Jul 12, 2019 | Advocacy, Non-legal submissions
The ICJ joined other NGOs in an end-of-session statement, highlighting the achievements and shortfalls of the 41st Ordinary Session of the UN Human Rights Council, 24 June – 12 July 2019.
The statement, delivered by International Service for Human Rights (ISHR), reads as follows:
By renewing the mandate of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (SOGI), the Council has sent a clear message that violence and discrimination against people of diverse sexual orientations and gender identities cannot be tolerated. It reaffirmed that specific, sustained and systematic attention is needed to address these human rights violations and ensure that LGBT people can live a life of dignity. We welcome the Core Group’s commitment to engage in dialogue with all States, resulting in 50 original co-sponsors across all regions. However, we regret that some States have again attempted to prevent the Council from addressing discrimination and violence on the basis of SOGI.
The Council session also sent a clear message that Council membership comes with scrutiny by addressing the situations of Eritrea, the Philippines, China, Saudi Arabia and the Democratic Republic of Congo. This shows the potential the Council has to leverage its membership to become more effective and responsive to rights holders and victims.
The Council did the right thing by extending its monitoring of the situation in Eritrea. The onus is on the Eritrean Government to cooperate with Council mechanisms, including the Special Rapporteur, in line with its membership obligations.
We welcome the first Council resolution on the Philippines as an important first step towards justice and accountability. We urge the Council to closely follow this situation and be ready to follow up with additional action, if the situation does not improve or deteriorates further. We deeply regret that such a resolution was necessary, due to the continuation of serious violations and repeated refusal of the Philippines – despite its membership of the Council– to cooperate with existing mechanisms.
We deplore that Council members, such as the Philippines and Eritrea, sought to use their seats in this Council to seek to shield themselves from scrutiny, and those States[1] who stand with the authorities and perpetrators who continue to commit grave violations with impunity, rather than with the victims.
We welcome the written statement by 22 States on China expressing collective concern over widespread surveillance, restrictions to freedoms of religion and movement, and large-scale arbitrary detention of Uyghurs and other minorities in Xinjiang. We consider it as a first step towards sustained Council attention and in the absence of progress look to those governments that have signed this letter to follow up at the September session with a resolution calling for China to allow access to the region to independent human rights experts and to end country-wide the arbitrary detention of individuals based on their religious beliefs or political opinions.
We welcome the progress made in resolutions on the rights of women and girls: violence against women and girls in the world of work, on discrimination against women and girls and on the consequences of child, early and forced marriage. We particularly welcome the renewal of the mandate of the Working Group on Discrimination Against Women and Girls under its new name and mandate to focus on the intersections of gender and age and their impact on girls. The Council showed that it was willing to stand up to the global backlash against the rights of women and girls by ensuring that these resolutions reflect the current international legal framework and to resist cultural relativism, despite several amendments put forward to try and weaken the strong content of these resolutions.
However, in the text on the contribution of development to the enjoyment of all human rights, long standing consensus language from the Vienna Declaration for Programme of Action (VDPA) recognising that, at the same time, “the lack of development may not be invoked to justify the abridgement of internationally recognized human rights” has again been deliberately excluded disturbing the careful balance established and maintained for several decades on this issue.
We welcome the continuous engagement of the Council in addressing the threat posed by climate change to human rights, through its annual resolution and the panel discussion on women’s rights and climate change at this session. We call on the Council to continue to strengthen its work on this issue, given its increasing urgency for the protection of all human rights.
The Council has missed an opportunity on Sudan where it could have supported regional efforts and ensured that human rights are not sidelined in the process. We now look to African leadership to ensure that human rights are upheld in the transition. The Council should stand ready to act, including through setting up a full-fledged inquiry into all instances of violence against peaceful protesters and civilians across the country.
During the interactive dialogue with the Special Rapporteur on extrajudicial and summary executions, States heard loud and clear that the time to hold Saudi Arabia accountable is now for the extrajudicial killing of journalist Jamal Khashoggi. We recall that women human rights defenders continue to be arbitrarily detained despite the calls by 36 States at the March session. We urge States to adopt a resolution at the September session to establish a monitoring mechanism over the human rights situation in the country.
We welcome the landmark report of the High Commissioner on the situation for human rights in Venezuela; in response to the grave findings in the report and the absence of any fundamental improvement of the situation in the meantime, we urge the Council to adopt a Commission of Inquiry or similar mechanism in September, to reinforce the ongoing efforts of the High Commissioner and other actors to address the situation.
We welcome the renewal of the mandate on the freedom of peaceful assembly and association. This mandate is at the core of our work as civil society and we trust that the mandate will continue to protect and promote these fundamental freedoms towards a more open civic space.
We welcome the renewal of the mandate of the Special Rapporteur on Belarus. We acknowledge some positive signs of re-engagement in dialogue by Belarus, and an attempted negotiation process with the EU on a potential Item 10 resolution. However, in the absence of systemic human rights reforms in Belarus, the mandate and resolution process remains an essential tool for Belarusian civil society. In addition, there are fears of a spike in violations around upcoming elections and we are pleased that the resolution highlights the need for Belarus to provide safeguards against such an increase.
We welcome the renewal of the quarterly reporting process on the human rights situation in Ukraine. However, we also urge States to think creatively about how best to use this regular mechanism on Ukraine to make better progress on the human rights situation.
The continued delay in the release of the UN database of businesses engaged with Israeli settlements established pursuant to Council resolution 31/36 in March 2016 is of deep concern. We join others including Tunisia speaking on behalf of 65 states and Peru speaking on behalf of 26 States in calling on the High Commissioner to urgently and fully fulfil this mandate as a matter of urgency and on all States to cooperate with all Council mandates, including this one, and without political interference.
Numerous States and stakeholders highlighted the importance of the OHCHR report on Kashmir; while its release only a few days ago meant it did not receive substantive consideration at the present session, we look forward to discussing it in depth at the September session.
Finally, we welcome the principled leadership shown by Belgium, Luxembourg and the Netherlands, in pursuing accountability for individual victims of acts of intimidation and reprisals under General Debate Item 5, contrasting with other States which tend to make only general statements of concern, and call on States to raise all individual cases at the interactive dialogue on reprisals and intimidation in the September session.
(text in italics was not read out due to the limited time)
Signatories:
- International Service for Human Rights (ISHR)
- Amnesty International
- ARTICLE 19
- Asian Forum for Human Rights and Development (FORUM-ASIA)
- Association for Progressive Communications (APC)
- Cairo Institute for Human Rights Studies
- Center for Reproductive Rights
- CIVICUS: World Alliance for Citizen Participation
- DefendDefenders (the East and Horn of Africa Human Rights Defenders Project)
- Franciscans International
- Global Initiative for Economic, Social and Cultural Rights
- Human Rights House Foundation
- Human Rights Watch
- International Commission of Jurists (ICJ)
- International Federation for Human Rights (FIDH)
- International Lesbian and Gay Association (ILGA)
[1] States who voted against the resolution on Eritrea: Bahrain, Burkina Faso, Cameroon, China, Cuba, Egypt, Eritrea, Iraq, India, Saudi Arabia, Somalia, the Philippines and Pakistan.
States who voted against the resolution on the Philippines: Angola, Bahrain, Cameroon, China, Cuba, Egypt, Eritrea, Hungary, Iraq, India, Qatar, Saudi Arabia, Somalia, and the Philippines.
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.
May 30, 2019 | News
On May 29 2019, the ICJ facilitated a workshop with a number of justice sector officials and stakeholders who are active in the implementation of the Sexual Offenses and Domestic Violence Act (SODVA).
Building on previous engagements in 2018 and 2019, the participants decided on a clear plan of action for further coordination towards the eradication of sexual and gender based violence (SGBV) in Eswatini.
Participants in the meeting included representatives from the Office of the Director of Public Prosecutions, the Office of the Deputy Prime Minister, the police, correctional services, the judiciary and the Medical and Dental Association of Eswatini.
The meeting, was opened by ICJ Commissioner and Principal Judge of the High Court of Eswatini, Justice Qinisile Mabuza.
“For too many years, the clamour for this law has been loud; now that we have it, we have to interrogate how efficiently we are using it and check for the gaps that we need to address. Its implementation is in our hands, and we cannot allow ourselves to fail those that need our protection; we cannot fall foul of failing in our duty,” said Judge Mabuza.
A draft report, commissioned by the ICJ, was presented by Nonhlanhla Dlamini, the Director of Swaziland Action Group Against Abuse (SWAGAA).
The report, provided participants with a contextual analysis of challenges faced by survivors of SGBV in accessing the justice system in Eswatini.
ICJ Legal Adviser Timothy Fish Hodgson discussed key provisions of the SODV Act and the need for their interpretation and application consistently with the Convention on the Elimination of Discrimination Against Women.
SWAGAA’s draft report revealed that despite the enactment of the SODV Act significant barriers to access to justice for survivors of SGBV remain.
These include:
- Underreporting of SGBV;
- Stereotyping and discrimination faced by survivors when reporting;
- Partial application of SODV Act due to lack of knowledge on the part of key justice sector actors;
- Under-resourcing, lack of infrastructure and services presupposed by SODV Act which prevents full implementation;
- Continued stereotype-driven assumptions made by courts despite the outlawing of such approaches in the SODV Act;
- Lack of due diligence in the collection of medical evidence;
- A perception on the part of survivors that perpetrators are better taken care of in the prosecution process than survivors; and
- A growing and inaccurate perception of the SODV Act and its purposes, which has been facilitated by misleading media reports.
Participants made practical recommendations of how challenges could be addressed in their particular environments. Stressing the need to ensure continued collaboration and momentum in the implementation of the SODV Act, ICJ Africa Director Arnold Tsunga observed that: “Whether this process actually builds towards better protection from SGBV for the marginalized in Eswatini and the SODV Act’s impact is dependent on how participants in this platform and other officials are able to adopt practical measures and implement them effectively.”
