Nov 2, 2017 | News
The ICJ notes that a number of threats and intimidating statements aimed at members of the judiciary, including the Supreme Court, were made during the election campaign period in Kenya.
Now that the elections ordered by the Supreme Court after nullification of the initial elections in Kenya have been concluded, it is important for Kenyan authorities to reaffirm commitment to separation of powers and guarantee the security of judges and the independence of the judiciary in the country, the ICJ says.
On Monday, 30 October 2017, the Indepedent Electoral Boundaries Commission (IEBC) in Kenya declared President Uhuru Kenyatta as the winner of the October 26 repeat polls.
President Uhuru Kenyatta is widely reported to have been heavily critical of the Supreme Court for annulling the 8 August 2017 presidential election on a “technicality”.
It is also reported that he promised to “fix” the bench if re-elected.
The President is also reported to have said he would deal with Chief Justice Maraga, but did not however define the form of action he would take.
Similar sentiments have been attributed to Deputy President William Ruto. It’s unclear at this stage whether these statements should be dismissed as political rhetoric on the campaign trail or warrant further consideration.
However such utterances and threats on the judiciary by senior government officials may be inferred as an attempt to intimidate or unduly influence the bench.
“These threats coming from the highest authorities hinder the ability of the courts to perform their duties, which are indispensable for the rule of law and fair administration of justice in the country,” said Arnold Tsunga, ICJ’s Africa Regional Programme Director.
“Judges must be able to exercise their duties freely, independently and impartially, or else the rule of law in the country will be eroded, and with it, effective protection of the human rights of the Kenyan people,” he added.
The ICJ recalls that the UN Basic Principles on the Independence of the Judiciary provide that judges must be able to perform their professional duties “without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason” and that governments have a responsibility to secure this guarantee.
Article 26 of the African Charter on Human and Peoples Rights also imposes an obligation on Kenya to establish an independent judiciary.
Contact
Arnold Tsunga, Director of ICJ’s Africa Regional Programme, t: +27716405926, e: arnold.tsunga(a)icj.org
Oct 24, 2017 | News
Today the ICJ expressed its grave concern at the arrest and arbitrary detention of 13 Tanzanian human rights defenders and lawyers on charges that are incompatible with international legal obligations binding on Tanzania. The ICJ has called for their immediate release.
On 17 October 2017 13 human rights defenders, some of whom are lawyers, were arrested and detained in Tanzania after participating in a legal consultation aimed at considering legal challenges to the Tanzanian government’s ban on drop-in centres serving people at risk of HIV and a ban on the importation of water-based lubricants that are an essential HIV prevention tool.
Those 13 human rights defenders are all affiliated with the Initiative for Strategic Litigation in Southern Africa (ISLA) and Tanzanian organisation Community Health Services and Advocacy (CHESA).
Though they have not been charged, they appear to be under investigation for promoting homosexuality and in terms of section 154 of the Penal Code, which prohibits having ‘carnal knowledge of any person against the order of nature’.
To date 12 of the 13 remain in custody. After initially being granted bail by the Tanzanian police services, their bail was revoked without specified reason on 20 October 2017 and the 13 continue to face the real threat of criminal prosecution.
Instead of releasing the detained on bail, on 24 October the Tanzanian police services approached a Tanzanian court seeking an order granting them permission to perform ‘medical tests’ in the form of ‘forced anal tests’.
The police sought to perform these tests on the nine men who remain in detention. These invasive and demeaning tests appear to have been aimed at obtaining evidence for their criminal prosecution for performing sexual acts with other men.
If carried out non-consensually such exams violate the prohibition against torture and cruel, inhuman or degrading treatment.
The 13 charged under archaic colonial-era criminal laws that prohibit ‘carnal knowledge against the order of nature’, and which criminalize consensual sexual conduct between consenting males a sentence of ‘imprisonment for life and … for a term of not less than thirty years’, in contravention of international standards.
The laws, which are inherently abusive under any circumstance, do not even appear to be in any way applicable the 13 persons who were meeting for purposes of HIV prevention and promoting the right to health and the right to life.
The ICJ is concerned that arrests have been undertaken in contravention of rights protected under the Tanzanian Constitution and international law, including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples Rights, treaties to which Tanzania is party.
The protected rights include freedom of expression, the right to liberty, including freedom from arbitrary deprivation of liberty and the right to equal protection of the law; and the right to non-discrimination.
If they are carried out, any ‘forced anal tests’ would violate the right to be free from torture and cruel, inhuman or degrading treatment or punishment.
In addition, the ICJ has previously denounced such tests as evidentially and medically worthless.
Tanzanian authorities also appear to be attempting to use this prosecution to clamp down on the activities of civil society organizations.
The registration of CHESA has been suspended in what appears to be an attempt to halt its operations.
This amounts to a violation of the right to freedom of association, which is protected by the Tanzanian Constitution, the African Charter and the International Covenant on Civil and Political Rights.
The ICJ urges the authorities to drop the charges against these 13 human rights defenders. Pending revocation or dismissal of the charges, the 12 remaining detainees should in any event be immediately released.
The ICJ condemns the attempts of the Tanzanian police services to perform forced anal tests on male detainees, which constitute ill-treatment under international law, and urges the authorities to immediately desist from this course of action.
Contact:
Arnold Tsunga, ICJ Director of the Africa Regional Programme, t: +27716405926, e: arnold.tsunga(a)icj.org
Tanzania-Statement illegal detention-News-Web Stories-2017-ENG (full statement with additional information, in PDF)
Sep 27, 2017 | News
The ICJ has welcomed the recent decision of the African Commission on Human and Peoples’ Rights (ACHPR) on a recent decision found the Democratic Republic of Congo (DRC) responsible for the massacre of 70 people in Kilwa in 2004.
In its decision, the Commission not only urges the DRC State to pay 2.5 million US dollars compensation to eight victims and their families but also urges the DRC to prosecute Anvil Mining’s personnel involved in the massacre.
The African Commission also acknowledged the involvement of mining company Anvil Mining, an Australian-Canadian company (later bought by the Chinese company MinMetals) operating a copper and silver mine in Dikulushi, located 50 kilometers from Kilwa, that would
have provided logistical support to soldiers who bombarded civilians.
This decision sheds light on the corporate legal responsibility for human rights abuses, particularly in the extractive
industry sector, and suggests legal avenues for action against Anvil for alleged abuses.
Universal-KilwaMassacre-News-2017-ENG (full pdf ENG)
Sep 1, 2017 | Feature articles, News
Today, an ICJ delegation concluded a learning and assessment mission to the North Mara region and the North Mara Gold Mine Ltd, a subsidiary of Acacia Mining plc located in north-west Tanzania in the Tarime district of the Mara region.
The visit took place between 27 August and 1 September.
The objective of the ICJ Mission was to learn about the operation with a view to assessing the effectiveness of the North Mara Gold Mine’s operational grievance mechanism (OGM) in addressing complaints over alleged human rights concerns and abuses committed in connection with the mine’s operations.
The members of the ICJ delegation were: ICJ Commissioners Justice Ian Binnie and Alejandro Salinas, accompanied by Mr Carlos Lopez, ICJ Senior Legal Adviser, and Mrs Antonella Angelini, researcher.
Read the full story here: Tanzania-BHR mission North Mara-News-Features article-2017-ENG (in PDF)
Sep 1, 2017 | News
Today the Supreme Court of Kenya took the unprecedented step of voiding the presidential elections held on 8 August 2017 citing the failure by the Independent Electoral and Boundaries Commission (IEBC) to adhere to constitutionally mandated processes.
The ICJ commends the Supreme Court of Kenya for adjudication of a sensitive case at a high professional standards amidst a charged political atmosphere.
The ICJ in partnership with the Africa Judges and Jurists Forum (AJJF) sent a mission of three distinguished judges to observe the proceedings during the presidential petition in Kenya.
The delegation consisted of Retired Chief Justice Earnest Sakala (Zambia), Justice Dingake (Botswana) and Justice Chinhengo (Zimbabwe).
The mission’s observations will be publicized in due course.
Kenya held national elections on 8 August 2017 administered by the IEBC.
The IEBC subsequently announced that Uhuru Kenyatta had won the elections with a 54% majority.
The opposition National Super Alliance Coalition led by Raila Odinga filed an election petition alleging serious irregularities in the tabulation and transmission of the results of the elections and asking the court to nullify the results and order fresh elections.
The Supreme Court heard the election petitition culminating in the decision that was handed down today.
According to the observers, the court conducted the hearing in a manner consistent with the rule of law and that adhered to the Kenyan Constitution and international principles of a fair trial.
The Court gave acted fully as a competent, independent and impartial judicial body.
“The decision taken by the Supreme Court today is precedent setting. It places a cost on the election management body for apparently failing to adhere to constitutional imperatives and the normative framework governing the conduct of elections,” said Arnold Tsunga, Africa Director of the ICJ.
“Elections are a high stakes subject in Kenya, as elsewhere in the world. Previous elections have shown that violence and multiple human rights violations increase during the election period. We therefore encourage the political leaders in Kenya to accept the court’s verdict and to encourage their supporters to exercise maximum restraint and tolerance as the country braces itself for fresh elections,” he added.
Finally the ICJ urges the authorities in Kenya and the IEBC to quickly comply with and implement the court’s judgement.
Contact
Arnold Tsunga, ICJ Director for Africa, t: +27716405926 ; e: arnold.tsunga@icj.org
Jul 25, 2017 | News
The ICJ is concerned with the passing of Constitutional Amendment no. 1 of 2017 by the House of Assembly of Zimbabwe on 25 July 2017.
The House of Assembly voted with over two-thirds majority for the amendment of the Zimbabwean Constitution.
The amendment grants the President the right to appoint to office, the Judge President of the High Court, the Deputy Chief Justice and the Chief Justice of Zimbabwe.
Before this amendment the Judicial Services Commission (JSC) spearheaded the process of selection and appointment of judges with the President merely appointing from candidates recommended to him by the JSC.
The enactment of this Bill to law is likely to have a negative effect on the public’s perception of the judiciary. It also has the potential to affect the impartiality and the independence of the judiciary.
“The amendment to the 2013 Constitution will negatively affect public confidence in the judiciary. Not only is this a departure from a position that was in line with international standards and best practices; the amendment is likely to have a ripple effect on the judiciary,” said Arnold Tsunga, the ICJ Africa Director.
“In the short term the executive now has a carrot, which it can dangle in front of judicial officers. If a judge wants to be promoted to Judge President, Deputy Chief Justice or Chief they may have to align themselves with the thinking of the executive. Over time, given the central roles that these three office bearers play in the appointment process and thought leadership, Zimbabwe is likely to have a very executive minded bench,” he added.
To this end the ICJ calls upon the government of Zimbabwe to reconsider its decision to amend the Constitution in the manner proposed in the bill.
The procedure in section 180 of the constitution had distinguished Zimbabwe’s appointment procedures as exemplary in the region.
It is unfortunate that through this amendment the country has failed to consolidate this leadership position.
The amendment would be regressive and poses a real risk of undermining the essential role of the judiciary in securing the rule of law in Zimbabwe.
Zimbabwe-Constitutional Amendment-News-web stories-2017-ENG (full statement, in PDF)
