* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
With the upsurge in the criminalization of civil society, the UN Special Rapporteur on the Situation of Human Rights Defenders’ 2012 report discusses how States use legislation to regulate the activities of human rights defenders (HRDs).
With research assistance by Katherine Ronderos
‘Big Brother’ is watching
In 2007 the WHRD International Coalition published Claiming Rights: Claiming Justice, which developed an initial classification of legal provisions and practices that restrict women’s activism and helped deepen understanding about criminalization of WHRDs globally. The use of legal frameworks to regulate and criminalize the activities of HRDs is now again the focus of a recent report by the UN Special Rapporteur on the Situation of Human Rights Defenders, Ms. Margaret Sekaggya. The report is a compilation of assessments on how different legislation is used to control and restrict the activities of defenders. Referencing the UN Declaration on Human Rights Defenders, which contains provisions against arbitrary use of legislation to restrict activities and is an important tool for protecting HRDs, Ms. Sekaggya has reviewed the types of legislation affecting the work of HRDs. These laws can be many and varied – but with one objective – to restrict, criminalize and delegitimize the work of HRDs. Those who dedicate their lives to defend others are constantly being watched.
Examples from around the world are increasingly being seen in the media. One of these I highlighted in a recent post where staff members and friends of WONETHA - an outreach center for adult sex workers in Uganda - were arrested without being informed of the charges against them. After three days in detention, the five women were charged with living on the earnings of prostitution, carrying a seven-year prison sentence. The charges were dropped months later. Another case in point is from the Philippines: Esperlita Garcia, known for her resistance to mining projects and her fight against a proposed cyber-law says “I am now against what looks like a conspiracy, with officials of agencies of government working to make sure that I get pinned down”. She is accused of libel and defamation for posting critical comments on her Facebook page. After an overnight detention Garcia was released on bail on 19 October 2012.
Justice unjust
Harassment and accusations such as these mean that HRDs dedicate important time and resources to their own legal defense. Furthermore, they are forced into a situation where they must defend and protect their reputation in order to effectively defend others’ human rights. Laws that states are using to restrict and delegitimize the work of HRDs include those relating to: anti-terrorism and national security; public morals; the registration, functioning and funding of associations; access to information and official-secrets; defamation and blasphemy; and Internet access. Some of these laws are highlighted below:
Anti-terrorism and national security: WHRDs in Zimbabwe have continually denounced arbitrary arrests and violations of the right to peaceful assembly. The increase in Governments that use anti-terrorism and/or national security laws to detain, prosecute, convict, and harass WHRDs is a worldwide concern. According to the Special Rapporteur, this type of legislation is “so broad that any peaceful act expressing views of dissent would fall under the definition of a terrorist act, or an act facilitating, supporting or promoting terrorism”. [Report of the Special Rapporteur on the situation of human rights defenders, 10 August 2012, A/67/292.]
Public morals: In Meso-America, WHRDs working to promote women’s sexual and reproductive rights are the ones who most often experience criminalization and defamation by the State, private groups and the media. The Special Rapporteur’s report strongly emphasises how vital sexual health and reproductive rights (SHRR) defenders are for the promotion, protection and respect of women’s human rights, highlighting that “these activities should not be subject to criminal sanction”. Zero tolerance for judicial harassment against SHRR defenders is called for, and States with legal frameworks guaranteeing SHRR should “ensure that such legislation is enforced without discrimination”.
Legal restrictions on operations: This is where states issue special regulations that affect the legal operation of women’s organizations in ways that are intended to inhibit their work. The 2005 report Written Out: How Sexuality is Used to Attack Women’s Organizing states that “after the attacks of 9/11, the US government put into place a set of supposedly terrorism-related legal and financial restrictions for any organization that funds groups outside the US. Under these policies, such funding organizations now have to prove that the groups receiving funds are not in any way engaging in terrorist activities”. The Special Rapporteur raises concerns about the development of legislation that allows authorities to supervise the activities of civil society organizations (CSOs). The report refers to how reporting requirements have been imposed on CSOs to retain their licence to operate, placing surveillance on CSOs, demanding documentation without prior notice, and restricting access to foreign funding. Similarly, restrictions on certain areas of work have been imposed on women’s rights organizations, in particular those related to defending political rights. Excessive requirements for operating legally make it difficult for WHRDs to comply, and in some instances the required documentation puts WHRDs at risk. This trend of legal control and restriction undermines and delegitimizes the work of WHRDs and their organizations, as the resources and time required to respond to such demands deter women’s rights advocates from forming organizations.
Defamation: Although defamation legislation is intended to protect a person’s reputation from false and malicious attacks, legal frameworks under the umbrella of defamation tend to hide political or economic interests in order to retaliate against criticism and public denouncement of corruption. While defamation laws rarely protect WHRDs from defamation, they are often used to limit the freedom of expression of WHRDs, as seen in the Philippines in the case of Esperlita Garcia. The Meso-American Assessment of Violence against WHRDs states that defamation is “one of the most repeated forms of violence against WHRDs in the region, either by the state, private groups and the media”. The Special Rapporteur’s report highlights that penalties are imposed on WHRDs who criticize Government representatives or religious laws. Under penal codes for defamation or blasphemy penalties vary from fines to months of imprisonment. These provisions prevent WHRDs from holding public officials or religious leaders accountable.
The UN Declaration on HRDs as a benchmark
There are 26 recommendations presented in Ms. Sekaggya’s report. These aim to ensure that national legislations comply with the basic human rights enshrined in their constitutions – and to ensure they are consistent with the Declaration on HRDs. This would create favourable working environments for HRDs. Special attention is needed regarding legislation that responds to the needs and situations of WHRDs, in particular those working on SHRR. The report makes an important call for States to “repeal all legislation that, with the declared objective of preserving public morals, criminalizes the activities of HRDs working on sexual orientation and gender identity issues”. Importantly, the Special Rapporteur’s recommendation to “ensure that civil society, national human rights institutions and other stakeholders are involved in a broad consultative process to ensure that the drafting of new legislation is in compliance with the Declaration on HRDs and other applicable international human rights instruments”, is critical to guarantee the inclusion and full participation of WHRDs in civil society.
