Category: News

In United Organisation for Batwa Development in Uganda (UOBDU) and 11 Others v Attorney General and 2 Others (Constitutional Petition 3 of 2011) [2021] UGCC 22, the Constitutional Court of Uganda recently upheld the right of the Batwa people to affirmative action to address the wrongs inflicted on them when they were forcibly evicted from their ancestral lands.  At a time when there is increasing global concern about the loss of biodiversity, the Court’s judgment serves as a reminder of the importance of preserving and promoting the rights of indigenous peoples when devising conservation strategies.

The Batwa number approximately 6,000 and live predominantly in south western Uganda – a prime destination for primate tourism.  Much of the land which now comprises the Bwindi Impenetrable National Park, the Mgahinga Gorilla National Park, and the Echuya Central Forest Reserve was customarily owned by them for generations prior to the colonisation of Uganda. However, from the 1930s through to the 1990s, they were involuntarily displaced from their lands, without consultation or compensation.  As a result, not only have the Batwa been denied access to important spiritual sites which now fall within the national parks, but many find themselves living in extreme poverty, dependent on NGOs for basic necessities, with very limited access to education and healthcare, and facing a markedly higher infant mortality rate than the non-Batwa population.

The petitioners submitted that the government’s failure to recognise the Batwa as an “indigenous people” within the meaning of international law contravened Articles 19 to 24 of the African Charter on Human and Peoples’ Rights (the rights of all peoples to equality and rights; to self-determination; to free disposal of wealth and natural resources; to economic, social and cultural development; to national and international security and peace, and to a general satisfactory environment), as well as Article 36 of the Constitution, which confirms the right of minorities to participate in decision making processes.  The Court rejected these submissions on the basis that these issues fell outside the Constitutional Court’s jurisdiction, which is confined to questions of constitutional interpretation.  Instead, the Court preferred to approach the case by reference to Article 32(1) of the Constitution, which creates a positive duty to take affirmative action in favour of groups “marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom”.  Having considered evidence from a number of members of the Batwa community, as well as expert evidence, the Court found that the government’s actions “had rendered [the Batwa people] landless, and has severely affected not only their livelihoods, but has destroyed their identity, dignity and self-worth as a people and as equal citizens with other Ugandans”.  As such, the Court was satisfied that the Batwa are indeed a marginalised group and that the state was under a duty to take “all necessary steps in the interests of affirmative action in their favour”.

Finding unanimously in favour of the Batwa, the five judge bench directed that the case be transferred to the High Court to determine what measures should be implemented by way of a remedy.

As a visiting lawyer at Onyango & Co Advocates, Kampala, Gwawr Thomas was part of the team which drafted the submissions advanced on behalf of the petitioners.

The judgment can be read here.

Photo by floeschen on Flickr.

Iain Edwards has been appointed as associate Counsel to defend Ali Muhammad Ali Abd-Al-Rahman before the International Criminal Court in The Hague.  Mr Abd-Al-Rahman – said by the Prosecution to have used the alias Ali Kushayb – is allegedly a senior leader of the Arab militia in Darfur, Sudan known as the Janjaweed. He is charged with 31 counts of murder, rape, forcible transfer, persecution and torture as crimes against humanity, and numerous war crimes, arising out of the conflict in Darfur.

This case is the first at the ICC to deal with the situation in Darfur. It is also the first case to be referred to the ICC by the United Nations Security Council in respect of a State (Sudan) that is not a party to the Court’s Statute. This provides a unique opportunity for the defence to advance novel jurisdictional challenges.

The trial is scheduled to commence in April 2022.

Five members of 1MCB Chambers have been ranked in the 2022 edition of Legal 500.  Congratulations to Iain Edwards, Ben Hawkin, Bernadette Smith, Salma Lalani and Amritpal Bachu.

Iain Edwards was ranked for international crime and extradition:

“A composed and highly competent advocate. Very experienced in international criminal law matters with a concomitant comprehensive understanding of this area of the law.”

Iain is a seasoned and compassionate barrister specialising in serious crime.  He represents defendants charged with the gravest of offences and has a particular expertise in international crimes and UN sanctions work.

Benjamin Hawkin was ranked for immigration (including business immigration):

“He goes straight to the core of the matter and provides clear and concise advice.”

Ben practises in immigration & asylum, mental health, prison law and public law, with a particular emphasis on human rights issues. He has represented victims of human rights violations, leaders of political groups, and other prominent individuals. Ben has also been involved in a number of groundbreaking cases in the higher courts.

Bernadette Smith was ranked for immigration (including business immigration):

“She has a tremendous success rate with the most difficult of cases and is a first point of call for cases involving vulnerable clients.”

Bernadette is an immigration, asylum and public law specialist who is committed to representing publicly funded clients. Her work focuses on long-running complex asylum, deportation and EEA cases.  She has a particular interest in cross-cutting migrant welfare and justice issues arising out of her work with community organisations and charities.

Salma Lalani was ranked for crime:

“Salma is a dynamic advocate who will always approach a case with exceptional care and skill, and provides advice that is both practical and reassuring.”

Salma specialises mainly in criminal defence work and has developed a highly successful practice encompassing all areas of serious and complex crime.  She is a well-respected leading junior highly sought after by solicitors who are impressed by her sensible, thorough and well-balanced approach to often difficult matters.

Amritpal Bachu was ranked for social housing:

“Amritpal is dedicated, reliable and highly professional, and has gone above and beyond exploring all avenues to secure the best results.”

Amritpal specialises in social housing and employment law. A passionate and approachable barrister, he acts in complex cases involving possession, unlawful eviction and disrepair, with a particular focus on anti-social behaviour and homelessness cases intersecting with discrimination law.

Chambers is pleased to announce that Lucy Chapman has been selected for the Bar Council’s “I Am The Bar” scheme as a Social Mobility Advocate for 2021.

The scheme highlights barristers from diverse “non-traditional” backgrounds – state schooled, non-Oxbridge educated, often with characteristics that are underrepresented in the profession – with the aim of inspiring those from similar backgrounds, or who do not fit the common, outdated perception of what a barrister should be, to consider a career at the Bar.

Lucy’s journey to the Bar has been unconventional. A s a career changer, she was inspired to become a barrister after a number of years as a trade union representative, having worked in libraries, pubs, retail and the performing arts.  Asked why she had put herself forward for the scheme, Lucy explained “I hope to encourage others with disabilities and those from non-traditional backgrounds to consider the Bar.  It is vital for the public to see themselves and their experiences reflected in a diverse profession.”

You can read more about Lucy and why the scheme is important to her here.

This month marks thirty years since the enactment of the Dangerous Dogs Act 1991.  In a new blog post, dangerous dogs and animal welfare expert Pamela Rose charts the history of the legislation and examines whether the law is fit for purpose.

Read Pamela’s blog post here.

Photo by Justin Veenema on Unsplash.

Gwawr Thomas is to present a webinar on the rights of foreign national prisoners.  Titled ‘Foreign national prisoners: rights, entitlements and challenges’, the webinar will examine some of the issues that foreign nationals face when navigating the prison system and explore how to effectively influence and challenge the decisions that affect them.

The webinar will cover:

• Repatriation post Brexit
• Categorisation
• Release on Temporary Licence
• Home Detention Curfew
• Immigration detainees held in the prison estate post-sentence

The content is suitable both for prison law practitioners and for immigration and criminal lawyers who want to expand their knowledge so as to be able to better advise their foreign national prisoner clients as to their rights and entitlements and identify potential challenges.

Hosted by MBL Seminars, the webinar will be streamed at 12:30pm on 9th December 2021 and will remain available to delegates for 90 days.  To book now, please click here.

Photo by Mitchel Lensink on Unsplash.

Jemma Levinson secured an unanimous acquittal for her client who faced a serious allegation of armed robbery using a taser.  He had been named as the perpetrator by the complainant, who knew him.  The challenge faced by the defence was further compounded by the fact that, when police attended the defendant’s home address to arrest him, they found and seized a similar taser to the one that had been used in the robbery.

Despite these formidable evidential obstacles, Jemma was able to secure her client’s acquittal in just over an hour.

In a podcast for the Junior Housing Law Practitioners’ Association, Geeta Koska and Thembi Fakoya-Sales, solicitor at Mary Ward Legal Centre, interviewed the UN Special Rapporteur on the Human Rights of Internally Displaced Persons, Cecilia Jimenez-Damary.  The timely interview follows the recent publication of a report addressing housing, land and property rights in the context of internal displacement in the face of climate change, development and urbanisation.

The podcast is available here.

Read Geeta’s analysis of the report, the responsibility of businesses for displacement and the international mechanisms available to UK-based lawyers and activists seeking to promote accountability, here.

Photo by Ivan Bandura on Unsplash.

The Court of Appeal has granted permission to appeal in Zulfiqar, in which the Upper Tribunal sought to grapple with the inconsistent definitions of “foreign criminal” contained in the Nationality, Immigration and Asylum Act 2002 and the UK Borders Act 2007.

Shuyeb Muquit acts for Mr Zulfiqar, who was a British citizen when he was convicted of murder, but subsequently renounced that citizenship on qualified terms. When those terms went unfulfilled, the Secretary of State refused to reinstate his citizenship and instead served a deportation order.

The Upper Tribunal’s judgment in Zulfiqar (‘Foreign criminal’; British citizen) [2020] UKUT 312 (IAC) was reported as guidance on the reach of the statutory ‘foreign criminal’ deportation provisions, namely that it applies to potentially British citizen criminals. In this both factually and legally unprecedented case, the Court of Appeal will consider whether provisions intended for use against foreign citizens extend to persons such as Mr Zulfiqar, who were British when committing the offence by reference to which deportation was said to be justified, but who renounced their British citizenship in circumstances entirely unconnected to the criminal conduct.

Chambers is delighted to announce that Lucy Chapman has accepted an offer of tenancy following the successful completion of pupillage.

Lucy accepts instructions across chambers’ practice areas, including crime, family and housing.

Prior to coming to the Bar, Lucy was a trade union advocate and ran her own award winning pro bono project for social housing tenants, CommUnify, having been highlighted as an individual who has made a significant contribution to access to justice by the Access to Justice Foundation.

John Benson QC recently prosecuted a 25 year old male for the murder of his partner’s 22 month old child, who died from a catastrophic head injury. The child had also suffered additional injuries including bi-lateral retinal haemorrhages.

This was a complex and emotionally challenging case involving a host of medical experts for both the prosecution and defence giving evidence principally in the fields of neuropathology and pathology. The defendant did not deny that the injuries had been suffered when the child was in his sole care over a period of about 45 minutes: the primary issue at trial was whether the injuries were suffered accidentally in a fall downstairs as claimed by the defendant or, as the Crown maintained, unlawfully.

Prior to trial, the defendant had indicated that he would be prepared to plead guilty to manslaughter – a proposal that was considered acceptable to the Crown. However, he later changed his mind and was convicted by the jury of murder. The press described the defendant has having ‘gambled and lost’.

Gwawr Thomas recently secured the acquittal of a nurse accused of faking his own death in order to benefit from a substantial life insurance payment.

The defendant’s wife had pleaded guilty to fraud by false representation, having instigated the bogus insurance claim and submitted false documents in support of it. The fraud came to light when it had emerged that she had posted pictures on social media of a family outing to a theme park on the day of her husband’s supposed burial.

The Crown relied on three key pieces of evidence to demonstrate that the defendant had been complicit in the fraud: firstly, the fact that a photograph of his own death certificate was located in the camera roll of his phone; secondly the fact that his fingerprints were found on a hard copy of the same death certificate which had been concealed at his home address, and his alleged lies at interview. However, Gwawr argued that this evidence was equally consistent with the defendant having uncovered the fraud at a later date, and that there was no evidence from which the jury could infer that he had actually been party to any untrue representation to the insurance company: as such, there was no case to answer.

The judge agreed with Gwawr’s analysis of the evidence and directed that the jury return a not guilty verdict.