Apr 26, 2021 | News
Today the International Commission Jurists called on the Zimbabwean authorities to allow for detained Member of Parliament, Joana Mamombe to be returned to hospital in order to for her to receive essential medical care.
On Thursday 22 April, MP Mamombe, who is a Member of the main opposition party Movement for Democratic Change (MDC) Alliance, was rushed to hospital from prison after complaining of serious illness. The following day, against a doctor’s advice that she remain under medical care at Parktown Hospital, prison officials forced her to leave by prison officials who returned her to prison. A video shared widely on social media shows an ailing and frustrated Mamombe, stating that she was in pain and would not leave the hospital as she just received injections.
“The Zimbabwean prison officials have abandoned their primary obligation to ensure the humane treatment of a person in its custody. They have failed Joana Mamombe in refusing to provide her access to medical care and treatment, and placed her life and well-being in jeopardy,” said Kaajal Ramjathan-Keogh, ICJ Africa director.
The ICJ has previously expressed concern about the lawfulness of Joana’s Mamombe arrest and detention (see background below).
Background
The ICJ has been monitoring the situation around the “weaponization” of criminal law in Zimbabwe, as well as the treatment of remand detainees and convicted persons. In May 2020, Mamombe along with opposition activists Netsai Marova and Cecilia Chimbiri were arrested and detained for attending a protest during Covid-19 lockdown. They alleged that they were subsequently abducted from police custody by State agents, sexually assaulted, and forced to drink each other’s urine. They were missing for two days following this abduction before they were discovered on a roadside 90km away from Harare. They were subsequently arrested for allegedly having lied about their treatment in custody and for “faking” their abduction. Since May 2020, the three women have been arrested and detained several more times. Despite Mamombe appearing in court 129 times over the last 12 months, she has been repeatedly denied bail.
Under Article 50(d) of the Zimbabwean Constitution, any person who is detained, including a sentenced prisoner, has the right to receive medical treatment. This requirement is provided for under several international treaties to which Zimbabwe is a party, including the International Covenant on Civil and Political Rights – (Articles 6, 7 and 10), the International Covenant on Economic, Social and Cultural Rights (Article 12), the UN Convention against Torture (Article 16), and the African Charter on Human and People’s Rights. The revised UN Standard Minimum Rules for the Treatment of Prisoner (Mandela Rules) provides in Rule 27 that “All prisons shall ensure prompt access to medical attention in urgent cases. Prisoners who require specialized treatment or surgery shall be transferred to specialized institutions or to civil hospitals” and that “Clinical decisions may only be taken by the responsible health-care professionals and may not be overruled or ignored by non-medical prison staff.”
These rules were endorsed by the African Commission on Human and Peoples’ Rights in its Resolution on the Collaboration between the African Commission on Human and Peoples’ Rights and Partners on Promoting the revised United Nations Standard Minimum Rules for the Treatment of Prisoners.
The ICJ has observed with concern ongoing violations of the right to health of prisoners and remand detainees by the Zimbabwean authorities. For instance, despite the risks that are posed by COVID-19 in prisons, detainees were not allowed to sanitize their prison cells or wear adequate PPE in prison.
Contact:
Kaajal Ramjathan-Keogh, ICJ Africa Director, Kaajal.Keogh(a)icj.org
Tanveer Jeewa, Media and Legal Consultant, Tanveer.Jeewa(a)icj.org
Apr 26, 2021 | News
Homophobia is against African notions of ubuntu.
Over the past month, the killings of four gay men have made headlines in South Africa. Lonwabo Jack, a 22-year-old gay man, was killed on his birthday, 18 April. Earlier in April, two more gay men, were killed – Nathaniel Mbele in Vanderbijlpark and Sphamandla Khoza in Durban.
Lonwabo Jack’s killing occurred just two days after advocates for the human rights of lesbian, gay, bisexual, transgender and intersex people (LGBTI) led protests in front of Parliament in Cape Town demanding that the South African government address the countrywide homophobic violence that continues unabated.
The group Justice for Lulu, founded after Andile “Lulu” Ntuthela, a 40-year-old gay man, was killed in the Eastern Cape on 10 April. The group handed a memorandum to Parliament calling, among other things, for an urgent debate on hate crimes. The Gay and Lesbian Alliance of South Africa (GLASA), in turn, called for the government to speed up the adoption and enactment of the Prevention and Combating Hate Crimes and Hate Speech Bill B9 of 2018.
These hate crimes and attacks on the LGBTI community have been ongoing for many years. Homophobia is endemic in South Africa, despite the comprehensive and progressive legal framework, including legal protection for the human rights of LGBTI persons.
As attested to by the ICJ’s recent report, “Invisible, Isolated, and Ignored: A report on Human Rights abuses on Sexual Orientation and Gender Identity/Expression in Colombia, South Africa and Malaysia”, and illustrated by these ongoing attacks, these legal protections do not translate into real protection of human rights in practice.
“South Africa is a heteronormative society where patriarchy is deeply rooted; this contributes to violence and discrimination against LGBTI persons. The view that homosexuality is un-African is held by many. Political and cultural leaders have in the past publicly espoused anti-gay sentiments and this encourages discriminatory attitudes and violence against people based on their real or imputed sexual orientation, gender identity or expression”, said Kaajal Ramjathan-Keogh, Director of ICJ Africa.
Section 9(3) of the South African Constitution provides that the State may not unfairly discriminate directly or indirectly against anyone on the ground of sexual orientation, and the African Charter on Human and Peoples’ Rights (African Charter) grants protection against prohibited discrimination, and entitles every person to equal protection of the law.
Additionally, the African Charter entitles every individual to respect of their life and the integrity of their person, and prohibits torture, cruel, inhumane or degrading punishment and treatment.
In its Resolution on ‘Protection against Violence and Other Human Rights Violations against Persons on the basis of their real or imputed Sexual Orientation or Gender Identity’, the African Commission strongly urged “States to end all acts of violence and abuse, whether committed by State or non-state actors, including by enacting and effectively applying appropriate laws prohibiting and punishing all forms of violence including those targeting persons on the basis of their imputed or real sexual orientation or gender identities, ensuring proper investigation and diligent prosecution of perpetrators, and establishing judicial procedures responsive to the needs of victims.”
Notwithstanding South Africa’s legal obligations, LGBTI persons face significant barriers in accessing justice and effective remedies for human rights violations; particular challenges affect the criminal justice system, resulting in many cases concerning the protection of human rights of LGBTI persons not reaching the courts.
These barriers to access to justice and effective remedies for human rights violations include experiences of discrimination within the criminal justice system, as well as societal homophobia and transphobia. This is in contravention of South Africa’s duties under international, regional and national law to afford every person equal protection of the law.
The Prevention and Combatting of Hate Crimes and Hate Speech Bill needs to be adopted as a matter of urgency. It is important as measure of deterrence and to ensure that perpetrators of hate crimes be brought to justice.
The ICJ condemns the killings of members of the LGBTI community and calls on the South African government to acknowledge the discrimination, hatred and violence that LGBTI persons face every day in South Africa and to act decisively to address these harms.
Progressive legislation is not enough, the criminal justice system needs to be sensitized and educated to eliminate experiences of societal homophobia and transphobia. We echo the demands in this joint statement by multiple human rights organizations in South Africa.
Whatever one’s real or imputed sexual orientation, gender identity or expression, nobody should have to live in fear, everyone should be able to have trust in the police and judicial system. The homophobic acts and sentiments in South Africa are against African notions of ubuntu. Society cannot be free, until all its people are free, and treated with dignity.
Contact:
Nokukhanya (Khanyo) Farisè, Legal Adviser (Africa Regional Programme), e: nokukhanya.farise(a)icj.org
Tanveer Rashid Jeewa, Communications and Legal Officer, e: tanveer.jeewa(a)icj.org
Apr 23, 2021 | News
The parliamentary resolution tabled by Prime Minister Mahinda Rajapaksa would aggravate Sri Lanka’s culture of impunity and undermine the rule of law, said the ICJ today.
The Resolution tabled on 9 April seeks the approval of the Sri Lankan Parliament to stop ongoing trials against military officials and other high-ranking officials accused of serious human rights violations, as well as family members of the President and Prime Minister currently facing charges of corruption.
“The Parliament should categorically reject this ‘impunity resolution’ that interferes with the ongoing work of the judiciary and the Attorney General’s office in their efforts to provide for at least a modicum of accountability for serious violations,” said Ian Seiderman, ICJ’s Legal and Policy Director.
The Resolution seeks parliamentary approval to implement the recommendations of the so-called Commission of Inquiry on Political Victimization (COI), which were presented to President Gotabaya Rajapaksa last December. The COI and its work have been widely discredited as an affront to the independence of judiciary and the rule of law and its report has not been made available to the public.
“The report by the COI calls for the withdrawal of investigations and convictions even in the handful of cases of serious human rights violations that have been brought before courts, including in cases where perpetrators have been convicted,” Seiderman said.
The recommendations made by the COI that would be implemented by the Resolution include the withdrawal of indictments filed by the Attorney- General and the discharge of several accused in cases that have been recognized as emblematic and referred to in the report of the UN High Commissioner for Human Rights and in UNHRC Resolution 46/1. They also included similar dropping of cases of serious financial misappropriation.
Examples of emblematic cases where the COI recommends discharge of the accused include the case of alleged abductions of 11 persons by members of the Navy including Admiral Wasantha Karannagoda; unlawful killings of Tamil National Alliance MP Nadaraja Raviraj, Wasim Thajudeen, Sunday Leader Editor Lasantha Wickrematunge, Tamil National Alliance MP Joseph Pararajasingam; the alleged enforced disappearance of journalist Prageeth Ekneligoda; and the abduction of Editor Keith Noayhr.
In certain cases that have resulted in convictions for murder or torture, including one case affirmed on appeal to the Supreme Court, the COI has recommended that the Attorney-General review the convictions and discharge the accused.
“The recommendations of the COI, incorporated in this “impunity resolution”, constitute an interference with the independent functioning of the judiciary as judicial decisions and court proceedings have been reassessed outside the judicial structure,” Seiderman stated. “Involving the Parliament in giving effect to these recommendations is contrary to the principle of separation of powers as provided for in the Sri Lankan Constitution.”
The UN Basic Principles on the Independence of the Judiciary makes clear that “the judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law” and that “there shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision.”
The recommendations by the COI go even further and recommend the prosecution of investigators, lawyers and prosecutors in those cases under the Penal Code and the Bribery Act for “fabrication” of evidence and corruption.
“Recommending that action be taken against lawyers and prosecutors for carrying out their professional and statutory duties is an all-out assault on a free and independent bar and this recommendation must be summarily rejected,” Seiderman said.
The UN Basic Principles on the Role of Lawyers obliges the State to ensure that lawyers “are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference” and that they “shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”
The UN Guidelines on the Role of Prosecutors establish that “States shall ensure that prosecutors are able to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability.”
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
Apr 21, 2021 | News
Journalists and media workers face an increasingly repressive legal landscape amidst the COVID-19 pandemic in Cambodia, Thailand and Vietnam, as outlined by the ICJ in a submission to the Office of the United Nations High Commissioner for Human Rights (OHCHR).
“Laws in Cambodia, Thailand and Vietnam that do not comply with human rights law and standards have served to shrink the civic space in which the media operate,” said Sam Zarifi, ICJ’s Secretary General. “This stands to undermine the media’s crucial work in performing their investigative functions and their capacity to impart information to the public.”
The ICJ highlighted in particular how new laws have been enacted in response to the COVID-19 pandemic that aim at or can be used by State authorities to control information about the pandemic. These laws contain provisions incompatible with human rights law and standards as their vague language makes them prone to abuses. In addition, some prescribe excessive sanctions, including severe criminal penalties, which are incompatible with the principles of necessity and proportionality.
The ICJ also underscored how the authorities in the three States continued abusing existing non-human rights compliant laws to arbitrarily restrict information and expression during the pandemic, by targeting journalists and social media users.
Although the ICJ recognizes the necessity to combat the spread of false information online to protect public health during the uncertainty of a pandemic, this objective can and must be carried out using the least intrusive means, rather than unnecessary and disproportionate measures like arrests, detentions, criminal prosecutions and onerous fines.
The submission called for the OHCHR to continue engaging with the relevant authorities in these three countries to better safeguard in law and practice the safety and work of journalists and media workers, and the right to health and right to freedom of expression and information.
This submission is aimed at providing the OHCHR information for a report it is preparing for the UN Human Rights Council pursuant to its Resolution 45/18 on the safety of journalists.
Download
The full submission is available in English here. (PDF)
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
See also
ICJ, ‘Southeast Asia: ICJ launches report on increasing restrictions on online speech’, 11 December 2019
ICJ, ‘New ICJ global report shows that the right to health must be central to State responses to COVID-19’, 1 September 2020
ICJ, ‘Vietnam: authorities must act to safeguard rights online and end harassment of those expressing themselves – ICJ new report’, 9 December 2020
Apr 15, 2021 | News
The ICJ today condemned the promulgation by President Gotabaya Rajapaksa of new vague and overbroad anti-terrorism regulations, which make the already deeply flawed Prevention of Terrorism Act (PTA) open to further abuse.
The Prevention of Terrorism (Proscription of Extremist Organisations) Regulations No. 2 of 2021, published by way of Gazette notification on the 13 April 2021, outlaw 11 organisations identified as ‘extremist’ and provides criminal penalties for those accused of various kinds of associations with these and other organizations that may be similarly disfavoured.
A person who acts in contravention of the regulations is liable to a term of imprisonment up to twenty years, while any person who “conspires to commit or attempts, abets or engages in conduct in preparation to commit an offence” may be sentenced to a term of imprisonment of up to ten years.
“These ill-defined offences follow a similar pattern of the Sri Lankan executive unilaterally promulgating abusive regulations in the name of fighting terrorism over the years” said Ian Seiderman. “These latest ones come just a month after the decreeing of the ‘de-radicalisation’ regulations which allow for the Government to arbitrary detain people for up to two years without trial.”
Moreover, the listed acts shall amount to an offence not only in relation to the eleven
identified organizations, but also to any other organisation “representing or acting on behalf of such organisation or is connected with or concerned in such organisation or which is reasonably suspected of being connected with or concerned in any of the activities”. This is in violation of the principle of legality as the State may ex post facto identify any organisation as having associated with the eleven banned organisations.
The ICJ said that the Regulations were in contravention of the guarantees under article 13 of the Sri Lankan Constitution and its international legal obligations under the International Covenant on Civil and Political Rights.
A key precondition to a fair trial recognized internationally is that criminal offences must be prescribed by law and conform to the principle of legality. Vague laws undermine the rule of law because they leave the door open to selective and arbitrary interpretation and prosecution. The vague wording of a law also has an adverse impact on framing of the charge against the accused.
Following the promulgation of the ‘de-radicalisation’ regulations a number of persons belonging to minority communities were reportedly arrested under the PTA, including for ‘spreading Wahhabism via social media’ and ‘promoting terrorism related activities’.
“While the Sri Lankan Government has an obligation to protect its inhabitants from the threat of terrorism, that protection is a part of, and must not be seen in conflict with, its overall duty to protect human rights; ‘threats to national security’ can never be used as a justification for contravening basic standards in relation to freedom from arbitrary arrest”, said Ian Seiderman.
The ICJ has consistently called for the repeal of the Prevention of Terrorism Act, which has been used to arbitrarily detain suspects for months and often years without charge or trial, facilitating torture and other abuse. The ICJ reiterates its call for the repeal and replacement of this vague and overbroad anti-terror law and all regulations brought under it, in line with Sri Lanka’s international obligations.
The UN High Commissioner for Human Rights in her most recent report on Sri Lanka has reiterated the call for a moratorium on the use of the Prevention of Terrorism Act for new arrests until it is replaced by legislation that adheres to international best practices.
Contact
Osama Motiwala, ICJ Asia-Pacific Communications Officer, e: osama.motiwala(a)icj.org
Apr 13, 2021 | News
Today, the ICJ called on the Belarus Ministry of Justice and other relevant authorities to end the recent practice of using legal proceedings against lawyers in retaliation for discharging their professional duties and to reinstate those already disbarred.
In recent months, in the context of widespread violations of the human rights of those protesting against the outcome of the disputed 2020 presidential election, there has been an unprecedented increase of cases of disbarment of lawyers especially those who comment on violations of the human rights of their clients. Among the most recently disbarred lawyers are Konstantin Mikhel, Maxim Konon, Mikhail Kirilyuk and Yulia Ivanchuk.
“This recent wave of criminal and disciplinary proceedings against lawyers is highly worrying and it constitutes an attack on the independence of the legal profession. These proceedings, be they of criminal, administrative or disciplinary nature, should be discontinued or reconsidered as being contrary to the international human rights law concerning the independence of the legal profession,” said Temur Shakirov, Senior Legal Adviser of the ICJ Europe and Central Asia Programme.
There is a clear pattern of the misuse of disciplinary proceedings against lawyers who represent political opponents of the government or those who openly criticize the government on issues of public significance.
Disciplinary proceedings in Belarus are not independent of the executive, since they are conducted by the Qualification Commission which operates under the Ministry of Justice.
Notably, disciplinary proceedings are pending against lawyer Dmitry Layevski, allegedly following his public comments on a pending Draft Law on advocates’ activities.
Dmitry Layevski is a lawyer representing Victor Babaryko, an opposition leader in Belarus currently in detention, and Maxim Znak, former legal representative of Maria Kolesnikova, another detained opposition leader.
Earlier, a number of lawyers, including Aleksandr Pylchenko, former legal representative of Viktor Babaryko and Maria Kolesnikova, and Lyudmila Kazak, former legal representative of Maria Kolesnikova, faced disciplinary sanctions, and Lyudmila Kazak incurred an administrative fine, as a result of discharging their professional functions.
Several lawyers involved in human rights cases have been called by the Qualification Commission to undergo an examination to re-certify their qualification to practice law and have failed the exam. This procedure appears to target lawyers working to defend human rights, as a means of harassment or reprisal.
For example, following comments in mass media, Sergey Zikraskiy, a lawyer who often represented Belarusian journalists, was called to pass extraordinary re-examination which he failed. The certification is carried out by the Qualification Commission.
Criminal cases are still pending against lawyers Ilya Saley and Maxim Znak, who appear to have suffered consequences as a result of their representation of opposition leaders Maria Kolesnikova and Victor Babaryko.
“These disbarments have a significant chilling effect on work of the legal profession and undermine the ability of lawyers to defend human rights of their clients in accordance with international standards on the role of lawyers,” Shakirov said.
Background
International law and standards
According to the UN Basic Principles on the Role of Lawyers, the State authorities must guarantee that lawyers are able carry out their professional functions without hindrance, intimidation, harassment or fear of retaliation (Principle 16). The UN Basic Principles on the Role of Lawyers affirm that lawyers “shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.” (Principle 16.c) They further stipulate that lawyers must not be identified with their clients or their clients’ causes as a result of discharging their functions (Principle 18).
International standards also require the institutional independence of the legal profession. The executive body of the professional associations of lawyers must be elected by its members and must exercise its functions without external interference (Principle 24, The UN Basic Principles on the Role of Lawyers).
