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Civil Rights and the Achievements of the Charter and the CCLA

By Didier Chelin

I took my internship at the Canadian Civil Liberties Association (CCLA) as an opportunity to advance a specific vision of freedom. Yet this vision is hardly original, having already been articulated by one of the political leaders most responsible for inventing the welfare state. And he himself did not invent that vision. He merely crystallized the collective dream of a people having just emerged from the worst economic depression of the twentieth century, and still in the throes of World War II. In his State of the Union Address of January 6, 1941, President Franklin Delano Roosevelt looked forward to a world “founded upon four essential human freedoms”. Three of them (freedom of speech, freedom of religion, and freedom from fear) refer to civil and political freedoms: spheres of personal autonomy with which the state is not to interfere. But Americans having lost their jobs and their homes during the depression would have found this vision lacking, had Roosevelt not added a fourth and very different component. His fourth freedom, which he called “freedom from want”, is positive rather than negative. It requires the state to step in and provide all citizens with the socio-economic conditions necessary to lead a flourishing life. Freedom from want, the President maintained, depends on economic arrangements designed to “secure to every nation a healthy peacetime life for its inhabitants” (Rhoda E. Howard-Hassmann & Claude E. Welch Jr. editors, “Economic Rights in Canada and the United States”, University of Pennsylvania Press, Philadelphia, 2006, p. 211). Since people disempowered by homelessness, unemployment and lack of education are not helped by political freedoms alone, civil liberties, as Roosevelt saw them, had to concern distributive justice as well.

The CCLA embraces Roosevelt’s multifaceted vision of civil liberties whenever progressive legislation allows it to do so. The Charter enshrined in our Constitution constitutes the organization’s main working tool. It does a great job advancing freedom of speech and worship, and protecting individuals and groups against freedom from fear. But it contains very few positive rights, and no explicitly recognized economic right. I would like my two blogs to be read as a single narrative about the CCLA’s successes and obstacles in advocating for a robust notion of civil liberties and social justice. I have decided to divide my two blogs according to the two sets of rights Roosevelt was promoting. Here I focus on civil rights, the area where both the Charter and the CCLA are at their best.

THE CCLA AS A POLITICAL PLAYER

In the area of civil rights, the Canadian Charter has transformed the CCLA into a major player in Canadian politics. By articulating its mission around a Charter-based framework, the organization improved its standing in relation to courts and legislatures. The constitutional accountability of Canadian lawmakers at every level of government has become one of its chief objectives. At a fundamental level, the CCLA insures that Parliament and provincial legislatures adopt Charter-compliant laws and programs. This is the goal of its “Charter First” campaign, set forth on its web page.[1] In a recent report, the organization expanded on this “Charter First” initiative. It focusses especially on the question of assisted dying treated in Bill C-14, the Federal Government’s response to the invalidation of the prohibition against assisted dying by the Supreme Court.[2]

Note that the CCLA intervened in Carter, the case that provided the Supreme Court with the opportunity to clarify the constitutional status of assisted dying.[3]

Since strategic litigation was successful in this case, the report I have referred to illustrates a typical pattern with respect to the CCLA’s participation in Canadian lawmaking. A successful litigation compels Parliament or a provincial legislature to revise its initial stance. This enables the organization to subsequently monitor in detail, as it does in this report, the legislative response to the victory it won through litigation. Whether or not interns feel like active participants in national lawmaking depends heavily on what kinds of policies the Charter realistically allows the organization to advocate for. That’s why prospects are good in the area of civil rights. As I shall explain in my next blog, the organization is far less successful when trying to read a socio-economic guarantee into a specific Charter provision. More often than not, it is hampered by the conservative interpretation of the Charter long entrenched in the Canadian judiciary.

THE CHARTER AND THE CCLA’S INCLUSIVE CULTURE

The ways in which our Constitution shapes social environments, and even seemingly trivial details about the relationship between friends and colleagues, is not always emphasized. But this must be done in the case of the CCLA. An organization acting as the guardian of the civil liberties guaranteed by our Constitution implicitly commits itself to creating a working environment expressive of those basic constitutional values. The Canadian Charter may not provide a blueprint for a socialist revolution. But it does provide tools to promote basic attitudes and beliefs conducive to a more inclusive society. Its great contributions to increasing the openness of Canadian society include the recognition of gay marriage, the public affirmation of gender diversity, and the consolidation of multiculturalism. Through Section 15, discrimination can now be viewed through a new intersectional lens more faithful to the experience of marginalized groups. At a more general level, Roosevelt’s emphasis on freedom from fear and freedom of speech become powerful priorities for all those living in decidedly unsafe environments, afraid to be themselves, speak their minds and express their needs.

The CCLA managed to integrate basic inclusive instincts into its organizational culture. To begin with, as a volunteer with a disability, I did struggle with some environmental barriers. But these had to do largely with the inaccessibility of governmental reports to blind readers unable to use certain electronic formats. Neither the volunteers I worked with nor the staff ever second-guessed my own account of these barriers as I experienced them firsthand. At a different level, many people with disabilities have good reasons to fear social isolation from their peers. When confronting social environments that tend to insulate them from others, these environments are unsafe for them in that respect. They are deprived of the freedom from fear which Roosevelt saw as a universal good. Many blind people miss crucial opportunities for social interaction with their peers and colleagues, simply on account of mobility-related barriers. At the CCLA, all volunteers usually lunched together in a park that was difficult for me to access alone. I always found another volunteer to help me get there, even when it meant stopping on the way to order food. While the Charter was far from the minds of volunteers during breaks, that document promotes equality, which includes equal opportunity. They could not work continuously with that document without internalizing the values it implicitly promotes.

A more far-reaching illustration of this internalization came from the incredible sensitivity of all volunteers to gender diversity. Near the middle of my internship, the Orlando shooting happened. Some volunteers, belonging to gender minorities, felt personally affected by it in various ways. We spontaneously spent an entire lunch discussing the tragedy and what it reveals about the aggression that gender minorities still have ample reasons to fear everywhere. No one planned this in any way. One of the volunteers, belonging to a gender minority, mentioned it and expressed how he/she was touched by it in a special way. In many groups, members of gender minorities do not even self-identify as such, let alone sharing their grief for an act of persecution affecting their group. Within this particular group, however, it just went without saying that peers in this situation ought of course to be heard and supported. While Roosevelt spoke of freedom from fear in the context of military aggression and freedom of speech in the context of the right to political dissent, this one lunch secured both at once for the volunteers concerned. Because the Charter is enforced by courts, its impact is often assessed only with reference to strategic litigation. Yet if the only function of constitutional guarantees was to secure court victories, the vast majority of citizens would stop caring for them. The CCLA enforces them first and foremost by selecting volunteers reflecting the diversity of Canadian society, and seeing to it that they uphold Charter values not just in their work but also in their interactions. It promotes freedom of expression by creating a working environment enabling rich and frequent communication, by making working space a safe space.

As much as shifts in social attitudes can accomplish, however, these attitudes are partly shaped by economic conditions. In my next blog, I will be less optimistic, because our Charter says virtually nothing about distributive justice. Unsurprisingly, the CCLA’s influence is far more limited in this sphere.

Perspectives on the Inter-American Court of Human Rights and the European Court of Human Rights

By Brianna Gorence

The time I have spent this summer at the Inter-American Court of Human Rights, the regional human rights Court for the Americas, has lead me to contemplate the differences in the functioning of the Inter-American Human Rights System and the other regional human rights systems. Since the African Court of Human and People’s Rights is the youngest of the three regional juridical human rights systems—only becoming fully operational in 2009, with its first judgment on the merits of a case in 2013[1]—for the purposes of this blog, I will only consider the similarities and differences between the European Human Rights System and the Inter-American Human Rights System.

As independent instruments of regional organizations,[2] the substantive rights deliberated at the Inter-American Court of Human Rights (IACtHR) and the European Court of Human Rights (ECtHR) are quite similar.[3] Protected in the Conventions and Protocols of both instruments are the right to life, (Article 4 ACHR; Article 2 ECHR),  the prohibition on torture (Article 5 ACHR; Article 3 ECHR), the prohibition on slavery (Article 6 ACHR; Article 4 ECHR), the right to liberty and security of the person (Article 7 ACHR; Article 5 ECHR), the right to a fair trial and judicial guarantees (Article 8 ACHR; Article 6 ECHR), the principle of nullum pena sine lege (Article 9 ACHR; Article 7 ECHR), respect of private and family life (Article 11 ACHR; Article 8 ECHR), freedom of thought, conscience and religion (Article 12 ACHR; Article 10 ECHR), freedom of expression (Article 13 ACHR; Article 10 ECHR) freedom of reunion and association (Article 15 and 16 ACHR; Article 11 ECHR), the right to matrimony (Article 17 ACHR; Article 12 ECHR), the right to an effective recourse (Article 25 ACHR; Article 13 ECHR), the prohibition of discrimination and equality before the law (Articles 1(1) and 24 ACHR; Article 14 ECHR and Protocol 12), the right to property, (Article 21 ACHR; Article 1 Protocol 11), and freedom of circulation and residence (Article 22, Protocol IV)… already a long list among others.

Although there may be differences in the rights covered in each Court,[4] the additional protocols continue to fill the gaps in the jurisdiction of the Courts.[5] Nonetheless, subtle differences remain: capital punishment is definitively prohibited in the European system—even during war—through its Protocol 13, whereas, although the right to life, protected in article 4 of the ACHR has been interpreted strictly by the Court,  the Inter-American Protocol to Abolish the Death Penalty does not go as far as an outright prohibition.[6] What does this mean? Does this make an enormous difference? In the larger scheme of things, precedents continue to be made and each Court’s jurisprudence continues to evolve. In the smaller scale, a disparity in the rights recognized could make the difference between a violation interpreted by the Court and no violation.

Other differences between the Courts include the ECtHR’s doctrine of the margin of appreciation which allows the Tribunal to permit a degree of discretion in States’ implementation of the ECHR and its Protocols.[7] The IACtHR does not have such a doctrine. The result of this is that in the Inter-American system, each State is held to the same standard, regardless of their divergent political, cultural and legal traditions. Given the particularities of each society and the specific violations in question, such a strict standard at the IACtHR could be criticized as overly restrictive, while on the other hand, a large degree of derogation could estrange human rights from the principle of equality before the (international) law regardless of their State, national origin, ethnicity, race, gender, religion, etc.

Another difference between the two institutions is the way in which Court sessions are held. At the IACtHR there are public hearings and private hearings, normally held with all seven judges. These hearings are not held on a permanent basis. At the ECtHR, the Court is permanent and does not have the filter of the Commission to limit the entry of complaints. Due to the higher volume of cases heard, the ECtHR has a single-judge formation, committees of three judges, Chambers of seven judges and a Grand Chamber of seventeen judges (Article 26 ECHR). Most notably, unlike at the IACtHR, at the ECtHR the hearings are only for allegations and thus there are no witnesses or experts that appear before the Court.

While both Courts can order reparations, it is pertinent to recall that the ECtHR normally only provides “Just satisfaction”; only in recent cases has it ordered reparation measures other than monetary reparations. Furthermore, while the IACtHR is more widely recognized for its ability to take specific injunctive measures to ensure the temporary protection of petitioners, the ECtHR can also take interim measures in accordance with Rule 39 of the Rules of the Court where there is an “imminent risk of irreparable harm.”[8]

Finally, the IACtHR has issued 22 advisory opinions[9] on a wide variety of issues to date, including rights and guarantees of children in the context of migration (Advisory Opinion No. 21; Advisory Opinion no. 17), due process (Advisory Opinion No. 19) and judicial guarantees in states of emergency (Advisory Opinion No. 9, Advisory Opinion No. 8). Drawing a stark contrast, the ECtHR has not issued a single advisory opinion. The advisory opinions issued by the IACtHR have allowed the Member States of the OAS to consult the Court on the interpretation of the regional Human Rights Treaties (64.1 ACHR), for the Court to express its opinion on domestic legislation (64.2 ACHR) as well as to further develop its stance on a number of important issues.

The internship with the IACtHR has been most valuable because it has allowed me to see an institution that I had previously idealized without its pedestal—to see the inside of the Court, the people that make it function to thus come to a position where I could look at the practical differences between the European Human Rights System and the Inter-American Human Rights System. The implications that the differences between the two institutions have is something that I will continue to ponder over. Nevertheless, despite their differences (and the criticisms one can make of them as institutions) I believe they hold an invaluable worth for the advancement of the relationship between the State and its citizens and offer optimism for the establishment of precedent for the future.


[1] “In First Judgment on the Merits, African Court Finds Tanzania Violated Citizens’ Right to Participate in Democracy by Prohibiting Independent Candidates”, International Justice Resource Center, July 5, 2013.

[2] The two regional organizations are: The Organization of American States and The Council of Europe.

[3] See the American Convention on Human Rights (ACHR) and the Convention for Protection of Human Rights and Fundamental Freedoms, the European Convention on Human Rights (ECHR).

[4] See the perspective expressed on the right to juridical personality (Article 3 ACHR), the right of reply (Article 14 ACHR), the right to a name (Article 18 ACHR), the rights of the child (Article 19 ACHR), the right to nationality (Article 20 ACHR), political rights (Article 23 ACHR), and the right to progressive development of the economic, social and cultural rights (Article 26 ACHR) in the introductory chapters of Jurisprudencia Regional comparada de Derechos Humanos by Fabio Salvioli, Claudio Zanghi and Diana Di Peitro, 2013.

[5] Such as the right to education covered in the European Human Rights System Protocol I and in the Inter-American System in article 13 of the Protocol of San Salvador, although the latter is not yet in force.

[6] See, for example, the Case of Dacosta Cadogan v. Barbados, Judgment of September 24, 2009, paragraph 47: “In interpreting the issue of death penalty in general, the Court has observed that Article 4(2) of the Convention allows for the deprivation of the right to life by the imposition of the death penalty in those countries that have not abolished it. That is, capital punishment is not per se incompatible with or prohibited by the American Convention.  However, the Convention has set a number of strict limitations to the imposition of capital punishment.  First, the imposition of the death penalty must be limited to the most serious common crimes not related to political offenses.  Second, the sentence must be individualized in conformity with the characteristics of the crime, as well as the participation and degree of culpability of the accused.  Finally, the imposition of this sanction is subject to certain procedural guarantees, and compliance therewith must be strictly observed and reviewed”. See also “The Death Penalty in the Inter-American Human Rights System: From Restrictions to Abolition”, OEA/Ser.L/V/II Doc. 68, 31 December 2011, < https://www.oas.org/en/iachr/docs/pdf/deathpenalty.pdf>.

[7] See also “An overview of the Strasbourg Court’s margin of appreciation doctrine”, Open Society Foundations, April 2012, <https://www.opensocietyfoundations.org/sites/default/files/echr-reform-margin-of-appreciation.pdf>.

[8] Factsheet – Interim measures, European Court of Human Rights Press Unit, <http://www.echr.coe.int/Documents/FS_Interim_measures_ENG.pdf>

[9] See Advisory Opinions, <http://www.corteidh.or.cr/cf/Jurisprudencia2/busqueda_opiniones_consultivas.cfm?lang=en>.

Without the Rule of Law

Alexander Agnello

Some of my loved ones asked how I “helped” in the Philippines. It is a question that is hard to answer without sounding like BLSAM[1]’s “intrepid global citizen”[2]: the person who came prepared to “make a difference”. The truth is that no amount of education could have prepared me for the regime change in the Philippines. Under the newly elected Duterte administration, there have been over 2000 summary executions in the last two months[3]. In a country where justice is “slow” and the prison system is one of the most overcrowded[4], trial by publicity has become the main method of usurping crime.

I am referring to a president who publishes hit-lists and turns poor citizens into contract killers. In his profanity-filled speech to a crowd in the slums of Tondo, Duterte calmly explains “[i]f you know of any addicts, go ahead and kill them yourself as getting their parents to do it would be too painful”[5]. In fact, the vast majority of summary executions have been performed by vigilantes, and on the streets of Manila lay corpses with placards that read “Do not follow me. I am a drug pusher/dealer” in Tagalog.

With this blatant disregard for the rule of law, stakeholders are focusing on informing the public of the atrocities this government is committing, and making important links to the infamous Marcos martial law era. But you could only do so much condemning. The Philippine National Police are part of the death squad, the country has a dire journalistic impunity record[6], and so field reporting by other groups has been admirable and necessary. A report submitted by Father Amado Picardal shows that none of the 1424 suspects killed from 1998 to 2015 by Duterte’s former government in Davao were charged in court.”[7] Another organization I met with, the Humanitarian Legal Assistance Foundation (HLAF)[8], are working in conjunction with local governments for expedited due process through a jail decongestion project. HLAF Attorney Kim Claudio proposed that we visit some of the city jails to provide legal information to detainees and update some of them on their cases. He explained to me that many of the detainees wait years, sometimes decades, for their cases to be heard. Although detainees are presumed innocent in the eyes of the law, society tends to brand them as criminals because they have spent so much time in the penitentiary system. Shortly after our visit, photos of overcrowding in Quezon City Jail that showed inmates sleeping on top of other inmates made their rounds on international news and social media. I hoped that the public condemnation of abominable prison conditions would signal a turn of the tide, but now I am uncertain. After a promise to kill 100 000 criminals and “fatten the fish in Manila bay”, thousands of Filipinos continue to turn themselves in out of fear of being killed on plain suspicion[9][10].

 

Credit: Noel Celis/AFP/Getty Images

Credit: Noel Celis/AFP/Getty Images

 

The rule of law is often seen as a starting point and a constant in theoretical work in law and political philosophy. However, in a country where the best human rights lawyers and advocates are put under heavy pressure by a state that promotes vigilantism, abuses power, and provides no chance for due process, it is difficult as an intern to know where to begin. I’ve read and watched debates on alternatives to the rule of law and international standards, but I had never worked alongside people struggling to uphold them until I came to the Philippines. I left Montreal on the day of the national election, without a clear idea of how hard it could get. Fortunately, I had the chance to work in solidarity with alternative law groups and an inspiring group of Ateneo Human Rights Interns, who all work relentlessly to hold the Duterte administration accountable, and who serve “the lost, the least, and the last”.

Human Rights Interns Group Arawatan at a retreat in Tagaytay.

Human Rights Interns group Arawatan at a retreat in Batangas. Credit: The Ateneo Human Rights Center, August 4, 2016.


[1] The Black Law Students’ Association of McGill

[3] http://www.businessinsider.com/rodrigo-dutertes-drug-war-in-the-philippines-has-killed-2000-2016-8

[4] http://time.com/4438112/philippines-overcrowded-prison-manila-rodrigo-duterte/

[5] https://www.theguardian.com/world/2016/jul/01/philippines-president-rodrigo-duterte-urges-people-to-kill-drug-addicts

[6] http://www.cnn.com/2015/05/04/asia/philippines-deadly-for-journalists/

[7] http://www.manilatimes.net/duterte-kills-only-bad-men/259609/

[8] http://home.hlaf.org.ph/

[9] http://www.bbc.com/news/world-asia-36251094

[10] http://www.cnn.com/2016/08/08/asia/duterte-war-on-drugs-officials-surrender/

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.

 


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.

 

 

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

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