Oct 13, 2020 | News
Today the ICJ condemned the apparent widespread ill-treatment and arbitrary arrest of peaceful demonstrators protesting gender based violence on Saturday 10 October in Windhoek.
The demonstrators were allegedly met with tear gas, and a number of them were subject to serious beatings by police forces.
Some 25 persons, including journalists, were arrested during the demonstrations. They were initially charged with breaching a law forbidding the public gathering of more than 50 people, though the charges were dropped on Monday.
The ICJ is calling for a prompt, thorough, impartial and effective investigation into the alleged police abuse, in line with Namibian law and the countries international legal obligations.
Officials responsible should be held accountable.
“Instead of taking seriously the demands made by the protestors and to take steps to ensure that gender based violence is addressed in a meaningful and constructive way, the police themselves appeared to have engaged in violent action against those exercising their rights to peacefully assembly and express their view,” said Kaajal Ramjathan-Keogh, ICJ Africa Regional Programme Director.
The ICJ also called on the authorities to protect the right of individuals in the country to peacefully and protest, rights which are protected under Namibia’s Constitution and international law.
The ICJ said that the Public Gatherings Proclamation Act, requiring prior permission for assemblies of more than 50 people in public spaces, should be repealed or revised, as incompatible with its international legal obligations.
The ICJ has also called on Namibia to address the underlying concerns raised by the protests, notably that during the COVID-19 pandemic, gender-based violence has been exacerbated during lockdown restrictions.
In Namibia, reports of femicide and gender based violence steadily increasing and on average “three rape cases were reported to the Namibian police every day for 18 months.”
Background
The recent #ShutItAllDown and #ShutitAllDownNamibia movements, spontaneously started on social media after the killing of a young woman, Shannon Wasserfall, have led to a series of protests against government’s failure to adequately address the scourge of gender based violence in Namibia.
The protestors, predominantly young women, last week handed over a petition to government which includes a list of 24 demands. raising concerns about the poor State response to gender-based violence in Namibia.
The protestors allege that Namibian police are “negligent and nonchalant” with investigating violent crime committed against women. They are demanding that government do more to protect women against such violence, including by ensuring that survivors of gender-based violence have access to justice.
The rights to freedom of assembly and expression, freedom from ill-treatment, and prohibitions on arbitrary arrest are guaranteed under the international human rights treaties to which Namibia is a party, including the African Charter on Human and Peoples Rights and the International Covenant on Civil and Political Rights, and the Convention against Torture, as well as the Namibian Constitution.
Contact
Kaajal Ramjathan-Keogh, Director of ICJ’s Africa Regional Programme, c: +27845148039, e: kaajal.keogh(a)icj.org
Nokukhanya Farisè, Legal Adviser, nokukhanya.farise(a)icj.org
Oct 13, 2020 | Advocacy, News, Non-legal submissions
On 12 October 2020, the ICJ made a submission to the Human Rights Council’s Working Group on the Universal Periodic Review in advance of the Human Rights Council’s review of Singapore in May 2021.
In its submission, the ICJ expressed concern about the following issues:
(i) Freedom of expression online;
(ii) The death penalty;
(iii) Corporal punishment; and
(iv) International human rights instruments.
The ICJ further called upon the Human Rights Council and the Working Group on the Universal Periodic Review to recommend that Singapore ensure, in law and in practice, the right to freedom of expression online, the right to life and the absolute prohibition against cruel, inhuman or degrading treatment or punishment; and become a party to core international human rights instruments, including the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the International Convention for the Protection of All Persons from Enforced Disappearance, as well as the existing Optional Protocols to some of these treaties.
The submission is available in PDF here.
Oct 12, 2020 | Incidencia
En marzo de 2020, la CIJ junto con un grupo de organizaciones de la sociedad civil y varias personas defensoras de derechos humanos de América Latina, iniciaron un proceso de seguimiento al funcionamiento de los sistemas de justicia durante la pandemia en la región.
En el marco de esta iniciativa se analizaron las medidas adoptadas por los sistemas judiciales para continuar la prestación del servicio de justicia y proteger los derechos a la salud y a la vida de las personas que intervienen en los procesos judiciales, así como los impactos que dichas medidas tuvieron en el acceso a la justicia y en la independencia judicial.
Así, entre abril y julio de 2020 se organizaron 11 webinars de alcance regional para analizar los desafíos enfrentados en materia de justicia virtual y de litigio estratégico, así como, respecto de la protección de los derechos de las personas migrantes, de las mujeres en prisión y de la búsqueda de las personas dadas por desaparecidas, entre otras cuestiones.
Igualmente, en mayo de 2020 se presentó una comunicación y un informe ante la Comisión Interamericana de Derechos Humanos (CIDH), con el propósito de analizar las medidas adoptadas por los órganos del sistema de justicia, y presentar las principales preocupaciones en torno al acceso a la justicia, al respeto al debido proceso y a la protección de la independencia judicial durante la pandemia. Adicionalmente, se realizó una infografía que resumía las medidas adoptadas y las preocupaciones comunes.
Las organizaciones que participaron en estas actividades fueron además de la CIJ, la Fundación para el Debido Proceso Legal (DPLF), la Asociación Civil por la Igualdad y la Justicia (Argentina), la Fundación Construir (Bolivia), la Fundación Tribuna Constitucional (Bolivia), el Observatorio de Derechos y Justicia (Ecuador), la Fundación Salvadoreña para el Desarrollo Económico y Social (El Salvador), la Fundación para la Justicia y el Estado Democrático del Derecho (México) y el Instituto de Defensa Legal (Perú).
Posteriormente, dichas organizaciones solicitaron una audiencia pública ante la CIDH, con el objetivo de aportar información actualizada acerca de los desafíos y obstáculos para el funcionamiento de los sistemas de justicia y la reactivación de sus servicios. A esta petición se sumó la Asociación Nacional de Magistradas y Magistrados del Poder Judicial de Chile.
La audiencia pública se llevó a cabo de manera virtual el 09 de octubre de 2020 en el marco del 177 Período de Sesiones de la CIDH. En esta, se presentaron los obstáculos comunes identificados a partir de la experiencia de 9 países de la región (Argentina, Bolivia, Colombia, Chile, Ecuador, El Salvador, Guatemala, México y Perú), y se resaltó la obligación internacional de los Estados de reorganizar su institucionalidad y de remover de manera activa, los obstáculos de cualquier naturaleza que impidan o dificulten el acceso a la justicia, especialmente de aquellas personas y grupos en situación de vulnerabilidad.
El informe presentado en la audiencia pública puede ser consultado aquí: Colombia-Informe de audiencia CIDH-Advocacy-2020-SPA
Contacto
Carolina Villadiego Burbano, Asesora Legal para América Latina de la CIJ: carolina.villadiego@icj.org
Oct 9, 2020
An opinion piece by Michelle Yesudas, Legal Adviser, ICJ Asia-Pacific Programme and Rachel Chhoa-Howard, Researcher on Malaysia at Amnesty International.
For decades, Malaysia’s treatment of migrant workers and refugees has wavered between tacit acceptance, neglect, and outright hostility. And the current situation is the lowest point in years.
Refugees and migrant workers have emerged as the government’s favoured excuse for the rise in Covid-19 cases. Most recently, the Prime Minister has attributed the spike in Sabah’s rise in cases to undocumented migrant workers, despite reports of high-profile individuals ignoring quarantine restrictions in droves following state elections.
At a National Security Council meeting at the beginning of this month, the prime minister further stated that to combat the virus, more detention centres that house undocumented migrant workers should be built.
In a recent Information Note on Covid-19, the UN stated that governments have a greater duty to protect people who are in detention. This should be done through “avoiding overcrowding and ensuring hygiene and sanitation in prisons and other detention centres,” among other measures.
Despite this, the practice of arresting, detaining and eventually deporting people alleged to have breached immigration law continues, raising the heightened risk of the disease spreading amongst detainees, as well as spilling over into the general community.
A dangerous shift in government policy
This announcement is just the latest attack on refugee and migrant communities, using the pretext of Covid-19 and weaponised laws to cause untold misery. In recent months, operations by police and immigration officials have seen hundreds of people rounded up and placed in squalid and overcrowded immigration detention facilities, where the risk of contracting Covid-19 is far higher.
Indeed, following raids, immigration detention facilities recorded hundreds of new cases and saw clusters of infections within weeks.
Meanwhile, the coastguard and military pushed away boats of desperate Rohingya people risking their lives to reach the country, or otherwise detained and charged them with immigration offences. Ismail Sabri, Malaysia’s Defence Minister, announced publicly, that Rohingyas have “no status” in the country, despite previous governments being continuously vocal on its support and solidarity with Muslim Rohingyas since 2016.
Home Minister Hamzah Zainudin later added that the government does not recognise the documentation provided by the UN High Commissioner for Refugees (UNHCR) to these refugees, despite prior agreement that bearers of UNHCR cards would be afforded relative protection.
Malaysian authorities are also cracking down on those who publicly voiced concern and exposed the arbitrary, sweeping laws — on immigration and free speech — that make this toxic state of affairs possible.
In July this year, authorities investigated two Al Jazeera journalists from Australia involved in the making of a documentary shedding light on the appalling treatment of migrant workers and refugees amid the Covid-19 lockdown in Malaysia.
The government detained Rayhan Kabir — a Bangladeshi migrant worker featured in the documentary — for weeks. Since then, police have raided Al Jazeera’s offices in Kuala Lumpur and deported Kabir back to his home country. Other critical voices, including the founder of a refugee support organisation, have also faced harassment from the authorities.
The government has used Covid-19 as an opportunity to radically redefine its position on the acceptance of refugees. It’s most recent crackdown highlights the fact that without proper domestic laws protecting the human rights of migrants and refugees, people live in daily fear of exploitation, arbitrary arrest, detention and other human rights abuses.
An inadequate law at the heart of this inhumane policy
The arrest and detention of migrant workers and refugees emphasizes the problematic provisions of Malaysia’s Immigration Act. Under the Act, senior immigration officers have wide powers of search and arrest, which may be used to harass migrants. It also provides for the imprisonment, often indefinitely, of those in breach of local immigration laws in detention centres.
The Immigration Act has been used to sentence migrants to whipping, which is a cruel, inhuman, and degrading punishment prohibited under international human rights law. Furthermore, broadly-worded provisions of the Immigration Act provide the Director General of Immigration with arbitrary powers to revoke and alter the immigration status of non-citizens, such as the two Al Jazeera journalists whose work permits were not renewed.
In addition, Malaysian authorities have used the Immigration Act to arrest, detain and criminally charge a group of Rohingya refugees that arrived by boat and sentence them with the cruel punishment of whipping.
In June this year, the Langkawi Magistrates Court handed down a decision under Section 6 of the Immigration Act, to punish 27 Rohingya men with whipping and seven months in jail for entering Malaysia without valid documentation. Fortunately, following an outcry, the Alor Setar High Court overturned this decision.
However, there are no safeguards to ensure other Rohingya refugees will not face the same threat, in the future.
Time for change
Clearly, Malaysia’s law and policies do not fulfill its international obligations on migrants and refugees. In fact, they are driving them to despair. Caught between the risk of arrest and unemployment, several people are reported to have committed suicide.
It should not take a global health emergency for the Malaysian government to review its policies on the criminalisation of those who fall foul of the Immigration Act, however there is no better time for the government to do so.
Instead of criminalising people, the government should coordinate across ministries and agencies and work with civil society organisations to amend legislation as well as informal guidelines and policies that fall far below international standards.
Malaysia must also ratify international conventions relating to refugees and migrant workers. And instead of silencing critical voices, authorities should address their well-founded concerns. Only when these measures are in place, will migrants and refugees in Malaysia have the proper protection they deserve.
First published in Malay Mail on 9 October: https://www.malaymail.com/news/what-you-think/2020/10/09/unfettered-powers-fatal-gaps-malaysias-inhumane-crackdown-on-migrants-refug/1911091
Oct 8, 2020 | News
Proposed legislation to regulate the operations and functions of the legal profession in Eswatini does not comply with international and regional standards and would severely undermine the right to an independent lawyer, the ICJ said today.
A Bill that the Government of Eswatini is reportedly seeking to introduce in Parliament would establish a Legal Services Regulatory Authority which would be responsible for issuing practising certificates to lawyers, disciplining lawyers in case of unethical conduct, developing and enforcing performance standards for legal practitioners in Eswatini, the ICJ said.
The proposed Legal Services Regulatory Authority would constitute up to 10 members of which only one would be appointed by the legal bar association (Law Society of Eswatini).
If enacted into law, the bill would severely undermine the independence of lawyers in Eswatini and may set a dangerous precedent for other countries in the SADC region, especially at this time when lawyers in other parts of the region are being persecuted by their governments, the ICJ added.
When discharging their functions, legal practitioners must be independent of control and undue influence in order for them to be able to represent their clients more effectively.
“The Legal Services Regulatory Authority proposed under the Eswatini Bill does not qualify as a self-governing professional body or an independent statutory authority because all but one of its members will be appointed by government,” said ICJ Africa Director Kaajal Ramjathan-Keogh.
“The establishment of this regulatory authority is likely to have a chilling effect on the freedom of lawyers to discharge their functions without being afraid of potential retribution through disciplinary proceedings based on frivolous charges,” she added.
The ICJ calls upon the Government of Eswatini to honour its domestic and international legal obligations to respect the independence of lawyers.
In this case, the ICJ urges the government to withdraw this bill and respect the independence of the lawyers to regulate themselves.
Background:
Eswatini has an obligation, in terms of its domestic constitution as well as regional and international law and standards, to respect and protect the independence of lawyers. Section 21 of the Constitution of Eswatini and regional and international human rights treaties and standards guarantee for every person the right to a fair hearing and the right to legal representation. These rights cannot be enjoyed effectively, unless lawyers are guaranteed the freedom to represent their clients and perform all their other duties without harassment, intimidation and undue interference.
The right of everyone to access to a lawyer as an essential element of a fair trial is recognized in, among other sources, the International Covenant on Civil and Political Rights (ICCPR), to which Eswatini has been a party since 2004. International and regional standards on ensuring the independence of lawyers are set out in the UN Basic Principles on the Role of Lawyers (UN Basic Principles) and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.
Principle 16 of the United Nations Basic Principles, for instance, enjoins all governments to “ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference”.
Principle 24 affirms that, “Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.”
Principle 28 states that “Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.”
In a recent unanimous resolution, the UN Human Rights Council recognized that “an independent legal profession” is among the “prerequisites for the protection of human rights and the application of the rule of law and for ensuring fair trials and the administration of justice without any discrimination”.
The Human Rights Council specifically expressed its concern “about situations where the entry into or continued practice within the legal profession is controlled or arbitrarily interfered with by the executive branch, with particular regard to abuse of systems for the licensing of lawyers.” It recommended that any domestic legislation should “provide for independent and self-governing professional associations of lawyers” and should “recognize the vital role played by lawyers in upholding the rule of law and promoting and protecting human rights”.
Contact:
Kaajal Ramjathan-Keogh, Director of ICJ’s Africa Regional Programme, c: +27845148039, e: Kaajal kaajal.keogh(a)icj.org
