Oct 8, 2020 | News
Proposed legislation to regulate the operations and functions of the legal profession in Eswatini does not comply with international and regional standards and would severely undermine the right to an independent lawyer, the ICJ said today.
A Bill that the Government of Eswatini is reportedly seeking to introduce in Parliament would establish a Legal Services Regulatory Authority which would be responsible for issuing practising certificates to lawyers, disciplining lawyers in case of unethical conduct, developing and enforcing performance standards for legal practitioners in Eswatini, the ICJ said.
The proposed Legal Services Regulatory Authority would constitute up to 10 members of which only one would be appointed by the legal bar association (Law Society of Eswatini).
If enacted into law, the bill would severely undermine the independence of lawyers in Eswatini and may set a dangerous precedent for other countries in the SADC region, especially at this time when lawyers in other parts of the region are being persecuted by their governments, the ICJ added.
When discharging their functions, legal practitioners must be independent of control and undue influence in order for them to be able to represent their clients more effectively.
“The Legal Services Regulatory Authority proposed under the Eswatini Bill does not qualify as a self-governing professional body or an independent statutory authority because all but one of its members will be appointed by government,” said ICJ Africa Director Kaajal Ramjathan-Keogh.
“The establishment of this regulatory authority is likely to have a chilling effect on the freedom of lawyers to discharge their functions without being afraid of potential retribution through disciplinary proceedings based on frivolous charges,” she added.
The ICJ calls upon the Government of Eswatini to honour its domestic and international legal obligations to respect the independence of lawyers.
In this case, the ICJ urges the government to withdraw this bill and respect the independence of the lawyers to regulate themselves.
Background:
Eswatini has an obligation, in terms of its domestic constitution as well as regional and international law and standards, to respect and protect the independence of lawyers. Section 21 of the Constitution of Eswatini and regional and international human rights treaties and standards guarantee for every person the right to a fair hearing and the right to legal representation. These rights cannot be enjoyed effectively, unless lawyers are guaranteed the freedom to represent their clients and perform all their other duties without harassment, intimidation and undue interference.
The right of everyone to access to a lawyer as an essential element of a fair trial is recognized in, among other sources, the International Covenant on Civil and Political Rights (ICCPR), to which Eswatini has been a party since 2004. International and regional standards on ensuring the independence of lawyers are set out in the UN Basic Principles on the Role of Lawyers (UN Basic Principles) and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.
Principle 16 of the United Nations Basic Principles, for instance, enjoins all governments to “ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference”.
Principle 24 affirms that, “Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.”
Principle 28 states that “Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.”
In a recent unanimous resolution, the UN Human Rights Council recognized that “an independent legal profession” is among the “prerequisites for the protection of human rights and the application of the rule of law and for ensuring fair trials and the administration of justice without any discrimination”.
The Human Rights Council specifically expressed its concern “about situations where the entry into or continued practice within the legal profession is controlled or arbitrarily interfered with by the executive branch, with particular regard to abuse of systems for the licensing of lawyers.” It recommended that any domestic legislation should “provide for independent and self-governing professional associations of lawyers” and should “recognize the vital role played by lawyers in upholding the rule of law and promoting and protecting human rights”.
Contact:
Kaajal Ramjathan-Keogh, Director of ICJ’s Africa Regional Programme, c: +27845148039, e: Kaajal kaajal.keogh(a)icj.org
Nov 25, 2019 | Multimedia items, News, Video clips
The ICJ just launched a 15 minute documentary showing contributions by the ICJ and local human rights defenders in bringing the Sexual Offences and Domestic Violence (SODV) Act to pass in Mbabane, Eswatini.
The documentary was launched at an SODV Act media training held with the Cooperation for the Development of Emerging Countries (Cospe) and the Editor’s Forum. The training was aimed at taking a human rights-based approach to understanding the Act, following pushback from those who have expressed the view that parts of the Act are an as an affront to Swazi tradition and culture.
In an effort to combat the various challenges presented by SGBV, the Kingdom of Eswatini introduced the Sexual Offences and Domestic Violence (SODV) Act in 2018. The Act complies with its commitments under international and regional human rights law to fight the scourge of SGBV in the country.
The documentary highlights the way in which the Act is expected to be instrumental in combatting the scourge of sexual and gender-based violence, as well as areas in which it has been contested. The documentary was well-received by participants of the training and opened up an engaging dialogue about its usefulness.
The media is at the forefront of informing public discourse about the Act and it is hoped that this training provided some much-needed clarity around the Act.
Watch the documentary:
Contact
Khanyo Farisè (Legal Associate): e: Nokukhanya.Farise(a)icj.org
Shaazia Ebrahim (Media Officer): e: shaazia.ebrahim(a)icj.org
Nov 22, 2019 | News
A wide range of stakeholders in Mbabane, Eswatini came together to discuss the challenges they face in combating sexual and gender-based violence (SGBV) in the country.
On 21 November, the ICJ hosted a symposium with representatives of the Attorney General, Ministry of Justice, police, Human Rights Commission and Law Society on cases involving economic, social, and cultural rights and SGBV. The event was followed by an integrated meeting involving State officials in the justice sector to discuss the implementation of the Sexual Offences and Domestic Violence (SODV) Act was discussed.
The Kingdom of Eswatini faces widespread instances of SGBV and it is hoped that new initiatives, such the enactment of the Sexual Offences and Domestic Violence (SODV) Act in 2018, will be effective in addressing the scourge of SGBV in the country.
The symposium was led by Justice Qinisile Mabuza, Principal Judge of the Eswatini High Court and ICJ Commissioner, accompanied by ICJ Commissioners Justice Sanji Monageng of Botswana and Professor Michelo Hansugule of the University of Pretoria, and Justice of the High Court in Zimbabwe Amy Tsanga. The ICJ’s Senior International Legal Adviser Emerlynne Gil gave a presentation on gender stereotypes and international legal standards on SGBV ICJ Africa legal associate Khanyo Farisè and ICJ consultant Mary Pais Da Silva also participated in the symposium.
Speakers emphasized the critical role of the judiciary and other justice sector actors in ensuring that Eswatini meets its legal obligations under international human rights law, including standards governing the African region, to protect survivors of SGBV.
“The judiciary is a critical component in the intervention against SGBV. The judges have to know about human rights, appreciate what SGBV actually entails, understand what those violations mean, and the international standards and local roles where they exist. Judges also should be able to use jurisprudence from other jurisdictions to justify their decisions,” Commissioner Monageng said.
The participants of the symposium, were subsequently joined by representatives from the Department of Public Prosecutions (DPP), the One Stop Care Centre for sexual violence survivors, and the Deputy Prime Minister’s Office, came together to discuss the implementation of the SODV Act. Recommendations included better collaboration with judicial actors, the training of law enforcement agencies on receiving report of sexual violence, better case management and the development of forensic laboratories were made.
Contact
Khanyo Farisè (Legal Associate): e: Nokukhanya.Farise(a)icj.org
Shaazia Ebrahim (Media Officer): e: shaazia.ebrahim(a)icj.org
Sep 2, 2019 | News
In a statement, the ICJ, along with various other local and international civil society organizations and affected communities demand redress for forced evictions following visit of African Commission member and ICJ Commissioner Jamesina King.
On 27-28 August 2019 members of local communities who have endured or are at imminent risk of forced evictions in Eswatini met in Manzini to continue their advocacy efforts against forced and mass evictions. These stakeholders called on the responsible government authorities in Eswatini to take immediate measures to address the practice of forced evictions in violation of the right to housing.
The Eswatini land governance system fails Swazi people. Most land is held by the King in “trust”, other Swazi people live on title-deed land without formal recognition. Swazi people do not enjoy security of tenure and are vulnerable to forced evictions. Under international human rights law, forced evictions may only happen as a last resort, in terms of a court order, once all other feasible alternatives have been exhausted and appropriate procedural protections are in place.
Some participants in the workshop had previously submitted a report that documents forced evictions in Eswatini and engaged with the African Commission on Human and Peoples’ Rights (ACHPR) at its 63rd Ordinary Session in Banjul, Gambia in October 2018. As a follow-up, the community representatives invited ACHPR Commissioner Jamesina King to participate in their meeting in Manzini in August 2019.
“It is very obvious that the laws of Eswatini have to evolve to provide these communities with legal protection and to put an end to forced evictions,” Commissioner King told the communities. King also called for the government to declare a moratorium on forced evictions until laws have been enacted which provide sufficient protection for the right to adequate housing.
The meeting, which was facilitated and coordinated in partnership with the Foundation for Socio-Economic Justice, the International Commission of Jurists, Amnesty International and the Southern African Litigation Centre, was also attended by local civil society organizations, religious groups and concerned individuals. The participants also had the opportunity of engaging with the Eswatini Commission on Human Rights and Public Administration.
Participants included representatives from communities recently affected by evictions from affected communities, from Nokwane and the Malkerns. Representatives from communities facing imminent eviction in Mbondzela, Gege in the Shiselweni region, Vuvulane, Madonsa and Sigombeni also participated.
Participants demanded the following in conclusion of the engagement:
- A public, time bound commitment to a moratorium on forced and mass evictions.
- The enactment of legislation that explicitly prohibits forced and mass evictions in all circumstances and sets out safeguards that must be strictly followed before any eviction is carried out.
- The provision of reparations for those families who have already been subjected to forced evictions in the absence of sufficient legal protections.
“The ICJ sees the Minister of Justice Pholile Dlamini-Shakantu’s willingness to discuss forced evictions with Commissioner King as a welcome indication of the government’s openness to constructive input by the African Commission. It is hoped that the government takes heed of struggles of community members, and acts swiftly to put an end to forced evictions in Eswatini”, said Arnold Tsunga, ICJ’s Africa Director.
Find the full statement, which is endorsed by the Foundation for Socio-Economic Justice, the International Commission of Jurists, Amnesty International and the Southern African Litigation Centre here;
Eswatini-Swazi Government to End Forced Evictions-News-Webstory-2019-ENG
For more information contact:
Tim Fish Hodgson timothy.hodgson(a)icj.org +27 82 871 9905
May 30, 2019 | News
On May 29 2019, the ICJ facilitated a workshop with a number of justice sector officials and stakeholders who are active in the implementation of the Sexual Offenses and Domestic Violence Act (SODVA).
Building on previous engagements in 2018 and 2019, the participants decided on a clear plan of action for further coordination towards the eradication of sexual and gender based violence (SGBV) in Eswatini.
Participants in the meeting included representatives from the Office of the Director of Public Prosecutions, the Office of the Deputy Prime Minister, the police, correctional services, the judiciary and the Medical and Dental Association of Eswatini.
The meeting, was opened by ICJ Commissioner and Principal Judge of the High Court of Eswatini, Justice Qinisile Mabuza.
“For too many years, the clamour for this law has been loud; now that we have it, we have to interrogate how efficiently we are using it and check for the gaps that we need to address. Its implementation is in our hands, and we cannot allow ourselves to fail those that need our protection; we cannot fall foul of failing in our duty,” said Judge Mabuza.
A draft report, commissioned by the ICJ, was presented by Nonhlanhla Dlamini, the Director of Swaziland Action Group Against Abuse (SWAGAA).
The report, provided participants with a contextual analysis of challenges faced by survivors of SGBV in accessing the justice system in Eswatini.
ICJ Legal Adviser Timothy Fish Hodgson discussed key provisions of the SODV Act and the need for their interpretation and application consistently with the Convention on the Elimination of Discrimination Against Women.
SWAGAA’s draft report revealed that despite the enactment of the SODV Act significant barriers to access to justice for survivors of SGBV remain.
These include:
- Underreporting of SGBV;
- Stereotyping and discrimination faced by survivors when reporting;
- Partial application of SODV Act due to lack of knowledge on the part of key justice sector actors;
- Under-resourcing, lack of infrastructure and services presupposed by SODV Act which prevents full implementation;
- Continued stereotype-driven assumptions made by courts despite the outlawing of such approaches in the SODV Act;
- Lack of due diligence in the collection of medical evidence;
- A perception on the part of survivors that perpetrators are better taken care of in the prosecution process than survivors; and
- A growing and inaccurate perception of the SODV Act and its purposes, which has been facilitated by misleading media reports.
Participants made practical recommendations of how challenges could be addressed in their particular environments. Stressing the need to ensure continued collaboration and momentum in the implementation of the SODV Act, ICJ Africa Director Arnold Tsunga observed that: “Whether this process actually builds towards better protection from SGBV for the marginalized in Eswatini and the SODV Act’s impact is dependent on how participants in this platform and other officials are able to adopt practical measures and implement them effectively.”
