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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Niger: ECOWAS Court of Justice Rejects Appeal of Former Niger Prime Minister and Presidential Candidate in Baby Trafficking Case

(Nov. 18, 2019) On October 30, 2019, the Court of Justice of the Economic Community of West African States (ECOWAS) rejected the appeal of Hama Amadou against the Republic of Niger in an alleged baby trafficking case.

Amadou was Niger’s prime minister from 1995 to 1996 and again from 2000 to 2007, and was the runner-up candidate to President Mahamadou Issoufou in the 2016 presidential elections. Amadou was arrested in 2015 after being accused of involvement in a baby trafficking ring. He and his wife were among several people alleged to be part of a conspiracy whereby newborn babies were obtained from neighboring Nigeria and then sold to wealthy couples in Niger. In 2016 he was flown to France by the Nigerien government on humanitarian release to seek medical treatment and has remained in exile ever since. Amadou was then tried in abstentia, found guilty of “child concealment” (recel d’enfant) and sentenced to one year in prison in March 2017. Concurrently with appealing his conviction within the Nigerien justice system—an appeal that he lost in 2018—Amadou brought the case before the ECOWAS Court of Justice, arguing that the government of Niger had violated his human rights. Essentially, Amadou’s argument was that his conviction was legally baseless and in violation of the principles of an equitable trial. Specifically, Amadou alleged the Niger had violated articles 9, 14, 15, 17, 23, and 26 of the International Covenant on Civil and Political Rights and articles 2, 6, 7, 13, and 18 of the African Charter on Human and Peoples’ Rights.

The Court of Justice decided in favor of the Republic of Niger and rejected Amadou’s appeal. The Court found that while it had the competency to judge alleged violations of human rights, it did not have the competency to judge the legality of a conviction by a member state’s criminal justice system. Furthermore, the Court noted the Amadou had already petitioned the ECOWAS Court of Justice in 2015, arguing that the charges and procedures against him were a violation of his human rights. The Court at that time had found that the government of Niger had not acted improperly, and that the procedures against Amadou could proceed. In its decision of October 30, 2019, the Court of Justice found that Amadou was basically trying to re-litigate the 2015 decision: the parties, basic facts, and remedies sought were the same. His claims were therefore precluded by the principle of res judicata.

According to Amadou’s attorneys, the Court of Justice “based itself on an old petition rejected in 2016 without judging the new human rights violations that were committed since 2016,” adding that the entire case was “a political scheme that has no other object than to eliminate Hama Amadou from the next presidential race.”

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Pakistan: Sindh Province Rejects Bill Against Forced Conversions

(Nov. 15, 2019) On October 8, 2019, the Provincial Assembly of Sindh Province rejected a bill criminalizing forced religious conversions. This was the second attempt at enacting an anti-conversion law in the province—in December 2016 the Provincial Assembly passed a similar bill, but on the insistence of the provincial government, the governor did not assent to it.

Background on the Bill

The bill’s rejection comes at a time when there has been a recent surge in reported cases of Hindu and Christian girls and young women who have been kidnapped and forcibly married in Pakistan. On July 16, 2019, the issue of abducting and forcefully converting Hindu girls in various districts of Sindh province was taken up in the Sindh Assembly, where a resolution was debated and unanimously passed after it was modified over objections of certain lawmakers that it should not be restricted to Hindu girls because “girls irrespective of their faiths should be protected from being kidnapped and forcibly converted in Sindh.”

Shortly after the 2016 Bill was passed, a news report stated that religious parties and the Council of Islamic Ideology had conveyed their opposition to the leadership of the governing Pakistan People’s Party (PPP). According to the report of the Edward Cadbury Centre for the Public Understanding of Religion,

[t]he bill was effectively blocked by the mobilisation of the Islamist groups and parties. A group of Ulema, including the Council of Islamic Ideology (CII) met with Dr. Abdul Qayyum Soomro, the chief minister’s special assistant on religious affairs, on 5 December 2016, and termed the bill against the basic principles of Islam. Religious parties in Karachi launched a campaign against the bill in order to pressurise the Sindh government into repealing it. The Jamaat-[i]-Islami (JI) argued that there could be no age limit on people converting to Islam. Religious Parties threatened to lay siege to the Sindh Assembly if the legislature did not repeal the bill.

According to a news report, soon after the bill was passed, the leadership of the PPP “conveyed a message through the chief minister (CM) to the then Sindh governor, Justice (Retd) Saeeduzaman Siddiqui, asking him not to ratify the bill.” The governor reportedly returned the bill to the assembly, asking them to “revisit” it. He had “primarily raised objections over the clause that denounced the conversion of minor girls and [that] said … the practice should be stopped, stating, “[w]hen Hazrat Ali [the fourth caliph and successor to Prophet Muhammad] can convert to Islam at a young age, why can’t Hindu girls?” The governor’s criticisms refer to chapter III of the bill, entitled “Age of Conversion,” which prohibits children from converting to a different religion while they are minors. Section 4(1) states, “No person shall be deemed to have changed their religion until they attain the age of majority,” which is 18 years of age. Also, section 4(2) stipulates that “[a]ny minor who claims to have changed their religion before attaining majority shall not be deemed to have changed their religion and no action shall be taken against him or for any such claim or action made by the minor.” Islamic political groups also objected to section 11 of the 2016 Bill, which allowed “a 21-day period for the alleged adult victim to independently consider whether or not their decision to convert to another religion was forced, before it initiates a forced conversion case.”

In early April 2019, a new version of the Criminal Law (Protection of Minorities) Bill that had been revised in accordance with the governor’s objections was submitted by the Grand Democratic Alliance (GDA) Provincial Assembly member Nand Kumar Goklani. The 2019 bill appears to omit the section 4 prohibition against child conversion and instead allows a judicial magistrate to issue an injunction to prohibit a child conversion or marriage and “upon final decision of conviction of accused the conversion and marriage of child (if any) shall stand nullified.”

Assembly speaker Agha Siraj Durrani and Sindh local government minister Nasir Hussain Shah insisted that the bill be sent to the provincial cabinet for review. The speaker warned that “[i]f you will not agree to refer the bill [to the cabinet], I will then put it to voting in house, after which you will not be able to move it again.” Following this, members of the assembly voted on the bill. The bill was rejected, with a majority from the treasury benches (government ministers) voting against it.

Reactions to the Bill’s Rejection

When the bill failed to pass, Goklani criticized the PPP government, reportedly declaring that “I will suggest that they stop staging a drama, celebrating Diwali, Holi and other festivals of the Hindu community. They should stop proclaiming themselves as the champions of minorities’ rights.” Goklani also expressed disappointment over the silence of PPP Provincial Assembly members who belonged to minority communities: “Our girls are being kidnapped and converted and I have been struggling for the past few years to pass a law against the menace but today the Sindh government has proved that it is unwilling to address the issue.” Shah, on the other hand, told the media that the PPP was not opposed to the law but could not “bypass the rules.” “We will pass the law against forced conversions soon, but with the consultation of all the stakeholders,” said Shah.

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Israel: Family Court Rejects Request to Register Same-Sex Spouse of Biological Parent as a Third Parent or an Additional Guardian

(Nov. 14, 2019) On October 22, 2019, the Lod Central-District Court rejected a request to register a woman as the third parent of her same-sex spouse’s biological children or alternatively appoint her as a guardian of the children in addition to their biological parents. (Family Appeal 52550-10-18 Anonymous v. Anonymous (decision rendered Oct. 22, 2029, by Judge Zvi Weizmann with Judges Varda Plaut and Michal Brent concurring), draft copy available at LGBT & Law, Tel Aviv University Law School (in Hebrew) (all translations by author).)

Circumstances

The spouses (appellants) are Israeli citizens who married in 2013 (presumably outside of Israel where the celebration of same-sex marriages is invalid). On June 25, 2013, the mother and the father signed an “agreement for joint parentage,” which was approved by the Petach Tikva Family Court on December 10, 2013 (the agreement). The agreement referred to the parties as “the parents.” (Judge Weizmann opinion paras. 1–2.)

The parents noted in the agreement that they wished to bring children into the world together and serve as “a mother and a father” to them, while ensuring the children’s well-being. The parents clarified that they did not wish to share a joint household but to have separate family units where, in addition to their joint parenthood, each party would be allowed to maintain spousal relationships with other partners. They further agreed that the mother would have custody during the first two years after a child was born, after which they would jointly share custody. (Para. 3.)

The agreement states that decisions regarding the education, health, and property of the children would be made by the “parents” in consultation with the “mother’s spouse” and in the children’s best interest. Therefore, “[although the mother’s female spouse] is not a party to the agreement, she as well as the father’s partner are present in it in a real way.” (Para 4.)

The parents’ joint children were born in 2014 and 2016 through an IVF procedure. The biological father and mother are registered at the Israel Population Registry as the children’s parents.

Decision

Judge Weizmann noted that although the right to parenthood had been recognized as one of the fundamental rights of a person in Israel, Israeli law does not define the meaning of parenthood. The absence of a definition might have enabled the courts to “fill [the void] with content that corresponded to the temporary changes requiring immediate intervention by providing judicially created remedies even without waiting for the legislature’s say … ” (Para. 14.) These include recognition of spouses as “known to the public as married,” and judicial decrees recognizing parentage of same-sex spouses wishing to raise children jointly. Nevertheless, the judge opined,

[w]e must ensure that solutions such as these be devised with extra caution and according to … conditions that will allow proper oversight and supervision[.] … [T]he primary authority should be given to the legislature to create comprehensive legal solutions for substantive and central issues such as the family unit and allow it to examine in an educated and comprehensive manner the totality of the impact of its determinations and the normative direction it will issue. (Para. 14.)

The issue of the formation of the family unit and the relationship among its members, according to Weizmann, is an issue with very significant social, ethical, and economic consequences. In the absence of a specific difficulty requiring an urgent solution, when the children have their biological parents and can readily recognize the appellant’s presence in their life, there was no need for the Court to step in before the legislature addressed the issue. (Para 16.)

Ultimately the Court rejected the suit, holding that there was no legal basis under Israeli law for recognizing three parents for a minor child. The recognition of a third parent and the appointment of a guardian for a child who has two natural guardians are matters that, given their complexity and their social, moral, and economic implications, need to be decided by the legislature. (Paras. 22, 38.)

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West Bank: Palestinian Authority Announces Planned Changes to Penal Code in Response to Case of Honor Killing

(Nov. 13, 2019) The Palestinian Authority’s Ministry of Women’s Affairs has responded to a wave of public protests over an alleged honor killing case by stating it will introduce a new family protection law before the end of 2019. The new law would amend the penal code to establish a minimum age for marriage, review current legal protections for victims of domestic violence, impose harsher penalties on perpetrators, and train the police force in assisting victims.

The Palestinian nongovernmental organization Women’s Centre for Legal Aid and Counselling (WCLAC) has reportedly documented a total of 23 killings of women in the West Bank and Gaza in 2018—10 in Gaza and 13 in the West Bank.

Draft Law

The Ministry of Women’s Affairs is drafting a family protection law, which the Palestinian Authority plans to publish before the end of the 2019. Amal Hamad, the head of the ministry, said the law would establish a minimum marriage age and other protections for women from gender-based violence. In addition, the ministry would review current protections for women to best assess where protections could be expanded.

The draft domestic violence law aims at preventing violence against women and protecting survivors. It would require that the police be trained in how to identify and screen victims of domestic violence. It would also include provisions allowing the emergency protection of victims by implementing restraining orders against perpetrators, including removing them from the victim’s house. Finally, the draft law would enhance penalties for committing physical violence against women and penalize marital rape.

Facts of the Case

Israa Gharib was a single, 21-year old woman from the city of Beit Sahour, West Bank. On August 9, 2019, Gharib went to the hospital with a broken spine and bruises on her body. News sources indicate her family had beaten her after pictures and videos of her and her fiancé together surfaced on social media before the couple had concluded their marriage contract. On August 22, 2019, Gharib’s family announced that she had died due to clotting in her heart.

A spokesperson for the woman’s family denied that the family had anything to do with her death or the bruises on her body. He also stated that Gharib was haunted by a demon (jinn), which is why she was screaming when she was admitted to the hospital.

The doctors who attended her have thus far not disclosed any information about Gharib’s case under the orders of the public prosecutor, who has demanded complete secrecy during the investigation of the case. The Public Prosecution has ordered the medical examiner to exhume Gharib’s body and perform an autopsy to determine the cause of her death.

Charges Filed

The Public Prosecution has charged three of Gharib’s relatives with manslaughter under article 330 of Law No. 16 of 1960 on the Penal Code (English translation) for assaulting and unintentionally killing her. Article 330 stipulates that whoever commits manslaughter must be punished by imprisonment with hard labor for a minimum of five years. The Public Prosecution has not released the relatives’ names yet.

Under article 326, of the Code, the offense of murder entails a punishment of 15 years of imprisonment with hard labor, while article 328 punishes the perpetrator of murder of a sister, daughter, or mother with the death penalty.

Public Reaction to the Case 

Some Palestinian women’s rights activists have argued that Gharib’s family murdered her because they saw pictures and videos on Instagram of her with her fiancé together and alone, before the couple had signed their marriage contract. The details of the pictures and videos have not been disclosed. Those activists have tried to raise public awareness of the case through social media campaigns, such as using an Arabic hashtag that translates as “#WeAreAllIsraaGharib,” and organizing protests and rallies calling for greater legal protections for women in cities throughout the Palestinian territories. Public protests have occurred throughout the Palestine territories and the Arab world as part of the “Tala’at” movement, which aims to bring violence against Palestinian women to an end.

Israa Gharib’s case has become a matter of great public interest locally and regionally in the Arab world. The widespread public scrutiny of the case has caused her family to break their silence and respond to the domestic violence allegations against several family members. The Public Prosecutor has issued a statement acknowledging that Gharib’s case has gained the attention of the public, feminist organizations, and community foundations, and that the final report of the medical examiner, which will have a significant impact on the case, is currently being prepared and has not been issued yet.

The Office of the Head of the Palestinian National Authority, Mohammad Shtayyeh, has issued a statement that affirmed the office’s commitment to seek justice for Israa and publicize the final results of the police investigation. He also called for the maximum penalty for those responsible for Israa’s death.

Prepared by Molly Cox, Law Library intern, under the supervision of George Sadek, Foreign Law Specialist

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Colombia: Constitutional Reforms Proposed to Increase Punishment for Violent and Sexual Crimes Against Minors

(Nov. 12, 2019) During debates over the last several months in the Colombian Congress regarding a proposed constitutional reform to apply life imprisonment to perpetrators of violent and sexual crimes against children, representative Jaime Rodriguez submitted an additional and highly controversial proposal to impose the death penalty for those who commit such crimes.

Article 11 of the Colombian Constitution provides that the right to life is inviolable and forbids the use of the death penalty, and legal commitments to protecting the right to life upheld by the Constitutional Court and enshrined in international treaties entered into by Colombia preclude Colombia from imposing capital punishment.

According to Rodriguez, although stricter penalties for violent and sexual crimes are needed, prison overcrowding “makes it difficult to have a person convicted of a life sentence.” Moreover, he maintains that even the maximum 60-year sentences that are currently imposed, which are essentially life sentences, have not dissuaded criminals from perpetrating these types of serious crimes.

Because it is a constitutional reform, the death penalty initiative must survive four congressional debates before the fall legislative session ends on December 16, 2019, but the chances for this happening are practically impossible because no debate will be held until the Criminal Policy Council issues an opinion, which could take several weeks. The most likely prospect is passage of the reform measure establishing life sentences for rapists and murderers of children. Although this bill was already approved in the first debate on October 15, its way forward is not guaranteed because many lawmakers object to applying the measure to perpetrators who are declared mentally ill and because article 34 of the Colombian Constitution prohibits the implementation of life imprisonment. Thus, to pass, the initiative would have to change article 34.

Under the proposal, life imprisonment would apply to those who commit the crimes of manslaughter, kidnapping, torture, and carnal access or abusive sexual acts to children under 14 years of age. A life imprisonment conviction would have to be reviewed within a 25-year-period to assess the resocialization of the convicted person. In addition, a life sentence conviction would be automatically reviewed by the superior tribunal of the sentencing court.

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