Justice as a Right in Southern Africa: Program Reflections

Freedom House Southern Africa is concluding a six-year programme of support to 37 organizations throughout southern Africa, which has strengthened independent national and regional judicial systems through research, training, documentation and support for strategic litigation. In June 2016, Freedom House held a symposium gathering the partners involved in the Justice as a Right in Southern Africa (JARSA) program to celebrate their achievements and promote the importance of judicial independence as a key component of democratic consolidation. Project Director for Southern Africa Paul Graham, Program Manager Bryan Sims, and Program Officer Lindsey Hutchison share their reflections below on the opportunities and challenges civil society now face.
  

Read the Final Program Symposium Report here.


Strengthening Access to Justice in Southern Africa

By Paul Graham
Project Director, Southern Africa


Focusing on people’s right to justice, and building judicial independence and integrity, are innovative and necessary tasks for those committed to human rights.

When the Southern African Litigation Centre went to court to force the South African government to act on a warrant from the International Criminal Court and arrest Sudanese President Omar al Bashir, they were acting as an increasing number of human rights defenders in southern Africa do – seeking justice in the courts. 

However, civil society organizations and human rights defenders cannot take it for granted that justice will be available to them. Judiciaries are unable to stand for what is right because of bad domestic law and restrictive constitutions. Over-reaching executives, poor court infrastructure, inadequate training, lack of access to laws and previous court judgements, lack of tenure and interference in appointments undermine access to justice. Citizens and the organizations that represent them battle to gain access due to conservative views on locus, insufficient legal practitioners, and the cost of mounting challenges. In some places, there are physical threats made against them.

It cannot therefore be taken for granted that people will have either access to justice or justice itself. Those promoting and protecting human rights and supporting human rights defenders, as we in Freedom House do, are comfortable helping to strengthen parliamentary and party systems, and advocating for effective, responsive and democratic states by encouraging social audits, citizen monitoring and civil society. However, when it comes to judicial systems, too often we operate merely as users, rather than custodians of this third arm of government.

The Justice as a Right project of Freedom House has proven that more can - and needs - to be done in this arena. Legal Information Institutions provide wide access to judgments. International internships for clerks and professional development for judges improve the quality and extend the experience of benches. The encouragement of pro bono legal services extends these services to and protects the rights of the poor. Public participation in judicial appointments can help to drive judicial transformation, and strategic litigation tests laws, educates the public, recruits counsel to public interest work, and bends the system toward justice. Focusing on the institution of the judiciary and its integrity, as well as the integrity and independence of a people, is a task we cannot afford to overlook.

The South African Supreme Court of Appeal handed down a unanimous judgement, saying “The conduct of the [South African] government in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad al Bashir, after his arrival in South Africa on 13 June 2015 to attend the 25th Assembly of the African Union, was inconsistent with South Africa‘s obligations in terms of the Rome Statute and section 10 of the Implementation of the Rome Statute of the International Criminal
Court Act 27 of 2002, and unlawful.” This was possible because the right of access to justice met a bench capable of independence and integrity, an independence and integrity that must to be sought, built and strengthened throughout sub-Saharan Africa.


The Revolution Will Not be Televised. It will be Litigated.

By Bryan M. Sims
Program Manager, Freedom House Southern Africa

Revolution, heavy and considerable, it is a language still spoken throughout southern Africa. Here, revolution did not end with self-rule.  Revolution is alive and thriving, it is just a different kind of revolution. Not waged with guns, but with ballots, parliamentary procedure, dialogue, and – most important – courts. 

Governments throughout southern Africa continue to face daunting and multifaceted challenges, an exhaustive list that includes: improving access to education and employment, clean water, sanitation and shelter, and prevention and treatment of HIV and AIDS. Although citizen participation has advanced, political elites continue to enrich themselves while the majority is left behind. A Gogo (grandmother) in eThekwini, and millions like her, risks her life to walk from her shack to the open air toilet, just a few miles away from a wealthy suburb. Decades after winds of change first blew through southern Africa, the need for revolution is once again openly discussed. 

The language of revolution evokes feelings of rage, loss of dignity, and desperation, but it also inspires hope, change, and ownership. While many perceive political institutions as antiquated, lacking reform, filled with omnipresent corruption, judiciaries have emerged as important means for citizens to seek access to their rights, and justice. 

In a victory for freedom of expression, Zimbabwe’s Constitutional Court scrapped a defamation law used by Mugabe's government to expel foreign correspondents and arrest journalists. The Namibian High and Supreme Courts ruled that forced sterilization of HIV positive women was coercive and a “breach of their basic human rights.” While a recent Afrobarometer poll found that 79% of Africans would not want homosexuals as neighbors, and despite public pressure, a Zambian magistrate acquitted two men accused of sodomy. And in Botswana, the Gaborone High Court overturned a decision of the Director of Civil and National Registration and the Minister of Labor and Home Affairs to refuse to register the organization, Lesbians, Gays and Bisexuals of Botswana. 

In South Africa, the Constitutional Court ruled that the President had misappropriated state funds on the security upgrade of his private residence, and Parliament had acted inconsistently with the Constitution in an effort to protect the President. The full impact of this monumental decision is still to be seen, but this case could be South Africa’s Marbury v. Madison.

Freedom House is committed to working with local partners and activists to ensure that courts throughout southern Africa remain spaces for citizens to engage, and means to hold states accountable to their duty to protect and enable citizen’s access to justice.

To paraphrase Gil Scott Heron, in the midst of social revolution in 1960s America, “The revolution will not be televised; the revolution will be no re-run brothers [and sisters]; the revolution will be live.” So too is the revolution alive, right here, right now, in Lilongwe, in Harare, Cape Town, and the muddy alleyways of Alexandra, Katutura, and Mbare townships.


Chief Justices and Civil Society Join Together on Judicial Integrity and Access to Justice

By Lindsey Hutchison
Program Officer, Freedom House Southern Africa

It’s not every day that chief justices and civil society sit together discussing judicial integrity and strategies to increase popular access to justice. This happened at Freedom House’s Justice as a Right in Southern Africa symposium in Johannesburg. For 6 years, throughout southern Africa, Freedom House and its local civil society partners have promoted judicial independence and integrity as key components of human rights, social transformation, and democratic consolidation.

Too often, judiciaries are hijacked by heavy-handed presidents and overzealous politicians, and lines between branches of government have been blurred. The Chief Justice of Tanzania Hon. Mohamed Chande Othman, the Deputy Chief Justice of Namibia, Hon. Petrus Damaseb, and the Deputy Chief Justice of Zambia, Hon. Sitwala Mwanamwambwa each spoke of the dangers of corrupt judges who lack integrity and accountability. Deputy Justice Damaseb stated in his keynote remarks that a “corrupt judiciary has no legitimacy and cannot lay claim to being the protector and guardian of the constitution.” Deputy Justice Mwanamwambwa reiterated that judges must be independent as individuals, and that “no government, pressure group, or another judge should interfere with how a judge makes a decision.” Chief Justice Othman reminded us that judicial appointment processes must be free from partisan politics, particularly in the context of the sub-region’s challenging political dynamics. He emphasized that “judicial independence requires protection in order for it to have permanency and be entrenched.”

Deputy Justice Mwanamwambwa spoke of the bravery that is required of both judges and civil society who fight for greater judicial integrity. It takes a lot of courage for individuals to speak up against patronage systems and not give in to presidents and other powerful actors who try to sway court rulings. To speak up for marginalized communities is be vulnerable in many areas, and civil society and judges who believe in serving their role as guardians of justice must support each other in this.

During the symposium, these esteemed judges and representatives from 37 civil society organizations from 8 southern African countries shared their ideas on how to increase the independence of judges in their countries. Chief Justice Othman aptly noted that there is a “role for civil society to whistle blow and contribute to judicial independence.”

Throughout southern Africa, civil society plays a large role in improving access to justice. JARSA partners have used research, pro bono legal work, and national and regional advocacy campaigns with rural communities to protect their rights and improve their access to justice. Too often, women, LGBTI persons, and those living in rural areas that are far from official courts and without legal representation, are prevented from seeking and finding justice. Namibian Deputy Chief Justice Damaseb said “a pernicious vice is if people are denied access to the courts. The high cost of legal representation is a phenomenon in every country [in southern Africa].” Supported by Freedom House, civil society has ensured poor, rural communities have access to legal representation. In Zambia, the National Legal Aid Clinic for Women trained community paralegals whose work has been so vital that courts are allowing them to represent members of the community in court.

Deputy Justice Damaseb demanded better technology to move cases through the system more efficiently. Cases are often backlogged and courts do not have access to the legal resources they need. Freedom House partner, the Southern African Legal Information Institute (SAFLII), has developed innovative means for judges, clerks and lawyers to access legal resources – written laws, court judgments, legislation, and other information that is essential to their work – free public access. They also link up with other Legal Information Institutes around the globe to host legal materials. It is a creative, practical initiative that can be replicated in a variety of jurisdictions.

It is also critical to judicial integrity and access to justice that cases are decided on the basis of established law and documented evidence, not identity and status, as Deputy Justice Mwanamwambwa emphasized. Chief Justice Othman mentioned how too often national development plans devote minimal space to rule of law – Tanzania’s has only one paragraph. In actuality, “the rule of law is at the center of democracy and good governance,” as Deputy Justice Mwanamwambwa stated, and must be a key focus of governments and civil societies across Southern Africa. The United Nations Sustainable Development Goal 16 in fact calls to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable inclusive institutions at all levels.”

Promoting the rule of law and inclusive societies cannot be a side note for governments and development initiatives. It is far past time when it is acceptable to ignore vulnerable communities, continuing their marginalization and denying them justice.