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A truly international evening

By: Nathalie Laflamme

It’s quite hard to describe the IHRTP to someone who hasn’t experienced it themselves. At least, that’s what I told myself as I began writing this blog post.

The three weeks of the IHRTP—short for International Human Rights Training Program, which has been held by Equitas for the last 38 years—was a blur. A blur of hectic logistical arrangements, of endless tasks, of fascinating, eye-opening conversations with human rights defenders from across the globe, and sometimes—like during the International Evening—a literal blur of colourful traditional garb, dancing along to music from the opposite side of the world.

To give you a glimpse into my experience working for Equitas, I thought I would first describe what I felt was the most memorable moment of the IHRTP: the International Evening, which was held on June 15th.. On this night, participants, facilitators, Equitas staff and interns were encouraged to throw on their best traditional clothing and come to the cafeteria at John Abbott College for an evening packed with flavour and entertainment.

The evening was—to say the least—a blast. While the days spent at John Abbott College (where the IHRTP is held) had been extremely busy, and while I had had the chance to share a few sporadic meals and conversations with participants, the full impact of the program only became apparent to me when I stepped through the doors of the cafeteria during the International Evening.

For you to grasp how impressive this event was, I feel that I should first explain what the IHRTP is (note that I will speak more about my tasks and responsibilities as an Education Intern in my second blog post). The IHRTP is a three-week intensive program which is open to human rights educators from civil society organizations, regional and national institutions, and government agencies across the globe. During the program, participants mainly work in small, diverse groups, and work to transform their working methods and develop tools to increase the impact of their work. The program uses a participatory approach, allowing human rights educators to build capacities and skills by learning from one another—participants are both the teachers and the students of the IHRTP.

So, as I stepped into the cafeteria that night, and as the colours of everyone’s clothing and the smell of the dozens of different, scrumptious international foods hit me, I really saw the beauty and power of the program for the first time. I was a little late for the event as I had driven one of the IHRTP’s Resource Persons back to the airport, and of course I had managed to get lost on my way back to the college. The Resource Person and I had shared a fascinating conversation in the car involving a comparison of the legal system in Canada and Egypt, as well as a discussion concerning Canada’s Aboriginal Peoples. It truly was enlightening. But, I digress. Because of my lateness that night, I got to step into the bustling cafeteria on my own, once the event had already begun, and got to take it in in all its glory.

The Intern and Volunteer table on International Evening. Photo by Michael Cooper/Equitas.

I watched as groups of participants from the same regions took the stage after our delicious meal to perform to their favourite local songs and give us a glimpse into their worlds. I remember thinking, as I watched an incredibly pregnant participant from Haiti dance with gusto, her stomach bare, surrounded by other Haitian participants (one of whom was wearing the Haitian flag as a cape) dancing beautifully, that this truly was a unique experience.

After the participants had all performed, we sang “Happy Birthday” to Equitas—in both French and English, of course—as this year marks the organization’s 50th anniversary. After that, everyone got on the dance floor. Never in my life have I been surrounded by so many amazing dancers; it was so beautiful. There was something so unique about seeing so many people from such different places, with such different lives, come together. That night, I also learned that dancing in a circle is apparently an international social norm.

Dancing after dinner. (That’s me, in the light pink dress). Photo by Gabrielle Vendette/Equitas.

I begged AJ, the Logistics Intern who was in charge of the music that night, to add “Cotton Eye Joe” by the Rednex to the song cue. He agreed, and I somehow managed to teach that silly line dance to at least 50 different people from all over the globe. I remember dancing so enthusiastically that my right leg cramped, but I powered through. I was smiling so hard my cheeks almost cramped, too.

I am the only intern participating McGill’s International Human Rights Internships Program (IHRIP) who stayed in Montreal this summer. And yet, during that evening, I wasn’t in Montreal. I was in Morocco, in Colombia, in the Democratic Republic of the Congo, in India, in the Philippines… I was everywhere, caught in an international blur. I hope this memory stays with me forever.

More dancing during Equitas’s International Evening. Photo by Gabrielle Vendette/Equitas.

Defining Equality: Namibia’s Supreme Court and the Rights of Persons with Disabilities

By Kevin Lee Pinkoski

Equality in Namibia and the Rights of Persons with Disabilities:

A young country – with a new constitution – needs an active judiciary that takes every opportunity to develop a more nuanced understanding of its constitutional principles. This is the context of Namibia, a country that, in 1990, won independence from South Africa after years of racial division implemented by apartheid, and, in the same year, adopted a new constitution. But many terms in this new constitution have yet to be comprehensively nuanced and defined through jurisprudence. As the case Alfred Mew Visser v Minister of Finance & 3 Others shows, Namibia’s judiciary continues to miss opportunities to describe both the nuances of equality as the term is present in the constitution and its relationship to the rights of persons with disability.

The nuance that is lacking from Namibian jurisprudence on equality is if the term is only limited to formal equality, where the law treats all individuals equally, or if it includes substantive equality, where the law recognizes individual differences in order to make everyone equal. Namibia’s constitution prioritizes equality, yet Namibia’s Supreme Court has failed to provide an accurate explanation of what is meant by the term in the constitution — if it is limited to just formal equality, or if it can be expanded to substantive equality. The judiciary must play an active role in addressing these ambiguities. Consequently, disabled individuals in Namibia are left without true equality.

Alfred Mew Visser v Minister of Finance & 3 Others:

The Alfred Mew Visser case is about the rights of persons with disabilities. Alfred Visser was in a severe car accident and, as a result of his injuries, he was blinded in both his eyes. Because of Namibia’s no fault insurance scheme, he was awarded damages according to The Motor Vehicles Accident FundThe Fund sets caps for damages, and Alfred Visser challenged these caps under the claim that they do not adequately provide the financial support necessary for him to live with a permanent disability. The Supreme Court did not find the case in his favour because of the financial implications of going beyond the caps established in The Fund.

Alfred Mew Visser characterizes a clear problem in the Namibian judiciary; the term equality in the Namibian constitution has not been accurately defined by Namibian jurisprudence. Yet the Supreme Court’s response inAlfred Mew Visser, ignorant of this problem, focuses only on the financial limitations of The Motor Vehicles Accident Fund. My criticism is that, regardless of the outcome of the case, the Supreme Court needs to actively seek out opportunities to elaborate and clarify Namibia’s constitutional principles. Because of this, the Supreme Court’s judgment in Alfred Mew Visser is a missed opportunity to provide a nuanced understanding of what is meant by equality – this is detrimental to Namibia’s most vulnerable populations.

Equality in the Namibian Constitution:

Strong memories of the heroes of the liberation struggle, such as Toivo ya Toivo, continue to inspire Namibians like Fazilla to fight for equality.

Reflective of years of apartheid – when inequality between race was implemented by law – Namibia’s new constitution prioritizes equality for all its citizens. The preamble to the constitution sets this mandate, affirming that “the inherent dignity and of the equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace.” Namibia, as a new country, founded itself on the principle of equality.

Namibia’s standard of equal rights for all is expanded upon in Art. 8: Human Dignity and Art. 10: Equality and Freedom from Discrimination of the Constitution. Art.8(1) states: “The dignity of all persons shall be inviolable”, and Art. 8(2)(a) elaborates: “In any judicial proceedings… before any organ of the State… respect for human dignity shall be guaranteed.” Art.10(1) reads: “All persons shall be equal before the law,” and Art.10(2) continues: “No persons may be discriminated against on grounds of sex, race, colour, ethnic origin, religion, creed or social or social status.”

The constitution and current government policy indicate an ambiguity between formal and substantive equality in Namibia. While Art. 10(1) establishes the terms of formal equality before the law, Art. 10(2) creates the potential to use the law to make all individuals equal through substantive equality.  Art 10(2) indicates the potential for substantive equality as it would be discrimination not to make individuals equal who suffer under the prohibited grounds for discrimination in Art 10(2). The emphasis on equality in both the preamble of the constitution and in Art. 8 show Namibia’s prioritization of equality for anyone within Namibia’s borders. Furthermore, Namibia has embarked on clear projects to create substantive equality for marginalized populations, such as economic empowerment initiatives and gender equality programs. There is a clear ambiguity in what is meant by equality that must be addressed by Namibia’s Supreme Court.

Neither Art. 8 nor Art. 10 provide a nuanced understanding of what is meant by equality. Because of this, Namibia’s lower courts have been limited to an understanding of equality that only evaluates the formal equality of all individuals before the law, not the substantive equality necessary to make all individuals equal. Furthermore, as Alfred Mew Visser shows, the Supreme Court has failed to take any opportunity to define any nuances to what is meant by equality as it is presented in the Namibian constitution. Because of this, Namibia has yet to create an environment of true equality for persons with disabilities.

Disability in Namibia and Alfred Mew Visser:

Although empty on the weekend, the Katatura Disability Plaza houses numerous organizations that promote equality for people with disabilities.

Namibian law defines disability as “a physical, mental or sensory impairment that alone, or in combination with social or environmental barriers, affects the ability of the person concerned to take part in education, vocational, or recreational activities.” This definition is elaborated upon to include the “loss or limitation of opportunities to take part in the normal life of the community on equal level with others due to physical or social barriers.”

The Namibian constitution does not list disability as a prohibited ground for discrimination in Art. 10(2). Thus, for disability to be adequately recognized or discussed in terms of equality, the Namibian judiciary must establish that disability is included under the prohibited grounds for discrimination in Art. 10(2).

Disability has a clear consequence on an individual’s ability to participate in society, it has a detrimental effect on the following grounds prohibited by Art. 10(2) of the constitution: social status, economic opportunity, and personal prosperity. The statistics are clear: 17.7% of urban disable persons do not attend school, 82.3% of rural disabled persons do not attend school, 42.5% of disabled persons work in agriculture and fishers, with 14.6% in elementary occupations. 70% of disabled persons live in homes without a mortgage. The reality is explicit – being disabled in Namibia is a limit on the potential of an individual to achieve success and prosperity.

In the example of Alfred Mew Visser, Alfred Visser has suffered a permanent disability because of the accident: he is blind in both eyes; he has a physical impairment that will impede his potential to participate in everyday activities and in work opportunities; he will need to learn a new system of reading. He is likely to be to be limited, as Art 10(2) of the constitution explains, to a “social status” because of his disability.

Art. 8 and Art. 10 of the Namibian constitution ensure a conducive environment to the full and equal participation for all in society, including those with disabilities. But, as was previously alluded to, because neither Art. 8 nor Art. 10 provide a comprehensive definition of what is implied by equality, the Supreme Court is required to give such an interpretation. The Alfred Mew Visser case is a clear example of a missed opportunity to give a more nuanced explanation of what is meant by equality, a missed opportunity that will be detrimental to disabled people – one of Namibia’s most vulnerable populations.

Formal Equality – Equality as applied by the Supreme Court:

Namibia’s clear wealth disparity, apparent in the village of Hoachana, is continually being addressed in the pursuit of equality.

Namibian jurisprudence has yet to provide a nuanced understanding of what is meant by equality in the Namibian constitution. The problem is that, because of the limited wording of the Namibian constitution, there is no need for courts to expand beyond an understanding of equality that is restricted to formal equality. Formal equality is established only by equality before the law. It applies blind rules to every situation, no matter what social differences may be involved. If the Namibian constitution ensures only formal equality, the Namibian Supreme Court should define that distinction. While it is possible to develop the language of formal equality in Alfred Mew Visser, it is important to recognize that the case turns on the financial limitations of The Motor Vehicle Accidents Fund, and not the issue of equality.

In Alfred Mew Visser, the court employs a view of formal equality before the law, as all claimants are held to the same limits of compensation, regardless of either their individual characteristics or the consequences of an accident. Alfred Visser’s disability can only be taken into account provided it falls under the limits of the caps established in The Motor Vehicle Accidents Fund, and it cannot be adjusted to take into account the particular needs of certain claims. The caps employ the same legal equality to all — the same formal equality before the law — and thus the court can resolve that “No distinction is made between claimants at all” since “all claimants are in the same position when it comes to the capping of their claims and are thus equal before the law.” No differentiation is made between individuals and their needs. If this is what is meant by equality in the Namibian constitution, the Supreme Court should define equality in this way in its decision.

Formal equality could, however, provide the means to address the necessary compensation required to ensure equality for disabled individuals. Since, to establish formal equality, the court adheres to “equality before the law,” it is the actual law itself that would have to change. The Motor Vehicle Accidents Fund would have to be amended to provide for a recalculation of damages for disability, for injuries that cannot be recovered from and that requires an individual to live their life in a different way. In this way, the court could still employ formal equality before the law, but the law itself would have to be expanded to provide for the necessary compensation to an individual who has been affected to a new “social status” (as Art. 10(2) of the constitution establishes) as a result of an accident. The Namibian constitution could imply formal equality in this way, but the distinction would have to be made by the Supreme Court.

The Potential for Substantive Equality in Namibia:

The Katatura Hospital is one of many public hospitals that provides medical services to Namibians.

In Alfred Mew Visser, substantive equality would imply that, because Visser has been placed in a different social status as a result of the disability incurred in the accident, the court could employ a definition of equality that allows for increased compensation. While the court establishes that The Motor Vehicle Fund ensures that “equally positioned persons are treated equally”, it fails to consider that some individuals will require more support in order to be treated equally. The reality is, as substantive equality reminds us, that the results of an accident do not leave all individuals “equal”, and that some, especially those with long term disabilities, will require more compensation. If the court had chosen to establish substantive equality as a part of the Constitution’s definition of equality, the court would allow for the law to be adapted to Alfred Visser’s specific case.

Furthermore, the court would establish the necessary precedent to employ substantive equality when necessary to ensure that the law can be adapted to provide what is needed for any individual to achieve equality. This is the missed opportunity of the Supreme Court, they failed to recognize the reality that equality before the law does not ensure that the law has equal effects on all individuals. Consequently, in order for the law to allow that all individuals can achieve equality as a result of the law, a substantive understanding of equality should be employed. Here, the Supreme Court has failed to provide for a more nuanced, and more just, understanding of equality that takes into account an individual’s unique needs. Alfred Mew Visser is thus a missed opportunity to define equality.

Conclusion:

Namibians, especially Namibia’s most vulnerable population, must again wait for the Supreme Court to develop a nuanced understanding of equality. Namibians are left with ambiguity as to if equality goes beyond formal equality to address substantive equality, thus allowing for the prohibitions on discrimination in Art. 10(2) to be extended to unlisted ground. It is, as Art. 10(1) reminds us, that “all persons shall be equal before the law” – so why stop short of protecting Namibia’s vulnerable populations?

The Supreme Court should be capable of providing the necessary jurisprudence to clarify and develop the constitution. The Supreme Court cannot be limited by state resources or policy in its decisions, it must be capable of balancing these limitations with the necessity of equality. The nuances in the term equality have yet to be defined by Namibia’s Supreme Court, and the Court continues to miss opportunities to add the necessary nuances. Defining these nuances is, after all, the role of the judiciary.

 

Assumptions revisited: the origins and meaning of the Charter

By Mark Dance

Over my summer at the Canadian Civil Liberties Association (CCLA), I’ve had the occasion to get below the surface of a few of my tacit beliefs about the Charter of Rights and Freedoms. It’s remarkable that I’d not been disabused of some of these notions over two years in law school—but maybe it’s just time outside the classroom that has started to puncture and deflate them.

My first stark realization was that the motivations for the adoption of a Charter in the first place may have been profoundly political and more specifically, fueled by a fear of Quebec Nationalism rather than a desire to elevate the rights of citizens. Joseph Heath explores these topics in greater depths in his book Enlightenment 2.0 but he paints the essential picture in a 2014 piece in the National Post:

“With the conflict between French and English growing more and more intractable, a frustrated [Pierre] Trudeau finally gave up on his old motto, [‘Reason before passion’], admitting that his faith in reason had been mistaken. ‘If they want blood and guts,’ he said, ‘I’ll give them blood and guts.’ To this end — and with varying degrees of cynicism — he set about creating a new national identity, in part by co-opting traditional French Canadian culture and imposing it at the national level. His efforts began with the aggressive promotion of the national flag (with the Parliamentary Flag Program of 1972, which gave each representative a quota of flags to be distributed to constituents), the designation of ‘O Canada’ as the new national anthem, and the creation of a national holiday (with Dominion Day being renamed ‘Canada Day’), and which culminated in the repatriation of the Constitution and the adoption of the Charter of Rights and Freedoms in 1982. All of this served to create a new Canadian identity distinct from the British one that had previously been dominant at the national level.”

On this reading, the Charter is not a principled document for the sake of individuals or communities but rather a scheme hatched by Pierre Trudeau to stave off armed revolution and the crumbling of a federation; a ‘good’ nationalist bulwark against the ‘bad’ nationalism of the FLQ.

My second jolt came when I realized that CCLA had a more complicated and nuanced relationship with the upholding of Canadians’ rights than I had originally understood. I saw this immediately when I watched and reported on a CCLA intervention about the rights of doctors to conscientiously object to performing medical procedures like doctor assisted dying—where CCLA took the position that the obligation to make effective referrals was justified—but I also gleaned it from freedom of expression cases on which I was working, where certain limits on speech were understood to be justified in the service of protecting the community from disturbing images and messages. I grasped the complications most clearly when reading an autobiography of a former CCLA general counsel, Alan Borovoy. In one of his last chapters he writes that, when the idea of a constitutionally entrenched Charter was first proposed to the CCLA,

“I was against the whole idea […] I took the position that this deference to the judiciary represented a form of tyranny. Why, I asked, should the raw value judgments of appointed judges trump those of elected politicians? After all, politicians are accountable for their judgments to the people who elect them […] I hit on a possible compromise. Instead of calling for a complete withdrawal of the proposed Charter, I borrowed a concept from the statutory Bill of Rights that then existed at the federal level: a ‘notwithstanding’ clause.”

While at first baffling that a CCLA leader would oppose the entrenchment of a Charter, I came to understand the logic both from my work at CCLA and from Borovoy’s writing. In the former case, I saw how much good s. 1 can do in the right judicial hands and how certain statutory and regulatory objectives, despite clearly infringing Charter rights, are simply good for the country from a utilitarian perspective. In the latter case, I read Borovoy’s compelling history of the US Bill of Rights, which in the 20th century was used to “strike down legislation limiting the hours of work, prescribing certain minimum wages, outlawing child labour, and regulating employment agencies”. Without limits like s. 1—or perhaps even the notwithstanding clause as a rarely invoked limiting condition—it could wind up being the individual who tyrannizes a hopeful and progressive majority.

A third eye-opening moment came from the overturning of my naïve impression that the Charter embodies democracy in some way; while it may protect voting rights and other liberties that make electoral democracy possible, a look at the history taught me just how undemocratic the Charter’s origins were. To watch Jean Chrétien, Roy McMurtry and Roy Romanow talk through the delicate dance of feds and provinces striking a deal is to see an elite cabal reprised and Machiavellian manoeuvres re-enacted.

A philosopher once wrote that “there is scarcely a commonwealth in the world whose beginnings can, in conscience, be justified”; like the absence of Indigenous people at Canada’s Confederation conference 150 years ago, the Patriation of the Constitution in 1982 was a profoundly exclusionary bit of nation building. Perhaps that sort of state of exception is necessary to get constitutions off the ground—but that doesn’t mean that it was pretty. The same philosopher wrote, in the context of the English Revolution in the 1640s, that “Charters are Donations of the Soveraign” rather than true manifestations of public will. I’d not grasped the undemocratic—or perhaps pre-democratic—origins of our own Charter until this summer.

But in addition to these observations regarding the origins, meaning and structure of the Constitution Act 1982—most of which could be understood as instances of disenchantment—this summer also sparked for me at least one surprising new source of admiration for the document.

Participating in CCLA outreach work meant that I saw high school students  thinking through the Charter for the first time. CCLA facilitators walk these young people through collisions of and justified limits upon rights and freedoms: in the case of a minor refusing to submit to a life-saving blood transfusion, is a province justified in forcing the procedure upon them? In the case of a boy bringing a ceremonial knife to school, does the right to security of the person of the other children overpower his freedom of to manifest religious conviction? Presented with each of these questions, I saw teenagers engage passionately in debate with one another. I saw them try on different standpoints and end the hour with new, richer convictions. I saw them play in the conceptual jungle gym of rights, freedoms and public powers in a way that I do not believe they could have without the Charter.

A week later, midway through July and out for a bike ride, I was reminded that the Charter can make students of us all. As I leisurely pedaled past a group of older, visibly down-and-out men in a downtown park, I caught a phrase or two of their conversation: “I don’t think the police can do that to you. I think that’s breaching the Charter of Rights. At section eight it says that…” and then I passed out of earshot.

I realized then, rolling through the cool dusk of a Toronto summer eve, that at least one of these men had space to think and a vocabulary to speak because of the Charter; he had a bridge between his experiences and the power of the law because of what is undoubtedly an aspirational and inspirational document. The main success of the Charter may after all, I thought, be a pedagogical one: it helps us think about who we are, what we deserve and what sort of society we want to live in.

After this summer, that’s certainly what it has done for me.

National Aboriginal Day at the Ottawa-Carleton Detention Centre

Madeleine MacDonaldBy Madeleine Macdonald

On National Aboriginal Day, we went to Ottawa.

Ottawa has been getting a lot of love this summer, as countless dollars have been pumped into Canada 150 celebrations. National Aboriginal Day was no exception, and celebrations were held overlooking Parliament.  Leaders, elders, and community members feasted and danced; they spoke of reconciliation and snapped photos. By all accounts, a good time was had.

Across the city, nestled among mature trees and strip malls, lies the Ottawa-Carleton Detention Centre. The OCDC is a remand facility, a sort of processing warehouse for inmates as they move through the justice system.  From pre-trial detention to conviction to sentencing to incarceration, this is where inmates stay before they arrive at the correctional facility where they will serve out sentences longer than 60 days.  But don’t be fooled by the label. Despite its innocuous name, OCDC is a maximum security facility with everything that entails: barbed wire, industrial food, strip searches, and solitary confinement.

On a beautiful, sunny summer day, a team from the Mohawk Council of Akwesasne, Akwesasne Justice Department skipped the downtown parties and schmoozing to celebrate National Aboriginal Day in prison. The percentage of aboriginal inmates at OCDC hovers around 30%, relative to 3.8% of the national population. Despite this, 2017 marked the first time a cultural celebration was held for NAD there. Increased aboriginal cultural and spiritual programming is just one of the recommendations of the OCDC Task Force, struck in March 2016 to address reports of deplorable conditions and overcrowding.   

That day, aboriginal inmates who had shown good behaviour were invited out into the yard for a surprise. Native Inmate Liaison Officer Brian David greeted them with smudging before welcoming them into the yard, which held a mid-construction sweat lodge and a circle of chairs. Our guests were treated to a feast of homemade fry bread, corn soup, and fresh strawberries. Wearing his formal Gustowah (feathered headress), Satekaronhioton Fox of Native North American Travelling College told creation stories. Joyce King, Department Director, spoke of culture and restorative principles, emphasizing the importance of knowing one’s identity. In Haudenosaunee culture, to be prepared to for death, each one must know five things: their name, clan, language, song, and their medicine.  Then, we danced.  

Singing and drumming, the men from the travelling college led and we all followed.  Shuffling behind, the women massaged the earth with their feet, just as Sky Woman massaged the dirt on Turtle’s back to create the world.  We laughed. We sang.  Just like the big shots downtown, we feasted and feted, but there were no photo ops, because cameras are contraband.  

And as we were dancing around a barbed-wire enclosed prison yard, an osprey appeared overhead in that blue and cloudless sky, soaring wide and graceful arcs. Beneath him, for a moment, we were all free.

« J’accuse Trump, j’accuse la France, j’accuse Sarkozy »

Lucas MathieuPar Lucas Matthieu

Ouagadougou (“Ouaga” pour les intimes) ressemble de plein de façons à ce à quoi l’on s’attendrait de la capitale d’un pays enclavé et sub-saharien. Le flux incessant des motocyclettes, la poussière, les gardes armés dans la rue, la pollution, la chaleur étouffante en cette saison des pluies, les maquis et leur poulet braisé : tout est en mouvement. Pas en ligne droite, vers le sacro-saint Développement, mais comme la trace d’un scooter fatigué qui crache encore, de ses zigzags, emballées, esquives suicidaires et roues arrière héroïques.

Dans cet assemblage, je suis forcé de reconnaitre, bien souvent, des restes – peu entamés – d’hégémonie française. À commencer par la langue, réappropriée certes, mais bien la même. En face de ma chambre, une vielle carte du Burkina indique encore, en légende, la superficie du pays, sa population, et son « maitre colonial » la France. Les antennes Canal+ sont partout, ma carte SIM est Orange et je paye en Francs CFA. Le Burkina Faso vient d’adopter le système LMD.  Bref, la France est omniprésente, sur le plan militaire, industriel, politique, économique, et culturel. La population Burkinabè en a tout à fait conscience . Alors que je marchais hier vers la rue passante pour trouver un maquis (bar/restaurant d’exterieurs qu’on trouve à tous les coins de rue), j’ai entendu un jeune dans un groupe qui criait « J’accuse Trump, j’accuse la France, j’accuse Sarkozy ». La nuit tombait mais ç’aurait aussi bien pu être l’Aurore.

Nous avons parlé du rôle de la France et des États-Unis dans le dispositif militaire Burkinabè et Ouest Africain en général, du système universitaire Burkinabè, des restes de la colonisation et du point de vue Burkinabè sur le la révolution technologique. Il semblait ambivalent sur ce dernier point. Il mentionna que la conquête coloniale européenne était basée sur le Progrès et la Modernité, bref, la fin de l’histoire. Il semblait convaincu de la nécessité pour l’Afrique de s’adapter et d’entamer une transition technologique – il prit notamment pour exemple la Corée du Sud et le Japon – tout en fustigeant le monopole français sur le capital social Burkinabé via la formation d’élites Africaines, l’imposition semi-camouflée su système scolaire Français et la fuite des cerveaux.

En même temps, il paraissait convaincu que la structure sociale africaine traditionnelle était responsable dans une certaine mesure de ce manque de changement. Il m’expliqua que l’écart entre les modes de fonctionnement sociétaux Africain et la rationalité occidentale ne permettait pas un tel saut. On comprend alors à quel point la domination Française agit encore ici. Il ne s’agit pas seulement de contrôler, encore aujourd’hui, les ressources des anciennes colonies. Mais, via le soft power Français, via Canal+, via Orange, via les publicités étincelantes pleines d’automobiles de luxe, montres érogènes et gratte-ciels parfumés, de créer le récit d’une Afrique immobile et coincée en étaux par ses soi-disant contradictions : culturellement, ni traditionnelle ni moderne; politiquement, ni colonisée ni indépendante; économiquement, pleines de ressource qu’elle serait incapable d’explorer.

 

Ag Shame! We Can Only Do Law Reform

By Kevin Lee Pinkoski

Law Reform and the Luxury of Legal Research:

“Ag shame!” Exclaimed one of the legal researchers who works with me at Namibia’s Law Reform and Development Commission (the LRDC). “ Wouldn’t it be nice to do legal research that wasn’t just about fixing the laws in a country.” Ag shame, the universal Namibian expression that serves as a useful response to absolutely anything, was this time employed in a negative sense. My co-worker was disappointed by the realization that necessity was ruling out luxury in legal research.

Downtown Windhoek shows how luxury may be sought after, but the colonial heritage has limited many to only necessity.

My co-worker was responding to a presentation by academics from the University of Cardiff during the first week of my internship at the LRDC. The presentation focused on what political biases may influence the decisions of members of the U.K.’s Supreme Court. When asked about the intention of the research, the academics explained that it was to “make it clear who our judges were.” It was clearly beneficial research; to know the biases of the judiciary could help both the public better scrutinize the judges and perhaps even force judges to better scrutinize themselves. But in the eyes of my co-worker, this research was a luxury to pursue. The thought that diversity in legal research is a luxury – that some countries and contexts are limited by necessity to only do legal research that evaluates whether or not the law achieves its intended outcome – is the most preponderant lesson I have learned while interning at Namibia’s LRDC.

The Necessity for Law Reform in Namibia:

Namibia is a young country. It was granted independence in 1990 from South Africa after a racially divided struggle, the consequence of years of apartheid that segregated black and coloured Namibians from the white ruling elite. In the year Namibia gained independence, the first democratic elections were held, a representative constituent assembly was elected, and a new constitution was implemented. The new constitution boldly stated the mandate for the new Namibian republic: “equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace… regardless of race, colour, ethnic origin, sex, religion, creed or social or economic status.” According to its new constitution, Namibia would never again treat its citizens unequally.

Independence, for Namibians, marked a new chance for a prosperous future that would benefit everyone – a stark contrast from the years of colonial administration.

Namibia’s colonial relationship with South Africa, the United Kingdom, and Germany have had a clear impact on the country’s legal framework. Colonized first by Germany at the end of the 19th Century, Namibia, then known as South West Africa, would come under the control of the United Kingdom during the First World War. After the war, a League of Nations mandate would then grant administration of South West Africa to South Africa. South African administration would continue, even after the United Nations and the International Court of Justice declared the governance illegal according to international law, until independence was won in 1990. The consequence of three separate colonial administrations was three distinct layers of law, each applied one over the top of the other – each layer retaining its applicability unless otherwise stated. Upon independence, Namibia chose to retain the validity of all previous laws unless the laws were otherwise repealed, modified, or replaced.

The colonial legacy of Namibia exposes the need for law reform. It is here where the luxury of doing diverse legal research is lost because of the urgent need for law reform. Not only do many of Namibia’s laws have a colonial legacy, and thus fail to treat all Namibians equally, but Namibia has transitioned since its independence, first attempting to consolidate the nation’s ethnic diversity through the law, then moving towards an attempt to modernize its laws to realize economic success for individuals that were otherwise limited during the years of apartheid. Law reform plays a key role in determining how laws can and should be modernized to promote the equality, prosperity, and peace ensured by the Namibian Constitution.

The Law Reform and Development Commission:

It is in this process of repeal, modification, and replacement that the Namibian LRDC plays its role; it is mandated to repeal obsolete laws, consolidate codification of the law, harmonize customary and statute law, recommend more effective laws, and enact laws to promote human rights. The LRDC exists as an office separate from any other part of the Namibian Government. This independence gives the office the ability to evaluate the potential impact and usefulness of any law from an apolitical perspective.

To achieve its mandate, the LRDC relies on its most useful tool – public consultations. The LRDC’s political independence gives it the ability to reach out to whoever it chooses. But this process hasn’t become limited to specific stakeholders or powerful groups; the LRDC fosters relationships with as much of Namibia’s population and as many distinct groups as it can, to determine the true impact and perception of the law.

Capana, Namibia’s most popular street food, involves a “farm to mouth” process, that connects farmers, meat buyers, butchers, and cooks, all to cook meat, in markets that are open from 8am to 10pm.

In many ways, Namibia is ideal for this type of an office. The country is only 2.3 million people, its small population means the government is interconnected. A large bureaucracy makes the government accessible. Political organizations are populous. People are proud of their heritage, both the places they come from and their own personal history, and as a result, communities are engaged, concerned for their wellbeing, and accountable for their achievements. Still, there are groups that are skeptical of the current political process, groups that struggle to see how their interests are being represented. It is, therefore, necessary to have government organizations, such as the LRDC, that accommodates all Namibians, regardless of their current engagement in the political process.

The LRDC seeks out and fosters relationships with stakeholders implicated by potential laws. The typical political process is reversed; instead of groups pursuing politicians and advocating for specific decisions, the LRDC reaches out to the variety of stakeholders that are needed to determine the effectiveness of the law. The LRDC develops these relationships, with close ties to the University of Namibia, traditional communities, political assemblies, municipal leaders, law reform commissions throughout the world, NGOs in Namibia, and, above all, Namibians themselves.

The LRDC’s Law Reform Process:

Headed by the dynamic Ms. Yvonne Dausab, who has had a career in private practice, in academia, and in government, the LRDC operates in consultation with the Office of the President. Appointed in 2015 directly by the President of Namibia, Dr. Hage Geingob, Ms. Dausab cooperates with the Commissioners, a select group of Namibia’s top legal professionals who, while employed elsewhere in Namibia, manage projects and provide advisory guidance. Projects are requested directly by the Office of the President, the Attorney General, and the Ombudsman. On each project, legal researchers are assigned from within the office to coordinate research and consultations. The final output of each project is an evaluation of a law’s effectiveness, its implications in Namibia, and any possible areas that could be perfected.

The Commission works like a legal consultancy, but because it is Namibian in its staffing and location, it provides a truly Namibian perspective on the law. This is necessary, especially in Africa, where legal recommendations that are deemed to be effective in another part of the world are often prescribed to African countries. While some of the most effective law firms in the world may be able to make recommendations to Namibia about the law should be, few of these recommendations can access how the law should be for Namibia. But by being in Namibia, staffed by Namibians, and connected to Namibia, the LRDC can consult within Namibia and recommend how the laws should be for Namibia.

The success of each project depends on the ability to find and include the necessary interested and implicated parties in Namibia. The New Equitable Economic Empowerment Framework project relied on country wide consultations with Namibia’s poorest citizens, marginalized business owners, and investors from all backgrounds. The Marriage Reform project relied on consultations with traditional communities whose marriage practices were the most divergent from civil marriages, as well as groups that provided support for any detrimental consequences from traditional marriages. The recommendations on Disability Law Reform synthesized the perspectives of Namibian’s with disabilities, organizations that support persons with disabilities, and institutions that struggle to assist persons with disabilities. Around the world, all of these laws exist in a functional way, but only the LRDC is able to determine how they can exist in a way that will work for Namibia and benefit Namibians.

My own work at the LRDC was directly involved in this process. Working with Ms. Dausab, the focus on my work was to prepare for stakeholder consultations, provide initial readings of proposed laws, conduct comparative legal research with other jurisdictions, and consolidate current Namibian court decisions. To support Ms. Dausab’s consultative network, my work included speech writing, analysis of stakeholder recommendations give to the office, and writing both articles and recommendations on behalf of the office. As an editor, I was tasked with editing The Law Reform and Development Commission At 25: A Quarter Century of Social Carpentry, a book on the potential of law reform in Namibia, along with numerous reports and publications. My work was diverse, reflective of the Law Reform Commission’s mandate to address all laws in Namibia.

The Chairperson of the LRDC, Ms. Dausab, addresses the Junior National Council on Child Marriages in Namibia and possible legal solutions, a catalyst moment in law reform.

Because of the Law Reform Commission’s proximity to both stakeholders and groups directly implicated by legal decisions, its influence is direct and consequential. The legislative response to child marriages in Namibia is a clear example. Ms. Dausab was asked to give a speech to the Junior National Council on the consequences of child marriages and what legal solution could be used to ending child marriages in Namibia. While only 7% of children are married before the age of 18, such marriages occur under an exemption within the law that allows children to marry with both parental consent and the approval of an officer of the Ministry of Home Affairs. After delivering the speech to the Youth Council, the Council passed a recommendation to the National Council to remove the exemption provisions. Even though the National Council was on recess, the Ministry of Gender Equality and Children announced in the following week that it would conduct both statistical research to determine where child marriages were occurring, consultations with implicated communities, and research into legal and institutional reform needed to end child marriage. As this example shows, the desire for law reform is evident across Namibia and Namibians are willing to act to ensure true equality.

Necessity over Luxury:

Legal research can be both a social necessity and an academic luxury. Since I started my studies in law, I’ve been exposed to legal research that is as diverse and complex as any academic discipline. There is research that, similar to the LRDC’s work, intends to influence the writing of the law and inform judicial decisions. But the scope of legal research is not limited to only reform. It expands to guidelines on how to support the convergence between law and other academic disciplines, its analyzes the pedagogy of teaching, and it criticizes how the discipline itself exists. This variety is a sign of a healthy academic discipline. But it is important to remember that this diversity and vitality is a luxury – one that can be afforded because of the functionality and success of the Canadian legal system.

In Namibia, the luxury of diverse legal research will only begin when the law itself has developed to a point where it exudes confidence in its own potential. Until then, the brightest legal minds in Namibia are nobly limited to the mission of law reform. Ag shame!

Criminal Justice in Cambodia: A Corridor of Illusions

Rintoul AndrewBy: Andrew Rintoul

Time and again, the Cambodian criminal justice system has proven to be an arbitrary construct built and operated at the expense of the many. Against this illusory backdrop of legitimacy resides human beings, individuals with loved ones and lives awaiting them outside prison walls. This notion thundered loudly as Tep Vanny, a mother and a daughter, was asked by the defence lawyer about the status of her family at the Court of Appeal in Phnom Penh today. The ensuing display of emotion was difficult to behold without feeling a tremendous sense of remorse and anger at the system responsible.

Tep Vanny has been detained for nearly a year, since her arrest on 15 August 2016. In February 2017, she was convicted of “intentional violence with aggravating circumstances” at the Phnom Penh Court of First Instance. The charges were based on allegations of violence against para-police during a 2013 protest near the home of the Prime Minister. During that protest, both she and numerous other protestors suffered serious injuries at the hands of the authorities. Her sentence of two-and-a-half-years’ imprisonment and US$3500 compensation to the plaintiffs remains, with the verdict from today’s appeal to be announced on 8 August 2017.

Court of Appeal, Phnom Penh

Tep Vanny is not alone. There are many who share similar experiences within the prevailing criminal justice system in Cambodia. In today’s appeal, as was the case in her first instance trial earlier this year, the burden of proof bar was non-existent. With plaintiffs and prosecution witnesses absent, there was no room for cross-examination. The submitted statements of these individuals, read aloud by the court clerk, were eerily similar and corroborated seamlessly one another. However, none presented any shred of credible evidence to prove the defendant’s guilt beyond reasonable doubt. And yet, in coming to his verdict, the presiding judge will undoubtedly consider such proceedings to have been sufficiently legitimate. In the trials I have witnessed over the past months and in the numerous cases I have examined, painfully few have demonstrated any semblance of due process or a presumption of innocence. Her case is not rare; experiences with violations to enshrined fair trial rights are shared across the board.

There are also many who share Tep Vanny’s story, those who have had their land violently removed from under their feet and those who have joined in the struggle for justice. In 2014, more than half a million people in Cambodia had been affected by land grabs since 2000, with numbers continuing to grow since then. Tep Vanny was once a resident of Boeung Kak Lake, Phnom Penh’s largest lake at the time. In 2007, the municipality of Phnom Penh announced a 99-year lease agreement with Shukaku Inc., a private development firm. The agreement, which appeared to violate multiple Cambodian laws and international obligations, gave the firm jurisdiction to fill in the lake and to develop it as a tourist destination, in exchange for US$79 million. The ensuing increase in flooding and the destruction of homes led to thousands of evictions, with only a small minority of people willingly accepting meagre compensation and many being forcibly removed and given nothing.

This struggle led to the emergence of an incredibly brave group of Boeung Kak Lake land activists who have been taking action against the authorities since. Tep Vanny has become one of the most prominent and outspoken of these activists, along with a number of other women, including 78-year old Nget Khun. I have had the privilege of speaking with Nget Khun on multiple occasions and visited her at Boeung Kak Lake last month to discuss development in the country. Speaking in Khmer, she said, “We do not reject development, but development should provide appropriate compensation and homes and family happiness.” As she was a witness for the defence in today’s appeal, her sentiment rang clearly in my mind. The continued imprisonment of an outspoken mother on spurious charges for defending her illegitimately assaulted community is not development but utter decline and injustice.

A corridor of illusions

To reiterate, Tep Vanny is not alone. She shares with many others her suffered abuses at the hands of the Cambodian criminal justice system and she shares her story with the hundreds of thousands of individuals who have been affected by unjust land grabs and evictions. Today, her usually isolated post-trial march down the courthouse halls was done with arms around her two children, who were finally allowed into the courtroom as the two-and-a-half-hour appeal came to a close. However, to ensure she did not forget where she was going and who she had upset, eight officers surrounded them, escorting her quickly away from her family into the police vehicle to take her far from home.

Challenging Narratives: Development, Duvalier, and interning at ASFC

By: Sarah Cha

“The solutions to Haiti’s suffering are usually characterized by images of engineers digging wells, construction workers building houses, and especially doctors treating the sick. But the physician most associated with Haiti relief, Dr. Paul Farmer […] places much of his hope for the country in the hands of lawyers. “The current justice system’s shortcomings […] underlie almost all of Haiti’s problems”.[1]  

I came across this passage a couple of weeks ago sitting at my desk at Avocats sans frontières Canada (ASFC), knee-deep in research on the Duvalier case. This was a case that had made international headlines in 2011 when it began and once again in 2014 with former dictator Jean-Claude “Baby Doc” Duvalier’s (untimely) death. How about since then? For all intents and purposes, the case has more or less been relegated to the shelf.

I had heard little about the case before starting this internship in Québec City. While aware of Haiti’s turbulent political history, Haiti was a country whose name was much more likely to evoke thoughts of earthquakes, poverty, and cholera than it ever would dictatorship, international crimes, or impunity.

Now, given that the 29-year dictatorial reign of the Duvalier father-son duo ended in the mid-1980s and that the legal case has yet to reach trial (after over five years), maybe this isn’t so surprising.

But, this is the story of a dictator who suddenly came home in 2011 after a comfortable 25-year exile abroad – not to face justice for crimes which continue to affect Haitian society today, but instead to live lavishly among many of his former victims and their families. Personal invitations by then-President Martelly to official ceremonies, loosely-enforced house arrest, and talk of amnesty under the guise of reconciliation all effectively served to trivialize the charges of crimes against humanity and financial corruption he officially faced. As aptly remarked by Reed Brody of Human Rights Watch: “Where is the outrage we [the international community] would have if the brutal leaders of Iraq or Serbia were walking around free? We would not allow this anywhere else.”[2] Indeed, there is nothing quite like having the former dictator – the “living embodiment of ultimate impunity”[3]  – freely walking around a nation’s capital to reveal the rule of rule in a country to be little more than a myth. While Duvalier can no longer be personally prosecuted so as to provide a measure of justice to his regime’s victims, his “consorts” (similarly accused of committing countless atrocities) most certainly can.

So, what makes this case (and Haiti) different? Why were we and do we continue to be so willing to provide Haiti with lots of development aid, while distancing ourselves when it comes to prosecuting a former dictator (and members of his regime) whose very lack of accountability for crimes against humanity arguably laid the foundation for Haiti’s current pattern of impunity?[4] Where is the involvement of the U.S., so readily immersed in Haiti’s political matters for two centuries, but all of a sudden unwilling to implicate itself much beyond the provision of humanitarian relief?[5]

Given there is arguably little serious legal controversy surrounding the Duvalier case, scholar Fran Quigley believes that only political controversy is left to explain the lack of political will—both national and international—behind the case. More specifically, a “Duvalier prosecution would inevitably expose embarrassing details of the long U.S. pattern of supporting the Duvaliers financially and militarily despite awareness of the regime’s brutality and thievery.”[6] From this perspective, the lack of Western involvement in the Duvalier case can be better understood by recalling its past complicity in permitting the very same human rights violations targeted by that case to go on for as long as Duvalier was seen as being key in the fight against communism.[7]

Focusing on development aid (and promoting the narrative that features such aid as being the key solution) conveniently helps avoid delving into such messy controversy. In this light, the association of earthquakes with Haiti really couldn’t be better, for the simple reason that, unlike dictatorships, an earthquake can be seen to be a natural, unpreventable, and, most importantly, fault-free, disaster.

Here’s another related example. Both the Haiti cholera outbreak and earthquake happened in 2010, while the Duvalier case about nearly thirty years of brutal international crimes began a year later – and yet, it is the earthquake with which many associate Haiti the most. Why is that? At least part of the reason may have to do with the fact that both the cholera outbreak and the Duvalier case illustrate a crisis of accountability for past abuses in a way that the earthquake simply doesn’t. As many are now aware following the 2016 admission by the U.N. of its role in the cholera epidemic brought in by its peacekeepers, this outbreak wasn’t merely a humanitarian matter, but a human rights crisis that easily might have been and should have been avoided.

And, so, it becomes less surprising to me that earthquakes and poverty easily make it into the dominant Haitian narrative – the one casting it as “the poorest nation in the Western hemisphere”[8] – while impunity and Western complicity in the Duvalier regime’s human rights violations are easily ignored. This narrative is compelling in its simplicity, as perhaps any good narrative should be. But, it is also one that is undeniably distorted if it is meant to be a representation of the whole reality – key if the “solutions to Haiti’s suffering” (as worded by Dr. Farmer in the quote above) are to be found. No narrative that ignores a country’s geopolitical and social history can possibly be accurate. Ahistorical narratives are ultimately uninformed ones, such that representations of Haiti as a poverty-stricken, earthquake-ridden nation frankly serve to allow the same problems to continue: the same lack of accountability, the continued neo-colonial experimentation.[9] While development relief undoubtedly remains important, the aftermath of both the Duvalier regime and the cholera outbreak significantly underscore “charity’s inadequacy as a stand-in for justice”.[10]

The way I see it, by supporting victims of human rights abuses under Duvalier’s regime in demanding justice and insisting that violations not be left in the past, organizations like ASFC are helping to stitch an important but often-neglected narrative into this dominant narrative for a more complete picture of Haiti. The strategic litigation of emblematic cases like the Duvalier case is just one part of the work ASFC carries out in countries around the world, working closely with domestic lawyers on the ground to develop the human rights jurisprudence in a country. In this way, it helps to build a justice system that can help correct wrongs and to allow for a real, rather than apparent, rule of law.

Listening to the voices of Haitians demanding justice for past human rights violations and an end to the cycle of impunity – having them write the narrative of their own country – would be a good place to start.

(Another reason the passage above struck me? Given the seemingly unrelenting reminder of the limits of law as a tool for social justice – and that it just isn’t all about lawyers – that has been my law school experience (only exaggerating a bit here), seeing positive representations of lawyers and law’s potential in human rights work really just never gets old.)

 

[1] Fran Quigley, “‘Judge Him’: Pursuing Duvalier” from How Human Rights Can Build Haiti: Activists, Lawyers, and the Grassroots Campaign (Nashville: Vanderbilt University Press, 2014) at 41.

[2] Ibid at 41.

[3] Jorge Heine, “Jean-Claude Duvalier Should Be Tried for More than Corruption” The Toronto Star (5 February 2012), online: <https://www.thestar.com/opinion/editorialopinion/2012/02/05/jeanclaude_duvalier_should_be_tried_for_more_than_corruption.html>.

[4] Human Rights Watch, “Thirst for Justice: A Decade of Impunity in Haiti » 8:7(B) (September 1996), online: <https://www.hrw.org/reports/1996/Haiti.htm>.

[5] For example, commenting on Duvalier’s return, the spokesperson for the U.S. Department of State P.J. Crowley remarked that “What happens at this point forward is a matter for the people of Haiti … This is their concern, not ours”. See: <http://www.reuters.com/article/us-haiti-duvalier-usa-idUSTRE70H5WN20110118>.

[6] Quigley, supra note 1 at 39.

[7] “It’s a Shame Jean-Claude Duvalier Died a Free Man, Says Ex-UN Prosecutor” CBC News (4 October 2014), online: <http://www.cbc.ca/news/canada/montreal/it-s-a-shame-jean-claude-duvalier-died-a-free-man-says-ex-un-prosecutor-1.2787931>.

[8] This dubious honour may now belong to Venezuela. See: http://www.caribbeannewsnow.com/headline-Venezuela-takes-over-from-Haiti-as-the-poorest-country-in-the-hemisphere-33573.html

[9] See interview with Gina Athena Ulysse: <http://www.aaihs.org/why-haiti-needs-new-narratives-an-interview-with-gina-athena-ulysse/>.

[10] Fran Quigley, “Haiti’s Earthquake Was Devastating. The Cholera Epidemic Was Worse.” The Nation (16 October 2015), online: <https://www.thenation.com/article/haitis-earthquake-was-devastating-the-cholera-epidemic-was-worse/>.

[11] M.R. O’Connor, “The World’s Favorite Disaster Story: One of the Most Repeated Facts about Haiti is a Lie”, Vice News Canada (13 October 2016), online: <https://news.vice.com/story/one-of-the-most-repeated-facts-about-deforestation-in-haiti-is-a-lie>.

A Kindness Is Never Wasted

Miller AilsaBy Ailsa Miller

I had a feeling I would jibe with Halifax. I’m an extrovert. I get it from my dad. My family jokes that they can’t send either of us to the grocery store without supervision because we will inevitably see someone we know, or maybe meet someone new, and come back one hour later with no milk.

Camping at Polly’s Cove. Carrots, contemplation, and oopsy we ruined an engagement photo shoot.

But here, where the pace of life is slower, I have an outlet for my chattiness. People here are extremely friendly. I have yet to meet someone from Atlantic Canada who defies this stereotype.

To illustrate, the other day while out shopping I spent a solid 15 minutes chatting with a store clerk about her work as a photographer and her travel plans. We struck up this conversation because she mistook me for a client of hers—someone she’d taken wedding photographs for—when I walked in the door. Apparently, I have a Haligonian doppelgänger named… Chastity. I’m sure that as the city grows, things will change. But at least for now, it’s pretty perfect.

What’s more, Nova Scotia is beautiful. I say this even in spite of my bias in favour of mountains. Last week, my friend took me camping for an evening at Polly’s Cove, right on the ocean side. We set up camp in a natural alcove at the base of a massive granite boulder. After a quick—and I mean extremely fast—dip in the ocean, we scrambled up some boulders to watch the sunset over the lighthouse at Peggy’s Cove then returned to our campsite to watch the full moon rise over the ocean. We sat for over an hour leaning against the granite watching and listening to the waves crash against rocks in the moonlight while fireflies flickered in the brush below us. It was enchanting. I don’t want to believe that I only have a week left in this place.

The Bay of Fundy. I was awestruck. The tide was coming in and I STILL winded myself running to the water. Never mind the deceased seal in the background.

We’ll just ignore the fact that this is my first blog post.

But since it is my first one, let me introduce you to the Centre for Law and Democracy (CLD) and what they do. The CLD is a small legal advocacy organisation that was started by Toby Mendel, a mathematician and an international expert in the right to information (RTI). He started the organisation after a long stint as Director of the law program at Article 19, an organisation that has operated in this area for years. He hired his current Senior Legal Advisor, Mike, right out of law school. They worked out of Toby’s kitchen for the first few years.

RTI refers to the right of individuals to access information from their governments and intergovernmental organisations. In other words, he’s an expert in access to information (ATI) law. RTI is often spoken about in terms of “freedom of information” and has been long been recognized as a pillar of democracy. As early as 1946, the UN General Assembly adopted Resolution 59(1) stating:

Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the UN is consecrated.[1]

Toby is pretty adamant, however, about the using the “right” language (pun intended). Article 19 of the International Covenant on Civil and Political Rights guarantees the “right to seek, receive and impart information”[2] as a constituent element of freedom of expression. But “Freedom of information” has only recently evolved beyond an aspiration and into a fully-fledged human right recognised by regional human rights systems,[3] international instruments,[4] and international jurisprudence.[5] In 1990, only 13 countries had ATI laws in place. That number has since increased seven-fold.

The CLD is perhaps most well known for the RTI rating they maintain (http://www.rti-rating.org/) but they also do a significant amount of direct advocacy. Both Toby and Mike are constantly jetting around the world, meeting with government officials and training bureaucrats who apply RTI laws, among other things. While they work primarily in the MENA region, Toby was recently involved in the re-draft of Sweden’s RTI legislation.

Though somewhat counterintuitive, strong democracies are often the most complacent about RTI. The quality of a country’s RTI legislation is not a direct indication of how transparent its government is. But a lack of adequate protections creates a situation ripe for abuse. It’s important that we don’t take the strength of our institutions for granted. Canada is a good example. We were one of the earliest to enact RTI legislation and were somewhat of a leader in this area. But we have failed to our laws up to date and in line with international best practices. Until this summer, the Access to Information Act had been the subject of only minor amendments. And it shows. Our system is notoriously slow and responses are often mostly or partially censored. The situation was so bad that in 2015 Information Commissioner Suzanne Legault referred to the Act as a “shield against transparency” rather than a mechanism for government accountability.[6]

Access to information is not a particularly sexy area of human rights work. It’s essentially a fight for basic institutional frameworks and bureaucratic efficiency. But I can’t overemphasize how important it is. Transparency is the core of democracy and at the heart of transparency is the right of the public to obtain and impart information about its government. Freedom of the Press, a hallmark of a free and democratic society, depends on strong protections for the right to information. The media are the most frequent users of ATI legislation. Secrecy and delays impact newsgathering and their ability to report on matters of public interest and to do so in a timely manner.

I am in admiration of Toby and Mike. They are tireless and dedicated; they devote an immense amount of energy to CLD’s work. And they never stop to question whether or not it’s worth it. This is what human rights work looks like – or at least it’s a version of it. It’s not always glamorous. You’ll write countless grant and project proposals to convince people that your work is worth supporting. You might feel distant, disconnected at times from the issues which are the subject of your work. Maybe, if you’re established in the field, you’ll get “on the ground,” so to speak, and get to meet with government officials and company executives to lobby for change; be invited to Parliamentary committee meetings to comment on incoming legislation; or even be asked to draft legislation. But working “on the ground” might mean months away from your family and friends.

Inevitably, however, you’ll feel sometimes like it’s all for nothing. Other times, you’ll feel like you’re making concessions or playing political games just to try and get things done. It might make you a bit cynical; you have to be a bit of an idealist, or what my partner calls a “grumpy idealist,” to keep going.

I think a lot of advocacy work can be compared to loosening the cap of a very tightly sealed jar. The first person to try to open it will give it everything they’ve got, but nothing will appear to have changed. It might feel just as impossible for the next person. But when someone finally gets the cap off, everyone can claim having loosened it for them! Mostly, though, everyone is just happy it’s open.

Forgive the basic analogy, but it’s one everyone can relate to. Also, I am the least creative. Ask anyone who’s ever seen me try to do art.

My experience at CLD has reaffirmed for me that there are a number of ways to contribute to our world. You don’t have to be a powerful person or big organisation to have a significant impact. What CLD lacks in size, they make up for in spirit and being smart about how and where they employ their resources. They are results oriented. They chose projects based on where they can have the greatest impact. They do a lot of work in the background. And I think there is a lot that is honourable in that.

I wear a pendant around my neck every day that symbolizes Aesop’s fable of the mouse and the lion. For those who are not familiar with the story, one day a lion is sleeping in the forest (…?). A mouse, who is basically a nobody in the animal kingdom, runs across the lion’s nose and wakes him from his slumber. The lion is not happy, so his obvious response is to kill the mouse. “Wait!” the mouse cries, “Spare me and I’ll repay you!” The lion scoffs but does the mouse a solid and lets him live. Later, the lion becomes trapped in a trophy hunter’s net. Unable to free himself, he lets out a loud roar. The mouse, hearing the lion’s roar, comes to his aid. Luckily, he is able to chew the rope loose and set the mighty lion free.

The moral of the story is that a kindness is never wasted, and even if you’re small you can still help another. Like the lion’s decision to spare the mouse’s life, or the energy the first person expended trying to open the jar, the impact of our actions is not always obvious in the short term. But that is no reason to become complacent or not to try. And just because you’re a nobody in the grand scheme of the universe doesn’t mean that your actions won’t be felt. I carry the message of the mouse and the lion with me every day. It’s a reminder to be humble, to serve others, and to remember that your work is never wasted.

[1] UN Resolution 59(1), 14 December 1946 as cited in Toby Mendel, Freedom of Information: A Comparative Legal Survey, (Paris: UNESCO, 2008), at 8.

[2] International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 art 19 (entered into 23 March 1976, accession by Canada 19 May 1976) [ICCPR].

[3] Toby Mendel, Freedom of Information: A Comparative Legal Survey, (Paris: UNESCO, 2008), at 9 (in particular, the Organisation of American States, Council of Europe and the African Union).

[4] Ibid at 14 (in Claude Reyes and Others v. Chile, on 19 September 2006, the Inter-American Court of Human Rights held that “in respect of the facts of the present case, the Court considers that article 13 of the Convention, in guaranteeing expressly the rights to ‘seek’ and ‘receive’ ‘information’, protects the right of every person to request access to the information under the control of the State.” See endnote 57).

[5] Toby Mendel, Freedom of Information: A Comparative Legal Survey, (Paris: UNESCO, 2008), at 17 (the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) was the first legally binding instrument to establish “clear standards on the right to information.”)

[6] “Egregious Delays on Access to Information Must Stop”, The Star (28 June 2015), online: <https://www.thestar.com/opinion/editorials/2015/06/28/egregious-delays-on-access-to-information-requests-must-stop-editorial.html>

The Story and Relevance of Christine de Pizan (1364 – 1430)

By Monika Erzsebet Berenyi

The narratives, movements, texts and happening of the past draw us inextricably into the present, and it would be careless and limiting to conceptualize the parameters and content of the women, peace, and security agenda, so expressed by UN Security Council Resolution 1325, without revisiting the lengthy history of its progenitors. The efforts, achievements and struggles of those who fought for and forged the very ideas upon which the contemporary policy stands, continue to provide us with guidance, inspiration, and reference points – which mirror the path of our past whilst reflecting the present.

In this context, I return to the medieval era – France to be precise, and draw from the story of Christine de Pizan – a writer, historiographer, and activist, whose cunning wisdom, words and legacy – cumulatively, a representative of a watershed moment in women’s history. For those unfamiliar with de Pizan, her writings were instrumental for enabling the concept of equality for women in medieval France, and her works are considered to be among the earliest feminist writings, inclusive of novels, biography, autobiography, along with political, literary and social commentary. Here it is also important to highlight that the work of de Pizan should also be appreciated within a spectrum of other great medieval women writers, activists, warriors, and leaders – whose courage and work continues to anchor many a discussion regarding women’s rights and equality. I recount the words and actions of Christine de Pizan, thus, in company with the likes of Marie de France, Eleanor of Aquitaine, Margery Kemp, Trota of Salerno, Hildegarde of Bingen, the women troubadours, and many others. The imperative importance of and appreciation for the stories, actions and creativity of medieval women are a source of truth and inspiration to me, – which have also come to illuminate my “contemporary” workspace at Our Secure Future (One Earth Future Foundation). Encouraged to transcend space and time, from the happenings and context of medieval France to the present foothills of Boulder County, I count myself fortunate to be surrounded by individuals, who bear a consciousness and appreciation for the past. For, as history continues to show, it is our predecessors who set the tone for bringing life, energy and movement into the formation and dissemination of new policies. Thus, at Our Secure Future, we remember the story of Christine de Pizan while we face and grapple with the continued challenges of achieving equality and peacebuilding for a better future.

Christine de Pizan was born in Venice and was raised at court in Paris. In 1380, the young Christine de Pizan married Etienne du Castel – a nobleman from Picardy, who supported her passion for education, writing and advocacy. Widowed during her early 20s, she chose to continue her passion and talent for writing, supporting herself and three children, on the fruits of her labour. In sum, she may be understood, or viewed, as one of the first women in history, to have lived solely from creative endeavour.

I cite here two works, which allow me to transcend the past with the present. In The Book of the City of Ladies (Le Livre de la Cité des Dames), completed in 1405, the social importance and imperative of women’s equality in the context of relationships and partnerships is exemplified both anecdotally and metaphorically. A deeper reading of this work, or perhaps, reading between the lines, brings the notion of human security to mind, such that only through equality, can networks of sustainable and lasting peace, for society, be achieved and fortified. In this respect, I am encouraged to consider the relatively of the roots of de Pizan’s arguments, which highlight women’s independence while advocating for uniform opportunities and equal rights through a subtle and powerful approach. With clarity of vision for a better present and future, de Pizan showed how equal treatment and fairness, in everyday contexts, can improve the ebb and flow of life of equality of all. In this respect, de Pizan used the power of the written word at the intersection of the quotidian and Christian morality, coupled with a stylized ability to deploy rhetorical strategy, to illuminate and challenge societal behaviour and sources of women’s oppression. In sum, her ability to deliver a message based in gender equality, so many centuries ago, was both insightful and intuitive – and is one which echoes her visionary ability to delineate the critical role women play in the greater process of conflict prevention, conflict resolution and peacebuilding.

I also cite the work The Book of Deeds of Arms and of Chivalry (Le Livre des faits d’armes et de chevalerie), completed by 1410. This book may be conceptualized as a strategic resource for its time, as it provided a vernacular study of military strategy and warfare, coupled with a discussion on the meaning of “just” war. The work is particularly important for the perspective it provides, suggesting arguments for why and how women could be equally knowledgeable and capable as men, to the discussion of war and conflict prevention, and to the facilitation of counsel for that matter.

To conclude, Christine de Pizan conveyed her opinions with subtlety, through the medium of the written word, supported by the framework of the illuminated manuscript. In the twenty-first century, deconstructing the lessons de Pizan chose to express, the issues she addressed, and the mechanism within which she deployed her message, affirm the breadth and depth of the peace, which informed her approach to penetrating the constraints and rigidity of patriarchal society. When considering the power of documentary media, her work and integrity of character, were groundbreaking for their time, as they sounded the alarm – by way of text, image, and action with respect to the hazards, which inequality poses to society.

I am humbled by having been able to learn about the story of Christine de Pizan, by reconnecting the meaning, integrity, and relativity of her story to the work, which informs my days at Our Secure Future – affirming that justice remains a continuous work in progress.

Image from Le Livre de la Cité des dames (Christine de Pizan reading in her study). Copyright of the Bibliothèque de Genève

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