Aug 21, 2019 | News
The ICJ in collaboration with the Zimbabwe Anti-Corruption Commission (ZACC) and the National Prosecuting Authority (NPA), today launched a broad base anti-corruption awareness campaign in Harare.
The campaign was introduced by the President of Zimbabwe H.E. Cde Emmerson D. Mnangagwa and is expect to effectively run for 15 months.
It will harness different forms of media to spread awareness on the negative impact corruption has on the rule of law, human rights and development.
The anti-corruption awareness campaign is part of a broader longstanding rule of law initiative by the ICJ in collaboration with with stakeholders in the justice sector, to strengthen the rule of law for the protection and promotion of human rights for all, including women and persons from marginalized or disadvantaged groups.
Corruption undermines the rule of law by impeding access to justice through diversions of public resources for private gain.
As such the ICJ, through the support of the EU, is working towards increased transparency and integrity in the justice delivery system in order to increase access to justice for all.
“Zimbabwe has no option but to fight corruption if it is to be a just, peaceful and successful developmental state,” said Arnold Tsunga, ICJ’s Africa Regional Director.
“The reconstituted ZACC has demonstrated a strong desire to pursue its mandate with renewed commitment from other stakeholders in the justice delivery chain,” he added.
The campaign is not undertaken in isolation. It builds on other initiatives to combat corruption under this programme, which include the establishment of an anti-corruption court, training of personnel for the court and various research initiatives.
The campaign seeks to support the national efforts against corruption, and sensitize the public on the negative effects of corruption in society.
It will promote awareness on how to report corrupt practices, how to avoid corrupt practices and the impact of corruption on the public interest.
The campaign acknowledges that different sections of the population engage with media in varying manners. As such it utilises a wide array of approaches designed to build the optimism of the people of Zimbabwe to take an active role in efforts to combat corruption at every level of society.
The campaign launch was attended by justice sector actors, civil society representatives, business representatives and the diplomatic.
Contact:
Arnold Tsunga, Director of the Africa Regional Programme, International Commission of Jurists C: +263 77 728 3248, E: arnold.tsunga(a)icj.org
Aug 14, 2019 | News
Today, ICJ Commissioner and former Constitutional Court Justice Justice Yvonne Mokgoro delivered the Keynote Address on Women’s Socio-Economic Rights at an event organized by ICJ and the Centre for Applied Legal Studies (CALS) at the University of Witwatersrand in Johannesburg.
The event, which marked Women’s Month in South Africa, was aimed at promoting the contributions of women human rights defenders and public interest lawyers in advancing women’s socio-economic rights in South Africa.
Justice Mokgoro, the first black women Justice of the Constitutional Court of South Africa, called on human rights defenders, lawyers and judges to recommit to fighting the feminization of poverty in South Africa.
“The indignities suffered by women exposed to poverty in our country are graphic, trauma-inducing and all encompassing. The dire need of women in our patriarchal society must be addressed,” she said.
With reference to the South African Constitution, the International Convention on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination Against Women, Justice Mokgoro implored judges and lawyers in particular to “engender” the full range socio-economic rights by defining their content in a manner which takes into account the impact of human rights violations on women and girls.
The event featured a panel discussion , which included remarks by Tumelo Matlwa and Amelia Rawhani-Mosalakae, lawyers at CALS, who identified who a range of legal provisions and banking practices relating to matrimonial property have a disproportionate impact on women’s rights to property.
The presentation concluded that “poverty is a form of economic violence that has a disproportionate effect on women”.
Fatima Shabodien, Strategy Director at Raith Foundation, focused her presentation on sexual harassment faced predominantly by women in the public interest law sector in South Africa.
Quoting from Indian author Arundathi Roy, Shabodien observed that “there is no such thing as the voiceless only the deliberately silenced”.
Women, she added, “have not been silent in this sector they have been deliberately silenced”. She urged human rights defenders and public interest lawyers to take allegations of sexual harassment seriously.
Nonhle Mbuthuma, a community activist from the Amadiba Crisisis Committee described the difficulties of being a women human rights defender: “I am a human rights activist and it is a difficult task. You are called a lot of names for challenging the government.
All the names don’t scare me – my mother gave me only one name”, she said. Referring to a judgment of the High Court affirming her community’s right to free, prior and informed consent before the commencement of a mining development, she concluded: “I am very proud of the Constitution and judges who said we have the right to give consent to [whether] mining [can take place]. Not the government or big companies. The people.”
She emphasized that women were, and continue to be, at the forefront of the struggle for access to land in South Africa.
Aug 5, 2019 | News
The ICJ today raised concerns that the proposed Zambian Constitutional Amendment Bill 2019 may negatively impact the independence of the judiciary in Zambia.
The proposed amendments to provisions regarding disciplinary measures and processes against judges and the composition of the Supreme Court and Constitutional Court are particularly concerning, according to a statement by a group of organisations including the ICJ.
“The ICJ implores the President of Zambia and the Zambian legislature to ensure the alignment of all constitutional amendments with international human rights standards on the independence of the judiciary, the rule of law and the separation of powers,” said Arnold Tsunga, the ICJ’s Africa Director.
The joint statement calls upon the President of Zambia and the Zambian legislature to ensure that the proposed constitutional changes are in line with international human rights standards.
According to such standards, individual judges ‘may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law’. Examples include ‘incapacity or behaviour that renders them unfit to discharge their duties’ and ‘physical or mental incapacity that prevents them from undertaking their judicial duties.’
Moreover, disciplinary proceedings regarding judicial officers must be held by an institution independent of the executive and the legislature to secure the independence of the judiciary.
Article 143 (a) of the Zambia Constitution currently provides that ‘a judge shall be removed from office on the following grounds: (a) a mental or physical disability that makes the judge incapable of performing judicial functions; (b) incompetence; (c) gross misconduct; or (d) bankruptcy.’
However, the Amendment Bill worryingly replaces subsection (a) and allows for removal when a judicial officer is ‘legally disqualified from performing judicial functions.’
Furthermore, the proposed amendment does not set out the circumstances or infractions that could lead to the ‘legal disqualification’ leaving the provision open to abuse and in violation of the principle of legal certainty and the rule of law.
“The amendment introduces unnecessary obscurity and vagueness to the Constitution, which, in turn, increases the risk of judges being removed on politically motivated grounds and threatens the rule of law,” Tsunga added.
Another worrying aspect of the proposed amendment is the suggested changes to Article 144 of the Constitution transferring the authority to determine whether judicial officers are removed from the Judicial Complaints Commission to a Tribunal Appointed by the President.
The amendment allows for the possibility of a Tribunal staffed by members of the executive and the legislature, further heightening concerns about threats to judicial independence.
“It is vital that the processes and procedures for the removal of judicial officers in Zambia are constrained in terms of tightly defined constitutional provisions, overseen by independent decision makers without improper influence by the executive and the legislature,” said Tsunga.
The full statement is available here.
The statement is signed by:
Commonwealth Lawyers Association (CLA)
Commonwealth Magistrates’ and Judges’ Association (CMJA)
International Bar Association’s Human Rights Institute (IBAHRI)
International Commission of Jurists (ICJ)
Judges for Judges (J4J)
Lawyers’ Rights Watch Canada (LRWC)
Southern Africa Litigation Centre (SALC)
Jun 15, 2019 | News
The ICJ welcomes the recent judgment of the Tanzanian High Court condemning the Tanzanian government’s actions leading to the suspension of the SADC Tribunal and the denuding of its crucial role in maintaining the rule of law and protecting human rights in the Southern African region.
Following on a decision of the South African Constitutional Court in December 2018, the decision brings increased scrutiny to the legality and legitimacy of the decision of the SADC Summit to effectively disband the SADC Tribunal in 2010 and thereby “eviscerate the possibility of the States ever being held to account for perceived human rights violations, non-adherence to the rule of law or undemocratic practices”.
“The Tanzanian court’s decision once again raises fundamental questions about the legality and legitimacy of the SADC Summit’s attempt to strip the SADC Tribunal of its powers, following on decisions relating to land reform in Zimbabwe that upset leaders of SADC states. The ICJ endorses the views of the Tanzanian and South African courts that all decisions taken by SADC States must comply with the SADC Treaty, the right of victims of human rights abuses to access justice and the rule of law,” said Arnold Tsunga, the ICJ’s Africa Director.
The Tanzanian Court’s decision is premised on the finding that the SADC Treaty is, in terms of the Vienna Convention on the Law of Treaties, binding on all SADC member States and obligations in terms of it must be performed in good faith by all executive officials.
Having set up and empowered the SADC Tribunal to adjudicate disputes in terms of the Treaty, the Court held that “State parties including Tanzania are obliged to give effect to the Tribunal, without which the existence of the Community itself remains doubtful”.
The Court likened the system of governance set out in the Treaty to a domestic doctrine of separation of powers, noting that the Tribunal is part of an intricate set of checks and balances set out in the Treaty.
The case was brought to Court by the Tanganyika Law Society in order to hold the Tanzanian government accountable to the Constitution, the SADC Treaty and “other international law human rights norms”.
The Law Society alleged that the Tanzanian government’s actions violate the right to access to justice and are therefore “inimical to the rule of law”.
The Court’s decision makes repeated reference to international human rights law norms including United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation, the Universal Declaration on Human Rights and the African Charter concluding that crucial commitments in terms of the standards set out in these documents were violated by the Tanzanian government.
The Court reasoned that in terms of international law the State is obliged to “ensure observance of [international human rights law principles] in the conduct of its international relations”.
This, crucially, meant that State parties to the SADC Treaty must, in their conduct pertaining to international relations “ensure protection of fundamental human rights of the individual” (emphasis in original).
The SADC Summit’s attempts to protect individuals from accessing the SADC Tribunal for the purposes of vindicating their rights therefore amounted to an unlawful encroachment on individuals’ rights in terms of domestic and international human rights law.
“The Court’s decision is a strong endorsement of the universality of international human rights principles as well as the need for strong checks and balances on power in all domestic, regional and international platforms established to ensure access to remedies for rights violations. The ICJ encourages the SADC leaders to individually and collectively take note of the decisions of the Tanzanian and South African courts and take immediate action to ensure full and effective operation of an independent SADC Tribunal capable of receiving and adjudicating individual complaints,” Tsunga added.
Contact:
Arnold Tsunga, ICJ Africa Director, t: +263777283249 ; e: arnold.tsunga(a)icj.org
Timothy Fish Hodgson, ICJ Legal Adviser, t: +27828719905 ; e: timothy.hodgson(a)icj.org
Jun 13, 2019 | News
The ICJ today applauded the 11 June judgment of the Botswana High Court striking down criminal law provisions criminalizing same-sex relations.
Rightly, the Court considered that, notwithstanding the fact that the provisions at issues on their face criminalized consensual anal penetration, irrespective of the gender of those involved, the law did in fact target and disproportionately affect same-sex relations.
The judgment follows shortly after the Kenyan High Court refused to invalidate an almost identical criminal provision in judgment handed down on 24 May.
“The Botswana High Court’s judgment reaffirms the universality of the rights to be free from discrimination, dignity, privacy and equality, and directly rebuts the often-made false claim that homosexuality is ‘un-African’,” said ICJ Africa Director Arnold Tsunga.
“The ICJ commends the Court, and encourages all African states to repeal archaic criminal provisions criminalizing same-sex sexual intercourse often introduced into their legal systems by colonial powers,” he added.
In a decision referencing international human rights law and standards, and citing a growing wave of global jurisprudence on the unconstitutionality of the criminalization of consensual same-sex relations, identity and expression, the Court concluded that sections 164(a); 164(c), 165 and 167 of the Botswana Penal Code violated the rights to dignity, liberty and equality of homosexual men.
Letsweletse Motshidiemang, a 24 year-old university student who identifies as homosexual, and is currently in a relationship with a man, brought the case before the Court. Advocacy organization “Lesbians, Gays and Bisexuals Of Botswana” (LEGABIBO) was admitted as amicus curiae, and supported Motshidiemang’s case.
Despite partial legislative recognition of the need to protect people’s rights, regardless of sexual orientation, and comments made by Botswana President Mokgweetsi Masisi late last year that, “there are also many people of same sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected”, the Attorney General (AG) had opposed Motshidiemang’s challenge, describing the case as “cry babies”.
In a fitting rebuke of this position, the Court indicated that the AG had not produced a “scintilla or iota of justification” for its defense of the offending provisions and, instead relied on “bare assertion and/or speculations” about public morality.
Given the substantial evidence presented to the Court by the applicant and amicus curiae about the harmful effects of continued criminalization of same-sex relations, the Court observed that it “perpetuates stigma and shame against homosexuals and renders them recluse and outcasts”, finding that “there is no victim in consensual same sex intercourse inter se adults”.
Concluding that such discrimination against lesbian, gay, bisexual and transgender (LGBT) persons violates sexual autonomy and their “right to choose a sexual partner” the Court found that the provisions go “to the core of [homosexual persons’] worth as a human being[s] and “pollutes compassion” in Botswanan society.
“The judgment is a victory for LGBT persons in Botswana whose consistent advocacy ground firmly in human rights should be applauded. This judgment should catalyze further action from the Botswana authorities to ensure the full enjoyment of all human rights by LGBT persons in Botswana,” said Tsunga.
Contact:
Arnold Tsunga, ICJ Africa Director, t: +63 77 728 3249 ; e: arnold.tsunga(a)icj.org
Timothy Fish Hodgson, ICJ Legal Adviser, t: +27828719905 ; e: timothy.hodgson(a)icj.org
Jun 6, 2019 | News
The ICJ today called on the Zimbabwe government to stop using the highly criticized offence of “subverting a constitutional government” to punish human rights defenders for the exercise of fundamental freedoms protected under international and Zimbabwe Law.
George Makoni, Tatenda Mombeyarara, Gamuchirai Mukura Nyasha Mpahlo, Farirai Gumbonzvanda, Rita Nyamupinga, and Stabile Dewa, referred to by the media as the “Zimbabwe 7”, have been charged under section 22 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and will face a bail hearing, due to be heard at the High Court in Harare on 6 and 7 June 2019.
“The Zimbabwean authorities need to desist from the growing practice of abusing the offence of subverting a constitutional government as an instrument to persecute human rights defenders through abuse of the legal system,” said Arnold Tsunga, ICJ’s Africa Director.
“The oppressive and retaliatory use of law by government violates the rule of law and human rights as guaranteed in the Zimbabwean Constitution as well as in regional and global human rights treaties to which Zimbabwe is a State party,” he added.
The ICJ has previously shown that the law of subversion in Zimbabwe has been used often against HRDs who peacefully exercise their fundamental freedoms, with no single conviction to date.
The law violates the African Charter on Human and Peoples Rights and the International Covenant on Civil and Political Rights (both of which Zimbabwe is a party to), including the rights of persons to freedom of opinion and expression (Article 9 African Charter on Human and People’s Rights; article 19 ICCPR), freedom of assembly (article 11 ACHPR; 21 ICCPR) article, freedom of association (article 10 ACHPR; article 22 ICCPR), and the right to political participation (article 25 ICCPR).
The UN Declaration on Human Rights defenders, adopted by the UN General Assembly, requires that States afford particular protection to human rights defenders (HRDs) who exercise these rights.
HRDs charged with this offence can face a sentence of up to 20 years in prison and have often been denied bail for some periods, in contravention of international law, which provides that charged persons should generally not be held in pre-trial detention. Such prolonged pretrial detention effectively serves as pre-trial punishment of suspects.
“Criminal law must never be used as a means to silence opposition or persecute human rights defenders, which also necessarily has a chilling on others who perform critical human rights work. It is important that the police do not arrest to investigate but they must investigate before they arrest,” said Tsunga.
Contact
Arnold Tsunga, ICJ’s Africa Director, t: +27716405926 ; e: arnold.tsunga(a)icj.org
Background
Four human rights defenders, George Makoni, Tatenda Mombeyarara, Gamuchirai Mukura and Nyasha Mpahlo were arrested on 20th May 2019 upon arrival at Robert Mugabe International Airport, Harare from the Maldives where they had attended a workshop on human rights work. Law enforcement officials alleged in the charge sheet that,” during the workshop, the four had received training on the use of small weapons, how to mobilize citizens to turn against the government and to engage in acts of civil disobedience and or resistance to law during anticipated national protests. Law enforcement agents confiscated the HRDs’ laptops and cell phones. In similar fashion, Social Justice and Girls’ Rights advocate Farirai Gumbonzvanda was arrested upon arrival at the Harare airport on 21 May. Charged with the offence of subverting constitutional government as defined in section 22(2)(a)(iii) of the Criminal Law (Codification and Reform) Act, all five persons remain in custody as their application for bail in the High Court of Zimbabwe has been postponed to 7th June 2019.
In related circumstances, Director of Female Prisoners Support Trust, Rita Nyamupinga and Stabile Dewa, Director of Women’s Academy for Leadership and Political Excellence were arrested on 28 May 2019 soon after they arrived at the Harare airport. They were taken to Harare Central Police Station without having an opportunity to consult their lawyers. Both women have also been charged with subverting constitutional government and have been remanded in custody since 29th May 2019 pending their bail hearing today.
