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Friday, February 17, 2017
Mr. Mumba Malila
Attorney-General,
Ministry of Justice
PO Box 50106
Fairley Road, Ridgeway
Lusaka, Zambia
Dear Sir;
Re: Wrongful arrest and detention of lawyer Oliver Holland
Lawyers’ Rights Watch Canada (“LRWC“) is a committee of lawyers and other human rights defenders who promote human rights and the rule of law internationally through advocacy, legal research and education. LRWC also campaigns for lawyers and other human rights defenders in danger because of their advocacy. LRWC has Special Consultative status with the Economic and Social Council of the United Nations.
On January 10, 2017, Oliver Holland (“Mr. Holland”), a respected human rights lawyer with the law firm Leigh Day (based in London, UK), was arrested while performing his professional duties. In particular, Mr. Holland was in Zambia meeting with clients from village communities in Zambia who are parties to a lawsuit filed by 1,800 citizens of Zambia against the UK based mining multinational Vedanta Resources and its Zambian-based subsidiary, Konkola Copper Mines (KCM). The basis of this class-action lawsuit is a claim by these 1,800 villagers that the companies are responsible for polluting their water sources and farmland, which has resulted in illness, death, and low crop yields.
After meeting with his clients, Mr. Holland was detained without charge and escorted to the Chingola Central Police Station. He was initially detained under the Public Order Act, which, as you know, prohibits meetings of more than three people without a police permit. After being detained for four hours, Mr. Holland was then informed that he was instead being charged under the Penal Code Act for Unlawful Assembly.
After being offered to have the charge against him reduced to a misdemeanour and a fine if he agreed to the offence, Mr. Holland accepted and was released.
LRWC notes the arbitrariness of Mr. Holland’s treatment. When Mr. Holland was initially detained, he was charged under the Public Order Act which, strangely, prohibits meetings of more than three people without a police permit. However, as a result of the nature of Mr. Holland’s work as a lawyer, and the size of his group of clients, he must update his clients via group meetings involving around 100-150 people at a time. When his charges were later changed to “Unlawful Assembly” pursuant to the Penal Code Act, it is submitted that this was yet another arbitrary charge against a lawyer simply doing his job and meeting with his clients.
The charges against Mr. Holland, whether under the Public Order Act, Penal Code Act, or even the misdemeanor that he ultimately was forced to accept, reveal no acts or omissions that could reasonably be considered criminal. We conclude that charges and prosecution against Mr. Holland were both ill-founded and improper, and may constitute an abuse of process and “obstruction of justice.”
The arrest and prosecution of Mr. Holland violates a number of standards accepted internationally and by the African Union, namely:
- Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction;[1]
- The rights of lawyers to perform their professional functions without intimidation, harassment or improper interference[2];
- The rights of lawyers to travel and consult with their clients freely;[3]
- That lawyers shall not suffer or be threatened with prosecution or administrative sanctions for any action taken in accordance with recognized professional duties;[4] and
- The prohibition against identifying lawyers with their clients’ causes.[5]
The principle of an independent bar free from threats, direct or indirect, is upheld in the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by consensus by the UN General Assembly on December 9, 1998. This instrument is intended to ensure the international recognition that lawyers and other human rights defenders have a positive duty to promote universal respect for and observance of human rights and fundamental freedoms without threat. In particular, this instrument affirms at Article 12, section 3, that:
In this connection, everyone is entitled, individually and in association with others, to be protected effectively under national law in reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to States that result in violations of human rights and fundamental freedoms, as well as acts of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms.
It is essential that lawyers not be subject to prosecution and loss of liberty for representing unpopular clients or causes. Without lawyers who are free from fear of adverse consequences for representing people before the courts, the courts cannot count on hearing full argument on the facts and law of particular cases. A vigilant protection and open public discussion of the traditions and importance of the independence of the courts and the bar is critical to the protection from government administrations that might usurp and overstep their appropriate authority to the detriment of the state and the public.
We call on the Attorney General to reconsider the propriety of the above-noted charges against Mr. Holland, for acts done in the representation of a client and issue a full pardon.
LRWC will follow this matter.
Sincerely,
Adam Hummel, Barrister and Solicitor
Toronto, Canada
Copied to:
Mr. Edgar Lungu, President of Zambia
Office of the President
PO Box 50212
Lusaka, Zambia
Mr. Given Lubinda
Ministry of Justice
PO Box 50106
Lusaka, Zambia
Diego García-Sayán
Special Rapporteur of the Human Rights Council on independence of judges and lawyers
℅ Office of the UN High Commissioner for Human Rights
United Nations Office at Geneva
8-14 Avenue de la Paix
1211 Geneva 10
Switzerland
Fax: +41 22 917 9006
Email: srindependencejl@ohchr.org
[1] The Basic Principles on the Role of Lawyers U.N. Doc A/CONF, 144/28/Rev.1 at 118 (1990); Article 2
[2] Ibid, Article 16.
[3] Ibid, Article 16.
[4] Ibid, Article 16.
[5] Ibid, Article 18
