Friday, 05 June 2020

Amid heightened tension along its border with Ethiopia, Sudan swore in a new defense minister. Major General Yassin Ibrahim Yassin was recalled from retirement to fill the position following the death of General Gamal al-Din Omar.

Yassin's swearing-in came after an alleged Ethiopian cross-border attack which left at least one Sudanese soldier and a child dead, according to Sudan's military. Three Sudanese civilians and a soldier were also wounded.

The attack, which took place in the eastern province of al-Qadarif, started after an Ethiopian militia group penetrated Sudan's border to fetch water at the Atbara river, Brigadier Amer Mohammed al-Hassan, a spokesman for the Sudanese military, said.

Map showing Sudan's al-Qadarif province next to Ethiopia's border.

"It is not clear exactly what triggered a flare-up of this long-standing border dispute. Sources suggest that Sudanese security forces may have responded to incursions by Ethiopian farmers, which in turn brought in Ethiopian security forces," William Davison, senior Ethiopia analyst at the International Crisis Group, told DW.

The heavy exchange of fire reportedly left one Ethiopian militia wounded. "If these allegations are true, then it is an escalation," Kjetil Tronvoll, professor of peace and conflict studies and Research Director of International Studies at Bjorknes University College in Oslo, told DW.

The border clashes flared up as Ethiopia and Sudan were preparing to meet in the Sudanese capital Khartoum, for a second round of talks aimed at resolving the border dispute. "There have been negotiations and they reached an understanding that most or all of this contested land can be under Sudan," Tronvoll said. "The interesting aspect is why there is new violence now and possibly also at a higher level than before."

Sudanese soldiers on top of military vans. (picture-alliance/Photoshot/M. Babiker)

Sudan sent more troops along the border with Ethiopia to stop the incursions

According to Sudan's military, tensions along the border between the two countries have recently heated up amid increasing attacks on Sudanese troops. Following the incident, Sudan summoned Ethiopia's envoy and urged the Ethiopian government to do all it can to end such border clashes.

Ethiopia's call for diplomacy

Ethiopia offered its "deep sympathy and condolences to the families of the victims of the conflict along the Ethiopia and Sudan border." Addis Ababa urged the two countries to pursue diplomacy as a means of resolving the border dispute saying there was no need for the countries to "descend into hostility". Last month, Ethiopia's Prime Minister Abiy Ahmed sent General Adam Mohamed Mahmoud, the country's military chief to Khartoum in a bid to ease the tensions.


Statement of the Ministry of Foreign Affairs of the Federal Democratic Republic of Ethiopia on the - Border Incident. @NEBGET

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For Tronvoll, solving the dispute via diplomatic means is reasonable and should be encouraged. However, he said there could be more to the clashes. "There are various actors and processes within the region, and this is an opportune moment for some to ignite some tension between Sudan and Ethiopia," Tronvoll said. "Hopefully, the two sides can sit at the negotiating table and come to a conclusion."

Former Sudanese leader Omar al-Bashir (Ashraf Shazly/AFP/Getty Images)

Sudan's ousted former president Omar al-Bashir had tolerated Ethiopia's encroachment along the border

Root of Ethiopia-Sudan border dispute

Sudan and Ethiopia share a common boundary that stretches over 1,600 kilometers (994 miles). The border was drawn following a series of treaties between Ethiopia and the colonial powers of Britain and Italy. However, to date, this boundary lacks clear demarcation lines.

Sudan's al-Fashqa region which covers approximately 600 km, is a rich fertile land conducive for agriculture. For decades, Ethiopia has allowed its farmers to plant crops there.

Former Sudanese President Omar al-Bashir largely turned a blind eye to his country's territorial incursion. However, Sudan's transitional authorities, who took over after popular protests which eventually led to the ousting of al-Bashir, have initiated talks with Ethiopia in a bid to have to Ethiopian farmers withdraw.

More Sudanese boots at the Ethiopian border

For the first time in nearly 25 years, Sudan deployed its troops along the al-Fashqa border strip at the end March. This came after an attack which prompted a top security team to visit the area.

"There are old problems. Herders have lost their livestock and farmers have lost their lands," Lieutenant General Abdel Fattah Al-Burhan, Chairman of Sudan's Sovereignty Council, said in an interview with the national network, Sudan TV, after touring the border region. Al-Burhan defended the troop deployment saying the armed forces were left with no choice but to protect their territory because the Ethiopians had imposed their presence.

Sudan's military has vowed that it is willing and ready to protect its citizens and territory.

Sudan's about-turn in Ethiopia's mega dam project

The border dispute could complicate Ethiopia's plan to construct the Grand Ethiopian Renaissance Dam (GERD). On Wednesday, Sudan wrote to the UN Security Council calling on it to urge Ethiopia and Egypt, not to take unilateral action on the dam. Sudan had initially backed Ethiopia's project but later refused to sign on an initial agreement which would have paved the way for Ethiopia to begin filling the dam.

Aerial view of Ethiopia's Grand Renaissance Dam (DW/Negassa Desalegen )

Ethiopia's Grand Renaissance Dam project has increased tensions along the River Nile

For Ethiopia analyst Davison, the border dispute has little to do with GERD. "Ethiopia and Sudan are holding regular discussions to prepare the ground for the resumption of trilateral GERD talks, so the process is restarting rather than stalled," Davison said. "It does not appear therefore that the border incident has caused a significant disruption to the negotiations."

According to Davison, Sudan and Ethiopia need to ramp up their existing discussions over the borderlands in order to come to an understanding that will lead to a final resolution of the issue.


Credit: Deutsche Welle

Published in Economy

Wildlife officials in Botswana have dismissed poaching and poisoning as reasons for the deaths of 110 elephants since March.

Authorities in the country, which has the largest population of elephants in the world, continue to search for a reason for the deaths.

Fifty-four elephants were found dead at the end of May on the Okavongo Delta, less than two weeks after 12 were found.

It adds to 44 which were discovered in March, officials said.

Wildlife officials in Botswana have dismissed poaching and poisoning as reasons for the deaths of 110 elephants since March. Pictured: One of the dead elephants. The picture was posted on the Facebook page of local media outlet Botswana Safari News

Wildlife officials in Botswana have dismissed poaching and poisoning as reasons for the deaths of 110 elephants since March. Pictured: One of the dead elephants. The picture was posted on the Facebook page of local media outlet Botswana Safari News

Dimakatso Ntshebe, a regional wildlife director for the Botswanan government, told Bloomberg News: 'I would say 90% of the new cases we have found are old carcasses we previously did not locate.'  

'However, a few are indeed new deaths. All recovered carcasses do not show signs of poaching.'

The carcasses have reportedly tested negative for anthrax, according to local media outlet Botswana Safari News.

And after the bodies of 12 elephants were found in May, Mr Ntshebe said it was 'very unlikely' the animals had been poisoned. 

'If it was poisoning, some scavengers who were feeding on elephant carcasses could have died but that was not the case,' he added.  

However, efforts to find out the cause of death have been hampered by travel restrictions imposed in an attempt to deal with the coronavirus pandemic. 

Authorities in the country, which has the largest population of elephants in the world, continue to search for a reason for the deaths
Authorities in the country, which has the largest population of elephants in the world, continue to search for a reason for the deaths

It means that the sending of samples for testing have been delayed.

There are an estimated 135,000 elephants in Botswana. They have become a political issue because they have damaged crops and trampled villagers in the past.

Last year, the country's president, Mokgweetsi Masisi, lifted a ban on hunting elephants. 

And in February, a major auction for big game hunters to kill 70 elephants was held, the first since the hunting ban was scrapped.

The sale was conducted by a local firm Auction It from the premises of the Ministry of Environment, Nature Conservation and Tourism in the capital Gaborone.

Masisi fended off criticism of his government's decision to lift the hunting ban, saying the move would not threaten the elephant population.


Credit: Daily Mail

Published in Travel & Tourism

A South African High Court has declared the government’s lockdown regulations unconstitutional and, therefore, invalid, driving a coach and horses through its COVID-19 strategy.

Justice Norman Davis found that both the level 3 and level 4 regulations are “irrational”. The government has five COVID-19 alert levels, from level 5 down to level 1, when most normal activity can resume.

After two months of enduring one of the most stringent lockdowns of any country, there have been signs of restlessness in some communities. As the government added greater detail to the regulations, when the country moved from level 5 to level 3, the credibility of restrictions has been stretched.

But the legal and governance impact of this week’s judgment is far-reaching. It will heap further unwelcome pressure onto a government that is already under intense pressure as it tries to navigate a complex, wholly unfamiliar and ever-changing decision-making terrain.

The judgment declares that the regulations are invalid. But, with the exception of some, it suspends the declaration of invalidity for 14 days to allow the Minister of Cooperative Governance, Nkosazana Dlamini-Zuma, to

review, amend and republish the regulations (with) due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights contained in the constitution.

This requires the government to redo the work that it has done in preparing, and then promulgating, the regulations. It also creates a new layer of uncertainty to an already highly fluid situation.

Read more: Rule of law has moved centre stage in lockdown: what it is and why it matters

During the 14-day period, the newly instituted level 3 regulations, which reopened a large part of the economy and allowed the sale of alcohol, will remain in force. But, the judgment means that it will not be possible for the government to revert to the old level 4 regulations without a substantial rewrite.

An appeal by government to the Constitutional Court is highly likely, and highly desirable. It is hard to think of a more significant judgment in terms of how many people and how wide a sweep of the economy it affects.

But, in my view, the judgment is unconvincing in many respects and has applied the law incorrectly.

Given the stakes, it is important that it is properly understood and held up for public scrutiny.

Rationality test

For a government decision to be held by the court to be “irrational” does not mean that the court finds the decision itself to not be based on logical reasons or clear thinking.

Instead, the rationality test permits the court to review a decision based on an assessment of whether there is a rational connection between the government decision, the process used to reach it, and a legitimate government purpose.

The court notes that the government’s affidavit had argued that the “means justify the end” and, therefore, the regulations pass the rationality test. But, Justice Davis then observed that he wondered aloud during argument whether in fact the government actually intended to apply the Machiavellian notion of the “end justifies the means”.

As the judgment unfolds, it becomes increasingly clear that he takes a dim view of the reasonableness (not rationality) of a good deal of the government’s decision-making, thereby potentially confusing the law.

He finds, for example, that:

Restricting the right to freedom of movement in order to limit contact with others in order to curtail the risks of spreading the virus is rational, but to restrict the hours of exercise to arbitrarily determined time period is completely irrational.

The court’s responsibility was to see if there was any rational connection between the decision and the purpose, not whether there was a better means of serving the end goal.

Moreover, it requires the court to examine with great precision each and every step of the decision-making process, and to assess the evidence of how the decision was taken and whether, in an objective sense, the decision was correctly deemed to be in service of the purpose.

Justice Davis’s judgment fails to do so. Although, if government did an inadequate job at placing sufficient evidence of their reasoning and decision-making process, then they are partly at least the architects of their own misfortune.

Regardless, Justice Davis appears to review both sets of regulations and then pick out the ones that displease him most in terms of whether they “make sense” to him or not, and to declare all of them invalid, and not just those that he has sought to apply the rationality test to.

The reference to evidence is scanty. For example, the court observes – without any citation – that millions of South Africans in the informal sector have less daily contact than people attending a funeral, making the “blanket ban” on them “appear to be irrational”.

Holes in the argument

The court describes the approach of the government as “a paternalistic approach, rather than a constitutionally justifiable approach”.

Paternalism may be politically or ideologically unattractive to some, especially libertarians. But, it is not, per se, a constitutionally impermissible policy or strategic position for the government to adopt, pandemic crisis or not.

Waste recyclers queue for food handouts in Johannesburg as the nationwide lockdown left them unable to work. EFE-EPA/Kim Ludbrook

The judgment may also be vulnerable to attack for adopting a simplistic approach to the “legitimate government purpose”, which it finds to be solely to contain the spread of the virus. This is a misunderstanding.

Read more: Numbers can kill: politicians should handle South Africa's coronavirus data with care

The risk-adjusted strategy that creates the framework of different COVID-19 alert levels, under the Disaster Management Act 2002, seeks to strike a balance at every stage of the unfolding crisis between competing and overlapping priorities.

This includes the public health priority of building capacity in the health system to absorb an inevitable rise in infections, and the duty of the state to protect lives and livelihoods.

The other puzzling aspect of the judgment relates to its approach to the Bill of Rights and possible limitation of the rights enshrined in it.

Clearly, the lockdown involved the limitation of certain “normal” freedoms. The question is whether the limitations are constitutionally permissible, and uphold section 36 of the constitution. This requires that such limitations be proportional. This means that the government may use only the least restrictive measure for achieving its aim.

But, having found the regulations to be irrational and therefore invalid, the court had no need to consider whether they unjustifiably infringed any right protected in the Bill of Rights. Justice Davis bluntly finds that:

…in an overwhelming number of instances the Minister (sic) have not demonstrated that the limitation of the Constitutional rights already mentioned, have been justified in the context of section 36 of the Constitution.

Confusingly, the court order requires the government not to fix the impugned “irrationality” of the regulations, but instead to review them with regard to whether they may infringe the Bill of Rights.

Rule of law

Government lawyers, as well as cabinet ministers and officials, will be scratching their heads over this judgment. Not least because the notion of a “rationally justifiable” infringement of constitutional rights is a novel formulation.

Whether the judgment is overturned on appeal or not, what it shows – once again – is that South Africa’s rule of law and its judicial independence are alive and kicking.

At a time of such extreme crisis, courts may be inclined to give the government a little more latitude – such as the decision of the German Supreme Court last month, in finding that its government has a wide scope for the assessment, evaluation and design of its COVID-19 response.

As South Africa’s Constitutional Court has found in other cases involving complex public policy and socio-economic rights, the more “polycentric” the governmental decision-making or policy choice, the more careful the court should be not to stray into the executive’s lane. Nothing could be as polycentric as COVID-19.

This is not to say that government should be given a free hand or a blank cheque. A state of national disaster cannot permit lawmaking through the back door, nor enable a slippery slope into autocracy. Far from it. As the High Court judgment shows, government will have to work hard to ensure that it is acting within the law, respecting hard won rights every step of the way.The Conversation


Richard Calland, Associate Professor in Public Law, University of Cape Town

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Published in Opinion & Analysis
  1. Opinions and Analysis


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