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.

Access to Remedy and Extractive Industries: The Challenges of Legal Aid Providers in Tanzania – Issue 3

Access to Remedy for Human Rights Violations in East Africa: Lessons learned from the perspective of Civil Society Organizations during the East African Business & Human Rights Conference

(French) Access to remedy for human rights violation in East Africa: Lessons learned from the persectives of Civil Sociey Organisations during the East African Business and Human Rights Conference

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.

East Africa – Protecting civic space: A public interest litigation approach

This article was published in ASF’s 2022 annual report.

In 2022, ASF’s East Africa office launched a project covering three countries in the region: Burundi, Tanzania and Uganda. The objective of the project is to contribute to the advancement of the rule of law through the understanding and usage of regional human rights treaty bodies, mechanisms and instruments by local civil societies organisations.

In practice, the project focuses on promoting the use of public interest litigation as a tool for influence, to bring about positive reforms in the areas of civic space and civil liberties. In its countries of intervention, ASF has identified existing and developing cases led by civil society organisations. Through the project, financial and technical support is provided to these cases, along with strategic reflection on how their reach can be amplified through advocacy and external engagements. A key aspect of the project, given its regional nature, will also be to support cases mobilizing regional mechanisms such as the East African Court of Justice, or the African Court on Human and People’s Rights (ACHPR).

With support from the Pan African Lawyers’ Union, ASF is working on legal submissions to the ACHPR on the right of association, which cover a dozen African states. Our observations and legal analyses led us to believe that practices and laws governing NGOs in many African states were in violation of the freedom of association. These submissions are aimed at upholding fundamental civil liberties and imposing a positive obligation on the states to reform the laws in force and to end the practices infringing on the right of association.  

ASF is also providing financial and technical support to a constitutional petition brought by civil society organizations, including Chapter Four, before Uganda’s Constitutional Court, to challenge the constitutionality of the Computer Misuse Act voted into law in October 2022. Though this controversial piece of legislation has been hailed by the government as a necessary protection of privacy in the digital age, it is perceived by many local CSOs as an infringement on the freedoms of expression and press.

Report Justice ExPEERience 2021-2023

(French) Report Justice ExPEERience 2021-2023

Darubini – Tanzania’s mining policy and local content: Progress and associated challenges

ASF’s East Africa regional hub

This article was published in ASF’s 2022 annual report.

In recent years, ASF has progressively adopted a regional approach to its activities in East Africa. To lead the organisation development in the region and enable the implementation of strong and coherent regional strategies, a regional hub was created in Kampala in 2021. It is currently made up of three staff, in addition to the Regional Director and the respective Country Director for Uganda and Coordinators of Programs for Kenya and Tanzania.

Countries in East Africa share historical, economic, political, social and cultural ties, and have become increasingly integrated. In this context, issues of interest to ASF, such as the governance of natural resources, detention, or security and liberty, may cut across several countries. Lessons learnt when implementing programs in one country can therefore be of great significance to develop our action in other contexts.

Since its creation, a key role of the Regional Office has been to strategically compile and redistribute knowledge across all programs. This has allowed for synergies to be developed, while also leaving space for the contextualization of each intervention.

In addition to this, the creation of new roles dedicated to specific technical functions within the regional team has provided a way for ASF to improve methodological support to the various country teams, in areas such as research, monitoring and evaluation, strategic litigation, and advocacy.

A key priority for the Regional Office is also to identify opportunities for development at a regional level, including through the drafting of multi-country and regional projects. In March 2022, ASF launched a two-year project funded by the Belgian DGD entitled ‘Protecting Civic Space: a Public Interest Litigation Approach’. Covering three countries in the region, the project aims to contribute to the advancement of the rule of law in East Africa through mobilizing civil society around regional human rights treaty bodies, mechanisms and instruments.

Moving forward, the Regional Office intends to keep strengthening ASF’s presence at a regional level in East Africa. Whether through advocacy, strategic litigation, or other engagements with external stakeholders, efforts will continue throughout 2023 to ensure that ASF’s work is visible and impactful in the region.