials to block post-TRC prosecutions.

It appears that those efforts were grounded in fears that cases against security forces perpetrators would open the door to charges against ANC leaders and members as well.  The result, as explained by Anton Ackermann, the former head of the PCLU, was that the NPA was “effectively stopped from pursuing the investigation and prosecution of the so-called political cases arising from South Africa’s past.”

On the day in 2004 when three policeman were to be arrested for the attempted murder of Frank Chikane, the former head of the South African Council of Churches, Ackermann received a call from an official in the Ministry of Justice stating that “a decision had been taken that the Chikane matter should be put on hold pending the development of guidelines to deal with the TRC cases.”  After Ackermann responded that only Vusi Pikoli, the NPA’s director, could give such an instruction, he was told by Pikoli not to proceed.  Ackermann concludes “that it can safely be assumed that [Pikoli] was instructed at a political level to suspend these cases.”  Investigations and prosecutions of TRC cases were placed on hold until new guidelines could be formulated.

Once new guidelines regarding TRC cases were put into place at the end of 2005—guidelines authorizing use of the same amnesty criteria applied by the TRC while granting prosecutors wide latitude to decline to prosecute even when adequate evidence existed, and which were eventually struck down as unconstitutional—Ackermann again sought to proceed with cases previously identified for prosecution.  He was prevented from doing so by a lack of investigative capacity and the unwillingness of an inter-departmental committee to meet and move the cases ahead.  He was later relieved of his duties in relation to the TRC cases.  Ackermann states, in his affidavit, that a political instruction came from above to remove him from these cases to thwart prosecutions.  “It is no coincidence,” he asserts, “that there has not been a single further prosecution since I was relieved of my duties in this regard.”

Pikoli’s affidavit confirms that political interference effectively barred the investigation and prosecution of TRC cases, and characterizes the Chikane case as the “unraveling” of the NPA’s efforts.  Pikoli describes a meeting called by the Acting Minister of Justice and Constitutional Development, and attended by multiple other ministers, at which “it became clear that there was a fear that cases like the Chikane matter could open up the door to prosecutions of ANC members.”  He also details how “powerful elements within government structures were determined to impose their will on my prosecutorial decisions.”  Like Ackermann, Pikoli was suspended from his duties as director of the NPA and believes that the decision to pursue prosecutions of apartheid-era perpetrators contributed to his suspension and eventual dismissal.

Other affidavits speak to the impact of the absence of prosecutions on South African society and the TRC’s legacy.  Alex Boraine, the Vice Chair of the TRC, states that political inference with the NPA’s mandate and the resulting abandonment of TRC cases has seriously eroded the human rights culture established by South Africa’s constitution, violated the rights of apartheid-era victims to a remedy, and allowed perpetrators to escape justice.  Dumisa Ntsebeza, the head of the TRC’s Investigation Unit, asserts that the failure to prosecute those who never applied for amnesty undermined those who did, and that a tardy justice in the form of limited reparations to survivors has compromised the dignity that the TRC sought to build.

Together, the affidavits offer compelling evidence of political interference by the government into the work of the NPA, which effectively blocked the investigation of cases recommended for prosecution by the TRC.  Now that the truth has come out, it’s time for the NPA to get back to work, without additional political meddling.  Justice, delayed far too long, must no longer be denied.

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March 31, 2015

What’s So Bad About a 10-Mile Walk to School?

Posted by David Victorson, JD '16

A few weeks ago the Harvard Human Rights Program tweeted about the fact that many students in rural South Africa have to walk more than 20km each day to get to and from school. They cross rugged mountains and flooded rivers. They navigate dangerous highways and treacherous weather. They face physical injury and emotional harm.

Surprisingly, shortly after we posted our tweet, a small number of Twitter users pushed back. One accused us of ignoring how lucky these students are to even be at school, implying that the difficulties of getting there are inconsequential. Another responded that if “it doesn’t kill you it makes you strong.” But as those paying attention to news reports over the past month know, a poor learner transport system has, in fact, already led to the death and injury of multiple children this year. And on our recent trip to Nqutu, KwaZulu-Natal, it didn’t take long to find students who have personal experience with the risks of robbery, rape, kidnapping, and even the death of friends – all created by the long journey to school.

How can this be inconsequential? How does this make anybody stronger?

Faced with such a difficult journey to school, many affected students drop out before completing Grade 12. During our trip, we heard from those who have continued attending school that they arrive exhausted, hungry, and have difficulty focusing in class. When they get home late at night, they may have responsibilities such as caring for livestock, fetching water, and helping to bathe siblings, nieces, and nephews before they can study. Some students go to bed at 11:00 pm, only to rise at 4:00 am and start their journey again.

Because of the many hours lost traveling to and from school, these students are forced to fit a full 24-hour day into something much less. Many struggle to do so by sacrificing homework and sleep, which has long-term consequences on their ability to stay healthy, to concentrate and to learn, and ultimately, to reach their full potential as adults.

Meanwhile, South Africa’s unemployment rate currently hovers around 25%. Among the youth labor force, this numbers jumps to over 33%. Nearly one-third of those aged 15 to 24 are not in employment, education, or training. They are detached from the labor force with seemingly no way to better their situation.

The consequences for South African society stretch far beyond these unemployed individuals. Continue Reading…

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March 23, 2015

Student Transport Vital to Unlocking the Promise of Education in South Africa

Posted by Katie King, JD '16

I’ve always loved school. Starting from a young age, I even loved the journey to get there. It was time spent with my siblings—an opportunity to tease each other and a chance to get a taste of what felt like the grown-up responsibility of walking alone.

The students in Nqutu, a small, rural area in eastern South Africa, are often just as excited as I was about school. However, as I heard during a trip there this past January with the International Human Rights Clinic, the morning starts for many of them at 4 or 5 a.m., when they wake to fetch water, let out their family’s cows, and help their younger siblings get ready. They then set off on a walk that often exceeds 10 miles.

Some students in Nqutu walk 20 miles to and from school. See more images from the Clinic's recent trip in this slideshow.

Some students in Nqutu walk 20 miles to and from school. See more images from the Clinic’s recent trip in this slideshow.

They tease each other and gossip as I once did, doing their best to protect their uniforms and textbooks from the dirt and weather. But, as the students told us, by the time they arrive at school two hours later, their energy has worn off—and they are fully aware, as they do their best to pay attention in class, that they will have to repeat the journey all over again at the end of the day.

Factor in the additional risks of robbery, rape, snakebites, and treacherous river crossings, and it’s difficult for me to imagine that my five-year-old self would ever have been able to make it to school, let alone focus in class or have the time and energy to complete my homework, in similar conditions. I arrived well-rested and ready to learn. Can the same be said of Nqutu’s students?

Since 2009, the South African government has dragged its heels on finalizing a national scholar transport policy that would address the education system’s many transport-related problems. This is no small matter. As a result of this failure to act, the government is not fulfilling a fundamental right in South Africa’s constitution: the right to a basic education.

Our partners, Equal Education and Equal Education Law Centre, have been campaigning for a range of improvements in the educational system, taking on everything from schools without water and electricity to access to textbooks. In 2014, their student-powered movement shifted its focus to another critical piece of the puzzle: safe, affordable, and reliable school transport.

Not only has the national government failed to fix the problems it itself acknowledged in the draft national scholar transport policy, but the KwaZulu-Natal government has ignored the legal responsibilities it previously set for itself. Provincial policy requires KwaZulu-Natal to provide transportation subsidies to learners who walk more than 3 kilometers to school—a distance easily exceeded by dozens of students we talked to in our short time in Nqutu. None of the students we spoke with were receiving this assistance.

Principals told us they had submitted applications to the provincial government and never heard anything back. Determined to make sure children receive an education, some adults who live closer to school have opened their homes to students from more remote villages. Others drive trucks with more than 20 students packed into the back.

These stop-gap solutions are unsustainable; the government has the responsibility to act. Without a safe, reliable way to get to school, students’ ability to learn is compromised, and education’s promise of a better, more equitable future goes unfulfilled.

The solution may have to be multi-faceted. As we learned on our visit, though many of the difficulties students face are common, there are also different obstacles from school to school; one school may simply need a bus, while another may have learners who are so dispersed that school boarding facilities are the best response. Still, such complexities are not sufficient reason for continuing to stall—especially not when South Africa’s students, in the face of so many challenges, continue to embark upon their long walk to education every day.

View slideshow from the Clinic’s recent trip to Nqutu

Katie King, JD ’16, has been working with the International Human Rights Clinic since last September on issues related to the right to education in South Africa. She spent her 1L summer interning at Equal Education Law Centre in Cape Town.

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October 24, 2014

School Underperformance Reflects Government Underperformance in South Africa

Posted by Elizabeth Loftus, JD '16

In the coming month, all across South Africa, over half a million students will be sitting down to take the National Senior Certificate exam. Some will be sitting at individual desks in state-of-the-art classrooms. But others will be sitting on cinder blocks and at shared desks in buildings that lack water, electricity, and toilets. Wherever they are, students will be taking the same high-stakes test, one that will determine their future. Students who pass will graduate from high school and gain access to higher education opportunities. Students who fail will not.

Courtesy: Equal Education

Photo courtesy of Equal Education

The exam has a broader purpose, as well: the South African government uses pass rates to identify public schools that lag behind national performance standards. Institutions at which less than 60% of students pass the exam are designated “underperforming.” Underperformance trends in the South African school system reveal startling inequalities and show that the Department of Basic Education’s own underperformance in addressing this critical issue is inexcusable.

Following last year’s exam, 1,407 schools across South Africa qualified as underperforming. The poorest performing provinces were the Eastern Cape and Limpopo, which had pass rates 15%-20% lower than those in the majority of other provinces. Nearly half of the schools in the Eastern Cape failed to meet national performance standards. Shortcomings such as poor infrastructure, inadequate materials, overcrowding, and negligent management all suppress success in vulnerable schools. Not coincidentally, underperformance in the education system disproportionately affects learners in the poor, rural, historically black areas of the country.

Indeed, many of today’s challenges troublingly echo conditions of twenty-five years ago, when the legal framework for education existed to perpetuate racially separate and unequal education. Under the apartheid education system, black schools were designed to underperform in comparison to their white counterparts in order to keep black South Africans undereducated and capable of performing only unskilled, low-wage jobs. The measurable effects of this policy were severe: the government spent 10 times more on white schools than it did on black schools; while there were 18 white students per teacher, the ratio in black schools was 39 to 1; the standardized exam passage rate for blacks was less than one-half that of whites. It is shocking how little these figures have changed since the end of apartheid. In a visit to the Eastern Cape in 2013, community-based education NGOs found primary school classrooms with over 50 students and secondary school classes with over 100 students. Some schools have no electricity and lack desks, chairs, textbooks, and library facilities.

The persistent, systemic deficiency in school performance requires a coherent, national policy solution. But, rather than designing a coordinated response, the Department of Basic Education (DBE) has largely overlooked underperformance as a problem in and of itself. National guidelines on improving school performance do not exist. At a more basic level, it is unclear that the DBE even fully appreciates the gravity of underperformance since it has failed to comply with monitoring, evaluation and remediation requirements outlined in the governing national legislation, the South African Schools Act (SASA). A recent example of the DBE’s inadequate approach is evident in the comparison of its 2013-2014 yearly action plan with its 2013-2014 year-end review. “Underperforming schools” appeared only twice in the action plan. The year-end review made only general references to underperforming schools, showing little follow-up on the action plan and providing almost no guidance for reform.

Luckily, groups like Equal Education (EE) and Equal Education Law Center (EELC) have turned their attention to the cause and have committed their considerable social resources to drawing others’ attention, as well. In a far-reaching approach, EE and EELC have undertaken a variety of advocacy strategies in Parliament, the court system, communities, and schools. EE has organized policymaker visits to underperforming schools. In 2012, in response to students’ call for help, EE launched litigation to compel authorities to address the dire learning conditions at Moshesh Senior Secondary School in the Eastern Cape. Recently, EE and EELC produced a shadow report for the parliamentary oversight committee on education, pushing the government to hold the DBE accountable for its shortcomings. All of these steps are important in forcing the DBE to acknowledge the problem and meet its obligations, such as those enumerated in the SASA. Only by living up to its own standards can the DBE help schools live up to theirs.

Elizabeth Loftus, JD ‘16, is a student in the International Human Rights Clinic currently working on education-related issues in South Africa, in partnership with EELC. She has previously worked on projects related to South Africa as a member of the Harvard Law and International Development Society.

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July 31, 2014

Fellowship Announcements!

Posted by Mindy Roseman

The Human Rights Program at Harvard Law School is pleased to announce the establishment of the Global Justice Fellowship (GJF) with the generous support of the Planethood Foundation. The fellowship supports scholars, advocates, and practitioners with a demonstrated background in international justice and the rule of law. Of most interest are those whose work concerns ongoing human rights issues, especially those touching on egregious violations, including genocide, crimes against humanity, or war crimes.

Matthew Bugher, JD ‘09, is the inaugural Global Justice Fellow. Over the coming year, Matthew will work to combat state-sponsored violence and persecution in Myanmar and Zimbabwe. More specifically, he will contribute to the Clinic’s ongoing advocacy relating to military policy reform in Myanmar; work with partners on new initiatives to promote accountability for gross human rights violations; and support local activists in their efforts to document abuses.

Earlier in the summer, the Human Rights Program made several other fellowship awards. With the support of a Henigson Human Rights Fellowship, Maryum Jordan, J.D. ’14, will work in Peru with EarthRights International; Lindsay Henson, J.D. ’14, will work in South Africa with Lawyers Against Abuse; Sarah Wheaton, J.D. ’14, will work in Egypt with St. Andrew’s Resettlement Legal Aid Project; and Anjali Mohan, J.D. ’14, will work in Myanmar with Justice Base.

HRP also awarded two Satter Human Rights fellowships: to James Tager, J.D. ’13,  who will work with the International Commission of Jurists in Thailand, and to Jason Gelbort, J.D. ’13, who will work with Public International Law & Policy Group in Myanmar.

NOTE: HRP recently re-opened the application process for one more Satter Fellowship.

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July 29, 2014

Susan Farbstein in the Harvard Human Rights Journal

In the latest volume of the Harvard Human Rights Journal, released last week, Clinic Director Susan Farbstein reflects on when, if ever, violence is justified in the struggles for social and political change. The article is adapted from her remarks this past spring at Harvard Law School’s memorial event for Nelson Mandela, the South African leader who died last December. Farbstein, whose work in South Africa currently focuses on the right to education, says in part:

“Ultimately, it is not enough to answer the question posed. We must ask ourselves an equally important follow-up question: If violence is sometimes justified- or resorted to–in struggles for social and political change, how might the damage inflicted on the emerging society be minimized? Mandela’s legacy of forgiveness and reconciliation offers the beginnings of an answer.”

Read Farbstein’s article in full in Volume 27 of the Harvard Human Rights Journal.

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December 18, 2013

Winning on School Infrastructure, Honoring Mandela

Posted by Susan Farbstein

As South Africa and the world remember Nelson Mandela, there is perhaps no greater way to honor his legacy than to continue the struggle for social justice.  A quality education for all children must be at the core of such efforts, as Mandela himself recognized.  “Education is the most powerful weapon which you can use to change the world,” he said.  In the week before his death, real progress was made on the education front in South Africa.

Photo courtesy of Equal Education

Members of Equal Education march to the Department of Education in Pretoria to demand norms and standards. (Photo courtesy of Equal Education)

After three years of sustained campaigning by our South African partners, Equal Education (EE) and Equal Education Law Centre (EELC), Minister of Basic Education Angie Motshekga finally released binding norms and standards for school infrastructure on November 29th.  The norms represent a significant victory for future generations of South African students, and for South Africa itself. 

The norms—which are legally binding—mandate substantial changes to public schools across the country, many of which must be realized on a relatively short time horizon.  Mud schools must be replaced within three years; schools that currently lack water, power, and toilets must be provided such facilities within three years; all schools must have classrooms, electric connectivity, and security measures within seven years; and all schools must have libraries and laboratories within ten years.  As a first step, provincial ministers will be required to develop school infrastructure plans within a year, and then report annually on their progress towards implementing the norms. 

There are still serious concerns.  The norms do not require provincial ministers to make either their plans, or their progress reports, available to the public.  The norms also contain a potentially worrisome legal loophole, in the form of language stating that they must only be implemented “as far as reasonably practicable.”  Equally troubling are some of the specific provisions, such as the proposed minimum number of toilets per student, which falls well short of international standards recommended by UNICEF and the WHO.  

Nevertheless, the norms carry the promise of tangibly improving the education, and therefore the lives, of millions of South African schoolchildren.  Our partners have fought long and hard to secure decent school infrastructure for all of South Africa’s students.  The norms victory would never have been possible without the advocacy work of EE student and parent members, who joined voices to ensure that their demands could not be ignored.  Their collaborative and creative efforts demonstrate that—as Mandela teaches us—while justice and equality may be a long time coming, a group of dedicated and committed people can transform a society.  Our Clinic is proud to support their work.

For more information, read Equal Education’s statement on the win, along with its statement after the death of Nelson Mandela. You can also find out about the Clinic’s work in South Africa here.