International Commission of Jurists
ICJ joins in highlighting COVID-19 human rights issues at Human Rights Council

ICJ joins in highlighting COVID-19 human rights issues at Human Rights Council

Apr 9, 2020 | Advocacy, Non-legal submissions

The ICJ has joined other NGOs highlighting key human rights issues in the COVID-19 pandemic, at a virtual meeting of the UN Human Rights Council.

In the informal conversation, exceptionally organised by video-conference, the High Commissioner for Human Rights presented a statement, as did the President of the Council and a number of States, followed by several statements by NGOs.

The ICJ joined statements delivered by CIVICUS (on civil and political rights), ISHR (on the UN system response), and FORUM-Asia (on economic, social and cultural rights), on behalf of a large number of NGOs from around the world.

The statements focussed on, among other things:

  • the obligations of States individually and collectively to mobilize the maximum available resources to respond to the pandemic and protect those at risk, including by respecting, protecting and fulfilling economic, social and cultural rights;
  • the need to guard against abuse of emergency powers and undue restrictions on fundamental rights, including non-discrimination, freedom of expression and right to access information, the right to privacy, rights of persons deprived of liberty, and taking into account the situation of particularly-at-risk groups;
  • the role of the Human Rights Council, Special Procedures and Secretary General to monitor, report on, and respond to human rights aspects of the pandemic and States’ responses, and ensuring that civil society continues to be able to participate in all relevant UN and other processes.

The full statements may be downloaded in PDF format here:

Civil and Political Rights: UN-JointStatement-COVID19CPR-2020-final

Economic, Social and Cultural Rights: UN-JointStatement-COVID19ESCR-2020-final

United Nations Mechanisms: UN-JointStatement-COVID19UN-2020-final

Abbreviated versions were delivered in the dialogue, due to the limited time available.

In extensive and detailed closing remarks, the High Commissioner responded to many of the questions and observations made during the discussion, concluding, on the topic of access to justice in times of crisis, as follows (unofficial transcription):

“Courts become more important than ever to safeguard rights in times when major decisions with broad impact are being taken and implemented at great speed. In these circumstances, we have already seen the real risk for abuse of power, legal over-generalization and mistake. The courts must remain available to address these issues, if necessary of course by modifying their working methods. We have seen courts in many countries taking measures to ensure they remain accessible while protecting their staff and clients.”

A video recording of the event can be viewed here.

The High Commissioner’s specific remarks on access to justice can be accessed directly here.

Zimbabwe: ICJ welcomes judgment invalidating the enactment of the Constitutional Amendment Bill (No. 1) of 2017

Zimbabwe: ICJ welcomes judgment invalidating the enactment of the Constitutional Amendment Bill (No. 1) of 2017

Apr 2, 2020 | News

The ICJ welcomes the decision by the Constitutional Court of Zimbabwe to invalidate the enactment of Constitutional Amendment Bill (No. 1) of 2017 in Gonese and Anor v Parliament of Zimbabwe and 4 Ors.  The judgment restores important Constitutional guarantees for the independence of the judiciary in Zimbabwe.

Zimbabwe adopted a new Constitution in 2013 and one of the progressive elements of this Constitution was its provisions regulating the appointment of judicial leaders such as the Chief Justice, Deputy Chief Justice and Judge President of the High Court. These judicial leaders perform important administrative functions with a huge impact on access to justice for the public.

For example, the Chief Justice is the head of the Judicial Service Commission (JSC) and therefore, presides over processes to select and recommend candidates for judicial appointment.

The Judge President is responsible for case allocation in the High Court and therefore, selects judges to sit on cases. It is important that the procedures for appointing these judicial leaders be transparent and independent of executive control in order to maintain the independence and impartiality of judges as well as promote public confidence in the judiciary.

The 2013 Constitution ensured this by prescribing procedures which accorded the executive a constrained role in the selection and appointment of these judicial leaders.

For example, the process of selecting these office bearers was to be led by an independent Judicial Service Commission (JSC) which would publicly advertise the vacancies, shortlist candidates, conduct interviews that are open to the public and recommend candidates for appointment by the President. The President was required to appoint only from the shortlist submitted by the JSC.

In 2017, the then-President of Zimbabwe Robert Mugabe signed into law a constitutional amendment bill which sought to change these provisions and give the President the authority to select and appoint these judicial leaders without conducting public interviews and without being constrained or restricted to the shortlist provided by the JSC.

The enactment of this constitutional amendment bill was challenged in the Constitutional Court on grounds that the amendment had been adopted and enacted into law without following due process.

In its judgment, the Constitutional Court concluded that, “It is declared that the passing of Constitutional Amendment Bill (No. 1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of s 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No. 1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).”

The Court directed the Senate to conduct a vote in accordance with the procedure for amending the Constitution prescribed by s 328(5) of the Constitution within one hundred and eighty days of the order given. Failure to do so will render the declaration of invalidity of Constitutional Amendment Bill (No. 1) of 2017 final, said the Court.

Commenting on this judgment, ICJ Africa Director Arnold Tsunga said: “This is a positive judgment which underscores the vital principle of legality, particularly that changes to the Constitution must be processed and enacted in strict accordance with the laid out procedures. Respect for the Constitution, and ensuring the independence of the judiciary, are fundamental elements of the rule of law; both are advanced by this judgment.”

The decision by the Constitutional Court comes at a time when the Parliament of Zimbabwe has gazetted further proposed changes to the Constitution, which amongst other things seek to give the executive a stronger role in the selection and appointment of judges to the Supreme Court and Constitutional Court.

These proposed changes would undermine judicial independence and undercut public confidence in the independence and impartiality of the judiciary. Further, these proposed changes are contrary to international and African standards. For instance, the United Nations Basic Principles on the Independence of the Judiciary enjoin member states to ensure that “Any method of judicial selection shall safeguard against judicial appointments for improper motives.”

The African Commission on Human and Peoples’ Rights’ Principles  and Guidelines  on  the  Right  to  a  Fair  Trial  and Legal Assistance in Africa further provide that, “The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged.” The ICJ therefore, calls upon the government of Zimbabwe to reconsider its decision to proceed with these proposed changes to the Constitution.

Contact

Arnold Tsunga, t: +26377728 3248; e: arnold.tsunga@icj.org

Kazakhstan: arbitrary disbarments undermine the independence of lawyers

Kazakhstan: arbitrary disbarments undermine the independence of lawyers

Mar 12, 2020 | Advocacy, Non-legal submissions

At the UN, the ICJ today highlighted the need for Kazakhstan to ensure the independence of the legal profession and the judiciary, in particular by ending the arbitrary disbarment of lawyers.

The statement, delivered during the adoption of the outcome of the Universal Periodic Review of Kazakhstan by the Human Rights Council in Geneva. The statement read as follows:

“The International Commission of Jurists (ICJ) welcomes the acceptance by Kazakhstan of the recommendations by Denmark (138.83), France (139.85), Mexico (139.86) and Austria (139.113) to uphold the rule of law and to protect the independence of the legal profession and the judiciary.

The ICJ however regrets that Kazakhstan only noted and did not explicitly support the recommendation by Czechia to “take immediate measures to ensure the effective protection of lawyers, media workers, bloggers and human rights defenders against any form of harassment” (139.114).

Furthermore, based on ICJ research, we regret to report that Kazakhstan’s assertion  that the accepted recommendations are “in the process of implementation” (A/HRC/43/10/Add.1, para. 4) is simply not correct.

On the contrary, the ICJ considers that the independence of the legal profession is being actively undermined in the country.

The ICJ expresses particular concern at disbarment proceedings initiated by the Ministry of Justice, including the recent disbarment of Amanzhol Mukhamediarov and Yerlan Gazymzhanov.[1]

Finally, the situation is exacerbated by a Law on Advokatura that does not require the Bar Association’s authorisation to initiate disbarment proceedings.

To actually implement the recommendations accepted by Kazakhstan, ICJ calls on Kazakh authorities to stop all harassment of lawyers through disciplinary proceedings, readmit the lawyers unduly disbarred and reform its Law on Advokatura in line with international standards on independence of the legal profession.”

[1] See ICJ statement at https://www.icj.org/kazakhstan-disbarment-of-erlan-gazymzhanov-and-amanzhol-mukhamediarov-undermines-the-independence-of-the-legal-profession-icj-says/ .

Treaty on business and human rights; threats to independence of the judiciary in Europe

Treaty on business and human rights; threats to independence of the judiciary in Europe

Mar 6, 2020 | Advocacy, Non-legal submissions

The ICJ, speaking in a general debate at the UN Human Rights Council in Geneva, urged all States to work together towards adoption of a treaty on business and human rights, and highlighted threats to the independence of the judiciary in Europe.

The statement, delivered in the general thematic debate at the Council, read as follows:

“The International Commission of Jurists (ICJ) welcomes the report of the 5th session of the Intergovernmental Working Group (A/HRC/43/55) in charge of the elaboration of a treaty on business and human rights and notes the consensual nature of its conclusions and recommendations. Abuses of human rights and environmental degradation caused with the involvement of business enterprises have so far been met with very limited action by businesses and States.

The ICJ considers that the revised draft treaty is a serious and advanced proposal that is suitable for negotiations and thanks the Chair-Rapporteur for its efforts and leadership in this process.

The ICJ urges States that are not yet actively involved in the negotiations to join the growing number of States that are active for a final push.

The ICJ also draws the attention of the Council to serious threats to independence of judges and lawyers in European countries.

In Poland, judges are being disciplined merely for applying EU law, under legislation curtailing their freedom of expression and independence.

In Turkey, independence of lawyers and judges continues to be seriously compromised, as demonstrated by the disciplinary proceedings against the Gezi trial judges launched after critical comments by the President of Turkey.

The ICJ urges the Council to give attention to these developments of extreme concern.”

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