The Regional Conference of the Commonwealth Lawyers Association took place in Sydney, Australia last week, from Thursday, April 19 to Sunday April 22. There, participants got a close-up view of just what being WikiLeaks’ lawyer entails. The atrocities committed by Uganda’s Joseph Kony presented a stark reminder to Commonwealth lawyers that doing nothing was not an option. FUNKE ABOYADE reports from Sydney where she also spoke with the Ugandan Chief Justice, Benjamin Odoki…
WikiLeaks…Not Going Away Any Time Soon
The hoopla surrounding embattled WikiLeaks founder, Julian Assange, as well as Lord’s Resistance Army’s, fugitive Joseph Kony, last week re-echoed at the Commonwealth Lawyers Association Regional Conference which took place in Sydney, Australia.
WikiLeaks is the whistle blowing media website which publishes often embarrassing and sensitive news items pertaining to governments around the world with the avowed purpose of ensuring open governance.
‘To radically shift regime behaviour we must think clearly and boldly for if we have learned anything, it is that regimes do not want to be changed. We must think beyond those who have gone before us and discover technological changes that embolden us with ways to act in which our forebears could not.
‘The more secretive or unjust an organisation is, the more leaks induce fear and paranoia in its leadership and planning coterie... Since unjust systems, by their nature, induce opponents, and in many places barely have the upper hand, mass leaking leaves them exquisitely vulnerable to those who seek to replace them with more open forms of governance’, Assange had once said about the controversial website’s underlying philosophy.
He is currently on bail in the United Kingdom, fighting efforts to extradite him to Sweden to face what many believe is a politically motivated sex crime charge against him.
Assange and his supporters believe that the United States is the unseen hand behind his current travails, the website having leaked many controversial and potentially damaging classified diplomatic cables pertaining to that country.
A Rambunctious Start…
As Australian Attorney-General, Nicola Roxon, MP prepared to address delegates at Sydney’s Convention Centre overlooking the picturesque Darling Harbour, protesters had slipped into the building to protest, stridently, her presence.
The three protesters – two women and one man – carried hand written posters with various inscriptions. The man, much older than the other two, clad in an attention grabbing pair of black tee-shirt, shorts and multicoloured socks, and who was particularly vocal shouted that the Attorney-General had been ‘telling us a lot of lies’ and that Australia had ‘abandoned Assange, an Australian citizen, and given him no assistance’.
Approached by this writer, he introduced himself as Murray Robinson, ‘a student’.
‘Our Prime Minister, Julia Gillard, has said in public that Assange a criminal!’ he said, obviously displeased.
As security, clearly embarrassed, battled to keep the protesters at bay and prevent them from heckling Attorney-General Roxon who was being expected, the trio attracted the attention of participants who were headed for the afternoon session, aptly titled, Lawyers on the Frontline.
THISDAY LAWYER appeared to be the only media engaging the protesters in a chat and security, evidently, would rather the conversation ended as they tried to usher this writer to the nearby hall.
This writer however managed to obtain Robertson’s telephone number with a view to calling him later (see inset for the interview which subsequently held).
This was coming on the heels of the controversial temporary ‘inhibition’ on Assange’s lawyer, Jennifer Robinson, a UK-based Australian lawyer from travelling from London’s Heathrow Airport the previous day (April 19) to Sydney to participate in the conference.
Robinson had initially been informed when she’d tried to check in that she was on a government watch list and had been denied a boarding pass.
However, after much going back and forth during which time she had tweeted her ordeal, a boarding pass for her materialised barely in time for her to make her flight to Sydney.
The Commonwealth Lawyers Association immediately issued a statement that same day.
‘There are reports that Australian citizen, lawyer, and Rhodes Scholar, Jennifer Robinson, was intercepted at London Airport prior to boarding a Sydney bound flight and advised that the Australian High Commission would have to be consulted prior to her boarding.
‘Robinson, who has represented Australian, Julian Assange, is due to speak at the Commonwealth Law Conference tomorrow at the session entitled, “Lawyers on the Frontline” (4 - 5.30 pm at the Sydney Convention Centre, Darling Harbour)
‘If these reports are accurate, then the CLA believe they raise profound issues concerning the independence of lawyers and their clients. The CLA points out that Article 13 of the UN Principles on the Role of Lawyers sets out clearly that “lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.”
‘The CLA calls upon Australian Foreign Minister, Honourable Bob Carr, and the UK Border Agency, to clarify exactly what happened, and why?’ the statement said.
AG Roxon hurriedly left the hall immediately after her presentation. Clearly it was a tactical move to avoid talking to the media or exposing herself to embarrassing questions that were bound to arise and be targeted at her once Ms Jennifer Robinson presented her paper, or indeed possibly to avoid any hecklers who may have managed to smuggle themselves into the hall.
Aptly though, the first question addressed to her during the question and answer session was from… Robinson.
Ms Jennifer Robinson who was a scheduled presenter at the session, ironically titled, ‘Lawyers on the Frontline,’ made her presentation immediately after Attorney-General Roxon and acknowledged that ‘it would be impossible to speak today without discussing what happened overnight at Heathrow’.
At the check-in counter she said, the computer would not let airline staff check her in. Further enquiries by her revealed that the Australian government regarded her as ‘inhibited’.
‘A security guard came over and said, “You must have done something controversial!” she recalled, totally bemused.
‘I was so close to missing my flight by the time my boarding pass came through.
‘I’d like to think it was a mistake, but it raises several questions: in what circumstances can an airline contact our Embassy before allowing you to board that airline?
‘Is it appropriate for lawyers to be on any watch list because of their work?
‘These questions have not been answered, but I’m sure they’ll come up within the next few days’.
She had, she revealed, since she became Julian Assange’s lawyer received numerous threatening emails concerning acting for him and aimed at either putting her at risk or causing her to withdraw her representation.
On a humorous note she concluded, ‘I got a lot of calls saying: how can they say you’re “inhibited”? You’re the most uninhibited person that I know!’
‘My three Tweets coming out of Heathrow generated a storm overnight, but it is important to remember that there are other lawyers around the world on the frontline’ she ended to great applause by an admiring audience.
She urged the Commonwealth Lawyers Association to become even more active in raising these cases and said developed states should take the lead.
Robinson, who is evidently modest and self-effacing, responding to a question by this writer after the session, said that she entertained no fears of being hurt or killed and that she considered that other lawyers on the frontline in other jurisdictions have had to face far more dangerous threats and situations than she had.
Still a Work in Progress…
For CLA President, Mrs. Boma Ozobia, as she told THISDAY LAWYER in an exclusive conversation also after the session, ‘We are all still a work in progress’. This was in response to a comment by this writer that even the so-called civilised nations did not always practise what they preached to developing nations about democratic tenets.
She agreed, ‘Once they do feel their interests are threatened – and I‘d say America is leading the way in the wrong direction, with their extraordinary renditions and Guantanamo Bay’.
Indeed, on the Guantanamo Bay constitutionality challenge at the U.S Supreme Court, CLA sent an Amicus Curiae to the court and was able to influence its decision.
For those wondering what business the Commonwealth Lawyers Association might have with the US, Mrs. Ozobia clarified, ‘What concerns us is the impact on Commonwealth citizens as a lot of the countries where the terror emanated from, such as Pakistan and now, sadly, Nigeria, are Commonwealth countries’.
In such instances she said, ‘the erosion of their human rights, trials in military tribunals, detention without the usual checks and balances are totally unacceptable’.
She recalled how the CLA, in conjunction with other Commonwealth organisations such as the Commonwealth Judges and Magistrates Association, the Commonwealth Secretariat and the Commonwealth Legal Education Association came together and set up the Latimer House Principles on democracy and the rule of law.
‘It’s about separation of powers, the independence of the three arms of government so that the Executive doesn’t have overbearing influence on the others.
‘These principles have been adopted by CHOGM (Commonwealth Heads of Government Meeting), including Canada’ she said.
However, even the process of appointing judges in Canada another Commonwealth jurisdiction, Ozobia said by way of example, is rather opaque and not transparent in the least.
‘The appointments are made directly by the Executive’ she pointed out.
‘The reality is that it’s an ideal and none of them has achieved that ideal.
‘So I find, in conversation with a Canadian judge, that the Executive can select those who are sympathetic to their own party position.
‘They also are not financially independent, because they are considered civil servant - which puts them under the Executive. And that is why a judge there cannot fire his secretary!’
Comparatively, she pointed out, Nigeria had gone far as there is a separate budget for the Judiciary and the appointment process for judges is fairly transparent.
The Malaysian Experience…
Speaking right after Ms Robinson was the President of the Malaysian Bar Council, Mr. Lim Chee Wee whose presentation was lucid and witty.
Against the backdrop of the Malaysian Bar’s logo and motto, Justice through Law, he reeled out some very interesting statistics.
He shared his experiences in pressing for and championing the rights of minorities such as LGBTs (Lesbians, Gays, Bisexuals and Transvestites) and issues concerning them. It resulted in a campaign to label him gay in an effort to distract attention from the real issues.
He laced his presentation with slides some of which showed Malaysian lawyers, including members of the Bar Executive protesting illegalities or the trampling of rights by the Malaysian government. Instructively, they all had wet towels and face masks on – standard precaution against the liberal use of tear gas by the Malaysian Police.
He encouraged lawyers to be on the frontline as their challenges to the government and government agencies had resulted in the Police not detaining protesters longer than a day before either charging or releasing them (sometimes along with their lawyers who the Police usually managed to rope in), a first for Malaysia.
Undoubtedly, Nigerian Lawyers present at the session could not but identify with the Malaysian experience, the only difference being that the Malaysians had moved on whilst Nigeria still battles with a Police Force that is completely out of touch with the times and with democratic tenets.
Only recently, it will be recalled, the Chairman of the National Human Rights Commission, Dr. Chidi Odinkalu, was ‘invited’ by the Nigeria Police to come and explain statements (backed, ironically, with officially sourced statistics) made by him during his presentation in a public forum. The Nigeria Police had apparently considered the statements, though true, ‘embarrassing’. Incredible but true.
Halfway Round the World, Fuel Subsidy Removal Re-echoes …
The President of the Nigerian Bar Association, Mr. Joseph Bodunrin Daudu, SAN the last presenter for that session had prepared a brochure titled ‘Lawyers on the Frontline: The Nigerian Lawyers Experience – The January 2012 Removal of Fuel Subsidy Protests’ which he distributed to participants.
He told the audience, ‘the impression given by Government was that the issue would be debated and the views of Nigerians properly considered. Government led us to believe that the earliest time any possible action would be taken in the direction of subsidy removal was the 1st of April 2012.
‘Instead, Government took advantage of her people’s distress arising from the Christmas bombings and killings by the Boko Haram terrorists and insensitively caused the Petroleum Products Pricing Regulatory Agency (a creature of statute) to announce the withdrawal of petroleum subsidy, thereby escalating the price of PMS from the already suffocating N65 to the unbearable range of N141-N250.
‘Nigerians reacted angrily to Government’s action. It was considered not only premature, but wicked and insensitive. Nigerians concluded that their leaders were truly detached from the reality of economic hardship endured by Nigerians…Consequently Nigerians reacted spontaneously to this unwise and ill-motivated manoeuvre by demonstrations and other forms of protest nationwide’.
The NBA, he explained, gave the Federal Government alternatives to the fuel subsidy removal, even in the face of government’s insistence that there was no option to it.
The Association told government in no uncertain terms, ‘If government should apply half the vigour with which it has pursued the issue of the removal of subsidy to the eradication of corruption in all the arms of Government and in society in general then trillions of Naira would be freed up for developmental projects.
‘Government should identify areas of wastage in governance such as the allocation of largesse and booties in the name of allowances and withdraw same forthwith.
‘Government must embark on a re-orientation of its own values and ethics and those of Nigerians.
‘Law and order must be enforced in accordance with the Rule of law’.
‘Where and if Government persists on this suicidal course of action’ it warned, ‘the options open to the people are limited but clear’.
The Association subsequently lent its weight to Labour’s strike, stood with the people and called all its members out on strike. It was unprecedented. The nation was shut down for an entire week.
The NBA during that period offered pro bono services to all persons who were arraigned as a result of their participation in the strike.
The NBA President’s account of how lawyers stood in the breach on behalf of the Nigerian people who were not taken into consideration when decisions concerning their livelihood were being considered by Government was laced with facts and figures.
He told participants, ‘Nigerian lawyers are of a proactive strain. They are ever so eager to support and promote the Rule of Law, good governance and the enthronement of the best practices in human rights. It is not easy to be a lawyer in a developing country, where poverty can be traced to intrinsic factors such as corruption and ethnic/religious bigotry’.
He acknowledged however that ‘Good and conscientious lawyers usually get caught up in the syndrome of ‘if you can’t beat them; join them. Many courageous lawyers have fallen by the way side after assessing that the frontline is not economically viable or that the crossfire generated by the heat of the conflict imperils their lives’.
In spite of this, there was hope because of ‘the good men left standing’ he concluded.
BRF Wows Commonwealth Lawyers
The conference, themed, ‘The Changing Role of the Legal Profession, Emerging Democracies & Globalisation’ had several speakers earlier on, at its Opening Ceremony, one of whom was Lagos State Governor, Babatunde Fashola, SAN.
Fashola who traced the history of the current impasse in Syria regretted that the Syrian government had reacted violently against children who had indulged in graffiti as a small act of defiance and that that violent reaction had sparked the bloody uprising that had lasted over a year and claimed over 9,000 lives.
He also regretted that for a quarter of a Century, Uganda’s notorious war fugitive, Joseph Kony, had terrorised the African Continent. Kony’s rebel group, Lord’s Resistance Army of which he was head, he recalled, was responsible, over a period of two decades, for the abduction or conscription of over 60,000 children as soldiers or sex slaves.
Fashola praised the Kony 2012 video which went viral upon its release in March 2012 and which he said tapped into the power of social media to put Kony’s name in every household conversation with the aim of helping to raise support for his arrest and to set a precedent for international justice.
It put, he said, the issue of children’s rights back on the world’s front burners.
The Kony 2012 video is one of the world’s fastest viewed and has received 100 million hits so far and counting since its release on March 5 2012. The Stop Kony campaign aims to make his name known globally and have his arrest effected by the end of 2012 when the campaign expires. Kony has been indicted of war crimes and is currently wanted by the International Criminal Court to face war crime charges.
The video has helped galvanise the African Union, as well as the United States government to re-strategise and mobilise support for the capture and arrest of the indicted war criminal.
To no one’s great surprise Governor Fashola lived up to his high billing and made not just the Nigerian participants proud, but also other participants from the 31 countries of the Commonwealth represented at the gathering.
Indeed, Marc Woods of the Law Institute, Victoria who was Master of Ceremony could not resist calling the urbane and cerebral governor ‘Fabulous Fash’ several times!
The Ugandan Chief Justice Speaks on Kony…
In an exclusive chat with THISDAY LAWYER after the session, Ugandan Chief Justice, Benjamin Odoki, spoke about the response of the Uganda government to the Kony situation.
He explained that there was a peace accord where Kony was supposed to be subjected to legal process. In it, he was to be brought to justice either in Uganda or the International Criminal Court at The Hague, under the peace and reconciliation process.
Kony, he said, had preferred the domestic option. He had however failed to sign the agreement.
‘As a result of the agreement we developed a four-pillar situation to bring him to account. First, he would recognise the ICC.
‘Secondly, we would develop a local competence to develop the International Crime Court of Uganda which was created by virtue of the domestication of the Rome Statute’ Chief Justice Odoki told THISDAY LAWYER.
He explained that four judges of the court were already in place and that the court was a division of the High Court. If Kony or any of his accomplices were to be arrested they would be brought for trial there.
‘Two people are already under the jurisdiction of that court’ he pointed out.
Thirdly, he explained, a traditional mechanism for reconciliation which involved a ‘cleansing mechanism’, as well as reparation and forgiveness was being developed.
This, he said, involved more of social justice than legal justice, and was now referred to as transitional justice
Fourthly, he said, a Truth and Reconcilaition Commission had been established to heal wounds.
‘These four pillars were our judicial response to the issue’, he said.
This interviewer asked him: given that Kony is still on the loose how effective were these pillars?
‘The pillars go beyond Kony. There are also his collaborators; they must go through the legal process either in Uganda or at The Hague’, he responded.
Where exactly is Kony?
‘Kony is elusive; he’s in the Democratic Republic of Congo’.
Can he not be extradited, THISDAY LAWYER sought to know?
‘Extradition depends on extra agreement between two countries. They are French speaking, we are a Common Law country; there’s no extradition agreement between the two countries.
‘Basically, the military solution is what is being applied, but to go in hot pursuit of someone in another country you need the permission of that other country’ he explained.
As the first day’s sessions ended and this writer made for the harbour area, she realised that there had actually been more protesters, right outside the glass walls, who had probably been unable to gain access into the building. They had by then been joined by the two female protesters who’d earlier been upstairs in the building protesting with Murray Robertson.
As she left the building she mulled the thought that governments everywhere are similar, in the sense that they all have an innate desire to chip away at the rights of their citizens. Whether there are enough systemic checks and balances and how well those citizens resist those infringements are the only things that separate them.
Lawyers, and not just from the Commonwealth, it seems have their work cut out for them…