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FRIDAY FILE - 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).
AWID reviews the report and its relevance to women human rights defenders (WHRDs).
By Katherine Ronderos
Hermelinda Claret Simon Diego has been protesting against the construction of a hydroelectric plant by Spanish company Hidro-Santa Cruz S.A. (Ecoener – Hidralia Energía) in her hometown of Barillas, Guatemala. But she says, "I have been accused of things I've never done. They accused me of being involved in burning machinery and the detention of the company's security. In my town, male and female leaders are being persecuted for what other people have done, there is a lot of concern and fear”. A three month long arrest warrant against Ms. Simon Diego, falsely accused of being part of a clandestine and criminal organization under the law against drug trafficking, was lifted in September 2012.
In May 2012, staff members and friends of WONETHA - an outreach center working to improve the health, social and economic well-being of 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 under the Section 136 of the Penal Code Act cap 120, carrying a seven-year prison sentence. Although sex work is illegal in Uganda, providing services and support for sex workers is not. The charges were dropped months later, but such harassment and accusations takes its toll on the WHRDs who must dedicate time and resources to legal defense; and to protect their reputation in order to effectively defend human rights.
Esperlita Garcia, known for her resistance to mining projects and her fight against the proposed cyber-law in the Philippines 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.
These are just three examples of how States use existing laws to restrict, criminalize and delegitimize the work of WHRDs. WHRD International Coalition’s 2007 publication Claiming Rights: Claiming Justice developed an initial typology of legal provisions and practices restricting women’s activism that is helpful to deepen understanding about criminalization of WHRDs.
Criminalization and the use of legal frameworks to regulate the activities of HRDs is the focus of the UN Special Rapporteur on the Situation of Human Rights Defenders, Ms. Margaret Sekaggya’s latest report. The report is a compilation of assessments made by other Special Rapporteurs[1] on how different legislation controls and restricts the activities of defenders. The report references the UN Declaration on Human Rights Defenders, which contains provisions against arbitrary use of legislation to restrict activities, as an important tool for protecting HRDs.
In her report, the Special Rapporteur reviews the types of legislation affecting the work of HRDs, including laws 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. While all of these categories are relevant, here we look at how four of these practices affect WHRDs.
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”.[2]
Public morals
In Meso-America, WHRDs working to promote women’s sexual and reproductive rights and the decriminalization of abortion[3] 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”.[4] 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”.[5]
Legal restrictions on operations
Increasingly, States are issuing 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”.[6]
The Special Rapporteur raises concern about the development of legislation that allows authorities to supervise the activities of civil society organizations (CSOs). The report refers to confidential information received by the Special Rapporteur that points 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 and limiting this to up to 10% of their total annual income.
Similarly, restrictions on certain areas of work have been imposed on women’s rights organizations, in particular those related to defending political rights and those that use human rights language in their organizations’ objectives. 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 aforementioned 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”.[7] 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.
Recommendations
The 26 recommendations presented in the Special Rapporteur’s report aim at ensuring that national legislations comply with basic human rights enshrined in their constitutions – and consistent with the Declaration on HRDs – to 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 Human Rights Defenders and other applicable international human rights instruments”, is critical to guarantee the inclusion and full participation of WHRDs in civil society.
[1] The Special Rapporteur on the promotion and protection of human rights while countering terrorism; the first report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association (May 2012, A/HRC/20/27) which presents an assessment on best practices in relation to those rights; two relevant reports of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (A/66/290 and A/HRC/20/17); the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (A/66/254), which deals with issues relating to the use of legislation and are relevant to the working context of human rights defenders.
[2] Report of the Special Rapporteur on the situation of human rights defenders, 10 August 2012, A/67/292.
[3] Violence against women human rights defenders in Meso-America. An assessment in progress, 2010/2011 update.
[4] Report of the Special Rapporteur on the situation of human rights defenders, 10 August 2012, A/67/292.
[5] Ibid
[6] Cynthia Rothschild, “Written Out: How Sexuality is Used to Attack Women’s Organizing”, International Gay and Lesbian Human Rights Commission (IGLHC) and Center for Women’s Global Leadership (CWGL), 2005.
[7] Violence against women human rights defenders in Meso-America. An assessment in progress, 2010/2011 update.