Failure by your generation will make you as culpable as those that enslaved our continent, colonised it and the post-colonial leaders who sought to treat our various countries as their personal fiefdoms and the masses of our people as their subjects.’ Furthermore, Boqwana said there is much scepticism about the legal profession and the ethical standards of its members. ‘The attitude doubtless derives from the perception that lawyers are mere self-serving agents of the rich and powerful and that they are motivated by greed and personal ambition. Yet the public and the media often overlook the existence of lawyers who are (the) exact opposite of this stereotype. This may be discouraging, but those who choose the side of justice to power, privilege and prestige, must understand that theirs is the payment of eternal debt to humanity. These are the lawyers who believe that justice is their calling and that it is their duty to serve the ideals of equality and the cause of the wretched in our society.’ General: Bar associations under threat as politics and rule of law clash Threats to the independence of the Bar on the continent were addressed during the closing ceremony of the conference on Friday. The political turbulence in Zambia and the threat to the legal system was unpacked by Law Association president Linda Kasonde. This after President Edgar Lungu underscored the seriousness of the situation by invoking emergency powers following an arson attack on the country’s biggest market. Kasonde, who has urged government to exercise restraint until the matter is fully and thoroughly investigated, noted that there has been growing political tensions and the law association has not been spared. ‘Politics – particularly African politics – and the rule of law often clash,’ she observed. So much so that armed ‘cadres’ were sent to protest at the association’s Lusaka’s office in March. The incident was slammed by Kasonde and the SADC Lawyers Association that said ‘the siege of the association’s offices in broad daylight is the height of assault on the rule of law and independence of the legal profession in Zambia’. Addressing the closure of The Post newspaper, Kasonde said the space for independent views in Zambia is shrinking and civil society is not as vibrant as it used to be. ‘At the end of the day, the role of Bar associations in Africa is simple – speak the truth to power.’ Her sentiments were echoed by Tundu Lissu, president of the Tanganyika Law Society, who noted that the Tanzanian Government has threatened to deregister the society after accusing it of political interference. ‘We have hidden ourselves in the little cubicles of law chambers even when our very constitutional and legal order have come under the most vicious and sustained assault by those in power,’ said Lissu. He noted that threats against the society started under late Prime Minister Edward Moringe Sokoine in the early 1980s. He urged Bar associations ‘across the continent and the rest of the world’ to voice their displeasure. Litigation: The role of African international courts and tribunals Litigation in African international courts and tribunals was addressed by PALU’s CEO Donald Deya. It is a burning issue that was highlighted by Wednesday’s ruling by the International Criminal Court (ICC) that South Africa was required under the Rome Statute to arrest Sudanese President Omar al-Bashir when he was in the country in 2015 for an AU summit. Deya noted that the first body to suggest that due consideration should be given to an additional international criminal jurisdiction for the African Court was the Group of (African) Experts, who were commissioned by the AU in 2007-08 to advise it on the ‘merger’ of the African Court on Human and Peoples’ Rights with the African Court of Justice. ‘However, the genesis of the current discussion is not the contemporary debate about Africa’s relationship with the ICC or, more specifically, the debate around the arrest warrant for al-Bashir and the subsequent AU request for a deferral. Rather, the current process emanated from three contemporaneous issues: the AU Member States’ dialogue on the (possible misuse of the) Principle of Universal Jurisdiction; the challenges with Senegal’s impending prosecution of the former President of Chad, Hissene Habre; and, the need to give effect to Article 25(5) of the African Charter on Democracy, Elections and Governance (ACDEG), which requires the AU to formulate a novel international crime of ‘unconstitutional change of government’. Human rights: Focus on function of Africa’s rights court The function of the African Court on Human and Peoples’ Rights came into sharp focus at a plenary session of the conference on Friday. The court was instrumental in the high-profile murder-case of journalist Nobert Zongo who was assassinated in 1998 while investigating allegations linking the brother of Burkina Faso’s President, Blaise Compaore, to a high-profile unsolved murder. In 2013, nearly two years after the case was originally filed and almost 15 years after Zondo was killed, his family finally had the opportunity for the first time to put their appeal for justice before a court not controlled by the government. Addressing delegates, Eleanor Thompson (programme officer, Africa regional office, Open Society Foundations) noted that while Africa’s still-fledgling regional human rights tribunal has had limited successes, this was one of them. The Burkina Faso Government was ordered to re-open the investigation and to pay damages of $1m to the family of the victim. It also ordered Burkina Faso to take measures to prevent further recurrence of such violations. ‘The state has fully implemented the ruling. Lawyers have a huge role to play in pushing for breakthroughs like this,’ she said. Incidentally, the Zongo ruling marked only the second case where a claim for remedies was successful. The other involved a 2013 ruling on a disputed election in Tanzania. The court complements and reinforces the functions of the African Commission on Human and Peoples’ Rights and was established by a protocol adopted by OAU member states in June 1998. However, just eight of the 30 parties to the protocol have made the declaration recognising the competence of the court to receive cases from NGOs and individuals. They are Benin, Burkina Faso, Ivory Coast, Ghana, Mali, Malawi, Tanzania and Tunisia. Policy: Reforming mining codes in the spotlight Reforming mining codes also came under the spotlight at the conference with a particular focus on mineral-rich DRC which recently announced plans to reintroduce the shelved changes to the country’s mining code. The vast central African nation is Africa’s largest copper producer and the world’s largest cobalt producer. The current mining code, introduced in 2002, was based on a draft prepared under the auspices of the World Bank. Its main objective was to relaunch the industrial mining sector following the Congo Wars between 1996 and 2003 by opening it up to foreign investors. The latest amendments were submitted to parliament in March 2015, but the process was suspended due to intensive industry opposition. However, Coco Misamu Kayedi (president, Bar Association of Kinshasa-Matete) told PALU delegates that the matter is firmly back on the agenda. He said government, civil society and the mining industry are addressing the challenges andthere is a strong focus on the management of mining rights. ‘There is also a special focus on communities living around the mines to ensure that we create a win-win partnership,’ he said. General: How PALU filled the gap PALU president Elijah Banda has addressed the formation of the union, which saw the African Bar Association (AfBA) dismantled in 2002. ‘At the turn of the millennium, a group of far-sighted African lawyers began conversations across the continent, which culminated in the merger of existing lawyers’ associations into a single, multilingual, continental lawyers’ body on September 9, 2002, in Addis Ababa, Ethiopia. The Bar leaders and eminent lawyers present in Addis Ababa on that day signed a Constitutive Act, establishing PALU,’ he said. He said the weaker associations were unable to operate effectively due to the small number of lawyers then as well as other issues. Banda rejects claims that AfBA could be revived, saying ‘it was deliberately dissolved for the greater good of Africa’.]]>
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