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Research and Academia: The Inconspicuous Cog in the Human Rights Wheel

2016 De Haas Emilie

By Emilie de Haas 

Hello again! I have been home in Canada for a few weeks now, and it has given me time to reflect on my experience in Peru this summer. I’ve recounted my story to several people over the past month, from family members to colleagues at school, emphasizing different details depending on the audience. Nevertheless, I always ended my tale with the same bottom line: my internship at the Institute for Democracy and Human Rights in Lima, Peru was a unique learning experience on many more fronts than I had envisioned, and allowed me to check off most of my anticipated goals on my pre-departure checklist.

 

Goal 1: Learn about the field of Human Rights

My first goal may have seemed like an obvious one. After all, the name of the internship program read human rights in big black letters. But prior to my departure, my conception of people working in the field of human rights was rather narrow. I saw human rights defenders as professionals and volunteers who advocated for the rights and needs of the people in search of a voice and recognition by working one on one or closely with victims, raising funds for awareness campaigns, joining forces in public demonstrations and lobbying, and the list goes on. Without a doubt, this facet of the fight for human rights is very real and consolidated efforts do yield lasting changes. However, in the weeks before I left, I couldn’t help but wonder how I was going to accomplish something worthwhile by doing research at a desk every day when so much needed to be done out there, in the field, close to the people who needed help the most.

I couldn’t have been more wrong.

A few weeks into my internship, I started to realize that there was another angle to human rights, of which I had been unaware but that was nevertheless an integral contributor to the advancement of human rights. Up to then, the plight of human rights violations had mostly been described to me as a struggle between civilians and the oppressing State.  However, by the end of my time in Lima, I concluded that academia played an indispensable bridging role between victims, advocates and decision makers. Academia was the cog I had overlooked in the human rights wheel.

A few days before I left, I went to lunch with my supervisor and I asked her about her take on academia’s contributions to the field. Having dedicated her entire professional career to research, teaching and advising different branches of government on human rights issues (among many other things), I knew I could rely on her answer. She put it very simply: academia offered a safe, neutral and legitimate platform where human rights victims and defenders could dialogue directly or indirectly with policy makers and political leaders. In other words, academia was responsible for collecting impartial data on sight and transforming it into influential information taken into account by decision makers. Not to mention the ongoing debates between academics themselves, equally important to the exchange of ideas and dialogues on the topic. Lastly, she distinguished academia from the media and non-governmental organizations by emphasizing the importance of neutrality in the field.

That made sense to me.

After that lunch, I reflected on the work I had done up to that point and looked back on my previously narrow interpretation of the fight for human rights. I did not meet any victims of human rights violations this summer, nor did I go to court or organize awareness campaigns. But every morning when I arrived at the Institute and walked down the main hallway to my little office, I glanced at a row of famous wall photographs taken of innocent victims who had testified during Peru’s Truth and Reconciliation Commission over a decade ago. Each photograph was equally moving and tacitly provocative. The people in them may not have been physically present, but their images were a positive reminder of the purpose and importance of our work, and the overall contributions of academia to the field of human rights.

 

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Archived photographs taken during the country’s period of conflict. These photographs are now part of a national exhibit entitled “Yuyanapaq: Para Recordar” (Yuyanapaq: To Remember).

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The exhibit is comprised of over 1,600 photographs in an effort to reconstruct much of the lost visual memory of the period of conflict.

 

Goal 2: Get a feel for the culture and travel off the beaten path

I’d like to think that I successfully reached this goal, but that would be partially untrue. Peru’s culture is so diverse that it would take months, if not longer, to experience its richness to the fullest.  The country is divided into twenty-four departments (similar to provinces or states) and is home to over fifty indigenous communities.[i] A tour guide once told me that Peru’s gastronomy is comprised of over a thousand varieties of potatoes, and that each region has a distinct way of integrating them into their local cuisine. Musicians in the Amazon prefer percussions, while Andean bands favour the traditional pan flute. All in all, it’s quite the picture.

Nevertheless, I did try to experience as many local customs and traditions as I could during my time in Peru. My most memorable experience was near the end of my internship, when I traveled to Lake Titicaca in the southeast region of the country. At nearly 4,000 meters in altitude, Titicaca is the highest navigable lake in the world and part of it belongs to the neighbouring country of Bolivia. It is home to the Uros, a native people, whose origins can be traced back to the Aymara civilization, existing around the same time as the Inca Empire and still well alive today. The Uros live in a community of floating reed islands they build themselves on Lake Titicaca. Each island can house up to three to four families living in tiny reed huts. Their lifestyle is still very traditional, despite a recent boom in tourism where visitors to the lake can briefly stop on one of the islands and learn about the community on site and buy local crafts.

I was lucky to find a local Uros family who offered homestays on their island to visiting foreigners. Within the twenty-four hours I spent with them, I went fishing with the father and his two sons, learned how to make jewellery out of straw, tasted quinoa soup for dinner and had quinoa bread for breakfast, had my hair braided into two long strands with colourful pompoms at the ends (the traditional fashion for unmarried girls in their culture), and had my breath taken away at the beauty of the lake beyond the islands.

 

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Majestic view of Lake Titicaca

 

More importantly though, I saw how a little appreciation and interest for my host family’s customs and way of life could go a long way. Speaking for her community, my host mother mentioned that the Uros felt isolated and forgotten by their political far away in Lima, and that her people had learned to be autonomous and self-sufficient as a way to restore their dignity and keep their traditions alive. She said it made her community very happy to welcome foreigners into their every day lives. Yes, visitors did generate a new, modest source of income for these families. But beyond monetary concerns, the well-intended interest of outsiders is what helped drive the feeling of disconnection away and restore a sense of worth into the community. The Uros people were by no means wealthy or modern according to their country’s standards, nor were they very concerned about altering their way of life to keep up with the trends. As a matter of fact, my host mother added that children of the Uros sometimes chose alternative lifestyles by moving and finding work on the mainland, but most of them chose to get married and continue living in the reed islands community. It struck me that for some minority communities, beyond material gains and influence, recognition, appreciation and respect where the foundational building blocks on which an entire people could live and push forward.  After all, the guarantee of human dignity is the very first article in the Universal Declaration on Human Rights for a reason.[ii]

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My host family on Islas de los Uros, Lake Titicaca

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Getting my hair braided by my host sisters

 

Goals 3, 4 and 5: Narrow in on my interests, create lasting connections and bring home a custom or two

Before this internship, I had an incomplete idea of the many avenues to explore within the field. From post-conflict resolution to disability rights, indigenous rights to business and human rights, the work can seem endless. At this point, I still have many classes to take and fields of law to discover, but I did narrow in on the topic of corporate accountability as particularly appealing to me, should I decide to pursue future studies in the field or try to combine it with another branch of the profession, such as international law.

The connections I created exceeded my highest hopes. It turns out that law students in Peru have very similar aspirations, experiences and characters as well as a very fun side to them that make them so easy to relate to and have fun with! As for my superiors, I was lucky to work for such accomplished, inspiring people. From them, I learned that it was possible to have very successful careers in academia and in practice, while still maintaining a healthy work-life balance.

 

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“Somos la PUCP” means “We are the Pontificia Universidad Católica del Perú”, the university under which the Institute operates. By the end of my internship, I really felt like I was part of the team!

 

Finally, Peru is a country from which many lessons can be learned. The country has gone through turbulent episodes in history, and parts of it are a bit chaotic at times. Nevertheless, they are a very resilient nation. This was depicted in the relentless effort I witnessed from my colleagues at the Institute as well as in the every day life I experienced outside of work. Despite the various obstacles that researchers in the field of human rights have to overcome in Peru, they still put their heads down and do it, simply because it has to be done. Their determination is remarkable, and I’d like to think that my lasting impression of this observation is what I am taking away from the experience and will hopefully be able to apply down the road.

 


Stop planning, Start trusting, but keep asking

As human rights interns, we might go to a certain country with the objective of empowering a community, and most importantly, with a preconceived idea of what this entails. These communities are, often times, the victims of extreme violence. Working at Human Rights Watch, in an environment so remote from the victims I wanted to work for, I started asking:

How much do we know of the needs of the victims?

Do the victims really want accountability for the perpetrators? Would a court judgement really change their lives, especially if it comes from some far away court they have never heard of, in the Western world?

I sometimes found myself thinking that victims might not want accountability. This looked more like what Western countries want. It looked like an imposed mentality.

My desk at HRW

Mon stage à New York a été très enrichissant professionnellement. Les avocat-e-s et la coordonnatrice du Programme de Justice Internationale sont des perles. Les discussions sont enrichissantes, les stratégies ingénieuses, le travail exigent, le soutien sincère, et les commentaires des stagiaires toujours bienvenus. Travailler au sein d’une organisation aussi large que Human Rights Watch m’a aussi permis d’explorer nombreux de mes intérêts par la rencontre avec des professionnel-le-s travaillant pour d’autres divisions : discussions sur le droit fiscal international, la corruption en Afrique et ailleurs, la règle de droit au Moyen-Orient et son application en temps de guerre, double-standards et stratégies employées avec l’ONU; et plus encore.

The Brooklyn Bridge Park

The Brooklyn Bridge Park

 

 

Vivre à New York pendant trois mois a été particulièrement enrichissant personnellement. Le chaos humain qui pèse sur la ville a lentement généré un repli sur moi-même. Ceci m’a permis de faire des découvertes où ma belle Montréal n’aurait su me guider.

 

 

 

 

Nour Saadi

Lessons learned?

Today, I am going back to Montreal with this in mind.

 

Humanity is doomed.

Beauty and happiness lies in the little things.

How can you work, with no hope of seeing change happening?

Without, in your eyes, any light sparkling?

I, dear, cannot work without a purpose.

I, dear, will not work without a purpose.

 

I will keep asking,

Without forgetting,

To stop planning, and start trusting.

 

New York City, you have been good

Oh how many times have you changed my mood

How many times have you hit my shoulder?

Walking too fast, to not miss the light?

If only you knew, if only I knew,

That time is eternal, it will not disappear,

Only you will

 

So walk, run! If you will

But make sure to stop and

Look around

Ask the sky and

Ask your heart

If the direction you’re running towards

If that light, burning your jaded eyes

Without you blinking

Oh how can you?

You need to cross, you need to run,

Hit a few shoulders under the sun,

 

But make sure to stop and

Look around

Ask the sky and

Ask your heart

If that light across the street

The one attracting your frantic feet

The light burning inside it can meet

Or is it,

stealing it from you.

 

Uptown

Le Niger en route vers une meilleure compréhension des droits humains !

Mon stage à peine terminé, c’est la tête pleine de réflexions et de questionnements que j’ai décidé de partir « sur un coup de tête » au Niger, le pays natal de mon père. Tel qu’expliqué dans mon post précédent, j’ai eu la chance de rencontrer des défenseurs des droits humains de partout dans le monde à travers mon stage à Equitas. Je dois cependant admettre qu’un participant en particulier a retenu mon attention, peut-être est-ce parce que c’est le seul participant du Niger qui a pu obtenir un Visa à temps ? Peut-être aussi est-ce parce qu’il porte le même prénom que mon père  ? Quoi qu’il en soit, j’ai gardé le contact avec Amadou et, grâce à lui, j’ai pu poursuivre les apprentissages de mon stage lors de ma visite au Niger.
     En effet, j’ai réalisé à travers mon expérience que je ne m’étais jamais vraiment attardée à connaitre les enjeux réels relatifs aux droits humains qui affectent mon pays. Ayant grandi au Canada et visité le Niger à quelques reprises pour voir ma famille, je n’avais jamais poussé mes réflexions plus loin. C’est donc avec un regard neuf que j’ai entamé cette aventure.
      Mon nouvel ami rencontré à Equitas, Amadou (à droite sur la photo), m’a invité à visiter la Commission Nationale des Droits Humains (CNDH) où j’ai reçu un accueil chaleureux et où j’ai eu l’opportunité d’avoir des discussions très intéressantes avec certains des commissaires, notamment sur les missions effectuées dans les régions du pays prises d’assaut par l’organisation Boko Haram.
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La partie la plus intéressante du voyage a été d’avoir la chance de participer à un atelier de dialogue entre les Organisations de la société civile (OSC) et le gouvernement du Niger organisé dans le cadre du suivi de la mise en œuvre des recommandations du 2e cycle de l’Examen Périodique Universel (EPU-NIGER 2016). Cet atelier était organisé par la Commission Nationale des Droits humains (CNDH), le ministère de la justice Garde des Sceaux, l’UPR-Info de Genève et la Coalition des Organisations de la Société Civile pour L’EPU (COSC-EPU) avec l’appui financier de l’Union européenne.
     Ainsi, je me suis trouvée être l’une des 7 femmes assises autour d’une grande tablée de près d’une centaine d’individus, de membres du gouvernement, de journalistes et de défenseurs des droits humains. Je me suis sentie particulièrement privilégiée d’avoir cet accès immédiat aux discours et aux discussions entourant les 167 recommandations sur 168 acceptées par le Niger. Les recommandations sont principalement concentrées autour des droits des femmes, des enfants, de la pauvreté ainsi que de la protection des défenseurs des droits humains. Dans mon post précédent, j’avais écrit : « La leçon que je retiens réellement de cette semaine est que l’éducation aux droits humains ne se produit pas à travers des méthodes conventionnelles et des cours formels, mais à travers diverses interactions sociales qui permettent de remettre en question nos perceptions, conceptions et méthodes. » Or, cette leçon m’est revenue à l’esprit lors de la cérémonie d’ouverture, un des discours a énoncé : « Le gouvernement du Niger a fait le choix de l’approche participative pour mettre en œuvre les recommandations de l’EPU et l’atelier qui commence aujourd’hui représente ce choix par les dialogues qui s’en suivront ». J’ai tout de suite su que j’étais à ma place !
     Mes réflexions personnelles ainsi que les apprentissages que j’ai faits à Equitas se sont entrecoupés lorsque j’étais en discussion avec quelques personnes sur la question du mariage forcé des jeunes filles et que toute l’argumentation (que je trouvais irrationnelle) d’une des parties à la discussion reposait sur des phrases comme « cela va contre la culture et la tradition nigérienne ». Lorsque j’ai commencé mon stage à Equitas, j’avais dû rédiger un rapport compilant les enjeux reliés aux droits humains les plus souvent rapportés par les participants, et ce rapport était divisé par régions du monde. Ainsi, je me souviens avoir été frappée par le fait que les barrières ou obstacles à l’avancement des droits humains les plus souvent relatés dans la région de l’Afrique de l’Ouest étaient la tradition, la culture ainsi que de la religion.
     Je ne peux pas prétendre que l’atelier ait fait de moi une experte en ce qui concerne les enjeux relatifs aux droits humains qui touchent mon pays, cependant je crois que c’était le meilleur moyen pour moi d’alimenter mes réflexions. Il est certain que j’étais bouleversée par les arguments et les positions de certaines personnes, mais je ne peux laisser ma frustration prendre le dessus quand je sais pertinemment que des enjeux sous-jacents sont à la source de ces prises de position. Ma famille a toujours cru que l’éducation est à la source de l’avancement, et je crois fermement que si ton éducation te dicte dès la petite enfance que « la religion, la tradition ou la culture nigérienne veut que… » il est difficile de se sortir de ces préconceptions. Le travail pour améliorer la condition des droits humains au Niger sera énorme et devra s’échelonner sur plusieurs générations, mais je suis convaincue que des petits changements systémiques surtout au niveau du système d’éducation peuvent faire une énorme différence. Dans tous les cas, je considère déjà que l’approche participative nouvellement adoptée par le gouvernement pour attaquer les enjeux est un grand avancement qui devrait paver la voie vers des améliorations considérables à la culture des droits humains de mon pays et, j’espère un jour voir s’épanouir le Niger magnifique que je connais.
En la mémoire de feu Hassane Saliah (1930- 01/08/2016)

So what exactly does a Human Rights Commission do anyway?

Theo Lyons

Back in June, when I was about three weeks into my internship at the Yukon Human Rights Commission, my brother and parents came up to visit me for a few days. As we were driving South toward British Columbia in a rental car there was a momentary lull in our conversation and my dad asked me, “So what exactly is it that the Yukon Human Rights Commission does?”

This question caught me off guard. I think I had assumed that the answer was on some level self-evident — it advances human rights in the Yukon, provides a forum for contesting instances of discrimination, and so on. In my attempt to give a thorough and accurate answer, though, I soon found myself launching into a description of the minutia of Canadian human rights law. I talked about the evolution of our understanding of discrimination, and the legal tests that we use to identify it. I outlined the duty to accommodate to the point of undue hardship, and several more legal tests relating to that. Finally, I began to ramble about how this might theoretically all be used to challenge the government for failing to provide adequate care to mentally ill prisoners.

When I finally stopped talking, the car once again fell silent. I suspect I lost my audience (or at least their interest) somewhere near the beginning.

A couple of weeks ago, I found myself confronted once again with the challenge of explaining human rights work in a simple yet accurate way. I was asked to make an hour-long presentation about human rights in the Yukon for a group of students who were participating in a summer program aimed at equipping persons with disabilities with general employability skills. As I prepared for the presentation, my co-workers at the Commission suggested that I should try to explain the Yukon Human Rights Act and the role of the Human Rights Commission in non-technical terms, with an emphasis on disability rights as they relate to employment.

This time around, I decided to start out by talking about the principles that I think underlie the Yukon Human Rights Act. At its most fundamental level, I think that Canada’s various federal, provincial, and territorial human rights legislation is about fairness and equality. It is unfair that a woman should lose her job simply because she has become pregnant. It is unfair that a person should be treated unfavourably on account of their race. And it is also unfair that a person should be denied a job opportunity because they have a disability that an employer could accommodate without experiencing undue hardship.

These truths are about fairness, and they are also about equality. From this perspective, accommodating a person’s difference is not about giving that person special privileges, but rather, it’s about creating a level playing field. I think that this goal of creating a level playing field, and of enabling all people to participate equally is one of the most fundamental, and most powerful values of our society. Through legislation like the Yukon Human Rights Act and institutions such as the Human Rights Commission we acknowledge that when people are excluded, harassed, or otherwise wrongfully disadvantaged it’s not just them that lose out. Rather, their entire community suffers the loss of what they could otherwise contribute.

Because we do not always succeed in living up to these values, we need open and accessible public forums like the Yukon Human Rights Commission which remind and encourage us to keep working towards realizing these shared goals in meaningful ways.

I also found time to touch upon more practical things, like the complaint process, and our phone number. In the end, I hope that my presentation left the audience more aware of their rights, and more confident in the ability of our institutions to come to their aid should they ever need that kind of support.

On the whole, I think I did a did a better job of conveying what the Human Rights Commission is all about this time around.

 

 

…and now for some totally unrelated photos of the author loving the Yukon:

Author gazing toward the St. Elias Range (Canada's highest mountains) from the top of King's Throne, in Kluane National Park

Author gazing toward the St. Elias Range (Canada’s highest mountains) from the top of King’s Throne, in Kluane National Park

Scrambling back down to the car, which we'd parked on the far side of the lake. Author went for a very very cold, not-very-long swim in the lake!

Scrambling back down to the car, which we’d parked on the far side of the lake. Author went for a very very cold, not-very-long swim in the lake!

Watching the Dawson City League of Lady Wrestlers "North End Knockout" by the Yukon River. It was still sunny at 11:30 PM!

Watching the Dawson City League of Lady Wrestlers “North End Knockout” by the Yukon River. It was still sunny at 11:30 PM!

View of the North Klondike river running through Tombstone Territorial Park on the Dempster Highway north of Dawson City

View of the North Klondike river running through Tombstone Territorial Park on the amazing Dempster Highway, somewhere North of Dawson City

 

A Few Words on the Tekaia’torehthà:ke Kaianerenhsera (Akwesasne Court Law) to Commemorate the “Birthday” of the Akwesasne Mohawk Court

2016 Philpott AmeliaBy Amelia Philpott

Over the past months of my placement with the Mohawk Council of Akwesasne Justice Department, there have been some exciting legislative developments in the community. In June a referendum was held on the Akwesasne Oién:kwa Kaianerénhsera (Akwesasne Tobacco Law) regulating the manufacturing and distribution of tobacco on the territory,[1]  and this month the community’s Tekaiatorehthà:ke Kaianerenhsera (Akwesasne Court Law) came into force.

The cover page of the Akwesasne Court Law. This is a picture of the crumpled paper copy I carried around with me all summer. A full (less crumpled) version is available on the Akwesasne Law Registry (link at the bottom of the blog post).

The cover page of the Akwesasne Court Law. This is a picture of the crumpled paper copy I carried around with me all summer. A full (less crumpled) version is available on the Akwesasne Law Registry (link at the bottom of the blog post).

I have decided to focus this blog post to the latter. The Akwesasne Court Law coming into force is an event worthy of celebration not only for the Mohawks of Akwesasne, but also for First Nations across Canada, because it marks  the “birthday”[2] of the first ever independent court established by a First Nation.

Background

The Mohawks of Akwesasne have been administering their own justice since well before Jacques Cartier first arrived on Mohawk territory in 1535.[3] As members of the Haudenosaunee Confederacy, The Mohawks were united with the Cayuga, Onondaga, Oneida, Seneca, and later the Tuscarora, under the Kaianerekowa (Great Law of Peace); bringing together the previously warring nations. This law enforced the matrilineal clan system across the Confederacy, based on hereditary leadership.[4]

With Canadian Confederation, however, came a number of obstacles preventing the community from being able to effectively exercise their traditional Haudenosaunee government. Section 91(24) of the Constitution Act 1867 assigning “Indians and Lands Reserved for Indians”[5] to federal jurisdiction was used to justify a number of assimilative policies which had, and continue to have, severe repercussions for all First Nation communities, including Akwesasne.

In Akwesasne, elections were imposed by the Canadian government in 1899 in an attempt to disempower the traditional Mohawk council of chiefs.[6] This imposition, along with the larger assimilative scheme of the Canadian government, ultimately prevented the community from being able to administer their own traditional justice effectively.

Perhaps the greatest obstacle Akwesasne faced in this regard was the drawing of a Canadian-American international border squarely through their territory, and the further quartering of their land into the Canadian provinces of Ontario and Quebec. These borders alone have made it virtually impossible for the community to administer one cohesive justice system, since the Mohawk Territory of Akwesasne, and the larger Haudenesaunee Confederacy, now have to contend with multiple imposed colonial jurisdictions.

The Akwesasne Mohawk Court

Despite efforts to dispossess the Mohawks of their traditional institutions, the community has never stopped asserting their right to govern themselves and their traditional territory.[7] The Akwesasne Mohawk Court is an example of this.

The court itself, established by the Mohawk Council of Akwesasne (MCA), has existed since the 1970s, but its character has evolved substantially since then. For the first twenty or so years of existence, the court operated under the Indian Act, with Minster of Indian Affairs approved justices of the peace adjudicating by-laws passed under section 81 of the Act.[8] The court was therefore under tight control of the Canadian government.[9]

Over the past few decades, a number of interrelated factors made it easier for the community to effectively assert their right to make their own decisions about their judicial institutions.

Firstly, the Constitution Act 1982 entrenched this right by  “recognizing and affirming existing Aboriginal […] rights”[10] under section 35(1) of the Act. This effectively gave the assertion of this right a Constitutional backbone. Furthermore, towards the end of the 1980s the Minister of Indian affairs began rejecting a greater number of by-laws proposed by the MCA. The band council ratified some of the rejected by-laws anyway, marking the beginning of the community passing legislation themselves under their inherent right, as opposed to under the authority of the Indian Act.[11]

An important factor leading to the establishment of an independent court at Akwesasne was a report produced by Bruno Steinke in 1995 (the Steinke Report). The findings of the report indicated that overwhelmingly Mohawks of Akwesasne were in favor of establishing their own independent Mohawk court on their territory. The survey indicated that the community wanted a court to be structured like a Canadian court, with the incorporation of traditional restorative Haudenosaunee principles, presided over by justices from their own community.[12]

A reading of the Akwesasne Court Law clearly demonstrates that the Akwesasne Mohawk Court as it stands today has been modelled directly from the Steinke Report recommendations. The law represents a significant shift from the Court’s earlier days of operation in one very important way:  its source of authority is the community itself, and their inherent right to self-govern, as opposed to the Canadian government via the Indian Act.[13]

The Akwesasne Court Law

This Akwesasne Tekaiarorehthà:ke Kaianerénhsera (Akwesasne Court Law) reflects the values of the Mohawks of Akwesasne and the principles of Sken:en (peace), Kasatstensera (strength) and Kanikonri:io (a good mind), respect, fairness as well as natural justice.[14]

The coming into force of the Akwesasne Court Law on August 12 laid a framework enabling the Mohawk Council of Akwesasne to adjudicate their community laws. The law sets out the principles, powers and authorities of the Akwesasne Mohawk Court and governs the conduct of the institution’s justices. It also outlines the Court’s jurisdiction, which spans across a broad range of civil matters, including contract disputes, matrimonial property, and the regulation of untaxed tobacco products on the territory.[15]

Aside from the symbolic significance of Akwesasne Court Law for Akwesasronon[16] in terms of what it means for the MCA’s assertion of self-government, the law also places the community at the forefront of indigenous self determination efforts in Canada by laying the foundation for the first independent court established by a First Nation.[17]

The mix of legal traditions informing the Court Law is also unique: In accordance with the expressed will of the community,[18] the court is set up to be adversarial; operating in accordance with fundamental principles of Canadian justice.[19] What sets it apart from Canadian courts is the incorporation of traditional restorative Mohawk principles into the institution’s judicial framework.

The distinct blend of traditions in the Akwesasne Court Law is particularly present in its sections pertaining to remedies. While some are in line with what one might expect a provincial or Federal judge to order, others are unique to the Mohawk Court. Illustrating the former, section 9.3  states the payment of fines or ordering injunctions are both within the scope of remedies a Mohawk judge might order.[20] On the other hand, the requirement under section  3.4 that a judge consider “the talents of the [offending party]”;[21] and use these for the benefit of the community to remedy their infraction; is a consideration one would certainly not encounter in a Canadian Court.

The inclusion of Mohawk principles in the Akwesasne Court Law  is important for two reasons: Firstly, it is an affirmation of the community’s cultural identity. Secondly, by employing restorative mechanisms focussed on healing for offenders, the law illustrates an approach to justice which promotes the long term wellbeing of the community.

On a practical level, the Akwesasne Court Law guarantees members of the First Nation that their cases will be heard by a Mohawk Judge from their own community, and that they can choose to have court proceedings conducted in either English or Mohawk.[22] The law will also lessen congestion in nearby provincial courts, as it gives Mohawks of Akwesasne the possibility of referring to their own court to adjudicate community matters.

Concluding Thoughts

At the Akwesasne Justice Department I have been fortunate to work with some of the amazing trail-blazing minds behind the Akwesasne Court Law. I feel being an intern here during the first “birthday” of the Akwesasne Mohawk Court essentially gives me a backstage pass to history-in-the-making. Expressing how much this has meant to me is difficult, but suffice to say I consider myself to be one incredibly lucky law student (and human being).

You can find a digital copy of the Akwesasne Court Law, along with other community legislation on the Kaiahnehronsehra iehiontakwa (Akwesasne Law Registry):

http://www.akwesasne.ca/lawregistry

 


[1] Akwesasne Oién:kwa Kaianerénhsera (Akwesasne Tobacco Law), MCR 2016-2017-#075, Purpose para 2.

[2] Credit to Gilbert Terrance, Court Administrator, who called August 12th “the Birthday of the [Akwesasne Mohawk] Court.”

[3]  Frey, S.L., The Mohawks : An Inquiry Into their Origin, Migrations and Influence Upon the White Settlers, (Utica: Oneida Historical Society, 1898) at p 6.

[4] Joyce Tekahnawiiaks King, “The Value of Water and the Meaning of Water for the Native Americans Known as the Haudenesaunee” (2007) 16:3 Cornell Journal of Law and Public Policy 1.

[5] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24) , reprinted in RSC 1985, Appendix II, No. 5.

[6] Rarihokwats, How democracy came to St. Regis & the thunderwater movement, (Rooseveltown, NY: Akwesasne Notes, 1974) at p 8.

[7] Ibid at p 3.

[8] Indian Act, RSC 1985 c I-5.

[9] Anna Gilmer in conjunction with the Akwesasne Justice Department, History of the Akwesasne Mohawk Court (2015) at p 6 [unpublished, archived at the Mohawk Council of Akwesasne Justice Department].

[10] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[11] Ibid note 6 at pp 8-9..

[12]   Bruno Steinke, “Justice Needs in a Mohawk Community: Akwesasne” August 1995  at pp 65-70.

[13]  Akwesasne Tekaia’torehthà:ke Kaianerénhsera (Akwesasne Court Law), MCR 332 2016, Preamble para. 10.

[14] Ibid at Purpose para 2.

[15] Ibid at ss 5.1-5.4

[16] “Akwesasronon” is the Mohawk term for community members of Akwesasne.

[17] While other First Nations have established courts (see the Nisga’a Treaty), the Akwesasne Mohawk Court is the first institution of its kind established under the inherent Aboriginal right to self-government, recognized and affirmed by section 35 of the Constitution Act, 1982.

[18] Ibid note 9.

[19] For example, section 7 of the law helps to ensure the principle of judicial independence is upheld by holding the Akwesasne ratiianerenhserakweniénhstha (justices) and teshatiia’toréhtha (appeal justices) accountable to the Akwesasne Review Commission for their conduct. The Akwesasne Review Commission can also be called upon to rule on an alleged conflicts of interest of justices or appeal justices.

[20] Ibid note 13.

[21]  Ibid.

[22] Ibid at s 4.2.

 

 

Sad Goodbyes

2016 Awj NigahPar Nigah Awj

Alors déjà je suis à ma dernière semaine de stage avec DRI au Mexique. Ces trois mois ont passé comme une flèche, mais j’ai eu la chance de me bâtir une vie pas mal complète ici. Ah que c’est dure les adieux!

Depuis mon arrivée, je me suis bâti des relations familiales, amicales, spirituelles, d’amour, ainsi que de travail. Les gens autour de moi m’ont constamment choyé avec tant d’amour et d’encouragements, je me sens bénie. De plus, le travail au sein de l’organisme m’a appris énormément et m’a fait grandir. C’est un rêve devenu réalité pour 3 mois, j’ai appris que me battre pour les droits humains pour apporter les changements nécessaire, c’est ce qui me motive dans la vie!

Durant ces trois mois avec DRI, j’ai visité 2 institutions psychiatriques, une pour femmes (CAIS), une pour enfants

Children with disabilities are kept lying down for hours without any activity.

We found cage-like bars around beds in this institution where they lock children.

;  interviewé une victime d’une institution abusive dans sa maison ; participé aux réunions du Colectivo Chuhcan, seul organisation au Mexique constitué de personnes handicapées qui offrent des services de support et guides; participé à une formation d’analyse de sécurité de Peace Brigades International et Coperativa Tierra Commun ; émis des commentaires et suggestions sur la réalisation d’un protocole gouvernemental au sein de la fiscalité national ;  répondu à des évaluations de pays de la commission des droits humains des Nations Unis ; élaboré des analyses légales sur les droits reproductives des femmes handicapées au Mexique pour la Commission Interaméricaine des droits humain ; écris des articles sur l’institualization au Guatemala ; émis des commentaires sur les recommandations de la comité CEDAW des Nations Unis ; et dans mes temps libres escaladé des montagnes, nagé dans l’océan ; visité des musées, vu des villages historiques, dégusté milles saveurs du Mexique et appris à danser.

 

Indeed it is a beautiful life!

My involvement with DRI made me realise that there is a lot of work and change needed to give a life of dignity to people with disabilities. I am impressed by the strategy and impact of DRI in the world. Small offices, but amazing work! DRI Mexico take cares of Mexico and Guatemala’s cases; two people taking care of two nation’s advocacy for disability rights, that is immense!

Across the world, persons with disabilities are abandoned in large segregated institutions, where they often face abuse and torture. DRI report, Abandoned and Disappeared, documented horrific and pervasive abuse and generalized segregation of people with disabilities in institutions across Mexico. Even with good conditions institutions are inherently dangerous places for people with disabilities, where they are segregated for life. Investigators discovered that children with disabilities disappear and are trafficked; within institutions, people are left in permanent restraints which constitute torture; the use of lobotomies and psychosurgeries persist; abandoned people languish in institutions for their lifetimes; there is discrimination against children with disabilities in outplacement and adoption; there is an extreme lack of treatment and rehabilitation; living conditions in institutions are often inhumane and degrading; people are denied legal capacity and access to justice. It also finds that in Mexico there are no alternatives to institutions so, once children and adults are detained in one, they will stay there for life.

DRI report on institutions in Mexico.

With the adoption of the CRPD, there has been an international recognition that institutionalization of people with disabilities is a serious human rights violation and is an outmoded and an unacceptable form of “care” in the 21st Century. However, this outdated model is still prevalent in many countries and people with disabilities’ human rights are still forgotten in human right talks around the world. The life conditions of people with disabilities are still dealt with in a frame of medical perspective, which is most often unfounded or based on eugenic theories, and not seen from a human rights perspective.

DRI is pushing both Guatemala and Mexico’s government to move from a system of institutionalization to community based services for persons with disabilities, in accord with article 19 of the CRPD for the right to community living. For this change to happen through advocacy, awareness and litigation, all three levels have to be involved: the local, the national and the international. DRI works closely at the local level through monitoring and interviews with victims, institution workers, families; also with the government at the national level to report cases, work on policy changes, and recommend the development of community programs; DRI also reports to international bodies with standing such as the IACHR, the CEDAW, the CAT, UNHRC to pressure the unwilling government to fulfill its international responsibilities.

Colectivo Chuhcan during their biweekly meetings with persons with disabilities.

 The local presence is very important to understand the needs of people with disabilities and what impacts the programs might have on them. International models are of great use to help implement much needed programs and elevate the life conditions of persons with disabilities; however each country comes with their limitations and ways of doing things. Without local presence, awareness and understanding the implementation of such development programs might end in disaster. There has to be a change of mentality and understanding within the general society itself to push for respect and understanding of the rights of people with disabilities. As well, persons with disabilities must be present in each level of the planning and implementation of changes as they know best what is needed for them.

At a national or governmental level, I have experienced how difficult change might be when faced with an oppressive and unwilling government. The State of Guatemala, with a lot of international pressure have moved to sit for negotiations and starting many pilot projects to move persons with disabilities in community based programs and help their integration. DRI is involved in negotiations to push the government to fulfill these obligations and hoping to guide the start of these projects. In Mexico, however, DRI is facing oppression, threat and defamation from the government. Even with the ratification of international conventions oriented towards protecting the rights of person with disabilities, Mexico’s government is unwilling to make changes and investigate abuses against this vulnerable group. They have blocked all access to DRI, refuse to process complains and actively threatened DRI workers to not publish reports. In Mexico, these events have forced the workers to seek some kind of legal protection, take classes on security and have created a lot of tension. DRI is working on multiple different strategies to figure out how to continue their mission through international support of United Nations and the Inter-American Commission of Human Rights without which it would be almost impossible to hold corrupted unwilling governments accountable.

The Case of Casa Esperanza

In Guatemala, DRI has admitted a petition against the government of Guatemala to the IActHR for the National Mental Health Institution, Federico Mora, one of the most dangerous intuitions in Latin America and hoping to hold the government accountable for the abuses. This year, in Mexico, DRI would like to repeat the same kind of petition in regards to a very dangerous institution where multiple abuses have been reported called Casa Esperanza. I have been working on the legal analysis for this case, especially trying to qualify forced sterilization happening in this institution as torture to hold the government accountable and urge its international obligation to protect people from torture, especially when these practices take place in public hospitals.

It is great to be part of this movement, slow but effective. There is so much more to learn, see and experience within this field of law and I am hoping to continue my involvement with this organization.

 

Meeting the Survivors Behind the Cases

2016 Dionne Desbiens Esther-1By Esther Dionne Desbiens

My internship with Equality Effect & Ripples International in Meru, Kenya was amazing. I cannot believe how fast it went by. Kenya gave me a very warm karibu (welcome in Swahili), and for that I am very thankful.

On a gloomy day this July (one of the coolest months in Kenya), a coworker told the staff at Ripples International to “carry [our] own weather”. I thought this expression was such a nice reminder to be positive. While people at Ripples International did encourage each other to be positive, I did encounter a cultural difference here. In Canada, people would say I’m outgoing and friendly. However, at Ripples International, some of my colleagues said that my personality was like that of a cartoon character. I didn’t know if this was an insult or a compliment, but my Kenyan friend and colleague reassured me that it was a compliment! My personality was not the only thing that made me stand out in rural Kenya. Being a muzungu (person of European descent) did not go unnoticed. I would often be greeted with the word muzungu when running errands or just walking around. After learning some Swahili, I was able to respond to those greetings with sasa (how are you) to which people answered poa (good). This response sparked conversations as the people I interacted with realized that I was willing to learn more about their language and culture. Knowing some Swahili meant that I was no longer a stranger to Kenya, it showed that I was there to learn.

Now on to my work experience. This has been the most hands-on, field work focused and interactive legal experience. So much of my work as a legal intern for Equality Effect at Ripples International revolved around meeting police officers, magistrates, survivors and their guardians in many different settings. This internship had so much fieldwork, I really felt as though I was able to fully immerse myself not only in Kenyan culture, but also in the Kenyan criminal justice system. For example, on July 21st, Ashley and I spent less than one hour at the office. We started off the day at 7:00 talking about our internship in Kenya on the radio in Isiolo, we then conducted a guardian interview at the office, we then participated in a women’s support group meeting, and finally we ended our day at 18:00 in town to conduct another guardian interview. Continuously meeting passionate people wanting to contribute to the 160 Girls Project aiming to protect children from sexual abuse was truly inspiring.

On the radio for the second time in Isiolo with Gerald (Access to Justice Program Manager), Denson (Radio Host) and Ashley (Equality Effect Intern).

On the radio for the second time in Isiolo with Gerald (Access to Justice Program Manager), Denson (Radio Host) and Ashley (Equality Effect Intern).

My colleague Ann, social worker at Ripples International, introducing Ripples International to a women’s support group.

My colleague Ann, social worker at Ripples International, introducing Ripples International to a women’s support group.

I often found that while studying law, there is a disconnect between the judgments we read and the people’s stories behind these judgments. Studying for my extra-contractual law exam in first year, I found myself trying to memorize the case Bazley v Curry as if it was simply a case that I had to understand in order to do well on my exam. I stopped myself after a moment to think about this case which involved a Children’s Foundation employee sexually abusing children. What was I doing? I was simplifying this horrible story into a set of legal rules that I could use to answer the fact pattern on my exam. This moment of reflection made me aware of my lack of knowledge on the stories behind the decisions that I read for my law courses.

This internship has been a great way to fill the gap that I experienced in my law courses. As part of our police monitoring work, my colleagues and I closely followed around 40 cases by visiting police stations, contacting guardians and attending numerous court hearings. Not only did I know the case files of the survivors very well, but often, I interacted with the girls who lived at Tumaini Rescue Centre. I could piece the difficult stories we read in case files with the girls I spent time with at the shelter. While knowing the girls’ stories made my work difficult emotionally, interacting with the girls, and seeing how wonderful they are, really gave me hope that the support they receive from Equality Effect and Ripples International is bettering their lives.

Almost every Saturday, Ashley and I went to Tumaini Rescue Centre to play sports, draw and dance with the girls. Above is a picture taken when we were drawing with chalk in the yard.

Almost every Saturday, Ashley and I went to Tumaini Rescue Centre to play sports, draw and dance with the girls. Above is a picture taken when we were drawing with chalk in the yard.

A beautiful work of art found in Tumaini Rescue Centre to highlight the importance of expressive art therapy.

A beautiful work of art found in Tumaini Rescue Centre to highlight the importance of expressive art therapy.

Ashley and I met with one of the girls after she was discharged from the shelter. We had gone to her step-father’s judgment hearing in Githongo Law Courts where he was convicted to life imprisonment for sexually abusing her. Talking with her was truly inspiring. She first said the following: “I’d like to thank Ripples. Going through the case wasn’t easy at first, but I overcame.” She told us that Ripples International’s counselling gave her the courage to testify. Ashley and I even bonded with her after she told us, “I dream to be a lawyer. I especially would like to help the girl child.” We talked about law school and encouraged her to keep working hard in school. It’s wonderful to see such a strong girl wanting to give back to other survivors of sexual abuse. I hope her dream of becoming a lawyer comes true because we need compassionate and caring lawyers to advocate for children’s rights.

  This picture was taken during our meeting with this brave survivor who wants to become a lawyer!


This picture was taken during our meeting with this brave survivor who wants to become a lawyer!

Our internship was challenging at times, but overall, the experience was incredibly rewarding on emotional, social and legal levels. However, in court, I did encounter some access to justice issues that organizations such as Ripples International and Equality Effect are trying to mitigate by providing legal support to survivors.

Delays

One big problem was delays in court. We would often go to court and matters were delayed for many reasons: the magistrate was not in, the accused was not in custody, the accused was in custody but was not brought to court, the hearing was rescheduled. These delays were incredibly frustrating, particularly because at Tumaini Centre rescuing the girls is usually temporary. Thus, girls are often discharged after they testify. When court hearings are delayed, this means that the survivor cannot testify, thus cannot be discharged, and therefore cannot go back to school. A magistrate was worried about the delays for one of the girl’s case as not going to school would go against the best interest of the child. In Kenya, the best interest of the child is a primary consideration “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies”. [1] This is an interesting difference with Canada, where the best interest of the child is a main concept in family law, but not a general overarching concept in all actions involving children.

Cross-Examinations

Another occurrence which shocked me in court is that the accused in Kenya will often cross-examine the witnesses (including the victim), as most accused are not represented by a lawyer. While Legal Aid and Pro-Bono programs are in place in Kenya, most are not yet operational. Our coworker in the Access to Justice Department noted that in theory, Kenya has great laws, but that in practice, it’s often a different story. I attended two victim testimony hearings during my three months in Kenya, and both times the accused cross-examined the victim. One time, I was the only person sitting between the victim and the accused. I felt like a buffer, but not a sufficient buffer to prevent further harm to the victim. This is an access to justice issue on two different levels. First, the accused person is disadvantaged because he/she does not know the procedural and evidentiary rules. Second, this impedes on the survivor’s emotional access to justice as being cross-examined by your perpetrator is a form of re-victimization. In Canada, it is very rare for an unrepresented accused to cross-examine the victim in a criminal case because of applications made by prosecutors under section 486.3 of the Criminal Code to appoint counsel for cross-examinations. This reality in Kenyan criminal law courts demonstrates a need for the implementation of testimonial aids.

Finally, awareness campaigns are really important to make sure the laws to protect children—the Sexual Offences Act, the Children Act, the Kenyan Constitution—are fully implemented. I ended my enriching internship on a very positive note. I helped the 160 Girls social worker, Cornelius, facilitate a “Girls for Justice” Public Legal Education session in a primary school. The children asked very thoughtful questions and were eager to participate when we taught them the 160 Girls anthem “Say No”.

Cornelius at the “Girls for Justice” Public Legal Education seminar.

Cornelius at the “Girls for Justice” Public Legal Education seminar.

I will never forget this internship, and I hope to come back to Kenya one day. Until then, asante sana (thank you very much) for this beautiful experience and tutaonana (goodbye and see you again) Kenya.

Beautiful Kenya.

Beautiful Kenya.

[1] Children Act, The Republic of Kenya, Revised Edition 2012 [2010], Chapter 141, s 4(2).

Influencing the Tide of International Law (in a Tiny, Tiny, Minuscule Way)

2016 Cooke FionaBy Fiona Cooke

I am now one week out from finishing my internship at Avocats sans frontières Canada in Québec City. Although one week isn’t really enough time to look back with any sort of objective perspective on my internship, I do feel able to draw a preliminary conclusion about my time at the organization, and the work that I did.

On the last day of my internship, I had a réunion de retroaction with the supervisor I worked most closely with. She asked me to offer my suggestions on what I felt they could do better, or what sort of things I didn’t like as much about the internship. What I said to her at the time was that I would have liked to have done more “practical” work. I can’t quite recall what inspired this criticism; I vaguely remember a fellow intern being assigned the task of researching the functioning of legal aid in Ontario, and I was envious of that seemingly fascinating assignment. I thought about some of the questions I had been posed – does the state, because of its legitimate monopoly on violence, maintain this monopoly in the context of an armed conflict to which IHL would apply? How does the ICC interact with human rights law, as a criminal court? Is there a justiceable right to peace in international law? These questions, while absolutely fascinating, all felt very theoretical – floating on some higher plane, divorced from context and individuals. I am so grateful for having been assigned them – I now have a much broader and more solid understanding of the various areas of international law, when they apply, and how they interact with each other. However, I didn’t feel like I had witnessed any way in which these areas of law had impacted real peoples’ lives. I remember thinking: my work is interesting to me, and useful to me – maybe not so useful for individual vulnerable people in Haiti, or Mali, or any of ASFC’s other countries in which it works. However, now, with a bit of distance, I’m better able to see the larger picture.

Colombia’s government and the FARC-EP rebels signed the Peace Agreement on June  23rd[1], a momentous occasion that everyone hopes will signal a significant and genuine step towards ending the conflict that has devastated Colombians for decades. The Peace Accord includes unique provisions that foresee punishments alternative to time in prison for the perpetrators of international crimes.[2] The questions on everyone’s mind were: 1) will this fulfill Colombia’s obligation under international law to punish perpetrators of these crimes? – because if it doesn’t, the ICC could step in, and 2) will this satisfy the victims’ right to justice? Are “restrictions of liberty” combined with acts of community service enough of a punishment? Is it a punishment at all? No international tribunals have ever given any punishment other than prison time. This is an innovative test case for restorative justice after international crimes, and the debate is fascinating.

When the accord was signed, ASFC released multiple data fact sheets, explaining the context of the agreement and what it included in terms of transitional justice for victims, as well as a its official evaluation of the peace agreement. While reading these fact sheets, one line struck me – it was a line that summed up the conclusion of one of my first memos I had written for my supervisor. Behind that one short sentence was 3 weeks of intense research, thinking, and learning on my part. It made me think about just how much human effort and passion goes into research by NGOs in order to make informed and careful statements or suggestions that will have an impact on real situations. The research that I had done, alone in my office, lost in the puzzle pieces that are IHL, IHRL, ICJ, and one hundred other initialisms, ended up informing ASFC’s official position on the new Colombian peace agreement. In the end, ASFC came out in cautious support of the agreement, provided its provisions were carried out with genuine intent to bring the perpetrators of crimes to justice. ASFC is an influential organization that others will look to to inform their own opinions, trusting the research that is behind this organizations’ conclusions. And opinions are the motor of international law, it seems – forming opinions will influence what direction the law actually takes. ASFC’s opinion is one of potentially multiple cautiously optimistic takes on the Colombian Peace Agreement that may, eventually, profoundly influence international criminal justice – moving its focus away from punishment and more towards reconciliation and rebuilding societies, and allowing for more flexibility in situations of conflict.

So, I see it now as a snowball effect – the tiny amount of contribution I made by way of my memo has its place in the larger role that NGOs play in international law in influencing both public opinion and the opinions of judges world-wide. That being said, I realize that the point of doing this work is not the personal gratification of seeing its effects in the real world – I just mean to say, there is indeed value in sitting alone in an office, wading through the morass that is international law – without these drops in the bucket, the larger waves would not materialize.


[1] “Colombia & FARC Agree to Ceasefire in Historic Peace Deal, Begin Long Process of Implementation” Democracy Now (23 June 2016), online: http://www.democracynow.org/2016/6/23/colombia_farc_agree_to_ceasefire_in

[2] Helen Murphy, “Colombia’s FARC may face alternative justice, not impunity” Reuters (5 September 2013), online: http://www.reuters.com/article/us-colombia-peace-interview-idUSBRE9840VZ20130905

The limits to legal reform focused on the state: the case of Mali

2016 Squire MatthewBy Matthew Squire

With only a few days remaining of my internship, I am only just beginning to appreciate how much I have learned this summer.  I have had the opportunity now to work on four cases that IHRDA is preparing, several presentations, and countless other research tasks.  One thing especially that has impressed me this summer is the extent to which the organization is aware of the context in which it works, concentrating its work in key areas that appear to have realistic prospects for incremental change.

This awareness of the context is something, however, that does not seem universally shared, especially among governments from the global North working on human rights.  Some work I conducted this summer revolved around family law reform in Mali.  The reform of Mali’s family law was an initiative in which Canada was heavily involved, an involvement I still have issues and questions about.

The limits of state-focused development initiatives?

Canada’s involvement in Mali’s law reform was part of the post-cold war movement in the global North towards sponsoring democratization in the global South.

Following the end of the Cold War, building up civil society became one of the buzzwords of the international development community.[1]  USAID, the World Bank, and other development institutions began including initiatives to build up civil society in the global South as part of their operational plans. [2]  According to Professor Thomas Kelly, the Global North has become convinced that a buoyant NGO sector is key in the development of a strong democracy, both because of role of NGOs in the development of western countries, and because of the role that NGOs could play in moving away from authoritarianism.[3]

Kelly claims, however, that governments and donors from the global North “…had a particular sort of NGO in mind, even if they did not say so.  What they meant was advocacy organizations, led by Western-oriented intellectuals, lawyers, entrepreneurs, academics, and teachers, all devoted to public interest causes such as the environment, human rights, women’s issues, election monitoring, anti-corruption, and other things that we in the Global North tend to applaud.”[4]

In the West African context, Kelly highlights two side-effects of this focus.  First of all, Kelly points to disconnect between NGOs dominated by western-oriented, educated individuals and the populations they purportedly represent.  Second of all, Kelly argues that these NGOs, by being focussed on the state, tend to ignore important forms of African social organization that happen outside of a state context – organizations such as tribal groups, clans, and Islamic religious organizations.[5]

Contrary to Kelly, I believe that such disconnect and such state focus is necessary to a certain degree.  The world, like it or not, is organized today into states.  Many violations of human rights in the African context have been and are being perpetuated by states.  To remedy this thus entails change to the state, and organizations working on these issues, such as IHRDA, do have the possibility to effect change.

Where this disconnect and state focus may be more problematic is in dealing with harm inflicted on individuals by individuals, especially inflicted in the context of traditional practices.  In this context, is a focus on the state really the best way to affect change?

Case study: Mali’s new family code of 2011

Mali: a secular elite, growing influence of religious movements 

Mali inherited the principle of “laicité” when it became independent from France, with both the 1960 and 1992 constitutions proclaiming Mali a “republique laique.”[6]  In contemporary Mali, the elites of society – the bureaucrats, the career politicians, the lawyers, the civil servants – are mostly educated in state-run secular French language schools.[7]  The attitude of these elites to religious leaders is not particularly favourable.  Many of those having completed the French school system see Muslim religious scholars as old-fashioned and regressive, for example.[8]

Recently, however, the laicité of the elites is coming under increasing pressure from Islamic civil society.  Religion has come to play a much larger role in Malian society.[9]  Islam’s important place in the public sphere of Mali originates in the restructuring of the economy that colonisation brought.  In the colonial Muslim-controlled economy centered on colonial towns, conversion to Islam was often a requirement to participation.[10]  This led to conversions and an increased public role for Islam in public day-to-day life in West Africa.  Following independence, the new governments continued to tightly control Islam, as the colonizers did before them.[11]  In Mali, for example, the socialist government of Modibo Keita shortly after independence pushed Islamic organizations underground.[12]  The regime of Moussa Trauré, who came to power in a 1968 coup, attempted to use Islam for political goals, establishing the Malian Association for the Unity and Progress of Islam (AMUPI) in 1980 to control and direct Islamic energies.[13]

After the 1991 coup d’état in Mali, freedom of association was established.  In the democratic spaces that were created, Islamic organizations have taken advantage of the opportunity to finally contribute to public discourse.[14]  Since 1991, despite efforts to retain Mali as a secular state, Islamic associations began to play a much more important role in Malian politics.[15]  With the emergence of new communications technologies, easy access is provided to some Muslim leaders. [16]  In multiethnic but majority Muslim societies like Mali, Islam has come to play a powerful unifying force.

Today, compared with politicians and governments, Malians have a high degree of trust in religious and traditional leaders.[17]  In addition, this increasingly active, and trusted, Islamic civil society is advocating for a more public role for religion, in direct opposition to political elites.[18]  It is not surprising that, in this context, a 2009 Family Code reform project conducted without the engagement of Islamic civil society failed.  As Thomas Kelly commented on a similar reform of the Niger Family Code, “a legislative reform effort aimed primarily at increasing women’s standing in society opened up a field for conservative religious forces to mobilize popular discontent by entering the civil society sector – with its freedom of expression and of association – and offering a vision of Islamic cultural autonomy as an alternative to political dependence on the West.”[19]

2009 Family Code reform failure

Mali, unlike most African countries, has ratified almost all the major international human rights treaties.  International donors, among them Canada, have been funding a series of comprehensive reforms to Mali’s legal system since the country’s transition to democratic rule in the 1990s to, among other things, improve women’s rights protections.[20]

In 2009, with almost unanimity, the national assembly of Mali adopted a new family code.  This new code continued a stipulation from the post-independence that marriage was “laique”,[21] eliminated a 1962 provision that required women to obey their husbands,[22] raised the minimum age of marriage to 18 years old for both men and women (the previous minimum age for women was 15, 18 for men),[23] and provided for a legislated regime to cover successions.  This regime covering successions provided for the equal treatment of men and women in inheritance, as well as equal treatment between legitimate and illegitimate children.[24]  The previous legal regime established that married couples would refer to their own religious or customary law to determine who would get what.[25]  Under Islamic traditions, women generally inherit only half of what men inherit, and children born outside of marriage do not have any automatic rights to a succession.  The code, however, did allow for citizens to use their religious or customary law to cover successions, but to do this, they would have to create a testament with the aid of a notary.[26]

This 2009 code, despite the overwhelming support of elected members of the national assembly, was never promulgated into law.  The 2009 code was overwhelmingly rejected by the principal Islamic organizations in Mali.  Islamic organizations claimed that the 2009 vote in the national assembly was a sign of the enslavement of the government to international aid money and the international movement to liberate women. [27]   Islamic organizations signalled the need to preserve Islamic values against an onslaught of western imperialism.[28]  Faced with this opposition, the Malian president Amadou Toumani Touré refused to sign the code into law and, with the aid of a commission composed of parliamentarians and representatives of Islamic organizations, a new code was drafted.  On December 2, 2011, the National Assembly adopted the new code.  This code was promulgated into law shortly after.[29]

The 2011 family code

The 2011 family code retained the 1962 provision that required wives to obey their husbands.[30]  It also lowered the age of consent for girls to enter into marriage to 16 years old, without the consent of her parents required.[31]  The 1962 code had, in contrast, allowed girls under 18 to be married only with the consent of both parents.[32]  In exceptional circumstances, the code allows for the marriage of 15 year-old girls, so long as her father gives his consent.[33]  Compare this to the 1962 code where both the father and the mother had to give consent for the marriage of a 15 year old girl.[34]  These provisions are clearly in violation of regional and international human rights mechanisms which require that the minimum age of marriage should be 18.

The new 2011 family code also established that marriage is no longer “laique”, as the 1962 and 2009 codes provided.[35]  It legalizes religious marriages in the country, something that was of great concern to women’s rights campaigners.  The new code effectively creates two legal regimes covering marriage, one requiring the full consent of both parties in front of an officer of the state, with fines and prison sentences established if he or she violates the code, and another for religious officials that is entirely absent of such provisions.[36]   As traditional and religious marriages in Mali are normally performed without either of the future spouses present, and given local customs and conditions, especially in rural areas, that encourage marriage in childhood, this new code effectively legalizes and legitimizes forced and child marriages, a violation of regional and international human rights mechanisms.

In addition, another very controversial provision from the 2009 code was altered.  Islamic organizations complained that the lack of notaries in Mali effectively required individuals to manage their succession using the provisions of the Code.[37]  As such, the 2011 reverses the 2009 code by establishing the default succession regime as religious or customary law, only allowing those whose religion or custom is unknown or those having made a testament with the aid of a notary to make use of the egalitarian provisions of the code.[38]

The way forward? 

In Mali, foreign donors from the global North, Canada included, backed a wide-ranging series of reforms to Mali’s legal system to improve rights for women, without engaging all stakeholders in the project.  In the end, this project resulted in a legal regime where women now have less protection than they had under the 1962 code.

What is the way forward?  Thomas Kelley comments on the issue: “…having supported the implementation of structures that permit, even encourage, open, society-wide debate about the nature of justice and governance, it is impractical, and frankly unseemly for westerners to attempt to intervene when we disapprove of the principles and structures that our ostensible tutees have devised.” [39]

In a 2011 publication by the NGO Focus on Land in Africa, the authors suggest to advocate’s for women’s rights that legal change should not outpace social change: “Advocates for women’s rights must be willing to invest time in understanding local norms and their rationales, working with women and their communities to envision the changes that are important to them, and devising workable solutions to achieve those ends. While such an approach may be iterative, slow and fraught with set-backs, it is also less prone to fierce resistance or conflict and is more likely to appropriately serve women’s interests.” [40]

 

 

[1] Thomas Kelley, “What!  That’s Not What We Meant by Civil Society!: Questioning the NGO Orthodoxy in West Africa” (2010-2011) 36:3 Brook J INT’L L 993 at 995.

[2] Ibid at 996.

[3] Ibid at 999.

[4] Ibid at 1001.

[5] Ibid at 1001-1002.

[6] Alex Thurston, “Towards an ‘Islamic Republic of Mali?’” (2003) 37:2 Fletcher F World Aff 45 at 47.

[7] Ibid at 61.

[8] Benjamin F Soares, “Islam in Mali in the Neoliberal Era” (2005) 105:418 African Affairs 77 at 84 [Soares 2005].

[9] Tone Sommerfelt, Anne Hatloy, & Kristen Jesnes, “Religious reorientation in Southern Mali – A summary” (2015), Fafo, online: <http://www.fafo.no/~fafo/images/pub/2015/20424.pdf> at 7.

[10] Robert Launay & Benjamin F Soares, “The formation of an ‘Islamic sphere’ in French Colonial West Africa” (1999) 28:4 Economy and Society 497 at 506 [Soares and Launay].

[11] Kelley, supra note 1 at 1006.

[12] Thurston, supra note 6 at 49.

[13] Ibid.

[14] Kelley, supra note 1 at 1005 – 1006.

[15] Thurston, supra note 6 at 50.

[16] Soares and Launay, supra note 10 at 515.

[17] Ibid.

[18] Soares 2005, supra note 8 at 86.

[19] Kelley, supra note 1 at 1008.

[20] Benjamin F Soares, “The Attempt to Reform Family Law in Mali” (2009) 49:3/4 Islam in Contemporary West Africa 398 at 416 [Soares 2009]

[21] Ousmane Koné, “Le controverse autour du code des personnes et de la famille au mali: enjeux et strategies des actuers,” (September 2015), Université de Montréal (Doctoral Thesis), online : < https://papyrus.bib.umontreal.ca/xmlui/bitstream/handle/1866/13576/Kon%C3%A9_Ousmane_2015_these.pdf?sequence=2&isAllowed=y> at 4.

[22] Boubacar Haidara, “Les formes d’articulation de l’islam et de la politique au Mali,” (2015), HAL (Doctoral Thesis), online : <https://halshs.archives-ouvertes.fr/tel-01319122/document > at 340.

[23] Ibid at 337.

[24] Koné, supra note 21 at 129.

[25] Ibid.

[26] Ibid at 129-130.

[27] Ibid at 33.

[28] Ibid at 34.

[29] Ibid at 3-4.

[30] Portant Code des personnes et de la famille, Law No 11-080/AN-RM, 30 December 2011, online : < http://www.demisenya.org/wp-content/uploads/2013/03/mali-code-personnes-famille-2-decembre-2011.pdf> art 316 [Code 2011].

[31] Ibid, art 281.

[32] Code du mariage et de la tutelle, Law No 62-17/AN-RM, 3 February 1962, online : < http://jafbase.fr/docAfrique/Mali/CodMariage.pdf> art 11 [Code 1962]. 

[33] Ibid, art 284.

[34] Code 1962, supra note 32 art 11.

[35]Code 2011, supra note 30 art 20.

[36] Code 2011, supra note 30 art 283-287, art 299, art 300-305.

[37] Koné, supra note 21 at 134.

[38] Code 2011, supra note 30 art 751.

[39] Kelley, supra note 1 at 1009.

[40] Kelsey Jones-Casey, Anna Knox, & Zoey Chenitz, “Women, Inheritance, and Islam in Mali,” (2011), Focus on Land in Africa, online: < http://www.focusonland.com/fola/en/countries/brief-women-inheritance-and-islam-in-mali/>.

 

Did Science get lost for a second at Toronto City Council vote on Supervised Injection Sites?

2016-KohutRachelBy Rachel Kohut

During the final weeks of my internship at the Legal Network, I got the chance to witness Toronto City Council pass three supervised injection sites. It was an enlightening experience to say the least, and definitely not what I was expecting. What was supposed to be an hour at City Council watching the motion pass, quickly turned into a whole morning.

Research, community consultations and careful planning had been thoroughly undertaken before these three proposed sites were brought before city council, with these recommendations ultimately brought forward to City Council by the Board of Health. Day of, the Medical Officer of Health for City of Toronto was present for any lingering questions. Turned out, there were many. I was admittedly a bit shocked that so many people had so many lingering questions, and that many of them were seemingly entirely off point. It was as if they only skimmed a few documents the night prior. All of a sudden, the conversation became about methadone treatment, instead of about safe injection sites.

Toronto City Council Chambers

Toronto City Council Chambers

Three Councillors voted against the proposed supervised injection sites: Giorgio Mammoliti, Christin Carmichael Greb and Stephen Holyday, as they were not swayed by the arguments presented to the Council Chamber. They questioned the efficacy of the sites, further arguing that the sites would be ‘enabling’ and ‘dangerous’. Mammoliti made a motion to change the location of the sites to hospitals, pharmacies and medical clinics to make them more safe. This was rejected by Council.

This last minute hail mary pass that caught me off guard. There were many other opportunities to raise these concerns beforehand, whether at community centres where consultations were held, or at discussions with the Board of Health. Why weren’t these concerns raised them, particularly given the technical nature of the subject matter?

Interestingly, once Mammoliti’s motion was tabled, he didn’t stay in his seat for long. He immediately shimmied to the top of the chamber, where the press was eagerly waiting to question him. But the discussions in the lower part of the Council Chamber didn’t stop. In other words, Mammoliti wa voicing his plight about the safety and efficacy of supervised injection sites to various news outlets at the top of the Chamber, while those in the lower part of the Council Chamber who were elected to represent the voice of Torontonians were continuing the discussion.

It quickly became apparent that this was a last minute media ploy more than anything, which got me thinking about the role of the press. Everyone has the right to know what is happening at City Council and media plays a big part in communicating discussions to the public. But did it really have to be that second?

Medical Officer of Health for City of Toronto, Dr. David McKeown, answering questions from councillors.

Medical Officer of Health for City of Toronto, Dr. David McKeown, answering questions from councillors.

What further struck me about this process was the role of the Medical Officer of Health in the discussions. Having previously worked at the Chief Public Health Office at the Public Health Agency of Canada, I am aware that the role of medical officers in decision- and policy-making is often murky at best, but it is hard to disagree with the fact that they are brought in for their technical medical knowledge and opinion.

As I watched David McKeown thoughtfully and patiently fielded questions from councillors who obviously didn’t read up on supervised injection sites, and what it meant for the city, I could only imagine what was running through his head. Maybe he was just as frustrated as me to witness councillors not seizing the opportunities to become better informed when they are presented, and instead turning around to create opportunities for public confusion and personal gratification. This moment for clarification rapidly spiralled into a moment of public health education 101, with science struggling to hold its own for a moment in the mix.

Thankfully the motion passed and if all goes well in Toronto’s application for a federal exemption, the city will soon have three supervised injection sites. But wow, what a whirlwind to get there.

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