Aug 7, 2020 | Advocacy, Agendas, News
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
Jul 31, 2020 | Agendas, Events, News
The ICJ, together with the Global Initiative on Economic, Social and Cultural Rights (GI-ESCR) and the Right to Education Initiative (RTE), held webinars on 24 and 31 July.
The discussions explored The Guiding Principles on the Human Rights Obligations of States to provide public education and to regulate private involvement in education (Abidjan Principles) and their application in the context of COVID-19.
The webinars focused respectively on public education and private education.
Participants included judges and representatives of civil society organizations from Kenya, Uganda, South Africa and Sierra Leone.
“The aim of the conversation in these webinars is to better understand the problems facing civil society and judiciaries in the four countries in ensuring the protection of the right to education in the context of Covid-19 and the increased privatization of education,” said ICJ Commissioner Justice Jamesina King of Sierra Leone.
The Abidjan Principles, based in large measures on existing international law and standards, were developed by leading international experts and adopted in 2019.
They clarify and set out elements of State obligations to uphold the right to education and related standards in both public and private educational settings.
Participants were able to deepen their understanding of the Abidjan Principles as well as the increased pressure placed on education systems across Africa as a result of COVID-19.
“COVID-19 has dramatically exacerbated already well-known issues in the realization of the right to education” and the “divide in quality of access to education between public and private sectors,” added Justice King.
“Private actors in particular… have been reported to have capitalized on the pandemic to extend their business in the education sectors.”
Participants raised concerns about the use of public funds to support private actors in education, an issue which is addressed by the Abidjan Principles.
Ashina Mtsumi from the GI-ESCR, summarized the Abidjan Principles and emphasized that “States’ first priority should be public education, as there is no obligation for states to fund private actors in education.”
A theme emerging from the discussions was the important role of the State in regulating private actors in education in the context of the global pandemic. Judges discussed the role of the judiciaries in their respective countries in ensuring the protection of the right to education.
“Can courts force private institutions to continue [operating] or even reduce school fees as an incidence of the right to education?,” Justice Joel Ngugi of Kenya asked.
Justice Ngugi also highlighted the need for governments to ensure that schools are safe for all learners in the context of COVID-19.
Judge Lydia Mugambe said that while in Uganda the pandemic had seen some private schools continuing with online learning, learners in public schools had had to depend on State provision of learning through newspapers and news stations which had not been sufficient. In the COVID-19 context, States must ensure that they continue to “require private instructional educational institutions to meet the minimum standards set by the State”, as indicated by the Abidjan Principles.
“The real problem is that our infrastructure is bad, the education system is bad and we have had a constitutional right to education since 1994 and I am embarrassed to say that the Covid-19 crisis has not exacerbated the problems, but has exposed the problems and have left no place to hide for years and years of government negligence,” said former Justice of the Constitutional Court in South Africa Zak Yacoob.
Representative from civil society organizations from all four countries emphasized the increasing risks introduced to the right to education as a result of privatization of education in Africa.
Watch the first webinar here.
Contact:
Khanyo Farisè (ICJ Legal Adviser) e: Nokukhanya.Farise(a)icj.org
Tim Fish Hodgson (ICJ Legal Adviser) t: +27828719905; e: timothy.hodgson(a)icj.org
Jul 28, 2020 | Advocacy, Cases, Legal submissions, News
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
Jul 24, 2020 | News
The ICJ urges Israel to repeal or amend the “Great Coronavirus Law” adopted on 23 July. In the context of concerns about the emergency measures taken in recent months, the Law restricts parliamentary oversight of measures to address the COVID-19 pandemic in a manner that could undermine human rights protection and the rule of law.
The Law would enter into force on 10 August, replacing a “placeholder” law adopted by the Knesset (Israel’s parliament) earlier in July that currently gives even wider powers to the executive government but will expire on that date.
Under the new Law, the executive government has authority to declare COVID-19-related states of emergency for 60 days at a time until 30 June 2021, although the Knesset retains the power to revoke any such state of emergency.
Once a state of emergency is in place, the Law accords the Government the power to adopt “emergency regulations” for renewable periods of 28 or 14 days, depending on the type of restrictions envisaged.
The ability of Knesset committees to reverse such “emergency regulations” is significantly restricted under the Law.
As the ICJ highlighted in a briefing paper, “emergency regulations” already adopted since March 2020, and continued under the “placeholder” law, have failed in many respects to comply with international law and standards on the declaration of a state of emergency and related formal and substantive requirements under article 4 of the the International Covenant on Civil and Political Rights (ICCPR); the protection of the right to privacy with regard to the “tracking programme” of Israeli citizens; and respect for detainees’ rights to independent legal counsel and to family visits.
“The emergency powers legislation significantly weakens the ordinary role of the Parliament and risks paving the way for further arbitrary restrictions on human rights beyond those already seen in the regulations adopted to date,” said Said Benarbia, the ICJ’s MENA Programme Director.
“The Law should be repealed or amended to ensure effective oversight by Parliament over all emergency measures.”
Since March 2020, the Israeli Government has adopted a number of “emergency regulations” with the purported aim of tackling the COVID-19 pandemic.
“Respecting international law while tackling the COVID-19 pandemic is not optional, Israel must handle the pandemic in a way that guarantees the full enjoyment of human rights,” Benarbia added.
Contact
Said Benarbia, Director, ICJ Middle East and North Africa Programme, t: +41-22-979-3817; e: said.benarbia(a)icj.org
Jul 22, 2020 | Advocacy, Cases, Legal submissions, News
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.
Jul 15, 2020 | Advocacy, Multimedia items, News, Video clips
The ICJ today condemned the order issued by Zulkifli Mohamad Al-Bakri, Malaysia’s Minister in charge of religious affairs, to the Federal Territories Islamic Religious Department (Jawi) to take action against the transgender community.
The ICJ called on the Minister to rescind the order immediately and take steps to ensure non-discrimination and equal protection of all persons in Malaysia, including LGBTI persons.
On 10 July 2020, Zulkifli Mohamad Al-Bakri announced in a social media post that he had given the Jawi authorities “full licence to carry out its enforcement actions” against transgender persons in Malaysia. He elaborated that his order would beyond arresting transgender persons but would also extend to providing them “religious education” so that they would “return to the right path”.
“This unacceptable transphobic and homophobic attack from a government official highlights the societal prejudices and the lack of legal protections against discrimination faced by transgender persons in Malaysia,” said Ambiga Sreenavasan, a prominent Malaysian lawyer and Commissioner of the ICJ.
“Instead of ensuring that the human rights and dignity of all persons are respected and protected, the Minister, through his statement, is going in the complete opposite direction by advocating state action against persons belonging to sexual orientation and gender identity minorities,” added Ambiga Sreenavasan. “The Minister is legitimizing harassment, discrimination and violence against transgender people, and increasing violations of their human rights.”
Across the country in 13 states and the federal territories, a “male” who “poses” as a woman or wears the clothing of a “woman” may be subjected to criminal liability under state-level religious enactments. Consensual same-sex sexual relations are criminalized as “unnatural offences” in both secular civil law and religious state-level laws. These “offences” carry heavy penalties in the form of fines, imprisonment and corporal punishment in the form of caning, which constitutes impermissible cruel, inhuman or degrading punishment under international law and standards.
The ICJ stressed that these laws served to institutionalize systemic discrimination on the basis of sexual orientation and gender identity and expression, while also creating barriers for LGBT people when seeking justice. They provide state authorities with expansive power to police gender identities, expressions and sexual orientations of people.
The ICJ notes that experiences of severe stigma, marginalization, and violence committed by families, communities, and State actors lead to immense health risks and mental health disparities of transgender individuals.
The ICJ is also deeply concerned about the Minister’s plan to require members of the transgender community to undergo religious conversion therapy. Numerous studies have shown how religious conversion therapy and related practices are causing real harm not only to transgender people, but also to lesbian, gay, and bisexual individuals.
The ICJ calls on the Government of Malaysia to abide by its obligations under international law and follow through with its commitment to human rights, by ensuring that transgender people and all persons are legally protected against discrimination, and that they are able to live free from prejudice, harassment, and violations of their human rights.
Contact
Emerlynne Gil, ICJ Senior International Legal Adviser, e: emerlynne.gil(a)icj.org
Background
In 2019, the Human Rights Commission of Malaysia (SUHAKAM) released a report on Transgender Persons in Kuala Lumpur and Selangor. Many of the transgender people interviewed for this report said that they constantly face arbitrary arrests, discrimination in obtaining employment, and even discrimination in obtaining housing because of their gender identity. A large majority of those interviewed experienced violence because of their gender identity.
