Constitutional Review Goes Up in Smoke – And the People Lose Again

LLI.WEST AFRICA BEAURAL.12TH.DEC.2017----Siera Leon

 After three years of arduous work collecting, deliberating and collating views across the country for a new constitution, it looks like Sierra Leone may end up not having one – yet again.

In its official response to the recommendations of the Constitutional Review Committee (CRC), the government issued a white paper in November which made short work of the 680-page, recommendation-laden report of the 80-person committee.

According to the white paper, the committee was mandated to ascertain "from the people of Sierra Leone, their views on the operation of the 1991 Constitution…, in particular the strengths and weaknesses… and articulate the concerns of the people …. on amendments that may be required for a comprehensive review of the 1991 constitution."

The committee claimed to have done exactly that when it submitted a final report to the President in 2016. It reportedly received several thousand suggestions from the public through submission forms, as well as dozens of position papers from institutions and individuals within and outside the country.

 However, the content of the white paper suggested that either the government did not really think that the committee truly represented the views of the people or it simply did not like the views expressed by the people.

Of 134 recommendations set out in the white paper, the government rejected a whopping 102. The main justification was that the provisions in the current constitution are adequate or that existing statutes already addressed the issue.

As far back as 1999, when the warring factions in the country's civil conflict were negotiating for peace, there were calls for a review of the constitution. Article 10 of the resulting Lome Peace Accord called for a review to ensure it "represents the needs and aspirations" of the people.

The country's post-war Truth and Reconciliation Commission, noting that the current constitution was not "the product of a wide, participatory process", felt it was desirable to reformulate the document, particularly its bill of rights, to take into account the full range of the country's international human rights obligations.

The first attempt at constitutional review started in 2007 but fell short of completion. The review commission produced a report in 2008 recommending certain amendments to the 1991 constitution. Unfortunately, it simply gathered dust on a government shelf.

After much fanfare, the new 80-person constitutional review committee was launched by the President in July 2013. The President reportedly called on all to "fully participate and take ownership of the entire review process."

Against this backdrop, it is fair to say that the government's response to the recommendations of the review committee and the subsequent legislative action betray the principles on which the process was built. It also devalues the struggle of the people to build a better post-war society based on rules that reflect their circumstances.

It is important to point out that many of the recommendations from the committee that met the approval of government were either cosmetic in nature or limiting of recognised basic rights. For example the government accepted a recommendation to include the words "human dignity" and "equality" in the chapter of the constitution known as the "fundamental principles of state policy" but rejected the recommendation to make these principles "justifiable."

Similarly, the government also accepted a recommendation to amend the description of the bill of rights section to include in the constitution an obligation to promote human rights, but did not accept recommendations to abolish the death penalty, to ensure the equality of women and men in political, economic, cultural and social spheres, or to include a right to the environment, the rights of the aged, the rights of persons with disability or the rights of children.

As though they were not satisfied with simply refusing improved constitutional protection of rights, they approved a recommendation to include a new "clawback clause" to the existing ones in the bill of rights – by highlighting "national security interests". This is a limitation which will afford opportunities to the government to constrain rights even further.

Being the opportunists that governments are known to be, the white paper also includes some "suggestions" from the government that were not covered in the review committee's recommendations.

For example, the government has proposed a reduction in the threshold for election to the office of president from 55 percent of valid votes cast to "more than fifty percent." It argues that the economic cost of run-off elections and national security concerns necessitate this alteration. But others see it as an attempt to change the rules of the game, with a little over three months left to general and presidential elections.

The Attorney-General's office is now rushing a constitutional amendment bill through parliament to give effect to the government's "suggestions" and make some cosmetic "choice of words" changes to the constitution. 

The governing party has a clear majority in parliament and the bill is expected to pass without any significant challenge.

In its haste however, the government has not been able to mask the deception inherent in the bill, the object of which is ostensibly "to make better provision for the recognition and protection of fundamental human rights and freedoms of the individual….". Sadly, none of the provisions in the amendment bill touch on any of these rights and freedoms, let alone make better provision to recognise and protect them.

The government seems to have an agenda with this bill and it is not about crafting a good constitution or giving effect to the views of the people.

" Good constitutions are not imposed" the President reportedly said at the launch of the review process in 2013, "…they are genuine pacts amongst citizens to constitute themselves into a polity that they would love and honour and whose interests they would put above all else…."

These words ring hollow in the face of government's determination to silence the voice of the people and hijack what is supposed to be a citizen-based decision-making process. Sooner or later, the people will become tired of losing.Also read http://kingssezi.blogspot.com/2017/02/ (Africa's constitutional coup, A threat to Democracy)

Modern Day Slave Trade: Here's What You Should Know About The Sale Of Migrants In Libya

LLI.CONF.30TH.11.2017.

A CNN expose revealing video footage of men being sold at a slave auction in Libya has begun to capture the world’s attention.

Here’s what you need to know about the modern slavery crisis confronting the North African country.

Modern slavery has been a problem long before the video footage was released.

Reports of African migrants and refugees, particularly women and children, being abused and forced into labor and prostitution in Libya made rounds in mainstream media as early as February. However, reports estimate that 89 million people have been forced into some form of modern slavery over the past five years.

Women and girls are disproportionately affected. They account for 99 percent of the victims of the COMMERCIAL SEX TRADE and nearly 60 percent of all other sectors that use forced labor.

The current slavery crisis in Libya stems from the smuggling of migrants — many who seek refuge and opportunities in Europe — who have paid guides (TRAFFICKERS/DEALERS/SPONSORS) to lead them from their home countries. 

However, at transit points along the journey,smugglers have abducted migrants  or held them at ransom for thousands of dollars until the migrants’ families pay to complete the journey. Consequently, many people never reached their destination and are either rounded up in detention centers by government authorities or forced into labor or PROSTITUTION by human traffickers.

Its geography and political instability has made Libya a hotspot for forced labor, trafficking, and abuse.

Because of its location on the Mediterranean coast, Tripoli, Libya’s capital, has become a hot spot for migration and human trafficking. While awaiting deportation to their home countries at government detention centers, migrants become vulnerable to looming smugglers and human traffickers.

Instability in Libya — brought by AMERICA and other western countries  toppling Libya’s Prime Minister, Muammar Gaddafi, in 2011 — has made it more difficult to regulate and control this abuse, making the country "virtually lawless." 

Where are refugees and migrants being forced to work and why are they being victimized?

More than half ( while some estimate up to 90%)  of reported victims of slavery and human trafficking around the globe are forced into private sector work in industries ranging from CHOCOLATE FARMS owned by multinational companies to construction and mining. An estimated five million people become victims of protitution and forced mariages,  and some have even been MURDDERED for their ORGANS.

Enslaving and subjugating desperate workers and vulnerable women and children provides businesses with cheap or no cost labor, provides wealthier families with cheap domestic labor, and provides an income to traders and traffickers with little to no government regulation. Essentially, the market for slavery will continue to exist as long as the PROFIT MOTIVE exists.

Why are people migrating to begin with?

The political and economic crises facing many west African countries — like Nigeria, where the stark drop in oil prices have left many residents desperate for work — has spawned a spike in migration. 

In addition to migrants from Sudan,south Sudan,Uganda, Kenya, DR.Cong and Zambia, reports show that most of those fleeing to Europe through Libya are from the west African countries of GHANA.NIGERIA.CAMEROON.SENEGAL and THE GAMBIA.

The historical context cannot be lost here. The same European countries that destabilized the economies of African nations and stole their resources through colonization and the trans-Atlantic slave trade are those guarding their borders through tough immigration laws. This has helped facilitate the DEADLY and DANGEROUS  illegitimate migration of west Africans today.

While raising awareness of this global crisis and punishing smugglers are important measures, creating policies that can help west African countries and other African countries secure economic stability and limiting Western military occupation of these countries are even more valuable.

HOW NIGERIANS,GHANIANS, SOMALIS AND ERITRIANS BY-PASS LAWS TO SUFFOCATE UGANDA'S ECONOMY

INVESTIGATION

Uganda's economy has for the past fifteen years been going through turmoil and/or turbulent times leading it to being one if not the worse performing economy in the region.We must commend the work of the current Financial Intelligence Authority (FIA) for the job weldone amid all the challenges.

The means,
 Money Tranfers
Mobile Money
 Tax Evasion (companies in real estate development, mineral development)
Genral Money Laundry
Cyber Attacks
Human Trafficking (adults,minors and professionals)

Legal link international (LLI) investigation team has intensively investigated the secret societies that launder money,illicit trade, cyber crimes PLUS Individuals (both national and foreign) that have crippled Uganda's economy in this report...request for it from kiggunduhenry78@gmail.com..for non members.... Members, the long awaited report findings CHECK YOUR INBOX or visit the secretariat.

France may set age of consent at 13 after man acquitted of raping 11 year old

The French government is considering setting the minimum age for sexual consent following a controversial decision by a jury to spare a man accused of raping an 11-year-old girl. The verdict has sparked a public outcry and calls to revise the law.

The bill, if adopted, will set a benchmark in French law on sexual violence, as it will for the first time define the age limit under which any sexual intercourse with a minor is legally considered rape.

“The question of the age below which the minor’s consent is presumed not to exist is crucial, because there are obviously extremely shocking and unacceptable situations,” French Justice Minister Nicole Belloubet said, as cited by RTL radio.

Regarding the age of consent, Belloubet said that the age of 13 “is worth considering,” while noting that the final decision in each case should lie within the discretion of the judges.

Marlene Schiappa, a junior minister for gender equality, argues that it should lie somewhere between 13 and 15 years.

“Below a certain age, it is considered that there can be no debate on the sexual consent of a child, and that any child below a certain age would automatically be considered to be raped or sexually assaulted,” Schiappa told BMF TV.

The need to amend the law was brought to light by the jury verdict in the case of a 30-year-old man who, back in 2009, allegedly lured an 11-year-old girl into a sexual relationship. Last week, the man, a Cape Verdean native, was tried by a jury court and acquitted after prosecutors, who were seeking eight years in jail for the defendant, failed to prove that the sex was non-consensual.

Under current French law, only sexual acts committed with the use of “violence, coercion, threat or surprise” are considered to be rape, regardless of the victim's age. Penalties are tougher if the victim is under the age of 15, but there is no minimum age of consent.

Following the encounter, the girl, who is of Congolese descent, became pregnant and subsequently gave birth to a baby which her family decided to place in foster care out of fear of being condemned in the community. The family took the case to court, but only years later.

It is the second case in less than two months that came under the media spotlight for what is viewed by some as a verdict too lenient for a suspect accused of sexually assaulting a minor. In late September, an 11-year-old girl reportedly followed a 28-year-old man into his flat north of Paris, where they repeatedly engaged in sexual acts. The girl’s mother said that her daughter was devastated by what happened to her, but was unable to put up any resistance as she was numb from shock.

Despite her mother’s claims that the 11-year-old was unable to defend herself, the prosecutors dropped the charges of rape and charged the perpetrator with sexual assault of a minor below the age of 15 instead, brushing off the girl’s legal team’s arguments that she was unable to surmise what was going on.

The French Criminal Code envisages a punishment of up to five years of incarceration for sexual offenses. For rape, offenders face a much harsher penalty of 15 years behind bars if the victim is 15 or older, and up to 20 years if the victim is a minor under 15.

Civil Society Condemns Criminalising of HIV

Civil society organisations working on HIV and human rights in Africa recently condemned the enactment of repressive laws which often include provisions that criminalise HIV transmission, non-disclosure and exposure.

The organisations delivered the statement at the 61st ordinary session of the African Commission on Human and People's Rights in Gambia last month.

Some of these laws also often provide for compulsory HIV testing, the disclosure of HIV status, and automatic partner notification.

The director of the AIDS and Rights Alliance for Southern Africa (Arasa), Michaela Clayton, said these provisions are overly broad, and disregard the best available scientific evidence. They fail to pass the human rights test of necessity, proportionality and reasonableness.

"Rather, they have the effect of exacerbating stigma, discrimination and prejudice against people living with HIV. These measures undermine both an effective public health response to the HIV epidemic, as well as the human rights of people living with HIV," Clayton said.

While there were no HIV-specific criminal laws at the start of the 21st century in sub-Saharan Africa, 31 countries have since then enacted overly broad or vague HIV-specific criminal statutes.

These laws and policies provide, among other things, for the criminalisation of HIV transmission, exposure and non-disclosure, despite the fact that in all of these countries, there are existing penal provisions which can be invoked in those rare cases of intentional HIV transmission.

The number of prosecutions continue to rise at an alarming rate in countries where HIV-specific criminal laws have been promulgated. To date, prosecutions have been documented in 16 countries.

Meanwhile, the executive director of the Southern Africa Litigation Centre, Kaajal Ramjathan-Keogh, said they are concerned about the current advancements in the HIV response in Africa being threatened by the misguided use of criminal sanctions by countries.

"As they argue, 'control the spread of the HIV epidemic', Ramjathan-Keogh said these laws, policies and practices violate the rights of people living with HIV, and of all healthcare users to informed consent, bodily integrity, dignity, freedom from inhuman and degrading treatment, and fair trial rights, amongst others.

"The protection of these rights is expressly provided for in Article 4 (bodily integrity), Article 5 (dignity), Article 7 (fair trial), and Article 16 (right to health) of the African Charter," Ramjathan-Keogh said.

Women living with HIV face surveillance and state control regarding their reproduction, family planning, childbirth, child feeding, and child-raising choices. In many contexts, HIV criminalisation laws, policies and practices have a disproportionately punitive effect on women, as evidenced by recent cases.

Ramjathan-Keogh gave the example of a woman living with HIV who was prosecuted for breastfeeding in Malawi. There are also numerous examples of the prosecutions of people living with HIV in Zimbabwe, Uganda and Nigeria, particularly women.

In patriarchal societies, it is women who already disproportionately face the burden of the HIV epidemic due to their inability to negotiate protective sexual intercourse in relationships, and are often the first to be tested for HIV.

The executive director of the Centre for Human Rights Education, Advice and Assistance, Victor Mhango, however, recognised the positive developments made by some African countries due to consistent advocacy on the part of civil society. Two countries - Mauritius in 2007 and Comoros in 2014 - have strongly rejected HIV criminalisation.

"Mozambique revised its HIV law in 2014 to remove HIV criminalisation, and in Kenya, the High Court has ruled that section 24 of the HIV Prevention and Control Act 2006, which forced people with HIV to disclose their status to any 'sexual contacts', was contravening the Kenyan constitution which guarantees the right to privacy," Mhango said.

He said as HIV and human rights organisations, they were calling for the African Commission on Human and People's Rights to take leadership in protecting the rights of people living with and affected by HIV, including women living with HIV by

- Encouraging and reminding member states about their obligations under the African Charter and the Maputo Protocol, including resolutions adopted by the Commission.

- Reminding states of their duties and mandates to protect and promote the rights of people living with and affected by HIV, including women and girls who are vulnerable to HIV, by prioritising the urgent needs for access to justice and the upholding of the rights to bodily integrity, autonomy, and health.

- Calling on states to repeal laws that unjustly criminalise HIV transmission, exposure, and non-disclosure.

Forced Marriage, Incest made her commit Murder

Muhammad Tanssir, Pakistan (Legal Link International) — Aasia Bibi had warned her parents time and again that if they forced her to marry her cousin, a man she disliked, she would be capable of going to any length to exit the union. She was already in a relationship, she said, and should be allowed to marry the man of her choice.

Now, investigators in this tiny, remote island village in central Pakistan believe the recently married 21-year-old was enticed by her boyfriend in a plot to kill her husband, Mohammad Amjad, by poisoning his milk with rat killer. Amjad did not drink the milk, but his mother used the tainted liquid the following day to make a traditional yogurt drink that she then tragically served to 27 family members, including Amjad.

Amjad and 17 others were sickened and subsequently died at a district hospital, including eight children aged 7 to 12. Among the dead were Amjad's two brothers, his three sisters-in-law and some distant relatives.

"I repeatedly asked my parents not to marry me against my will as my religion, Islam, also allows me to choose the man of my choice for marriage but my parents rejected all of my pleas and they married me to a relative," Bibi told a judge at her initial hearing Oct. 31 following her arrest.

Aasia Bibi and her boyfriend Shahid Lashari were charged with murder and are scheduled to return to court Nov. 14. Pakistani police said Wednesday they also arrested Bibi's aunt, 49-year-old Zarina Begum, for her involvement in the alleged plot.

Local police chief Zulfiqar Ali said the deaths quickly drew the attention of police, who quietly began an investigation and were able to expose the plot. He said Aasia Bibi was among those who did not drink the traditional Lassi, which is made with water and yogurt.

"Her husband was in critical condition at a hospital and she looked as if nothing had happened and she was cool and calm at her home and it raised suspicions," he said.

Ali said police first arrested Lashari and he confessed to supplying the rat poison to his girlfriend. He said Lashari also told officers that Bibi's aunt, who used to arrange for the couple to meet at her home, was aware of the plot to kill Amjad.

Ali said that before detaining Aasia Bibi, police collected her cell phone data enabling investigators to surmise that she was in constant contact with Lashari after the attempted poisoning. He said Bibi confessed to her role in the killings upon seeing Lashari in hand-cuffs at a police station.

Relatives bringing condolences were still arriving in the dusty, isolated village on Tuesday when a legal link international investigator crossed the shallow Indus River to the island by boat. Sitting among the mourners on a cot in an open area, village elder Abdul Majid vowed to behead the newly married woman and her boyfriend if he got hold of them.

Majid said the couple, who were married in late July, deserved to be killed to restore the village's honor.

"If I see them, I will behead them with a wood saw," he said, as the jailed bride's father sat nearby.

Zohra Yousaf, a top human rights activist based in Karachi, said Aasia Bibi is among countless Pakistani women who are forced by their parents to marry against their wishes, but that it is rare for a wife to kill her husband. She said she believed Bibi's actions show that she suffers from depression and anxiety.

Many parents in Pakistan arrange marriages for their daughters against their will and nearly 1,000 Pakistani women are killed each year by close relatives in so-called "honor killings" for marrying against the family's consent or attempting to flee the forced unions.

According to a report released this year by the Human Rights Commission of Pakistan, "hundreds of women and girls were murdered in 2016 by family members on the pretext of defending the family honor." It is also common in Pakistan for village councils or elders to order killings or rapes in the name of honor.

In 2002, a village council ordered the gang rape of Mukhtar Mai, a young woman who later took her rapists to court. The case gathered international attention and she later opened a school for rural girls.

Sitting in her mud-brick home in this village of just 45 dwellings about 450 kilometers (270 miles) south of Multan, Bibi's mother Zakia Begum sobbed Tuesday night, saying she was wrong to force her daughter to marry a man she did not like.

She urged other Pakistani parents to give their daughters the right to marry the person of their choice.

"I feel guilty and I think we should have not forced our daughter to marry Amjad as she did not like him," she told Legal Link International.

Museveni's Ban On Social Media in Uganda - the Good News and the Bad News for Africans

23rd.10.2017ANALYSIS

African rulers who want to stay in office are increasingly using "security" as a reason for closing down social media. They fear popular protests on the street challenging their legitimacy that they will be unable to control and that might lead to their downfall. Uganda's recent closure of social media is but one instance of a steady stream of closures by frightened rulers. However, all is not doom and gloom as Russell Southwood spells out the good news and the bad news in these developments.

In January 2015 faced with anti-Government protests about a third term for the country's President that had begun to spread from the capital Kinshasa to the rest of the country, President Kabila shut down the Internet and in so doing cut off social media. The Internet was restored only six days later after the protests had subsided.

In April 2011, the Ugandan Government appears to have blocked both Facebook and Twitter: users trying to access them get a message saying "Server not found".

But up until recently the majority of attention by African Governments has been paid to the use of SMS messaging to spread campaign news and organise protests. The worst occasion of this kind of banning SMS was the Ethiopian Government after the contested elections in 2005. The ban remained in force for two years. In Ethiopia, the opposition party Kinijit was particularly effective at using text messaging to mobilise its supporters and get them to the polling booths.

When the election result was announced the government took fright, contested what had happened and then moved quickly to shut down the SMS service to ensure the opposition party couldn't use it again. With no acknowledgement of why it had been banned, subscribers simply received the following message two years later announcing its re-opening: "[Wishing] you [a] happy Ethiopian Millennium. And now the SMS service is launched."

During the food price riots in Mozambique in September 2010, both mobile phone operators in Mozambique, M-Cel (government-owned) and Vodacom , bowed to pressure and suspended their text messaging services but then said that they had not done so, according to Agencia de Informacao de Mocambique (AIM).

On 6 September 2010 people who used pre-paid M-Cel and Vodacom cards found it was impossible to send text messages. Since the Maputo riots of 1-2 September had been mobilized via text messages, it was immediately suspected that the government had ordered the companies to halt the text message service.

But when Transport and Communications Minister Paulo Zucula was asked about the matter, he denied giving any such order. "I'm the minister in charge of communications, and I have no knowledge of any instruction to suspend the messaging services", he told reporters. Both M-Cel and Vodacom assured AIM that the interruption to the messaging service was entirely due to technical problems.

On Friday night, interviewed by the independent television station TIM, Fernando Lima, chairperson of the media company Mediacoop, which publishes the weekly paper "Savana" and the daily newsheet "Mediafax", displayed a copy of the letter which the regulatory body, the INCM had sent to the two operators. The closure was short lived and normal service resumed quickly.

But with the spread of data-enabled featurephones and smartphones and the increasing number of Facebook users, African Governments are now using social media bans as a way of closing down discussion and street protests. Uganda returned to this effective way of closing things off during its recent election.

Uganda President Yoweri Museveni said social media sites were taken down as a temporary security measure. He said the move was necessary because some people were using Facebook, Twitter and WhatsApp to peddle lies. "That steps must be taken for security to stop so many (social media users from) getting in trouble; it is temporary because some people use those pathways for telling lies. You tell lies but you do not know that the authorities (can) restrain those (platforms) for some time."

Taking its cue from the President, the independent telecoms regulator the Uganda Communications Commission (UCC) cited an unspecified national security reason for the shutdown of social media and of mobile money sites. "The UCC has directed MTN to disable all social media & mobile money services due to a threat to public order & safety," one of the companies affected MTN stated.

And you want to know the good news? Uganda has 1.8 million Facebook users and within a short period of time 1.5 million of them had downloaded VPNs, a technical way of avoiding the Government shut-down, according to an infographic posted on Facebook by Teddy Ruge.

The sources for this figure? The first source was Lifehacks magazine website. The second was @Trustzoneapp, makers of the trust.zone VPN app for Android. It confirmed over half a million downloads of its app. @VPNcompare, out of UK, confirmed over a million Google searches for VPNs from Uganda on the day of elections. In other words, there was a high level of interest in evading the shutdown and many people will have found and used VPN software to do this.

Karl Kathuria, CEO, Psiphon Inc, a provider of free, open source VPN software immediately noticed the spike in interest:"Before the shutdown we had a very low number of users in Uganda. After the shutdown, those who knew about our software started posting about it and there was a big jump on our network and at its peak there were over 7,000 users a day. It's dropped again but a lot of users are aware of the site and it will go up again much faster next time."

Psiphon was only one of several providers but Kathuria points to its experience in Iraq where use of its software went from a few thousand to 1.8 million after a social media ban. The software is easy to obtain: either via the Google Play Store or there are email addresses you can write to and be sent the software. Interestingly it already has thousands of users in both Nigeria and South Africa.

And the bad news? These kinds of short, sharp shutdowns will become more popular with Africa's more authoritarian rulers. More developed African economies will find it nearly impossible to do a complete Internet shutdown but the more targeted social media bans are almost inevitable. Accessnow.org which is campaigning against these types of shutdowns lists the following countries as having used them: Burundi, Congo-Brazzaville, Egypt, Sudan, the Central African Republic, Niger, Democratic Republic of Congo.

Worse still, there are perhaps more insidious controls on the way. According to Kathuria:"It's a bit of a cat and mouse game. Sites (VPN providers) want to keep access to the Internet. Deep packet inspection of traffic going in and out of the country can be used but there are not many countries operating like that".

A letter protesting the Ugandan shutdown was signed by Access Now, Association for Progressive Communications (APC), African Centre for Democracy and Human Rights Studies (ACDHRS), Legal Link International (LLI) Article 19 East Africa, Chapter Four Uganda, CIPESA, CIVICUS, Committee to Protect Journalists, DefendDefenders (The East and Horn of Africa Human Rights Defenders Project), Electronic Frontier Foundation, Global Partners Digital, Hivos East Africa, Index on Censorship, ifreedom Uganda, Integrating Livelihoods thru Communication Information Technology (ILICIT Africa), International Commission of Jurists, ISOC Uganda, Kenya, KICTANet, Media Rights Agenda, the African Media Initiative (AMI), Unwanted Witness, Web We Want Foundation, Women of Uganda Network (WOUGNET), and the Zimbabwe Human Rights NGO Forum.

Carefully researched.studied and edited by Legal Link International EA teams.

“Soldiers Assume We Are Rebels”

More than three years after South Sudan’s conflict began in the capital Juba in December 2013, the war has spread to the Greater Equatoria region, in the southern part of the country, which had until recently been largely spared from the fighting. In the past year alone, over one million civilians, many of them from villages in this region, have fled to neighboring countries. More than 700,000 crossed into Uganda alone.  As elsewhere in South Sudan, the conflict in the Equatorias has played on pre-existing ethnic and communal tensions and is marked by serious abuses committed against civilians by government soldiers and opposition fighters.

In May 2017, Legal Link International researchers visited two refugee settlements in northern Uganda and interviewed over 100 South Sudanese refugees who fled from the Kajo Keji and Pajok areas, south and southeast of Juba, between January and May of this year. Their accounts of serious violations at the hands of government soldiers match the wider patterns of violations observed since the government began to conduct counterinsurgency operations against opposition forces in the south and west of the country in late 2015.

Despite the signing in August 2015 of the Agreement for the Resolution of the Conflict in South Sudan (ARCSS), between the government and the armed opposition led by former vice-president Riek Machar, the Sudan People’s Liberation Movement/Army-in Opposition (the “IO”), attacks on civilians have now become commonplace in the previously stable southern and western regions of the country. Fighting between government forces and the IO in the capital Juba reignited in July 2016.

The conflict reached the western parts of the Greater Equatorias region in late 2015, and expanded southeast in more recent episodes of violence. Legal Link International researchers documented the unlawful killing of at least 47 civilians from the Kajo Keji area, in the former state of Central Equatoria, by government forces between June 2016 and May 2017. Researchers also documented the unlawful killing of at least 13 men and 1 woman, all civilians, by government forces during a large-scale attack on the town of Pajok, in the former state of Eastern Equatoria.

The regions of South Sudan formerly known as Western Bahr el-Ghazal, Western Equatoria, Central Equatoria and Eastern Equatoria states have been the most severely impacted by government counterinsurgency operations since late 2015.  

Witnesses and victims of abuse interviewed by Legal Link International also reported dozens of cases of arbitrary detention by the army, including cases in which victims were held in shipping containers sometimes for long periods; and enforced disappearances, whereby authorities refuse to acknowledge the detention or disclose the whereabouts or fate of a detainee. Soldiers beat and tortured the vast majority of detainees, according to victims and relatives who spoke to Legal Link International.

The cases described in this report are part of a much larger body of similar abuses documented since January 2016 by Legal Link International in the Greater Equatoria and Bahr-el-Ghazal regions -- in and around the towns of Yambio, Wau, Juba and Yei. The accounts show a clear pattern of government forces unlawfully targeting civilians for killings, rapes, arbitrary arrests, disappearances, torture, beatings, harassment and the looting, burning and destruction of their property.

In many instances, government soldiers fired indiscriminately in populated areas in what seems to have been retaliation for IO hit-and-run attacks on their forces, failing to take any precautions to protect civilians. In other cases, indiscriminate shootings and other tactics designed to instill fear in the population seemed to have the goal of displacing the civilians from rebel-held areas in an apparent effort to expose rebel fighters. The decision of rebels to encourage civilians from their own communities – particularly in the Equatorias and Wau area – to leave cities controlled by government forces, have further   contributed to displacement.

The ethnic dimension to these crimes, with predominantly Dinka forces targeting members of other ethnic groups suspected of supporting the opposition, is clear.  Exacerbating these divisions is a long legacy of the Sudanese government’s support for some of the same ethnic groups during the long southern independence wars.

The gravity of the abuses since the new war began in December 2013 and the ethnic dynamics that accompany many of these abuses is extensively and publicly documented by international organizations such as the United Nations and the African Union, non-government organizations, such Amnesty International,Legal Link International and Human Rights Watch, and by national investigative committees reporting to President Salva Kiir. However, both parties to the conflict have failed to take all necessary and reasonable measures to stop the crimes or hold those responsible to account. 

The proposed Hybrid Court for South Sudan (HCSS), provided for under the ARCSS, raised hopes that further atrocities fueled by decades of impunity and de facto amnesties would finally be curtailed. Under the peace agreement, the court is to be composed of South Sudanese and other African judges and staff, and to be established by the African Union Commission.

Nearly two years after the ARCSS was concluded, the court has yet to be established, and for more than eighteen months, almost no tangible progress toward its establishment was made. Serious crimes continue to be perpetrated, and concern that the court would never materialize increased.

Although the parties to the conflict agreed in principle to the HCSS under the ARCSS, a key challenge for the HCSS was that South Sudan’s government had yet to substantively engage with the AU Commission on the establishment of the court. 

On July 21, AU Commission, South Sudanese, and UN officials met in Juba to discuss the Hybrid Court for South Sudan and agreed on a roadmap for the court’s establishment, including finalizing the court’s statute by the end of August. If implemented, the roadmap could represent a breakthrough in advancing justice for victims of grave crimes committed in South Sudan.

The UN Security Council failed to impose an arms embargo on South Sudan and couldn’t agree to impose additional individual sanctions on two South Sudanese implicated in serious human rights abuses. These repeated failures on the international stage have contributed to the atmosphere of impunity enjoyed at home by South Sudanese leaders on both sides, and seems to have emboldened their stance. 

The impact of the violence and persistent abuses against the civilian population is devastating. Acute food insecurity is widespread. Six million South Sudanese, almost half the country’s population, face severe food shortages. The outflow of refugees continues at an alarming rate, uprooting entire communities and effectively emptying swathes of land, and 1.9 million civilians remain internally displaced, with some sheltering on UN bases. The crisis is costing the international community billions of dollars. 

Rather than allow this situation to fester, international and especially regional actors should take all means necessary to stop violations against the civilian population and provide meaningful accountability.  These include enacting and implementing an arms embargo, additional individual sanctions, and accelerating the deployment of the UN Regional Protection Force, authorized by the UNSC in August 2016 to bolster the mission’s protection capacity.

The AU Commission should move ahead with establishing the Hybrid Court for South Sudan. While positive engagement with the government of South Sudan is helpful, the AU Commission has the authority to establish the court with or without the engagement of the government and should proceed on that basis if necessary. If a credible, fair and independent hybrid court does not progress, the option of the International Criminal Court (ICC) remains and should be pursued. As South Sudan is not a party to the court, the UN Security Council would need to refer the situation to the ICC in the absence of a request from the government of South Sudan.

Based on cumulative evidence from reporting since December 2013, investigations into those responsible for committing war crimes and crimes against humanity should include investigations into the potential criminal responsibility of President Kiir, rebel leader Riek Machar and their respective top military commanders.  All those against whom there is credible evidence of criminal responsibility should be charged and prosecuted in accordance with international fair trial standards.

Lawyers Arrested for Work in ISIS Courts

Chilling Effect on Private Legal Representation

Legal Link International-(Beirut) –Iraqi authorities have issued arrest warrants for at least 15 private lawyers since July 24, 2017, on charges of Islamic State (also known as ISIS) affiliation for their past work in ISIS courts, Human Rights Watch said today. While lawyers are not immune from prosecution if they engage in criminal activity, they should not be prosecuted for doing their job as lawyers, nor should the authorities associate them with their clients’ cause simply because they represented them.

All were representing ISIS suspects facing trial in Iraqi courts at the time of their arrest, raising concerns among local lawyers that the warrants were issued to intimidate lawyers defending ISIS suspects. One senior judge told Legal Link International that since the warrants were issued, private lawyers had stopped taking up cases of any DEFANDANTS that they believed to be ISIS-affiliated, only taking cases of people they thought were innocent. As a result, only state-appointed lawyers are taking on the cases of those believed to be ISIS-affiliated. Based on interviews with four lawyers, there are serious concerns that the state-appointed lawyers are not providing a robust defense of these clients.

“The authorities should immediately explain why they are detaining and charging these lawyers,” said Kumar Karti, Middle East director at Legal Link International. “They need to make it clear that Iraqi lawyers should not be afraid to defend ISIS suspects.”

The 15 lawyers represented suspects before the Nineveh governorate’s counterterrorism court. The court has jurisdiction over cases of people currently held in the governate, which includes the city of Mosul, who are suspected of ISIS affiliation. The court currently operates in the town of al-Hamdaniya, also known as Qaraqosh or Bakhdida. A senior judge told legal link international researchers when they visited the court in July that the court was working through about 2,000 cases involving people suspected of being ISIS members or affiliated with the group.

On August 5, the senior judge told legal link international that his court had gathered evidence, including witness testimony, that 15 defense lawyers representing ISIS-affiliated suspects at the court had worked as lawyers in ISIS courts in Mosul. The judge did not know what role the lawyers are alleged to have played within the ISIS courts, and Legal Link International has not been able to review the accusations. Iraq’s counterterrorism law (no. 13/2005) punishes with death anyone who has committed, incited, planned, financed, or assisted a terror act and stipulates a life sentence for anyone who covers up such an act or harbors those who participated.

Mazen al-Saraf, a member of the Mosul Branch of the Iraqi Bar Association, said that he was sent the list of those accused before the arrests took place, and he said on August 7 that six had so far been detained, with four already in the court’s custody. The president of the Iraqi Bar Association, Ahlam Lamy, visited the court on August 6 to inquire about the arrests and ensure that the lawyers have legal representation.

One person with close knowledge of the court’s processes said he felt that this action was taken to intimidate lawyers currently defending ISIS suspects and to create a chilling effect, rather than based on specific evidence of ISIS affiliation. While Legal Link International cannot independently confirm the motivation for the charges, the senior judge did confirm that the accusations left other defense lawyers afraid to take the cases of any suspect they believed was actually ISIS-affiliated. Given that the Iraqi constitution and Criminal Procedure Code (no.23/1971) guarantee all detainees the right to a lawyer during interrogations and hearings, the government has appointed a lawyer for these ISIS suspects.

Legal Link International researchers observed two trials in which defendants had a state-appointed lawyer. The lawyers DID NOT SPEAK once during the hearings, with the judge and the court stenographer directly questioning the defendant.

Authorities should make public the basis for the prosecution of these 15 lawyers and ensure that no lawyers are prosecuted contrary to the United Nations standards on the role of lawyers. They should ensure that the rights of the 15 lawyers, and other detainees held on ISIS-affiliation charges to choose their legal representation are fully met.

International law guarantees anyone accused of a crime access to a lawyer at all stages of criminal proceedings, including during the investigation, the pretrial proceedings, and during the trial itself. Under article 1 of the UN Basic Principles on the Role of Lawyers, “All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.” Article 14 of the International Covenant on Civil and Political Rights, ratified by Iraq, says everyone charged with a criminal offense has the right to defend themselves through legal assistance of their own choosing, as well as to have adequate time and facilities for the preparation of their defense and to communicate with counsel of their own choosing.

The principles also state that anyone arrested or charged with a criminal offense, shall, in all cases in which the interests of justice so require, be entitled to have a lawyer of experience and competence commensurate with the nature of the offense assigned to them to provide effective legal assistance, without payment by them if they lack sufficient means to pay for such services.

The principles state that: “Governments shall ensure that lawyers … are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference,” and “shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.”

They also state that lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions, and that lawyers shall enjoy civil and penal immunity for statements made in good faith in pleadings or in their professional appearances before a court. However, under international criminal law, lawyers and judges can be prosecuted in exceptional cases when they have directly contributed to war crimes or crimes against humanity, including the war crime of executions following unfair trials.

“Iraqi authorities should ensure that the 15 lawyers facing arrest warrants are entitled to due process protections and fair trials that ISIS denied to all of its victims,” Karti said. “The authorities should make every effort to explain to the public whom they are prosecuting and why.”