207.
The Complainants aver that the Respondent State violated his right to freedom of
profession (practice his profession) in terms of Article 136 (1) of the Constitution of
South Sudan which states that "advocacy is an independent private legal
profession", in that the Chairperson of the Bar Association wrote the letter for the
waiver of the immunity under duress, and it was unlawfully used against Advocate
John Gerry, instead of the person of Advocate John Kiri, thereby violating Article 8
of the African Charter. They also claim that these actions by agents of the
Respondent State also violated the independence of the South Sudan Bar
Association provided for in Section 43 (2) of the Advocates Act, 2013 and its
freedom of association, and therefore Article 10 of the African Charter.
208.
The Complainants support their argument by referring to the Commission's
Principles and Guidelines on the Right fair Trial and Legal Assistance in Africa,
which inter alia provides that, 'Governments shall ensure that lawyers: (a) are able
to perform all of their profession functions without intimidation, hindrance,
harassment or improper interference; (b) are able to travel and to consult with their
clients freely both within their own country and abroad; and (c) shall not suffer, or
be threatened with, prosecution or administrative, economic or, other sanctions for
any action taken in accordance with recognized professional duties, standards and
ethics". It also states that charges or complaints made against lawyers in their
professional capacity shall be processed expeditiously and fairly under appropriate
procedures. Lawyers shall have the right to a fair hearing, including the right to be
assisted by a lawyer of their choice. Disciplinary proceedings against lawyers shall
be brought before an impartial disciplinary, committee established by the legal
profession, before an independent statutory authority, or before a court, and shall be
subject to an independent judicial review.
209.
The Commission notes that the constituting elements of article 8 of the African
Charter are freedom of conscience and to profess and practice one's religion. It has
cited freedom of conscience' and the 'profession and free practice of religion'
together in the Endorois case", stating that 'freedom of conscience and religion
should, among other things, mean .the right to worship, engage in rituals, observe
days of rest, and wear religious garb'.
210.
In interpreting this Article 8 of the African Charter, the Commission distinguished
between 'profession of religion ... [as] an open declaration or affirmation of one's
religion, which is an outward act', and 'freedom to practice one's religion entails all
outward manifestations or observance of religious faith or belief, privately or in
community with others'." The Commission also further interpreted the contents of
this right in Amnesty International, Comite Loosli Bachelard, Lawyers' Committee
for Human Rights, Association of Members of the Episcopal Conference of East
Africa v Sudan.i? where non- Muslims were denied work, food aid and education,
where food was not distributed evenly in prisons. The Commission found that '[t]
hese attacks on individuals on account of their religious persuasion considerably
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