OGP must protect space for people power – Before it is too late

Police attempt to remove human rights protestors from a demonstration in London in July 2016. Photo: Alisdare Hickson

Police attempt to remove human rights protestors from a demonstration in London in July 2016. Photo: Alisdare Hickson

The mobile phone footage may be shaky, but there is no doubt about what is happening – and it’s a disturbingly familiar scene.  A black protester struggles against half a dozen policemen, who are attempting to restrain him amidst the screams of fellow protestors for them to desist. Seconds later, another black protester Jerry Afriyie is punched in the head by a policeman, dragged through the door of a bus and repeatedly beaten with batons.

Afriyie’s violent arrest, and those of nearly two hundred others, took place on 12th November in Rotterdam, during a protest against racism in Dutch society. Brutality like this is what those of us in civil society call a ‘civic space violation’. In plain English, this means any abuse, violent or otherwise, which prevents a person from organising, speaking out or taking peaceful action on an issue of concern to them.

My organisation, CIVICUS, is tracking this kind of abuse all over the world. In a huge number of countries – including in many Open Government Partnership (OGP) countries – ordinary people, whose only aim is to fight against injustice and create fairer, more tolerant societies, are being treated like common criminals or terrorists. In fact, right now there are serious civic space problems in over a third of OGP countries.

Even more worryingly, as we see from the example above, serious violations don’t just happen in authoritarian countries: they now happening in established democracies.

In some OGP member countries, the threats to peaceful dissent and activism are extremely grave. Examples include the assassinations of five social leaders in just one week in Colombia, the police’s use of tear gas and water cannons to disperse student protests in Honduras, the four-hour detention and questioning of a newspaper editor in Liberia and the murder of a community radio journalist in Mexico.

These OGP countries are part of a much broader, global trend in which we see that at least 3.2 billion people live in countries where there are serious violations of some of our most cherished and basic rights.

This situation has not come about overnight. Rather, we are now bearing the bitter fruits of the gradual degradation in respect for people’s basic right to speak out and challenge authority. This decline has been well documented now for at least a decade, to the point where trust and democratic institutions and elected leaders is at a dangerously low ebb.

Of course, it was a recognition of these very threats which led to the creation of the Open Government Partnership in 2010, as an ambitious attempt to innovate solutions which would bring people and their governments closer together and rebuild trust in the ability of democracy to deliver for all. Sadly, it is also these continuing feelings of disconnection and disaffection which are fuelling the rise of neo-authoritarians who further perpetuate the erosion of civic freedoms.

Our analysis of why these violations are happening reveals some predictable conclusions – but also some surprises. When we looked at data on the use of excessive force against protests, we saw that, unsurprisingly, protestors were targeted most often when they sought directly to challenge the state and its decisions. More surprising however was the finding that police often used tear gas, rubber bullets, baton charges and other extreme measures to attack crowds of people calling for very basic needs to be met. These needs include disability benefits, access to land and job opportunities. At the CIVICUS Monitor, we are also tracking a high number of protests by students and teachers which are regularly repressed with force.

This analysis tells us that there is combination of political and economic driving forces behind the increased activism on our streets – and also behind the repression that activists are being met with. It is a reminder that we cannot divorce our analysis of civic space violations from the economic models and rules being pushed forward by our democratically elected leaders, which benefit a few influential people and companies, rather than the majority of the population.

So what can governments and civil society organisations do, and specifically, what should those in OGP countries do to reverse this trend?

As a starting point, we should remember that all OGP governments have publicly committed themselves to the Open Government Declaration, which includes a commitment to safeguard ‘the ability of not-for-profit and civil society organizations to operate in ways consistent with our commitment to freedom of expression, association, and opinion.’

That matters. At the same time, it’s clear that words alone are not enough to make sure states comply with their obligation to protect civic space under international law. The recently-concluded OGP Summit in Paris heard a lot of good ideas for practical steps that could be taken.

A quick win is for OGP countries to include – and for civil society organisations to push them to include – specific and concrete commitments on civic space in their national action plans (NAPs). There is already evidence from Latvia, Bulgaria and Guatemala on how this can be done.

Other suggestions include the development of an OGP working group specifically focussed on civic space, something which would give reformers within government the tools and knowledge needed to create protective environments for civil society. Some also proposed a relook at eligibility criteria on citizen engagement and ‘basic protections for civil liberties’ to make sure that states who abuse civil society cannot get in or remain in the Partnership.

Governments and civil society alike are also calling for a much stronger focus on collective actions through which member countries jointly agree to secure better protections for civil society. In so doing, OGP member countries could  seek to work closely with ongoing efforts to defend civic space,  such as the Lifeline Embattled CSO Assistance Fund, the Community of Democracies working group on protecting and enabling civil society and the Task Team on CSO Development Effectiveness and Enabling Environment.

These past two weeks, we have seen the importance of huge citizen mobilisations happening across the globe in opposition to President Trump and his policies which undermine the international human rights framework. As South African political commentator Ranjeni Munusamy so eloquently put it this week, Mr Trump has ‘agitated a global awakening’. There is little doubt that in the years that lie ahead people will increasingly challenge power through protest and other tactics of nonviolent mobilisation.

And so, we say it again: the OGP must bring the protection of space for such activism centre stage. Otherwise, brutal attacks like those on the anti-racism protestors in Rotterdam will continue. And they will continue to eat away at public trust in democratic institutions, something which could ultimately undermine the OGP’s success.

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Swimming against the tide

usa_trumpWhen I first started this blog in 2014, there was a part of me which thought that its title (Democracy in a hostile world) was somewhat hyperbolic.

As I return to writing on it on 9th November 2016, a lot of water has passed under the bridge. In this brief two-year period, we have witnessed a torrent of unsettling events:

-Troubling democratic declines within the EU, most notably in Poland and Hungary.

-The rise of populist leader Rodrigo Duterte in Phillipines

-Russia’s entry into an ever-deepening conflict in Syria

-Brexit

-Brutal crackdowns on dissent in Turkey, Ethiopia, Burundi, the Democratic Republic of the Congo, Thailand, India, Russia…

-South Africa’s withdrawal from the ICC

…and now the election of Donald Trump as 45th president of the United States.

While Trump’s victory was no doubt the true reflection of the democratic will of the US electorate, the election of a man with no overt commitment to democracy, the rule of law or human rights to arguably the world’s most powerful office is a deeply troubling moment.

So worrying in fact that it must now force us to change our narrative about the state of the world from ‘worrying trend of democratic decline’ to ‘period of dominant illiberalism and divisiveness’.

We are now swimming against a strong tide which, if left unchecked, could overrun the remaining democratic dry land.

Amidst continued global economic uncertainty and the inability of the capitalist system to address the legitimate concerns of forgotten millions, populism and its ghoulish protagonists are finding fertile ground. There is now a real risk that the Trumps, Farages, Dutertes, Orbans and Erdogans of this world become the driving force of an unstoppable deluge which could easily sweep away the bulwarks of tolerance, peace-building and democracy that have been the centrepiece of international cohesion since the Second World War.

But this trend can be resisted, and reversed.

In this new game, driven by the rules of dominant illiberalism and divisiveness, social and protest movements must move from bit player to central protagonist. A cursory glance at twentieth century history teaches us that groups of people like this, acting non-violently but proactively, and in a strategic manner, can achieve profound and lasting change.

Such movements can be fostered by the thousands of civil society organisations aimed at promoting democracy and human rights, which are already active on the ground in almost all countries. These organisations’ time has now come. They must step up to become the labourers in building local and national movements asserting the people’s commitment to peace, tolerance, inclusiveness and rights-based societies.

If the regressive tide is to be stemmed, these movements must become the vanguard of a global movement to push back against the poisonous rhetoric of the populists and autocrats who are today gaining ground.

Such movements are already active or being built in many countries, including the USA, South Africa, the Democratic Republic of Congo, Poland and Ethiopia. They are challenging the overbearing power of the state, collusion between political and economic elites and the inability of our current capitalist system to deliver equitable societies for all.

We now need more of them and we need them to become interconnected. We also need those in a position to do so – the UN and ‘friendly’ states for instance – to support their efforts, overtly an unequivocally.

Ideally, more of these movements should have been built long ago. But if it takes Trump’s election to spark their birth around the world, so be it.

For now, I will be keeping the title of the blog as it is.

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Missing: an international response to the rising tide of impunity

This article was first published on openGlobalRights, a section of the openDemocracy.

Civil society organisations are targeted because political elites know they have power. But where is the international backup? A contribution to the openGlobalRights debate on closing space for civil society. Español

On the 5th of March 2016, the Turkish government took control of the country’s largest private newspaper, Zaman. The takeover happened at the newspaper’s head office during bizarre if not depressingly familiar scenes: police in riot gear firing canisters of tear gas into crowds of chanting protestors.

Ten years ago, such a brazen assault on the free press might have defied the logic of Turkey’s international political calculus. No longer. Sadly, we now live in an era where political leaders and powerful non-state actors know that civil society and the media are fair game, and that egregious violations of fundamental rights are less likely to attract punitive sanctions or even a cold shoulder from the international community.

Of course, civil society is reacting to the current threats against it, as shown through the courage of activists who continue their perilous struggle around the world every day. But it has done so mostly on a country-by-country basis. For its part, the United Nations has tried to address the situation by issuing strong condemnations in repeated resolutions, raising the profile of international agreements and supporting working groups and Special Rapporteurs, whose work helps to translate international law into practical recommendations for states to follow. Despite all of these efforts, the overall picture remains grim.

In today’s world, combatting terrorism, economic stagnation and the refugee crisis all trump the need to protect democracy and space for a vibrant civil society. There is no doubt that these are important issues, and all of them are at play in Turkey. The raid on Zaman comes at a time when European Union (EU) leaders are more likely to gloss over human rights violations—they desperately need the Turkish government’s help to address what they perceive as the much more pressing problem of mass migration through Turkey from the Middle East.


Emrah Gurel/Press Association Images (All rights reserved)

 

Thousands of protestors gather in solidarity outside the Zaman newspaper headquarters after Turkey declared a government takeover of the agency.


Governments all around the world are making similar calculations every day. A decade ago, we might have expected such attacks to be confined to particular geographic hotspots, beset by conflict, weak democratic institutions and authoritarianism. In 2014, CIVICUS published a list of 96 UN Member States that had violated fundamental freedoms to a significant degree. Our provisional findings for 2015 show that there are now at least 101 countries on this list. These countries are led by range of authoritarian, hybrid and democratic governments, and people living in these countries account for roughly 86% of the world’s population. Mimicking a contagious disease, the erosion of civil liberties has now spread worldwide.

Ever since 2013, when Edward Snowden revealed the extent of mass surveillance by the United States and several other established democracies through the Five Eyes alliance, citizens everywhere have realised that their own elected, supposedly accountable governments are threatening their fundamental freedoms. Attacks on civil society in democratic settings are now taking other forms too—from restrictive NGO rules in the UK, to harsh penalties for peaceful protestors in Spain and Australia, to public vilification of civil society in Hungary. According to our monitoring from 2015, the number of countries seriously violating space for civil society on the European continent jumped from nine to 16.

All of this has made it much more difficult for democratic states to claim the moral high ground when promoting human rights outside their borders. It has also emboldened other states, who know, like Turkey, that they are unlikely to be held to account internationally for abusing civil society.

Assaults on civil society are fuelled by a growing culture of impunity.Domestically, these violating governments also have free reign. While independent courts and a strong rule of law shield civil society from the worst forms of attack in democratic states, in many other parts of the world—where democratic institutions are much weaker—assaults on civil society are fuelled by a growing culture of impunity. This includes impunity for unidentified police officers using excessive force against peaceful protestors, and a lack of consequences for state and non-state agents who ransack NGO offices. Even worse, it means that people who have gunned down investigative journalists in cold blood are not investigated or prosecuted.

Impunity also extends beyond individuals. For example, profit-making companies implicated in human rights violations—such as maquiladoras in Mexico—are not held to account. In addition, states such as Azerbaijan, Ethiopia and Egypt, which have destroyed their civil societies, continue to be courted on the international stage by democracies in geopolitical power plays. In pilot surveys that CIVICUS conducted with civil society in 2015-2016 about their operating environment, respondents in South Africa, Poland, Tajikistan and Macedonia universally rated lowest the state’s willingness to investigate abuses against the sector.

There is no doubt that civil society is unfairly targeted in all of this. No justification exists for beating or locking up people trying to foster robust democratic debate or hold leaders accountable. At the same time, civil society must avoid creating a one-track narrative based on disempowerment and victimisation. We must remember that civil society organisations, social movements and individual activists are singled out because they are having an impact, because they do have power, and because their actions are upsetting entrenched political and economic elites.

More fundamentally, the assault on civil society should be correctly understood not just as a symptom of democratic failure, but also as a weakening of the forces that can actually solve the problems of intolerance and exclusion currently dividing societies. CIVICUS’ State of Civil Society Reports in 2014 and 2015 made it abundantly clear how civil society has been the first responder in crisis and conflict situations, saving lives, reaching out with compassion to refugees and defending the rights of the most marginalised people in society.

What we now need is far greater international solidarity and the creation of an internationalised social movement, which should have as its core purpose the development of a positive counter narrative and a vision for free and equitable societies, safeguarded by a robust space for civil society. In 2016, CIVICUS plans to support these efforts through a new international campaign on civic space, and through the launch of our new Civic Space Monitor web platform. Civil society also needs to push its traditional allies to do more to prevent democratic erosions at home so that their calls for protection will be taken seriously. For instance, European CSOs must continue their efforts to ensure the EU makes more active use of tools like the framework to safeguard the rule of law, recently called into action for the first time in response to events in Poland.

If we don’t move on this now, actions like Turkey’s outrageous takeover of Zaman newspaper—and the world’s deafening silence—will only become more common.

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Will the OGP sink or swim? Civic space will be the lifesaver.

This article was jointly written with Tanja Hafner-Ademi from the Balkan Civil Society Development Network and first appeared on the OGP’s blog, here.

The Open Government Partnership is just four years old, but already has the potential to help fight against restrictions on civil society space. It will only achieve that, however, if it helps countries develop  commitments that protect civil society and recognises the corrosive role of money in politics.

It seems self-evident that open governments need open societies. It should therefore be hard to imagine a government committing to increased transparency and engagement with citizens while at the same time incarcerating citizens for stating an opinion. Disturbingly, this is exactly what is happening in a growing number of countries today.

The Open Government Partnership (OGP) was created in 2011 and today boasts 69 countries as members. Despite its laudable goal of creating better government for citizens, its birth and early growth coincided with a period of devastating reversal of hard-won civil liberties all over the world.

This trend has become known in modern parlance as ‘shrinking civic space’. For the past decade, civil society groups and activists have documented this trend and called repeatedly – in most cases to no avail – for its reversal. In a recent report, (link is external) CIVICUS found that 96 countries around the world took measures to restrict civic space during 2014. This list includes 28 countries that are also OGP members.

The phenomenon of shrinking civic space is now a truly global one, engulfing authoritarian and democratic countries alike, even extending to several states in the European Union, which for so long, was considered a poster child for the democratic project. What is driving this unprecedented unraveling of democratic practices and standards?

We live in a world where citizens have growing expectations of their leaders. As access to education has expanded, it has become harder for governments to hoodwink their populations. Smartphones, the Internet and social media also help by enabling real-time insight and scrutiny of decision-makers. As the student-led protests in Hong Kong in 2014 made clear, the technological revolution helps organisers rapidly mobilise large numbers of people and exert real pressure on the state.

In spite of the increasing demands from citizens, many leaders seem to lack the commitment or skills needed to engage with their electorate. Many political leaders feel that once they have been voted into office, they don’t need to continue meaningful interaction with citizens. In such situations, attempts by civil society to push for deeper engagement with their governments are often frustrated, to the point where more critical and confrontational forms of peaceful citizen action emerges. States all around the world are becoming intolerant of such activism, resulting in a barrage of stigmatisation, harassment, arrest and in the worst cases, murder. A brutal and sustained assault on activists in Azerbaijan – still an OGP country – is for many the embodiment of this trend.

Perhaps the most critical driving factor of all is the often-ignored influence of money in our political systems. Earlier this year, Oxfam reported (link is external) that by 2016 the wealthiest 1% of people will own more than everyone else. In fact, an inequality tipping point has been convincingly foreshadowed for some time. Works like Kate Pickett and Richard Wilkinson’s The Spirit Level (link is external)and Thomas Piketty’s seminal Capital in the 21st Century (link is external) make for disturbing reading about the ‘pernicious effects’ of inequality on society. What has any of this got to do with closing civic space?

A closer look at the crackdowns on civil society reveals that activists from India to Peru to South Africa and Russia are not just fighting for civil liberties and a space at the policy table. More and more demonstrations are aimed at combating the corrosive impact of big business on political accountability, corruption, environmental protection and the entrenchment of poverty and inequality around the world. With business in the pound seat, government officials are less likely to lend a sympathetic ear to anti-corruption and environmental activists. As the wealth of a tiny elite increases, so too does its ability to influence politics. It is unsurprising then that the crackdown on civil society is getting worse.

Although people are much more aware of what they are entitled to demand from their governments, they feel powerless and under attack. Not only are their views being ignored, in more and more cases they are being targeted and silenced. What then are the implications for the Open Government Partnership, which recently celebrated its 4th year in existence at a Summit in Mexico City? Given the innovative underpinnings of the OGP, what can this grouping of governments and civil society do to collectively tackle the shrinking space phenomenon? Four ideas spring to mind.

First, as the new OGP lead Co-Chair, South Africa must safeguard progress made to date and use the year ahead to take advantage of the dialogue processes within OGP to enable a much more frank discussion about closing space. At a recent meeting (link is external)in Johannesburg, government and civil society already held important debates on how they interact and what the priorities are. These discussions need to continue and be deepened.

In and of itself, dialogue serves to build trust and reduce the risk of recourse to harmful confrontations. Governments in other regions, which up to now have paid little more than lip service to the idea of deep engagement with their citizens, could learn from a more determined push by South Africa to create meaningful platforms for civic dialogue. For that to happen through the prism of the Open Government Partnership, the OGP should develop a set of more ambitious guidelines, which would ensure more quality, diversity and continuity in engagements with civil society.

Second, the OGP should reach out more and more to regional bodies. Take the EU for example. While European institutions may have little appetite to hitch their own programmes to the OGP agenda, if brought on board as allies they and key member states (such as Germany which is not yet part of OGP) could potentially provide the impetus for addressing the current democratic deficit and crisis of legitimacy faced by many leaders across the region.

Third, the OGP can help to develop a shared commitment on civic space that all OGP member countries should include in their national action plans. In the same way that OGP states like Mexico drove the recent adoption of the International Open Data Charter (link is external), so too could they create a common basis for ensuring that all OGP states include at least one actionable and measurable commitment to increase civic space in their National Action Plans.

Finally, by breaking down the usual conventions around state-civil society interactions during international meetings, the OGP has made an important contribution to leveling the playing field. It can and should do the same for barriers to dialogue between civil society and business. Recently, there has been increasing recognition from the international business community of their role in causing inequality. The OGP must seize openings like this to bring businesses – perhaps beginning with business platforms such as chambers of commerce – more centrally into the dialogue on the creation of open governments. Only by doing so will citizens and civil society be able to interact directly with and influence those that hold real power in many countries.

Recently, South Africa’s Deputy President Cyril Ramaphosa stressed (link is external)how important it is ‘that the OGP consistently lead by example. It must be the embodiment of the values and principles we wish others to emulate.’ If he is serious, South Africa must lead OGP member countries in this direction by getting to grips with the problem of closing civic space and fostering a really meaningful, permanent forum for dialogue with civil society.

Otherwise, the whole project could be sunk.

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The connection between corruption and shrinking civic space

This article originally appeared in the July 2015 edition of the UNCAC newsletter here.

Citizens everywhere are finding it more and more difficult to have their voices heard. All over the globe, peaceful protestors are brutally attacked, investigative journalists are threatened and organisations promoting rights are raided or shut down.

While many activists are attacked because they fight to defend the rights of minorities or oppose brutal dictatorships, a growing number are targeted because they seek to expose corrupt politicians and officials who abuse positions of power for personal gain.

Much like corruption, civic space violations are now perpetrated in all parts of the world – rich and poor, democratic and authoritarian alike. The situation is so bad that in 2014 alone civic space was seriously violated in almost a half of the world’s 193 countries.

Former UN Secretary General Kofi Annan reminds us in his foreword to the United Nations Convention Against Corruption (UNCAC) that corruption doesn’t just impoverish society; it also “undermines democracy and…leads to violations of human rights.” In Article 13, the UNCAC requires governments to take “appropriate measures” to involve civil society in fighting corruption, ensuring citizens have access to information and people have the freedom to share information concerning corruption.

All too often, however, governments prefer confrontation to cooperation. Instead of dealing with civil society as equal partners and working to address the rights violations they unearth, many states choose to implement restrictive laws on foreign funding, vilify civil society in the media and imprison their harshest critics. Meanwhile, government officials continue to benefit from inadequate financial management controls and weak public accountability. This results in theft of public resources including illicit financial flows to rich countries from some of the world’s poorest countries.

Although the situation is slowly improving, civil society organisations continue to struggle to effectively monitor financial relationships between governments, banks and the private sector that operate as the veins of an internationalised system of corruption. However, civil society organisations increasingly expose corrupt arrangements, governments are reacting by escalating civic space violations.

On the face of it, targeted attacks on civil society may be aimed at silencing critical voices, but in many instances repression is also designed to keep a lid on cases of corruption and to maintain networks of patronage. CIVICUS’s recently released State of Civil Society Report 2015 reveals that anger at corruption has motivated numerous citizen movements over the last year, and governments have responded by closing civic space. In Brazil and Mexico, corruption scandals fuelled public anger that led to large-scale protest movements. Frustration at pervasive government corruption also lay at the heart of citizen movements in Azerbaijan, Cambodia and Turkey.

To respond to this situation, civil society will have to rely on two of its most important strengths: innovation and resilience. CIVICUS, through its global alliance of civil society organisations, is developing new tools – including the Civic Space Monitor and Civic Pulse – to enable civil society to properly track and respond to civic space violations in real time. But, much more needs to be done by all concerned – from the grassroots level to the international stage – to enable civil society voices to fight corruption in a healthy and protected civic space.

Requiring our leaders to breathe life into Article 13 of the UNCAC would be a good way to start.

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Xenophobic violence returns to the streets of South Africa

South Africa is caught in the midst of another wave of xenophobic violence, as tensions between citizens and foreigners escalate dangerously.

In a country with almost 40% unemployment, and a recent history of pervasive enmity between South Africans and the country’s many immigrant communities, it does not take much for violence to be sparked.

Most people agree that the latest wave was caused by inflammatory statements from some influential leaders.

On 25th March the Zulu King Goodwill Zwelithini said ‘We request those who come from outside to please go back to their countries.’* Similar sentiments were expressed by President Jacob Zuma’s son, Edward, who was this week quoted as saying that South Africa is ‘unnecessarily accommodating illegal immigrants in this country.’

In late March, mobs attacked over 250 Congolese immigrants in Isipingo, a town 25km south of Durban. Violent attacks continued, and by early April approximately 400 refugees were sheltering in tents near the town. Following the deaths of two Mozambicans, attacks spread to other areas closer to Durban’s city centre.

Angered by the rising tide of violence against them, foreigners twice attempted to stage peaceful protests in  Durban but were denied permission and forcefully dispersed by police who shot at them with rubber bullets, tear gas and water cannon.

As foreign-owned shops were looted and petrol bombed, violence spread to other areas, including the Durban city centre. By this stage, over 1,000 people had been driven from their homes.

In an attempt to get the situation under control, President Jacob Zuma and his government intervened, creating a high level ministerial team and increasing police deployment in affected areas. A large peace march was organised in Durban yesterday, although it was disrupted by groups of South Africans who objected to this public deplay of anti-xenophobia sentiment.

Tensions hasve also now spread to several areas of Gauteng province, South Africa’s economic hub and home to its largest concentration of foreigners.

Johannesburg has recently experienced its own spate of xenophobic violence. In January, widespread unrest, looting and violence resulted in the mass exodus of foreign business owners from Soweto and other parts of the city. This week, foreign-owned shops were shuttered in Jeppestown and Primrose as angry residents threatened to remove all non-South Africans.

The violence has been condemned on all fronts. In addition to the government’s own statements, NGOs like the Nelson Mandela foundation have called the violence ‘a terrible failure of memory by South Africans’, in reference to the support provided to the anti-apartheid struggle by many of South Africa’s neighbouring countries. The Zimbabwean information minister Jonathan Moyo has slammed King Zwelithini, claiming that the current spate of xenophobia could ‘easily mutate’ into genocide.

In an apparent attempt to avoid comparisons with the widespread violence of 2008, when over sixty foreigners died, the South African government insists that the current unrest stems from criminality and not xenophobia, preferring to call it ‘violence directed at foreign nationals’. Semantics aside, the attacks of this past week, coupled with days of violence and destruction targeted at foreigners in parts of Johannesburg in January, and Cape Town in February, point to a worrying trend.

Economic disparities and a lack of jobs are undoubtedly driving factors behind the current violence. Many of the poorest people in South Africa live side by side with Zimbabweans, Nigerians, Malawians, Congolese, Mozambicans and others who have left their countries to find a better life. Driven by the need to survive, many immigrants find work in the informal economy. Many of them are self-employed or ‘micro-entrepreneurs’, doing whatever they can to survive. Some have proper documentation, some do not.

A study by the African Centre for Migration and Society at Wits University on the 2008 xenophobic attacks suggests that although poverty was a driving force, it was not the only explanatory factor behind the violence. The research revealed that perpetrators of the violence were young and old, male and female, employed and unemployed. A large proportion of the attackers were not the poorest of the poor – that is those without jobs – but instead they were South Africans who already had some economic stake in the community that they wanted to protect.

Whether similar forces are at play this time around is unclear. There are worrying suggestions that the violence is not as sporadic as it appears on the surface and that mobs are sometimes seen to spring into action after answering calls on their mobile phones. There are even whispers of a hidden political hand in the violence, as South Africa approaches closely contested local elections in 2016.

What is clear, however, is that immigration remains a fact of life in South Africa. The United Nations High Commission for Refugees (UNHCR) reports that, in 2011, South Africa received one in ten of the world’s asylum applications, dealing with 107,000 cases. The United States of America, by contrast received 71,000 applications. This puts huge strain on a government that is already struggling to cope with reversing the imbalances and exclusion caused by decades of Apartheid policies.

This large influx of immigrants means that the government has no choice but to find a solution to the current violence. Yesterday afternoon, Jacob Zuma addressed parliament on the violence. He said all of the right things although seemed to lack conviction in what he said. He will need to show strong leadership in the months ahead and everyone – foreigner and African alike – will be watching closely to see if the president can unite the nation and prevent future unrest.

*Translation from a speech made in Zulu.

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What can Ireland do to promote business respect for human rights?

Irish Government Buildings, Dublin.

Irish Government Buildings, Dublin.

Ireland is one of only a handful of states that are developing national plans to promote better human rights practice by business. What should that plan contain?

A few weeks ago, the Department of Foreign Affairs and Trade asked for submissions from business, civil society and the public that would help to shape Ireland’s national plan. Having helped CIVICUS to develop their submission, I am reposting most of it now on this blog (the full submission can be accessed on the CIVICUS website here):

‘In line with our global mandate, this submission focuses on impact of the NP on Ireland’s foreign policy and the responsibilities of Irish businesses operating around the world. It addresses aspects of all three pillars of the UNGP. We make a total of 9 specific recommendations covering three areas:

  • Multi stakeholder approach with clear roles for civil society
  • Mandatory requirements for business
  • Ireland’s extraterritorial obligations and remedies

These specific recommendations sit within our overarching proposal to the Irish Government: that Ireland should play a leading advocacy role at the international level to ensure business compliance with human rights standards in the coming years.

As part of its ongoing diplomatic engagement, Ireland should create high-level dialogues on business and human rights with key partner countries. These dialogues would aim to further the international debate on an enforceable multilateral regime for business and human rights. They would also enable the exchange of lessons learned from the implementation of Ireland’s NP and those of other countries as they come on stream in recent years. Perhaps most importantly, these forums will allow Ireland to set a high standard for the development of many national plans in future. Ireland should also use its position as a member of the UN Human Rights Council until the end of 2015 to fully support the working group on the issue of human rights and transnational corporations and other business enterprises. In particular, Ireland is encouraged to play a full role in the OHCHR programme of work to enhance accountability and access to remedy in cases of business involvement in human rights abuses. Ireland should also push for state reporting on Pillar I of the UNGP through the Universal Periodic Review (UPR) process, something noted as a possibility by the UN Secretary General in 2012.[1]

Specific recommendations 

  1. Adopt a multi-stakeholder approach that clearly defines a meaningful role for civil society in the implementation, monitoring and revision of the NP. As stated above, CIVICUS welcomes the inclusion of civil society during the process of creating Ireland’s NP. The Irish Government should continue this engagement to ensure that civil society organisations – both Irish and global – are included meaningfully in the implementation, monitoring and revision of the NP. Specifically:
    • At its outset, the NP should establish a multi stakeholder working group including representatives from business, civil society and government on an equal footing. The terms of reference for the working group should include: the regular monitoring of compliance by business, making recommendations to the government on target and standard setting, creating an early warning mechanism and providing input to ensure that the NP is periodically reviewed and updated.
    • Funding must be made available for civil society organisations to conduct independent research into the human rights impact of Irish businesses in several industries and in different parts of the world. Although the multi stakeholder working group would jointly agree the scope of the studies, the research would be conducted independently by civil society organisations, in consultation with affected communities in countries where Irish business operates. This research will help the Irish government to create an informed and regularly updated view of Irish business’ human rights footprint.
    • Training for both civil society and business on the UNGP will be necessary to ensure active participation in the NP. This training should be provided regularly and accompanied by specifically developed training materials, informed by the research mentioned in Recommendation 1.2 above. Partnerships should also be developed with reputable business schools, universities and MBA programmes to ensure that students of business are made aware of the NP and new requirements for business.
  1. Make pillar two of the UNGP mandatory for Irish businesses. Ireland’s NP should ensure that Pillar II of the UNGP – the Corporate Responsibility to Respect Human Rights – applies without exception to all businesses domiciled in Ireland. The NP should avoid any suggestion that Pillar II is voluntary. Far from damaging the competitiveness of Irish businesses, such a move would improve the reputation of Ireland’s trade and diplomacy, particularly amongst developing countries, by increasing confidence of host country governments in the high human rights standard to which the Irish government holds its companies operating abroad. Making Pillar II mandatory can be done in two main ways:
    • Ireland should conduct a thorough review of relevant domestic legislation to ensure that it enables the state to take legal recourse against companies that do not comply with the UNGP. The review could include The Prevention of Corruption Acts; the Criminal Justice (Theft and Fraud Offences) Act 2001, the European Convention on Human Rights Act 2003 and other laws deemed relevant to the business and human rights domain.
    • Ireland should take steps to change the law to ensure that companies are compelled to reveal the names of their beneficial owners and these names be placed on a register. This reform is a key recommendation in the recently released Report of the High Level Panel on Illicit Financial Flows from Africa.[2] The panel, chaired by former South African President Thabo Mbeki, revealed that approximately $50 billion (and potentially a lot more) leaves the African continent in illicit flows each year. Forcing companies to reveal the names of individuals benefitting from international financial transactions, a step that was also endorsed recently by the G20, would be a significant development in the fight against transnational corruption and tax evasion.
    • Irish companies should be required to report annually on their implementation of the UNGP. Such reporting should become part of companies’ – initially those working internationally and ultimately all companies – statutory reporting requirements. The Irish government should ensure that mechanisms are put in place that enable action to be taken against companies who do not comply with this reporting requirement. The Irish Government could consider adopting or adapting templates for business reporting on human rights already developed by Shift/Mazars[3] and the Danish Institute for Human Rights.[4]
  1. Address extraterritorial obligations and ensure remedies are available for victims of human rights abuses by Irish businesses, wherever they occur. Pillar I of the UNGP makes it very clear that states ‘should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.’ [5] Although Pillar III of the UNGP only refers to the need to safeguard remedies for human rights abuses committed with the territory of jurisdiction of the state, Ireland should go further by promoting the development of viable judicial remedies for victims of human rights abuse by Irish companies in all parts of the world. Specific actions in this area should include:
    • Apply the Maastricht Principles on the Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights[6] in the NP. The Irish Government should pay particular attention to Principle 24, which provides inter alia that states should take measures to ensure ‘transnational corporations and other business enterprises, do not nullify or impair the enjoyment of economic, social and cultural rights. These include administrative, legislative, investigative, adjudicatory and other measures.’
    • DFAT and Irish Aid should work more intensively to create multi stakeholder dialogue and initiatives on business and human rights in countries where Ireland has a long history of development cooperation. In particular, the NP should provide for cooperation with judiciaries in Irish Aid’s nine key partner countries (Ethiopia, Lesotho, Malawi, Mozambique, Sierra Leone, Tanzania, Uganda, Vietnam and Zambia). The aim of this cooperation should be to strengthen access to effective judicial remedies for victims of human rights abuse by business in poor and vulnerable communities. Based on the results of the research described in Recommendation 1.2, these cooperation programmes should also include outreach aimed at educating community members in areas affected by the activities of Irish businesses.
    • Implement regular symposia for Irish judges, civil society and business representatives to discuss remedies for victims of human rights abuses that take place outside the state. The aim of these symposia would be to formalise a dialogue and debate about the role of the Irish courts in upholding Ireland’s international human rights commitments and influence the evolution of jurisprudence in this area. Given the long history of exchange between Irish judges and their counterparts in developing countries, these symposia could also form part of international dialogues, potentially coordinated with the judicial strengthening initiatives described in Recommendation 3.2.

Conclusion

This CIVICUS submission emphasises the need for Ireland to seize a golden opportunity. Through collaborative partnerships with civil society and business, we believe that Ireland can set the stage for greater global human rights compliance by the private sector in the years to come. Supporting, training and involving civil society will be key. In order to credibly play this international role, Ireland must ensure that domestic loopholes are closed and legislation is strengthened. Finally, Ireland must demonstrate strong leadership by facilitating justice for victims of human rights abuse by Irish businesses around the world.’

Footnotes:

[1] Contribution of the United Nations system as a whole to the advancement of the business and human rights agenda and the dissemination and implementation of the Guiding Principles on Business and Human Rights, Report of the Secretary General. A/HRC/21/21, at para. 37.

[2] http://www.uneca.org/sites/default/files/publications/iff_main_report_english.pdf

[3] http://www.uneca.org/sites/default/files/publications/iff_main_report_english.pdf

[4] http://www.uneca.org/sites/default/files/publications/iff_main_report_english.pdf

[5] Section I.A.2 of the UNGP. (CIVICUS’ emphasis).

[6] http://www.uneca.org/sites/default/files/publications/iff_main_report_english.pdf

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