Democracy Advances and Retreats: The Gambia, Australia, and South Africa

Developing

See

“The Struggle for Democracy in Bolivia, Spain, Tunisia, Egypt, Libya, Lebanon, Ivory Coast, and Iran,” The Trenchant Observer, March 3, 2011.

“Repression in Syria, and the spread of universal ideals throughout the world,” May 11, 2011.

New Law in Australia Breaks Fundamental Principle of Rule of Law

There is no more basic principle in criminal law than Nulla poena sine lege, “No penalty without a law.” The law must exist before the conduct, be written, and specifically identirfy the conduct that is forbidden.

It is a basic provision in international human rights law. Article 15 of the U.N. International Covenant on Civil and Political Rights provides, for example,

Article 15
1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.

Article 4 paragraph 2 provides that even when other rights may be suspended “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,” Article 15 may not.

Australia ratified and became a party to the Covenant on August 13, 1980.

Australia has now passed a law which authorizes the government to extend the detention of individuals for up to three years if they are deemed to represent a threat to the people and the state, which period may be extended.

See

Michelle Innisdec, “Counterterrorism Law to Let Australia Detain Convicts After Their Sentences,” New York Times, December 1, 2016.

“SYDNEY, Australia — Under a new Australian law, convicted terrorists can be kept in prison years after the completion of their sentences if a court believes they still pose a significant threat to the community.

“Under the law, a court may order prisoners to be held for up to three years after their sentences are completed. After that period, the court can decide to extend them further, and there is no limit to the number of extensions the court may grant.

“One lawmaker who voted against the bill, David Leyonhjelm, from the Liberal Democratic Party, said: ‘No amount of window dressing can hide the fact that this is a fundamental assault on a basic human right. It amounts to imprisonment without trial. We should not be able to effectively impose life imprisonment on someone who was not originally sentenced to life imprisonment.’”

Democracy Triumphs in The Gambia, in Highly Symbolic Victory

See

Ruth Maclean (in Banjul) and Emma Graham-Harrison, “The Gambia’s President Jammeh concedes defeat in election; Incoming president, Adama Barrow, says Jammeh called him offering his congratulations after shock result,” The Guardian, December 2, 2016 (07.56 EST, updated 2 December 2016 14.27 EST).

The Headquarters of the African Commission on Human and Peoples’ Rights is in Banjul in The Gambia. Adama Barrow has just defeated longtime dictator Yahya Jammeh, a strongman for over 20 years, is a highly significant triumph for democracy in Africa.

The victory is all the more significant in that it shows that African demands for the defense of human rights and the rule of law persist, despite developments in the region that seem to move in the opposite direction, such as the withdrawal from the jurisdiction of the International Criminal Court by the ANC government of of Jacob Zuma.

South Africa Withdraws from jurisdiction of African Court of Peoples’and Human Rights

In a further departure from the vision of South Africa as a leading democracy and example to the world in Africa, the South Africa government of Jacob Zuma has announced its intention to withdraw from the jurisdiction of the international Criminal Court, leading a group of states to similarly withdraw.

See Gabriele Steinhauser, “South Africa to Withdraw From International Criminal Court; South Africa’s announcement has been condemned by human rights activists,” Wall Street Journal, October 21, 2016 (4:46 a.m. ET).

“Jacob Zuma flouts South African court order, Constitution and international law, allowing Sudanese president al-Bashir to escape arrest on ICC charges of genocide,” The Trenchant Observer, June 15, 2015.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.