Thursday, May 24, 2018

Sorry, wrong courtroom

A civilian's challenge to the jurisdiction of Uganda's court-martial has been dismissed because it was filed with the High Court's criminal division rather than its civil division. Details here. Presumably the case will now be refiled in the proper court.

Uganda regularly prosecutes civilians in courts-martial, notwithstanding human rights jurisprudence that strongly disfavors the practice.

New round of trials in Tunisia -- but there are big issues to resolve

Human Rights Watch has issued an excellent report on a new round of trials in Tunisia, in cases that had previously been tried by flawed military courts (with lenient outcomes). But the new round of trials raises other questions, such as the application of double jeopardy principles and the principle of commander responsibility. Excerpt:
One issue that may arise is of the principle of “double jeopardy” – that is, that defendants have a right under international law not to be tried twice for the same offense. The United Nations Human Rights Committee has stated that this principle is not breached where a higher court quashes the verdict and orders a new trial, or where the trial is reopened due to exceptional circumstances such as the discovery of new evidence. Under the Rome Statute of the International Criminal Court (to which Tunisia is a party), trials before the ICC where someone has previously been tried in another court are not considered to violate this principle, if the purpose of the previous proceedings was to shield the person concerned from criminal responsibility, or if those proceedings otherwise were not conducted independently or impartially in a manner designed to avoid the person being brought to justice.
The military court tried the defendants for the conduct of security forces under their command. However, Tunisian law is not well-equipped to address command responsibility, a key concept in international criminal law that makes commanders and civilian superiors liable for serious crimes committed by their subordinates if the superiors knew, or had reason to know, of the crimes and failed to take all reasonable steps to prevent or punish them. The Specialized Chamber should take into consideration the customary international law concept of command responsibility when trying the case. Tunisian legislators should also introduce a new provision in the penal code on command responsibility consistent with its definition under international law and incorporate the Rome Statute into domestic legislation.

Egyptian military court jails civilian journalist

Business as usual in Egypt: a military court has handed down a 10-year sentence to a civilian journalist. Details here. Excerpt:
A military court sentenced on Tuesday independent journalist and researcher Ismail Iskandarani to 10 years imprisonment on charges of joining an illegal group and reporting about the opinions of Sinai-based tribes concerning the performance of the armed forces.

Another defendant also received the same sentence.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts. Egypt is one of the world's leading violators of this principle.

Why was Harvey Rishikof fired (and was it unlawful command influence)?

Col. James L. Pohl
Military Commission Judge 
The Miami Herald's Carol Rosenberg reports here on an order by a Guantanamo military commission judge requiring Pentagon lawyer William Castle and former convening authority Harvey Rishikof to testify in July on a defense unlawful command influence motion. Excerpt:
[Col. James L.] Pohl also ordered the Pentagon to provide the job descriptions of Rishikof and his legal adviser, Gary Brown, who was also fired and the Dec. 13, 2017 memo that supposedly discussed proposing guilty pleas as well as three other documents related to Rishikof's job.

During a May hearing, Pohl openly wondered whether, as a Pentagon appointee, Rishikof served at the pleasure of the secretary of defense or, because there was no time-limit on his hiring, it was a lifetime appointment "absent personal misconduct," like a federal judge. . . .
A separate defense motion seeks dismissal of the 9/11 case based on tweets from President Donald Trump.

Meanwhile, the U.S. Court of Military Commission Review has ground to a halt since the court's non-disqualified members have fallen below the minimum of three required by the Military Commissions Act.

Wednesday, May 23, 2018

Criminal defamation in Lesotho (herein of spring chickens)

And now for something completely different.

The Constitutional Court of Lesotho, in a landmark decision, has invalidated the statute making defamation a crime. The decision in Peta v Minister of Law, Constitutional Affairs and Human Rights and Others (CC 11/2016) [2018] LSHCONST 251 (18 May 2018), is available here. Excerpt:
Applicant is the owner and publisher of a popular weekly newspaper, the Lesotho Times. In the 23rd – 29th June 2016 issue of the same newspaper, he published an article headlined “Flicker of hope for my beloved kingdom…” This article appeared in a concomitant satirical section titled the ‘Scrutator’. The ‘Scrutator’ column satirizes current affairs in Lesotho by using humor, irony and exaggeration “to expose and criticise shortcomings of an individual or society.”

The article in issue related to the then-Commander of the Lesotho Defence Force, Mr Tlali Kamoli. The article detailed how Mr. Kamoli in an apparent show of power and influence, ordered Ministers and the then-Prime Minister to do ridiculous and plainly absurd things. In one respect it said:

“An interesting story had been doing rounds around Maseru, it goes like this. During one of his moody days, Tlali Kennedy Kamoli pitched up at a cabinet meeting unannounced. He then forced the chairman, Ntate Mosisili, to halt proceedings half-way through. The Premier dutifully complied.

The reason for Ntate Kamoli doing all this, the story goes, was because he wanted to show who is indeed the mighty King of this country. He wanted to prove where real power resides. King Kamoli then ordered all male ministers to remove their vests and shirts and move into the grounds of State House to each perform a 100 press ups.

Younger cabinet members like the ever-indefatigable Selibe Mochoboroane and Joshua Setipa quickly stripped off their vests, exposing their well aligned six packs. In less than a minute Mochoboroane and Setipa had each completed their hundred (100) press (push) ups! The older members of the cabinet struggled. Ntate Mosisili could not complete in the first minute but finished in the third. Ample proof that he is still a spring chicken and fit to be Prime Minister.” [Footnote omitted.]
Held,
The foregoing discussion has brought to the fore the deleterious effects of criminal defamation in section 104 read with sections 101, 102 and 103 of the Act. The means used to achieve the purpose of protecting reputation interests, in some instances, are overbroad and vague in relation to the freedom of expression guarantee in section 14 of the Constitution. Furthermore, having concluded that criminal defamation laws have a chilling effects on the freedom of expression, and that, civil remedies for reputational encroachment are more suited to redressing such reputational harm, I have come to the conclusion that the extent of the above-mentioned sections’ encroachment on the freedom of expression is “not reasonable and demonstrably justified in a free and democratic society.” Having concluded thus, what remains is the relevant order that this court should make. In terms of section 22(1) (6) of the Constitution, this court “may make such orders, issue such process and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of sections 4 to 21 (inclusive) of this Constitution”. Mr. [Gilbert] Marcus [attorney for the applicants] had argued that the only appropriate order in the circumstances of this case is to declare section 104 of the Act inconsistent with the Constitution and to strike it out. I am in full agreement that section 104 and its accompanying sections should be struck down altogether, this is in view of the fact that these sections are so inextricably linked, and further that, the crime of defamation has no place in our current Constitutional dispensation.
Moral of the story: you won't go to jail any longer in Lesotho for recounting stories that make the Defence Force Commander look silly.