Articles

ZLHR PETITION: Respect, Promote and Protect Legal Practitioners in the course of carrying out their duties from all forms of threats, harassment and intimidation

INTERNATIONAL HUMAN RIGHTS DAY - 10 DECEMBER 2012

PETITION:                       Respect, Promote and Protect Legal Practitioners in the course of carrying out their duties from all forms of threats, harassment and intimidation.

We, the Members of Zimbabwe Lawyers for Human Rights (ZLHR), are deeply committed to fostering a culture of human rights and respect for the Rule of Just Law in Zimbabwe. Our commitment extends to robustly exercising our constitutionally protected freedom of expression to highlight challenges within our profession and the broader justice delivery system, not in efforts to bring the system into disrepute, but rather to ensure that the concerns are heard and acted upon by all stakeholders, so as to strengthen and improve this system and public confidence therein.

We are cognizant of the fact that the respect, promotion and protection of the rights of legal practitioners, both in the private sector and those within the public service in Zimbabwe, are prerequisites to safeguard the independence of the legal profession as well as the Judiciary, and in turn to enable the efficient and effective administration of justice.

We are aggrieved that it has become commonplace to hear of regular and increasingly frequent attacks against members of the legal profession, both in the private sector and within the public service in Zimbabwe. The incidents - which have ranged from denial of entry into police stations, denial of access to clients, verbal and physical attacks on lawyers and prosecutors, and arrest, detention and persecution through prosecution of lawyers - have been well documented and are a matter of public record. Where they have been raised in the past, however, they have neither been acknowledged nor attended to.

In recent months the operating environment for members of the legal profession - more particularly human rights lawyers - has shrunk to the extent that it is becoming almost impossible for them, as Officers of the Court, to perform their professional duties and functions.

Throughout 2012 and 2011, lawyers have been threatened and harassed in the course of performing their duties, including being subjected to the following:

€¢                         Arbitrary arrest and wrongful detention on unsubstantiated charges of obstructing or defeating the course of justice - charges which are then not further pursued after the indignity of the arrest and detention

€¢                         Attempts to seize the business mobile telephones of legal practitioners for the purposes of "downloading information € despite such information being protected under the sacrosanct lawyer-client privilege

€¢                         Unlawful access to, and seizure, of client files - similarly protected by the lawyer-client privilege - together with medical records prepared for legal cases (protected under the doctor-patient confidentiality), most recently seen in the much-publicised and controversial raid of a medical facility, the Counselling Services Unit

€¢                         Harassment by political party activists, including verbal abuse and general threats of physical action against legal practitioners carrying out their professional duties in court. Lawyers have been barricaded and denied exit from the courts; been subjected to threats to stone and overturn their vehicles; been forced to exit court buildings in Zimbabwe Prisons Service trucks carrying prisoners back to remand facilities and being dropped in town to escape physical attacks. In spite of such criminal action having occurred at a court, in the presence of police officers and complaints being made to the police, the perpetrators have not been brought to book, fuelling impunity and providing fertile ground for further such violations.

ZLHR is greatly concerned about the rising pattern of threats, harassment and attacks against lawyers and by the seeming inaction from the relevant authorities. Indeed, the fundamental and constitutionally-protected right of the general populace to legal representation and to the protection of the law suffers great harm if their legal practitioners are rendered unable to carry out their jobs due to the unacceptable and unlawful conduct of elements in society that choose to ignore the rights of other persons with impunity.

The Constitution of Zimbabwe in section 13(3) of the Declaration of Rights, guarantees a person who is arrested or detained the right to "obtain and instruct without delay a legal representative of his own choice and hold communication with him €.

The African Charter on Human and Peoples' Rights (to which Zimbabwe is a State Party), and the African Union's Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa ( "the Principles and Guidelines €), both reaffirm these rights.

The Principles and Guidelines further stipulate that every accused person has the right to an effective defence and representation, and that the independence of lawyers shall be guaranteed.

In particular, the state is obliged to ensure that lawyers:

1.                       are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;

2.                       are able to travel and to consult with their clients freely both within their own country and abroad;

3.                       shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Lawyers also "shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a judicial body or other legal or administrative authority €, and "shall not be identified with their clients or their clients' cause as a result of discharging their functions €. Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

Similar safeguards have been laid out in various United Nations (UN) instruments (to which Zimbabwe is a State Party) and expanded particularly in the UN Basic Principles on the Role of Lawyers, of which the State is well aware as a member of the UN.

ZLHR wishes to warn of the dire consequences ahead, not only for human rights defenders, civic organizations and legitimate political party leaders and members as a result of the clampdown on lawyers, but also on the general population at large. Such targeting of lawyers - even the mere allegation that there exists a "list € of lawyers for elimination - has a chilling effect on all members of the legal profession and, by implication, on the affected individuals whose rights they seek to protect.

It is pertinent to note that any individual may, without cause, become an accused person and we all rely on such safeguards to ensure that our rights are protected and respected. The moment such rights are not respected for one person there is a danger of the entire justice system being brought into disrepute, particularly in this digital age where public scrutiny of processes of justice is greatly enhanced and therefore public confidence can be swiftly and broadly affected. Where we fail to act upon transgressions against one person, we are all at risk.

ZLHR members remain committed to the representation of all human rights defenders, no matter their political persuasion, in compliance with their constitutional obligations, just as they have been doing on behalf of our organisation for the past 16 years. As such, they will continue to exercise vigilance and extreme caution in relation to their security, and to immediately report all threats of attack and/or actual attacks to the responsible authorities, to the Law Society of Zimbabwe and to ZLHR, as well as SADC diplomatic representatives and regional observers in Zimbabwe. We expect action to be taken to address such complaints in a timely and productive manner in order to increase public confidence in the existence and proper functioning of the Rule of Just Law.

ZLHR further issues an urgent call for the following, as a matter of extreme urgency:

TO THE EXECUTIVE

1.An immediate cessation by members of the police, armed forces, prisons, central intelligence, and/or other individuals or organs acting on their behalf or with their knowledge or acquiescence, of ongoing acts and/or plans to commit acts of intimidation, threats, attacks, abductions (enforced disappearance) and/or extra-judicial execution of members of the legal profession, their families, or work colleagues which have an adverse impact on the efficient and effective administration of justice.

2.That the Minister of Justice and Legal Affairs, the Commissioner-General of Police, the Commissioner of Prisons, the Director of the Central Intelligence Organization, and the Attorney General provide a public undertaking that all members of the legal profession will be properly protected by the authorities in compliance with constitutional, regional and international law obligations, and will be allowed to continue representing all and any clients who call upon their services without fear or favour and without the threat of physical and/or psychological harm.

3.                       To ensure the respect of the sacrosanct lawyer-client privilege so as to ensure the justice system is not brought into disrepute.

TO THE JUDICIARY

To increase cooperation and engagement between the Bar and Bench at a practical level in the understanding that legal practitioners and the Judiciary are partners in the on-going struggle to protect and ensure the independence of the legal profession and the Judiciary (which are inextricably linked) and for the greater good of smooth justice delivery and increased access to justice, which is a common goal for all.

TO THE LEGISLATURE

1.                       To take immediate steps to deal proactively in expeditiously domesticating all international treaties, statutes and instruments guaranteeing the independence of the legal profession.

2.                       To take steps to ensure that adequate legal provisions exist or are included in national legislation to protect the independence of legal practitioners and allow them to carry out their professional duties without hindrance.

3.                       Through the Committee system, to ensure that attacks on lawyers and their professional work are swiftly investigated through a public hearing of documented cases, including an inquiry into action taken by the appropriate authorities.

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