ICJ Co-Hosts Symposium on Judicial Independence in East and Southern

ICJ Co-Hosts Symposium on Judicial Independence in East and Southern

On 6-7 August the ICJ co-hosted a symposium on threats to judicial independence in East and Southern Africa.

The event was held with the collaboration of the Africa Judges and Jurists Forum, the Kenyan Section of the International Commission of Jurists Kenya Section, Open Society Initiative for Southern Africa, Southern Africa Development Community Lawyers Association, Malawi Law Society, Pan African Lawyers Association, East Africa Lawyers Association and the American Bar Association.

Recent actions taken to undermine judicial independence in East and Southern Africa include proposed constitutional amendments, executive interference with the functioning of the Judicial Service Commissions and verbal as well as physical threats against judges.

Participants in the symposium included judges, lawyers, academics and civil society representative. ICJ Commissioner and former Chief Justice of Kenya Dr Willy Mutunga, and Professor Jill Ghai of Katiba Institute delivered the key note addresses.

Dr Willy Mutunga speaking to challenges of judicial independence in the political context of Kenya in his keynote address, said “I believe that the independence of the judiciary… is about the integrity of the judicial officers… Building peoples’ confidence in the judiciary and the judicial officers depends on the integrity of the institution and its judicial officers and staff.”

In her address, Professor Jill Ghai evaluated various ways in which independence of the judiciary is undermined, taking into account examples from various countries.

“We must not relent in letting the Executive know that we are watching whenever there are attempts to undermine the judiciary,” Ghai said in closing.

ICJ Secretary General Sam Zarifi that judicial independence was facing genuine threats, not just in Africa but throughout the world.

“The issue of judicial independence has been at the heart of the ICJ’s work for the last 70 years almost… We have been defending the rule of law and human rights. For both of those the independence of the judiciary is absolutely essential,” Zarifi said.

On the second day of the symposium, participants into four groups discussed the nature of challenges and weaknesses in the Executive-Judiciary relations, litigation as a strategy for protecting judicial independence, strategies for increasing social and political activism in defence of judicial independence, and the prospects and strategies for regional and international advocacy in the age of COVID-19 respectively.

In his closing remarks, outgoing ICJ Regional Director Arnold Tsunga flagged Malawi as a recent case study where the judiciary had demonstrated its independence when the Constitutional Court nullified the 2019 presidential election results, citing widespread irregularities.

Watch the proceedings of the symposium here:

Welcome and keynote address

Closing remarks

Contact:

Justice Mavedzenge (ICJ Legal Advisor) t: +27793889990 e: justice.mavedzenge(a)icj.org

Shaazia Ebrahim (ICJ Media Officer) t: +27716706719 e: shaazia.ebrahim(a)icj.org

 

Central Asia: ICJ calls on Central Asian States to ensure access to justice during the COVID-19 pandemic

Central Asia: ICJ calls on Central Asian States to ensure access to justice during the COVID-19 pandemic

The ICJ is concerned that in Kazakhstan, Kyrgyz Republic, Tajikistan and Uzbekistan the COVID-19 pandemic, and measures taken purportedly to contain it, have significantly curtailed access to justice. Restrictions have affected the operation of the courts and impeded lawyers’ ability to provide effective legal assistance to their clients.

In the context of the COVID-19 pandemic — whether under a state of emergency or not — States’ obligations under international human rights law to uphold the fundamental guarantees of a fair trial, and to ensure access to effective remedies for violations of human rights endure.

The right to a fair trial entails the right to adequate time and facilities to prepare a defense, which, in turn, requires the opportunity to communicate with one’s lawyer effectively and in confidence.

In light of this, the ICJ calls on Central Asian States to ensure that, while COVID-19 restrictions are in place, access to a lawyer continues to be ensured, and that measures be put in place so that lawyers are able to communicate with their clients safely, effectively and confidentially, including in places of detention or during online hearings.

In addition, wherever and whenever the authorities put in place restrictions on physical meetings or travel with the stated purpose of containing the COVID-19 pandemic, the ICJ calls on Central Asian States to ensure that access to court is guaranteed through specific legal, administrative and practical measures.

ICJ research and discussions with lawyers have shown that across Central Asia, regulations adopted during COVID-19 relating to the administration of justice have suffered from vague language, inconsistencies and unclear guidance.

In practice, this had serious implications for the right to fair trial of defendants: in some cases defence lawyers were not allowed to meet their clients who were charged with serious crimes;  in other instances lawyer-client meetings were very short, undermining the ability of lawyers to take proper instructions from their clients and to advise them accordingly; in other cases defence lawyers met their clients in circumstances where the confidentiality of their communication was compromised as a result of the virtual communication platforms they were forced to use.

The restriction measures relating to the administration of justice that the authorities have imposed have also had negative consequences for access to justice and effective remedies for victims of human rights violations; notably, access to legal assistance in domestic violence cases was impeded across the region.

In many court buildings social distancing requirements were not adjusted in such a way as to uphold the right to a public hearing. There has been a lack of sufficient guidance on how the right to a public hearing may be ensured online, including as to how the right to equality of arms and the right to legal representation would be protected.

Download

Central Asia-Statement COVID-19-Advocacy 2020-ENG (full article with additional information, in PDF)

Sri Lanka: lawyers, human rights defenders and journalists arrested, threatened, intimidated

Sri Lanka: lawyers, human rights defenders and journalists arrested, threatened, intimidated

The Sri Lankan government should end the targeted arrests, intimidation and threats against the lives and physical security of lawyers, activists, human rights defenders and journalists, the ICJ and 9 other  international human rights organizations said today.

A campaign of fear has intensified since the 2019 presidential election, and has cast a shadow over the 2020 parliamentary election campaign.

The United Nations, as well Sri Lanka’s partners and foreign donors, should immediately call for full respect, protection and fulfillment of the human rights of all Sri Lankans, and particularly to halt the reversal of fragile gains in the protection of human rights in recent years.

Numerous civilian institutions, including the NGO Secretariat, have been placed under the control of the Defence Ministry. Serving and retired military officers have been appointed to a slew of senior government roles previously held by civilians.

The authorities have recently  established military-led bodies such as the Presidential Task Force to build “a secure country, disciplined, virtuous and lawful society,” which has the power to issue directives to any government official. This represents an alarming trend towards the militarization of the state.

Many of those in government, including the president, defense secretary, and army chief, are accused of war crimes during the internal armed conflict that ended in 2009.

Since the presidential election in November 2019, anti-human rights rhetoric intended to restrict the space for civil society has been amplified by senior members of government.

On 6 July 2020, at an election rally, Prime Minister Mahinda Rajapaksa stated that “NGOs will be taken into a special attention under the new government formed after the General Election, specifically, how foreign monies and grants are received to the NGOs from foreign countries and further, activities of the international organizations will be observed.”

The government has also announced a probe into NGOs registered under the previous government.

In the months following the November 2019 presidential election, a number of organizations reported visits from intelligence officers who sought details of staff, programs and funding, in particular, organizations in the war-affected Northern and Eastern provinces of the country. Such visits are blatant attempts to harass and intimidate Sri Lankan civil society.

In February, the acting District Secretary in the Mullaitivu District (Northern Province) issued a directive that only non-governmental organizations with at least 70 percent of their activities focused on development would be allowed to work, effectively enabling arbitrary interference with and prevention of a broad range of human rights work.

A Jaffna-based think-tank was visited several times, including soon after the Covid-19 lockdown, and questioned about its work, funding and staff details.

Lawyers taking on human rights cases have been targeted through legal and administrative processes and have faced smear campaigns in the media.

Journalists and those voicing critical opinions on social media, have been arbitrarily arrested. The UN High Commissioner for Human Rights expressed alarm at the clampdown on freedom of expression, including the 1 April announcement by the police that any person criticizing officials engaged in the response to Covid-19 would be arrested.

It is unclear whether there is any legal basis for such arrests. The Human Rights Commission of Sri Lanka has cautioned against “an increasing number of such arrests since the issuing of a letter dated 1 April 2020”.

The targeting and repression of journalists and human rights defenders is not only an assault on the rights of these individuals, but an attack on the principles of human rights and the rule of law which should protect all Sri Lankans.

These policies have a chilling effect on the rights to freedom of expression and association, which are crucial for the operation of civil society and fundamental to the advancement of human rights.

Those working on ending impunity and ensuring accountability for past crimes, and especially victims, victim’s families, members of minority communities, and networks in the Northern and Eastern provinces, are particularly at risk of intimidation and harassment.

The Sri Lankan authorities must end all forms of harassment, threats, and abuse of legal processes and police powers against lawyers, human rights defenders and journalists. Human rights defenders living and working in Sri Lanka should be able to carry out their peaceful human rights work without fear of reprisals, which requires a safe and enabling environment in which they can organize, assemble, receive and share information.

Download:

Sri Lanka-Harassment civil society-Advocacy-2020-ENG (the full statement with additional information, in PDF)

 

Poland: ICJ intervenes before European Court in case of surveillance of lawyers and human rights defenders

Poland: ICJ intervenes before European Court in case of surveillance of lawyers and human rights defenders

The ICJ intervened today in the case of the potential surveillance by Polish secret services of Mikołaj Pietrzak, lawyer and chair of the Warsaw Bar Association, Dominika Bychawska-Siniarska et Barbara Grabowska-Moroz of the Helsinki Foundation of Human Rights, and Wojciech Klicki and Katarzyna Szymielewicz of the foundation Panoptykon.

The five applicants applied to the European Court of Human Rights claiming a violation of their rights to privacy and to an effective remedy because the system of secret surveillance and collection of metadata created by the Law amending the Law of the Police of 15 January 2016 and the Anti-Terrorism Law of 16 June 2016 does not provide sufficient guarantees for this rights’ protection.

In its third party intervention, the ICJ addressed (1) the application of the principles of prescription by law, necessity and proportionality, in circumstances when mass and targeted surveillance interferes with the right to respect for private life under Article 8 ECHR, in particular when it affects lawyers and human rights defenders; (2) the obligations of States under Article 8 and 6 ECHR to ensure respect for the confidentiality of lawyer-client relations and the principle of legal professional privilege.

The ICJ argued that secret surveillance, in particular where it interferes with the confidentiality of communications of lawyers and human rights defenders, and endangers lawyer-client privilege protected under Articles 8 and 6 ECHR, should be subject to specific safeguards and to particularly strict scrutiny of its necessity and proportionality.

The third party intervention can be found here: PIetrzak&HF_v_Poland-AmicusCuriae-ECtHR-Cases-2020-ENG

Poland: ICJ and Amnesty International intervene before European Court in case of two removed court’s vice-presidents

Poland: ICJ and Amnesty International intervene before European Court in case of two removed court’s vice-presidents

The ICJ and Amnesty International have submitted a joint third party intervention before the European Court of Human Rights in the case of Judges Mariusz Broda and Alina Bojara.

The case concerns the premature termination of their mandates as vice-presidents of the regional tribunal of Kielce in Poland. The two judges, that had been appointed to six-year terms in 2014, had their position revoked by the Minister of Justice in 2018.

The revocation was based on article 17.1 of the Law of 12 July 2017 modifying the Law on the Judicial System. This provision, presented and approved by the ruling Law and Justice Party (PiS), gave the Minister of Justice the power to revoke courts’ presidents and vice-presidents without justified grounds and with no possibility of appeal.

The two judges applied to the European Court of Human Rights alleging that they had been denied access to a tribunal to challenge the termination of their mandate .

In their third party intervention, the ICJ and Amnesty International analyze international standards on judicial independence, including as regards the role court presidents and vice-presidents, and the consequences of these standards for the right of access to court under Article 6.1 ECHR. The intervention also analyses the recent legislative and policy developments that have seriously undermined the independence of the Polish judiciary.

Read the full intervention here: Broda_v_Poland-AmicusCuriae-ICJ&AI-Cases-2020-ENG.

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