Lesotho: Joint submission to the UN Human Rights Committee by ICJ and partners highlights numerous human rights concerns

n advance of the upcoming examination of Lesotho’s human rights record under the International Covenant on Civil and Political Rights (ICCPR) in July, the International Commission of Jurists (ICJ), The People’s Matrix Association (PM), Seinoli Legal Centre (SLC) and the Lesotho National Federation of Organizations of the Disabled (LNFOD) made a joint submission to the UN Human Rights Committee. The document draws the Committee’s attention to the human rights impact of inevitable failures by Lesotho to comply with its obligations under the ICCPR. It makes a number of recommendations to address those failures.

The submission details several concerns arising from Lesotho’s failure to comply with its obligations under the ICCPR, including:

  • the failure to enact a legal framework allowing for lesbian, gay, bisexual, trans, intersex, and queer (LGBTIQ+) persons to access legal documentation, or alter such legal documentation, to correctly reflect their self-identified gender/sex;
  • the denial of access to justice because of restricted access to legal aid services in Lesotho;
  • the denial of the rights to freedoms of assembly and expression of individuals and groups seeking to undertake lawful protests to secure their rights; and
  • the discrimination suffered by persons with disabilities in areas such as sexual autonomy, voting rights, access to justice, institutionalization, and failures to provide reasonable accommodations.

In addition, the ICJ, PM, SLC, and LNFOD are concerned, as set out in their joint submission, that, even though Lesotho’s legislation guarantees equal treatment of men and women, women are discriminated against when they try to access compensation from the Lesotho Highlands Water Project.

In particular, the organizations’ joint submission to the Committee describes human rights concerns with respect to the following topics, making recommendations on how such concerns could be addressed:

Sexual Orientation and Gender Identity

  • discrimination on the basis of sexual orientation;
  • the criminalization of consensual same-sex sexual activity;
  • failure to ensure legal gender/ sex recognition;

Administration of Justice

  • limited access to State-provided legal aid and restrictions on NGOs in providing legal aid services;
  • denial of the right to peaceful assembly (in the context of protests);
  • discriminatory denial of compensation to women affected by the Lesotho Highlands Water Project.

The rights of persons with disabilities

  • failure to implement the Persons with Disability Equity Act and establish the Persons with Disability Advisory Council;
  • failure to provide reasonable accommodation for persons with disabilities to access courts and legal services;
  • laws rendering persons with disabilities incompetent to give evidence;
  • the indefinite institutionalization of persons determined to be “insane” or “mentally incapacitated” due to a denial of support to enable them to exercise their legal capacity;
  • failure to provide quality, inclusive education for children with disabilities in the general education system in community schools;
  • laws denying the legal capacity of persons with disabilities to consent to sexual intercourse;
  • the denial of persons with disabilities of their right to vote.

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ICJ, PM, SLC & LNFOD Joint Submission on Lesotho to the UN Human Rights Committee

Background

On 2 April 2019, at its 125th session, the Human Rights Committee issued a List of issues prior to the submission of the second periodic report of Lesotho, and requested in Part B, specific information on the implementation of articles 1 to 27 of the Covenant, including regarding previous recommendations of the Committee.

On 31 March 2020, Lesotho submitted to the Human Rights Committee its second periodic report under Article 40 of the Covenant pursuant to the optional reporting procedure. The report was published on 22 April 2020.

In view of the Committee’s review of Lesotho’s record under the ICCPR, the ICJ, The People’s Matrix Association, Seinoli Legal Centre, and the Lesotho National Federation of Organizations of the Disabled they have made a joint submission to the UN Human Rights Committee on Lesotho’s State Party report.

The UN Human Rights Committee will review Lesotho’s implementation of the list of issues during its 138th session, between 26 June and 28 July 2023.

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Calling all advocates for human rights!

We are thrilled to inform you about the ongoing Human Rights Defenders Training Workshop in Mokhotlong, Lesotho. 🌍

The displacement of rural communities and the violation of their land rights due to projects like the Lesotho Highlands Water Project (LHWP) have prompted us to take action. We believe in empowering communities to fight for their rights! 💪✊

Did you know that many people are unaware of the laws designed to protect them from such injustices? Limited access to legal assistance further marginalizes these communities. Together, we can make a difference! 🌟

That’s why the Seinoli Legal Centre, in collaboration with the Southern Africa Human Rights Defenders Network, is hosting the first-ever local community HRDs training for those affected by LHWP Phase II. Our goal is to enhance oversight and strengthen the role of HRDs in monitoring and responding to human rights violations.

From June 12th to 14th, 2023, community members will be equipped with the knowledge and skills to be powerful advocates for their rights. Together, we can bring about positive change! 🤝

Join us in raising awareness and supporting these courageous individuals fighting for justice. Together, we can build a better future!

#HumanRightsDefenders #CommunityEmpowerment 

#LesothoHighlandsWaterProject #Advocacy #JusticeForAll

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Dear President Ramaphosa, as you visit Lesotho, listen to the cries of the displaced

By Reitumetse Nkoti Mabula on behalf of Seinoli Legal Centre, Survivors of Lesotho Dams, Catholic Commission for Justice and Peace, and Southern Africa Litigation Centre

The next phase of the Lesotho Highlands Water Project, marked by your visit on 23 May 2023, will lead to the renewed physical and economic displacement of thousands. The result is imminent food insecurity, impoverishment, and the breakdown of social networks and culture.

Dear President Cyril Ramaphosa,

Your visit to Polihali, Mokhotlong, to officially launch full-scale construction work of Phase II of the Lesotho Highlands Water Project (LHWP II) on 23 May 2023, is highly welcomed.

Mr President, when this project was concluded under the 1986 LHWP Treaty, it was celebrated for the immense economic returns that would accrue to both Lesotho and South Africa, including sustainable development for local affected communities.

South Africa and Lesotho made an undertaking in the LHWP Treaty, “to take all reasonable measures to ensure that the implementation, operation and maintenance of the Project are compatible with the protection of the existing quality of the environment and, in particular, shall pay due regard to the maintenance of the welfare of persons and communities immediately affected by the project”.

The reality for communities, however, is in stark contrast to this undertaking.

As you know, Phase I of this project, which involved construction of the Katse Dam (under Phase IA) and Mohale Dam (under Phase IB) was inaugurated in 2004. More than 20,000 people were directly affected by this first phase of LHWP.

Thousands remain without compensation for the adverse impacts of the project on their lives and no efforts have been made to actively ensure that communities get direct economic benefits. People living in the vicinity of the Katse and Mohale dams endure consistent violation of their right to access clean water, since access to natural springs and other sources have been affected by the dams.

Read more in Daily Maverick: Report raises alarm over mines’ pollution of rivers critical to Lesotho Highlands Water Project

Mr President, residents are not allowed to access water from the dams to water their animals and irrigate their crops. Women within LHWP Phase II-affected communities are already marginalised as a result of cultural stereotypes which prevent them from owning land and benefiting from compensation for land rights which are affected by the LHWP. Lack of access to water further marginalises them and exacerbates their inability to break free from poverty.

Land and other natural resources which are the basis of the communities’ livelihoods have been expropriated by the project without payment and compensation.

While there is a responsibility by the Lesotho Highlands Development Authority to uphold the agreement, there is a significant perception among affected communities that impacts negatively on the image of South Africa. This fundamentally detracts from South Africa’s Africa Agenda and desire to be a partner to Africans.

Moreover, affected communities are likely to seek further economic opportunities in South Africa.

Apartheid origin

Mr President, you may recall that the LHWP Treaty was signed between the apartheid government in South Africa and a military regime in Lesotho. It was concluded during a period when both governments had no regard for human rights and the dictates of democracy and good governance.

In fact, no consultations were undertaken at all with the people of Lesotho in general and the affected communities in particular. Any dissent expressed against this project was thwarted with threats and violence. It is therefore not surprising, Mr President, that the treaty has failed to promote, respect and protect the human rights of people immediately affected by the project.

Thousands will be economically displaced as a result of acquisition and inundation of their agricultural land, grazing land, including natural resources.

When South Africa decided to implement Phase II following prolonged negotiations and signed the agreement to that effect in 2011, it was in the context of these residual issues which remain outstanding to date. This occasion of your visit to the Polihali Dam project site presents an opportunity to ensure that this phase does not repeat those mistakes, and guarantee that the communities who have given way for this dam are placed at the centre of this project.

Mr President, the further implementation of advanced infrastructure works to pave the way for construction of LHWP II, known as the Polihali Dam, has already had an adverse impact on the livelihoods of communities affected by this component of the project.

The Katse Dam is part of the Lesotho Highlands Water Project and supplies water to Gauteng. (Photo: Deaan Vivier / Beeld / Gallo Images)

Land and other natural resources which are the basis of the communities’ livelihoods have been expropriated by the project without payment and compensation.

The transition into the next component of LHWP II, marked by the occasion of your visit on 23 May 2023, will lead to renewed physical and economic displacement of families. The LHWP Phase II feasibility studies have estimated that about 16 villages will need to be relocated or resettled due to close proximity to the dam and/or significantly impeded access in the event of floods.

And again, thousands will be economically displaced as a result of acquisition and inundation of their agricultural land, grazing land, including natural resources. The result is imminent food insecurity, impoverishment and the breakdown of social networks and culture.

Climate change and the growing South African population and economy dictate that South Africa will increasingly rely on water from Lesotho. The role and importance of the LHWP and the anticipated phases beyond the Polihali Dam necessitate that great care be taken to secure ownership and buy-in of communities who have hitherto remained dissatisfied with this project.

Read more in Daily Maverick: Can anyone hear the socioeconomic and environmental alarm bells on Lesotho Highlands Water Project?

The challenge, Mr President, for this occasion and for the government of South Africa is to address South Africa’s interests in keeping this bilateral project more significant to both countries without losing sight of the longer-term sustainable development of local communities.

We therefore call upon you to:

  1. Review, as a matter of urgency, the LHWP Treaty to align it with the international human rights standards for better protection and promotion of the rights of affected communities;
  2. Devote your time in Lesotho to meet civil society organisations and the communities affected to hear their concerns regarding implementation of the LHWP Phase II first-hand;
  3. Engage the government of the Kingdom of Lesotho and the LHWP’s implementation authorities on the challenges facing communities affected by Phase I and Phase II of the LHWP, address human rights violations of communities, and ensure their right to development and restore their livelihoods;
  4. Assist the Kingdom of Lesotho and Lesotho Highlands Development Authority to overhaul the entire LHWP Legal and Compensation Framework, to ensure fair and adequate compensation for communities;
  5. Support the Kingdom of Lesotho and Lesotho Highlands Development Authority to formulate, as a matter of urgency, the Livelihoods Restoration Policy, which is in line with best international standards, to ensure that affected communities’ livelihoods are improved; and
  6. Undertake, as a matter of urgency, a forensic audit of all compensation funds intended for the affected people. DM

Reitumetse Nkoti Mabula is Executive Director of the Seinoli Legal Centre in Maseru, Lesotho.

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Human Rights Situation Report

Seinoli Legal Centre (SLC) with the Human Rights Institute of South Africa (HURISA) submitted a Human Rights situation report on the communities being affected by large Infrastructure projects in Lesotho at the 75th Ordinary Session of the African Commission on Human and People’s Rights held in Banjul, The Gambia. The report focused on the Human Rights violations emanating under LHWP Phase II in Polihali and the L-BWT scheme in Makhaleng.

The article can be accessed in this week’s Public Eye newspaper Vol. 26. No 19 on page 16 titled “Opinion of Lesotho’s dams, environmental impact and compensation.

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