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.
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
Сегодня Международная комиссия юристов (МКЮ), Региональное отделение Верховного комиссара ООН по правам человека (УВКПЧ) для Центральной Азии и Высшая школа судей Республики Узбекистан (ВШС) организуют национальный тренинг на тему «Международные стандарты в области экономических, социальных и культурных прав (ЭСК)». Этот двухдневный онлайн-тренинг является вторым из серии тренингов по ЭСК правам, включающие право на здравоохранение, образование, жилье, защиту прав детей и право на труд.
Целью данного онлайн-тренинга является укрепление потенциала судей, адвокатов, прокуроров, ученых-юристов и других представителей гражданского общества в области международных стандартов по ЭСК правам. Тренеры поделятся передовым опытом в области соблюдения государствами своих международных обязательств, в том числе посредством судебной практики, связанной с обеспечением доступа к правосудию в защите ЭСК прав. Онлайн-тренинги создают возможность конструктивного взаимодействия сотрудников судебных органов и других практикующих юристов, и представителей гражданского общества.
Каждый тренинг состоит из четырех модулей: (1) введение в международное право об ЭСК правах; (2) международные обязательства, касающиеся доступа к правосудию и средствам защиты ЭСК прав в национальных судах; сравнительные примеры положительной практики; (3) ЭСК права детей и (4) ЭСК права женщин. В тренинге примут участие офис Специального докладчика ООН по вопросам независимости судей и адвокатов и представители Комитета ООН по ликвидации дискриминации в отношении женщин и Комитета ООН по правам ребенка.
«Никто не мог представить себе, с какими проблемами мир столкнется всего через несколько месяцев после моего визита в Узбекистан. Мы являемся свидетелями и живем с этой беспрецедентной проблемой для отдельных людей, обществ и государств в ответ на кризис на глобальном и национальном уровне, чтобы защитить право на жизнь и здоровье, а также защитить людей от воздействия запретов и ограничений. В основе этих вызовов лежат экономические, социальные и культурные права», – сказал Диего Гарсиа-Саян, Специальный докладчик ООН по вопросам независимости судей и адвокатов, в своем видеообращении к участникам тренинга.
Франсуа Бежо, глава отдела сотрудничества Представительства Европейского Союза в Республике Узбекистан, отметил: «Пандемия коронавируса COVID-19 показала актуальность и важность экономических, социальных и культурных прав, которые должны быть обеспечены государствами, даже в чрезвычайных ситуациях. Принимая на себя международные обязательства, Узбекистан обязан уважать, защищать и соблюдать права человека, включая во время чрезвычайного положения, и обеспечивать доступ к правосудию и средствам правовой защиты».
Контакты:
Дилфуза Куролова, Консультант Международной комиссии юристов по правовым вопросам (МКЮ), dilfuza.kurolova@icj.org
Гульжахон Аманова, Координатор национальных программ Региональное отделение УВКПЧ ООН для ЦА, gamanova@ohchr.org
Уткир Халиков, Глава международного отдела Высшая школа судей при Высшем судейском совете Республики Узбекистан, inter.dep.ssj@mail.ru
Today, the ICJ, the Regional office of the UN High Commissioner for Human Rights (OHCHR) for Central Asia and the Supreme School of Judges of the Republic of Uzbekistan (SSJ) are beginning a national training on “International law on economic, social and cultural (ESC) rights.”
This two-day online-training is the second of a series of trainings on ESC rights, including, the right to health, education, housing, child protection and rights in the workplace.
The online-training aims to build the capacity of judges, lawyers, prosecutors, legal academics and other representatives of civil society to apply international law and standards on ESC rights. Trainers will share best practices on implementation by States of their international obligations, including through judicial practice, and in ensuring access to justice for ESC rights. The online-training will also allow for exchanges between members of the judiciary, other legal practitioners, and members of civil society.
The training will be based on four modules: (1) introduction to international law on ESC rights; (2) international obligations concerning access to justice and effective remedies for ESC rights in national courts and comparative examples of good practices; (3) children`s ESC rights and (4) women`s ESC rights. The office of the UN Special Rapporteur on independence of judges and lawyers and representatives of the UN Committee on the Elimination of Discrimination against Women will participate in the training.
“Nobody could imagine the challenges the world will face only in few months after my visit to Uzbekistan. We are witnessing and living this unprecedently challenge for individuals, societies and states to response to crisis at global and national level to protect right to life and health, and to protect individuals from impact of lockdowns and restrictions. Economic, social and cultural rights are the heart of these challenges,” said Diego Garcia-Sayan, the UN Special Rapporteur on independence of judges and lawyers in his video-address to the participants of the training.
Francois Begeot, Head of Cooperation of the Delegation of the European Union to the Republic of Uzbekistan pointed out, “COVID-19 pandemic showed the urgency and importance of economic, social and cultural rights that have to be ensured by the states, even in the emergency situations. Taking international obligations, Uzbekistan has to respect, protect and fulfil human rights including during the state of emergency and ensure access to justice and legal remedies.”
Ms. Dilfuza Kurolova, Legal Consultant, ICJ Europe and Central Asia Programme, e: dilfuza.kurolova@icj.org
Ms. Guljakhon Amanova, National Program Officer, Uzbekistan, Regional Office of the UN High Commissioner for Human Rights (OHCHR), e:gamanova@ohchr.org
Mr. Utkir Khalikov, Head of the international department The Supreme School of Judges under the Supreme Judicial council of the Republic of Uzbekistan for Central Asia, e: inter.dep.ssj@mail.ru
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
The ICJ and Cordaid are convening a webinar series to foster dialogue among women human rights defenders and religious and customary justice actors.
This public online event takes place 20 & 21 October 2020 11:00-13:30 (CEST) / 16h00 – 18h30 GMT+7
Women’s empowerment in every aspect of their lives is reliant upon ensuring that systems of law and justice work for women. Over the years, many countries have seen an expansion of women’s legal entitlements and enhancement of their right to access justice; however, in many contexts, there is also a growing trend of invoking religion and custom to violate women’s human rights. It is in these contexts where laws and policies exist that expressly discriminate against women, posing a continuing serious challenge to women’s ability to access justice.
In response, Cordaid and the ICJ will convene a webinar series to foster dialogue among women human rights defenders (WHRDs) and religious and customary justice actors.
The focus of the exchange will be on ensuring the protection of women’s human rights and access to justice in contexts where religious and customary laws are prevalent, within a framework of rule of law and international human rights standards. Diverse WHRDs and religious and customary justice actors from Asia, Africa, and the Middle East and North Africa will come together in two consecutive sessions:
Webinar 1 (Oct 20): Intersections between women’s human rights and custom and religion
Webinar 2 (Oct 21): Best practices, interventions, and obligations under international human rights law to ensure access to justice in cultural and religious contexts
Both sessions will be held on Zoom with simultaneous translation in Bahasa, Dari, English and French.
During the first webinar, the discussion will be focused on responding to the questions below:
How do custom and religion shape the ability of women to access justice?
Do pathways to justice based in custom and religion promote women’s human rights?
Do you perceive a clash between women’s human rights and pathways to justice based on custom and religion? If so, how?
Are there religious and cultural practices, which have an impact of exacerbating inequalities between men and women, and negatively affect women’s ability to defend their human rights?
How have women created space within customary and religious law to advocate for women’s human rights?
During the second webinar, the discussion will be focused on responding to the questions below:
What are the best practices and interventions, which can be adopted by States, international organisations and civil society to support positive impacts of custom and religion on women’s access to justice?
What practical measures can be adopted by States, international organisations and civil society to eliminate practices, which exacerbate women’s inequality and are barriers to pathways to justice?
What are the obligations of these actors when customary and religious law discriminate against women and prevents them from being able to defend their rights?
How have women successfully created space for advocacy within customary and religious contexts?
Documents:
Cordaid Publication: Diverse Pathways to Justice for All: Supporting Everyday Justice Providers to Achieve SDG16.3
ICJ Publication: Indigenous and other Traditional or Customary Justice Systems – Selected International Sources
IDLO report: Navigating Complex Pathways to Justice: Women and Customary and Informal Justice System
ICJ Publication: Access to Justice Challenges Faced by Victims and Survivors of Sexual and Gender-Based violence in Eswatini
Human Rights Council: Report of the Special Rapporteur on freedom of Religion or Belief
Report of the 2017 Geneva Forum on traditional and customary justice systems
Report of the 2018 Geneva Forum on indigenous and other traditional or customary justice systems in Asia
Report of the 2020 Geneva Forum on indigenous and other traditional or customary justice systems in Africa
2019 Report of the UN Special Rapporteur on the rights of indigenous peoples, on indigenous justice
Obstacles to Women’s and Girls’ Access to Justice for Gender-based Violence in Morocco (June 2019), in English and in Arabic
Gender-based Violence in Lebanon: Inadequate Framework, Ineffective Remedies (July 2019), in English and in Arabic
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