Aug 7, 2020 | Advocacy, Agendas, News
On 6-7 August the ICJ co-hosted a symposium on threats to judicial independence in East and Southern Africa.
The event was held with the collaboration of the Africa Judges and Jurists Forum, the Kenyan Section of the International Commission of Jurists Kenya Section, Open Society Initiative for Southern Africa, Southern Africa Development Community Lawyers Association, Malawi Law Society, Pan African Lawyers Association, East Africa Lawyers Association and the American Bar Association.
Recent actions taken to undermine judicial independence in East and Southern Africa include proposed constitutional amendments, executive interference with the functioning of the Judicial Service Commissions and verbal as well as physical threats against judges.
Participants in the symposium included judges, lawyers, academics and civil society representative. ICJ Commissioner and former Chief Justice of Kenya Dr Willy Mutunga, and Professor Jill Ghai of Katiba Institute delivered the key note addresses.
Dr Willy Mutunga speaking to challenges of judicial independence in the political context of Kenya in his keynote address, said “I believe that the independence of the judiciary… is about the integrity of the judicial officers… Building peoples’ confidence in the judiciary and the judicial officers depends on the integrity of the institution and its judicial officers and staff.”
In her address, Professor Jill Ghai evaluated various ways in which independence of the judiciary is undermined, taking into account examples from various countries.
“We must not relent in letting the Executive know that we are watching whenever there are attempts to undermine the judiciary,” Ghai said in closing.
ICJ Secretary General Sam Zarifi that judicial independence was facing genuine threats, not just in Africa but throughout the world.
“The issue of judicial independence has been at the heart of the ICJ’s work for the last 70 years almost… We have been defending the rule of law and human rights. For both of those the independence of the judiciary is absolutely essential,” Zarifi said.
On the second day of the symposium, participants into four groups discussed the nature of challenges and weaknesses in the Executive-Judiciary relations, litigation as a strategy for protecting judicial independence, strategies for increasing social and political activism in defence of judicial independence, and the prospects and strategies for regional and international advocacy in the age of COVID-19 respectively.
In his closing remarks, outgoing ICJ Regional Director Arnold Tsunga flagged Malawi as a recent case study where the judiciary had demonstrated its independence when the Constitutional Court nullified the 2019 presidential election results, citing widespread irregularities.
Watch the proceedings of the symposium here:
Welcome and keynote address
Closing remarks
Contact:
Justice Mavedzenge (ICJ Legal Advisor) t: +27793889990 e: justice.mavedzenge(a)icj.org
Shaazia Ebrahim (ICJ Media Officer) t: +27716706719 e: shaazia.ebrahim(a)icj.org
Aug 6, 2020
In a report published today, the ICJ called on the Government of Nepal to undertake substantial reforms in order to ensure that the wide-ranging constitutional and political restructuring of recent years will allow the country to deliver on human rights accountability and access to justice for all Nepalis.
The Report on Human Rights and the Rule of Law in a Federal Nepal incorporates the findings of a High-Level Mission undertaken by the ICJ in December 2019.
The Report offers more than 50 recommendations, including that the Nepali authorities act to remove obstacles to access to justice for those seeking a remedy and reparation for human rights violations and abuses, both from the conflict era and contemporary times. The ICJ also called upon the authorities to end political interference in the enforcement of the law and administration of justice, including in respect to directives from the courts and the National Human Rights Commission.
“In the face of the challenges of federal decentralization, it is vital that all Nepalis are able to trust in their fair and equal treatment under the law,” said ICJ Commissioner and former Nepal Supreme Court Justice Kalyan Shrestha. “This report is a guide to how that public trust can be strengthened in Nepal.”
The ICJ Mission found that despite strides in the development of human rights law, policy and jurisprudence, many long-standing obstacles to accountability and access to justice persisted and remained largely unaddressed.
“Nepal remains caught in a cycle of impunity that threatens to undermine the rule of law, as evidenced by a stalled transitional justice process, compromised justice sector institutions, a fragmented civil society, and the persistence of systemic discrimination,” said ICJ Commissioner Dame Silvia Cartwright. “Despite notable efforts by provincial policymakers, a robust judiciary and the relentless advocacy of civil society, authorities representing the ‘new’ Nepal are in danger of repeating the mistakes of the past in failing to truly listen and respond to the demands of Nepalis for justice.”
The Report considers the human rights impacts of recent changes in the political and legal context, such as the implementation of provisions of the 2015 Constitution that operationalize elements of a new federal system of governance, long-awaited amendments to the Penal Code and other laws affecting the criminal justice system, and a lack of progress in the transitional justice process, as well as the de-stabilizing effects of recent political developments and COVID19.
The Mission was undertaken by ICJ Commissioners Justice Sanji Monageng (Botswana), Dame Silvia Cartwright (New Zealand) and Justice Kalyan Shrestha (Nepal), as well as ICJ Legal and Policy Director Ian Seiderman and ICJ Asia-Pacific Director Frederick Rawski.
The Report, building on a 2017 ICJ baseline study, offers findings in three main areas:
- Non-Implementation. Nepal has made notable strides in the progressive development of law and jurisprudence that incorporates significant elements of the international human rights law framework, such as the fundamental rights provisions of the 2015 Constitution. However, constitutional mandates, legislation and judicial decisions have in many cases gone unimplemented or been actively undermined at the expense of public trust in government, and access to justice for victims.
- Independent and Impartial Institutions. Nepal has made progress in establishing and building the capacity of justice institutions including police, prosecutors, the judiciary, transitional justice mechanisms and national human rights bodies. However, these institutions suffer from weaknesses in capacity and independence, and are vulnerable to political influence and manipulation.
- Accountability and Access to Justice. Despite improvements in the law and progress in institution-building, Nepalis still face the same barriers to accessing the justice system. Frontline institutions, particularly the police and prosecutors, lack the political will and capacity to effectively interface with communities. Individual Nepalis, especially those from ethnic minority communities or without proof of citizenship, typically face overwhelming obstacles when pursing a remedy in the courts.
Safeguarding the independence of the judiciary was a central theme of the Mission. The Mission found that the Supreme Court continues to effectively carry out its responsibilities under Nepal’s constitution and international law to protect human rights. However, it also concluded that persistent non-implementation of judicial decisions constituted a serious abdication of responsibility on the part of the executive authorities.
“The Mission was impressed by the role that the judiciary, and particularly the Supreme Court, has played in protecting human rights,” said ICJ Commissioner Justice Sanji Monageng. “However, we repeatedly heard concerns that officials routinely ignore judicial decisions – to such a degree that non-implementation threatens to diminish the credibility of the judiciary in the eyes of the public.”
The Mission found that the failure to respect judicial decisions was exacerbated by political interference in the appointment processes of key institutions, such as the Supreme Court, Nepal Police, National Human Rights Commission and transitional justice bodies. Among its recommendations, the report calls for the adoption of more fair and transparent appointment processes, and other measures to prevent political interference in the application of the law.
“Political interference in the appointments of high public officials erodes public trust, degrades the effectiveness of governance, and creates conditions for corruption,” added Justice Shrestha. “This includes the current system of judicial appointments, which is vulnerable to political influence, and must be reformed.”
Drawing on these findings and observations, the report offers extensive recommendations directed to the Office of the Prime Minister, federal and provincial legislatures, the Nepal Police, the Office of the Attorney General, the judiciary including the Supreme Court and National Judicial Academy, the National Human Rights Commission, civil society and the diplomatic community.
Download
Human Rights and the Rule of Law in a Federal Nepal: Recommendations from an ICJ High-Level Mission in English and Nepali.
Executive Summary and Recommendations in Nepali.
Story in English and Nepali
Contact
Frederick Rawski, ICJ Asia-Pacific Director, e: frederick.rawski(a)icj.org
Ian Seiderman: ICJ Legal and Policy Director, e: ian.seiderman(a)icj.org
Mandira Sharma: ICJ Senior Legal Adviser, e: mandira.sharma(a)icj.org
Aug 5, 2020
The ICJ has joined families of victims of police violence in the United States of America, the ACLU, and more than 360 civil society organizations, in a letter to the UN High Commissioner for Human Rights highlighting key elements for her upcoming report to the UN Human Rights Council.
143 families of victims of police violence and over 360 civil society organizations endorsed this letter to the UN High Commissioner for Human Rights regarding the implementation of the recent Human Rights Council Resolution 43/1 adopted on 19 June 19 2020. This resolution followed an Urgent Debate “on current racially inspired human rights violations, systemic racism, police brutality and violence against peaceful protests.”
The letter can be downloaded in PDF format here: UN-Advocacy-JointOpenLetterPoliceRacism-2020
Aug 3, 2020
In a report published today, the ICJ called on the Thai government, legislature and regulatory agencies to take steps to address deficiencies in the legal and regulatory framework governing economic development in Special Economic Zones and the Eastern Economic Corridor to improve transparency, protect communities and labourers’ human rights, and implement safeguards to mitigate the adverse impact of such development on the environment and human rights.
The report, titled ‘The Human Rights Consequences of the Eastern Economic Corridor and Special Economic Zones in Thailand’ identifies gaps and weaknesses in the current law and policy governing investment in areas that have been designated for economic development in order to attract foreign investment. The report documents reported human rights violations and abuses of affected communities, as well as the adverse impact on the environment and working conditions for migrant labourers.
Drawing on international law and good practices, and the ICJ’s previous work in Myanmar, the report offers a detailed set of recommendations for how to improve the existing legal framework in order to prevent future human rights violations and abuses and provide reparation to victims of human rights violations perpetrated in and associated with SEZs.
“There is no reason for Thailand to repeat the mistakes made by governments elsewhere in the world that have rushed to dilute human rights and environmental legal protections in a misguided attempt to attract foreign investment,” said Frederick Rawski, ICJ Asia-Pacific Director.
“Safeguarding the well-being of local communities and the environment, ensuring decent conditions for migrant workers, and establishing transparent and inclusive decision-making processes are essential elements of a sustainable development that respects human rights,” he added.
As discussed in the report, the current laws and regulations governing SEZs do not contain adequate procedural safeguards and human rights protections, including for the rights to food, health, water, work and adequate housing.
While the law governing development of the EEC does contain a number of provisions that protect communities and the human rights of affected individuals, the report outlines concerns about the regulatory body governing the EEC’s broad discretionary powers and inadequate transparency in its work, as well as a lack of adequate preventive and remedial frameworks to ensure respect of human rights and environmental protections in areas designated for development under the law.
“The ICJ is encouraged by the fact that Thailand has adopted a stand-alone National Action Plan (NAP) on Business and Human Rights – the first country in Asia to do so. As part of the NAP, it has committed to reviewing and amending laws and regulations to ensure that they comply with human rights law and standards”, said Rawski.
“This report offers a set of concrete recommendations for law and policymakers to help them to fulfill this commitment as it pertains to the environmental and human rights consequences of SEZs, and the development of the EEC in particular,” he added.
The report was based on extensive legal research, as well as interviews with over 90 people, including individuals from affected communities in Chonburi, Chachong Sao, Rayong, Songkhla and Tak provinces, as well as human rights lawyers, academics and government officials at the provincial and central levels.
Key recommendations to the Government of Thailand
- Protect human rights by amending SEZ legal frameworks, EEC laws, laws governing land acquisition and environmental and labour protections, following meaningful public consultation in accordance with international standards, to ensure that:
- the government bodies responsible for developing and administering SEZs and the EEC be independent, and operate in a transparent and inclusive manner including by providing public participation in planning and decision-making processes;
- all persons have a minimum degree of security of tenure sufficient to protect them from forced eviction, harassment and other threats;
- standards be in place to protect the environment, and to mitigate the impact of environmental degradation on communities; and
- all workers enjoy equal rights protections based on the principles of non-discrimination and equality.
- Adopt an amended SEZ Act that contains provisions that are in compliance with Thailand’s international human rights obligations.
- Ensure that effective, prompt and accessible judicial and non-judicial remedies be provided to those affected by the implementation of SEZ and EEC policies; and
- Ensure that companies operating in SEZs and the EEC carry out business activities in line with the UN Guiding Principles on Business and Human Rights.
Download
The Human Rights Consequences of the Eastern Economic Corridor and Special Economic Zones in Thailand in English and Thai. (Updated in February 2021)
Story with additional background information in English and Thai.
Contact
Frederick Rawski, ICJ Asia Pacific Regional Director, e: frederick.rawski(a)icj.org
Further reading
Myanmar: amend Special Economic Zones Law to protect human rights – new ICJ report
Jul 31, 2020 | Advocacy, Open letters
The ICJ and the South African Human Rights Defenders Network (SAHRDN) have written to the United Nations Special Rapporteur on the Situation of Human Rights Defenders, the African Commission on Human and Peoples’ Rights Special Rapporteur on Human Rights Defenders, and the Chairperson of African Commission on Human and Peoples’ Rights.
They have detailed the continued intimidation and harassment of the residents of Happiness village by the South African National Defence Force (SANDF).
“We have written to the Special Rapporteurs because the SANDF is unrelenting in its abuse of the resident’s despite the best efforts of their legal representatives and repeated court orders,” said ICJ Legal Adviser in South Africa Tim Fish Hodgson.
“A community leader was placed under house arrest guarded by four soldiers for seven days. Another resident was subjected to a punishment by which was told to lie flat on the ground and ‘pray to his God’ for simply leaving his home. Others have been assaulted. The SANDF deliberately conducts military exercises near the residents’ homes late at night to scare and intimidate them. All this with utter disregard for the law and in direct violation of a number of court judgments and orders”, he added.
The residents, who were forcibly and violently evicted from Marievale military base beginning in 2017, have repeatedly been granted court orders by the High Court declaring such evictions unlawful and directing the SANDF to refrain from harassing, threatening and intimidating the residents and not to restrict their movement.
Despite this, and in the midst of the COVID-19 pandemic, further evictions and constant harassment and intimidation continues unabated and has intensified to a point that the residents describe the SANDF as having “laid siege” to their homes in Happiness Village which is adjacent to Marievale military base.
Soldiers now police checkpoints, preventing visitors from entering the area and even journalists have been prevented from entering Happiness Village. The residents’ legal representatives were only allowed to visit a single community representative under armed military guard.
As the letter reveals, the SANDF’s actions amount to violations of the residents’ right to adequate housing protection in terms of the South African Constitution, the African Charter on Human and People’s Rights and the International Covenant on Economic, Social and Cultural Rights.
The intimidation, harassment, humiliation and assault of the residents’ amount to violations of the residents’ rights to liberty and security of person and may also amount to cruel, inhumane and degrading treatment or punishment in violation of the South African Constitution and international human rights law.
They seem to be geared at making the resident’s lives intolerable in order to secure evictions “through the backdoor”, which is explicitly prohibited in South African law.
The residents, represented by Lawyers for Human Rights, will once again be in urgent court on July 31 seeking an interdict to prevent further harassment, intimidation and restrictions on their movement by the SANDF. The legal representatives of the SANDF have indicated that they intend to oppose their application.
The ICJ has therefore implored the Special Rapporteurs to:
1. Call on the SANDF, the Minister of Defence and Military Veterans and on the Ekurhuleni Municipality to desist from any further evictions, relocation, intimidation, harassment, humiliation, and assault of the Marievale community residents;
2. Call on the SANDF, the Minister of Defence and Military Veterans and the Ekurhuleni Municipality to immediately lift and ensure the non-recurrence of restrictions on the movement on Happiness Village residents;
3. Call on the President of South Africa, as the Commander in Chief of the SANDF, to take appropriate action to ensure that the human rights violations that the residents of Marievale have suffered at the hands of the SANDF on a continuous basis since 2017 be investigated, and that appropriate action be taken to ensure access to justice and effective remedies for the residents; and
4. Call on the Parliamentary Portfolio Committee on Defence and Military Veterans to ensure the accountability of the Minister of Defence and Military Veterans for the human rights violations to which the SANDF has subjected the residents on a continuous basis since 2017.
Read the full letter here.
SouthAfrica-SAHRDN-ICJ Letter to SRs on HRDs-Advocacy-open letters-2020-ENG
Contact:
Tim Fish Hodgson (ICJ Legal Adviser) t: +27828719905; e: timothy.hodgson(a)icj.org
