MENA Programme Annual Narrative Report

Sida, Konflikt/MENA Karolina Hansson 105 25 Stockholm

Activity 52030242 and 52030230, September 2013–December 2014

MENA Programme Annual Narrative Report ILAC hereby respectfully submits the following MENA Programme Narrative Report covering the inception period of the Programme, from 01 September 2013 to 31 December 2013, as well as the first full year of implementation of the Programme, from 01 January 2014 to 31 December 2014. Stockholm 2015-05-13 /updated 2015-06-26 Agneta Johansson Per Lagerström Executive Director, ILAC Head of Administration, ILAC !

ILAC!MENA!Programme!Semi2Annual!Narrative!Report!January!2014!–!June!2014!

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Annexes

101 01 Memo on verifiable instances 101 02 Memo on Focus Node Methodology 101 03 1.01 Annual Narrative Report 2014 101 04 ILAC MENA Programme Financial Report 2014 101 05 Independent Auditors Report 2014 101 06 Report of Factual Findings 101 07 Auditors Management Letter 101 08 ILAC Management Response 201 01 2.01 Annual Narrative Report 2014 202 01 2.02 Annual Narrative Report 2014 205 01 2.05 Annual Narrative Report 2014 206 01 2.06 Annual Narrative Report 2014 207 01 2.07 Annual Narrative Report 2014 209 01 2.09 Annual Narrative Report 2014


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Table of Contents

Annexes&.....................................................................................................................................................................................&2!Table&of&Contents&.................................................................................................................................................................&3!Executive&Summary&............................................................................................................................................................&4!Introduction&...........................................................................................................................................................................&6!The&structure&of&the&MENA&Programme&....................................................................................................................&6!The&structure&of&this&report&.............................................................................................................................................&7!Political&and&security&developments&in&the&MENA&region&..................................................................................&8!Overall&analysis&–&changing&attitudes&as&the&key&to&changing&institutions&.............................................&10!ILAC&Coordination&............................................................................................................................................................&11!Generic&Objective&A&–&Good&governance;&Ministry&of&Justice&..........................................................................&15!Introduction&........................................................................................................................................................................&15!I.&Component&2.06&of&the&MENA&Programme&........................................................................................................&15!II.&Other&relevant&components&.....................................................................................................................................&18!Generic&Objective&B&–&Independence&and&effectiveness&of&the&Judiciary&....................................................&19!Introduction&........................................................................................................................................................................&19!Component&2.01&of&the&MENA&Programme&...........................................................................................................&20!Component&2.02&of&the&MENA&Programme&...........................................................................................................&24!Component&2.07&of&the&MENA&Programme&...........................................................................................................&27!Generic&Objective&C&–&Capacity&and&role&of&Bars&..................................................................................................&34!Introduction&........................................................................................................................................................................&34!Generic&Objective&D&–&Human&Rights&and&National&Human&Rights&Institutions&...................................&35!Introduction&........................................................................................................................................................................&35!Generic&Objective&E&–&AntiWCorruption&Mechanisms&..........................................................................................&39!Introduction&........................................................................................................................................................................&39!


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Executive Summary In strengthening the rule of law in the MENA region, the ILAC Programme targets five key institutions and aims, realized through six programme components, implemented by five ILAC member organisations. To secure Programme quality, management is carried out through the ILAC led joint management RCM - Results Change Management. The RCM is tasked with monitoring and ensuring that component level outcomes are achieved in a manner that supports changes at the long-term, generic level across the MENA region. Another key substantive element of the MENA Programme is the mainstreaming of gender and vulnerability analysis and stakeholder perspectives, including the appointment of expertise to ensure consistent gender mainstreaming throughout the implementation of the Programme. In order to anchor the program into the regional context, stakeholder groups have been established and a first stakeholder conference was held in Tunis on 25 April 2014 focusing on the new Constitution and its effect on rule of law reform in the country. Measuring progress in a programme with long term objectives is challenging. In dialogue with Sida and the implementing organisations, this report is based on verifiable instances with high strategic impact. The aim in monitoring verifiable instances is not to try to seek to compile the highest possible number of such instances but rather to analyse a sufficient number of them to be able to identify trends and changes over time. Twelve months into the Programme, the signs of progress are very promising, including: • Increasing levels of understanding of international criminal law among Tunisian judges. • Cooperation with the Tunisian Minister of Justice facilitating access to focus courts in Sfax, Beja and Nabeul for establishing contact with key personnel and monitoring change at the institutional level. • The continuity of the Training of Tunisian judges, aimed at training all of Tunisia’s 1800 judges, and now with more than 1500 judges trained, of whom 594 judges and prosecutors were trained during 20 sessions in 2014. • The Tunisian Anti Corruption Agency (INLUCC), is now mentioned in the new Tunisian Constitution, significantly solidifying its position within the government, and recently succeeded in securing its own independent budget appropriation for 2015.


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The highly volatile circumstances in the MENA region demand both sustainable partnerships, as in Lebanon, where the Judicial Institute has not decreased its commitment to cooperation with ILAC despite the difficult security situation. A high degree of flexibility is also crucial, as in Libya, where the deteriorating security situation forced the ABA ROLI international staff to leave the country. ILAC has responded by providing space in the ILAC Tunis office on a temporary basis, enabling the Libya component to continue with implementation. ! !


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Introduction !This document incorporates the narrative report on the three-month inception period of the ILAC MENA Programme 2013-2016, submitted in accordance with the Proposal for funding of start-up and preparatory work, ILAC Mena Regional Programme, dated 27 November 2013, as well as both the first and second of six semi-annual reports on the ILAC MENA Programme 2013-2016, submitted in accordance with the agreement signed between Sida and ILAC on 15 January 2014. As such, this report covers the three-month inception period for the MENA Programme (September-December 2013) as well as the first twelve months of actual implementation of the MENA Programme (January-December 2014).1 This narrative report supersedes the MENA Programme Semi-Annual Narrative Report covering the period January-June 2014 that was submitted on 15 October 2014. The report is structured around the overarching “generic objectives” of the Programme as set out in the MENA Programme document. In introducing this report, it is important to review both the structure of the Programme (in relation to the structure of the report itself), and the evolving political and security situation in the MENA region, where recent events underscore both the need for rule of law assistance and the challenges to delivering it.

The structure of the MENA Programme

In terms of the structure of the Programme (and therefore this report), ILAC and Sida agreed early on during the development of the underlying proposal that the breadth and complexity of rule of law reform at the regional level motivated the formulation of long-term, “generic objectives” for rule of law institutions in the region that the Programme should generally support, while actually reporting on more modest outcomes at the component level that were capable of being achieved within the time-span of the project. The generic outcomes and indicators for the Programme are set out in respect to five key categories of rule of law institutions that ILAC has prioritized working with, in section 1.3 of the MENA Programme document. ILAC has a central role in the collective management and monitoring of the Programme, in order to encourage synergies between the components of

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the Programme and ensure that the achievement of component-specific outcomes also supported the generic objectives of the Programme. The responsibilities of ILAC in accordance with the Programme Document (section 1.4.4) also extend to ensuring the mainstreaming of gender analysis and particular attention to gender equality, as well as broader vulnerability analysis and stakeholder perspectives and views. This part of ILAC’s role is described in general terms in section 1.4 of the MENA Programme Document and formalized through a separate management component, Component 1.01 (set out in section 1.4.7 of the MENA Programme document), which I distinct from the six operational components of the Programme (set out in section 2 of the same). The six operational components are as follows:

• 2.01 – Regional program on Supporting application of human rights standards by Arab courts; support to judicial training institutes in seven MENA countries to mainstream human rights into their curriculum, implemented by the Raoul Wallenberg Institute (RWI).

• 2.02 – Regional program on Strengthening women judges’ capacity to provide judicial leadership on gender and access to justice; support to women judges in identifying obstacles to judicial career advancement in four MENA countries, implemented by the International Association of Women Judges (IAWJ).

• 2.05 – Libya program on Strengthening the Capacity of the National Council for Civil Liberties and Human Rights in Libya; support to the Libyan national human rights institution implemented by the American Bar Association Rule of Law Inititative (ABA-ROLI).

• 2.06 – Tunisia program on Strengthening the application of international human rights standards in Tunisia through supporting understanding of international criminal law; training on ICL for selected judges and prosecutors, implemented by the International Bar Association Human Rights Institute (IBAHRI).

• 2.07 – Tunisia program on Training of Tunisian Judges; sensitization program on judicial independence and human rights application for all sitting judges in Tunisia, implemented by the CEELI Institute and IBAHRI.

• 2.09 – Tunisia program on Strengthening the capacity and effectiveness of Tunisian Anti-Corruption Agency; support to the Tunisian anti-corruption agency, implemented by the CEELI Institute.

The structure of this report

In order to provide a broad overview of how achievement of the outcomes sought by the six components of the MENA program are helping to drive broader change in the region, this


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report provides an analytical overview structured around the MENA programme generic objectives. However, the basis for this analysis is found in the individual component reports, all of which are included as annexes to this report. Narrative reporting on the MENA Programme is to be provided for each six month period of implementation, comprising six narrative reports to cover the entire three year period of the grant (2014-2016). Exceptionally, this report is framed as an annual report covering the entire year of 2014, as well as the inception period during which preparatory activities were carried out in the final quarter of 2013. The primary reason for this departure was the need to finalize an agreed set of results frameworks for the components as between ILAC, the implementing organizations and Sida. Due to staff turnover at Sida, the process of finalization meant to take place during the first six months of the project was not brought to fruition until the end of 2014. While a first Semi-Annual Narrative Report was nevertheless submitted in mid-October 2014, it necessarily reported based on results frameworks that had not been discussed with or approved by Sida at the time. As a result, a decision was taken to exceptionally ask that the results for the first six months of the project be consolidated with the results for the second six months and then be “re-reported” in the form of an annual report for 2014 on the basis of the new results frameworks. In addition, the report covers the inception period at the end of 2013, for Sida initially received financial reporting unaccompanied by formal narrative reporting. While the security situation throughout the MENA region deteriorated during 2014, this was nowhere more the case than Libya, where a contested election and the spread of fighting to the capital, Tripoli, have placed the country in a protracted and debilitating crisis. As a result, where security considerations and concerns have resulted in delays or deviations in the implementation of virtually all the components, they have forced an on-going reconsideration of Component 2.05, involving support to the Libyan Human Rights Council. For this reason, work on Component 2.05 has continued based on the original results framework during a series of provisional extensions of time beginning in September 2014. For the purposes of this report, the 2014 results achieved by Component 2.05 have been reported on the basis of the old results framework but in a manner as closely tracked to the new results framework format as possible.

Political and security developments in the MENA region

The first year of MENA Programme implementation has taken place in the context of a full-blown security crisis in the region. While the conflict in Syria raged on throughout 2014 and


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political instability persisted in Egypt and Yemen, two major new developments resulted in significant and unanticipated risks to rule of law reform efforts in the region. First, in early June 2014, the radical Islamist militants of the so-called Islamic State routed the Iraqi army in Mosul, seizing both territory and military equipment that subsequently gave it the ability to become a dominant force in the Syrian conflict and threaten the stability of neighbouring states such as Lebanon and Jordan. Second, in July 2014, increasing levels of violence in Tripoli spiraled into a full battle for control of the city that led to the evacuation of the international community and sparked a country-wide political crisis with significant regional elements that remains unresolved despite UN-brokered talks. The MENA Programme document sets out generic assumptions related primarily to security and political will to achieve rule of law reforms in the region (section 1.3) as well as corresponding risks (section 1.4.5). The factors identified at the time have played a more significant negative role on the implementation of the MENA Programme than anticipated. However, in almost all cases, it has been possible to take measures to mitigate security risks. While these measures have necessitated deviations from component work-plans and occasionally significant delays, they did not require consideration of fundamental change of the components except in the case of Libya. On the positive side, Tunisian politics was marked in 2014 by the desire to avoid a political confrontation and crisis of the type seen in Egypt. This resulted in both the adoption of a ground-breaking new Constitution and the appointment of a transitional technocratic government at the beginning of the year and successful parliamentary and presidential elections in October and November. This breakthrough was a significantly positive factor in the implementation of all programming in Tunisia, given that the new Constitution and government both affirmed key rule of law principles, such as the independence of the judiciary, and allowed a return to normality, with interlocutors such as the Ministry of Justice able to turn their attention once again to the practicalities of donor coordination and rule of law reform measures. Accordingly, on 24 January 2014, ILAC extended its MoU with the newly appointed Minister of Justice and has enjoyed smooth cooperation with the Ministry since. Active Tunisian participation has also been central to both of the regional components, and the Libya component has been run from ILAC’s office in Tunis since September 2014. In the meantime, ILAC has continued to actively monitor the regional security situation and engage the implementing organizations in dialogue regarding perceived risks and threats and measures to be taken in response. !


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Overall analysis – changing attitudes as the key to changing institutions

The generic objectives of the MENA Programme are formulated in respect of five key categories of rule of law institutions. Of these, the judiciary itself looms as central to the achievement of rule of law goals in the region. While the other rule of law institutions also play indispensible roles, their ability to function effectively depends to a significant degree on the health of the judiciary. Both human rights and anti-corruption institutions function in large part by investigating cases and bringing them before courts, for instance, while the private bar exists in a symbiotic relationship with the judiciary. Justice ministries have frequently been the tool used to keep executive control over judiciaries in the MENA region and must be encouraged not only to relinquish inappropriate control mechanisms but also to identify new and complementary roles in respect of the courts’ newly won independence. For all these relationships to function as they should, changes in attitude are a necessary precondition. Attitudinal change is harder both to bring about and harder to measure than more traditional forms of support such as providing computers or translated model laws. However, for any transformational change to take root, it must be fully understood and accepted as necessary by key individuals capable of fostering reforms within institutions such as the judiciary. This gives rise to particular challenges, as judicial institutions are frequently traditional, conservative and strongly hierarchical. In this context, a number of common features can be observed from ILAC’s experience working on rule of law reform across the various components of the program: • First, achieving a genuine separation of powers will be difficult. Although there is broad

nominal acceptance of the need for a more independent judiciary throughout the region, achieving effective independence will require a re-examination of virtually all aspects of how courts work in a region where the executive branch, via Ministries of Justice, traditionally controlled everything from judicial personnel decisions to management of courthouse budgets, infrastructure and administrative staff.

• Second, judicial institutions remain highly formal and hierarchical in a manner that tends

to discourage initiatives on the part of individual judges or prosecutors and encourage ineffective, top-down micromanagement. Expectations placed on judges tend to focus solely on their application of domestic statutory law; while they are not prohibited from applying international norms such as human rights, the lack of any formal guidance, active encouragement, or positive incentives constitutes an implicit discouragement. In practice, human rights are rarely referenced or applied by courts.

• Third, recruitment and training for rule of law institutions is reforming but remains

characterized by a formal approach that familiarizes new judicial professionals with


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concepts such as human rights and gender equality without clarifying how they should be applied in practice. Thus, judicial dysfunctions will not be addressed through eventual generational change without reform of the institutions responsible for training new generations of judges.

• Fourth, courts remain isolated and overburdened with work. In the past, judges from the

MENA region have been prevented from engaging in international professional conferences and debates as a matter of policy. Even now, inefficient court administration gives rise to backlogs of cases that can leave judges in countries such as Tunisia with no discretionary time. In this sense, caseload and working conditions constitute a central obstacle to independence and human rights application, as they leave judges with almost no time to confer with their colleagues or undertake research on applicable human rights norms.

• Finally, while judges are encouraged to think of themselves as guarantors of justice and

courthouses are notionally open to all, the tendency to rote application of domestic law without reference to international norms means in effect that judges lack tools to identify common forms of vulnerability (based on gender, socio-economic class, etc.) and ensure that the law is applied, to the greatest degree possible, in a manner that takes such vulnerability into account.

In such systems, political transitions present unique windows of opportunity to encourage individuals to rethink received knowledge and actively consider how to move from an established but ineffective status quo to sustainable reforms that will foster respect for human rights and access to justice. The MENA region is in the midst of such a transition, spurred on by the Arab Uprisings of 2011, and the time for encouraging and reinforcing attitudinal change is now. One advantage of the breadth of the ILAC MENA Programme is that the variety of different components involved provides multiple entry points for bringing such change about. Of the current six operational components, for instance, three involve direct capacity-building for the judiciary (2.06, 2.07) and judicial training institutes (2.01) while three involve support to human rights and anti-corruption institutions (2.05, 2.09) or groups within the judiciary (2.02) with strong judicial reform agendas. !

ILAC Coordination

In order to fulfill the potential for synergies and enhanced achievement of objectives through effective management and coordination, ILAC has developed and implemented an optimal


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management system for the Programme. One of the first and most important developments during the start-up of the MENA Programme in 2014 was the activation of Component 1.01 of the ILAC MENA Programme. This Component is distinct in that it encompasses ILAC’s coordination and programme management role in support of all the other programmatic components, the latter also being administered by ILAC member organizations (with the exception of components 2.06 and 2.07 where ILAC plays a direct and specifically budgeted administrative role alongside the implementing member organizations). The ILAC-led joint management of the Programme via the Results Change Management (RCM) went beyond administrative coordination and facilitating smooth and effective processes. Instead, the RCM played an independent substantive role, scaling up the measurement of activities and outputs through systematic monitoring of the achievement of outcomes. Moreover, the RCM also ensured that component level outcomes were achieved in a manner that supports changes sought at the long-term, generic level across the MENA region (MENA Programme document, section 1.3). To these ends, the RCM developed and shared a methodology for gathering data for verification of indicators and supported a good quality chain of reporting from activities to outcomes. Another key process in 2014 was the RCM-led facilitation of the finalization of the baselines, outcomes and indicators for the other six operational components. This was accompanied by the mainstreaming of gender analysis, vulnerability analysis and stakeholder perspective (see MENA Programme document, section 1.4.4). The results of these processes, along with the results monitoring described above, is incorporated into the implementation of and reporting on the operational components, supporting more effective achievement of the changes they seek to bring about. In the course of its coordination activities, ILAC also maintains updated knowledge of and contact with other justice sector initiatives in the region in order to avoid overlap and build synergies whenever possible. In light of the significance of Tunisia to both the country-specific and regional components of the MENA Programme, particular attention is paid to such initiatives in Tunisia. During 2014, ILAC was consulted in the finalization of a Justice Sector Reform Strategy adopted by the Ministry of Justice and actively participated in the development of the Action Plan for implementation of the Strategy during the 2015-2019 period. This entailed both providing information on all existing rule of law programming in Tunisia (including budget information) as well as a commitment to develop new proposals based on the priorities identified in the Strategy and Plan.2 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!2!For!more!information!on!this!process,!see!the!following!link:!http://www.ilacnet.org/blog/2015/02/17/tunisian2judicial2reform2strategy2action2plan2finalised/!


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More generally, ILAC has participated via its Tunis Office in all donor coordination discussions and is regularly invited to presentations and seminars related to current judicial sector reform initiatives. In cases in which these are of particular relevance to ongoing ILAC programming, the Tunis Office staff prepare memoranda describing the discussion and conclusions and the Secretariat in Stockholm make these available to participating member organizations (including through a regularly circulated MENA Programme internal newsletter). In almost all cases when ILAC Head Office staff visit Tunisia, meetings are booked with key national and international actors (in the latter case, UNDP, UNOHCHR, UNODC, the EU and the Council of Europe) in order to exchange information and coordinate ongoing activities. One recent example of this was the preparation for an assessment of court administration issues in Tunisia carried out in January 2015. The idea for the assessment came up during the first half of 2014, as feedback from participants in judicial trainings confirmed the need. ILAC subsequently confirmed with the Ministry of Justice that attention to court administration represented a Justice Sector Reform Strategy priority that had yet to be fully addressed and discussed this need with other international actors. During the second half of 2014, ILAC met systematically with national and international stakeholders in order to inform them about the aims and methodology of the assessment and secure interviews with qualified personnel in advance, in order to ensure each of them would not only be aware of this activity but also have a chance to make a substantive contribution to the outcome and conclusions. Finally, it is important to conclude by noting that ILAC also conducts such external coordination activities with regard to other countries in the region. Perhaps most notably, as the current political crisis in Libya accelerated during 2014, ILAC remained in regular contact with key actors such as the UN Support Mission in Libya (UNSMIL) in order to ensure a coordinated approach in the implementation of Component 2.05. !

Lessons learned

In the above text, a number of fundamental challenges related to rule of law assistance in the MENA region stand out. Issues related to security and political will set significant parameters in a region in which most countries are experiencing political crises ranging from transitional growing pains to outright armed conflict. Within the justice sectors of these countries, even where top-down political will to promote positive change exists, actors are frequently constrained in the type of bottom-up efforts ILAC is best placed to promote by the persistence of entrenched negative attitudes regarding the role of judges and other key rule of law actors in society and the significance of human rights relative to domestic law. In addressing these issues, a number of key lessons learned stand out.


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• Flexibility in response to partners’ identification of priorities is crucial. The best

example of such flexibility in 2014 involved the adaptation of trainings for the Tunisian Anti-corruption Agency facilitated by the CEELI Institute in Component 2.09. As set out in detail in the annexed component report, the realization that systematically inviting other key actors in the struggle against corruption to participate in the trainings allowed the Agency to simultaneously build a network crucial to future anti-corruption work but also to place itself as the leading actor in this field in a manner that was not only non-threatening but positively welcoming for other stakeholders. Although this approach was not foreseen in the original proposal, ILAC and the CEELI Institute’s ability to accommodate it quickly and effectively have allowed the Component to have a significantly greater impact than initially foreseen.

• A long-term view will be crucial to supporting positive change even in relatively

successful countries such as Tunisia. Here, the standout case is the judicial trainings for Tunisian judges facilitated by IBA and the CEELI Institute in Component 2.07. During 2014, the monitoring techniques developed by ILAC and involving interviews with judges at selected “focus courts” confirmed both that the course had fostered significant changes in attitude at the individual level and that corresponding change at the institutional level would only come slowly and incrementally. As set out in the analysis of Component 2.07, below, it is crucial to clarify why relatively minor initiatives should rightly be seen as reflecting major changes in attitude in the Tunisian context that may nevertheless require years to convert into fundamental change of institutions.

• Importance of responsiveness to lessons learned via both changes to existing

programming and development of new initiatives. As serious concerns were raised about court administration in Tunisia both in the course of judicial trainings and in coordination meetings with the Ministry of Justice, ILAC was quick to realize that the scope of the concerns would not allow them to be dealt with solely through modifications of existing programming. As a result, the January 2015 ILAC assessment of court administration and the subsequent proposal for a program to address issues identified represents an important model in going forward with rule of law assistance in the region.

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Generic Objective A – Good governance; Ministry of Justice !!

Introduction

In the MENA Programme Proposal, this objective is framed in the following terms: Generic objective, Impact level: ”Ministries of Justice proactively protect, promote and fulfil applicable human rights standards. ” Generic objectives, Outcome level:

• Ministry of Justice engage with the judiciary in order to both provide all appropriate support and identify and remove the mechanisms of inappropriate executive control.

• Ministry of Justice initiate reviews and drafts legislation to ensure compliance with international human rights instruments.

• Ministry of Justice has strategies for equal access to justice in place or in progress. !The role of Ministries of Justice in rule of law reform is pivotal. Throughout the MENA region, one of the most widespread challenges to the rule of law has been executive control of the judiciary. Ministries of Justice have often not only controlled personnel matters including the promotion and transfer of judges, allowing them to directly reward compliance and end the careers of judges that ruled against the regime, but even exercised so-called “telephone justice” by explicitly instructing judges how to decide in certain cases. In the present transition situation, Ministries of Justice will need to play a pivotal role in the promotion of the rule of law, and particularly in the effort to achieve transitional justice and promote an independent and effective judiciary. They will face the challenge of relinquishing inappropriate forms of influence over national judiciaries while simultaneously defining new roles involving complementarity rather than control. !

I. Component 2.06 of the MENA Programme

Component 2.06 of the MENA Program, Strengthening the application of international human rights standards in Tunisia through supporting understanding of international criminal law contributes directly to this generic objective in the Tunisian context. This component was requested by the Ministry of Justice in order to assist Tunisia in meeting obligations under the Rome Statute of the International Criminal Court to develop the capacity to investigate and prosecute international crimes via the national legal system. By supporting the


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implementation of international instruments and equipping judges and prosecutors with the knowledge and tools necessary to ensure accountability for past violations and justice for victims in line with international standards, this component also supports the national transitional justice process in Tunisia. Component 2.06 involves the training of a select group of 50 Tunisian judges and prosecutors on international criminal law, including opportunities to test and discuss its applicability in Tunisia and consider changes to national legislation and practice that may be necessary to ensure its effective application. The two outcomes envisioned in Component 2.06 are both directly relevant to the generic objective of good governance. The first outcome for Component 2.06 relates primarily to the ability of Tunisian judges and prosecutors to apply the knowledge developed through the course in their own work, e.g. that they can effectively fight impunity by applying international criminal law principles in their daily professional activities. Under this outcome, the output to be achieved is that Tunisian judges and prosecutors are sensitized on ICL and how international crimes should be tried. Of the three indicators for this output, the most indicative for 2014 was that the targeted number of trainings for 2014 was met; two trainings were held, on September and December 2014 respectively, for the targeted number of 10 judges and prosecutors each. The second indicator of gender proportionality was also met, in that women’s attendance in the course (35% of total) matched the target (women’s level of representation in the judiciary as a whole). A third indicator for this output involved the Extent of increase in understanding of ICL standards by participating judges and prosecutors. The target for 2014 was that 10% of the total number of 50 judges and prosecutors selected for the course showed an increased familiarity with ICL. Here, three verifiable instance based on self-assessment questionnaires (206-006 – 008) demonstrated marked increases in familiarity with ICL concepts extending well beyond the target minimum of five participants, while one verifiable instance built on the feedback of one of the expert course facilitators (206-009) in establishing that the participants “were asking very insightful questions, and were beginning to formulate their own answers to those questions, which showed a rapid increase in their knowledge base.” Building on these results, targets for both of the indicators for outcome 1 were also met. Two verifiable instances for the Extent of increase in ability to apply effectively ICL standards to hypothetical violations were provided through expert facilitator feedback establishing both the identification of key legal issues and successful proposals for the resolution in hypothetical cases (206-001 and 002). Meanwhile three verifiable instances were provided for Extent of


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increase in ability to identify and address legal obstacles to implementing ICL standards, with both the self-assessment questionnaire and facilitator feedback cited (206-003 – 005). By actively supporting measures to ensure that the judiciary is able to enforce accountability for breaches of international criminal law, the Ministry of Justice ensures the human rights violations resulting from such breaches are redressed and takes an important step toward preventing such violations in the future. In the Tunisian context, where the current transitional justice process is meant to ensure accountability for mass violations in the past and victims of these violations have been denied a remedy for years, this outcome contributes directly to the generic outcome of supporting “strategies for equal access to justice”. The second outcome for Component 2.06 relates to the broader effect that this training can have in diffusing knowledge of ICL norms to rule of law leaders in Tunisia in order to ensure that ongoing legislative reform and transitional justice efforts take into account the insights gained by the participants in the training. It is entitled Dialogue initiated on reform of Tunisia's domestic criminal legal framework where it falls short of international criminal standards. It is anticipated that this aspect of the component will take a much more prominent role in the second phase activities of the project, beginning in 2015. Under this outcome, the output to be achieved is that Tunisian judges and prosecutors are encouraged to consider the impact of international law on national legislation and prosecution. The indicator for this output involved the Number of dialogue instances between judges and prosecutors on ICL with a target of two such instances for 2014. One instance was self-reported (206-018) by a participating Court President who initiated monthly meetings in her court to discuss legal topics as applied to their work such as “the prosecution of acts of torture in line with international law”. Building on these results, targets for both of the indicators for outcome 2 were substantially met. Two verifiable instances for the Extent of increase in mutual recognition between selected judges and prosecutors and other key actors, such as the Ministry of Justice and High Judicial Council were provided in the form of Ministry of Justice attendance of the first training and the presence of two court presidents in the second of 2014 (206-015 and 016). Meanwhile one verifiable instance was provided for Extent and quality of input from participating judges on criminal law reform initiatives, with the participation of the Ministry of Justice in the first session providing an opportunity to formally pass on a series of recommendations by the participants including the provision of all prosecutors with a copy of the Rome Statute (206-017).


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By taking active steps to ensure that the judiciary not only has the skills to address violations of ICL in individual cases but also the ability to identify gaps in the domestic legal framework, the Ministry of Justice is in a position to propose legislative measures to close these gaps, fulfilling human rights standards by ensuring that serious breaches of human rights constituting ICL violations can be prosecuted and punished in the future. As such, this component outcome contributes directly to the generic outcome specifying that Ministries of Justice “initiate reviews and draft legislation to ensure compliance with international human rights instruments”. The contribution of this component to the generic objective and outcomes cited above is enhanced by the total of seven verifiable instances of gender mainstreaming and vulnerability analysis cited for 2014 (2.06-012 – 014 and 019 – 022). These indicate consistent attention to issues both related to access to justice and legislative reform. For instance, 206-021 cites the self-assessment questionnaire in confirming that sensitization efforts related to crimes targeting minority groups “led to a significant improvement” in judges’ understanding of the importance of their role in improving access to justice to marginalized and vulnerable groups”. Similarly, 206-022 highlights a discussion surrounding the failure of Tunisian law to classify rape as a form of torture, while 206-014 highlights discussion of the focus on protection of vulnerable witnesses in sexual violence cases.

II. Other relevant components

Although the Tunisia judicial trainings in Component 2.07 most clearly fall under Generic Objective B, below, the strong focus on judicial independence combined with the fact that the national partner for work under the Component has been the Ministry of Justice make the course highly relevant to the “Good Governance” generic outcome under which Ministries of Justice are to “engage with the judiciary in order to both provide all appropriate support and to identify and remove the mechanisms of inappropriate executive control”. While these issues were apparent during 2014, they featured more prominently in 2015, as debates emerged surrounding draft legislation implementing the provisions on judicial independence in the January 2014 Constitution.

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Generic Objective B – Independence and effectiveness of the Judiciary !!

Introduction

In the MENA Programme Proposal, this objective is framed in the following terms: Generic objective, Impact level: ”Courts rule independently, providing equal access to justice for all in accordance with international human rights standards.” Generic objectives, Outcome level:

• An effective, independent administration of courts is in place or on its way. • Judicial institutes (training and certifying judges and prosecutors) are actively

integrating human rights standards in the curricula and improving teaching methodology.

• Judges and prosecutors are increasingly applying international human rights standards.

• Courts have achieved a substantially improved national operational unity and coherence based on enhanced case processing, monitoring mechanisms, and the use of statistical data.

• Courts increasingly perceived as independent, effective and accessible, based on an expectation that the experience of those seeking court services will essentially be the same regardless of the nature of the individual and the court facility they visit.

It is important to acknowledge that independence of the judiciary is a moving target in situations in which states are transitioning from authoritarian rule to democracy. In the course of such transitions, it is important to re-examine the relationship not only between the courts and the political branches but also with ordinary people, private bars, the media and civil society. As society changes, independence must be safeguarded but should neither be interpreted as preventing judiciaries in the region from engaging in appropriate ways with the rest of society, nor as an obstacle to their application of relevant human rights standards. The effectiveness of the judiciaries in MENA countries, their accessibility for marginalized and vulnerable groups, and public perceptions of their independence will depend substantially on the extent to which these judiciaries succeed in redefining their own role in democratic societies.


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Component 2.01 of the MENA Programme

Considering the recent history and the present situation of the judiciaries in the region, further prospective reform and capacity building will be required to fully restore their credibility for ordinary people, and particularly members of vulnerable and marginalized groups. Achieving credibility will require both measures to guarantee their full independence from the political branches of government and reforms to increase their capacity, accessibility and effectiveness in quickly and fairly adjudicating cases. Several countries in the region are in the process of or have already established judicial training institutes in order to provide their judges with relevant and sufficient training. Such institutions are particularly appropriate for support in order to strengthen the independence and quality of the judiciary. Component 2.01 is a regional component administered by the Raoul Wallenberg Institute (RWI) providing support to the judicial training institutes (JTIs) and broader legal education in seven countries in the MENA region, namely Algeria, Iraq, Jordan, Lebanon, Morocco, Palestine and Tunisia. The deteriorating security situation in the region has both delayed activities envisioned for this component and inhibited its expansion. During 2014, RWI was forced to rule out the participation of both the Egyptian and Libyan judicial training institutes due to the security and socio-political environments prevailing in both countries. However, despite these challenges and others, Component 2.01 remained substantially on target to achieving its planned outcomes in 2014. The two outcomes envisioned in Component 2.01 are relevant to the generic objective of independent and effective judiciaries. The first outcome for Component 2.01 relates primarily to the work done by each of the judicial training institutes (JTIs) in the region to fully mainstream human rights into their curriculum, e.g. that they (and potentially law faculties) are actively integrating human rights standards in the curricula and improving teaching methodology.. Under this outcome, the first two outputs to be achieved are of a “top-down” nature, in that they focus on the work initiated at the highest levels within judicial training institutes in order to provide the practical preconditions for human rights mainstreaming. The first output goes to the most important and time-consuming activities under this component, namely the development of action plans by the JTIs in each participating country to engage in an agreed


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consultative process for developing new teaching materials, e.g., that Curricula modules of judicial institutes have been reviewed and human rights-mainstreamed curricula modules proposals have been drafted. Here, targets for 2014 were fully met, in that all seven JTIs selected their respective curriculum areas of focus for mainstreaming (Indicator 2, verifiable instance 201-006) and began preparations for national workshops on integrating human rights standards in these areas (planned for 2015 and 2016, see Indicator 1). Notably 6 of 7 areas of focus involved fair trials or criminal procedure, while 2 involved child rights, facilitating the ability of RWI to efficiently provide support going forward. The second output under outcome 1 involved the extent to which New academic material integrating human rights standards alongside the national law in selected areas has been developed to be used at judicial institutes and potentially law faculties. Here, targets were met in part, in that some, but not all of the JTIs developed national action plans for mainstreaming (Indicator 1, 201-007 – 009), and thus took steps toward the adoption of pedagogical tools (Indicator 2). Here, in addition to security-related delays, it is important to note the critical and unanticipated effect of JTI personnel turnover in the context of regional judicial systems that remain both overly hierarchical and insufficiently independent. In its report, RWI describes this dynamic, as it manifested itself in the wake of the synergies created by the May 2014 signing of the MoU initiating the project:

This synergy was challenged when governmental changes occurred in some of the partner countries throughout the year, leading to managerial changes within the judicial institutes (Jordan, Palestine, Lebanon, Tunisia and Morocco). National working groups’ members were replaced following these changes. This affected the project since the initial members had expertise in international human rights while the newly appointed members had less, if any, expertise in said matter (without questioning their expertise in their respective domestic laws). Since RWI had no power (and still does not) to select the members of the national working groups, as it is a duly recognised prerogative of the heads of the judicial institutes, RWI could not foresee the delays stemming from these changes. The changes in the national working groups also implied re-explaining the project all over again to the newly appointed members (Morocco, Tunisia for instance). Some national working groups struggled to draft action plans accordingly as they were new to the project and the concept was new to them. They however committed to meet the project’s requirements by drafting as many times as needed until their action plans reached the required criteria as agreed in the common framework.


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Under these circumstances, it must be seen as a significant success that all seven JTIs have chosen an area of law to be the subject matter of their comparative research (201-006), that several initiated work on the scope of their action plan, by reaffirming it (201-003), fine tuning it (201-005) or even changing it to optimise their work through exchange of experience (201-002), and that some finalised their action plan within the agreed timeframe and initiated the comparative research step of the process (201-004 and 201-009). The third output for Outcome 1 reflected a “bottom-up” approach in which demand for human rights mainstreaming was encouraged by exposing law students and newly graduated jurists to both theoretical and applied knowledge of them: Current and future justice sector actors have improved their knowledge and skills to apply and/or support the application of human rights standards in courts. Here the one indicator applicable in 2014 was met with the convening of August 2014 Regional Summer Course on human rights in Lebanon and a November 2014 Regional Moot Court Competition in Jordan (Indicator 3, 201-010 and 011). Note that Indicators 1 and 2 for this output relate to activities scheduled for 2015 and 2016. Building on these outputs and activities, the three indicators for Outcome 1 were achieved for 2014. The first of these (The extent to which judicial institutes (and potentially law faculties) are willing to teach the applicability of human rights standards in the respective national context (including gender-related aspects)) was achieved through the signature of the May 2014 MoU between RWI and the seven JTIs “by which they commit to promote the exchange and development of knowledge on international standards and judicial practices, as well as support any opportunity to acknowledge and share regional good practice for the development of the capacities of their respective judicial training institutions” (201-001). The second indicator for Outcome 1 measures The extent and nature of steps taken by judicial institutes (and potentially law faculties) to develop human rights mainstreamed tools and materials (including gender related aspects). This indicator was substantially satisfied in light of the steps taken – under conditions of insecurity and JTI staff turnover – to move forward in the adoption and implementation of action plans for mainstreaming human rights (200-001 – 005). The third indicator relates to development and integration of teaching modules; here no activities were scheduled to take place as early as 2014. By actively supporting measures to ensure that human rights are mainstreamed into judicial and legal training, this Outcome creates indispensible conditions for regional judiciaries to “rule independently, providing equal access to justice for all in accordance with international human rights standards”, in accordance with the generic objective for Component 2.01. These


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activities also support several of the generic outcomes under this objective, and most notably that “Judicial institutes (training and certifying judges and prosecutors) are actively integrating human rights standards in the curricula and improving teaching methodology.” The second outcome for Component 2.01 relates to the broader opportunity to create regional synergies and build on the common features of judicial training in the region: The cooperation between the judicial institutes is strengthened. Here, the output of ensuring that JTIs are sharing experiences and best practices to improve practical applicability of human rights standards was achieved despite the inherent difficulties of working in a conflict-prone region where sovereignty concerns have long functioned to inhibit regional exchanges. Targets for both indicators for this output were exceeded, with three verifiable instances of regional exchange of knowledge, experience and lessons learnt (201-017 – 019) and the same number of instances of JTIs affirmatively providing information on project progress (201-020 – 022). This progress was reflected in the achievement of the two indicators for the second Outcome of Component 2.01. The first, which stipulated that the cooperation of the JTIs is formalized and sustained was achieved via the retention of the five national JTIs that had signed the MoU for the predecessor RWI project that ended in 2013, along with the accession to the MoU of a new national JTI, that of Lebanon (201-012 and 013). Progress on the second indicator, related to Level of commitment of the judicial institutes to the cooperation and the project, was evinced by the JTIs’ participation in the May regional meeting as well as a subsequent sub-regional meeting and three bilateral meetings with RWI (201-014 – 016). The contribution of this component to the generic objective and outcomes cited above is enhanced by the extensive examples of gender mainstreaming and vulnerability analysis listed in RWI’s report. These included encouraging gender representativeness in the national JTI working groups and actual gender parity among participants in the 2014 Human Rights Summer Course and Regional Moot Court Competition. The latter events also focused heavily on human rights issues related to gender and vulnerable groups. Interestingly, the combined focus on gender and other forms of vulnerability also assisted RWI to keep gender, in particular, on the agenda despite JTI working group reluctance:

The aim to ensure that gender issues are properly included and accounted for in the work and action plans of the judicial institutes has proved to be more difficult than anticipated. Although a lot of efforts have been put on conducting a gender analysis as part of the baseline study and to provide a forum to discuss and facilitate the integration of gender (gender issues were for example included in the agenda for the regional meeting in May), it has failed to achieve its objective. Several of the judicial institutes remain resistant to gender-


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mainstreaming their work. RWI adapted its strategy accordingly and focused on vulnerable groups and whenever possible and suitable, ensured that gender issues were considered and addressed.


When post-conflict and transitional countries begin initiating changes to their legal and judicial systems, these rarely incorporate the perspectives of women. This was one of the reasons for the passage in 2000 of UN Security Council Resolution 1325 on women, peace and security. Today, more than 10 years later, women are still underrepresented in leadership roles including the hierarchies of judicial systems, and notably those in the MENA region. Lack of women judicial leaders – and opportunities for women judges to meet and discuss common issues – can in turn translate into lack of attention to the needs of women users of the justice system. Component 2.02, Strengthening women judges’ capacity to provide judicial leadership on gender and access to justice, involves a regional effort to bring together women judges from the MENA region, with an initial focus on four countries – Egypt, Jordan, Libya and Tunisia. It is administered by the International Association of Women Judges (IAWJ), an ILAC member organization, based on the conviction that women judges are in a unique position to advance the rights of women throughout the judicial system. As such this Component contributes directly to Generic Objective B, and particularly to its emphasis on courts providing equal access to justice for all in accordance with international human rights standards. During 2014, a combination of political unrest in the region, scheduled elections, recommendations from international organizations working in the region, and religious holidays led to significant delay in the carrying out of planned activities, with the Initial Consultation planned for the Spring of 2014 postponed until October. However, the Consultation was a success, allowing the Component targets for the year to be met, and IAWJ subsequently submitted an updated work-plan to ensure that the overall activity schedule for the programme period will be respected. The first outcome for Component 2.02 relates to regional women judges’ analysis of their own professional conditions and the obstacles that exist to their advancement, e.g. that Women judges have started to identify obstacles that women face in being selected as judicial professionals, working as judicial professionals, and/or being promoted within the judiciary.


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Under this outcome, both outputs were achieved; first, the target for Sensitization about human rights law leading to better implementation of the rights of women in the courts was met through the facilitation of the Initial Consultation, as a verifiable instance of a meeting facilitating dialogues on barriers and obstacles faced by women judges form Tunisia and Egypt. Similarly, the holding of the Initial Consultation fulfilled the 2014 target for the second output, Facilitation of a network, promoting dialogue among women judges in the region to address the practical challenges they face as women judges. Building on these results, targets for both of the indicators for Outcome 1 were also met. For the first indicator, Women judges have identified formal and informal obstacles … limiting women’s participation, the Initial Consultation provided seven verifiable instances from Tunisian judges (202-001 - 007) and an equal number from Egyptian judges (202-008 - 014). For the Tunisian participants, many of the obstacles took the form of stereotypes, whether from the side of men (202-003 and 004), as internalized by women (202-001 and 005), or both (202-007). Others were more structural, including the political nature of nominations for higher positions (202-002) and the ongoing expectation that women will take primary responsibility for childcare alongside their careers (202-006). For the Egyptian judges, cultural stereotypes remained more deeply ingrained, resulting in more systematic structural obstacles. For instance, where Tunisian women are still expected to take on child raising alongside careers, Egyptian women are widely viewed by men as unfit to pursue careers outside the private sphere at all (202-009). As a result, women face discriminatory entry exam requirements (008), are barred from sitting in family courts (012) or cases involving religious matters (010), and are effectively prevented from working on cases in remote areas (014). For the second and corresponding indicator for this outcome, The number and quality of recommendations women judges have made for removing obstacles and barriers, each of the obstacles identified for the previous indicator was matched with a verifiable instance of a proposed response. On the Tunisian side (202-015 – 021), it was interesting to note that a number of the obstacles were perceived to be diminishing with time and changing attitudes (202-016 -019), though continued vigilance and activism would be necessary. As a general matter, the discussion revealed both areas of consensus and the fact that some options and viewpoints had yet to be fully explored:

… the judges were divided between “special treatment” advocates, who wanted more accommodations to women’s traditional family roles and responsibilities, and “equal treatment” advocates, who thought instead that women should


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conform to the norms of male career paths. No judges proposed encouraging husbands to shoulder burdens of house and children. Cutting across many of these issues, the judges advocated more efforts to obtain “parity” between male and female judges at different levels. They would like to see equal numbers.

For the Egyptian judges (202-022 – 029), responses to the more obvious obstacles typically consisted of simply removing discriminatory rules. However, there was also an element of resignation that such reforms were politically unlikely and a resolve to press ahead regardless: “Women judges should work harder, concentrate more and be more serious than their male colleagues. They should strive to excel to an extent that no one can deny their worth” (202-023). As a general point, the component report notes the synergistic effect that bringing the Egyptian judges together with their Tunisian colleagues had:

The Egyptian judges were much more pessimistic, but were obviously impressed and encouraged by what has happened in Tunisia. As one judge said: “We are so proud of Tunisian women judges – if you have only a limited number of top positions from which women are barred.” The Egyptian women judges are up against far more blatant, overt discrimination, and stronger discriminatory attitudes.

The second Outcome for Component 2.02 focused on broader obstacles facing female litigants: Women judges have started to identify barriers that confront female litigants who seek access to justice through the courts, and made recommendations for removing these barriers. Under this outcome, the output indicators conformed closely to those under the first outcome and were achieved in essentially the same manner. The first of the two indicators for Outcome 2 involves the identification of The extent and nature of formal and informal obstacles confronting female litigants identified by women judges. At the Initial Consultation, the Tunisian participants provided four verifiable instances (202-025 – 028) while the Egyptians provided two (202-029 – 030). The Tunisian examples focused on concrete and specific instances in which women were disadvantaged before courts (domestic violence complaints, discriminatory tax rebates, child custody rules), while the Egyptian examples focused on the effective exclusion of women from the judging profession, and the extent to which this denied women litigants a representative judiciary. For the second and corresponding indicator for this Outcome, The number and quality of recommendations women judges have made for removing barriers confronting female litigants,


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each of the obstacles identified for the previous indicator was matched with a verifiable instance of a proposed response. On the Tunisian side, these accordingly took the form of proposed legislative reforms, while the Egyptians emphasized both transforming gender roles and increasing the number of women judges. By taking active steps to ensure both women judicial leadership in the judiciary and steps to facilitate access to justice for women litigants, both component outcomes contributes directly at the regional level to the generic outcomes specifying that Judges and prosecutors are increasingly applying international human rights standards and that the experience of those seeking court services will essentially be the same regardless of the nature of the individual and the court facility they visit. The contribution of this component to the generic objective and outcomes cited above is enhanced by its inherent focus on gender mainstreaming and vulnerability analysis.


Component 2.07 of the MENA Programme, Training of Tunisian Judges, has made a particularly longstanding contribution to the achievement of Generic Objective B, “Independence and Effectiveness of the Judiciary”. In Tunisia, the need to provide rapid but substantial training on both human rights application and judicial independence in the context of a transition to democracy were identified as early priorities by reformist jurists appointed to head the Ministry of Justice in the wake of the 2011 revolution. ILAC responded by initiating a series of bi-monthly four-day trainings targeting Tunisia’s 2,000 sitting judges in March of 2012. These trainings, conducted by the CEELI Institute and the International Bar Association’s Human Rights Institute (IBAHRI) have continued since then. At the end of 2013 a mid-term assessment was conducted, and the program continued from January 2014 as an integrated component of the ILAC MENA Programme. Because of its well-established nature, Component 2.07 has also been a key testing ground for ideas regarding monitoring, evaluation, dissemination of best practices and follow-up. During 2014, for instance, ILAC worked with the Results Change Management (RCM) working group to develop its methodology of monitoring via representative “focus nodes” in relation to 2.07 (Please see ILAC Memo on Focus Node Methodology attached as ANNEX 101 02 ). Specifically, in order to measure verifiable instances of attitudinal change in the judiciary resulting from Component 2.07, ILAC negotiated periodic access to three “focal courts” in


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Tunisia, the First Instance Tribunals of Beja, Nabeul and Sfax, in order to interview judges who had take the course about the changes at the individual and institutional levels that had resulted. The first Outcome for Component 2.07 relates to the degree to which Tunisian judges and prosecutors have developed the ability to apply theoretical knowledge of human rights in concrete cases, e.g. that they increasingly understand and apply international human rights principles in their professional duties. Under this outcome, the output to be achieved is that Tunisian judges and prosecutors are sensitized on the language and application of international human rights standards, including the applicable laws and legal safeguards concerning due process and fair trial. The three indicators for this output were substantially met, with 80% of anticipated maximum participation for the year achieved (Indicator 1, total of 575 participating judges and prosecutors for 2014) and the gender representativeness target significantly exceeded (Indicator 3, with women judges making up 42% of participants in contrast to their overall 35% representation rate in the judiciary). A third indicator for this output involved the Extent and quality of personal action plans designed by judges and prosecutors in focus nodes, detailing steps to improving the delivery of justice in their home courts (Indicator 2). The target for 2014 was that all participants sign up to such a plan, which is crucial element of the course for both discussion and monitoring purposes, as well as five verifiable instances of such plans being followed up (see verifiable indicators 207-027 – 031). Building on these results, targets for both of the indicators for outcome 1 were also substantially met. Six verifiable instances for the increase in Tunisian judges' and prosecutors' level of understanding of the language and application of international human rights standards, and the role of the judiciary in promoting human rights in the exercise of their professional duties were provided (207-001-006). These included both results from the course self-assessment questionnaire with direct feedback to the course organizers provided by participants. A good example is the judge in 207-002 who reported directly referring to one of the key international standards discussed in the course in a recent ruling – and notes that interpretation of this norm was decisive for the outcome. Meanwhile three verifiable instances were provided for Extent and quality of implementation of action plan strategies by judges and prosecutors to overcome obstacles to applying international human rights principles, including those restricting access to justice for vulnerable and marginalized groups (207-007 – 009). These included plans by judges to sequence hearings in family law cases in order to ensure adequate attention to vulnerable parties, efforts


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to ensure that a judicial public information policy supported human rights-friendly reforms and greater scrutiny of detention conditions in order to avoid rights violations. By consistently applying international human rights standards in transitional settings characterized by a legacy of violations, courts demonstrate their independence and their ability to provide an effective remedy, increasing trust in the judiciary and breaking down barriers to access. In the Tunisian context, this outcome contributes directly to the generic outcome stipulating that Judges and prosecutors are increasingly applying international human rights standards. The second Outcome for Component 2.07 relates to a second skills set that the course seeks to foster beyond human rights, namely those related to building and safeguarding judicial independence in the context of a transition to democracy. It is entitled, aptly, The Tunisian judiciary is better able to assert its independence.. Under this outcome, the output to be achieved is that The Tunisian judiciary has an improved knowledge of the meaning and consequences of the concept of an independent, fair and effective judiciary. The indicators for this output involve the same three categories as those for the output to Outcome 1. The results on the indicators related to participant numbers and gender balance are the same as the above, and four verifiable instances were provided for the indicator for Extent and quality of personal action plans designed by judges and prosecutors in focus nodes, detailing steps to improving the delivery of justice in their home courts (207-011 – 014). Building on these results, targets for both of the indicators for outcome 2 were substantially met. Five verifiable instances were provided for the Extent to which judges and prosecutors are able to identify threats to judicial independence and strategize collectively on how to assert their independence (207-016 – 020). These included numerous ideas, including initiatives to improve judicial effectiveness generally and apply human rights specifically. Examples included proposals to make international treaty texts more available, to adhere to international professional organizations, and to ensure that Tunisian judges spoke with one voice on domestic issues related to independence, Meanwhile five verifiable instances were provided for Extent to which judges and prosecutors pursue implementation of their action plan strategies to overcome obstacles to judicial independence (207-021 – 025). These included plans to develop more effective forums for judges to discuss professional issues, to develop and disseminate time-saving electronic forms, to place clearer signs in courts to guide visitors and to promote more effective investigations through a clear and organized schedule of meetings.


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By asserting its independence, the judiciary creates the preconditions for and the expectation that it will impartially apply human rights standards regardless of political or other pressures to do otherwise. As such, this component outcome contributes directly to the generic outcome specifying that Courts increasingly perceived as independent, effective and accessible, based on an expectation that the experience of those seeking court services will essentially be the same regardless of the nature of the individual and the court facility they visit. In reporting these Outcomes, a note of contextual explanation may be helpful. The length of continuous implementation of Component 2.07 has given ILAC and its member organizations important insights into the working of the Tunisian judiciary that correspond in some cases to observations regarding judiciaries more broadly in the MENA region. As set out in the introductory section, above, one of the most important challenges in Tunisia and the region is the need to change attitudes regarding the role and functioning of the judiciary. These attitudes initially gave rise to misunderstandings on the part of Tunisian judges regarding the aims of the training. An internal ILAC memo describing focus group discussions in the lead up to the 2013 mid-term evaluation of Component 2.07 summarized these misperceptions:

On the side of participants, there appears to have been a misperception that the role of international trainers was to provide direct answers to the concrete problems they faced, rather than a set of conceptual tools to assist them in resolving these issues themselves. This misperception may itself in part reflect Tunisia’s tradition of control over the judiciary, with some judges still conditioned to seek authoritative answers from others rather than guidance in arriving at them themselves.

The memo went on to note how the same attitudes tended to shape an informed but essentially passive attitude toward both human rights and judicial independence:

… early iterations of the course may have assumed both a basic lack of awareness of human rights and pervasive patterns of executive interference in individual cases. In fact, Tunisian judges are generally quite aware of human rights, but are unfamiliar with their application and have not been encouraged or supported in applying them in the past. Similarly, independence issues are largely subtle and structural, ranging from an antiquated framework for management of the judiciary to a failure to ensure adequate working conditions for judges.


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In this sense, it has been possible to chart significant progress beginning in 2014 based on a simple ability to appreciate the course for what it is and understand how it can contribute to judicial practice in Tunisia. Many judges interviewed in focus courts have recognized that international experts should not provide the answers and that the future of the judiciary properly lies in the judges’ own hands. In this sense, verifiable instance 207-022 is highly representative. Although it represents a sense of the content of judicial independence that would be self-evident in many countries, it represents a transformative statement in the Tunisian context:

Mr. KL, a judge at Sfax Tribunal I set a PAP of pushing for a judicial code of ethics. Since finishing the course, he has on his own initiative informed himself about the ongoing effort to draft a code of ethics. At the time of the interview, he discussed the draft that had just been circulated and the challenges that remained in finalizing and adopting it. He commented, “Judges must exert pressure and launch initiatives, they cannot only wait.”

This observation seems to confirm the “critical mass” theory that was crucial from the beginning in motivating an attempt to reach the entire corpus of sitting judges in Tunisia. As described in the project proposal for Component 2.07, this critical mass appears to have been approached in 2014, after two years of implementation:

The concept of independence of the judiciary contains an element of critical mass or ”safety in numbers”. In order to make the concept a reality, it has to be understood and encompassed by the vast majority of judges. A judge, who can trust and rely on the loyalty and solidarity of his or her fellow judges, will be much more likely to be able to withstand pressure from outside sources. It is therefore important that this training will cover all, or almost all, of the Tunisian judiciary.

In this context, verifiable instances as prosaic as placing signs in courthouses to guide visitors (207-024) are similarly reflective of transformative change. The idea that justice should be accessible to ordinary citizens and that judges are in some manner accountable for guaranteeing this is an important attitudinal change in a system in which judges and administrative officials were previously encouraged to be remote and inaccessible. Concrete measures such as signs are an important part of creating the conditions for the enjoyment of access to justice and the right to a fair trial. By independently taking steps to promote such changes, individual judges demonstrate a newfound sense of independence.


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The same can be said of initiatives by judges to develop their own forms (207-023). One of the most basic obstacles faced by judges in Tunisia involves the combination of nearly unmanageable caseloads with lack of sufficient material and administrative support. Judges are not routinely provided with work computers, do not have official email addresses and do not enjoy general access to a centralized database of cases and forms. These factors lead to long delays in processing cases and constitute a de facto barrier to judges organizing themselves, given that they simply do not have time for meetings with their colleagues. By speeding up processing of cases, judges fulfill a core condition for respect for the right to a fair trial, namely timeliness. By doing so on their own initiative, judges demonstrate independence and progressively take away any excuses on the part of the authorities and Parliament not to provide adequate support. Similarly, it is important not to underestimate the human rights significance of actions as simple as phased scheduling of different categories of family law hearings (207-007). By prioritizing effective processing, judges can address core human rights concerns. Family law cases have consequences that touch on the enjoyment of a broad range of human rights, from gender equality, property and privacy to the right to be free from physical violence and protections of minors and children. By efficiently sequencing and prioritizing cases, the judge creates a situation in which the cases with the highest potential human rights consequences can be considered with sufficient time and deliberation to ensure a human rights-compatible outcome. The contribution of this component to the generic objective and outcomes cited above is enhanced by measures taken to ensure gender mainstreaming and vulnerability analysis. These include ongoing efforts to ensure gender representativeness in each training as well as formulation of case studies raising concrete gender and vulnerability issues. It is important to note that even in Tunisia, sensitization to gender equality norms is a long and ongoing process. As reported by IBAHRI, for instance:

The discussions among judges and speakers showed a large gap between international human rights standards protecting women’s rights and domestic Laws. Judges have presented mostly arguments based on the religion and domestic laws in contradiction sometimes with international standards. The case studies address international standards of human rights and familiarize judges with specific international conventions such as Convention for the Elimination of all Forms of Discrimination Against Women. Hence, results from the self-assessment questionnaire show that the judges demonstrated an increased understanding of the international human rights principles which will assist them in their duties. In effect, 60% of the participants expressed a


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significant improvement in identifying human rights principles protecting the rights of vulnerable and marginalized (because of gender, nationality, ethnicity, religion) groups and 13% remained at a high level of knowledge (Question 3 of the IBA self-assessment questionnaire).

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Generic Objective C – Capacity and role of Bars !!

Introduction

In the MENA Programme Proposal, this objective is framed in the following terms: Generic objective, Impact level: ”An independent and self-sufficient bar is exercising its rightful role in the judicial system and in society at large.” Generic objectives, Outcome level:

• The relationship between the bar and society is regulated in law according to international standards.

• Internal democratic governance of the bar is in place according to international standards.

• The bar offers its services to the general public, in particular to marginalised groups, and proactively promotes human rights issues.

• The bar actively provides professional training on application of human rights standards to its members, and have an independent role in the legal education of its lawyers.

• The bar takes an active role in supporting economic growth according to international practices of transparency & good governance.

• Bar associations support business lawyers, with the support of their bar associations, in promoting sustainable and equitable economic development that benefits local communities and populations in the region. They do so by rooting their practice in principles of transparency, good governance and principles of business and human rights

The MENA Programme does not include any funded components under this heading.

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Generic Objective D – Human Rights and National Human Rights Institutions !!

Introduction

In the MENA Programme Proposal, this objective is framed in the following terms: Generic objective, Impact level: “National Human Rights Institutions are effectively carrying out their mandate in compliance with the Paris Principles with the aim to promote and protect human rights for all women, men and children in the society.” Generic objectives, Outcome level:

• NHRI:s provide high quality advice/recommendations/reports to the Government, Parliament and other relevant state actors on issues related to legislation, policy and programmes being compliant with international human rights standards.

• NHRI:s implement high quality human rights education strategies and shall increasingly carry out activities to educate and promote the public and different relevant stake holders on human rights.

• NHRI:s promptly investigate individual complaints of violations of human rights due to an effective complaint handling system in place.

• NHRI:s address systemic and widespread human rights violations through conducting national inquiries at regular intervals.

• NHRI:s have established a mechanism for a co-operative working relationship with the judiciary in matters of human rights violations functioning in a complimentary role to the courts to ensure the right to ‘access to justice’.

• NHRI:s have established a mechanism for cooperation with international organizations such as the United Nations, other relevant international organizations, other NHRIs and relevant national organizations

!Component 2.05 of the MENA Programme Capacity building and support of the Basic Freedom and Human Rights Council involves support via the American Bar Association Rule of Law Initiative (ABA-ROLI) to the Libyan National Human Rights Institution (NHRI), which is called the National Council for Civil Liberties and Human Rights of Libya (NCCLHR or “Human Rights Council”). The implementation of this component during 2014 has been significantly impacted by the deteriorating security situation in Libya. During the first six months of 2014, the Council was still able to function, with access to its office and budget and security issues prominent but not unmanageable. During this time


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period, the component proceeded according to its earlier results framework and in clear congruence with Generic Objective D on NHRIs. The outcomes originally specified for Component 2.05 also aligned closely with generic outcomes related to NHRIs. In particular, the first Outcome, that the Council has increased capacity to receive and process complaints, as well as to undertake and follow through on investigations corresponded to the generic outcome: NHRI:s promptly investigate individual complaints of violations of human rights due to an effective complaint handling system in place. Similarly, the second Outcome, that the Council has developed and begun to implement a strategic approach for promoting public awareness of human rights fulfilled the generic objective that NHRI:s implement high quality human rights education strategies and shall increasingly carry out activities to educate and promote the public and different relevant stake holders on human rights. In addition to working with the Results Change Management (RCM) working group on finalizing its baseline, ABA-ROLI finalized its work-plan for the project and hired a full-time Human Rights Advisor to assist the Council in May of 2014. During this period, ABA-ROLI also drafted an Institutional!Capacity!Assessment!Manual!for!the!NCCLHR!and!assisted!the!Council!in!tackling!other!key!reforms!and!activities.!!However,!the!security!situation!continued!to!deteriorate!throughout!the!Spring!and!large2scale!fighting!reached!Tripoli!during!July!and!August!of!2014,!forcing!the!international!staff!to!evacuate.!As!of!September!of!2013,!Component!2.05!implementation!continued,!but!based!primarily!from!the!ILAC!Office!in!Tunis!and!in!the!face!of!increasing!obstacles!to!the!Council’s!ability!to!continue!working!on!the!ground!in!Libya.!By!agreement!with!ILAC!and!Sida,!ABA2ROLI!developed!successive!interim!strategies!to!allow!the!work!with!the!Council!to!continue!on!an!ad!hoc!basis!“in!anticipation!that!the!security!situation!in!Libya!will!stabilize”.!!!During!this!period,!it!was!impossible!for!Component!2.05!to!be!included!in!the!process!of!finalization!of!results!frameworks!that!had!been!completed!for!the!other!components!by!the!end!of!2014.!In!light!of!the!inability!of!the!Council!to!continue!with!ordinary!complaints!receipt!and!investigation!or!public!education!activities!during!the!better!part!of!2014,!the!existing!results!framework!became!increasingly!divorced!from!the!conditions!the!Council!has!been!operating!under.!!!!Given!the!changing!situation!on!the!ground,!it!was!impossible!to!predict!what!should!be!included!in!a!new!results!framework,!and!this!task!was!delayed!until!2015.!!!


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The!situation!worsened!dramatically!in!Libya!toward!the!end!of!2014.!As!set!out!in!the!component!report:!!!

Until!October!2014,!despite!the!months!of!continuous!armed!violence,!security!threats,!shortage!of!electricity!and!other!basic!amenities!in!Tripoli,!NCCLHR!had!managed!to!continue!operation!and!fulfilling!its!mandate,!though!it!had!to!temporarily!suspend!some!of!the!planned!activities.!!!The!operating!environment!worsened!in!October!2014,!when!unarmed!members!of!the!Libyan!Dawn!militia!entered!the!premises!of!the!NCCLHR!demanding!interrogation!of!its!managers.!This!request!was!preceded!by!the!resignation!of!the!head!of!monitoring!department.!!!In!2014,!the!NCCLHR!has!experienced!turn2over!in!high!level!management!and!Board!members!due!to!the!hostile!security!environment!and!unstable!political!situation!in!Libya.!In!the!beginning!of!2014,!founding!chairman!Mohamed!Alagi!submitted!his!resignation!to!the!Board,!which!was!not!granted,!but!Mr.!Alagi!was!unable!to!continue!to!work!due!to!the!health!problems.!In!June!executive!director!left!the!Council.!Currently,!most!managers!of!the!NCCLHR!are!forced!to!operate!from!outside!of!Libya.!The!Acting!Chair!of!the!NCCLHR!Board!operates!from!the!east!of!the!country.!!!!The!term!of!Board!members!expired!in!November!2014.!However,!until!the!new!board!is!elected!the!legal!status!of!the!Council!is!not!affected!by!the!delayed!elections!of!the!Board.!!!

Despite!these!challenges!in!2014,!the!Component!achieved!significant!results!simply!by!continuing!to!maintain!contact!with!and!provide!support!to!the!Council,!seeking!to!assist!them!in!continuing!to!fulfil!their!mandate!even!under!the!most!difficult!conditions.!As!a!result,!a!number!of!significant!results!were!achieved!during!2014,!including!the!following,!cited!in!the!component!report:!!

• In!September!2014,!ABA!ROLI!assisted!the!NCCLHR!to!prepare!its!report!for!the!first!Universal!Periodic!Review!Session!on!Libya,!which!will!be!held!in!the!UN!offices!in!Geneva!in!April2May!2015.!!

• Under the component, mapping of the functions of NCCLHR to its organizational

structure and development of the Institutional Capacity Assessment Tool (ICAT) was completed by September 2014. The ICAT was translated into Arabic and formally submitted to the NCCLHR.


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• In September 2014, ABA ROLI in cooperation with the NCCLHR completed mapping

and documentation of internal procedures for complaint processing at the NCCLHR in light of the best practices adopted by other National Human Rights Institutions.

• On November 22-23, 2014, ABA facilitated a workshop on complaint procedures in

Istanbul. The workshop was attended by managers and staff of the Council, including two women - head of international cooperation department and head of Complaint Receiving Section at the Follow-up Department. Draft Rules and Procedures on Complaint Processing prepared by ABA ROLI were discussed and finalised at the workshop.

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Generic Objective E – Anti-Corruption Mechanisms !!

Introduction

In the MENA Programme Proposal, this objective is framed in the following terms: Generic objective, Impact level: ”Institutional mechanism is in place to effectively fight corruption.” Generic objectives, Outcome level:

• Qualified, credible and accessible institutions with professional staff have started to fight corruption.

• The Anti-Corruption Agency delivers professionally investigated and well prepared cases to the National Prosecuting Authority for prosecution

• The National Prosecuting Authority formulates and submits indictments for corruption to the courts

• The courts deliver solid and well reasoned judgements on the indictments Component 2.09 of the MENA Programme, Strengthening the capacity and effectiveness of the Tunisian Anti-Corruption Agency, is implemented by the CEELI Institute in partnership with the Tunisian Instance Nationale de Lutte Contre la Corruption (INLUCC, or “Anti-Corruption Agency”). This component contributes directly to Generic Objective E at the national level in Tunisia, while seeking to support the development of a successful precedent of potential use to the entire region. Component 2.09 was initially focused solely on training the personnel of the newly founded Agency. However, in the course of consultations with INLUCC Director Samir Annabi that have been held regularly since late 2013, significant adaptations have been made in order to provide more effective support to the Agency. As described in the component report, such adaptations undertaken in 2014 have included the development of specialized curricula at INLUCC’s request, as well as expansion of the scope of participation in trainings to the extent that the Agency’s own staff constitute a minority – of the 108 participants in the five sessions held in 2014, only 23 were INLUCC employees, with remaining 85 invited from other agencies, institutions and civil society. The latter has served to support one of the Agency’s strategic goals:

INLUCC President, veteran Tunisian lawyer Samir Annabi, considers the trainings developed in cooperation with the CEELI Institute to be a priority to


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the agency’s development. Those trainings not only enable the INLUCC to build the skills of its own staff, but also enable the agency to fulfil its role as the key interagency coordinator of anti-corruption activities and programs. By enabling the INLUCC to invite representatives from a cross section of other stakeholder agencies and institutions, CEELI is able to support and strengthen INLUCC’s position as the preeminent anti-corruption educational and resource centre in the country.

The Outcome for Component 2.09, The capacity of the Tunisian Anti-Corruption Agency to investigate official corruption is increased, focuses primarily on the results of training, both in terms of how INLUCC staff are developing the capability to apply knowledge received, and how this affects their view on cooperation with other government actors. As described in the report, the role and mandate of the INLUCC continue to develop in light of the need to adapt to Tunisia’s political realities and the provisions on combatting corruption in the 2014 Constitution. As a result, investigations have been less significant than other Agency mandate functions including public awareness and education, receiving and preparing cases, providing consultations to concerned individuals, and developing cooperative relationships with other government agencies and bodies. Consequently, reporting under this outcome reflects this broader range of activities. The targets for the output to be achieved under the first Outcome (Tunisian Anti-Corruption Agency staff apply newly learned investigative techniques to develop cases against official corruption) were met through the completion of five training sessions in 2014 during which 100% of participants showed increased understanding of investigating official corruption. Building on these results, targets for both of the indicators for Outcome 1 were also substantially met. Four verifiable instances for the Extent to which selected staff demonstrate ability to think through steps of an effective investigation increases in hypothetical cases were provided in the form of evaluation results, INLUCC activities and an example of group discussions in the trainings (209-001 – 004). Meanwhile five verifiable instances were provided for the second indicator, Extent and quality of steps taken to identify training needs, by staff, for non-Agency government actors 209-005 – 009). These include several examples of INLUCC contacts with other agencies to identify priority topics as well as two examples of trainings developed on the basis of such suggestions. The second Outcome for Component 2.09 relates to the broader aim of placing the INLUCC at the center of Tunisia’s anti-corruption efforts: The Tunisian Anti-Corruption Agency begins


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to perform as a leading government agency in promoting good investigative practices against official corruption. Under this Outcome, the output (that The capacity of the Tunisian Anti-Corruption Agency to lead on anti-corruption investigations increased) was met through the holding of five joint trainings at which 85 participants came from other agencies or institutions and civil society. The first indicator for Outcome 2 was met with five verifiable instances for the Extent and quality of fora developed for exchange of information and investigative best practice between the lead agency and non-agency government actors in order to create mutual respect between key actors (209-010 – 014). These took the form primarily of meetings and events that provided an opportunity for INLUCC discuss mandate issues with key interlocutors. Meanwhile five further verifiable instances were provided for the second indicator, Frequency of and quality of cooperation between staff and non-Agency government actors regarding investigations, highlighting instances of cooperation with representatives from non-Agency government actors related to the thematics of the training sessions (209-015 - 019). These included two instances of the development of codes of ethics by the Tunisian Electricity and Gas Company and Tunisair. By taking active steps to ensure close cooperation and shared understandings with key partners in anti-corruption activities, the INLUCC creates the conditions for complementary and coordinated action in this new and crucial sphere of activity. As such, these component outcomes contribute directly to the generic outcome specifying that “Qualified, credible and accessible institutions with professional staff have started to fight corruption”. The contribution of this component to the generic objective and Outcomes cited above is enhanced by the examples of gender mainstreaming and vulnerability analysis cited for 2014, including the fact that “INLUCC policy allows for citizens to come from the street and file a case or receive consultations. According to Mr. Annabi, there can be up to 10 such visits a week. This approach to open public access enables members of vulnerable groups to receive direct expert consultations.” !

Documents

MENA Programme Annual Narrative Report