International Commission of Jurists
Tanzania: ICJ calls for reinstatement of lawyer Fatma Karume’s right to practice law

Tanzania: ICJ calls for reinstatement of lawyer Fatma Karume’s right to practice law

Oct 8, 2020 | News

The ICJ today called for reinstatement of Tanzania lawyer Fatma Karume, characterizing a permanent prohibition from her practicing law as a violation of her rights and the independence of the legal profession.

In September 2019, the High Court of Tanzania issued an order suspending senior lawyer Fatma Karume from practising law in mainland Tanzania.

The High Court directed the Advocates’ Disciplinary Committee of Tanzania to conduct a disciplinary hearing and make a final determination on whether Fatma Karume, a former president of Tanganyika Law Society, which is the Bar association of mainland Tanzania, should be allowed to practice law.

Allegations of misconduct against Fatma Karume arose from her written submissions in a constitutional challenge to President Magufuli’s appointment of Professor Adelardus Kilangi as the Attorney General of Tanzania.

The State’s counsel complained that the language used by Fatma  Karume in her submissions was unprofessional and disrespectful of the Attorney General, who was the subject of the constitutional challenge.

A year later, on 23 September 2020, the Advocates’ Disciplinary Committee found Fatma Karume guilty of the alleged misconduct and directed that she be permanently disbarred from practising law in Tanzania.

“The ICJ views the decision to permanently disbar Fatma Karume from legal practice, as a grave violation of Tanzania’s domestic, regional and international legal obligations relating to Fatma Karume’s right to be heard, her right to work and a violation of the independence of lawyers,” said ICJ Africa Director, Kaajal Ramjathan-Keogh.

“Fatma Karume’s right to be heard was violated in many ways. First, the complaint of misconduct was made in the State’s rejoinder submissions and Ms Karume was not afforded an opportunity to respond on record, before the High Court made the decision to temporarily suspend her from practice. Secondly, her right to a speedy hearing was violated because it took the Advocate’s Disciplinary Committee of Tanzania a year to make a final determination in her case,” she added.

The ICJ also considers that the substance of the charges of misconduct against Fatma Karume was inconsistent with international and regional standards, in so far as they were based on written submissions made in good faith as part of the due discharge of her professional functions.

The ICJ urges the authorities in Tanzania to rescind the decision to disbar Fatma Karume from legal practice and restore her right to work and in particular, her right to practice law.

In the meantime, ICJ welcomes the decision of the Tanganyika Law Society to support Fatma Karume to appeal against her disbarment.

Background

Articles 21 and 13 (6) (a) of the Constitution of Tanzania guarantee every person with the right to work and the right to a fair hearing respectively. In terms of regional law, Article 7(1) of the African Charter on Human and People’s Rights obliges governments to respect and protect the right of every individual to be presumed innocent until proven guilty by a competent court or tribunal; the right to present a defense; and,  the right to be tried within a reasonable time by an impartial court or tribunal. Similar rights are recognised in Article 14 of the International Covenant on Civil and Political Rights (ICCPR). In addition, Principle 27 of the United Nations Basic Principles on the Role of Lawyers (UN Basic Principles) states that  “Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.”

Principle 20 of the UN Basic Principles provides that “Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.” Similar provisions are included in Part I of the African Principles and Guidelines.

Contact

Kaajal Ramjathan-Keogh, Director of ICJ’s Africa Regional Programme, c: +27845148039, e: Kaajal kaajal.keogh@icj.org

 

Tanzanian High Court condemns unlawful stripping of SADC Tribunal’s powers rendering the rule of law a “pipe dream”

Tanzanian High Court condemns unlawful stripping of SADC Tribunal’s powers rendering the rule of law a “pipe dream”

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

 

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