STATEMENT ON MALAWI
The Justice Leaders have issued a statement on the decision of the government of Malawi to effectively force Chief Justice Andrew Nyirenda into retirement, following a court decision ordering a rerun of last year’s presidential elections. They urge the government to respect the constitution and to protect the independence and safety of the judiciary.
Read the full statement.
JUSTICE TASK FORCE SET-UP
Sam Muller, CEO of HiiL and former Chairman of the Executive Board of the Justice Leadership Group, on the launch of an International Task Force on Justice in Buenos Aires.
In my latest column on Slaw Online I raise a global access to justice alarm. We are not moving on Sustainable Development Goal 16.3 on equal access to justice. There is a tremendous lack of data and therefore the indicators for measuring whether any movement is being made towards achieving the goal are far below par. Funding levels are low and do not in any way resemble the kind of concerted efforts that we see in areas like health and education. Innovation is minimal.
This matters for two reasons. Firstly, because the lack of effective justice services affects a lot of people, in key relationships, with severe consequences. I am talking hundreds of millions. Read the blog for the details. Secondly, because in 2015 the heads of State and governments of all the UN member states decided that there should be a Sustainable Development Goal on equal access to justice. That was a promise, a decision and a commitment made to the citizens of the world, in particular the most vulnerable. It must be honoured.
There is also good news. Last week an international Justice Task Force was set up and had its first meeting in Buenos Aires. It is part of a wider initiative called Pathfinders for Peaceful, Just, and Inclusive Societies. The Task Force brings together a group of governments, international organisations, and civil society organisations to making SDG16 something real and tangible.
Sierra Leone, Argentina, and The Netherlands, preside, all at ministerial level. Amongst other, impressive leaders in the field, the Task Force includes of the Justice Leadership Group, Kalthoum Kennou and Athaliah Molokomme. The group has the support of two members of The Elders, Hina Jalani and Mary Robinson. Other leading organisations include the Open Society Institute and Namati. There is a true joining of forces – providing full access to justice for all requires strong leadership in justice. Having been present at this first meeting I have seen at close hand that the Justice Task Force will really be able to make a difference and rally more support for SDG16.3. Concrete decisions were taken to start bringing together knowledge and strategies that will make SDG16.3 more understandable and more actionable as a problem. As the Justice Dialogue on 7 September 2017 emphasized, the JLG in cooperation with HiiL will continue to lend full support to the work of the Task Force.
SDG TARGET 16.3 REQUIRES SYSTEM CHANGES
How can we develop a better functioning justice market that involves government, civil society, and the private sector in ways that produce both innovation and solutions at scale? This was the key question addressed at a Justice Dialogue held in the Peace Palace in December 2017, hosted by the Justice Leadership Group and HiiL. The key conclusions from that Justice Dialogue can be found in a blog post initially published on the HiiL website on 8 February 2018, or below.
We are not at all on track with the realisation of SDG Target 16.3: equal access to justice for all.
HiiL’s surveys show that 60% of the justice needs people have involve five problems: family disputes, neighbour disputes, employment disputes, crime, and land disputes. These concern key relationships and needs. Shockingly, a little over 70% of the people who experience such problems do not find a satisfactory resolution. The survey also revealed that almost 30% don’t even feel empowered enough to take action and that women and other vulnerable groups have less access to justice.
For each of the five priority problems we measure severe consequences: from violence and loss of livelihood to damaged relationships and health problems.
This affects more than half of the world’s population. To deal with this challenge we need two things:
- A lot of innovation, because existing mechanisms are not delivering
- Solutions at scale, because a lot of people need to be reached.
Why is this not happening? This was the key question addressed at a Justice Dialogue held in the Peace Palace in December 2017, hosted by the Justice Leadership Group and HiiL. Chief Justices, (assistant) Ministers of Justice, and justice innovation leaders from all across the world gathered to discuss the topic of Breaking barriers to justice innovation.
How can we develop a better functioning justice market that involves government, civil society, and the private sector in ways that produces both: innovation and solutions at scale? The dialogue gave rise to three main themes:
Some needs are more pressing than others. Budgets are not endless and organisational capacity has limits. How do you know your innovation priorities? The keyword is data. We need data on justice needs that can be presented in an actionable way, enabling stakeholders to build an agenda and strategy around it. This data should be made available to the public. We also need documented and systematized evidence of what works. This evidence could help in implementing a system that measures improvement. Lastly, we need to shift our focus from a response-system to cost-effective prevention.
Roles and partnerships
Designing and implementing innovating justice solutions requires the coordination of many efforts. What efforts, and how do they work together? The discussion made clear that key actors and stakeholders in the judicial system must rethink their view on partnerships. Up until now, the private sector has largely been absent and, in fact, often not welcome. However, there are many areas where public-private partnerships (PPPs) in the justice sector can prove to be both effective and efficient. Ownership is another element: a ministry of justice, a chief justice, and a chief prosecutor cannot place justice innovation on the agenda by themselves. While forging partnership is crucial, we also need people who can be responsible. Why can we not have a ‘CEO’ of family, employment, crime, neighbor or land justice problems?
Funding for justice innovation
Innovation and scaling up need funding. But where are the innovation funds? Currently, there is hardly any budget for investment in the entrepreneurial justice sector. We need to help investors realise why it makes sense to invest in justice innovations. Unresolved justice needs undermine social harmony and economic growth. This argument needs to be prioritised if we are to get the political leadership on board. The link is – or should be – fairly obvious: there can be no peace and prosperity without justice.
In this report, you will find the main conclusions of the group and follow-up that they agreed to.
We welcome your thoughts, input, and invite you to join us in the effort to break down the barriers to justice innovation!
Please contact Eirin Sundby for more information.
WILL THE KENYAN ELITE EVER GROW UP?
Former Chief Justice and President of the Supreme Court in Kenya, Willy Mutunga, has written about the Kenyan judiciary and the country’s elite. His article, “Will the Kenyan elite ever grow up”, was published by The Star on 16 September 2017, and the original version can be found here.
The Kenyan elite and its variants in the political, corporate (licit and illicit), civil society, media, intelligentsia and the diaspora, need to grow up and cease their superficial dramas and look past their noses to see that their theatrics have far-wide reaching consequences that affect millions of lives.
But the million-dollar question is can they ever grow up?
The factions of the divisive Kenyan elite have consistently subverted one important pillar in the 2010 vision of the Constitution – The one on building strong institutions to deliver on the promise of democracy to the country.
The Judiciary continues to endure vicious attacks on its independence and whenever elections take place, followed as they are invariably by electoral disputes – the Judiciary is never spared. More likely, it gets thrown into centre ring for all sides to rain their blows.
We have had two presidential elections in 2013 and 2017 with petitions filed challenging the victors in the two respective elections. The elite factions have used Mahakama ya Juu (the Supreme Court) as their political punching bag. Justice, according to factions, is only done when the apex court decides in their favour. Since someone has to lose, the losing party does not spare the court and in turn, aggravates the already shaky public confidence for the apex court.
Let me remind you of some facts pertaining to the two presidential petitions that you may have forgotten.
In 2013, the Supreme Court of six judges unanimously dismissed the petitions filed by Coalition for Reform and Democracy (CORD), then led by Right Honourable Raila Odinga, together with non-profit organisation AFRICOG, (Africa Centre for Open Governance).
Jubilee was one of the respondents.
Before the petition however, Jubilee supporters, no doubt encouraged by their leadership, undertook a campaign on social media and other forums, against my person. The argument by Jubilee followers was that I was a friend of Raila and was, therefore, biased in his favour. CORD followers did not come out to defend me either. I think they believed and probably hoped the assumptions were true.
After our decision, I quickly earned the support of Jubilee followers and the ire of CORD supporters who quickly christened me “Chief In Justice.”
At Kasarani on April 09, 2013 I arrived early to witness the swearing-in of President Uhuru Kenyatta and the Jubilee followers in the sports centre gave me a thunderous standing ovation after the master of ceremonies announced my arrival. The reception was so overwhelming and loud, one would have thought I was the highlight of the day!! But I didn’t like the feeling either as, there was no need for any applause as we in the Supreme Court were just doing our jobs.
I had to wonder that if I had been anywhere else, in another stadium in Western Kenya or Ukambani at that moment, I would have most certainly been verbally attacked and abused by opposition supporters. It was clear that divisive politics undertaken by the Kenyan elite would continue to be the curse of our politics.
Raila played the consummate statesman by declaring that he accepted our decision, but did not agree with it. However, his running mate, Honourable Kalonzo Musyoka, told the Kenyan public that the Court had been bribed and confirmed the bribes were hidden in offshore accounts. He also claimed he had details of these accounts.
When challenged to reveal this evidence to the Judicial Service Commission (JSC) to enable it to start disciplinary proceedings against us, he went into hiding much like the accounts he had talked about.
The claim we were bribed dealt a major blow to the Judiciary as it was tantamount to calling us corrupt and lacking in integrity as judges in the highest court of the land. Even though all the allegations were false, the public’s faith in us was affected.
Raila himself modified his earlier position by calling us Mahakama ya Bandia (Fake/False Court) but to his credit, he later apologized for his attack on the apex court.
Over the years since that decision it seems some critics have forgotten we were six judges who delivered that unanimous judgment together and I was tasked with reading it on behalf of the Court but I ended up being the sole target of the attacks.
This is probably because of the cult of personality and responsibility of a leader, as collective leadership rarely counts in electoral disputes.
Today, these attacks on the Judiciary have been revived with greater venom by some followers and supporting intellectuals of the National Super Alliance (NASA) since the September 01, 2017 decision by the Supreme Court. Raila and the rest of the planet, for that matter, have declared, and rightly so, the 2017 Supreme Court decision “historic.”
Some weeks before the filing of NASA’s petition the NASA coalition had volunteered this political advice: they will give the Supreme Court another chance to redeem itself from the infamy and stain of its 2013 decision. In my book that’s deliberate intimidation, however, I don’t think the Supreme Court was deterred.
As soon as the decision was delivered it was now, “the losers”, to get on stage and comment on the decision. President Kenyatta started on the right footing repeating Raila’s words like any statesman: “We accept but we do not agree with the decision,” and he also called for peace among neighbours rightly stating “politicians come and go. Neighbours do not.”
The President and his deputy left the State House stage only to appear later at Buma Market in Eastlands, Nairobi for another showdown.
I watched in distress as Chief Justice Maraga, Deputy Chief Justice Mwilu, judges of Supreme Court Wanjala and Lenaola were called “Wakora.” “Wakora” in Kiswahili does not only mean what the media translated as “thugs.” Yes, it could mean that among other equivalents: con persons, cheats, thieves, robbers, corrupt individuals, grabbers, pick-pockets, unreliable persons, in a word, the scum of the earth.
Later the President called the four judges “wajinga” in Kiswahili meaning idiots, fools, and for judges in the highest court, those words only breed dissent and disrespect.
The President then publicly threatened the judges over their decision. Interestingly, the President has been silent on the decision of the two dissenting judges of the Supreme Court, namely, judges Ojwang and Ndung’u.
The Deputy President followed suit and issued open threats against the same four judges of the Supreme Court, saying that the judges have shown their hand and he urged them to watch out for his. Like the President, he too has been silent on his judgment of the two other judges.
I can only imagine what must be going through the minds of the four judges as a result of these threats: betrayal by the executive arm of state that ought to promote and protect their decisional independence and the independence of the judiciary as a whole.
It cannot be lost on observers that this intimidation is coming from two leaders who took on the might of the International Criminal Court (ICC) and came out with political and legal success.
Senator Kipchumba Murkomen, an officer of the Supreme Court took me by surprise with his threats but I shouldn’t have been. Nobody should ever rationalize the actions of politicians. Senator Murkomen has failed to consider his material interests in the Supreme Court should his political career come to a screeching halt in the near future. Would the Judiciary not be his market where his legal wares would be displayed for sale? What is the Law Society of Kenya going to think of these attacks by one of their own? I would be very surprised if the Law Society of Kenya, after scolding the President and the Deputy for their respective bullying of the Supreme Court, would not consider disciplinary proceedings against the Honourable Senator.
There have been attacks by both sides of the Kenyan elite in other courts, the High Court and the Court of Appeal. Besides the privileged factions building divisions among the people, they have also become masters of false news, propaganda, rumour, and gossip. The so-called rich political grapevine in Kenya has only served to exacerbate these divisions.
How are courts supposed to administer justice if the judicial officers walk in amid these divisions? Even the famous Solomon cannot make use of his “solomonic” wisdom in any of the courts of justice in Kenya. He will be judged through the prisms of these divisions and the rumour mills and the channels of gossip will anticipate his decision – He will be vilified by those who lose and be praised by those who win.
How can we talk of justice when every electoral dispute divides the masses? Sadly, the Kenyan elite and its factions, and its public intellectuals to boot, never reflect on these issues. How they intend to build a nation and fulfil the promise of the Constitution is beyond me.
There is not doubt in my mind that divisions in various state institutions are caused by these factions of the Kenyan elite. The IEBC is perhaps a case study of these divisions.
If the Kenyan elite was really conscious of its interests, it would have solved its succession disputes by building institutions it trusts for their independence. They would have formed political parties that are establishments with sound intellectualism, ideology, and politics – institutions of permanence. The elite are lucky that the acting Registrar of Political Parties has never read the constitution. If she had done, and was committed to breathing life into the constitutional provisions relating to political parties, she would have sent many of them to their political graves.
The factions and their political parties strive for capturing institutions so that they can use them for their own gain. Invariably, these institutions, once captured operate on very unstable terrains that are against national interests.
Again, pardon me for rationalizing the elite factions. If they wanted free, fair, peaceful, credible, and acceptable elections what stops them from sitting down to agree on how to monitor the IEBC? They could have installed cameras at polling stations or hire an independent body to oversee the electoral process.
It is clear the IEBC will now have to be monitored robustly. Demands can be made upon it to be transparent and accountable with faction representatives making sure this happens. Even on the issue of technology, an agreement can be reached on the removal of opaqueness and the monitoring of technology by gurus from Google, Facebook and others to confirm the integrity of the process.
Each faction can monitor the operations of IEBC without micro-managing it or dividing the staff and the commissioners. It seems to me that this sensible way of sorting out issues is not on the agenda as the chaos is welcomed with open arms.
In Kenyan elections, political disputes in court are the continuation of politics in other forums where political deaths can be avoided by making sure someone or an institution is blamed for the loss.
If the elite, whose hands this country lies in truly wanted to uphold the constitution they would support the CJ and DCJ who are a more popular representation as judicial officers are recruited by the Judicial Service Commission (JSC) after robust public participation.
The executive is represented in the JSC (by two commissioners, the Attorney General, and the Chair of the Kenya Public Commission) besides the President personally having the right to comment on the suitability of the candidates, by filing reports if he chooses to, for consideration by the JSC.
The nominations the JSC gives to the President go to the National Assembly for vetting, first by a parliamentary committee, and then by the National Assembly. Which politician or faction of the elite can command such an endorsement?
The approval by National Assembly of both nominations captures the will of all Kenyans represented by the various political parties. It is clear that this “tyranny of numbers” in favour of these two judicial officers has never occurred to the factions. Indeed, other judges while skipping the vetting of National Assembly, are also vetted by the broad public. I have always found the question “who elected these judges?” unthinkingly bizarre. They are elected by you the “people’s representatives!”
Let me conclude by answering my own question “When will the Kenyan elite ever grow up?” Looking at the current state of affairs, it looks highly unlikely!
They are stunted, self-absorbed, quite oblivious to the harsh reality most of our population face on a daily basis and they are on a dangerous terrain of an unacceptable and an unsustainable status quo. The elite faces a resistance it underestimates because of arrogance, impunity, and immunity of power.
We should take seriously the refrain that Kenya is ripe for revolution. Kenya is slowly building a new alternative to this elite that has proved unable to build a just, equitable, peaceful, and prosperous economy that guarantees material resources to all its citizens. Nobody says it is going to be easy, but the first steps in the journey for decolonization and freedom are being taken, fully aware of the lessons already learned in the past.
This reality whose pillars of social movements, creating alternative leaderships among the youth, and successes of devolution as demands for more resources from the centre are made, captures my fascination and the imagination of many other Kenyans.
The Kenyan elite, like many in Africa, has not identified or supported our national interests. They do not represent us patriotically in national relations with either the West or the East, preferring to build their own personal power bases among foreign interests, national and international cartels, (invariably called the licit and illicit economies, and rightly deemed “invisible governments”) that we NEVER elected.
By keeping us divided the Kenyan elite have been able to stay in power by violating our material needs at every turn. And, the invisible governments keep applauding, putting profits before us, the people.
Competition for political power has become an industry for the elite. Within the national strategic plans and visions lurk personal plans and visions of the elite on how profits will be made, resources raided, wasted, pillaged, and grabbed, so billions are generated so they can buy the next election.
Bottom line is – This status quo… MUST GO!
ATHALIAH MOLOKOMME APPOINTED AS PERMANENT REPRESENTATIVE OF BOTSWANA TO UN OFFICE AT GENEVA
Justice Leader Athaliah Molokomme, former Attorney General (AG) of Botswana from 2005-2016, started her new position as Permanent Representative of Botswana to the United Nations Office at Geneva, leaving behind a stronger and fairer judiciary in Botswana.
During Molokomme’s 11 years’ mandate as AG, she has been the principal legal advisor to the government, advised the Head of State, was an ex officio member of the Cabinet and served on a number of high-level committees such as the Central Intelligence Committee, the Defence Council, the Judicial Services Commission and the Cabinet Business Committee. With her groundbreaking leadership as AG, she established several important contributions to Botswana’s justice sector.
The Justice Leadership Group congratulates Molokomme with her new appointment. We are convinced that with her broad experience, inspiring leadership and vital advocacy, she will continue to strengthen the rule of law, peace and justice at the international level.
FROM THE POLITICS OF DIVISION TO THE POLITICS OF HUMANITY
We must not give up on revolutionary optimism. It may get us some important concessions from neo-liberalism—and possibly much, much more.
On August 27 2010 Kenya promulgated a progressive Constitution whose vision is social democracy. It’s a vision of the promotion and protection of the whole gamut of human rights; the equitable distribution of political power and the resources of society; and the creation of a nation out of different ethnic groupings. The Constitution aims to bring an end to the organization of politics through divisions; mitigate the protection of private property in land; cement agreement on national values and principles; promote integrity in public and private leadership; and build depersonalized national institutions.
The struggle to implement the progressive vision of this Constitution continues today. The elite forces of the status quo who found this vision unacceptable are resisting its implementation at every step. As the latest stage in this process, Kenya will hold new elections on August 8, 2017. I was Chief Justice and President of the Supreme Court of Kenya from 2011 to 2016, so I’ve observed and participated in this process first-hand. Given the efforts of the political elite to resist the implementation of the Constitution, I became convinced that the Judiciary had to play a pivotal role in defending and advancing it. We consciously developed a jurisprudence that promoted the Constitution’s robust implementation, and in that way the Judiciary became a political actor.
For almost the entire period since Kenya’s independence on December 12, 1963, the country’s politics have been organized around divisions: ethnic, religious, racial, regional, clan and gender-based, generational, pastoralists versus agriculturalists, and most recently, divisions driven by xenophobia. The Kenyan elite have become so adept at the politics of division that elections are never about issues, and voters seem unable or unwilling to shed the blinkers of these differences.
Academics and activists on both side of the class divide shamelessly talk of the ‘tyranny of numbers:’ out of the 43 ethnic communities in Kenya, the ‘Big Five’ command over 70 per cent of the electoral vote—Kikuyu, Kalenjin, Luo, Kamba and Luhya. The politics of division are reflected in concrete terms in ethnic coalitions that are put together by the barons of these five communities. At the moment three of them are members of the National Super Alliance, or NASA (Luo, Kamba and Luhya), while the other two form the Jubilee coalition (Kikuyu and Kalenjin). The graveyard of acronyms of Kenyan political parties since independence would make for grim but humorous reading.
There is one pillar in the Constitution that gives me optimism: devolution, which entails the equitable distribution of political power and resources. Kenya has 47 counties with governments led by elected Governors. The Constitution decrees that 15 per cent of all national resources must be shared between these 47 counties. The Kenyan Senate has come up with an equalization formula that favors counties that hitherto have been marginalized.
Notwithstanding the very real issue of decentralized corruption, reports from these marginalized counties are encouraging. I believe that anti-corruption movements are gaining ground from the margins of these counties to safeguard the resources that are devolved to them. Demands for more resources are being made from the Center in the form of the Executive, Parliament, the Treasury and the Central Bank, since these national institutions have not justified their 85 per cent lion’s share.
Devolution, more resources for counties, and weakening the Center in financial matters are issues that will take center stage in the forthcoming elections. This will be a contest in which poverty eradication and the equitable distribution of resources should feature prominently. If so, this would be a great leap forward in the quest to strengthen Kenyan democracy.
In this respect I can already see the beginnings of a politics of humanity that is based on the equitable distribution of resources. Social movements in marginalized counties are gaining strength. Public participation in the use of resources is robust. Debates are taking place around the material needs of the people like education, employment, health, sanitation, housing, environment, foreign investment and corruption. There is a great imagination and consciousness emerging from the margins that sees the prudent use of resources as one of the keys to poverty-eradication.
I have been cautioned about creating too much hope from what I see in marginalized counties. I have been warned not to create a fetish out of the Constitution, or of devolution. All I can say with certainty is that both ‘trains have left the station,’ and they will not be easily derailed.
This is not the first time we have heard of transformation from the margins. The Chinese revolutionaries talked of surrounding the cities from the rural areas, their margins. They talked of solidarities between workers and peasants on the basis of the material interests of their lives and livelihoods. And reading Nina Eliasoph’s recent Transformation piece on the United States reminds me that such debates are happening right across the world.
I have no issue with improving access to consumer goods, jobs and services like health and education. I love them. What I hate is their inequitable distribution. Eliasoph touches on the same issue in her insistence that politics needs to “offer a vision of society in which everyone could enjoy things that look like the privilege of elites…a vision that shows how lessening the gap between the rich and poor” could make these goods and services accessible to all.
In both Kenya and the US, the challenge is to resist systems that put profits before people. This challenge is centrally concerned with the equitable distribution of resources. It’s about mitigating the harshness of systems that create extreme inequalities among people. I believe such visions are reflected in paradigms of human rights, social justice, and social democracy. In practical terms it is about having a society in which everybody can enjoy at the minimum the rights, entitlements and opportunities that are currently enjoyed by elites.
History records numerous experiments in what was called welfare capitalism and social democracy after World War Two. In America Eliasoph mentions the New Deal and the Great Society of Presidents Roosevelt and Johnson respectively. I believe one could add the meager reinforcement of such state-driven projects in the US through corporate social responsibility and social justice philanthropy, which attempt to mitigate the costs and concentrated power of corporatism.
Eliasoph is right. Such solidarities are possible notwithstanding divisions in society if “white rural people’s suffering” as she puts it is addressed as a political issue alongside the suffering of people of color and low-income communities in cities. Institutionalized racism might slowly be dismantled by a politics of humanity in which resources are equitably distributed, and in which poverty knows no color.
I know the challenges that stand in the way of this potentially-transformative optimism. Neo-liberalism and the engines that put profits before people provide serious barriers to progress. Even in Kenya, devolution faces serious challenges from neo-liberalism from the elites who benefit from it and its agents.
I want, however, to join my imagination with that of Eliasoph and others in projects of solidarity across national borders. This idea is not new. The slogan of the World Social Forum is “Another World is Possible.” The Indian activist Arundhati Roy goes even further by telling us that “Another world is not only possible, she is on her way. On a quiet day, I can hear her breathing.” We must not give up such revolutionary optimism. It may get us some important concessions from neo-liberalism—and possibly much, much more.
CLAUDIA PAZ Y PAZ BECOMES JUSTICE LEADER EMERITUS
Claudia Paz y Paz, founding member of the Justice Leadership Group, steps down and becomes Justice Leader Emeritus
Claudia Paz y Paz, member of the Justice Leadership Group since its founding in 2015, steps down, as she has been appointed Secretary for Multidimensional Security for the Organization of American States (OAS). Her drive, courage and commitment to justice have inspired all members of the Group and will continue to do so, as she embarks on her next endeavour.
Paz y Paz: “It has been a great honour to be a member of the Justice Leadership Group. The valuable work of the Group to promote and support justice leadership is very important for the advancement of the rule of law and the strengthening of judicial independence. I hope that we can continue to work together in the future”.
Although she will be missed as one of the founding members, Paz y Paz will continue to inspire the Justice Leadership Group as Justice Leader Emeritus.
As Secretary for Multidimensional Security, Paz y Paz will promote and coordinate cooperation among the OAS member states and the inter-American system as well as with other bodies in the international system in order to assess, prevent, confront and respond effectively to threats to security. Claudia Paz y Paz served as Guatemala’s first female Attorney General and was Nobel Peace Prize nominee in 2013.
DIEGO GARCÍA-SAYÁN APPOINTED UN SPECIAL RAPPORTEUR ON THE INDEPENDENCE OF JUDGES AND LAWYERS
In December 2016, member of the Justice Leadership Group Diego García-Sayán was appointed United Nations Special Rapporteur on the Independence of Judges and Lawyers. As Special Rapporteur, he will be responsible for reporting on attacks on the independence of the judiciary, identifying improvements and making recommendations. To this end, the Special Rapporteur makes country visits and communicates regularly with the Human Rights Council. Diego García-Sayán is the former Minister of Justice of Peru and former President of the Inter-American Court of Human Rights. His expensive experience with human rights, justice reform and democratic transitions make him especially suited to this important responsibility.
In his motivation letter García-Sayán stated: “a universal mandate like the one of this Special Rapporteur should be a contributory factor to improve the conditions for an adequate performance of judges and lawyers”. The Justice Leadership Group wants to congratulate García-Sayán on his appointment to United Nations Special Rapporteur on the Independence of Judges and Lawyers and wishes him well with his endeavours.
JUSTICE LEADER WILLY MUTUNGA STARRING IN VPRO DOCUMENTARY ‘JUSTICE FOR ALL’
A VPRO Tegenlicht documentary was made about building rule of law, in which Willy Mutunga features in his capacity as Chief Justice of Kenya and as member of the Justice Leadership Group. The documentary aired in September 2016 in the Netherlands and an international, English language version is available online for free.
How to make justice more affordable and accessible for the people in Kenya, where going to trial is often too expensive? In ‘Justice for All’ you can see how Justice Leader Willy Mutunga created an innovative network of apps and juridicial volunteers, in which text messages, smartphones and Twitter make justice more accessible.
‘ON PROGRESSE’ – JUSTICE LEADERSHIP IN TUNISIA
Sam Muller, CEO of HiiL and former Chairman of the Executive Board of the Justice Leadership Group, visited Tunisia earlier this year to meet with Judge Kalthoum Kennou, member of the Justice Leadership Group. In a column that was previously published by Slaw Online Legal Magazine (Canada) on July the 20th, 2016, he recounts the impression that Tunisia left on him – a country in progress, where inspiring leaders are at the forefront of change. Kalthoum Kennou is one of those leaders: as Judge at the Court of Cassation, she has been a strong advocate for the independence of the judiciary and rule of law, which are essential to any democracy.
Avenue Bourghiba was closed off. A statute of the founding president of Tunisia on horseback was being reinstated in the square. The current President Essebsi was going to inaugurate it in two days. The taxi dropped me off as close as he could get. Hotel Africa is a high seventies hotel with large wooden panels, brown carpets, and huge chandeliers. As I made my way, urban Tunisia walked by and ordered drinks on the terraces: hip youngsters, women with blond hair, women with headscarves, families, groups of boys, and groups of older men. She picked me up later and we drove to Sidi Bou Said in her car. Kalthoum Kennou is one of the members of the Justice Leadership Group, a judge in the cour de cassasion, and was an independent candidate for the first presidential elections in free Tunisia. Walking with her through town is like walking though our main shopping street with my wife, one of the village-family doctors: people walk up to her, greet her, and ask her things. And unlike in most Western European countries, the Arab culture takes time to greet. There are no quick ‘How-are- you? – Fine’s’ on the streets of Tunis.
“On progresse,” she said with confidence in her voice, when we were sipping tea in Café De Delices and I asked her how things were going. Slowly but surely, the house of democracy and rule of law is being built. But, she said, it is a twenty-four-hours-seven-days-a-week job. And she started telling me the long and complicated story of the adoption of the recent law on the judiciary. A proposal that had been left lying for a while, then had been picked up and redrafted by the wrong group of people, after which an attempt had been made to hurriedly push it through. Then, a constitutional challenge by a group of NGOs before the caretaker-commission that preceded the conseil constitutionnel (which would be created by that law). The main point of contention: the principle of judicial independence. Who appoints and fires who? Who has control over the budget? These are the things the revolution was about: never again, lackey judges who do the bidding of an oppressive regime. In the end, the law was adopted, Judge Kenou told me, but there will be challenges before the conseil. It is not perfect yet – and it has to be. She told me how some of the old elites are coming back – wanted for their expertise and protected by their old power base. We also talked about the huge economic challenge Tunisia faces – with unemployment still high.
I visited the Tribunal de Premier Instance, a stately palace of justice that is about to be renovated. As it now stands, its old-fashioned courtrooms radiate formalism and project distance between those seeking justice and those that pronounce it. None of them had visible IT facilities. “That too, must change!”, Thouraya Tijani, an active attorney in Tunis, told me. Lawyers ride high in current Tunisia. She took me to the offices of the mighty barreaux, the bar association of Tunisia, where I met with its impressive president, Mohamed Fadhel Mahfoudh. Its leadership played a critical role in the 2011 revolution by taking an unequivocal stance that the sitting president should go. Then, in 2013 and 2014, its leadership joined with the leadership of the trade unions, the employers association, and the human rights league to form the Nobel Peace Prize winning Quartet that ensured a peaceful transition to a full constitution and shared, democratic government. But bluntly: a ‘Morsi’ was avoided. Justice leadership in action.
The cour de cassasion, the pinnacle of the judicial system, was housed in a terribly worn-down building. Judges shared desks, I heard, and worked from home to have Internet. On my way to meeting the procureur-general, I saw a clerk wheeling a broken desk chair through the corridors on which piles of dossiers had been stacked. But these judges keep working their huge workloads.
On progresse. What I saw was lots of argumentation, strife, manoeuvring, and debate. Daily, the new constitution is being invoked and interpreted. For good and for bad. Everyone I spoke to knows that one can’t take a day off in a land where that is being done. The laws that bring the constitution to life must be drafted, redrafted, promulgated and, most importantly, used so that a rule of law culture starts to take shape. Some want to continue doing what they did in the old Tunisia: use the law as they see fit. But others, a lively, divergent group of people and institutions, led by impressive people like Judge Kalthoum, invoke the constitution where they can. Slowly, culture is shifting. Rule of law is being built. That is fascinating to see at close hand. And painful for a Western European from a so-called ‘old’ democracy, in which I so often see a hardly noticed, nor cared about, erosion of rule of law. Judge Kalthoum would know what to do.
JUSTICE LEADERSHIP GROUP MEETS TO DISCUSS JUSTICE CHALLENGES IN THE ARAB WORLD
In response to the major justice leadership challenges ahead in countries in the Arab world, such as Syria, Iraq, Libya, and Yemen, where rule of law needs to be rebuilt when a viable peace process gets underway, the Justice Leadership Group held a Justice Dialogue in Amman, Jordan. This forward-looking dialogue on what kind of leadership is needed to rebuild the justice system in the region, with special focus on Syria, took place in the framework of the Annual Meeting of the Justice Leadership Group in Jordan on 3 September and was chaired by Dr Salaheddin al-Bashir, founding member of the Justice Leadership Group and former Minister of Justice of Jordan. Bringing together distinguished justice leaders from the region, among others the Chief Justice of Iraq, H.E. Mr Medhat al-Mahmoud, as well as high-level representatives of UN Agencies and the EU and representatives of local NGOs, the Justice Dialogue provided the first opportunity to initiate the conversation on post conflict rule of law building in Syria and how to best promote justice leadership in the region.
Justice Dialogue on rebuilding the rule of law in Syria
There is an urgent need to find innovative solutions to address the tremendous justice challenges ahead in Syria. Therefore, it is crucial to think ahead about what will be required to rebuild rule of law when a peace settlement is achieved and what can be done now to prepare this, and to provide the necessary building blocks for post conflict rule of law building. The Justice Leadership Group initiated this agenda setting process by facilitating the first of a series of Justice Dialogues on Syria, which focused on identifying key challenges for justice change, what kind of leadership is required to build the rule of law, and what can be learned from justice leaders in the region and the challenges they face.
The dialogue started with the identification of key challenges for justice change in Syria and the region, such as safety and security. Based on earlier experiences, we know that in post conflict situations people are prone to suffer from land and family disputes, limited freedom of movement, and restitution and registration issues. It was highlighted that these and other urgent justice needs of citizens should serve as the starting point. As regards justice leadership, participants recognized that leadership could play a crucial role in organizing ownership for justice change processes in Syria and the region. There was a broad consensus that it is needed to stimulate transitional leadership that pulls together reconciliation, peace, and stability. For this, education is crucial. Participants also agreed that it is highly important to identify, empower, support and connect Syrian justice leaders, and to start this process well in advance.
Some other issues that were highlighted are: constitution-building does not necessarily come first; accountability for past atrocities is essential for development and stability; it is needed to create incentives that make a rule of law culture shift possible; development, human rights and justice communities must work hand in hand; and it is necessary to prioritize gender-based violence. Moreover, it was concluded that since previous international efforts to rebuild the rule of law in other countries, e.g. Bosnia, Kosovo, Afghanistan, Somalia, and DRC, have been mostly unsuccessful, and since rule of law building is the most challenging element of state building, new approaches and innovative procedures are urgently needed.
The Justice Leadership Group was requested to facilitate this necessary agenda setting process, by holding a further dialogue on Syria with local representation and key stakeholders, in order to come up with concrete, homemade and innovative solutions for the urgent needs of citizens in a post conflict situation as well as a roadmap how to implement these. The Group is pleased to announce that it agrees to facilitate this Justice Dialogue series on rebuilding the rule of law in Syria, resulting in a roadmap for transitional justice in Syria.
Please keep track of our website, as we will provide more information on the next Justice Dialogue in this series in the near future. The Justice Dialogue was kindly sponsored by the Dutch Ministry of Foreign Affairs and the EU.
Annual Meeting Justice Leadership Group in Amman
The Annual Meeting of the Justice Leadership Group took place in Amman, Jordan, on 1-3 September 2016. The meeting was hosted by Dr Salaheddin al-Bashir, founding member of the Group and former Minister of Justice of Jordan. The Group discussed pressing challenges that justice leaders in different regions of the world face today, such as the profound crisis in the Middle East and the lack of accountability procedures and application of constitutional provisions and laws in transition processes. Also, the Group reaffirmed that SDG 16 requires effective justice leadership and discussed how the Justice Leadership Group could further strengthen justice leadership worldwide and contribute to the realization of Goal 16, in partnership with governmental, multilateral and civil society organisations. Moreover, the Group had a meeting behind closed doors with the Minister of Justice of Jordan, H.E. Mr Bassam Sameer al Talhouni. During an open, inspiring conversation the Group learned from His Excellency al Tahouni about the justice challenges he is working on in Jordan.
During their annual meeting and the Justice Dialogue in Amman, the Justice Leadership Group was followed by a camera crew, as currently a documentary is being made about the Justice Leaders, their lives, work, experiences, and what they learned and know. This documentary is part of the Leadership Stories: a series of interviews, documentaries, articles etc. that are developed and shared in order to capture, collect and distribute the concrete and inspiring stories about the challenges and impact of justice leadership.
Dr. Salaheddin Al-Bashir on the biggest challenge for leadership in the justice sector:
Also, on 16 October 2016 another Leadership Stories’ documentary about one of the members of the Group, former Chief Justice of Kenya, Willy Mutunga, will air on Dutch national television (in Dutch, see VPRO Tegenlicht).
The next annual meeting of the Justice Leadership Group will take place in Nairobi, Kenya.
The members of the Justice Leadership Group are:
Mr Ernst Hirsch Ballin – Former Minister of Justice of the Netherlands
Mr Salaheddin Al-Bashir – Former Minister of Justice of Jordan
Ms Siri Frigaard – Former Chief Prosecutor of Norway
Ms Kalthoum Kannou – Judge of the Court of Cassation of Tunisia
Mr Tharcisse Karugarama – Former Minister of Justice and former Attorney General of Rwanda
Ms Athaliah Molokomme – Former Attorney General of Botswana
Mr Willy Mutunga – Former Chief Justice and President of the Supreme Court of Kenya
Ms Claudia Paz y Paz – Former Attorney General of Guatemala
Mr Diego García Sayán – Former Minister of Justice of Peru, former President and Judge of the Inter-American Court of Human Rights
Mr Sang-Hyun Song – Former President of the International Criminal Court
New member of the Group: Ms Siri Frigaard
The Justice Leadership Group was excited and honoured to welcome Ms Siri S. Frigaard (Norway), as a new member of the Group during their annual meeting in Amman. Siri Frigaard is a global expert in the prosecution of war crimes and crimes against humanity. She is former Chief Prosecutor of Norway and the former Director of the Norwegian National Authority for Prosecution of Organized and Other Serious Crime. Ms Frigaard also served as the Deputy General Prosecutor for Serious Crimes in East Timor with UNTAET and UNMISET, and as a prosecutor and legal adviser to the General Prosecutor of Albania.
Ms Frigaard’s experience and expertise as a justice leader, her achievements in investigating and prosecuting special international crimes, and her dedication to strengthening justice and the rule of law, make a valuable addition to the Group and its work. As the tenth member of the Justice Leadership Group, she makes herself available to support other justice leaders who need to lead justice change. For more information, see Ms Frigaard’s profile.
The Justice Leadership Group feels privileged and looks forward to working with its distinguished new member to promote and support justice leadership worldwide!