Sharp divisions on the Constitutional Court about the right to strike

In the aftermath of the Marikana massacre, the rights of striking workers and the unions they might belong to have once again come under the spotlight. Judging from the letters pages of middle brow newspapers, blog comments and callers to phone-in programmes, many middle class South Africans are about just as sympathetic to strikers and their constitutionally protected rights as they are to Julius Malema. Many middle class South Africans of whatever race seem to view striking workers as something of a menace, people who make unreasonable demands which – if agreed to – would threaten the comfortable existence of affluent members of society.

Luckily for striking workers, the majority of judges of the Constitutional Court do not seem to share this view. Last week, in the judgment of South African Transport and Allied Workers Union (SATAWU) and Others v Moloto N.O and Another the majority (in a judgment co-authored by Justice Yacoob, Froneman and Nkabinde, with Cameron and Van der Westhuizen concurring) rejected the argument of the minority (in a judgment authored by Acting Justice Maya, with Chief Justice Mogoeng, and Justice Jafta and Skweyiya concurring) that section 64(1)(b) of the Labour Relations Act obliged every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.

In this case SATAWU members went on a strike and provided the employer with the requisite notice (as required by section 64(1)(b) of the Act) that its members would embark on a strike. Employees who were not SATAWU members joined the strike without individually giving notice to the employer that they would do so. These employees were subsequently dismissed because of their failure to notify the employer that they would join the strike.

Section 64(1)(b) states that striking employers are protected and cannot be fired if certain procedural requirements are met, including the requirement that “at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer”.

For the majority the starting point of the inquiry was the Constitution, which protects the right to strike as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions as imposing implicit limitations on them.

As section 64(1)(b) contains no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that SATAWU had given notice that it would strike. As the majority stated:

The point of departure in interpreting section 64(1)(a) [and, one assumes, section 64(1)(b)] is that we should not restrict the right to strike more than is expressly required by the language of the provision, unless the purposes of the Act and the section on “a proper interpretation of the statute … imports them.” The relevance of a restrictive approach is to raise a cautionary flag against restricting the right more than is expressly provided for. Intrusion into the right should only be as much as is necessary to achieve the purpose of the provision and this requires sensitivity to the constraints of the language used.

It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms with the spirit, purport and objects of the Bill of Rights should be preferred. In this case the interpretation not requiring every non-unionised member to give notice of their intention to take part in a strike organised by a union best conforms to the spirit, purport and object of the Bill of Rights.

This becomes even more evident if one recalls that the right to strike is protected in the Constitution at least partly in recognition of the fact that there are disparities in the social and economic power held by employers and employees. Employers have far more power than individual employees and in order to redress the inequality in social and economic power in employer/employee relations, employees are granted the right to strike to even out the playing field. To require individual employees to give detailed information of not only when they will strike but how many of them will strike, “would run counter to the underlying purpose of the right to strike in our Constitution – to level the playing fields of economic and social power already generally tilted in favour of employers”. As the majority pointed out:

to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionised or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process.

The minority took a more restrictive view of the rights of strikers and is more closely aligned with the interests of employers than with those of employees. Focusing on the objects of the Labour Relations Act (instead of on the relevant section in the Bill of Rights which guarantees for employees the right to strike), the minority found that employers would be negatively affected if employees were not all required (either individually or through their representatives) to give notice to employers that would embark on a strike.

In contrast to the majority view, which focused on the imbalances in power between striking workers and their employers, the minority seemed to assume that employers were pretty powerless in the face of a strike. Accordingly, they claimed:

if a notice gives an employer no indication of which of its employees might strike, it is nigh impossible to conceive how the employer will prepare properly for the impending power play. How will it make an informed decision as to whether or not to yield to the employees’ demands? And, if it resists, how will it take proper steps to protect its business, the employees and the public and engage meaningfully in pre-strike regulatory discussions regarding issues such as picketing rules?

The minority would therefore have re-interpreted the relevant section of the Labour Relations Act so as to require that employees provide an employer with a notice “that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question.”

The two judgments therefore seem to reflect rather stark ideological differences between the judges on the Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.

The majority seem to be decidedly more progressive by assuming that the right to strike contained in the Bill of Rights should be limited as little as possible in order to ensure the levelling of the playing field between employers and employees. They would therefore oppose an interpretation of the legislation that would impose limitations on this right unless such limitations are expressly stated in the Labour Relations Act itself.

The minority seems to be rather more sympathetic to employers and big business and less enthusiastic about protecting the rights of striking workers. They are also more eager to interfere in the work of the democratically elected Parliament by re-interpreting legislation passed by that Parliament in such a manner that it would limit the rights of workers – even if that was perhaps not what the democratically elected Parliament intended to do.

Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision. But I guess that is what you get when you remain loyal to an Alliance in which your own class interests will ultimately almost always be trumped by the class interests of those pro-business and pro-tender elites who currently dominate the leadership of the ANC.

Source: Constitutionally Speaking

Strengthening women’s access to justice to take centre stage at upcoming Session of UN General Assembly

Press Release 220/2012
24 September 2012

The first high-level meeting of the General Assembly dedicated solely to the rule of law is taking place during the 67the UN General Assembly next Monday. World leaders will focus on strengthening the rule of law, underlining its role in securing international peace and security, furthering development and in the achievement of universal human rights. The meeting will bring together governments and civil society to review progress made and challenges that exist at the national and international level to strengthen the rule of law.

On 24th September, on the occasion of the High Level Meeting on the Rule of Law, the Governments of Finland and South Africa, along with UN Women, will host a high level event focusing on women’s access to justice. Secretary-General of the United Nations, Mr Ban Ki-Moon, the President of Finland, Mr Sauli Niinistö and the President of South Africa, Mr Jacob Zuma, Executive Director of UN Women, Ms Michelle Bachelet and Nobel Laureate, Ms Shirin Ebadi are among speakers.

Today, the rule of law often rules women out. Obstacles persist which prevent women from accessing legal protection for their rights, resulting in discrimination and inequality that hamper women’s ability to live free of violence and to contribute as full and equal citizens. These obstacles can be overcome through dedicated action by all. Ahead of the meeting, Governments of Finland and South Africa and UN Women are calling on governments to show strong commitment, and accelerate actions and policies to increase women’s access to justice and foster a responsive justice system that advances women’s equal rights.

At the event, governments will be invited to make concrete commitments to policy actions and highlight initiatives to advance women’s access to justice.

The event will be webcasted live at http://webtv.un.org (on Monday 24 September, at 20.00-21.45 current local time in Finland)

For additional information please contact: Head of Unit Satu Suikkari-Kleven, satu.suikkari-kleven(a)formin.fi, tel. +358 40 760 3578, Counsellor Liisa Valjento, liisa.valjento(a)formin.fi, tel. +358 40 350 6148, Press Secretary Pirjo-Liisa Heikkilä, The Permanent Mission of Finland to the UN, pirjo-liisa.heikkila(a)formin.fi, tel. +1 917 294 3915

Source: Ministry for Foreign Affairs of Finland

ICT4E in the Knowledge Society

Education is considered one of the cornerstones of social economic development. Research has shown that education contributes to poverty reduction and increased economic growth, which in turn leads to an increase in the individual's standard of living; enables the individual to participate in wealth generating activities, leads to the creation of employment and the overall development of society.  However, the traditional role of education (to promote socio-economic development) is being re-examined as greater emphasis is placed on access to education, quality and outcomes of the education system.

The education sector is seen as the natural source for the creation of technological literacy and the development of new technological skills as well as other skills that are needed in the new millennium, like problem solving skills, collaboration skills, critical reading and information retrieval, etc. For new technologies like ICT, the creation of these new skills has meant the introduction of ICT into educational institutions and the introduction of computer literacy or media literacy courses as well as new teaching and learning methods.

The relationship between ICT, education and development in a knowledge economy is increasingly being captured by developing country governments through their poverty reduction strategies These efforts have been spurred on by the setting of internationally agreed development goals, such as the millennium goals (MDG) and the Education For All (EFA) goals. Recent monitoring efforts have revealed that several countries, mostly in sub-Saharan Africa (SSA) and the Arab states will find it difficult to approach Universal Primary Completion in the coming decade, while participation rates for secondary education are lowest in SSA (25%), South and West Asia (53%) and the Arab State (66%). This has led to initiatives such as the Fast Track Initiative (FTI). For countries to achieve the MDG and EFA goals, UNESCO notes that there will be a need to, not only allocate more resources to education, but to have these resources planned for and used more effectively. Many donors, including the World Bank, now also acknowledge that ICT can be leveraged to solve some of these challenges facing the education sector.

The Global e-Schools and Communities Initiative (GeSCI) is an international not-for-profit organisation providing demand-driven assistance to developing countries seeking to harness the potential of Information and Communication Technologies (ICT) to improve their education systems.

GeSCI was established in 2003, borne out of the work of the United Nations Information and Communication Technologies Task Force which identified education as an area in critical need of development, and one where ICT has the potential to make positive impacts. The UN ICT Task Force approved a proposal for a UN-affiliated organisation to provide demand-driven assistance to developing countries seeking to harness the potential of ICT to improve the quality of teaching and learning in primary and secondary education. GeSCI is governed from Dublin, with the support of Irish Aid, Swedish International Development Cooperation Agency (Sida), Swiss Agency for Development and Cooperation (SDC) and the Ministry for Foreign Affairs of Finland.

Source: Wikipedia

Andrew Carnegie on value of money

"Man does not live by bread alone. I have known millionaires starving for lack of the nutriment which alone can sustain all that is human in man, and I know workmen, and many so-called poor men, who revel in luxuries beyond the power of those millionaires to reach. It is the mind that makes the body rich. There is no class so pitiably wretched as that which possesses money and nothing else. Money can only be the useful drudge of things immeasurably higher than itself. Exalted beyond this, as it sometimes is, it remains Caliban still and still plays the beast. My aspirations take a higher flight. Mine be it to have contributed to the enlightenment and the joys of the mind, to the things of the spirit, to all that tends to bring into the lives of the toilers of Pittsburgh sweetness and light. I hold this the noblest possible use of wealth." — Andrew Carnegie

Andrew Carnegie poured a great deal of his energies and resources into institutions which would support and further his dedication to free education for all and the notion of a meritocracy. By the age of 35, Carnegie decided to leave his business enterprises behind and concentrate on philanthropy and writing, rather than personal profit.  He sold the Carnegie Steel Company in 1901 to J.P Morgan for $480,000,000 and set up numerous institutions to fund educational projects around the world. Of these, the Carnegie Corporation of New York and the Carnegie Endowment for International Peace still operate today. 

"People who are unable to motivate themselves must be content with mediocrity, no matter how impressive their other talents." — Andrew Carnegie

Source:  "Carnegie Libraries". Ontario Ministry of Tourism and Culture.

Richmond Farm Transit Camp in KwaMashu

Mchunu and Others v Executive Mayor of eThekwini and Others ('Mchunu')

implementation of court order - Siyanda - Durban High Court

In this matter, SERI and Abahlali baseMjondolo (AbM) seek an order against the Executive Mayor of eThekwini (Durban), together with two other senior officials in their personal capacities, to take all the steps necessary to implement a court order requiring housing to be provided to 37 occupants of the Richmond Farm Transit Camp in KwaMashu. The occupiers were evicted from the Siyanda informal settlement in March 2009 in order to allow the construction of a road. One of the conditions of the eviction order was that the occupiers would be provided with permanent housing within a year. The deadline for doing so expired almost two years ago and nothing has been done to comply with the order.

This is an important case because it establishes whether individual officebearers can be held personally responsible for the state’s failure to perform on specific obligations. SERI served the application in February 2012, and filed a replying affidavit in May 2012. Heads of argument were filed on 4 September 2012, and the case was heard in the Durban High Court on 17 September 2012.

On 19 September 2012, Acting Judge Nigel Hollis granted an order and delivered an ex tempore judgment in the Durban High Court. His decision requires the Mayor of eThekwini, the City Manager and the Director of Housing to take all the necessary steps, within three months, to provide permanent housing to the 37 families. They are “constitutionally and statutorily obliged to take all necessary steps” to comply with the 2009 order. If they do not, they may be held in contempt and fined or imprisoned.

• SERI and Abahlali baseMjondolo media statement (19 September 2012) here.
• Draft order (19 September 2012) here.
• Occupiers' supplementary heads of argument (14 September 2012) here.
• Respondent's heads of argument (13 September 2012) here.
• Occupiers' heads of argument here and practice note (4 September 2012) here.
• Replying affidavit (17 May 2012) here. Annexure A here and Annexure B here.
• SERI and AbM press release (29 February 2012) here.
• Short film entitled "A Fish in a Tin" about the eviction and relocation to Richmond Farm Transit Camp here.
• Notice of motion (12 December 2012) here.

Source: SERI

Iran confirms military stationed in Syria

Iran has confirmed for the first time that forces from its revolutionary guards corps are in Syria helping Assad's government crush the rebellion. It warned it would get involved militarily if its Arab ally came under attack.

In a clear public signal of Tehran's continuing support for President Bashar al-Assad, the commander of the Islamic republic's elite military formation said that "a number" of members of the IRGC's Qods force were in Syria, though General Mohammad Ali Jafari gave no further details and claimed this did not constitute "a military presence".

It was a surprisingly candid response to persistent claims by western countries, the Syrian opposition and Israel that Iran is actively helping the regime fight its enemies in the 18th month of a bloody war.

Lakhdar Brahimi, the veteran Algerian diplomat who replaced Kofi Annan as UN envoy to Syria earlier this month, met Assad in Damascus on Saturday but warned afterwards that any progress would be slow and halting given the yawning gap between government and opposition.

"The crisis is dangerous and getting worse and it is a threat to the Syrian people, the region and the world," said Brahimi.

Reports from Syria on Sunday described government forces fighting rebels amid shelling and sniper fire in Damascus and Aleppo, as well as in Homs and Deir ez-Zor. The Local Coordination Committees, an activist network, reported 103 dead.

Enmeshed in rivalries

Opposition activists reported 115 people killed on Saturday. According to the UN some 20 000 people have been killed. Opposition sources say the figure is closer to 30 000.

Jafari's admission underlines the way in which the Syrian uprising has become enmeshed in regional and international rivalries.

Saudi Arabia, Qatar and Turkey are arming Syrian rebel groups, while the US, Britain and France have called for Assad to go but are offering only limited and non-lethal backing to the armed opposition.

Russia and China have repeatedly blocked action against Syria at the UN.

The Qods force includes elements of special forces, intelligence-gathering and aid, and answers to Iran's supreme leader, Ayatollah Ali Khamenei. It has been accused of planning attacks inside Iraq since the overthrow of Saddam Hussein. Jafari said the IRGC was providing "intellectual and advisory help" to Syria.

British officials say the IRGC has provided riot control equipment and technical advice on how to crush dissent, for example on how to flood areas with security forces.

Intelligence-gathering

Iran is also providing support to improve the Syrian regime's intelligence-gathering capabilities and help to monitor protesters' use of the internet and mobile phone network, including text messaging.

Iran is said to have been dismayed at the heavy-handed way its long-standing Arab ally responded when the unrest began in March 2011, contrasting it with its relatively more sophisticated response to protests that followed its own disputed presidential election in 2009.

"If Syria came under military attack, Iran would also give military support but it ... totally depends on the circumstances," AFP reported Jafari as saying at rare press conference in Tehran.

The general also said the Strait of Hormuz, the channel at the mouth of the Gulf through which a third of the world's traded oil passes, would be a legitimate target for Iran should it be attacked.

"If war occurs in the region and the Islamic republic is involved, it is natural that the Strait of Hormuz as well as the energy [market] will face difficulties.

"The US has many vulnerabilities around Iran, and its bases are within the range of the guards' missiles. We have other capabilities as well, particularly when it comes to the support of Muslims for the Islamic republic," he said.

Tolerated

In Damascus, Brahimi also met Syrian opposition figures who are still tolerated by the regime.

"We told Mr Brahimi ... of our support for his efforts to resolve the crisis by ending the violence and killings, providing medical care and releasing political prisoners," said Hassan Abdel Azim, spokesperson for the National Coordination Committee for Democratic Change.

But the head of the Free Syrian Army's military council in Aleppo, Colonel Abdel Jabar al-Oqaidi, predicted that the envoy's mission would fail, like Annan's, because he had nothing to offer people who were fighting for their freedom, al-Arabiya TV reported.

Syria's state news agency Sana quoted Assad as telling Brahimi that the success of his mission hinged on "pressuring countries which finance and train the terrorists, and which traffic weapons to Syria, to stop these actions".

In Istanbul, Tariq al-Hashimi, the fugitive Iraqi vice-president, said in interview that the government of Prime Minister Nuri al-Maliki was failing to stop ammunitions and armaments reaching Syrian government forces.

"My country is unfortunately becoming an Iranian corridor to support the autocratic regime of Bashar al-Assad," he said. "There is no doubt about that."

Source: Mail & Guardian

Financial parasitism and looting are the “new normal”

The decision by the US Federal Reserve Board to provide indefinite support to financial markets under a third round of so-called quantitative easing (QE3), announced last week, coupled with the earlier decision by the European Central Bank (ECB) to intervene in the bond markets, marks a new stage in the breakdown of the global capitalist economy that began with the collapse of Lehman Brothers.

The moves by the world’s major central banks to pump more money into the global financial system signify that four years after financial markets stood on the brink of collapse in September 2008, there is no prospect of a return to what were once considered “normal” conditions.

Far from lessening its support to the banks and financial institutions, the Fed is increasing it. The earlier interventions were implemented with time limits. In its latest decision, the Fed has given an indefinite commitment. As the headline of one article in the Financial Times put it, “Fed Sets Its Sights on Infinity and Beyond.”

Moreover, the form of the commitment marks a major turn. Rather than buying up Treasury bonds, the Fed is going to intervene to the tune of $40 billion a month to buy up mortgage-backed securities from the banks and investment houses. It will thereby enable the banks to offload some of the “toxic assets” that provided the trigger for the breakdown.

It used to be said that the task of the Fed was to take away the punch bowl just as the party was about to get going. No longer. Now the Fed is committed to increasing the alcohol content, with a pledge that it will keep topping up the supply indefinitely.

In providing a rationale for the decision, Fed Chairman Ben Bernanke cited the continuing high levels of US unemployment—job growth, even at the lower wage levels now prevailing in the US, is failing to keep pace with population growth—and the anaemic growth in the US economy. According to conventional theory, the Fed’s actions will lower interest rates across the board, making investment decisions more attractive to corporations and leading to economic growth and increased employment.

But as Bernanke well knows, as does everyone else in financial circles, those conditions do not apply. Corporations, above all financial institutions, are continuing to accumulate profits, but they are not being used to finance new productive investments. Rather, they are being funnelled into large cash reserves to be deployed in speculation.

Moreover, cuts in government spending both in Europe and the US are lowering wages and increasing unemployment, thereby reducing consumer demand. The ECB has made it a condition that governments whose bonds it buys must put in place austerity programs aimed at cutting spending and increasing unemployment. In the US, government spending is contracting and may decline even further at the end of the year with the arrival of the so-called “fiscal cliff,” when earlier decisions by Congress to automatically initiate cuts come into effect.

The Fed’s decision is not aimed at bringing about economic “recovery” in any meaningful sense of the term. Rather, its market intervention is intended to raise the price of stocks and asset-backed securities, lifting the profits of corporations, above all the banks and finance houses, not through investment in the real economy but via financial operations. In other words, the very financial parasitism that led to the collapse of Lehman Brothers and the near-meltdown of the US and global financial system has become the official policy of the Fed.

The class interests served by this policy can be seen both in the manner of its implementation and its consequences.

Financial journalist Michael West accurately summed the circumstances of its introduction in an article published in Saturday’s Sydney Morning Herald.

“They demanded the Fed ‘deliver’,” he wrote. “The consequences of ‘failure’ were ‘dire’, they cried.” Bernanke then “obliged the denizens of Wall Street” with the “ultimate money-printing bonanza. And they then had the cheek to dress it up as a boon for the jobless. In reality, the banks get to shovel their lame mortgage debts plumb into the lap of the taxpayers at $40 billion a month.”

As he noted, the Fed is buying not just government bonds, but the “mortgage-backed securities which are clogging up Wall Street balance sheets.”

The Fed’s decision will have global consequences, all of which will impact adversely on the social and economic circumstances of workers as well as the world’s poorest people. Immediately the decision was announced, the prices of oil and gold jumped, signalling the start of a new round of commodity speculation.

This will impact the prices of fuels for transport as well as for cooking and heating, and set off inflation in basic foodstuffs. Already the prices of corn, wheat and soybeans, crucial for the well-being of billions of people, have started to increase.

By printing money, the Fed is also undermining the value of the US dollar in global currency markets, which will have a significant impact in Europe as the euro rises. This will lead to further cuts in exports and increased unemployment as firms find it increasingly difficult to compete.

Countries such as Brazil and Australia, where increases in currency values have already heavily impacted on manufacturing, will also be adversely affected. Further downward pressure on the dollar increases the prospect of “currency wars,” as national governments strive to maintain their export markets.

There is also a political aspect to the Fed’s decision. In 2008, the collapse of Lehman Brothers played a crucial role in swinging the support of key sections of the American ruling elite behind the election of Barack Obama over his Republican opponent John McCain.

The Fed’s latest action in the run-up to this year’s election will similarly provide a boost to the Obama re-election campaign.

But the most significant political conclusions are those that must be drawn by the working class. The decision to promote financial parasitism at the expense of the jobs, livelihoods and social position of the working class in the US and the world over is another powerful expression of the historic crisis and bankruptcy of the capitalist system. There is no economic “recovery” waiting around the corner.

The banks and financial interests represented by the US Federal Reserve and the ECB have a program: parasitism accompanied by the systematic looting and impoverishment of the population.

The working class in the US and internationally must adopt its own independent program, thought out and fought for to the end. It must initiate a struggle for workers’ governments committed to the expropriation of the banks and finance houses as the first, and indispensable, step in the establishment of a planned socialist economy, in which the resources created by the labour of billions are used to meet human needs instead of profit.

Source: World Socialist Web Site

In the wake of Marikana, ANC pushing a self-destruct button

As police raided the hostels of Lonmin miners it looked like the ANC had once again chosen force over discussion. It’s nothing new, but this specific raid will be what we remember as the beginning of the party’s decline. By GREG NICOLSON.

This weekend’s crackdown on the settlement of Nkaneng should come as no surprise. In the last few years, as service delivery protests have engulfed townships and informal settlements across the country, the ANC government has stood behind the state-sponsored violence and intervened only when absolutely necessary.

The tale feels like a cliché. Something triggers a store of long-held grievances and the community fortifies its thoroughfares with burning tyres. After the police arrive they eventually decide the protest cannot continue and attack the toyi-toying group. In their nyalas, the cops first teargas the community in a drive-by and then conduct a series of arbitrary arrests that follow a hail of rubber bullets.

The smell of teargas, stab of rubber bullets and the humiliation of violent raids further enrages the angry mob. The stakes are raised and the more violent and disaffected members of the community remain, seeking ever more destruction.

Between police and protestors lies a dark silence. The cops don’t care why people are on the streets, burning the little they have access to while government officials are too scared or don’t care enough to mediate promptly. When they finally arrive and offer the slightest semblance that they give a damn about the community’s concerns, the protest often subsides.

It seems obvious that a leader should immediately attempt to listen. But in the silence of a community on fire, before government officials are forced to react, lies a deafening reality of the disconnect between our most marginalised and their elected leaders, usually from the ANC.

These protests, similar in root cause to the ongoing Lonmin strike, regularly occur because of poverty, corruption and unmet expectations. People are tired of living without adequate shelter. They know it’s unfair they can’t access decent health services. They want electricity and water plumbed into their homes and they want an effective and transparent billing system. They are tired of the forced humiliation that latches onto poverty. Worst of all, they’re disheartened seeing their children grow up to live in exactly the same desperate conditions.

Law and order needs to prevail in Marikana and no more deaths can be added to the toll. But this weekend’s move by the police and army into Nkaneng is all too reminiscent of the response to service delivery protests over the years. All too often the ANC has let police shoot first before even asking why protests are occurring, let alone engaging in meaningful discussion (however long, risky or arduous it need be).

It’s symbolic of a larger problem. The ANC aims to “end Apartheid in all its forms” and “fight for social justice and eliminate the vast inequalities created by Apartheid”, but too many examples show that it’s no longer the party of the people. A litany of betrayals and failures stain the party’s successes (which primarily include a massive service delivery rollout and making a dent into transforming the system of racial exclusion) while its internal power plays and the venality of members erode the foundations established by some of the most inspiring leaders of the 20th century.

The ANC’s June policy conference proved the party knows what’s hurting South Africans – poverty, inequality, unemployment and the ills flowing from the combination. We’re sure its members also care deeply – who wouldn’t when the stories of many South Africans are tragedies?

But the party is too distant from those we expect it to represent. President Jacob Zuma’s insulting and incredulous comments about visiting a township and realising there are poor people struggling to survive is testament to the disconnect. ANC MP Rose Sonto confirmed this last week when he disagreed with opposition parties in the Parliamentary Portfolio Committee on Mineral Resources, saying, “We can’t go and talk to a crowd with suicidal tendencies.”

Dangerous, yes, but strikes and protests are messages sent when other avenues of communication fail. Instead of provoking miners with further police antagonism, the ANC needed to work with union leaders and mine management to increase engagement until leaders trusted them. Zuma has sent an inter-ministerial force, made a visit and established a judicial inquiry, but it’s not enough. ANC leaders aren’t giving Marikana the attention it deserves. Simply, they have failed to lead when the country was wailing, desperate and distraught, for leaders.

The problem the party faces, however, is that even if it had the resolve to provide leadership it’s so removed from disaffected communities it would have struggled to get a platform. The miners have been too hostile, and like many others across the country seem to believe the party has broken too many promises, its members too corrupt to trust.

Instead of proving them wrong, the party has distanced itself from the workers and failed to show it understands their concerns (at the same time it has lambasted the capitalist miners it has been so happy to accommodate all these years).

So in an attempt to control the situation the ANC offered the same response it has to service delivery protests: it sent in the police. That response is nothing new, but while the party hides, the Marikana massacre will go down in history as the moment everybody knew the ANC was no longer a party of the poor, no longer a party of the working class and no longer a party that could claim to represent the majority of South Africans.

The National Executive Committee has discussed Marikana at length, said Secretary General Gwede Mantashe. It’s looking at ways to address the causes of the disaster and may come up with creative solutions involving partnering with mining companies to improve the living conditions of workers.

One can only hope the party can, but one has to fear it has once again stoked unrest and it might be too late. The ANC may still be in power. It may still have the votes, but things change. They always do. And it’s moments like these the historians will remember.

Source: Daily Maverick

Africa must lead innovation in higher education internationalisation

The internationalisation of higher education has been described by specialists from the South as a neo-colonial, imperialist or – more mildly – Western concept. It is an undisputed fact that the policy and practice of internationalisation has been primarily driven and controlled from the Anglo Saxon world and continental Europe, with the South being at the receiving end.

This is obvious in the dominance of Western higher education systems, research, academic publishing, patents, mobility flows, transnational operations and partnerships. The dominant position of Western universities in rankings also clearly shows that they still control global higher education policy and practice.

Western domination challenged

At the same time, we see an increasing challenge to this dominance of the North.

The emergence of education hubs in the South, the shift to South-South mobility of students and scholars, the rise of Southern universities in the international rankings, and the quantitative and qualitative revolution taking place in higher education in the South, are challenging the traditional dominance of Western higher education and through that its internationalisation.

Recent publications and conference presentations illustrate this development. In a recent paper in the Trends and Insights series of NAFSA (Association of International Educators), Yenbo Wu, associate vice-president for international education at San Francisco State University and a member of the NAFSA board of directors, speaks of ‘Regional Globalism and International Higher Education in Asia’.

At the annual conference of International Education Association of South Africa held in Cape Town from 29-31 August, changes in higher education and the role of Africa were discussed.

Key issues were addressed, such as: is Africa with its 55 countries a region with clear common characteristics in its higher education systems? Is North Africa not, for instance, more closely linked to the Middle East? What about Francophone East Africa, which has been rather absent from the discourse on African higher education?

What about the specific role of South Africa – does it have more of a Western system or an African one, or does its higher education lie somewhere in between? What about the growing role of private and religious higher education in Africa? And what about the increased presence of China in the region and the sector?

There were more questions than answers, but the debate is still open and will have serious implications for African higher education and its internationalisation.

In his presentation to the IEASA conference, James Jowi of the African Network for Internationalisation of Education (ANIE) acknowledged the risks that the dominant presence of external forces in African higher education creates, such as brain drain, commercialisation and manipulation. But he also sees lots of opportunities for developing African policies and strategies.

Others were more pessimistic. According to them, African higher education and its internationalisation are still primarily driven by external forces, even though those forces are shifting towards Asia, in particular China, and the Middle East.

Damtew Teferra, a specialist in African higher education from Ethiopia who is now working in South Africa, stressed the increase in private higher education, including fraudulent diploma and accreditation mills, as well as a wide range of religious-based higher education institutions.

Dependence on external forces, he says, is hindering the internationalisation of Africa’s higher education. This, and the fact that the continent's 55 countries lack a common system and culture and face different challenges and complexities, make it impossible to talk of a single African higher education system and a single approach to internationalisation.

Yet, at the same time, all agree that there is more to lose if Africa does not internationalise.

As James Jowi says in a paper, “Counting the Gains and Losses: Africa and the global talent race”, published by the European Association for International Education for its 2012 conference in Dublin:

“For the coming years Africa’s biggest resource will be its relatively large but young population. This should be cause for optimism, yet the current stampede for talent could contribute to even more global polarisation, and compound the negative impacts of brain drain for African universities.”

Nevertheless, he also sees opportunities, although not any time soon, for growing academic mobility within Africa and a “healthy balance for Africa in the global race for talent”.

Africa is the world’s most internationalised system

During the conference, reference was made several times to a statement I made at the 2012 Going Global conference of the British Council in London.

I said that Africa, a region that in terms of numbers of academics with a foreign degree, numbers of graduates with a study-abroad experience and the amount of knowledge and concepts from abroad it has imported, has probably the most internationalised higher education system in the world.

But the impact of that is not necessarily positive, and maybe first Africa has to go through a process of de-internationalisation, to liberate itself from these external influences, before it can develop its own position in the global knowledge society.

At the IEASA Conference I elaborated on that statement and said – with reference to my April blog in University World News on the international education conferences circus – that it might indeed be perceived as arrogant that sister organisations of IEASA, such as NAFSA, were not present at the IEASA conference.

But this is sustained by the fact that Africans, like Asians and Latin Americans, continue to attend the NAFSA and European Association for International Education conferences in larger numbers than their own conferences.

And they keep copying the concepts, strategies and policies developed by their Western counterparts without developing their own innovative ideas about how to internationalise their higher education systems.

Innovation and change is needed, and needs to come most particularly from Africa and other emerging economies in the South.

Source:  University World News

BAE Systems and EADS: facts and figures

A €38bn (£30.4bn) merger between BAE Systems and rival EADS would create the world’s second-biggest aerospace and defence company. Here are a few facts and figures about each company.

EADS

The European Aeronautic Defence and Space Company - better known as EADS - was created in 2000 when DaimlerChrysler Aerospace in Germany merged with Aérospatiale Matra in France and CASA in Spain.

The company currently employs 133,000 staff around the world, and its board members include Jean-Claude Trichet, the former head of the European Central Bank, and Lakshmi Mittal, the Indian steel magnate. Airbus, its most well-known division, was formed in 1970, and has sold almost 11,500 aircraft since its creation. An Airbus aircraft takes off or lands every 2.3 seconds. EADS' Eurocopter division makes helicopters for military and commercial purposes. In 2005, an AS 350 Eurocopter became the first to fly to the top of mount Everest.

EADS' aerospace subsidiary, Astrium, launched plans in 2007 to become the first carrier of space tourists. A mock-up was revealed in Paris in 2007, but the project has since been put on hold because of the global downturn. EADS' share price has grown steadily over the past five years, despite the global financial crisis (toggle to zoom).

BAE systems

BAE Systems is the UK’s largest manufacturing employer and the UK’s biggest employer of professional engineers, with 18,000 engineers. According to the company, each employee contributes over £78,000 to the UK economy based on productivity levels. This compares to the national average of £42,200.

BAE Systems is also one of the UK’s largest employers, responsible for 80pc of all manufacturing related jobs in Barrow-in Furness, 40pc in Portsmouth and 70pc in the Ribble Valley. Although BAE systems is best known for making aircraft carriers and tanks, it also makes several other products linked to defence projects, including the Spearfish torpedo (pictured, right) which is BAE's UK submarine-launched heavyweight torpedo for anti-submarine warfare.

BAE Systems' share price suffered heavily during the 2008 financial crisis, and has remained largely flat over the past few years.

Source: The Telegraph

What We seek to achieve

The African continent is very rich and diverse. There are abundant human and natural resources in the continent. But the continent has the worst development indices in the world: maternal mortality, infant mortality, literacy rate, HIV/AIDs prevalence, poverty rate, life expectancy etc.

More than half of the population of African people are living in abject poverty. Most countries in sub-Saharan Africa are unlikely to achieve the modest Millennium Development Goals (MDGs) adopted by world leaders at the UN Millennium Declaration in 2000. Many African countries continue to suffer food shortages. Some countries are in conflict. We have experienced democratic reversals in some countries with the military coming to power in Guinea Bissau.

All of these make the development of Africa a huge challenge. The continents efforts to grapple with the developmental challenges have been complicated by its colonial history, globalisation, leadership failures and adoption of development approaches that have been proved to be inadequate. The importance of leadership for the success of organizations and nations cannot be overemphasized. Some scholars have pointed out that everything rises and falls on leadership.

Despite this recognition, there is scarcity of leaders all over the world. There is a saying that the world is filled with followers, supervisors and managers but very few leaders. There are four kinds of people in the world: those who watch things happen; those who let things happen; those who ask what happened and those who make things happen. Leaders are those who make things happen.

A visionless, insecure and incompetent leadership is a killer of organization and nations. Similarly, strategy is very crucial to the development and performance of any organisation or nation. Strategy occupies a central position in the focus and proper functioning of any organization or nation.

This is because it is a plan that integrates an organizations or nations major goals, policies and action into a cohesive whole. A well formulated strategy should therefore help to marshal and allocate an organisations or nations resources into a unique and viable posture based on its relative internal competencies and shortcomings, anticipated changes in the environment, and contingent moves by others. Strategies help to create a sense of politics, purpose and priorities.

A dynamic and visionary leadership combined with appropriate strategy process will produce a correct development approach that will lead to the prosperity and development of Africa.

The African Centre for Leadership Strategy and Development is poised to contributing to the transformation of Africa through building dynamic and visionary leadership and proposing appropriate strategies and development approaches.

The major focus of work will run from Nigeria partnering with organisations across Africa.

Source: African Centre for Leadership Strategy and Development

'Corruption at forensic lab sabotages convictions'

ALLEGED wide-scale corruption and theft at the country's leading police forensic science laboratory is leading to massive backlogs in the finalisation of horrific crimes, including sexual assaults.

A detailed dossier compiled by the Police and Prisons Civil Rights Union (Popcru) has blown open the lid on alleged criminal activities by police working within the national forensic science laboratory in Pretoria.

Contained within the dossier is damning information on the alleged irregular decommissioning of a multi-million rand DNA database machine, the theft of R500-million worth of narcotics evidence, the apparent sabotaging of court cases and the concealing of information reflecting the true situation of the laboratory's caseload backlog.

The dossier was given to National Police Commissioner General Riah Phiyega nearly two months ago. According to Popcru, which is calling for an investigation, police management have done nothing about the allegations, while whistle-blowers have been victimised - with two being subjected to internal disciplinary hearings.

According to the National Prosecuting Authority (NPA) and gender violence NGOs, DNA databases are essential in the fight for justice. NPA spokesman Vuyisile Calaza said DNA was crucial in proving the guilt of an accused in a sexual offence.

People Opposed to Women Abuse (Powa) director Nhlanhla Mokwena said a database of DNA from perpetrators of rape would make seeking justice easier.

A report by the Medical Research Council and the Study of Violence - involving the tracking of rape cases through the criminal justice system - showed how DNA reports more often than not led to an acquittal than a conviction. The report said DNA reports were seldom available because kits were infrequently analysed and the suspects' blood rarely taken for comparison against any DNA identified by the laboratory.

Popcru's Gauteng provincial chairman Vusi Shabalala said they had spent months collecting information to compile the dossier, which contained information on the alleged irregular decommissioning of a R46-million DNA database machine - crucial parts of which were sold for scrap metal.

Police spokesman Brigadier Phuti Setati said the matter was receiving attention.

"Popcru is being engaged. We cannot discuss the contents until the matter has been addressed," he said.

Police ministry spokesman Zweli Mnisi said Minister Nathi Mthethwa had been briefed on the allegations.

Source: The Sowetan

Widespread human rights abuses committed by Congo rebels

Rebels in eastern DRC who allegedly are receiving support from neighbouring Rwanda have committed widespread war crimes including dozens of rapes and killings, Human Rights Watch said in a report on Tuesday. Congo’s eastern hills — haunted by armed groups for nearly two decades — have seen six months of bloody clashes after hundreds of soldiers defected from the army, sparking a conflict that has forced at least 220 000 people to flee their homes.

United Nations experts say that Rwandan officials have provided logistical support and troops to the uprising, known as M23, although Kigali strongly rejects the claims. Allegations of widespread human rights abuses by M23 come as efforts to find a solution to the crisis appear to be stalling, with the UN’s peacekeeping head saying the deployment of a neutral force to tackle the rebels remains “only a concept”.

Human Rights Watch (HRW) said in a statement on Tuesday that at least 33 of M23’s own fighters had been executed for trying to desert, while 15 civilians also had been deliberately killed in rebel held territories since June.

“The M23 rebels are committing a horrific trail of new atrocities in eastern Congo,” Anneke van Woudenberg, HRW’s senior Africa researcher, said.

The rights group said it had based its research on nearly 200 interviews and had uncovered evidence of at least 46 women and girls who had been raped.

One victim said that M23 fighters had burst into her home, beaten her son to death and repeatedly raped her before dousing her legs in petrol and setting her ablaze, the rights group said.

M23 did not respond to telephone calls and messages requesting comments on Monday night, but HRW said that M23’s leader, Colonel Sultani Makenga, denied allegations of human rights abuses, including widespread forced recruitment.

“We recruit our brothers, not by force, but because they want to help us... That’s their decision,” Makenga is quoted as saying.

HRW also said that at least 600 men and boys have been forcibly or unlawfully recruited in neighbouring Rwanda, with recruitment continuing after allegations of Rwandan complicity were published in an interim UN report in June.

“The United Nations Security Council should sanction M23 leaders, as well as Rwandan officials who are helping them, for serious rights abuses,” van Woudenberg said.

NO NEUTRAL FORCE YET

Rwanda’s leaders have denied any involvement in the M23 rebellion, and have accused the U.N. team behind the report of bias, but that has not stopped several international partners, including the United States and Sweden, from suspending aid to Kigali.

A recent lull in fighting has seen opinions as to the real situation on the ground diverging, with the UK restarting some of its blocked budget support, saying that Rwanda was constructively engaged in the search for a solution.

But in his message to regional leaders at a conference over the weekend, UN secretary General Ban Ki Moon said that the humanitarian situation remained dire, and that he was “deeply concerned by continuing reports of external support to the M23.”

The regional meeting in Kampala, which Rwandan president Paul Kagame did not attend, failed to hammer out the details of a proposed neutral force to police the border between Congo and Rwanda, despite an offer of troops from Tanzania.

On Monday the U.N. under secretary general in charge of peacekeeping poured cold water on the idea of the world body providing direct backing for a neutral force, which has been agreed in principle by both Kinshasa and Kigali.

“I think the concept needs to be fleshed out... I would not think that the security council would be in a position to make a determination just on an idea,” Herve Ladsous told journalists at a press conference in Kinshasa.

Source: Times Live

SACP backs probe of ‘contract killings’ on KwaZulu-Natal coast

THE South African Communist Party (SACP) in KwaZulu-Natal has added its voice to calls for a dedicated police team to be established to investigate the "contract-killing industry" in the province, after the murder of two more African National Congress (ANC) branch leaders on the south coast on Sunday night.

There has been a spate of murders of political leaders in the province over the past year, mostly of ANC and National Freedom Party (NFP) leaders at branch level, and most cases remain unsolved.

"It is high time that … people put their heads together irrespective of political affiliation and come up with a strategy of ridding the province of the contract-killing industry," SACP Moses Mabhida provincial secretary Themba Mthembu said on Monday.

ANC provincial secretary Sihle Zikalala said that Oshabeni branch chairman Dumisani Malunga and branch secretary Bheki Chiliza had been shot and killed on Sunday night after a meeting. Political analyst Protas Madlala said the killings come barely two weeks after political parties in KwaZulu-Natal had held a joint summit to find ways to end politically motivated killings.

"We are very concerned with the killing of our comrades. This is unacceptable and cannot be tolerated," Mr Zikalala said.

Police spokesman Capt Thulani Zwane said no arrests were made. In July, ANC councillor Wandile Mkhize was murdered in a drive-by shooting near his home in Margate. Nhlakanipho Shabane, who was with him at the time, spent three weeks in a coma before dying in hospital. Two men have been charged in these murders.

Since the beginning of last year the NFP has lost 21 members to assassinations, which appear to be politically motivated. Mr Madlala said political leadership at local government level represented easy access to wealth in areas where unemployment was high and this might be behind the spate of murders. He said the latest killings did not appear to be linked to the election of new ANC leaders in Mangaung at the end of the year, as KwaZulu-Natal was the one province that was united in its support of the current administration. Mr Mthembu said the SACP in KwaZulu-Natal also firmly supported the current leadership. Mr Madlala said there was an "industry of people earning a living from this". Such people were also likely to have been involved in taxiindustry related killings. "Where is the intelligence in all of this?"

In eThekwini, the ANC’s biggest region in terms of number of branches, the cost of providing protection such as bodyguards for city councillors rose to R18m in the 2012-13 financial year from R2m the year before, and the city wants to increase this allocation even more.

Source: Business Day

Mursi wants Egypt at centre of Arab affairs, urges end to Syrian government

Egypt's president on Wednesday promised to put Cairo back at the heart of Arab affairs and made an impassioned appeal to Arab states to work to end the bloodshed in Syria, saying the time had come to change the Syrian government. By Yasmine Saleh and Ayman Samir.

Mohamed Mursi, making his first presidential address to the Arab League in Cairo, told Arab foreign ministers that Egypt and its people would "return to occupy their natural place at the heart of the Arab nation". Mursi, elected in June after last year's popular uprising forced Hosni Mubarak from power after three decades, said the time had come in Syria for "change and not wasting time speaking of reform. This time has passed now. Now it is time for change".

"The Syrian regime must take into account the lessons of recent and ancient history," he said in the speech in which he also talked of the revolt in Egypt.

Mursi also said a quartet of states - Saudi Arabia, Iran, Turkey and Egypt - would meet to discuss the Syrian crisis.

"The quartet which Egypt has called for will meet now," he said, without giving details.

An Egyptian delegate said the president's comments meant the four states were talking about what action could be taken but the formal formation of the quartet was still under discussion. He said no date had been set for its representatives to meet.

Tehran has backed Syria's government but the three other states want President Bashar al-Assad to stand down.

Analysts said the group was unlikely to agree on how to handle the crisis but said the initiative was a sign of how determined the newly elected president was to put Egypt back at the centre of regional politics.

FRESH APPEAL

As Mursi was leaving the podium, the Islamist president briefly returned to the microphone to say: "Syria, Syria, this is the arena to do something", pointing to the ministers below him, and then again saying "Syria" before stepping away.

It was the second such appeal for action in a week by Mursi. At the Non-Aligned Movement Summit in Iran on Aug. 30, Mursi referred to Tehran's ally as an "oppressive regime" and said it was an "ethical duty" to back rebels.

More than 20,000 people have been killed in Syria since initially peaceful protests against Assad erupted in March 2011. Tens of thousands more have fled across its borders to neighbouring states to escape the violence. Nasser al-Kidwa, deputy to Lakhdar Brahimi, the United Nations-Arab League mediator on Syria, arrived in Cairo on Wednesday to join the talks with Arab ministers. Brahimi, who is expected to visit Cairo on Sunday, has described his bid to broker peace as "nearly impossible" but Kidwa told reporters at Cairo airport that "we have not lost hope" despite the difficulties facing the mission.

According to a draft of the resolutions obtained by Reuters and approved on Wednesday, ministers called on the Arab League chief and its special committee on Syria to follow up with the U.N. secretary-general to outline a "new vision" for Brahimi.

The draft also called for Nilesat and Arabsat, two regionally owned satellite firms, to stop broadcasts of Syrian state and private channels. Broadcasts of the three Syrian channels on Nilesat stopped before the draft was approved, with a Nilesat source citing unspecified contract violations.

Abdelbasset Sida, head of the Syrian National Council (SNC) opposition alliance, told Reuters he was disappointed by the resolutions, saying Arabs should work more closely with Europeans opposed to Assad's rule and put more presure on Syria's ally Russia.

He said Arabs should back "using all means including force against the Syrian regime to reach that end". DM

Source: Daily Maverick

4,900 detectives not trained for job

PARLIAMENT has heard that almost 5,000 members of the detectives division in the South African Police Service (SAPS) have not been trained to occupy the jobs they currently do. This was revealed by SAPS senior management during a parliamentary dialogue on detective services that was convened by the portfolio committee on police in Cape Town yesterday.

Senior officials from the department of justice and constitutional development also told MPs how incompetent detectives were in dealing with investigations and gathering evidence at crime scenes.

Major-General Charles Johnson of the detective services division said while his unit had more than 23,000 detectives in its employ, more than 4,900 were not trained to do detective work. Johnson blamed the lack of training on a shortage of trainers, relevant technology and funds.

Chief director of court services in the department of justice, Pieter du Rand, said poor detective work was the main reason for low conviction rates because the SAPS often presented weak cases. He said thousands of investigators were not trained to handle basic detective work and evidence gathering.

"People come from police service backgrounds, they are not properly trained in how to deal with crime scene investigation, how to deal with the normal detective type of things ... so that justice is done," said Du Rand.

DA MP Dianne Kohler Barnard said because of the apparent poor capacity of the SAPS detectives unit, it was clear that police were "raping crime scenes". "It's the inevitable outcome of the extreme lack of training."

Acting committee chairman and ANC MP Annelize van Wyk said legislative interventions were needed to ensure proper training and promotion.

Johan Burger, a senior policing researcher from the Institute for Security Studies, said what was worrying was that detectives also seemed to be overworked. He said given the crime levels, a single detective handled a 100 investigations on average.

Source: The Sowetan

South Africa: NPA still wrong in Lonmin matter

Despite the withdrawal of the charges on Sunday by South Africa’s National Prosecuting Authority (NPA) to charge 270 arrested mine workers for the killings of their colleagues, the initial decision to charge them in respect of the doctrine of common purpose is a perverse application of the law and that may have had the consequence of exacerbating tensions at Lonmin Mine in Marikana, North Western Province.

The tragic scenes of August 16, 2012, when police opened fire and killed 34 miners who were part of a group protesting against low wages, sent shockwaves throughout the world. Many reacted with horror at a display of police force that was reminiscent of apartheid South Africa.

Irrespective of what the Judicial Commission of Inquiry - established by President Zuma to investigate the killings and those responsible - may find once it conducts its investigation, there can be no doubt that the actions of the police can at best be described as extremely heavy handed.

While police may have overreacted, what happened in Marikana was a result of a Molotov cocktail of extremely angry miners (many of whom were armed with machetes and spears), a recalcitrant employer that seemed reluctant to negotiate to resolve the labour dispute, and an absent political and union leadership.

As a result of the killings and cognizant of the broader context in which the killings occurred, Human Rights Watch called on the South African government to ensure that the Commission is established speedily and for its terms of reference to include a fact-finding mission on the background and underlying events leading to the violence in Marikana.

It is a perversion of the doctrine to suggest that whatever common crime it is alleged the miners were pursuing, that the killing of their colleagues by the police was a foreseeable outcome on their part of achieving that goal.

The creation of the Judicial Commission of Inquiry and the appointment of retired Judge Farlam to head it, is therefore a welcome step. Farlam is a highly respected judge who served many years on the Supreme Court of Appeal. The Commission will have four months in which to conduct its investigation and to submit its final report a month thereafter.

However, the actions by the NPA to add the doctrine of common purpose to the initial charge of public violence could have undone all the good efforts to address the situation. According to the doctrine, where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design.

In other words, there was a common purpose to commit a crime. It is a perversion of the doctrine to suggest that whatever common crime it is alleged the miners were pursuing, that the killing of their colleagues by the police was a foreseeable outcome on their part of achieving that goal.

This nonsensical decision by the NPA to charge the miners in this manner may have led many to conclude that these charges were politically motivated and an attempt to prevent further protests.

The terms of reference of the Judicial Commission of Inquiry include an investigation of all the parties involved and mandate the Commission to refer any matter regarding the conduct of any person or group for prosecution. In addition, the South Africa’s Independent Police Investigative Directorate (IPID) has also initiated an investigation into the conduct of the police that led to the tragedy.

It is therefore very worrisome that there is very little complementarity between these investigations. As the Judicial Commission of Inquiry has been specifically established to conduct an independent and impartial investigation, it is more prudent for entities to work collaboratively with the Commission.

The decision by the NPA to charge the miners in terms of the doctrine of common purpose seems shortsighted for at least three reasons: Firstly, in the context of the establishment of the Judicial Commission of Inquiry, it should await the results and recommendations of the investigation before deciding the appropriate course of action.

Secondly, the requirement of active association upon which it seems to rely is a misapplication of the doctrine which could lead to the unintended consequence of limiting human rights in other contexts. Lastly, its decision could have exacerbated the already tense situation and set off another Molotov cocktail.

Cameron Jacobs is the South Africa Director at Human Rights Watch

Source: Human Rights Watch

US-Led Abuse and Rendition of Opponents to Gaddafi’s Libya

Delivered Into Enemy Hands

All we seek is justice.… We hope the new Libya, freed from its dictator, will have positive relationships with the West. But this relationship must be built on respect and justice. Only by admitting and apologizing for past mis-takes … can we move forward together as friends. —Abdul Hakim Belhadj, military commander during the Libyan uprising who had been forcibly returned to Libya in 2004 with US and UK involvement, Libya, April 12, 2012

When rebel forces overtook Tripoli in August 2011, prison doors were opened and office files exposed, revealing startling new information about Libya’s relations with other countries. One such revelation, documented in this report, is the degree of involvement of the United States government under the Bush administration in the arrest of opponents of the former Libyan Leader, Muammar Gaddafi, living abroad, the subsequent torture and other ill-treatment of many of them in US custody, and their forced transfer to back to Libya.

The United States played the most extensive role in the abuses, but other countries, notably the United Kingdom, were also involved.

This is an important chapter in the larger story of the secret and abusive US detention program established under the government of George W. Bush after the September 11, 2001 attacks, and the rendition of individuals to countries with known records of torture.

This report is based mostly on Human Rights Watch interviews with 14 former detainees now residing freely in post-Gaddafi Libya and information contained in Libyan government files discovered abandoned immediately after Gaddafi’s fall (the “Tripoli Documents”). It provides detailed evidence of torture and other ill-treatment of detainees in US custody, including a credible account of “waterboarding,” and a similar account of water abuse that brings the victim close to suffocation. Both types of abuse amount to torture. The allega-tions cast serious doubts on prior assertions from US government officials that only three people were waterboarded in US custody. They also reflect just how little the public still knows about what went on in the US secret detention program.

The report also sheds light on the failure of the George W. Bush administration, in the pursuit of suspects behind the September 11, 2001 attacks, to distinguish between Islam-ists who were in fact targeting the United States and those who may simply have been engaged in armed opposition against their own repressive regimes. This failure risked aligning the United States with brutal dictators and aided their efforts to dismiss all political opponents as terrorists.

The report examines the roles of other governments in the abuse of detainees in custody and in unlawful renditions to Libya despite demonstrable evidence the detainees would be seriously mistreated upon return. Countries linked to these accounts include: Afghanistan, Chad, China and Hong Kong, Malaysia, Mali, Mauritania, Morocco, the Netherlands, Pakistan, Sudan, Thailand, and the United Kingdom.

Finally, the report shows that individuals rendered to Libya were tortured or otherwise ill-treated in Libyan prisons, including in two cases where the Tripoli Documents make clear the United States sought assurances that their basic rights would be respected. All were held in incommunicado detention—many in solitary confinement— for prolonged periods without trial. When finally tried, they found that the proceedings fell far short of international fair trial standards.

Source: Human Rights Watch

Kenya: High Court Ruling in Mortgage Dispute

(Obiter as per Ogola, J.)

"Really where is justice? Banks cannot just hide behind the contracts they make, regardless of how unjust they are, to literally destroy their customers. Without their customers the banks cannot operate. A time has come for banks in Kenya to look into the eyes of their customers and answer the question: Are banks Kenyans? Or have they just entered Kenya for business? Banks in Kenya reign large.

I am reminded of a predator who after killing the prey is not satisfied to leave the carcass to the vultures, but becomes both the predator and the vulture, killing the prey and gleaning the meat from the carcass to ensure the prey is really dead. I am also reminded of a robber killing his victim and not only attending his funeral, but insisting on carrying the casket to the grave to confirm that his victim is dead and buried."

Captain J N Wafubwa vs Housing Finance Co. of Kenya

High Court at Nairobi - Milimani Commercial Courts

E.K O Ogolla. J

April 26, 2012

Ownership of a home in Kenya is a dream for many Kenyans. That is why many banks have gone into mortgage financing in a quest to fulfill the dream of many citizens of owning a home by taking a mortgage. Usually, the mortgage instrument is a standard contract across the board that gives the Bank the right to sell the mortgaged property in case the borrower is unable to repay the loan as stipulated in the Contract.

In exercising its right of statutory power of sale, the bank may sometimes err and cause serious frustrations to the borrower of the loan similar to what happened in the present case. Captain Wafubwa took a mortgage from the defendant, Housing Finance (HFCK) in 1989 and ran into arrears which gave HFCK the right to sell his mortgaged property to recover the loan.

The facts

The Plaintiff in this case, Captain Wafubwa took a mortgage with Housing Finance Company of Kenya in 1989. He fell into arrears with the repayments. The bank in exercise of its statutory power of sale held a public auction in 1996 and sold off the property for Ksh 4.5M to United Millers Ltd who were supposed to pay 25% of the price at the fall of the hammer.

United Millers paid the 25% but did not follow through the transaction and therefore the house was not transferred to them. They therefore forfeited the deposit of about Kshs. 1,125,000. The bank in its testimony testified that the said deposit of the money went to its profit and loss account and therefore the borrower still owed the bank money.

In 2009, the Bank sold the suit property through a private treaty to a third party for Kshs 4.5M an amount, which it was worth 13 years back. At that point in time, HFCK claimed they were owed Ksh. 11M by Captain Wafubwa. With this amount, the Bank credited Captain Wafubwa's account and still asked him to repay more than Kshs. 6.8M remaining as part of the debt.

Before the bank did the private treaty, the Captain had sought to redeem his house to no avail and had taken his battle to the Court of Appeal. In the Court of Appeal, it was agreed by a majority decision that the right of redemption by Captain Wafubwa had been extinguished at the fall of the hammer but with one Judge of Appeal dissenting.

The dissenting Judge argued that the right to redeem the house had not been extinguished at the fall of the hammer since the sale was never finalized and as such, the owner still had a chance to redeem his house. However, since a decision by the majority of the Judges had been reached, the owner had no recourse but to seek alternative civil remedy, which resulted in this suit. The Captain went to court claiming wrongful eviction and also claiming the deposit paid in 1996 of Kshs. 1,125,000 and the balance of Kshs. 20,000.

The mortgage had been entered into under the Indian Transfer of Property Act 1882 (now repealed) which at section 69 (c) provides for the mechanism of how proceeds of a sale or attempted sale are to be applied when a bank exercises its statutory power of sale. The section provides;

"The money which is received by a mortgagee, arising from a sale by him under the mortgagee's statutory power of sale after discharge of prior encumbrances to which the sale is not made subject, if any, or after payment into court of a sum to meet any prior encumbrances, shall be held by him in trust to be applied by him, first, in payment of all costs, charges, and expenses properly incurred by him as incident to the sale or any attempted sale, or otherwise, and secondly in discharge of the mortgage - money, interest, and costs, and other money, if any, due under the mortgage, and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorized to give receipts for the proceeds of the sale thereof."

Court Findings

The court opined that the auction sale which took place on November 8, 1996 was a "sale" or an "attempted sale" and therefore the deposit received from it could only be spent as provided under the Act and the balance thereof after deducting the costs and charges had to be used to reduce the mortgage debt and interest, with the residue, if any, given to Captain Wafubwa.

From the foregoing the court found that Captain Wafubwa was entitled to the said credit balance of Kshs.20, 662.80 immediately the deposit of 25% was made pursuant to the attempted sale on 8th November 1996. This being so, his property ought not to have been sold by private treaty in February 2009 as at that time the Captain did not owe HFCK any money on account of the aforesaid mortgage transaction. Captain Wafubwa was therefore entitled to his property.

However since the property was sold to a purchaser for value without notice of the preceding events, and since title had passed to the said purchaser upon the transfer registered on April 21, 2009, Captain Wafubwa was only entitled to the value of his property as at the time of the transfer to the Purchaser together with the expected appreciation in value since, the court said.

Judgment was hence entered for Captain Wafubwa for (a) Kshs.20,662.80/= with interests at 27.5% p.a. with effect from November 12, 1996 till payment in full, (b) Kshs.4, 500,000/= with interest at 27.5% p.a. with effect from February 9, 2009 till payment in full being the value of the suit premises from date of sale and (c) Cost of the Suit with interests thereon at court rates.

Source: All Africa

Missiles thrown at police during north Belfast trouble

A number of fireworks and other missiles were thrown at police lines during disturbances in north Belfast on Tuesday evening. The police moved in after a crowd of about 200 people gathered in the Denmark Street area at about 22:00 BST. A police inspector suffered a hand injury during the disturbance, which lasted about an hour.

It was the third night of violence in the area which erupted as a result of tension surrounding a parades dispute. More than 60 police officers were injured and seven hospitalised during three nights of disturbances. A water canon was moved into the street at 23:00 BST but was not used. A short time later, the crowd of loyalists dispersed and police began scaling down their operation.

Earlier on Tuesday, a senior police officer challenged politicians to sort out the parades issue before someone was killed. Assistant Chief Constable Will Kerr was speaking after a second night of violence - believed to be mainly loyalist - in north Belfast. ACC Kerr said he feared someone would be killed unless the violence in the Carlisle Circus area stopped.

On Monday night, petrol bombs, bricks, fireworks and stones were thrown at police. A van was hijacked and pushed into police lines. Two police officers were knocked unconscious by thrown missiles and another suffered a broken arm. Four water cannon were deployed by police. The area returned to calm at about 03:00 BST. Seven people were arrested and ACC Kerr said there would be more to follow.

ACC Kerr said he did not believe the violence was officially sanctioned by any loyalist paramilitary groups. But he said members of these groups had been involved in the trouble. He challenged politicians and community leaders to "sort this out, and sort it out now," ahead of a planned loyalist Ulster Covenant parade on 29 September.

On Sunday night, 47 police officers were injured during disturbances in the same area, following a republican parade. Police said as many as 350 loyalists were involved in rioting. It has been claimed the loyalists were angry that the republican parade had no restrictions placed on it by the Parades Commission, which makes determinations on contentious marches in Northern Ireland.

Winston Irvine, of the loyalist North and West Belfast Parades Forum, dismissed as "sheer rubbish" claims that the violence was orchestrated by paramilitaries.

Source: BBC

Banks Face Suits as States Weigh Libor Losses

The scandal over global interest rates has state officials like Janet Cowell of North Carolina working intensely behind the scenes to build a case for suing the nation’s largest banks. Ms. Cowell, the state’s elected treasurer, and several of her staff members have spent the summer combing through the state’s investments trying to determine how much the state may have lost because of suspected manipulation of the London interbank offered rate, or Libor, which is used as a benchmark for trillions of dollars of financial contracts around the world.

“We think this could be as big as the mortgage crisis settlement, that this could be a really high impact situation and that we should be aggressive on this,” Ms. Cowell said, referring to the $25 billion settlement that the nation’s biggest banks entered with state attorneys general.

The activity provides a glimpse at how widely the Libor scandal has spread through the financial world, and how much damage may still be in store for the banks accused of manipulating Libor. Her work also suggests just how difficult it is, and how long it may take, to get to the bottom of the losses.

The attorneys general in Maryland, Massachusetts, New York and Connecticut have all been examining how much their states may have lost as a result of a lowered Libor. A spokeswoman for Connecticut’s attorney general, George C. Jepsen, said that the state’s work with New York’s attorney general, Eric T. Schneiderman, “has broadened significantly over the last few weeks and we are now coordinating with a much larger group of attorneys general.”

Even before the British bank Barclays admitted in June that its employees had tried to manipulate Libor, there were a number of lawsuits filed by cities and municipal agencies seeking damages from large banks for manipulating Libor. But while those cases were filed by private sector lawyers, the public officials are looking at bringing more wide-ranging lawsuits on behalf of the states. The Justice Department has coordinated with the states and is leading its own investigation.

The government officials are hoping that their cases will be bolstered by new settlements between regulators and individual banks that are suspected of participating in the manipulation. Most of the more than one dozen banks involved in setting Libor have said in official filings that they are in discussions with regulators about their involvement in the Libor process.

Libor is supposed to represent how much banks are paying for short-term loans from other banks. It is determined by the British Bankers Association after a daily poll of the world’s largest banks. It then serves as a benchmark for rates paid by consumers and businesses on everything from mortgages to derivatives to student loans.

Barclays said in its settlement that it and other banks pushed Libor down artificially during the financial crisis to appear more healthy. Barclays also admitted that its traders tried to manipulate Libor at other points in order to sweeten particular financial deals. Barclays paid $450 million to settle the charges.

The financial products used by states and local governments are especially vulnerable to an artificially lowered rate.

Ms. Cowell, a 44-year-old Democrat and former business consultant who is running for another four-year term, was aware of the potential implications of the Libor case for North Carolina almost as soon as the Barclays settlement was announced on June 27. The next Monday, at her weekly staff meeting, she asked her office’s lawyers and investment officers to begin looking into it.

The inquiry has focused primarily on two areas of the state’s finances.

One was the state’s public pension plans, which in North Carolina are overseen by the treasurer. A state money manager began identifying bonds held by the state pension fund and money market fund investments that derived their value from Libor.

In July, lawyers from the treasurer’s office took part in a conference call on the topic with pension funds in other states. Ms. Cowell and members of her staff have found a few investments held by the $76 billion pension fund that were tied to Libor, but they have now determined that the losses were most likely “pretty small.”

The other, more significant area where Ms. Cowell began looking for losses was in a kind of financial contract that many states use, known as an interest rate swap. States use swaps when they want to issue a bond at a floating interest rate but protect themselves from future swings in rates. In a standard swap, a state makes a regular payment to its bank and gets a payment back that is determined by the level of Libor. If Libor was lower, the payments will be, too.

North Carolina had two major swaps at the time the benchmark was suspected of being rigged. Together, the two swaps were tied to $1.3 billion of bonds that were issued in 2002 and 2005. The banks on the other side of these contracts included Bank of America, of Charlotte, N.C., and JPMorgan Chase & Company based in New York, both of which are involved in setting Libor.

The challenge facing North Carolina and other states is that there is no agreement yet on how much the banks actually manipulated Libor, and for how long. The lawsuits that have already been filed have estimated that the banks held Libor down by at least 30 basis points, or 0.30 percent, for three years. By one method of calculation, that could have meant losses for North Carolina of around $10 million on their swaps.

Ms. Cowell said she assumed that as more banks settled with regulators, those numbers would become clearer. In the meantime, the treasurer’s office is working out formulas for losses that they can plug numbers into if and when new settlements are made public. At that point, Ms. Cowell also plans to share her work with other municipal agencies in North Carolina that held about 40 swaps during the period in question.

“This is an unprecedented level of analysis, and an unprecedented wide spectrum of financial impact,” Ms. Cowell said.

The inquiry could provide a political bump for Ms. Cowell, who is seeking another term as anti-Wall Street sentiment is running high. A graduate of the Wharton School of Business, she served on the Raleigh, N.C., City Council and then the state Senate before taking office in 2008. She cites among her accomplishments the state’s maintaining its status as one of eight with a AAA rating from the major credit rating agencies.

North Carolina’s attorney general will make the final determination on whether the state will join existing lawsuits, proceed with its own case or take no action at all. The attorney general’s office did not respond to requests for comment.

But the office has been involved in many of the discussions with the treasurer’s staff, people involved in the meetings said.

Source: New York Times

Barclays makes £500m betting on food crisis

Barclays has made as much as half a billion pounds in two years from speculating on food staples such as wheat and soya, prompting allegations that banks are profiting handsomely from the global food crisis. Barclays is the UK bank with the greatest involvement in food commodity trading and is one of the three biggest global players, along with the US banking giants Goldman Sachs and Morgan Stanley, research from the World Development Movement points out. Last week the trading giant Glencore was attacked for describing the global food crisis and price rises as a "good" business opportunity.

The extent of Barclays' involvement in food speculation comes to light as new figures from the World Bank show that global food prices hit an all-time high in July, with poor harvests in the US and Russia pushing up the average worldwide cost of staples by an unprecedented 10 per cent in a month. The extent of just one bank's involvement in agricultural markets will add to concerns that food speculation could help push basic prices so high that they trigger a wave of riots in the world's poorest countries, as staples drift out of their populations' reach.

Nor has the UK escaped rising food costs. Shop food prices have risen, on average, by 37.9 per cent in the past seven years, according to the Office for National Statistics, as the demands of an increasingly affluent and growing world population strain supply. Oils and fats have soared by 63 per cent in the UK during that period, fish prices by 50.9 per cent, bread and cereals by 36.7 per cent, meat 34.5 per cent and vegetables 41.3 per cent. In April, average UK food prices were 4.2 per cent higher than a year earlier.

Oxfam's private sector adviser, Rob Nash, said: "The food market is becoming a playground for investors rather than a market place for farmers. The trend of big investors betting on food prices is transforming food into a financial asset while exacerbating the risk of price spikes that hit the poor hardest."

The World Development Movement report estimates that Barclays made as much as £529m from its "food speculative activities" in 2010 and 2011. Barclays made up to £340m from food speculation in 2010, as the prices of agricultural commodities such as corn, wheat and soya were rising. The following year, the bank made a smaller sum – of up to £189m – as prices fell, WDM said.

The revenues that Barclays and other banks make from trading in everything from wheat and corn to coffee and cocoa, are expected to increase this year, with prices once again on the rise. Corn prices have risen by 45 per cent since the start of June, with wheat jumping by 30 per cent.

Barclays makes most of its "food-speculation" revenues by setting up and managing commodity funds that invest money from pension funds, insurance companies and wealthy individuals in a variety of agricultural products in return for fees and commissions. The bank claims not to invest its own money in such commodities.

Since deregulation allowed the creation of such funds in 2000, institutions such as Barclays have collectively channelled an astonishing $200bn (£126bn) of investment cash into agricultural commodities, according to the US Commodity Futures Trading Commission.

Barclays' dominance in commodities trading is thanks to its former chief executive Bob Diamond, who was Britain's best-paid banking boss until he was forced to resign last month following a £290m fine for attempting to manipulate the Libor interest rate. As boss of Barclays Capital he boosted trading in agricultural products.

Dealing with the reputational headache associated with high levels of food speculation will be yet another item in the already-bulging in-tray of Antony Jenkins, who was promoted to become Mr Diamond's replacement on Thursday.

Christine Haigh, policy and campaigns officer at the World Development Movement and one of the analysts behind the research, said: "No doubt the UK's biggest player in the commodities markets is hoping it will do better this year by cashing in on rising food prices. "Its behaviour risks fuelling a speculative bubble and contributing to hunger and poverty for millions of the world's poorest people."

Banks and hedge funds typically argue that speculation makes little or no difference to food prices and volatility and argue, correctly, that no definitive link has been proved. Barclays declined to comment on the amount of money it makes from trading in agricultural commodities yesterday.

The bank defended its actions, pointing out that trading in so-called futures contracts – an agreement to buy or sell a certain quantity of a product, at a given price on an agreed date – helped parties such as farmers and bakers to hedge against the risk of rising or falling prices. "Our clients include investment companies, food producers and consumers who, among other things, seek our help to manage risks."

Barclays also declined to comment on whether it thought large amounts of speculation pushed up prices and volatility. A spokesman said: "We recognise there is a perception held by some stakeholders that participation in agricultural futures markets by some participants can unduly influence the prices of commodities. As a result, we continue to carefully monitor market trends and any research produced on this subject," a spokesman said."

Barclays Capital analysts admitted in a note to clients in February that speculation did push up prices. Barclays said: "The second key driver is that commodity investors have begun allocating to commodities again after beginning 2012 heavily underexposed to the sector." The other drivers were the "health of the global economy" and "weather and geopolitics".

Source: The Independent