Posts Tagged ‘rule of law’

Human Rights Defender Linda Kasonde creates new NGO in Zambia

September 9, 2019

lets Linda Kasondeexplain her Chapter One Foundation. She says the formation has been born from the growing threat on human rights, constitutionalism and the rule of law in Zambia. Chapter One Foundation is named after Chapter One of the Laws of Zambia which contains the Constitution.

Kasonde who is executive director of the foundation noted that Increased inequality, growing populism and weakening of public institutions and public accountability were affecting the country’s ability to deliver on the sustainable development goals. “Human rights, the people that defend human rights, constitutionalism and the rule of law are facing a growing threat the world over and Zambia is no exception. Increased inequality, growing populism and weakening of public institutions and public accountability is affecting our ability to deliver on the sustainable development goals that Zambia has signed up to. The mere existence of public institutions is not enough to ensure the promotion and protection of human rights; these public institutions must also be guided by certain principles that ensure the institutions truly function for the benefit of society,” she stated.

Chapter One Foundation is financially supported by the Swedish Embassy, the National Endowment for Democracy, ActionAid Zambia and Caritas Zambia who all recognise the growing need to defend the civic space in Zambia. It is these principles that guide the work of Chapter One Foundation, our goal is to see a Zambia where citizens are freely and actively participating in the governance of Zambia, and where “we the people” take our rightful place as the authors of our own destiny. To achieve this, we recognize that we have to put the individual at the heart of our work, that is why human rights are at the core of what we do.”

See also: https://humanrightsdefenders.blog/2018/10/09/profile-of-human-rights-defenders-godfrey-malembeka-zambia/

Interview with Kenyan human rights defender Okiya Omtatah

September 3, 2019

The Kenyan newspaper the Daily Nation of 1 September 2019 carries a long profile of the human rights defender Okiya Omtatah. See also: https://humanrightsdefenders.blog/2018/12/03/human-rights-defenders-in-kenya-honored-with-national-awards/

Okiya Omtatah

Activist Okiya Omtatah at Milimani Law Courts on September 14, 2018. PHOTO | FILE | NATION MEDIA GROUP

1. The many petitions you have presented in court on behalf of Kenyans and the fact that you have succeeded in many of them points to a void in our public life as ordinary citizens created by the government through its many agencies. Sir, who is sleeping on the job that has prompted you to step in? How can we hold these public servants or institutions responsible as taxpayers for sustainable quality service delivery? Komen Moris, Eldoret

My activism is anchored on the Constitution of Kenya, 2010. My overriding objective is to the immense power of the Constitution to have the Judiciary entrench constitutionalism and the rule of law in the conduct of public affairs.

Hence, all the petitions I have filed concern public law, and they fall in three broad categories: motions challenging decisions of law-making institutions where I contest the constitutionality of statutes by Parliament or by county assemblies, and both the constitutionality and legality of subsidiary legislation; motions contesting the constitutional and legal validity of policy decisions and other administrative actions of the executive at both national and county levels, and motions seeking to protect public property from thieving public officials and private individuals.

From my experience, the struggle is against contemptuous disregard of the constitutionally prescribed limits and powers of government, and affirmation that Kenyans are not subjects but sovereign citizens with their rights and fundamental freedoms enshrined in the Bill of Rights. From the above, it follows that the solution to our problems is to uphold the Constitution. However, it is clear our political leadership has failed in its duty to whip us as a nation into fully implementing the Constitution so as to realise its great promise.

2. Not long ago you called on Kenyans to contribute towards instituting a suit against all the MPs over house allowances they had awarded themselves. How did this initiative go and how much were you able to raise? Githuku Mungai

The initiative was not for instituting the case but to pay for the costs of serving the petition on the MPs through full page adverts published in the Daily Nation and Standard newspapers as ordered by the High Court. I required at least a million shillings but only raised some Sh130,000.

3. Over the course of your public life, you have largely been plastered with two labels: a defender of public interest by many and a rebel to a few. This can be attributed to the many cases you have argued out in the corridors of justice, among them bank capping rates, judges retirement age, most recently the CBA-NIC tax waiver. These cases largely touch on the crucial interests of the ordinary citizen. I can’t help but ask, what is the philosophy behind what you do? Do you feel intimidated or shaken by the weight of cases you take on considering the fact that in many cases you take them on your own? Kagwera Raphael, Kisii

The philosophy behind what I do is the Gospel of Christ, who preached about God’s love and divine mercy, and continues to reveal that the Kingdom of God is among us and therefore we must do right. At creation time, God gave Adam and Eve the power over all that he had created, but He did not give them the power over themselves; He gave them the law.

And when they broke that law they lost the Garden of Eden. Hence, the rule of men is doomed since it is anathema to the will of God. Only the rule of law works. Hence, humanity cannot rule itself and prosper except by the laws anchored on promoting the rights and fundamental freedoms of all people – and that includes obeying the Constitution of Kenya, which largely mirrors the Gospel of Christ. I don’t feel threatened or intimidated by the cases I take on since I take them up as part of my apostolate. And for as long as God wants to use me to call upon all Kenyans to obey the law, I will be available to do so.

4. Having had a peaceful, respectful, issue-based and effective campaign for the Busia senatorial race during the 2017 elections, one which didn’t turn out as most of us had expected, what is your objective opinion on Kenyan politics and campaigns? Kagwera Raphael, Kisii

My Busia senatorial race was a very rewarding experience for me. Though I vied on a Ford-Kenya ticket in an ODM stronghold and, literally, I had no money to match what the incumbent unleashed, I chose the route of civic and political education to agitate for resource-based leadership and it worked very well. It was a neck and neck race where I got more than 100,000 votes, and the difference between me and the Senator wasn’t much. But even though we can’t cap the amounts of money candidates spend on campaigns, the amounts and their sources must be disclosed to law enforcement. That way, it will at least reduce the distortion illicit money has on the democratic process, especially on poverty-stricken populations scavenging for basics. We must also eradicate mass poverty at the grassroots.

5. Your nature of work in the areas of human rights demands that you really need a good and reliable sponsorship so to speak, or stable source of income from where you can get resources to mount the kind of legal challenges you undertake. What is the source of your income? What is your reaction to allegations that you are often paid to institute the cases you do? Francis Njuguna, Kibichoi

First of all I don’t need a lot of money because I don’t hire lawyers to research, draft and prosecute my cases. I do so myself. Second, I lead a very simple lifestyle which is basically a source of income through the savings I make. I have seen people who earn much more than I do lead very miserable lives due to reckless lifestyles. As for allegations, they are just that. It is human nature to speculate where you have no facts. And it is written in the Holy Book that John the Baptist ate not and he was called a madman; Christ ate and drunk and He was called a glutton.

6. Our history is full of examples of good human rights activists including yourself, Kepta Ombati, Cyprian Nyamwamu, Boniface Mwangi, among others who tried to unsuccessfully run for political office. No doubt, political office is an expansion of activism and movement work. What should good activists do to win elections and continue their good work as politicians? Raphael Obonyo, Nairobi

They should not give up and I don’t think they have. The society is changing and, soon, we will have issue-based politics and one’s ethnicity or capacity to give handouts will not be trump cards at elections. While still at it, I point out that Prof Kivutha Kibwana, the Makueni Governor who has performed exceptionally well, was and is an activist who was elected into office and has delivered on his convictions.

7. There is a popular joke in Kenya about the Judiciary: ‘Why hire a lawyer when you can buy a judge?’ Former Chief Justice Dr Willy Mutunga began ambitious efforts to transform Kenya’s courts and earn back the people’s trust. What is your assessment of the transformation at the Judiciary given that you frequently interact with them? Raphael Obonyo, Nairobi

The joke is just a joke. Whereas one or two judges may not be up to scratch, most judges and other judicial officers are very hard working individuals who deliver for Kenyans in very difficult situations. The Kenyan Judiciary is the only arm of government that retains and espouses Kenya’s republican character. We cannot compare the Judiciary to the Executive and the Legislature, at both national and county levels, which are totally captive to ethnicity and corruption

8. Due to the nature of your work, sometimes you challenge decisions of the powerful and mighty. Don’t you ever fear for your life when making such challenges? Have you ever received threats to have you drop the matter you are pursuing? Emmanuel Lesikito

Though I take precaution, I know that there are no human beings who are mighty and powerful. Only God is mighty and powerful. So I have no fear of any man and their threats, since God is my shield. No man can destroy my soul.

9. Of all the advocacy and litigation cases that you have undertaken in the interest of the public good, explain the one case that posed the greatest challenge and possibly a danger to your life. Nyongesa Chris Makhanu, Nairobi

A 2012 petition where I challenged the flawed procurement of the BVR kits which failed to work on Election Day. I was offered a bribe of Sh9 million to drop the case but I refused. I then applied to court for police protection but Justice Majanja dismissed my application. Two days later I was attacked by two men who hit my head with metal bars and left me for dead. As they were clobbering me, I could hear them say something to the effect that “Ulikataa pesa sasa utakufa na kesi yako pia itakufa” (You refused our offer; we are going to kill you and your case is going to collapse). But God saved me.

10. Do you really always read Kenyan’s mood before you move to court? I am referring to the case on the new currency, which by and large has been welcomed by a majority of Kenyans. Bernard Nyang’ondi, Mombasa

No, I am driven by fidelity to the law and the public interest.

11. Thank you for fighting for the common person. My question is: Fresh job seekers are required to produce a Certificate of Good Conduct and clearance certificate from Ethics and Anti-corruption Commission, among others. These requirements make me wonder, do jobseekers have to pay for not committing crime? Do they have to pay for not being corrupt? Why have you never gone to court to challenge these primitive requirements? Evans Muteti, Mombasa

Justice Odunga declared those requirements to be unconstitutional in the case that was filed by Justice GBM Kariuki. I also filed another case on the same — but it is pending at the High Court — to allow the Supreme Court to determine whether it will allow the High Court to proceed or it will hear an advisory reference on the same issue that was filed by the Kenya National Commission on Human Rights (KNCHR).

12 Sir, you are known to be one of the most relentless and leading human rights defenders in Kenya. You are no guest in our courts and all these court cases require resources. What motivates you? Geoffrey Oyoo, Embakasi East

The Holy Scripture, especially the teachings on the salt and light of the world; the Good Samaritan, and the call to be witnesses of Christ.

13. Recently, a young woman died at KNH after she developed maternal complications due to negligence by staff on duty. Of course many other preventable deaths occur in public hospitals due to negligence. Don’t you think it is more worthwhile to fight for the rights of such helpless victims as opposed to, say, pursuing elitist court cases like the one on new currency notes? Stephen Kathurima, Nairobi

There are no elites under the law. All are equal. Secondly, I believe in draining the swamp not waiting to kill every snake and mosquito that escapes from the swamp. The mess in our hospitals and other institutions is a rule of law problem. Let’s drain the swamp by implementing the Constitution and upholding the rule of law.

https://www.nation.co.ke/news/One-on-one-with-activist-Okiya-Omtatah/1056-5256164-l8pfwyz/index.html

 

Lawyers key to the rule of law – even China agrees but only lip service

June 26, 2019

Lawyers have an essential role in upholding the Constitution and realising the rule of law – at the Human Rights Council 41st session this week, even China agreed. So why does the Chinese government continue to harass, intimidate and persecute lawyers who defend human rights ask 4 NGOs on 25 June 2019: Lawyers for Lawyers, International Bar Association, International Service for Human Rights and Lawyer’s Rights Watch Canada. In a joint statement the NGOs call on the UN expert on independence of judges and lawyers, and the Council and its members, to press for accountability.

‘The Chinese delegation recognised the need for balance in regulation between lawyers’ and judges’ rights, on the one hand, and their professional responsibilities, on the other hand’, says Sarah M Brooks, Asia Advocate at ISHR. ‘But it is hard to take this claim seriously, as Chinese authorities continue to adopt  abusive laws and measures, using them as a “sledgehammer” to restrict fundamental freedoms’.

This includes in particular lawyer Jiang Tianyong, who – since his nominal release from prison on 28 February 2019 – has been subject to invasive surveillance, restrictions on his freedom of movement, and refusal of independent medical exams. Worse, he is unnecessarily and inhumanely kept from joining his family in the U.S. [see also: https://humanrightsdefenders.blog/2017/11/21/jiang-tianyong-chinese-defender-of-defenders-sentenced-to-2-years-jail/]

The statement draws on research conducted by Chinese Human Rights Defenders and other partners into two ‘administrative measures’ that have had far-reaching consequences for lawyers on the ground.  The Measures on the Administration of Law Firms and Administrative Measures for the Practice of Law by Lawyers of Law Firms call on lawyers, law firms and regional bar associations not only to take measures to ensure that lawyers’ freedom of speech, both online and off, in professional and personal capacities, is not critical of the government. Furthermore, language added to one of the measures in 2018 specifically states that  ‘Law firms shall adhere to guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, adhere to and strengthen the comprehensive leadership of the Party over the work of lawyers, persist in preserving the authority and uniform leadership of the Party with Comrade Xi Jinping as its core, make support for the Party’s leadership and support for socialist rule of law basic requirements for the profession, and increase the conscientiousness and resoluteness with which lawyers as a group walk the path of socialist rule of law with Chinese characteristics’.

As a result of making comments that were deemed critical of the Chinese Communist Party, from January 2017 to January 2019, groups have documented cases of at least 26 lawyers and three law firms that have been punished for their opinion or expression, or by association with lawyers. This includes well-known rights lawyers such as Yu Wensheng, Wang Yu, Xie Yanyi and, just last week, Liu Xiaoyuan. 

[for the massive crackdown in 2015, see: https://humanrightsdefenders.blog/2015/07/29/the-remarkable-crackdown-on-lawyers-in-china-in-july-2015/]

 

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Full statement

Joint statement under Item 3: Interactive Dialogue with Special Rapporteur on Independence of Judges and Lawyers and the Independent Expert on SOGI

24 June 2019

Mr. Vice President,

We thank the Special Rapporteur for his report. We wish to highlight that many of the trends of restriction he notes also apply to lawyers. For example, across China, repression of human rights lawyers and legal activists continues. They are disappeared, detained, and denied basic rule of law guarantees.

Lawyer Jiang Tianyong is one example. Although he served his sentence for ‘inciting subversion of the State’, he now lives under constant police surveillance and with a serious medical condition.

What was his so-called ‘crime’? Representing fellow lawyers in court, investigating black jails, speaking out for victims of human rights violations and meeting with UN officials.

Mr Special Rapporteur, we are concerned about Chinese government actions to imprison and disbar lawyers who do not adhere to official ideology. The Chinese delegation raised earlier the need to uphold the Constitution – we couldn’t agree more. But problematic regulations passed in 2016 allow authorities to, inter alia, shut down law firms if they refuse to dismiss lawyers who express critical views, or who advocate for clients or causes unpopular with the Communist Party of China.

China’s claims to ‘faithfully uphold the rule of law’ are true only in relation to national laws created to authorize such government action. Chairman Xi has stressed the Communist Party’s control over the legal system, and has used the law to repress and punish those mandated to uphold and protect rights.

Yu Wensheng, Sui Muqing, Zhou Shifeng, Xie Yanyi, Li Heping, Wang Yu, Liu Zhengqing and Liu Xiaoyuan are only 8 out of at least 27 documented cases of human rights lawyers whose licenses have been invalidated or revoked since 2016, simply for fulfilling their professional duties.

In her UPR follow-up letter to the government, the High Commissioner identified key areas for improvement, including ‘guaranteeing an independent judiciary, fair trials, and access to legal counsel, releasing all human rights defenders, including lawyers’.

We call on you, Mr Special Rapporteur, and on this Council, to insist that China immediately stop all forms of harassment and persecution of human rights lawyers, including through administrative means, and unconditionally release those arbitrarily deprived of their liberty.

Thank you.

Nigerian NGO writes open letter to new President Muhammadu Buhari

May 29, 2019

On 29 May, 2019 Kolawole Oluwadare, Deputy Director of the NGO SERAP wrote to Buhari to request “To Make Every Day Of The Remainder Of Your Stay In Aso Rock A Rule Of Law Day”.

Re: Request To Make Every Day Of The Remainder Of Your Stay In Aso Rock A Rule Of Law Day’

Your Excellency,

Ahead of your inauguration and the start of your second term in office today, Socio-Economic Rights and Accountability Project (SERAP) is writing to urge you to publicly commit to making every day of the remainder of your stay in Aso Rock a ‘Rule of Law’ day, including by ensuring every segment of your government’s daily operations is lawful and rule-of-law compliant, for the sake of fairness, justice, your legacy as president, and the success of your anti-corruption agenda, which has remained stuck in limbo principally because of persistent disobedience of decisions of Nigerian courts.

SERAP is a non-profit, nonpartisan, legal and advocacy organization devoted to promoting transparency, accountability and respect for socio-economic rights in Nigeria. SERAP received the Wole Soyinka Anti-Corruption Defender Award in 2014. …..The deficits in the rule of law have been particularly notable in three areas: failure to obey decisions of Nigerian courts, failure to push for transparency in asset declarations by high-ranking government officials and failure to push for unexplained wealth orders against former presidents and former governors and other senior public officials suspected of living on proceeds of corruption and ‘dirty money’.

…..Another court order that is yet to be complied with is the order for the release of Islamic Movement of Nigeria leader, Sheikh Ibrahim El-Zakzaky and his wife, Zeenah, from unlawful detention, obtained by human rights lawyer and Senior Advocate of Nigeria, Femi Falana. Persistent disobedience of decisions of our courts by the government has opened the way for many state governors to do the same within their states including by using anti-media laws to suppress the civic space, target journalists and human rights defenders, grant to themselves pensions for life and commit grand corruption and other appalling atrocities……Ignoring or refusing to obey decisions of our courts is implicitly rendering the judiciary powerless to enforce constitutional and legal rights, violating separation of powers, undermining the rule of law, and ultimately, raising serious question marks on the government’s commitment to fight grand corruption…

Democracy is an inherent element of the rule of law, and obeying decisions of the courts, pushing for transparency of high-ranking government officials and going after former senior officials suspected of living on proceeds of corruption and ‘dirty money’ are closely connected with the existence and consolidation of democracy, good governance and development.

SERAP therefore urges you to use the opportunity of your second term to begin to implement your oft-expressed commitment to the rule of law by immediately obeying decisions of Nigerian courts, promoting transparency in asset declarations by publishing widely details of your assets declaration, encouraging Vice-President Professor Yemi Osinbajo to do the same and instructing all your ministers to publish their asset declarations.

SERAP also urges you to immediately instruct your next Attorney General of the Federation and Minister of Justice to pursue unexplained wealths court orders against all former presidents (and their estates), former governors, former presidents of the Senate and former speakers of the House of Representatives aimed at forcing those of them suspected of living on proceeds of corruption and ‘dirty money’ to reveal sources of their fortune or risk forfeiting it.

https://www.modernghana.com/news/935530/re-request-to-make-every-day-of-the-remainder-of-your-stay.html

26 February: lecture on populism and human rights by Michael Ignatieff in Geneva

February 10, 2019

The populist upsurge in the emerging democracies of Eastern Europe and in established democracies like the United States has exposed the political vulnerability of rule of law as a cornerstone of liberal democracy. It is not just in authoritarian populist states that the independence of judges and the authority of law have come under attack in the name of a majoritarian conception of democracy. This suggests that the rule of law has always stood in a relation of tension with other principles of democracy, including majority rule and an independent media. The lecture explores these renewed political pressures on rule of law using contemporary examples drawn from the US, the UK and Hungary. [for some of my posts on populism, see: https://humanrightsdefenders.blog/tag/populism/]

Tuesday 26 February 2019, 18:30 – 20:00 in the Auditorium IVAN PICTET | Maison de la Paix, Geneva

Michael Ignatieff is the Rector and President of Central European University in Budapest. His major publications are The Needs of Strangers (1984), Scar Tissue (1992), Isaiah Berlin (1998), The Rights Revolution (2000), Human Rights as Politics and Idolatry (2001), The Lesser Evil: Political Ethics in an Age of Terror (2004), Fire and Ashes: Success and Failure in Politics (2013), and The Ordinary Virtues: Moral Order in a Divided World (2017). [see also: https://humanrightsdefenders.blog/2019/02/08/11825/]

The lecture will be moderated by Shalini Randeria, Professor of Social Anthropology and Sociology at the Graduate Institute, Director of the Albert Hirschman Centre on Democracy and Rector of the Institut für die Wissenschaften vom Menschen Institute (IWM) in Vienna.

This event is organised by the Graduate Institute’s Albert Hirschman Centre on Democracy.

To register: http://graduateinstitute.ch/home/research/centresandprogrammes/hirschman-centre-on-democracy/events-1/past-events.html/_/events/hirschman-centre-on-democracy/2019/law-populism-and-liberal-democra

 

Justice’s law firm exists 60 years In Geneva

September 28, 2018

The International Commission of Jurists (ICJ) celebrates its 60th year in Geneva.

2018 marks the 60th anniversary of the ICJ’s move to Geneva thanks to the Swiss jurist Jean-Flavien Lalive, who was ICJ’s Secretary General in 1958. This makes the ICJ one of the earliest international organizations to establish its headquarters in Geneva. DISCLAIMER: I worked for the ICJ from 1977-1982. The ICJ was at that time a small organisation with less than 10 persons including the interns. As Executive Secretary – the grandiose title belied my real position as the personal assistant of the impressive Secretary General Niall MacDermot. Still, then as now the ICJ plays a preeminent role as a non-governmental organization seeking to defend human rights and the rule of law worldwide.

The ICJ will mark this event with two major initiatives:

  • A visibility campaign from 26th September to 9th October: the TV screens on the Geneva public transport network and five vehicles will carry the slogan “Global Advocates for Justice and Human Rights – 60 years in Geneva”
  • The launch of the “60th Anniversary Appeal” to all lawyers in the Republic and canton of Geneva to support the ICJ and, in turn, their less privileged colleagues, victims of persecution on five continents.

Geneva can be proud of its image as the world human rights capital. It is a beacon for justice advocates around the world. We must continue to make it shine,” said Sam Zarifi, Secretary General of the ICJ. “Through its 60-year history, the ICJ has contributed significantly to Geneva’s human rights record: the campaigns that led to the creation of the post of UN High Commissioner for Human Rights in 1993 and the UN Human Rights Council in 2006, as well as the adoption of the United Nations Convention against Torture in 1984 are some emblematic examples,” said Olivier Coutau, Head of La Genève Internationale.

The international reputation of the ICJ rests on these pillars:

  • 60 Commissioners – eminent judges and lawyers – from all regions of the world and all legal systems – with unparalleled knowledge of the law and human rights;
  • Cooperating with governments committed to improving their human rights performance;
  • Effective balance of diplomacy, constructive criticism, capacity building, and if necessary, ‘naming and shaming’;
  • Unmatched direct access to national judiciaries, implementing international standards and improved legislation impacting millions;
  • Guiding, training and protecting judges and lawyers worldwide to uphold and implement international standards (e.g.in 2018, the ICJ provided local trainings on five continents to assist 4,300 judges, lawyers and prosecutors strengthen their ability to protect and promote fundamental rights)
  • Working for access to justice for victims, survivors and human rights defenders, in particular from marginalized communities;
  • Following a strict result based management in project delivery.

The ICJ has been awarded, during its long history, some of the most prestigious international awards: the Council of Europe Human Rights Prize, the United Nations Award for Human Rights, Erasmus Prize, Carnegie Foundation Wateler Peace Prize.

https://www.icj.org/global-advocates-for-justice-and-human-rights-the-icj-60-years-in-geneva/

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

The will of the people or ‘democracy under the rule of law’ in Europe ?

December 9, 2017

It is not often that I recommend the reading of long ‘governmental’ documents, but this time it do without hesitation. The Dutch Advisory Council on International Affairs published on 4 October 2017 its 104th thoughtful report, entitled: “The will of the people? The erosion of democracy under the rule of law in Europe”. Below I reproduce the Conclusions and recommendations, but reading only these you miss out on gems such as the section on Media page 27:

“Until the end of the twentieth century the media landscape was dominated by newspapers, radio and television. However, the advent of the internet in the early 1990s and social media in the early 2000s brought about a radical change. The low cost of accessing the internet means that everyone is now, in principle, able to generate journalistic content (through blogs, websites, YouTube videos, live streaming, etc.). This has resulted in democratisation of the media and diversification of the media landscape, but has also had negative effects.

The independence of the media is crucial for the credibility of reporting. But on the internet this seems to be largely immaterial: media that focus on a specific political or ideological niche are highly successful online. Besides the role of the internet, another factor instrumental in undermining media independence is the concentration of media ownership in the hands of just a few companies..The income of the traditional news media is being squeezed by greater competition.

 

Online media are often funded from advertising revenue. Consequently, the facts are no longer necessarily central; what counts is attracting as many visitors as possible to the site, relying on the speed of posting news online, sensational content and the ideological message. This undermines the reliability of the media. As everyone is now potentially able to generate news and the quantity of media content has risen explosively, it is becoming ever more difficult to check the content, sender and sources. So it is easy, for example, for populist movements to claim that the traditional media, especially newspapers, are biased and mendacious. This problem is exacerbated by the phenomenon of ‘fake news’, which is disinformation generally intended to substantiate one’s own political positions or undermine the positions and reputation of political opponents.

Whereas at the time of the Arab Spring there was much praise for the positive impact of social media (Facebook, Twitter, Instagram, etc.) on the democratic process, there is now greater awareness of its darker side.61 First, social media contributes to the formation of ‘ lter bubbles’. Informational bubbles of this kind are created by the user personally (self-selection) and strengthened by search and personalisation algorithms (pre-selection). This hyperpersonalisation of news and opinion has created a situation in which people are shielded from conflicting positions and isolated from people who think differently. In addition, social media tends to polarise social debate. Although social media undeniably facilitates and intensifies political debate and discussion, the nature of reactions on social media (fast, brief, simplistic, one-sided and often anonymous) has made the tone of the social debate considerably more strident. Finally, social media makes individuals more transparent. Connections, posts and likes help to create a more complete picture of individuals, who they are and what they think, believe and want. Within a democracy under the rule of law this picture can be used, for example, to microtarget voters with a view to influencing their political choice. But social media is also a powerful tool for monitoring individuals and identifying political opponents.”

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Conclusions and recommendations

‘The rule of law is not a peaceful property, a house in which we can sleep serenely.’160

This statement, made by the late senator Willem Witteveen in a parliamentary debate on the rule of law in 2014, remains as relevant as ever. Democracy under the rule of law needs constant maintenance, in Europe as elsewhere. Since the turn of the millennium, the increasingly apparent alienation between the institutions of democracy under the rule of law and sections of the population whose circumstances and prospects have become precarious and/or who feel that the nation’s cultural identity is under threat, has created an environment fraught with risk. In several European states, movements with varying degrees of influence have emerged that want to use democratically acquired power to limit the political status and legal safeguards of other population groups. This indicates that, to a large extent, they do not feel that constitutional democracy, i.e. democracy under the rule of law, is in everyone’s interest, including their own.

As pointed out in the introduction to this advisory report, it is an essential but delicate task, when standing up for the rule of law in the international arena, to respect the democratic character of the states concerned and enhance their democratic quality. As societies become ever more complex, rights, obligations and diverse social interests must constantly be weighed against one another and conflicts resolved. This means that all levels of government need to strike a balance between catering to the public’s wishes and making an independent assessment based on the general interest. Due to a large number of developments and factors, which have been described in this report, this balance has gradually been disturbed in recent decades. Many people across Europe now feel that the institutions of democracy under the rule of law mainly benefit others, including ‘the establishment’ or minority groups. This dissatisfaction is fuelling alternative political movements that promise more consultation and more effective government.

In Europe, a broad effort is required to restore and strengthen public support for democracy under the rule of law. It should be clear to all that the rule of law does not hamper democracy but rather bolsters it. There needs to be greater awareness that democracy only benefits all citizens if it is accompanied by rule-of-law safeguards. Citizens also need to know that their voices are being heard at international level. EU institutions must serve the public visibly and tangibly. That is not sufficiently the case at present.

All member states of the Council of Europe and the European Union are responsible for maintaining democracy under the rule of law in Europe. The fact that national governments working together in the EU appear unwilling to call one another to account for the erosion of democracy, the rule of law and human rights does nothing to enhance the EU’s credibility in the eyes of its own citizens. It merely confirms the widespread perception that the EU promises human dignity but does not effectively protect it.

This does not just undermine norms and values that are a key part of the European identity; the stability of Europe, too, is at stake. If the protection of individual rights and minorities is eroded, this rapidly generates domestic tensions, bilateral conflicts and, inevitably, migratory flows that can sometimes assume unmanageable proportions.

And if the erosion of democracy under the rule of law goes hand in hand with the undermining of common EU institutions, as is often the case, those institutions will increasingly be incapable of taking effective action to resolve such crises.

Even if no large-scale escalation occurs, the erosion of democracy under the rule of law eats away at the foundations of interstate cooperation that are important in Europe. Police cooperation, the European arrest warrant, the transfer of asylum seekers under the Dublin system – all these forms of cooperation are based on mutual trust in the quality of legal systems and the protection of the core values of the rule of law. But if the factual basis for that mutual trust disappears, mutual recognition and solidarity will sooner or later also be put in jeopardy.161

In addition to these considerations, a deficient democracy under the rule of law creates an unattractive investment climate. Confidence in constitutional stability and in the fair and effective public administration of justice is, after all, essential. Without such confidence, investors will be forced to resort to arbitration and other forms of investment protection; they will then have to contend with both increasingly critical public opinion and legal objections.162

Recommendations

Below the AIV will make a number of policy recommendations concerning how the Netherlands can work in the appropriate international bodies and bilaterally to preserve the constitutional structures of democracy under the rule of law from (further) erosion. The Netherlands must be prepared to swim against the tide and continue its engagement on this issue, with a view to preventing the operation of the democratic system from eroding its own principles.

It needs to be completely clear, of course, that such efforts should support states’ democratic functioning – taking account of their historically acquired characteristics; a democracy’s procedural and substantive features must not be further torn apart, but rather woven together in a more convincing manner. This requires respect for the diversity that can exist among the member states of the Council of Europe and the European Union. Alignment should constantly be sought with the common fundamental values of democracy and the rule of law as accepted by all the nations concerned. The recommendations made here therefore build on what has been agreed with and by the other states.

There is a need for caution here. For various reasons, there is bound to be some discrepancy between the complexity of the problems described in this report and the recommendations presented below. First, there is no magic bullet that will halt the erosion of democracy under the rule of law in Europe in a simple manner, because numerous complex factors are involved (see chapter II). What is needed is a differentiated approach at various levels: national, international, governmental, societal, etc. Second, a society can only achieve democracy under the rule of law from within. Individuals and organisations from other countries can merely play a supporting role. It stands to reason that the Dutch government – to which many of the recommendations relate – can mainly offer support in the realm of social developments and their anchoring in the rule of law. Third, the political balance of forces in Europe, especially in the European Union, currently offers limited scope for voicing a powerful counter-message. Only a limited number of European countries are firmly committed to defending the principles of the rule of law. Finally, account must be taken of the increased public scepticism towards EU cooperation that has developed in the Netherlands, as in other countries.

1. Increasing institutional responsiveness

Council of Europe

The Council of Europe is the most important organisation in Europe when it comes to setting standards for human rights and monitoring how they are reflected in member states’ legislation, policy and practices. Nevertheless, there appears to be little awareness in Europe of the Council’s importance in this regard. The Netherlands could take the lead in a political re-evaluation of the Council’s importance. This could be done in the following ways:

  1. Working with like-minded countries to secure a greater political role for the Committee of Ministers in monitoring the implementation of judgments of the European Court of Human Rights in the member states. The Committee of Ministers should not restrain the Council of Europe’s independent institutions (the European Court of Human Rights and the European Committee of Social Rights), but support and encourage them.
     
  2. Promoting the implementation of the Brussels Declaration and the Plan of Action on Strengthening Judicial Independence and Impartiality by entering into a twinning relationship with certain countries and helping them to increase knowledge about the Council of Europe and the European Court of Human Rights within government and the judiciary, and among the legal profession and NGOs, to expand national parliaments’ role in implementing judgments by the European Court of Human Rights in the member states and to create an independent national human rights institute.
     
  3. Taking the initiative to expand the Committee of Ministers’ traditional focus on civil and political human rights to include the social rights laid down in the European Social Charter. The Netherlands could highlight this by providing extra support for the HELP programme.
     
  4. At set times, the government should provide the Permanent Parliamentary Committees on Foreign Affairs and Justice with confidential information about the deliberations in the Committee of Ministers, especially as regards the implementation of judgments by the European Court of Human Rights.
     
  5. The Netherlands can support reciprocity within the Council of Europe by asking the Venice Commission for advice on Dutch legislation in the event of dilemmas like those concerning the judicial review of legislation and the consequences of referendums.

European Union

  1. Within the EU, the Netherlands must continue its efforts to strengthen the annual rule of law dialogue, as a stepping stone towards a peer review mechanism,163 for which there is still insufficient support in the Union.
     
  2. The Netherlands can join with like-minded countries to form a (possibly informal) group of ‘trailblazers’ that launches a peer review. Such a group can set a positive example of European cooperation for EU citizens, including people in countries that do not yet want to participate. It will show them that ideas on the rule of law can be exchanged in an atmosphere of openness and mutual trust.
     
  3. Some EU member states, notably Poland and Hungary, are currently firmly opposed to the notion that membership of the Union entails certain responsibilities in terms of democracy and the rule of law. At the same time, these countries receive substantial amounts in EU subsidies. In the upcoming negotiations on the EU budget (multiannual financial framework) and how to reform it, the Netherlands should seek to link receipts from the cohesion and structural funds to success in satisfying the original Copenhagen criteria for EU accession.
     
  4. The Netherlands can express support for the European Parliament’s proposal for an    EU Pact for Democracy, the Rule of Law and Fundamental Rights.
     
  5. The Senate and the House of Representatives can play a constructive role in promoting the principles of democracy under the rule of law in Europe by raising this issue with other European national parliaments. Consideration could be given to creating a parliamentary network focusing on practical cooperation and knowledgesharing on linking democracy and the rule of law. This could be done bilaterally, but also, for example, by setting up a trilateral partnership among a number of parliaments. In addition, like-minded leaders of European political parties should enter into a dialogue in their own political group in the European Parliament with those parties that approve measures at national level that undermine democracy under the rule of law.
     
  6. Dialogue should always be preferred over confrontation in international diplomacy. The same applies when addressing the issues of democracy, the rule of law and human rights. Where dialogue repeatedly fails, however, the international community should be willing, as a last resort, to draw a line in the sand. In concrete terms, this means that the Netherlands and its EU partners should make clear that there can be no room for Turkey in the Council of Europe and the European Union if it decides to reintroduce the death penalty.
     
  7. Legislation like Russia’s ‘foreign agent’ law and its abuse of general legislation in respect of NGOs should consistently be condemned by the Netherlands, both bilaterally and internationally, in cooperation with like-minded countries.

OSCE

The Netherlands could in the near future consider launching a candidacy for the Chairmanship of the Organization for Security and Co-operation in Europe (OSCE). This would give it the opportunity to put democratisation and the principles of the rule of law more emphatically on the organisation’s agenda, including in the field of human rights.

G20/OECD

The Netherlands is currently taking part in the G20 at the invitation of Germany, which now holds the Presidency. The Netherlands should strive for ongoing participation in this forum, which is ideally suited for working with like-minded countries to address the adverse consequences of globalisation. As in the OECD, a discussion on this subject should focus not only on trade, investment and development but also on socioeconomic rights, environmental rights and the relationship between government and citizens. The Sustainable Development Goals could provide a useful tool for this purpose.

2. Social diplomacy

The above recommendations are aimed mainly at governments and multilateral institutions. Earlier in this report, however, the AIV stated that international political pressure by governments, however essential, is not sufficient to safeguard democracy, the rule of law and human rights in Europe. Above all, there should be broad support in society for these values, and the public should have confidence in the institutions of democracy under the rule of law. This requires a long-term dialogue with civil society organisations, opposition movements and institutions that can translate international human rights to the national level. The AIV would make the following recommendations for this purpose.

  1. As part of its human rights policy, the Ministry of Foreign Affairs should set up a democracy and rule of law programme that focuses on the member states of the Council of Europe where democracy under the rule of law is in danger. It should also draw on the expertise of other relevant ministries (e.g. the Ministries of Education, of Security and Justice, and of Economic Affairs).

    To support this programme, a rule of law fund should be created. During the next government’s term of office, around €2.5 million per year should be set aside for this purpose in the Ministry of Foreign Affairs budget. The existing MATRA programme, which focuses exclusively on strengthening democracy and the rule of law in candidate and potential candidate countries of the EU and the countries of the Eastern Partnership, can be integrated into this broader rule of law fund. The MATRA programme budget is set to decline from €13.7 million in 2017 to €9.1 million in 2018 and 2019. The AIV recommends that, at the very least, this reduction should be reversed.

    The rule of law fund will support civil society organisations with a regional focus on areas such as the following:

    • People-to-people and profession-to-profession contacts. Through placements and exchanges, knowledge and experience can be shared between socially relevant professional bodies, like the judiciary and legal profession, the ombudsman, educational, knowledge and cultural institutions and the media.
    • Raising public awareness of the value and importance of democracy under the rule of law. This can be achieved, for example, by promoting education in citizenship, democracy and human rights, especially among young people. The expertise of the Council of Europe’s Directorate of Democratic Citizenship and Participation can be used for this purpose.
    • Supporting citizen and other initiatives aimed at research and quality journalism in vulnerable democracies.
     

  2. In international forums dealing with internet freedom and governance (e.g. the World Summit on the Information Society/Internet Governance Forum and the Freedom Online Coalition), the Ministry of Foreign Affairs can devote more attention to the internet’s potential role in strengthening the principles of democracy under the rule of law where they are under threat.
     
  3. The Ministry of Foreign Affairs can work with the private sector (e.g. via major social media platforms and the Global Network Initiative) and NGOs in organising projects on digital citizenship, democracy and human rights. A concrete example is the organisation of a Democracy Hackathon, where European software programmers and website developers work together on ICT products (e.g. an app) that can improve trust between citizens and government (both local and national). This ‘hackathon’ could focus on a different theme every year, such as the internet and privacy, social media etiquette, fake news and fact-checking, as well as services provided by local and national government, migration and election observation.

3. Strengthening the capacity of the Ministry of Foreign Affairs and its missions

  1. The AIV strongly recommends that the policy capacity of the Ministry of Foreign Affairs and Dutch missions in Council of Europe member states be evaluated and, where necessary, expanded with local knowledge. This will enable the ministry and missions to identify and respond quickly to local initiatives and opposition movements in the fields of democracy, the rule of law and human rights. Missions will need to have sufficient funds at their disposal for this purpose.164
     
  2. In its strategic secondment policy, the Ministry of Foreign Affairs could focus more explicitly on both non-governmental and multilateral organisations that exert influence, directly or indirectly, on democratisation and the principles of the rule of law, for example the G20, the OECD and the World Summit on the Information Society/Internet Governance Forum and the Freedom Online Coalition.

__________________________________________________

160 From senator Willem Witteveen’s contribution to the debate on the rule of law, Proceedings of the Senate 2013-2014, 22-5-1 (March 2014).
161 For example, Germany will no longer be able to avoid the decision not to send asylum seekers back to Hungary. See Politico, 11 April 2017, ‘Germany suspends migrant returns to Hungary – Hungary’s been criticized for detaining migrants in camps on its border with Serbia’, <http://www.politico.eu/article/ germany-suspends-migrant-returns-to-hungary/>.
162 See case C-284/16 (Achmea), now pending before the EU Court of Justice, which, among other things, revolves around the question of whether the Dutch-Czech arbitration agreement is compatible with EU law.
163 See the earlier recommendation for a peer review in AIV advisory report no. 87, The Rule of Law: Safeguard for European Citizens and Foundation of European Cooperation, The Hague, January 2014, pp. 35-37.
164 See also AIV advisory letter no. 32, Representing the Netherlands Throughout the World, The Hague, May 2017.

2016 Tang Prizes to Louise Arbour and US sinologist

June 22, 2016

 On 21 June 2016  it was announced that Louise Arbour, a Canadian lawyer and former United Nations High Commissioner for Human Rights, was named the winner of the second Tang Prize in rule of law. The Tang Prize is awarded to Arbour “for her enduring contributions to international criminal justice and the protection of human rights, to promoting peace, justice and security at home and abroad, and to working within the law to expand the frontiers of freedom for all,”  Arbour, 69, was also the chief prosecutor for the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) between 1996 and 1999. In 1998, Arbour became the first prosecutor to get a conviction of genocide in an international tribunal, when the ICTR convicted Jean-Paul Akayesu, a mayor in Rwanda, of genocide. Tribunal defined rape as a means of perpetrating genocide — the first time that rape was considered an act of genocide by an international tribunal. The following year, as the chief prosecutor for the ICTY, Arbour again made history by indicting Yugoslav President Slobodan Milosevic, who became the first sitting head of state to be tried for war crimes by an international tribunal.

A Tang Prize award ceremony will be held Sept. 25 in Taipei. The laureate will receive a cash prize of US$1.23 million and a research grant of up to NT$10 million to be used within five years.

The biennial Tang Prize was established in 2012 by Taiwanese entrepreneur Samuel Yin to complement the Nobel Prize and to honor top researchers and leaders in four fields: sustainable development, biopharmaceutical science, sinology and rule of law.

This year the Tang Prize in the category sinology also has a human rights component as the laureate is William Theodore de Bary, Professor Emeritus of Columbia University. Read the rest of this entry »

Panel on Human rights defenders and the rule of law – 8 June Geneva

May 29, 2015

The International Service for Human Rights and United Kingdom Mission in Geneva are organising a panel discussion on “Human rights defenders and the rule of law” on Monday, 8 June 2015, 16.30-18.00 (followed by a reception) at the Graduate Institute, Maison de la Paix (Auditorium 2), Genève, Switzerland.

This event will discuss the importance of the rule of law in safeguarding the rights to freedom of expression, association and assembly for human rights defenders and activists, and the vital role of human rights defenders and international mechanisms in establishing, maintaining and promoting the rule of law. It will also explore the notion that respect for the rule of law requires respect for the rule of international law and national law that is in conformity with international law.

Panelists:

  • Olga Abramenko, Director, ADC Memorial (Russia)
  • Ruki Fernando, Human Rights Advisor, INFORM Human Rights Documentation Centre (Sri Lanka)
  • Mona Rishmawi, Chief of the Rule of Law, Equality and Non-Discrimination Branch with the Office of the High Commissioner for Human Rights
  • Phil Lynch, Director, International Service for Human Rights

Moderator: Julian Braithwaite, UK Permanent Representative to the UN in Geneva

If you want to attend please contact before 3 June: anne.jahren@fco.gov.uk

For those unable to attend, you can follow the event on Twitter through @UKMissionGeneva and @ISHRGlobal.

Human rights defenders and the rule of law: panel discussion on 8 June.