Aug 21, 2019 | News
The ICJ in collaboration with the Zimbabwe Anti-Corruption Commission (ZACC) and the National Prosecuting Authority (NPA), today launched a broad base anti-corruption awareness campaign in Harare.
The campaign was introduced by the President of Zimbabwe H.E. Cde Emmerson D. Mnangagwa and is expect to effectively run for 15 months.
It will harness different forms of media to spread awareness on the negative impact corruption has on the rule of law, human rights and development.
The anti-corruption awareness campaign is part of a broader longstanding rule of law initiative by the ICJ in collaboration with with stakeholders in the justice sector, to strengthen the rule of law for the protection and promotion of human rights for all, including women and persons from marginalized or disadvantaged groups.
Corruption undermines the rule of law by impeding access to justice through diversions of public resources for private gain.
As such the ICJ, through the support of the EU, is working towards increased transparency and integrity in the justice delivery system in order to increase access to justice for all.
“Zimbabwe has no option but to fight corruption if it is to be a just, peaceful and successful developmental state,” said Arnold Tsunga, ICJ’s Africa Regional Director.
“The reconstituted ZACC has demonstrated a strong desire to pursue its mandate with renewed commitment from other stakeholders in the justice delivery chain,” he added.
The campaign is not undertaken in isolation. It builds on other initiatives to combat corruption under this programme, which include the establishment of an anti-corruption court, training of personnel for the court and various research initiatives.
The campaign seeks to support the national efforts against corruption, and sensitize the public on the negative effects of corruption in society.
It will promote awareness on how to report corrupt practices, how to avoid corrupt practices and the impact of corruption on the public interest.
The campaign acknowledges that different sections of the population engage with media in varying manners. As such it utilises a wide array of approaches designed to build the optimism of the people of Zimbabwe to take an active role in efforts to combat corruption at every level of society.
The campaign launch was attended by justice sector actors, civil society representatives, business representatives and the diplomatic.
Contact:
Arnold Tsunga, Director of the Africa Regional Programme, International Commission of Jurists C: +263 77 728 3248, E: arnold.tsunga(a)icj.org
Aug 5, 2019 | News
The ICJ today raised concerns that the proposed Zambian Constitutional Amendment Bill 2019 may negatively impact the independence of the judiciary in Zambia.
The proposed amendments to provisions regarding disciplinary measures and processes against judges and the composition of the Supreme Court and Constitutional Court are particularly concerning, according to a statement by a group of organisations including the ICJ.
“The ICJ implores the President of Zambia and the Zambian legislature to ensure the alignment of all constitutional amendments with international human rights standards on the independence of the judiciary, the rule of law and the separation of powers,” said Arnold Tsunga, the ICJ’s Africa Director.
The joint statement calls upon the President of Zambia and the Zambian legislature to ensure that the proposed constitutional changes are in line with international human rights standards.
According to such standards, individual judges ‘may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law’. Examples include ‘incapacity or behaviour that renders them unfit to discharge their duties’ and ‘physical or mental incapacity that prevents them from undertaking their judicial duties.’
Moreover, disciplinary proceedings regarding judicial officers must be held by an institution independent of the executive and the legislature to secure the independence of the judiciary.
Article 143 (a) of the Zambia Constitution currently provides that ‘a judge shall be removed from office on the following grounds: (a) a mental or physical disability that makes the judge incapable of performing judicial functions; (b) incompetence; (c) gross misconduct; or (d) bankruptcy.’
However, the Amendment Bill worryingly replaces subsection (a) and allows for removal when a judicial officer is ‘legally disqualified from performing judicial functions.’
Furthermore, the proposed amendment does not set out the circumstances or infractions that could lead to the ‘legal disqualification’ leaving the provision open to abuse and in violation of the principle of legal certainty and the rule of law.
“The amendment introduces unnecessary obscurity and vagueness to the Constitution, which, in turn, increases the risk of judges being removed on politically motivated grounds and threatens the rule of law,” Tsunga added.
Another worrying aspect of the proposed amendment is the suggested changes to Article 144 of the Constitution transferring the authority to determine whether judicial officers are removed from the Judicial Complaints Commission to a Tribunal Appointed by the President.
The amendment allows for the possibility of a Tribunal staffed by members of the executive and the legislature, further heightening concerns about threats to judicial independence.
“It is vital that the processes and procedures for the removal of judicial officers in Zambia are constrained in terms of tightly defined constitutional provisions, overseen by independent decision makers without improper influence by the executive and the legislature,” said Tsunga.
The full statement is available here.
The statement is signed by:
Commonwealth Lawyers Association (CLA)
Commonwealth Magistrates’ and Judges’ Association (CMJA)
International Bar Association’s Human Rights Institute (IBAHRI)
International Commission of Jurists (ICJ)
Judges for Judges (J4J)
Lawyers’ Rights Watch Canada (LRWC)
Southern Africa Litigation Centre (SALC)
Aug 2, 2019
The ICJ has joined with some 40 other international, African and Burundian NGOs to call on States to extend the mandate of the UN Commission of Inquiry on Burundi, at the September session of the Human Rights Council.
The joint open letter to all delegations ahead of the upcoming 42nd ordinary session of the UN Human Rights Council, highlights the important work and impact of the Commission of Inquiry (CoI) to date, in a context of gross, widespread and systematic human rights violations, which may furthermore escale ahead of elections in 2020.
The NGOs call on Council Members and Observers to, at a minimum, support the extension of the mandate of the CoI on Burundi for a further year, until September 2020, in accordance with the Council’s responsibility to address situations of human rights violations, including gross and systematic violations, to advance accountability, to prevent further human rights violations and abuses, and to follow up on its actions and recommendations.
The Council should also request the CoI to prepare a report with a specific focus on elections and risk factors of human rights violations and abuses and to present it during an enhanced interactive dialogue at the Council’s 43rd session in March 2020.
The letter can be downloaded in full, in PDF format, in English or French.
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
Jun 13, 2019 | News
The ICJ today applauded the 11 June judgment of the Botswana High Court striking down criminal law provisions criminalizing same-sex relations.
Rightly, the Court considered that, notwithstanding the fact that the provisions at issues on their face criminalized consensual anal penetration, irrespective of the gender of those involved, the law did in fact target and disproportionately affect same-sex relations.
The judgment follows shortly after the Kenyan High Court refused to invalidate an almost identical criminal provision in judgment handed down on 24 May.
“The Botswana High Court’s judgment reaffirms the universality of the rights to be free from discrimination, dignity, privacy and equality, and directly rebuts the often-made false claim that homosexuality is ‘un-African’,” said ICJ Africa Director Arnold Tsunga.
“The ICJ commends the Court, and encourages all African states to repeal archaic criminal provisions criminalizing same-sex sexual intercourse often introduced into their legal systems by colonial powers,” he added.
In a decision referencing international human rights law and standards, and citing a growing wave of global jurisprudence on the unconstitutionality of the criminalization of consensual same-sex relations, identity and expression, the Court concluded that sections 164(a); 164(c), 165 and 167 of the Botswana Penal Code violated the rights to dignity, liberty and equality of homosexual men.
Letsweletse Motshidiemang, a 24 year-old university student who identifies as homosexual, and is currently in a relationship with a man, brought the case before the Court. Advocacy organization “Lesbians, Gays and Bisexuals Of Botswana” (LEGABIBO) was admitted as amicus curiae, and supported Motshidiemang’s case.
Despite partial legislative recognition of the need to protect people’s rights, regardless of sexual orientation, and comments made by Botswana President Mokgweetsi Masisi late last year that, “there are also many people of same sex relationships in this country, who have been violated and have also suffered in silence for fear of being discriminated. Just like other citizens, they deserve to have their rights protected”, the Attorney General (AG) had opposed Motshidiemang’s challenge, describing the case as “cry babies”.
In a fitting rebuke of this position, the Court indicated that the AG had not produced a “scintilla or iota of justification” for its defense of the offending provisions and, instead relied on “bare assertion and/or speculations” about public morality.
Given the substantial evidence presented to the Court by the applicant and amicus curiae about the harmful effects of continued criminalization of same-sex relations, the Court observed that it “perpetuates stigma and shame against homosexuals and renders them recluse and outcasts”, finding that “there is no victim in consensual same sex intercourse inter se adults”.
Concluding that such discrimination against lesbian, gay, bisexual and transgender (LGBT) persons violates sexual autonomy and their “right to choose a sexual partner” the Court found that the provisions go “to the core of [homosexual persons’] worth as a human being[s] and “pollutes compassion” in Botswanan society.
“The judgment is a victory for LGBT persons in Botswana whose consistent advocacy ground firmly in human rights should be applauded. This judgment should catalyze further action from the Botswana authorities to ensure the full enjoyment of all human rights by LGBT persons in Botswana,” said Tsunga.
Contact:
Arnold Tsunga, ICJ Africa Director, t: +63 77 728 3249 ; e: arnold.tsunga(a)icj.org
Timothy Fish Hodgson, ICJ Legal Adviser, t: +27828719905 ; e: timothy.hodgson(a)icj.org
