Judges Meet Amid South African Student Unrest ( - 26 Oct 2016)

25 Oct 2016 - 21:15

By Carmel Rickard

Cape Town — Twenty African High Court judges have had a taste of South Africa's complex political reality: their human rights training course was hurriedly moved after student protests closed the University of Cape Town (UCT) campus.

The judges, in South Africa to examine how to apply international human rights law in appropriate decisions, came from 10 different African countries for the event, presented by the UCT-based Judicial Institute for Africa (Jifa).

Though they should have met for their discussions in the law faculty's Kramer building, organisers moved the workshop off campus for the first few days due to the continuing protests that saw the campus, like others in South Africa, closed for classes.

In the course of the workshop, the judges were thrown even further into the South African situation by the hypothetical cases they were asked to consider, several of which related directly to dramatic events unfolding in the host country.

One for example concerned a campaign to have a statue of the British colonial business and political figure, Cecil John Rhodes, removed from the UCT campus, with an application by two students claiming he had been a coloniser who oppressed black people and should therefore not be “honoured” via a statute.

Two top advocates, one from South African and the other from the United Kingdom, presented argument about the future of the statue to the judges, basing their submissions on international and regional human rights instruments. The judges then broke into groups to consider the submissions in the light of their own local as well as international law, and reach a decision.

One of the hypothetical cases considered by the judges was a scenario in which an admission of wrongdoing was obtained “under duress”. During the discussion that followed submissions made on this case, it was explained that the international standard was to disregard evidence obtained under torture. Several judges, interviewed later, said it had been important for them to be exposed to this standard, and that cases involving such evidence were often heard in their courts.

As part of the workshop, legal experts explained how human rights principles could - and should - be applied when specific provisions were unclear or non-existent. The judges heard an introductory discussion via video between Oxford law professor, Sandra Fredman, and retired South African Constitutional Court judge, Kate O'Regan.

Ironically, given Pretoria's decision to initiate a withdrawal by South Africa from the International Criminal Court, the participants were also linked via video to Lord Justice Fulford, senior president judge of England and Wales and a former judge of the ICC.

A later discussion with Ms Pansy Tlakula, who chairs the African Commission on Human and People's Rights, brought home to the judges the serious lack of protection for individuals under the present regional forums.

This is the second judicial workshop held by Jifa, the first being concerned with core skills such as judgment writing, and both were facilitated by retired English judge, Dame Linda Dobbs DBE, who has become internationally respected for her work training judges in human rights and other issues.

The judges came from varying backgrounds. Although some said they were well-resourced, others said they had no library or on-line research facilities. Some judges did not even have law reports so wrote up their judgements and circulated them to one another in hard copy folders so that others would be aware of the decisions that had been made.

Without exception, participants said the links made at the workshop would prove vital when they returned home, enabling them to confer with each other and exchange resources and ideas.

Although the judicial workshop was completed without mishap, it was by sheer chance that the judges escaped even closer acquaintance with the vehemence of the student protests: just days after the workshop, protesters gained entry to the law faculty building where the judges had met and threw human excrement in the corridors where the judges had informally caucused as they considered the theoretical cases before them.

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