Defending the defence: The lawyer faced with the peril of repression

This article is based on the intervention of Bruno Langhendries, head of strategic support at ASF, during the 2023 International Conference of the Bars.

Legal proceedings, harassment, intimidation, deprivation of liberty, and sometimes direct physical harm. Throughtout the world, lawyers working on behalf of human rights, civil society or vulnerable groups are threatened and attacked simply for doing their job.

This is the reality that we and our partners have to face wherever we operate. Our teams report repeated and increasing attacks on lawyers, and more generally on human rights defenders, in a global context of erosion the rule of law, narrowing of civic space and hypertrophy of executive power to the detriment of the legislative and judicial systems.

The perils faced by lawyers as the rule of law crumbles

In the contexts in which ASF works, lawyers face multiple threats:

  • Harassment, threats and intimidation, and in rarer cases, direct attacks on physical integrity. They come from representatives of the authorities or actors who claim to come from civil society but who are often very close to those in power.
  • Prosecution or deprivation of liberty:
    o In the exercise of their profession. Repressive legislation is invoked or the immunity that lawyers are supposed to enjoy is lifted. Defamation, slander or apology for terrorism are then the preferred grounds for prosecution.
    o In their private lives. Lawyers are prosecuted for acts unrelated to their profession.

These repressive tactics are used by authorities when they feel their interests are threatened.

Lawyers find themselves the target of these attacks most often when they :

  • Defend members of civil society, political opponents and people in vulnerable situations, who are often already victims of state repression.
  • Denounce repressive and arbitrary practices of state agents.
  • Denounce reforms that threaten the rule of law.

The aim of the authorities is to prevent the defence from playing its role in supporting civil society and to discourage and isolate those who dare to question their practices.

AS’s teams have witnessed many examples of this dangerous trend.

In Tunisia, Maître Ayachi Hammani was prosecuted for criticising the Minister of Justice after the arbitrary dismissal of more than fifty judges.

Still in Tunisia, Maître Hayet Jazzar and Maître Ayoub Ghedamsi were prosecuted after pleading on behalf of a victim of torture committed by police officers.

In 2022; in the Central African Republic, Maître Manguareka was harassed after defending the interests of an opponent of the regime in court. In the country, all lawyers and their bar associations are branded enemies of peace by groups close to the government.

In Uganda, Nicholas Opiyo, a human rights lawyer, was arrested along with other lawyers and held in detention for several weeks. Initially arrested without charge, he was later prosecuted for money laundering.

In Burundi, 5 members of partner associations were arrested and imprisoned for four months, mainly because they were working with Avocats Sans Frontières.

Unfortunately, there are many more examples we could mention.

It is important to point out that all these cases are different and take place in specific contexts.

However, in all these countries, the intensification of repression against lawyers, and more broadly against human rights defenders, goes hand in hand with the shrinking of civic space that we observe everywhere we work.

What we think is important to note is that :

  • On the one hand, this persecution of lawyers is acompanied by increased repression of other voice-bearers, of human rights defenders, whether they are acting in a professional capacity or as citizens.
  • This narrowing of civic space is the corollary of the rise of populism and continued attacks to the principles of the rule of law.

This narrowing of civic space will most often be used to favor the executive power to the detriment of legislative and judicial powers. This slide towards more authoritarian regimes is often accelerated by the use of states of emergency or states of siege. The supposedly temporary freedom restricing measures are held over the long term and sometimes made into common law. This transition towards more authoritarian regimes can also occur in a more brutal way during coups d’état, as was the case recently in Tunisia or in the Sahel.

In the countries in which ASF operates, the organisation implements programmes to defend human rights in partnership with civil society and the lawyer bars.

ASF, in collaboration with its local partners, mobilises the following approaches to support lawyers and human rights defenders:

  • The development of collectives of lawyers and human rights defenders so that they can assert their rights collectively and react quickly in the event of a threat.
  • Defending lawyers in the event of prosecution or deprivation of liberty. In the event of prosecution or deprivation of liberty, ASF supports the defence of lawyers, in particular by mobilising international actors and urging them to act.
  • Monitoring human rights violations and threats to civic space and human rights defenders, including lawyers. Based on this monitoring, ASF develops advocacy strategies in favour of civil liberties and the defence of human rights defenders and lawyers.

Gbou Kôkô (Defend)

  • General objective: Promote and protect collective and individual rights and freedoms by strengthening human rights defenders and citizen participation
  • Specific objective: Contributing to the deployment and structuring of initiatives led by Central African human rights defenders in Bangui and the hinterland
  • Expected result:
    • Human rights defenders are equipped to defend their fundamental rights, particularly those affecting civic space
    • Civil society structures its actions to document and report human rights violations
    • Advocacy actions are carried out collectively to guarantee the rights of human rights defenders and respect for human rights as a whole
    • The legal protection of human rights defenders‧e‧s and victims of manifest human rights violations is strengthened
  • Project partners:
    • URU
    • Institut Francophone pour la Justice et la Démocratie (IFJD) – Institut Louis Joinet
  • Intervention area: Bangui, Nana Mambere (Bouar) and Ouaka (Bambari)
  • Budget : € 1.210.000
  • Duration: 18 months (January 2024 > June 2025)

Respect the procedural guarantees and fundamental rights of women and vulnerable persons deprived of their liberty in the Central African Republic

  • Objective: Contribute to a greater respect of human rights of people in detention, particularly women and people in vulnerable situations
  • Specific objective: Strengthen access to justice and procedural guarantees for detainees, particularly women and people in vulnerable situations
  • Expected results:
    • Access to justice and procedural guarantees for detainees, particularly women, have been strengthened
    • Structural violations of the human rights of women prisoners are identified and combated
  • Project partners:
    • Centre pour la Promotion et la Défense des Droits de l’Enfant (CPDE) in Berberati
  • Implementation area: Bangui, Bimbo
  • Financing: Centre de crise et de soutien du Ministère des Affaires étrangères français
  • Budget: 300.000 €
  • Duration: 12 months (July 2023 > June 2024)

Justice ExPEERience, the human rights network launched by ASF, celebrates its second anniversary

Two years ago, Avocats Sans Frontières launched Justice ExPEERience, a network for the promotion of human rights, as well as an online platform of the same name to support and energise this network. This anniversary is an opportunity for us to look back at the history and mandate of the Justice ExPEERience network and its platform. A report on its first two years of activity has just been published, covering developments since its creation, its key projects and also its development prospects.

The network has expanded significantly since its launch in 2021. It now has more than 600 members working in 52 countries on 5 continents. The network wants to create more links between actors‧rice‧s in the sector promoting access to justice and human rights around the world. The aim is for them‧elle‧s to be able to share knowledge, build capacity and work on joint projects to have more impact.

The Justice ExPEERience platform has also been significantly improved. In 2022, it was equipped with a mobile application that can be downloaded to any smartphone. The platform’s interface has also been translated into Arabic, adding to the languages already available, including English and French. Developments are also underway to improve the fluidity, speed and user experience‧rice on the Justice ExPEERience platform.

Several communities of practice, coalitions and working groups have also emerged on Justice ExPEErience over the last two years. They have shared information and contributed to exchanges in public spaces, but have also been able to work and collaborate in confidential spaces to collectively develop advocacy campaigns, projects to monitor human rights violations, or strategic litigation.

Report Justice ExPEERience 2021-2023

(French) Report Justice ExPEERience 2021-2023

ExPEERience Talk #11 – Decriminalising poverty, status and activism: a global emergency, an international campaign

  • When? 5 October – 12 pm (GMT+1, Tunis) ; 1pm (GMT+2, Brussels)
  • Language: French
  • Free online event – Mandatory registration

This 11th ExPEERience Talk will be devoted to the Campaign for the Decriminalisation of Poverty, Status and Activism. Several of its members will present its history and how it operates. They will discuss the challenges encountered and the opportunities presented by the networking of a multiplicity of actors to tackle a global and systemic issue of such magnitude.

In many countries, criminal procedure, penal codes and policing policies continue to reflect a colonial legacy. Offences dating from the colonial era, such as vagrancy, begging or disorderly conduct, are commonly used against people already in a vulnerable or marginalised situationt (homeless people, people with disabilities, drug users, LGBTIQ+ people, sex workers, migrants, etc.), with the sole aim of criminalising what they represent in society rather than the offences they have committed. Many countries are also witnessing a narrowing of civic space and the use of criminal law to repress activism and stifle dissent. These phenomena are deeply rooted in the legislation, institutions and practices of States around the world.

During this ExPEERience Talk, speakers from several of the campaign’s member organisations will illustrate the very real consequences of these repressive laws and practices for civil society and the general public. They will also talk about the various actions undertaken as part of the campaign: joint research, litigation and lobbying actions before national and international institutions.

To date, the campaign is supported by some fifty civil society organisations from many countries. Its ambition is to create the conditions for a global change in criminal and social laws, policies and practices by adopting a transnational and multisectoral strategy.

Speakers

  • Khayem Chemli – Head of advocacy at ASF – Euromed region (moderator)
  • Soheila Comninos – Senior program manager at Open Society Foundations
  • Arnaud Dandoy – Research & Learning Manager at ASF – Euromed region
  • Asmaa Fakhoury – Country director Morocco
  • Maria José Aldanas – Policy Officer at FEANTSA

(French) Guide for the defense before the Special Criminal Court (Central African Republic)

(French) Guide for civil parties before the Special Criminal Court (Central African Republic)

The campaign to decriminalise poverty, activism and status

This article was published in ASF’s 2022 annual report

The next ExPEERience Talk (webinar) organised by ASF and its Justice ExPEERience network will address the theme of the Campaign for the Decriminalisation of Poverty, Status and Activism. It will take place on Thursday 5 October 2023 at 12pm (Tunis) – 1pm (Brussels). You can register now, participation is free.

The Campaign for the Decriminalisation of Poverty, Status and Activism, launched in Africa, South Asia, North America and the Caribbean, is led by a coalition of civil society organisations calling for the revision and repeal of laws that target people because of their status (social, political or economic) or their activism.

In many countries, criminal procedure, penal codes and policing policies continue to reflect a colonial legacy. Offences dating from the colonial era, such as vagrancy, begging or disorderly conduct, are commonly used against people already in a vulnerable or marginalised situationt (homeless people, people with disabilities, drug users, LGBTIQ+ people, sex workers, migrants, etc.), with the sole aim of criminalising what they represent in society rather than the offences they have committed.

At the same time, in several of these countries, the criminal law is being used to repress activism and stifle dissent. Sedition laws dating back to colonial times and more recent public order laws, for example, are ubiquitous tools deployed by states to stifle protest and limit freedom of expression. States use the security apparatus, justice and detention against individuals and groups who do not represent a danger to the safety of citizens, but rather to maintain the status quo and the privileges of a minority.

This abuse of power has a profound cost in terms of human rights, manifesting itself in discrimination, the use of lethal force, torture, arbitrary and excessive imprisonment, disproportionate sentences and inhumane conditions of detention. This situation is compounded by intersecting forms of oppression based on the gender, age, disability, race, ethnic origin, nationality and/or social class of people who are already marginalised. The populations most affected by this criminalisation of status, poverty and activism are also those most affected by phenomena such as prison overcrowding, pre-trial detention, loss of family income, loss of employment, etc.

In 2021, the campaign, which brings together lawyers, jurists, members of the judiciary, activists and experts from more than 50 organisations, won some important victories, including landmark cases against various laws before national courts in Africa. These include the adoption of principles on the decriminalisation of minor offences by the African Commission on Human and Peoples’ Rights, and the establishment by the Pan-African Parliament in 2019 of guidelines for a normative/model law on policing.

The Campaign therefore represents a real opportunity for a global change in criminal and social laws, policies and practices. For the first time, civil society is focusing on the common dysfunctions of the criminal justice system and establishing, among other things, the links between colonial criminal legislation and the criminalisation of poverty, in a global context of shrinking civic space.

The campaign has been organised through several committees: a global committee, of which ASF is a member, and thematic and geographical sub-groups to ensure greater representativeness of stakeholders and greater impact.

Avocats Sans Frontières is a member of the coordinating committees of the Francophonie and North Africa sub-groups respectively. This structuring is intended to further strengthen the campaign’s research objectives, priorities and targets in terms of advocacy and awareness-raising.

On the occasion of the 18th Summit of the Francophonie, held in Djerba on 19 and 20 November 2022, ASF and its partners in the Tunisian coalition for the decriminalisation of minor offences and poverty, organised a parallel event in Djerba during which demands were made to the Organisation Internationale de la Francophonie (OIF), contained in a public document entitled the “Djerba Declaration”. The signatories believe that the OIF could and should play a central role in promoting the values of human rights, and promote the decriminalisation of minor offences which, in addition to their discriminatory nature, exacerbate the phenomena of prison overcrowding, which are themselves responsible for the worsening of inhumane and degrading conditions of detention.

The French-speaking sub-group, of which ASF is a member, started a series of internal consultation meetings in March 2023. These should lead to the drafting of a common vision and common objectives for its members, aligned with the campaign’s overall strategy charter that will bring together the common vision and objectives of its members. It will serve as the basis for an advocacy strategy vis-à-vis influential players such as the European Union and its member states, the African Union and its member states, the various European institutions responsible for cooperation policies, and the institutions and mechanisms of the United Nations.