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Reflections on Kidnap for Ransom through the Lens of Private Law

by Amanda Arella 

This blog post was adapted from a presentation entitled “Duty of Care in the Context of Kidnap for Ransom”

One of my major project during the course of my internship at Oceans Beyond Piracy was to research duty of care in the context of kidnap for ransom. Specifically, I examined the duty of care that employers owed to their employees travelling abroad. Aid workers and other non-governmental employees who travel to conflict regions are particularly vulnerable to the growing phenomenon of kidnap for ransom.

While researching this question, I came across a court case between the Netherlands and Médecins Sans Fronitères. Etat de Pays-Bays c. Médecins Sans Fronitères was a case that went Switzerland’s highest judicial body, the Federal Tribunal revolving around the alleged payment of a ransom.

In 2002, Arjan Ekel, a Dutch national, was kidnapped while volunteering with Doctors Without Borders in Dagestan. He was released after 20 months in captivity upon the payment of a ransom of 1 million euros.  Following his release, the Dutch government sued MSF for the ransom amount, claiming it had arranged for a loan for MSF to cover the cost of the ransom. MSF countersued the Dutch government, arguing that it had been excluded from negotiations and never agreed to pay the money.

This case instantly captured my attention, and reflecting upon my work this summer, I realized that it is a good case study to highlight some of the issues I’ve focused on on this summer. Etat de Pays-Bays c. Médecins Sans Fronitères brings together the legal and the political elements of kidnap for ransom, and also ties in some of the fundamental elements of private law.

The three main elements at play in this case that I want to highlight, because they are all issues that came up again and again in my work this summer. This first is transparency in ransom negotiations, the second is the private law duty of care as it relates to non-governmental employees, and the third is contractual implications in cases of kidnap for ransom.

Transparency in Ransom Negotiations

This case is highly unusual for a variety of reasons, not the least of which being that non-government organizations and governments do not typically sue each other. Moreover, cases heard in court are part of the public record, a reality which stands in stark contradiction to the extremely secretive nature of most ransom negotiations.

The official position of virtually all countries and major NGOs is that they do not pay ransom. There are strong arguments in favour of this position: Many governments and organizations feel admitting to paying ransoms is tantamount to endangering their citizens or employees. Furthermore, there is a fear that publicly discussing negotiations many heighten the demands of kidnappers, and encourage further kidnapping.

However, the practical effect of this stance is that there is a lack of transparency as to what actually transpires when an individual is kidnapped. Whether or not a ransom is paid, there is often some level of official involvement both by governments and, in the case of aid workers, the organization they represent. This lack of transparency also comes at a cost. Firstly, it is very difficult to analyze trends in kidnapping, and to thus understand the full extent of kidnap for ransom in our modern world. Additionally, this lack of transparency discourages open conversation about kidnap for ransom. Together, these realities have profound implications.

Kidnap for ransom brings up many difficult ethical questions. While there is no consensus on best practices for addressing and eventually eliminating this phenomenon, there is a growing understanding that ransom payments are used to finance terrorism and criminal activities. Furthermore, the widespread instances of kidnap for ransom heightens violence and instability in the region where it takes place. These facts may illustrate some of the arguments in favour of a hardline stance against negotiating with kidnappers. Yet there can be no discussion of this question without acknowledging that a person’s life is at stake in every instance of kidnap for ransom.

The ethical questions of kidnap for ransom are an area which I have given much thought this summer, and to which I have no definitive answer. Familiarizing myself with this topic has only made it clearer to me that in an issue this complex and multi-faceted, a definitive solution or strategy to addressing the problem simply does not exist. It is for this reason that cases like Etat de Pays-Bays c. Médecins Sans Fronitères are so important. They provide an opportunity for all people to inform themselves on this issue and engage together in critical debate and reflection on kidnap for ransom.

Duty of Care and Non-Governmental Organizations

Next, the case reaffirms that nongovernmental organizations have a duty of care to their travelling employees. Duty of care is in many ways a moral duty enshrined in a legal principle that exists in virtually all legal jurisdictions in some form or another. It is legal obligation that requires a person or organization acts toward others and the public in a prudent manner to avoid the risk of reasonably foreseeable injury to those around them. Duty of care is premised on a relationship of proximity employer and employee.  Where an employer breaches the duty of care owed to an employee, they may be found civilly liable for negligence.

In order for a duty of care to exist, there must be a relationship of proximity between the wrongdoer and the victim. In virtually all jurisdictions, the relationship between employer and employee is considered sufficiently close for a duty of care to exist.

An organization may face liability risk when an employee is injured or killed while travelling abroad on behalf of the organization. Employers may be held to a higher standard of care in instances where employees enter into situations of heightened risk during the course of their work, as may be the case for employees travelling abroad on behalf of their employer. This higher standard of care includes identifying and planning for higher risks to employees, and may be satisfied by adopting employee safety and risk management practices.

Contractual Agreements

Ultimately, this case was decided on principles of contract law. Based on a letter between MSF Switzerland and the Dutch government, the Swiss Federal Tribunal held that the two parties must split the cost of the ransom. The Federal Tribunal found that in the letter, MSF put forward an offer, which was then accepted by the Dutch government. There was thus a meeting of the minds which produced a validly binding contract. It was particularly interesting to me that a case surrounding ransom payments – normally a topic which has largely been unexamined from a legal perspective, was decided through a well-established area of law.

Furthermore, this decision may have some significance for the growing phenomenon of kidnap and ransom insurance, in which employers or individuals themselves may take out insurance against the risk of kidnapping. These agreements are a new phenomenon that are in some ways uncharted territory, but are at their core contracts governed by deeply entrenched legal principles. It is unclear to what extent one or the other of these characterizations is more accurate. So too is it unclear if the extent to which government policies and political perceptions of this issue will interact with contract law.  Undoubtedly, there are many unanswered questions of the implications of bringing kidnap for ransom into the sphere of private law, making it a dynamic area for further examination.

Income Inequality and an Appetite for Change

By Zachary Shefman

Gaba, on my morning drive to work, carefully navigates around the men and women that file past as they climb the sloped, well-paved streets of the neighbourhood in which I live. Many of them wear dark blue jump suits to signal both that they are labourers, and that they are currently on the job. Since there are relatively few sidewalks in Windhoek, they are forced to climb the streets on the shoulders of the road.

Windhoek, Namibia

Windhoek, Namibia

As we progress along Robert Mugabe Avenue towards the centre of the city, I am surprised at the number of luxury cars that accompany us on our route – Mercedes-Benz, Audi, and Porsche, among others. I ask my co-worker sitting next to me what the green license plates, in contrast with the more typical yellow, on many of the luxury cars represent. “Government,” he says, “this way they cannot use these cars how they please”.

We approach the Parliament buildings to drop off one of our passengers. However, unlike most days, we are prohibited from entering the premises. The roads are blocked with police vehicles, and men and women in uniform are posted around the garden entrance every ten to fifteen feet.

Today, June 16th, is a special day for a number of reasons. For one, the Indian President is on a state visit to Namibia and is slated to address the Namibian National Assembly. Security is accordingly tight. For another, it is the Day of the African Child. This day marks the student uprising of 1974 in Soweto, South Africa, where students marched to oppose the establishment of Afrikaans as the language of instruction.[1] Most importantly of all, however, it is the day chosen by the Affirmative Repositioning movement (AR) to protest the government’s ostensible commitment of NAM$ 2.2 billion to the construction of new Parliament buildings.[2]

The AR is an organization whose principal aim is to lobby for the redistribution of land to Namibian youth.[3] They have called for a day of action to demand that the government reallocate the resources allegedly earmarked for Parliament to the distribution of 25 000 plots to the landless instead.[4] They plan to deliver a petition to the Speaker of the National Assembly, Peter Kajavivi, with their demands.[5]

The AR, however, has encountered a number of obstacles to their plans for a demonstration. A week ago, the Inspector-General of the Namibian Police Force, Sebastien Ndeitunga, placed a ban on all public demonstrations from June 13th to 18th.[6] Four days ago, the Ministry of Education, Arts and Culture issued an unusual directive to schools across the country requiring that they organize activities for the Day of the African child, rather than allow teachers and students the typical June 16th off.[7]

When I arrive at the office, I can hear the distant hum of shouts and horns of a demonstration. The defiant AR has continued with their march. I worry that the protest will degenerate into violence.

 “Come hell or high water we will march” – Dimbulukeni Nauyoma, an activist of the Affirmative Repositioning movement.[8]

It is June 17th, and I anxiously fumble through the newspapers strewn across my colleague’s desk. Despite my concerns, the protest was ultimately both successful and peaceful.[9] The Namibia National Teacher’s Union and the Namibian National Students’ Organization, for instance, defied the Ministry’s order to hold and attend commemorative activities on June 16th.[10] Ndeintunga, the Inspector-General, ultimately came to an agreement with the AR. They decided to redirect the route so that the march ended at Synman Circle, rather than the Parliament buildings, provided that the Speaker of the National Assembly received their petition.[11] Finally, despite the Speaker’s initial refusal to greet the protestors in order to accept the petition, he eventually relented.[12]

My office at the Law Reform and Development Commission

My office at the Law Reform and Development Commission

This year marks the 26th anniversary of Namibia’s independence, and the period in which the first post-apartheid generation has finally come of age. These are the men and women “born free” – i.e. born under a democratic government, rather than the oppressive rule of the former South African occupiers.

Living conditions between pre and post-independence Namibia have changed considerably. The country has made significant progress reducing poverty, for instance, though the number of indigent Namibians is still relatively high. According to the Namibian Statistics Agency, while 69.3% of Namibians lived below the poverty line in 1993/4, by 2009/10, that number was reduced to 28.7%.[13]

For many Namibians, however, the pace of change has not progressed fast enough. For example, the per capita income in 2010–11 was only NAM$ 14 559 (approximately CAN$ 1 332).[14] Meanwhile, the cost of living is high. While a small loaf of bread can be purchased for approximately NAM$ 9 (CAN$ 0.82), fresh vegetables can be unaffordable for most – where 120 grams of mushrooms costs approximately NAM$ 33 (CAN$ 3.02), and a head of cauliflower, NAM$ 35 (CAN$ 3.20).

Income inequality in Namibia, moreover, remains a persistent problem. While in 2003/2004, the Gini coefficient in Namibia was approximately 0.60, in 2009/10 it remains largely the same at 0.59[15] – to provide some measure of contrast, the OECD reported Canada’s coefficient at 0.32.[16]

Those most subject to poverty are Namibia’s youth. While the unemployment rate for Namibians generally sat at 33.8% in 2010/11, it was as high as approximately 53% for 20–24 year olds.[17]

The government’s response to the enduring problem is embodied in President Hage Geingob’s “Harambee Prosperity Plan” (HPP). The president has defined his term by it. Many Namibians I know routinely invoke it. “Namibians,” Geingob writes, “want a house where everyone feels a sense of belonging, where everyone is presented with a fair opportunity to prosper in an inclusive manner and by so doing, ensure [sic] that no one feels left out”.[18]

The HPP is organized around a set of pillars under which more specific policies and aspirations are outlined. Under the pillar of “economic advancement”, the government has announced its intention to implement a “broad-based economic empowerment framework”.[19] The goal of the framework is to realize “equity in society in general and in particular [sic] greater equity in the ownership of productive assets” of “disadvantaged groups”.[20]

The Law Reform and Development Commission, an institution operating under the Ministry of Justice, and the institution at which I work, has been tasked with drafting the legislation to implement the framework mentioned above. After the publication of the HPP, the policy was considerably elaborated upon in a formal policy document, and a bill was drafted by the Commission – the New Equitable Economic Empowerment Bill (NEEEB).

The latest formulation of the plan establishes thresholds for the participation of “previously disadvantaged persons” (PDPs) in all medium to large-sized private sector enterprises. “Previously disadvantaged persons” refers to those individuals who have been disadvantaged by “past discriminatory laws and practices”. Despite the definition’s obvious reference to those subject to apartheid, its scope is broad enough to encapsulate women and people with disabilities of any colour. And although the definition does not explicitly encompass Namibian youth, presumably, according to the government’s policy document, they, too, are the bill’s intended beneficiaries.[21]

NEEEB facilitates the participation of PDPs in private sector enterprises in a number of ways. To provide just two examples, under the bill as it is currently formulated, all medium to large-sized private sector enterprises will be required to sell 25% of the value of their businesses to PDPs, and 50% of their “combined board and top management structures” must be staffed by PDPs. These thresholds are mandatory in the sense that registration, licensing, grants, guarantees and concessions issued by the government will only be provided to those who meet or exceed the thresholds above.

Much of my time in Namibia has been committed to facilitating the Commission’s work on the project. I have been asked to assist with synthesizing and substantiating the public’s criticisms of the bill, to identify issues with NEEEB, to write a legal memorandum on the potential for the bill’s conflict with the Namibian constitution, and finally, to present proposals for the bill’s reform.

Pictures of Namibia's three Presidents hang in the boardroom of the Law Reform and Development Commission. President Hage Geingob is pictured on the left.

Pictures of Namibia’s three Presidents hang in the boardroom of the Law Reform and Development Commission. President Hage Geingob is pictured on the left.

The activities of the Affirmative Repositioning Movement are demonstrative, in part, of the public’s – and in particular, the youth’s – increasing expectations of greater equity in the distribution of the country’s wealth, especially given Namibia’s liberation from both apartheid and occupation. NEEEB forms an integral part of the government’s answer. Whatever the merits of that answer, I only hope that I may assist in its formulation such that the lives of Namibians may be improved going forward in a manner that all Namibians consider just.

The appetite for change in the form described above is, perhaps, best encapsulated by something that the Chairperson of the Commission, Yvonne Dausab, had once pointed out to me: “The people are getting anxious. It has been 26 years. They have been waiting too long”.


[1] Béatrice Debut, “Il y a 40 ans, Soweto se soulevait contre l’apartheid”, La Presse (15 June 2016), online: <http://www.lapresse.ca/international/afrique/201606/15/01-4992137-il-y-a-40-ans-soweto-se-soulevait-contre-lapartheid.php>.

[2] “It is D-Day”, The Namibian Sun (16 June 2016), online: <http://www.namibiansun.com/print/94507>

[3] Vaino Tuhafeni Hangula, “Affirmative Repositioning: A Breakdown”, Confidenté (28 January 2016), online: <http://www.confidente.com.na/2016/01/affirmative-repositioning-a-breakdown/>

[4] Ndama Nakashole, “Youth to protest planned N$2,2b new parliament”, The Namibian (13 April 2016), online: < http://www.namibian.com.na/index.php?page=archive-read&id=149616>

[5] “It is D-Day”, The Namibian Sun (16 June 2016), online: <http://www.namibiansun.com/print/94507>

[6] “Public demonstrations banned: Ndeitunga”, The Namibian (08 June 2016), online: <http://www.namibian.com.na/Public-demonstrations-banned-Ndeitunga/41494/read>.

[7] Jemima Beaukes, “We will march”, Namibian Sun (09 June 2016), online: <http://www.namibiansun.com/politics/we-will-march.94321>.

[8] Ibid.

[9] Selma Shiwaya, “Police pleased with demonstrators”, The Patriot (17 June 2016), online: <http://thepatriot.com.na/index.php/2016/06/17/police-pleased-with-demonstrators/>

[10] Jemima Beaukes, “We will march”, Namibian Sun (09 June 2016), online: <http://www.namibiansun.com/politics/we-will-march.94321>.

[11] Theresia Tjihenuna, “Police and AR agree on march”, The Namibian (13 June 2016), online: <http://www.namibian.com.na/Police-and-AR-agree-on-march/41661/read>

[12] Selma Shiwaya, “Police pleased with demonstrators”, The Patriot (17 June 2016), online: <http://thepatriot.com.na/index.php/2016/06/17/police-pleased-with-demonstrators/>

[13] Poverty Dynamics in Namibia: A comparative study using the 1993/94, 2003/04 and the 2009/10 NHIES surveys, Namibia Statistics Agency (November 2012), at 10.

[14] Namibia Household Income and Expenditure Survey 2009/2010, Namibia Statistics Agency (2012) at 131.

[15] A figure of 1 represents the most unequal society, and 0, the most equal. Namibia Household Income and Expenditure Survey 2009/2010, Namibia Statistics Agency (2012) at 141.

[16] OECD (2016), OECD Factbook 2015-2016: Economic, Environmental and Social Statistics, OECD Publishing, Paris at 55. Note that the measure was anchored to “2012 or latest year available”.

[17] Namibia Household Income and Expenditure Survey 2009/2010, Namibia Statistics Agency (2012) at 46

[18] Harambee Prosperity Plan: Namibian Government’s Action Plan towards Prosperity for All, Republic of Namibia (2016/17) at 4.

[19] Ibid at 8, 62.

[20] Ibid at  28–9.

[21] The New Equitable Economic Empowerment Act, 2015 (Namibia) as of 15 July 2016 at 4.

Life at the Commission

By Zachary Shefman

The Law Reform and Development Commission (LRDC), the government department for which I work, is housed in a high-rise at the very core of Namibia’s capital, Windhoek. While the staff contingent is relatively small – beyond the Chairperson, her deputy and support staff, there are eight legal researchers – the workspace is accommodating: we all have our own spacious offices.

The downtown core of Windhoek.

The downtown core of Windhoek.

The legal researchers at the Commission are dynamic and quite young. Apart from one researcher, who just turned thirty, all legal researchers are in their twenties. They are thus the first generation to grow up in post-independence Namibia.

The LRDC’s work is wide-ranging. They convert government policy into law, review bills drafted by other government units and advise accordingly, conduct nation-wide consultations with the public to collect their input on forthcoming legislation, and produce research for the purposes of making recommendations for the reform of Namibian law.

I have been fortunate enough to have been immediately and deeply integrated into the Commission’s work. In my first week, I was provided with an open door to assist with the projects of any of the legal researchers, who amongst themselves, are responsible for the reform of the full ambit of Namibian law.

Some of my work involved scrutinizing bills before their review at the Cabinet Committee of Legislation (CCL) – an executive body responsible for examining bills before they are presented to Parliament. I would review, for instance, the interplay of a bill’s provisions to identify unintended consequences, and assess its contents for conflicts with the Namibian constitution, among other things.

Throughout the course of this work my warm, and welcoming colleagues would assist me in my efforts to familiarize myself with the Namibian legal framework. I, in turn, would present my own perspective on approaching the work.

Namibia is a relatively small country. It has a population of approximately 2.3 million people. As a result, it is both considerably easier as an individual to have a more acute impact on the public, and to acquire exposure to Namibian life and the key players of Namibia’s government. Within the first six weeks of my arrival of Namibia, I was able to meet and chat with the country’s Ombudsman, to pose questions in person regarding the legislative process to the Attorney-General, and to meet the Prime Minister herself in a meeting with her Office. Moreover, I was fortunate enough to travel across the country for the Commission’s consultations on a forthcoming bill. As a result, I would hear the concerns and pleas of the Namibian public – from the urban, business elite in the country’s capital to the concerns of representatives of disability rights groups in the country’s densely populated north.

On the road to Rundu for public consultations on the New Equitable Economic Empowerment Bill.

On the road to Rundu for public consultations on the New Equitable Economic Empowerment Bill.

Another benefit of Namibia’s relatively small size is how well-connected and experienced some of its key players tend to be. The Chairperson of the Commission, for instance, sits on the Cabinet Committee on Legislation. Some of my recommendations and criticisms of various bills have accordingly influenced discussion at the CCL.

My experience in Namibia has been immersive, eye-opening and all around life-changing. I have learned immensely about a new legal system and culture. I have had deep and intimate exposure to the most inner-workings of Namibian government. I have had the opportunity to contribute to the reform of Namibian domestic policy. Most important of all, however, I have found elements that I will look for in a future career in law.

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

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.
IMG_3017
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).

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