Posts Tagged ‘independence of the judiciary’

Jestina Mukoko’s 150.000 $ triumph in Zimbabwe: gives hope to all torture victims

October 8, 2018

In a rare case of triumph over impunity, the Zimbabwean High Court, on 27 September 2018, ordered the state to pay $150 000 to Jestina Mungareva Mukoko, a pro-democracy campaigner and Director of Zimbabwe Peace Project (ZPP). In a Deed of Settlement endorsed by the High Court, the defendants have been ordered to pay $100.000 to Jestina in respect of her claims while a further $50.000 will be paid as a contribution towards her legal costs (before 31 October 2018).

This exceptional decision was welcomed by many NGOs, including the Zimbabwe Peace Project (ZPP) and Zimbabwe Lawyers for Human Rights (ZLHR).

My good friend and long-time Zimbabwean human rights defender Arnold Tsunga said the following: “I think it’s a very good resolution of the case. The damages are significant but the case was also quite serious including the torture meted out on Jestina that the damages seem to fit the case. In a way it’s a double benefit in that the abduction and torture resulted in criminal case against her collapsing and on top of that she gets paid. Hopefully the security sector have learnt a lesson. It is also good that the judiciary is getting stronger and confident to pronounce itself this way“. Especially the latter is an important outcome!

ackground Information (Jestina Mukoko Triumph: The Facts):
Jestina was abducted by some unidentified armed men from her home in Norton on 3 December 2008, and her whereabouts together with two ZPP employees Broderick Takawira and Pascal Gonzo, who were also abducted later in December 2008 remained unknown until December 24, 2008, when they first appeared before the Harare Magistrates Court, after weeks of being held incommunicado and being tortured. In court, Jestina and her colleagues and dozens of other pro-democracy campaigners were accused by government of plotting to topple Robert Mugabe’s administration through recruiting people to undergo military training in neighbouring Botswana. After her release from a torturous three months stay in prison, Mukoko with the assistance of her lawyer Beatrice Mtetwa, a member of ZLHR, took legal action against the state.

In September 2009, the Supreme Court granted a permanent stay of prosecution in favour of Jestina due to the violation of several of her fundamental rights by state security agents as she had been subjected to torture and inhuman and degrading treatment including simulated drowning, being locked in a freezer and being subjected to physical assaults as her tormentors tried to make her confess to plotting to overthrow the administration of Zimbabwe’s former leader Robert Mugabe.

In 2017, the High Court ruled that those who had illegally arrested her could be held liable in their own individual capacities and the case culminated in lengthy protracted negotiations that have led to this outcome. During this time, Jestina was called different names such as ‘regime change agent, reactionary and other unprintable words in a bid to delegitimise her legitimate human rights activism. She was portrayed as a criminal, a tag which remains today but this settlement in the court vindicates her and her work in defending human rights.

Jestina Mukoko herself added the following piece on the Significance of my case” (which I reproduce almost in full as it is such a good lessons learnt):

..The patrimonial settlement cannot atone for the trauma and suffering that I suffered and went through at the hands of the state security agents who were ruthless, merciless and very evil. It will not make for lost time as my liberty and all other human rights accorded to me by virtue of my being human was unjustifiably curtailed nor will it provide solace for my traumatised family – my mother, son, brothers, sisters in law, extended family, friends and other peace loving citizens.

However, it is a victory for the rule of law, constitutionalism and a mortal blow to impunity. The High Court’s decision is proof that the justice system is still able to prove the involvement of the state and its representatives in gross human rights violations, and bring them to account, with justice being done for the victims like myself.

It sets a landmark precedent and shows that the state actors can be held accountable for their illegal conduct. It also sends a message to the overzealous enforcers of orders and in this case very illegal orders to violate a plethora of my rights that they will be held responsible for their actions and this can even be in their personal capacity.

I hope my story will inspire many other victims. To some extent, justice has now been done and this case will stand as an example in the continuing fight against impunity for state crimes and excesses.

My resort to litigation and the subsequent victory in court sends a strong signal that state sponsored crimes cannot go unpunished.

It is also an encouragement to human rights defenders that the dangers of their work will not be in vain. I hope this case will embolden younger activists to pursue social justice in the comfort that they can rely on this case to hold the state or anyone accountable who may threaten their liberties. It is also a vindication of the advocacy work done by all human rights activists and those who have invested in promoting and protecting human rights that even though the fruits of this cumbersome and often arduous journey may come late , they eventually come. This is a victory for everyone who has been in the trenches with me and who has walked this risky journey of human rights work.

I hope that this victory will set an example, particularly to the Zimbabwean authorities, who must now prosecute the perpetrators of abductions and enforced disappearances which is a heinous crime.

The High Court’s decision sends a clear signal to the Zimbabwean authorities, who must do everything in their power to guarantee victims access to impartial justice and to put an end to the endemic impunity that is enjoyed by torturers and the perpetrators of serious human rights violations.

This settlement comes at a time when the Commission of Inquiry into Post Election Violence set by President Emmerson Mnangagwa has started its work to establish the facts around the circumstances that led to the death of six people on 1 August 2018 in Harare after members of the Zimbabwe Defence Forces opened fire against protesters. It must be established whether the force used by members of the Zimbabwe Defence Forces was proportionate to the threat posed by unarmed protesters. It must also be established whether in doing so they overstepped their mandate and therefore should be held liable or the state vicariously liable. This case must form the basis for national rejection of all forms of impunity and the same principles must be followed by the Commission of Inquiry into Post Election Violence.

In conclusion, I, Jestina through the Zimbabwe Peace Project, which plays a critical role in documenting human rights abuses, will continue to join hands with other civil society organisations such as ZLHR to champion human rights in the post-Robert Mugabe era without fear or favour. The journey to full implementation of the Constitution and compliance with the supreme law of the land continues.

https://www.zoomzimbabwe.com/2018/10/05/high-court-awards-jestina-mukoko-150000-in-damages-for-state-torture/

See also: https://humanrightsdefenders.blog/2015/03/08/zimbabwe-celebrates-by-arresting-2-women-per-day-over-the-last-two-years/

Polish Ombudsman Adam Bodnar winner of 2018 RAFTO award!

September 27, 2018

Polish lawyer Adam Bodnar – Defender of minority rights and judicial independence in Poland (Photo credit: Kluczek/RPO.GOV.PL )

The Rafto Prize 2018 is awarded to the Polish lawyer Adam Bodnar and the institution he leads, the Office of the Commissioner for Human Rights, for the important stance taken in the face of current political developments in Poland.  A key function of the Ombudsman, or the Commissioner for Human Rights, is to ensure that the public authorities secure and respect the human rights of all members of Polish society. As lawyer and Ombudsman, Adam Bodnar (41) has highlighted the crucial role played by independent Ombudsman institutions in safeguarding human rights in Poland – and other countries – where such actors and institutions  increasingly have come under attack.

Since Law and Justice (PiS) won the Polish election in October 2015, the party has used its majority in the National Parliament to adopt legislation that reduces the independence of the courts and centralizes state powers. New laws grant the government control of state media and place severe limits on freedom of information and political lobbying. The rights of vulnerable groups have been repeatedly ignored.  “The award is not just an award to my work and the institution, but mostly a support from your community given to the Polish civil society, academia, judges and lawyers fighting for rule of law, juridical independence, pluralism and protection of minorities in Poland,” said Adam Bodnar.

The Rafto Prize for 2018 to Adam Bodnar and the Ombudsman for Human Rights highlights the rolling back of democracy and human rights protections in Poland. The conflict over the Polish Constitutional Tribunal and the Supreme Court are important internationally because they are symbolic of an alarming tendency where the independence of courts increasingly is under political pressure. It is crucial that the international community, the EU, Norway and other European countries take a clear stance against human rights violations and attacks on the rule of law and minority rights that take place in our own region. Adam Bodnar, being the civil servant, cannot accept the prize money awarded along with the Rafto Prize. The Rafto Foundation will identify and donate the prize money to civil society working for human rights in Poland.

For more on this and other awards: http://trueheroesfilms.org/thedigest/awards/rafto-prize

https://www.rafto.no/news/the-2018-rafto-prize-to-ombudsman-adam-bodnar

Bahrain: human rights protected but on paper only

March 12, 2018

“The use of the judiciary in Bahrain to target human rights defenders and other activists” is a side event organised by CIVICUS and FIDH in co-operation with Americans for Human Rights & Democracy in Bahrain (ADHRB), the Gulf Centre for Human Rights (GCHR) and co-sponsored by ISHR.

It will take place on 13 March 2018 at 11:00 to 12:30 at Room XXIV. The event will address the politicisation of the judiciary to criminalise human rights defenders.

The context in which this event takes place should be well-known by now [see e.g. https://humanrightsdefenders.blog/tag/bahrain/], but some recent events can be added:

On 21 February human rights defender Nabeel Rajab, BCHR President and FIDH Deputy Secretary General, was sentenced to 5 years in prison under trumped-up charges in relation to tweets denouncing the torture against detainees at Jaw prison and exposing the killing of civilians in Yemen by the Saudi-led coalition. “This surrealistic verdict”, writes IFEX,  “after a trial that was by itself a mockery of justice, illustrates once again the current crackdown on any dissenting voice in Bahrain, where scores of critics are currently jailed’.

Also the Observatory (FIDH-OMCT) and BCHR reiterate their call to the Bahraini authorities to immediately release him, as well as all detained human rights defenders.

Perhaps the most damning information comes from the Bahraini Government itself (8 March 2018) when it responded to the statement of the UN High Commissioner for Human Rights  which had been ‘negative’ in his  written review on the annual report on Bahrain. Dr. Yusuf Abdulkarim Bucheeri, Permanent Representative to the United Nations Office in Geneva, said in a statement that the review contained inaccurate information such as harassment of human rights defenders and other deleterious comments on the recent legal actions taken by Bahrain. ..They deliberately and unfairly side with malicious elements who have suspicious political agendas and sectarian tendencies and who want to inflict harm on the Kingdom of Bahrain and demean its achievements in the field of human rights, he said. “This is crystal clear from their support for the discourse of hatred and internal violence groups and for this reason, the Kingdom of Bahrain totally rejects the content of this statement with all the wrong and unacceptable descriptions it has given to the state.
Bucheeri said that Bahrain’s constitution stipulates the right to freedom of opinion and expression in an unquestionable manner and in a way that guarantees everyone’s right to express their opinion and disseminate it by word, writing or otherwise, but within the legal framework and without inciting division or sectarianism or undermining national security.
……
He called on the Office of the High Commissioner for Human Rights to make concerted effort to understand the reality of human rights and the great challenges facing the Kingdom of Bahrain which faces terrorist acts aimed to destabilize its security and stability.
The kingdom, he explained, confronts a phenomenon of violent extremism and it is the duty of the Office of the High Commissioner to do its best to double check the credibility of the information it obtained and to seek such information only from neutral, objective and non-politicized sources…

https://www.ifex.org/bahrain/2018/02/22/nabeel-rajab-sentenced/

https://www.fidh.org/en/issues/human-rights-defenders/bahrain-fears-for-nabeel-rajab-s-life-inside-his-prison

https://www.ifex.org/middle_east_north_africa/2018/03/05/revolutionary-anniversaries/

http://www.bna.bh/portal/en/news/829935

https://www.frontlinedefenders.org/en/case/case-history-nabeel-rajab

Turkey angry after PACE Havel prize is awarded to jailed judge

October 18, 2017

Turkish judge Murat Arslan, who was head of the Association for the Union of Judges and Prosecutors (YARSAV).

The Vaclav Havel Human Rights Prize, named after the dissident playwright who later became Czech president, is given by the Parliamentary Assembly of the Council of Europe (PACE). On Monday 16 October the prize awarded to the Turkish judge Murat Arslan, who was head of the Association for the Union of Judges and Prosecutors (YARSAV). Arslan was arrested in October 2016 on suspicion of links to Gulen who Ankara blames for the failed coup aimed at ousting President Recep Tayyip Erdogan.

The PACE described Arslan as a “staunch supporter of the independence of the judiciary.” But the Turkish foreign ministry said in a statement that it “is wrong and unacceptable to award the prize … to a person who is a member of Feto terrorist organisation“. “While the judicial process is underway, presenting a terrorism suspect as a human rights defender is a betrayal of the ideals of democracy and human rights,” it said. For more on the award see: http://trueheroesfilms.org/thedigest/awards/vaclav-havel-prize-for-human-rights-pace

In his absence, the prize was received by a representative of the European Magistrates for Democracy and Freedom group (Medel) which had nominated him. In a message from jail, Arslan told the ceremony that Turkey had “learnt nothing” from Europe’s 20th century history but “we will not let ourselves be closed up in a wall of fear”. [https://humanrightsdefenders.blog/2017/08/31/finalists-for-pace-vaclav-havel-human-rights-prize-announced/]

Turkey has been a member of the Council of Europe since 1950 but relations have frayed after the PACE in April voted to reopen political monitoring of the country.  see also: https://humanrightsdefenders.blog/2017/07/11/council-of-europe-losing-patience-with-turkey-after-arrest-of-human-rights-defenders/

http://aa.com.tr/en/politics/turkish-mp-slams-europe-body-for-rewarding-feto-suspect/939149

Principles on the Role of Judges and Lawyers in relation to Refugees and Migrants

June 11, 2017

An interesting and timely document that deserves more attention than it is getting:

The International Commission of Jurists (ICJ) has published a set of Principles on the Role of Judges and Lawyers in relation to Refugees and Migrants.

The Principles were developed by the ICJ on the basis of consultations with senior judges, lawyers, and legal scholars working in the field of international refugee and migration law (including at the 2016 Geneva Forum of Judges & Lawyers), as well consultations with States and other stakeholders on a draft version during the March 2017 Human Rights Council session, and other feedback.

The Principles seek to help judges and lawyers, as well as legislators and other government officials, better secure human rights and the rule of law in the context of large movements of refugees and migrants. They are intended to complement existing relevant legal and other international instruments, including the New York Declaration, as well as the Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations within large and/or mixed movements being developed by the OHCHR.

The Principles address the role of judges and lawyers in relation to, among other aspects:

  • determinations of entitlement to international protection;
  • deprivation of liberty;
  • removals;
  • effective remedy and access to justice;
  • independence, impartiality, and equality before the law;
  • conflicts between national and international law.

The Principles, together with commentary, can be downloaded in PDF format by clicking here: ICJ Refugee Migrant Principles 2017.

The ICJ formally launched the published version of the Principles at a side event to the June 2017 session of the Human Rights Council (click here for details), where their importance and utility were recognised by the UN Special Rapporteur on the human rights of migrants, as well as representatives of UNHCR and the OHCHR. The ICJ had earlier released the final text in connection with the Thematic Session on “Human rights of all migrants” for the UN General Assembly Preparatory Process for the Global Compact for Safe, Orderly and Regular Migration to be held in Geneva 8-9 May 2017, where in an oral statementthe ICJ was able to highlight the potential utility of the Principles in the development of the Compact.

More information about the process of development of the Principles, including the list of participants to the 2016 Geneva Forum, is available here. The consultations, preparation and publication of the Principles was made possible with the financial support of the Genève Internationale office of the Republic and Canton of Geneva. For further information, please contact ICJ Senior Legal Adviser Matt Pollard, matt.pollard(a)icj.org

Source: Principles on the Role of Judges and Lawyers in relation to Refugees and Migrants | ICJ

Independence of the Legal Profession subject of side event on 16 March 2017

March 9, 2017

Lawyers for Lawyers and The Law Society of England & Wales organize a UN side event on the “The Independence of the Legal Profession” on Thursday 16 March 2017, 3 – 5 pm in Room XXIII of the Palais des Nations, Geneva.

Keynote speaker: Diego García-Sayán, Special Rapporteur on the Independence of Judges and Lawyers

 

Panelists:

·        Khalid Baghirov, lawyer (Azerbaijan)

·        Ayse Bingol Demir, lawyer (Turkey) [https://humanrightsdefenders.blog/2015/01/23/persecution-of-lawyers-and-journalists-in-turkey-side-event-in-geneva-on-27-january/]

·         Michel Togué, lawyer (Cameroon) [https://humanrightsdefenders.blog/2013/02/13/death-threats-against-human-rights-defenders-alice-nkom-and-michel-togue-in-cameroon/]

The panelists will share their experiences, obstacles faced by members of  the legal profession in their respective countries, and possible ways to improve the safety of lawyers who work in challenging contexts.

The event is co-sponsored by the Permanent Missions of the Kingdom of the Netherlands, Australia and Paraguay as well as the following NGOs: – Lawyers’ Rights Watch Canada (LRWC),- Union Internationale des Avocats (UIA), – Southern African Litigation Centre (SALC), – International Commission of Jurists (ICJ), – Avocats Sans Frontières Suisse (ASF Switzerland), – International Bar Association’s Human Rights Institute (IBAHRI), – Judges for Judges (J4J), – Human Rights House Foundation and- Peace Brigades International (PBI, UK)

To register (for those without passes, until 12 March 2017): S.deGraaf@lawyersforlawyers.nl

For enquiriesRoberta.Taveri@lawsociety.org.uk

 

 

 

 

 

Parallel Event on Asian Justice Institutions and HRDs on 2 March 2017 in Geneva

February 27, 2017

Parallel event on Asian Justice Institutions and Human Rights Defenders to be held on 2 March 2017 2:00 PM in Room: XXIII, Palais de Nations, Geneva, SwitzerlandModerator/Chair: Mr. Bijo Francis, Executive Director, Asian Legal Resource Centre

Speakers in the Panel:
1. Mr. Basil Fernando, Director, Policy and Programme, Asian Human Rights Commission
2. Mr. Mandeep Tiwana, Head of Policy and Research, CIVICUS
3. Mr. Sharan Srinivas, Director, Research and Advocacy, Right Livelihood Award Foundation
contact: Md. Ashrafuzzaman, Main Representative, Asian Legal Resource Centre, Cell: +41 (0) 766 38 26 59, Email: zaman@ahrc.asia .
Background: Human rights defenders across the world today have to overcome restrictive and challenging circumstances to undertake their mandate. These challenges could be broadly classified into three categories. They are: (i) restrictions imposed through statutes or regulatory processes; (ii) false accusations and fabricated cases registered by the state against HRDs and their organisations; and (iii) threats presented against HRDs by non-state actors, including fundamentalist religious forces.

Of the above three categories, the first and second could be overcome to a large degree at the national level, had the criminal justice institutions in Asian states been independent, and are able to decide upon cases that these institutions are called upon to engage upon.

Asian states today often enact legislations to restrict the operations of HRDs and the organisations they represent. China for instance, has legislations that directly impede the operation of HRDs . Indeed, the law does not prohibit the operation of ‘foreign’ NGOs, but stipulates obtaining permissions from different state agencies before commencing work, and has cast a broad net that prohibits organisations from engaging in activities otherwise considered to be human rights work, including: advocacy, legal assistance, labour, religion, and ethnic minority affairs. State agencies are given unbridled powers to interpret an activity as one under any of these prohibited criteria. The situation of domestic NGOs, including lawyers is worse in China even before the enactment of the new ‘foreign NGO’ law. The government has imposed heavy scrutiny and restrictions upon domestic NGOs, and often detain HRDs and lawyers on criminal charges.

China however is not an exception in the Asian region. Thailand for instance has legislations in place even prior to the military coup that restricts HRDs and civil society work. Thai state has spared no resources to oppress HRDs, often using the law against defamation that has penal provisions, interpreted at the will of the state by the country’s courts. After the coup, the National Peace and Reconciliation Council has promulgated ordinances that literally restrict all forms of freedom. HRDs who campaigned against the military’s version of the current Thai constitution, and the namesake referendum that was organised by the military, were arrested and imprisoned.

Bangladesh, against all its obligations under domestic and international law detains HRDs, forces closure of civil society organisations by repeatedly raiding their offices and seizing office equipment and documents, and does not allow these organisations to operate their bank accounts. India too engages in similar tactics against civil society organisations that openly criticise the government and its policies. Similar circumstances exist in most other states in the region, including Singapore, Myanmar, Indonesia, Sri Lanka and the Philippines.

In Pakistan, the state is engaged in a shadow war against the civil society using right-wing religious forces, including right-wing media, that has systematically targeted HRDs who have advocated for democratic governance, and in particular urged the country\’s military from illegally and arbitrarily intervening in civilian administration.

In all the above circumstances, what is witnessed is the increasing role played by the entire criminal justice apparatus in Asian states that collide with the state in repressing HRDs and civil society work. Asian states liberally use their agencies like the police, prosecutor\’s office and other specialised agencies to obstruct HRDs in their work, often alleging false criminal charges against organisations or the staff members of these organisations. On the other hand, Asian judiciary has repeatedly failed to intervene in these cases despite the civil society reaching out to the courts for justice.

In instances where restrictive legislations are enacted or executive orders issued, restricting civil society freedom, the judiciary has the responsibility to intervene, and if necessary, annul the law or the executive order holding it as one against constitutional rights and the state\’s obligation under international human rights law. Instead, the Asian judiciary often support state actions. Instances where cases are adjourned without a decision being made are common.

Improving Asia’s human rights standards is not possible without radical reforms brought into the region’s justice delivery framework, particularly of the criminal justice procedures. The absence of independence and professionalism of Asia’s justice architecture is the cornerstone upon which impunity is built in the region. Asian states are aware of this and has consciously kept their justice institutions under direct control. Today Asian HRDs and the entire civil society in the region suffers due to this. Effective judicial intervention in instances where the state exceeds its mandate and stifle civil society work is an exception than a norm.

The side event organised by the Asian Legal Resource Centre, along with The Right Livelihood Award Foundation is an attempt to expose the dubious role played by Asia’s justice institutions in stifling civil society work in the region. The event is also an attempt to raise awareness about this scenario in the global human rights community and to seek support to address this problem.

www.humanrights.asia.

 

Alarming criminalisation of human rights defenders in Latin America

February 27, 2016

The criminalization of human rights defenders in the context of the extraction of natural resources and megaprojects is becoming a very worrisome phenomenon in Latin America, denounces the Observatory in a report published today in Mexico. Entitled “The criminalization of human rights defenders in the context of industrial projects: a regional phenomenon in Latin America”, this document points to the role of businesses, civil servants, public prosecutors, judges, and the State. The report issued by OMCT and FIDH (in the context of their Observatory for Human Rights Defenders) on 25 February 2016 describes the specific cases of human rights defenders criminalized in eight Latin American countries (Brazil, Colombia, Ecuador, Guatemala, Honduras, Mexico, Nicaragua and Peru).

 

The report especially stresses two core issues common to all the countries studied: Read the rest of this entry »

Human Rights Lawyers Disqualified to run for Iran’s Bar Association

February 11, 2016

Not the most egregious of violations but showing how deep the ruling powers’ reach in Iran is: more than two dozen prominent lawyers, including well-known human rights defenders, have been disqualified (again) from running in next month’s election for the Iranian Bar Association’s board of directors. Judge Hosseinali Nayeri, the head of the Supreme Disciplinary Court for Judges, issued a statement on 2 February  2016 rejecting 25 of the 141 candidacy applications, according to Kaleme, an opposition website.

The disqualified include human rights lawyers Farideh Gheirat, Mohammad Saleh Nikbakht, Abdolsamad Khorramshahi, Ramazan Haji Mashhadi, and former Tehran University law professor, Ghasem Sholeh Sadi. The bar association has only published the names of the approved candidates on its website.

Sholeh Sadi, told the NGO ‘International Campaign for Human Rights in Iran’ that the bar association should operate as an independent body and elections for its board of directors should be conducted without the interference of the judicial system. “Governments want to limit the lawyers’ activities and try to control them,” said the former Member of Parliament who has served time as a political prisoner in Iran.

The independence of lawyers as well as the Iranian Bar Association have been seriously undermined since the passage of a law in 1997 that imposed several limits and controls on the process for testing and licensing new lawyers. In February 2014, some 200 lawyers wrote an open letter to President Hassan Rouhani expressing concern about the Judiciary’s attempts to curb their autonomy. They accused the Judiciary of trying to destroy the independence of the legal profession “established by Prime Minister Mohammad Mossadegh more than 70 years ago.” The Head of the Iranian Judiciary, Sadegh Larijani, denied the charges, claiming that the Judiciary’s supervision over lawyers would not curtail their independence.

For older posts on Iran: https://thoolen.wordpress.com/tag/iran/

Source: Prominent Lawyers Disqualified from Iran’s Bar Association Election