JIFA Newsletter #1   January 2018
 
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www.jifa.uct.ac.za
 
VIRTUAL RESEARCH CLERKS FOR JUDGES 
Post graduate students at UCT are available to assist you with any research needs you have. This is a FREE service. To find out more, email vanja.karth@uct.ac.za
 
 
UPCOMING COURSES 
 
JIFA COURSE DATES 2018
 
Both courses are held at the University of Cape Town and all costs of participants are covered by JIFA – travel , accommodation and meals etc for the duration of the course. Two delegates per member country of the SACJF are invited to participate.
 
If you are interested in attending any of the courses, please discuss with your Chief Justice.
 
Core Skills course 23 – 28 April 2018
This course covers core issues such as judicial independence and ethics; motions and applications ; judgement writing etc
 
Specialist Human Rights Course 1 – 5 October 2018
 
This course builds on the Introductory courses offer in previous years and will offer one-day in-depth sessions on gender rights, modern slavery and trafficking; children’s rights ; customary law and privacy and security
 
Judicial leaders Retreat 23 – 28 July 2018
 
This retreat is reserved for the leadership of the judiciary.
 
MESSAGE FROM THE DIRECTOR
 
Greetings colleagues
 
2017 saw many challenges for judiciaries in Africa, including a number of threats from the executive, electoral difficulties and political instability, as well as many examples of extraordinary judicial independence and courage. Some examples that come to mind are the Kenyan Constitutional Court’s decision to nullify the elections ; Zimbabwe’s Chief Justice and JSC’s  fearless defence of the system of judicial appointments; The Seychelles Appeal Court judges speaking truth even when it involved one of their own; Malawi trying  its first case under their new Gender Equality Act;  Zambia grappling with balancing the rights of traditional culture, freedom of religion and international law and constitutional obligations and Uganda fleshing out the issue of the  awarding of cost orders in Constitutional matters under the new constitution. 
 
I hope that 2018 is a year that allows our judiciaries to grow from strength to strength !
 
I am thrilled to announce that we have engaged the services of a legal journalist who will be the editor of the newsletter going forward. Carmel Rickard has written about the law, human rights, justice, judgments and judicial matters for many years. A former legal editor of The Sunday Times, South Africa's biggest newspaper, she is now a columnist on legal issues. She has an LLM cum laude, was a Harvard Nieman Fellow and currently is working on a PhD in legal writing.
 
If you know of any interesting cases from your jurisdiction, please let us know so that Carmel can write about them. Academics at the University and the broader research community are also always interested in new cases that relate to their fields of expertise.
 
Warm regards
Vanja
 
 
NEWS FROM THE REGION
 
JUDGES of Kenya’s Supreme Court have unanimously thrown out the country’s mandatory death penalty, finding it was unconstitutional. The penal code said that anyone convicted of murder was to be sentenced to death, thus reducing the role of a judge after conviction: evidence in mitigation made no difference to the outcome as a judge had no choice but to impose the death penalty.
With this decision, Kenya joins Uganda and Malawi, both of which have set aside the mandatory death penalty.
 
The six top Kenyan judges said that, try as they might, they could find no rationale for maintaining an automatic death sentence. The “brutal reality” of an automatic sentence did not fit with Kenya’s progressive bill of rights and was “a colonial relic” that had no place in modern Kenya.
 
The prisoners who brought the case have been referred back to the trial court for re-sentencing, and the judges have asked the attorney-general and parliament, as a matter of urgency, to deal with new provisions required in the wake of the judgment.
 
Carmel Rickard writes that the decision – which leaves unresolved the question of whether the death penalty itself is unconstitutional – is important for judges in other jurisdictions because of the helpful list of national and international precedents quoted. It is also important because it shows that Kenya is part of a trend away from automatic sentences, following other countries worldwide including in Africa. The court also ordered that the attorney-general should report back within 12 months on progress towards resolving sentencing guidelines and other issues arising from their judgment: this decision to maintain close oversight by the court indicates that the judges regard the changes they have recommended as extremely urgent.
 
 
 
 
Bringing war criminals to justice
 
By Carmel Rickard
Article orginally published in Legal Brief
The sensational year-end arrest and bail hearing in Cape Town of convicted international arms trader Guus Kouwenhoven has brought the terrible decades-long Liberian civil war back into focus in SA.
 During his absence from Holland, millionaire Kouwenhoven has already been convicted and sentenced for the part he played in one of Africa’s longest and most destructive regional conflicts, a civil war that left an estimated 250 000 people dead.  Now, following his December arrest, the Dutch authorities have begun extradition proceedings to have him return and serve his 19-year sentence.
 Kouwenhoven (75) waits out this battle over his future under tough bail conditions, including reporting to a local police station twice a day and house-arrest over weekends.
 But it turns out that SA is not the only far-removed country whose courts have become involved in the aftermath of the 1989 – 2003 Liberian civil war.
 Strangely enough, given that US immigration services have been forced to adopt an unsavoury, anti-human rights policy under the Trump administration, it is some of the officers in that very same service who have been for some years at the forefront of an unusual strategy to catch war criminals in the US attempting to evade their just deserts.
 Within the next fortnight one of these, Mohammed Jabbateh (51), alias ‘Jungle Jabbah’, will know his fate. The Liberian, who now owns and runs an international shipping company based in Philadelphia, was arrested in March 2016 on charges that he lied when he applied for asylum in the US: two counts of fraud related to his immigration application papers and two counts of perjury.
 Jabbateh was recently convicted by a jury in Philadelphia, after its members heard witnesses brought from Liberia to speak of the atrocities committed or ordered by him. Most told of their horrific first-hand experiences. Now he is waiting for sentence, due early February.
 Also in February, Thomas Woewiyu, another suspected Liberian war criminal and former Defence Minister under Charles Taylor, will stand trial in Philadelphia. Among the charges he faces is that he lied in his US Immigration forms by failing to disclose his ties with a ‘violent political group in Liberia’.
 What these and other similar cases have in common is that the accused are alleged war criminals who try to immigrate to the US but lie in their application papers. When their true identity is discovered they are tried for technical breaches related to immigration documentation via a trial that allows information about their crimes back home to be led in court. So far, this strategy has netted suspects from Bosnia, Serbia, Croatia, Rwanda and Ethiopia among others.
 One of the driving forces behind the trials is Civitas Maxima, an NGO that helps coordinate a network of international lawyers and investigators working in the interests of victims of crimes against humanity. When I was alerted to the Jabbateh trial through an international human rights expert associated with Civitas Maxima, Professor Roland Adjovi, I discovered that the organisation sees matters like this, centred on immigration-related offences, as rapidly becoming ‘the go-to prosecution strategy for war criminals caught in the US’. That’s because immigration offences are easier to prosecute than trials involving more serious human rights or war crimes statutes since these often raise problems about jurisdiction.
 Adjovi, originally from Benin, now teaching in the US while working with a number of human rights organisations including the UN, said that each country had its own mechanisms that could be used to try and sentence war criminals ‘and it is our job as lawyers to find them and make them work’. The US had used its immigration law extensively in such cases and the Jabbateh case was the first in which a Liberian suspect was involved.
 The most difficult question in each case, however, is sentence. Because the accused are not actually charged with war crimes, the court has to consider whether to impose a sentence that relates strictly to the lies or perjury committed when the accused applied to enter or stay in the US, or whether to take the wider evidence that emerged into account so that sentence reflects the true reality.
 
In each case, victims of the crimes committed by the accused have given evidence, often extremely harrowing, and the outcome matters a great deal to them especially because there has often been no other way that they have been able to tell their story or gain any form of redress.
 
As courts hearing these cases have differed in their approach, sentences imposed span a wide range: from a year to more than 20 years. Like the other judges in such matters, the judge in Jabbateh’s case could choose to consider the fraud and perjury offences only, in arriving at the sentence – or could increase the sentence to reflect the seriousness of the other crimes described by the witnesses, in other words have regard to the crimes that caused Jabbateh to lie in his application. Adjovi said he hoped that the sentence passed in this case would reflect the seriousness of the evidence led at the trial including multiple rape, particularly gruesome murders and cannibalism.
 According to Web-based details of Jabbateh’s trial, prosecutor Nelson Thayer said the questions in immigration documents were specially designed to give people like Jabbateh a choice: ‘tell the truth and potentially risk losing residency or lie, and risk prosecution for perjury and fraud’. Jabbateh had lied on many occasions in his written applications and in oral interviews, said the prosecutor. ‘You can’t commit heinous war crimes in your home country and then come here and ask to stay, and lie about it,’ Thayer warned.
 
Extracts from the Quarterly Highlight from the Business and Human Rights Resource Centre : How courts and advocates are shaping legal doctrine on corporate liability and human rights obligations
 
Republished with the kind permission of the Business and Human Rights Resource Centre
Questions on duties and potential liabilities of corporations continue to be debated and settled in different jurisdictions, the crucial issue at heart being whether victims of abuses are able to seek redress against corporations, especially in the home states of multinational companies.

There have been interesting developments in various jurisdictions recently regarding civil and criminal liability for corporate involvement in human rights abuses committed abroad.

In October, a UK court allowed Zambian victims’ claims in the Vedanta Resources water pollution case to continue being heard in the UK. The court stated that a parent company’s duty of care could extend to a person affected by the operation of its subsidiary. This ruling represents a breakthrough in ‘piercing the corporate veil’, which is widely recognized to be a key obstacle to accessing remedy.

A report supporting allegations of Shell’s complicity in severe abuses by the Nigerian military in the 90s, points to advances in the criminal liability of companies or their key personnel. These developments add weight to growing recognition by some scholars of an emerging norm of corporate criminal accountability for international crimes.    

While States are understood to be the primary duty bearers under international law, the argument that corporations should have legal obligations to respect human rights has increasingly been put forward as necessary to strengthen accountability and access to justice for corporate-related human rights abuses. Several states, for example, have established in their Constitutions that non-state actors such as corporations bear direct human rights responsibilities. This is the case in Kenya, whose 2010 Bill of Rights extends to private law and conduct, thereby binding private actors (articles 2(1) and 20(1)). These provisions have been interpreted in the 2013 Amy Kagendo Mate v Prime Bank Limited & Credit Reference Bureau Africa case, in which the High Court dismissed an objection that constitutional rights could not be enforced against private entities and stated that “the jurisprudence that has emerged from this Court is that the Constitution now contemplates both vertical and horizontal application of the Bill of Rights” (paragraph 23).

A similar reasoning was used in the William Musembi & 13 others v Moi Education Centre & 3 others decision, where a private education company was found to have violated constitutional rights. Such developments have been seen as opening additional avenues for remedies for corporate abuse.

Stella Wangechi of the Kenya National Commission on Human Rights said: “The creation of an obligation on private parties, including businesses, to respect human rights, and the widening of standing rules to create more room for public interest litigation are developments that can only be celebrated by those working to further corporate accountability”.

Corporate accountability advocates in Uganda are also increasingly turning to the country’s Constitution as a potential liability tool for corporate-related human rights violations. Article 20(2) provides that the rights and freedoms enshrined in the constitution “shall be respected …by all persons”. In a lawsuit filed in the High Court of Uganda against China Communication Construction Company (CCCC) in May 2017, employees who claim they were fired for being HIV positive alleged the company had violated constitutionally protected rights.
 
The issues of corporate liability and obligations were also discussed at the end of October 2017 during the third session of the UN intergovernmental working group (IGWG) tasked with drafting a binding treaty on human rights, transnational corporations (TNCs) and other business enterprises (OBEs). The elements for the draft international instrument issued by the Chair suggest that states should adopt legislative or other measures to “regulate the legal liability of TNCs and OBEs in administrative, civil and criminal fields”. The elements also contain a section on “general obligations” and suggest that coupling the strengthening of states’ primary responsibility to protect with the recognition of direct obligations for TNCs and OBEs would be key to allow for the prevention and redress of corporate-related human rights violations.

During the IGWG’s third session, delegations welcomed the inclusion of recommendations on legal liability in the elements for the draft international instrument, and some appreciated the flexibility regarding the adoption of measures at the national level given existing differences in legal systems. Several states raised concerns in relation to the imposition of obligations on corporations, while others referenced other treaties in the fields of international environmental and investment law already imposing such obligations. The International Organization of Employers disagreed with the proposal to impose international obligations on companies, highlighting the implications of delegating states’ duty to the private sector. The vast majority of civil society organisations present repeatedly called for the future binding instrument to include robust measures to strengthen corporate liability, and continued to argue that an international treaty is necessary to end corporate impunity.
 
While obstacles to corporate legal accountability for human rights abuses remain numerous and complex, norms and legal doctrines on corporate liability and human rights obligations continue to evolve at the national and international levels. As demonstrated by major events, reports and rankings this year, access to remedy for corporate abuse remains a priority area in the business and human rights field.
 
 
 
DISCLAIMER:
Please note that the content remains the intellectual property of the author/s and may only be republished with the written consent of said author. The views and opinions expressed herein are solely those of the authors and do not necessarily reflect those of JIFA.
 
JIFA, A joint initiative of the Democratic Governance and Rights Unit, University of Cape Town, ICJ-Africa and The Southern African Chief Justices' Forum