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August 28, 2017

Judicial Independence — A Foundation for Combatting International and Transnational Crimes

Sonia Sotomayor, Associate Justice of the United States Supreme Court.

Arusha yesterday played host to an international symposium held at the Mount Meru Hotel, aimed at exploring judicial independence, integrity and ethics in the fight against international and transnational crime; case studies on the role of the judiciary in addressing human trafficking and corruption; and the relationship between domestic, regional, and international courts in combatting serious crimes.

This event was opened by Ibrahim H. Juma, Acting Chief Justice of Tanzania and Mohamed Chande Othman, former Chief Justice of Tanzania and member of the Africa Group for Justice and Accountability, following welcome remarks by Bettina Ambach, Director of the Wayamo Foundation and Paulette Brown, Immediate Past President of the American Bar Association. It featured an opening conversation between Sonia Sotomayor, Associate Justice of the United States Supreme Court, and Judge M. Margaret McKeown, United States Court of Appeals and Chair of the ABA ROLI Board. This was followed by guest speakers Navi Pillay, Former UN High Commissioner for Human Rights and AGJA member, and Bertram Schmitt, Judge at the International Criminal Court, The Hague.

Co-convened by the Wayamo Foundation and the American Bar Association Rule of Law Initiative, with the financial support of the German Federal Foreign Office and the United States Agency for International Development (USAID), the symposium brought together high-level judges from the East African region, experts on international criminal justice, academics and practitioners from the field of international and transnational criminal law and members of civil society, to discuss their experiences with adjudication of international and transnational crime, with human trafficking and corruption, with prosecution of core international crimes and other serious crimes.

The critical topics discussed during the symposium included:

  • Judicial Independence and ethics in the fight against transnational crime
  • Case studies on the role of the judiciary in addressing human trafficking and corruption
  • The relationship between domestic, regional, and international courts in combatting serious crime

In their opening remarks:

The acting Chief Justice of Tanzania, Ibrahim H. Juma, underscored the importance of Tanzanian judges looking ahead, learning from others, and seizing judicial occasions to shape and direct national laws and institutions. He noted that “Powers of individual national sovereign States operating alone cannot match the technological explosion and the growth of transnational organized crime without concerted and collective response of the international community to it.”

The former Chief Justice of Tanzania, Mohamed Chande Othman, acknowledged that tensions will arise between co-equal branches of government, commenting that “the judiciary is at the vanguard, but at the same time the judiciary is the most vulnerable institution.” He further noted that “judicial independence is essential for accountability, in the fight against impunity.”

Justice Sonia Sotomayor of the US Supreme Court spoke with Judge M. Margaret McKeown about judicial independence. Justice Sotomayor began by highlighting her path from public housing to the Supreme Court, noting the key importance of promoting equality through education.  She emphasized that judicial independence is not possible unless judges are passionate and motivated by a commitment to the rule of law and that judging requires human understanding.
Justice Sotomayor highlighted the role of judges in shaping the public’s perception of justice: trial judges who engage directly with lawyers and litigants come to represent the judiciary to the public, and so if the public does not believe that they are independent, they will never respect the judiciary. At the same time, the independence of appellate judges is reflected in their written opinions and how the rule of law – and justice – motivate their decisions.
Justice Sotomayor spoke about the role of judges to inspire citizens to exercise their civic responsibility, recognizing the power of their right to vote and the power of their voice to participate in how laws are made.  She encouraged judges to speak often to the public – in schools, hospitals, and prisons.
She addressed as well the issue of domestic judges considering international law and the law of other jurisdictions, and noted that ideas have no boundaries.  She explained that in practice foreign law and treaties affect US proceedings in so many ways. She discussed the changing notions of privacy and the relationship between privacy and human dignity, expressing a concern that courts may not be adequately equipped with knowledge and experience to ensure they set proper guidelines for cybersecurity.
The Justice concluded her remarks saying that she has been deeply impressed with the judicial actors and lawyers she has met on this trip to Africa, and how hard they are working and thinking about improving the legal systems on the continent, commending participants at the symposium for their dedication to the rule of law and to justice.

Navi Pillay, former UN High Commissioner for Human Rights, spoke about International Criminal Justice, sharing experiences from international criminal tribunals in Rwanda and Yugoslavia, looking particularly at the role of the prosecutor, and the experience of these tribunals in introducing some international crimes to the judiciary, who were never themselves trained in international law. She stressed the importance of implementing legislation, recommending to “make genocide, crimes against humanity and war crimes a national crime” so that national states have the necessary legislation in place.

Judge Bertram Schmitt, Judge at the International Criminal Court (ICC), spoke about judicial independence and the ICC, asserting that the independence of ICC judges is perhaps even more important than in domestic courts, due to the highly political environment in which the ICC operates. He spoke about requests from the Security Council to defer ICC cases, and the risk of such deferrals being made without transparency, and due to political reasons.

In addition to the above speakers, Panellists included:

  • Justice Steven B.K Kavuma, Deputy Chief Justice, Judiciary of Uganda; Justice Aimé Muyoboke Karimunda, Judge of the Supreme Court of Rwanda; Justice Omar Makungu, Chief Justice, Judiciary of Tanzania; Emilia Siwingwa, Independent Legal Adviser and member of the ABA ROLI Africa Council; Judge Virginia Kendall, United States District Court for the Northern District of Illinois; Charity Hanene Nchimunya, CEO of the African Union Advisory Board on Corruption; Aimée Comrie, Crime Prevention and Criminal Justice Officer, GLO.ACT, Human Trafficking and Migrant Smuggling Section, United Nations Office on Drugs & Crime, Vienna, Austria; Stephen Rapp, Distinguished Fellow at The Hague Institute for Global Justice, former Ambassador-at-Large for War Crimes Issues, Office of Global Criminal Justice, Department of State, United States of America; Olufemi Elias, Registrar of the International Residual Mechanism for Criminal Tribunals, The Hague/Arusha; Selemani Kinyunyu, African Governance Architecture Focal Point at the African Court on Human and Peoples’ Rights, Arusha, Justice Emmanuel Ugirashebuja, President of the East African Court of Justice.

As part of the Wayamo Foundation’s commitment to sharing information and experiences among judges in the East African region, the symposium will be followed on August 8 by a one-day judicial retreat for judges from Rwanda, Tanzania and Uganda. By enhancing knowledge in the areas of the judiciary’s role in addressing serious and transnational crimes, the ultimate goal is to build competency to address these crimes domestically, and build understanding of the complementary role of national, regional and international courts in this effort.

The Judges’ Symposium was attended by some 80 experts on international and transnational criminal law, academics, legal practitioners, and civil society organisations from across the East African region and other parts of the world.

The Wayamo Foundation is an independent, non-profit organisation established to strengthen the rule of law, promote international criminal justice and foster transparency through informed journalism. Its main field of action is to build the capacity of national judicial systems that address core international crimes, transnational organised crime and transitional justice mechanisms.

In November 2015, the Wayamo Foundation launched the Africa Group for Justice and Accountability, an independent group of senior African experts on international criminal law and human rights, whose main goal is to strengthen justice and accountability measures in Africa through domestic and regional capacity building, advice and outreach, and enhancing co-operation between Africa and the International Criminal Court. The Wayamo Foundation is the co-ordinator of the Africa Group and acts as the group‘s contact point and secretariat.

The American Bar Association Rule of Law Initiative (ABA ROLI) is a public service project of the American Bar Association, with over 25 years of experience delivering international rule-of-law technical assistance and currently implementing programs in nearly 50 countries worldwide. ABA ROLI’s work is organized along four program areas—Justice System Strengthening; Access to Justice and Human Rights; Transitions, Con­flict Mitigation and Peacebuilding; and Inclusive and Sustainable Development—in which our efforts aim both to strengthen formal justice sector institutions and to empower citizens to access them.