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Les “Gardiens de la Brousse”

Lucas MathieuPar Lucas Matthieu

Le Burkina Faso connait depuis deux ans maintenant l’émergence de milices armées indépendantes dans les quatre coins du pays. Nommées « Koglweogos » (Gardiens de la brousse), ces milices se proposent comme garantes de la sécurité des populations dans les zones du pays que l’armée et la police ne parviennent pas à couvrir. L’émergence de tels groupes relève de la synergie d’un certain nombre de facteurs. Le manque de confiance des populations envers le corps politique, notamment depuis la révolution de 2015 et la période instable de transition qu’il la suivit vient se coupler avec l’incapacité du corps judiciaire à poursuivre les auteurs d’un certain nombre de crimes impunis (entre autres l’assassinat de l’ancien président Thomas Sankara et du journaliste Norbert Zongo). Par ailleurs, l’insécurité extrême à l’Est et au Nord du pays, tant au niveau des attaques à main armée sur les routes que de la menace terroriste grandissante au Sahel, a démontré l’incapacité de l’État à assurer la sécurité des citoyens Burkinabès. Un collègue me racontait l’histoire d’un commissariat de campagne, couvrant une zone immense, et n’ayant pour seul équipement qu’une mitraillette et une moto pour quinze policiers. On comprend dans ces conditions que les populations s’organisent pour gérer leur propre sécurité.

Les Kowglweogos ont le mérite d’avoir rempli leur objectif. L’insécurité dans l’Est du pays a baissé drastiquement, les attaques se font plus rares, et les Burkinabès dorment plus tranquilles. Mais cela se produit au cout du manque total de respect pour les droits des présumés voleurs. Ceux-ci sont ligotés, parfois victimes de torture ou de traitement inhumains et dégradant, et forcés à confesser leurs présumés crimes sans autres formes de procès. Une fois confessés, ils sont maltraités d’avantage , voir parfois trainés à l’arrière d’une moto dans tout le quartier pour servir d’enxemple aux voleurs potentiels. Facebook regorge désormais de pĥotos de ce type, postés par les groupes Koglweogos.

 

Un post Facebook du groupe “Koglweogos du Burkina Faso”.

 

Ainsi, si l’intimidation de ce type est bien une force de dissuasion efficace, elle se produit en désaccord complet avec les droits de la personne. La régle de droit et le droit à un procès équitable passent à la trappe, les Koglweogos se font juges et partis, et les victimes soufreent de traitements inhumains et dégradant, d’atteinte à leur intégrité physique et morale, et à leurs droits à lapropriété.  Le rôle d’organisations comme le Mouvement Burkinabè des Droits des Hommes et des Peuples devient alors paradoxal. Les Koglweogos sont des structures citoyenne qui tentent de défendre leur droit à la sécurité devant la faillite de l’État à le maintenir.  En tant que tel, il doivent, selon le MBDHP, être encouragés. Mais comment créer un discours permettant à la fois d’encourager les initiatives citoyennes et locales palliant au déficit de l’État, tout en étant forcé d’en condamner les agissant en termes de torture et de violation des droits humains ?

J’ai eu la chance de rencontrer, lors de la visite d’une des antennes du MBDHP à Koudougou, trois Koglweogos qui étaient venus demander de l’aide au MBDHP suite à l’arrestation arbitraire de trois de leurs camarades. Le groupe de Koglweogos était rentré en conflit avec la communauté d’un village. L’un des villageois refusait de payer les « frais de corde » (l’amende infligée par les Koglweogos aux voleurs ) et était parvenu organiser son village pour se battre contre les Koglweogos venu réclamer les frais. Une fois sur place, le groupe de Koglweogo refusa le combat et appela la gendarmerie. Celle-ci les incita les Koglweogos à leur remettre leurs armes et à les escorter « en lieux sur ». Au final, elle en emmena trois directement au postes pour les arrêter, et en livra cinq autres, désormais désarmés, à la population en colère. L’un d’entre eux est désormais porté disparu, et présumé mort.

Un groupe de Koglweogos

J’avais, avant cette rencontre, mis au point pour Équitas l’introduction d’un « Plan d’action » au niveau des Koglweogos. Cela m’avait permis de mettre au point un document d’une dizaine de page, expliquant la genèse de ces groupes, leurs méthodes, et les problématiques qu’ils posent en termes de droits humains. Pourtant il fallut une rencontre directe avec l’un de ces groupes pour avoir l’autre coté de l’histoire; et comprendre les rapports de force, ainsi que le sentiment d’indignation, que ces groupes aussi connaissent devant la faillite de l’État. Lors de la réunion, le premier Koglweogo qui prit la parole nous expliqua selon son point de vue, que le MBDHP et les Koglweogos recherchaient les mêmes objectifs : corriger les individus pour faire une meilleure société. Seulement, selon lui, le MBDHP utilisait les méthodes des « blancs », alors que les Koglweogos utilisaient des médhodes plus « traditionnelles ».  Mon collègue répondit qu’il comprenenait, et que seul un dialogue et une compréhension commune pourraient permettre à chaque parti d’attendre ce qu’il voyait aussi comme un objectif commun, la sécurité des Burkinabès.

Cela n’a pas répondu à mes interrogations quand au paradoxes que doivent connaitre les association de défense de droits de la personne devant des groupes de ce type. Mais ce fut une bonne leçon sur l’importance d’entendre toujours les deux cotés du récit, et de savoir appréhender chaque situation dans sa nuance et sa contingence particulière. Et surtout, sur le rôle irremplaçable des organisations grassroots comme le MBDHP. Il apparait que les seuls acteurs capable d’apporter cette nuance sont ceux qui agissent sur le terrain, en connaissent les contradictions, les compromis, et les rapports de forces. Rien dans le matériel et la recherche que j’avais accumulé sur le sujet jusqu’à mon entrevue n’aurait pu m’y préparer, ou me permettre de donner une réponse tranchée à un paradoxe comme la réponse à donner aux Koglweogos.

A Visit to the High Court of Delhi

Alexa FranczakBy Alexa Franczak

Visiting the High Court of Delhi is not an easy process. Unlike Canadian courts where in most cases one can simply walk into any courtroom, attending High Court required a reason for attending, but more importantly, a visitor pass. Luckily, a friend has a few lawyers in her family and I was able to get a pass to watch some of the proceedings.

Before my visit, I was heavily encouraged to dress indistinctly in a white dress shirt and black pants to blend in with the barristers in their uniform court dress with white bands and a black coat. It was apparent that how one dressed signified whether they belonged in the courthouse or not.

Entrance

It was hard not to compare the experience between attending a Canadian courthouse versus attending one in India, and this contrast remained apparent throughout my visit. The difficulty of actually entering the courthouse was one of such differences. Unlike Canadian courts where the open court principle allows the public access to most court proceedings, the security measures in place at the High Court of Delhi ensured that no one was wandering into the courthouse without an authorized purpose.

Spot all the barristers

Because of the 2011 Delhi bombing, which killed 17 people and occurred right outside an entrance gate of the high court, security was very stringent. Getting a visitor pass required identification with your address, photocopies of your identification, your picture taken, and a lawyer accounting for the purpose of your visit to High Court. The visitor pass must then be approved and printed by an official.

As is the case with most matters concerning Indian bureaucracy, this was a time-consuming process and a hassle. Due to this requirement for all visitors regardless of their reason for attending court, there was long wait time for all visitors to enter the courthouse. I could easily see how this must be a frustrating process for visitors, especially those who must attend court proceedings that last several days. While the problem of access to justice in India obviously include issues of corruption, legal fees, time costs, and accessibility, surely the most basic things – such as entering the courthouse – contribute to that.

The queue to get a visitor pass

Unsurprisingly, the monotony of court proceedings is exactly same in India.

A long day of waiting

Assumptions revisited: the origins and meaning of the Charter

By Mark Dance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

National Aboriginal Day at the Ottawa-Carleton Detention Centre

Madeleine MacDonaldBy Madeleine Macdonald

On National Aboriginal Day, we went to Ottawa.

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

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

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

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

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

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

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

Lucas MathieuPar Lucas Matthieu

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

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

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

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

 

Ag Shame! We Can Only Do Law Reform

By Kevin Lee Pinkoski

Law Reform and the Luxury of Legal Research:

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

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

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

The Necessity for Law Reform in Namibia:

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

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

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

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

The Law Reform and Development Commission:

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

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

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

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

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

The LRDC’s Law Reform Process:

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

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

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

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

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

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

Necessity over Luxury:

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

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

Challenging Narratives: Development, Duvalier, and interning at ASFC

By: Sarah Cha

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

[2] Ibid at 41.

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

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

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

[6] Quigley, supra note 1 at 39.

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

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

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

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

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

A Kindness Is Never Wasted

Miller AilsaBy Ailsa Miller

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Access to Justice and Health Services for Women in Rural Uganda

by Jillian Ohayon

I came to Uganda this summer to work as an intern for the Center for Health, Human Rights, and Development in the city of Kampala. I want to use this post to focus mostly on one aspect if the work that I have done here, and will likely use the next to write more generally about life in Kampala (which, spoiler alert, has been pretty amazing and an incredible experience of self-growth).

The Center for Health, Human Rights, and Development is an organization comprising about thirty employees. Most of them are lawyers, although vital members of the organization also include administrators, research officers, communications officers, and accountants. CEHURD has three programs which generally function separately from one another, though they are intentionally and intrinsically interlinked. They are Community Empowerment; Research, Documentation, & Advocacy; and Strategic Litigation. In Ugandan NGO terms, I have come to understand that CEHURD is a rather well-known name, despite it being a young organization of only about seven years.

I began my time at CEHURD by attending a court session regarding Ugandan tobacco laws with the Strategic Litigation team, but was soon after incorporated into a project with the Community Empowerment program. This will be a two-year long project supported by The U.S. President’s Emergency Plan for AIDS Relief (PEPFAR). CEHURD’s project is under a PEPFAR partnership with the DREAMS project, which stands for “Determined, Resilient, Empowered, AIDS-free, Mentored, and Safe Women.” The DREAMS goal is to create country-owned and country-driven sustainable programs to address the prevalence of HIV/AIDS among adolescent girls and young women in sub-Saharan Africa. The vision is to combine evidence-based approaches with regards to the structural drivers that directly affect adolescent girls and young women in their risk of contracting HIV. This is where CEHURD comes in. CEHURD’s fieldwork on the DREAMS project involves going into villages to interview adolescent girls and young women as well as a variety of stakeholders. The work is focused predominantly on access to HIV services and the legal and societal context surrounding sexual assault. Due to the societal framework and corresponding views prevalent in rural Uganda, young women who are village dwellers are heavily susceptible to sexual assault. This, in turn, drastically heightens their risk of contracting HIV.

My work on this project began in the Kampala office, where I wrote a literature review for the Community Empowerment team. I researched past work that had been done on this topic, and noted the successes, failures, and recommendations that came out of those studies. This helped to shape and inform the fieldwork. I was also involved in editing and writing many of the research tools for the interviews we conducted in the field. Once the surveys were completed and the stakeholders had been mobilized, I joined the team to spend a week in the district of Gomba, about three and a half hours outside of Kampala. We visited three villages where we interviewed adolescent girls and young women, as well as various stakeholders, including police officers, parole officers, healthcare providers, NGO officers, and various members of local government. I had the opportunity to engage both with the stakeholders and women alike.

Village of Kanoni, District of Gomba

sitions in local government. In relative terms, these interviews were relatively encouraging experiences. Most spoke English very well, and they were all quite highly educated. They were also all quite familiar with the prevalence of HIV among adolescent girls and young women in their district, and seemed to have been very aware the structural drivers that perpetuate the problem. They shared with me their plans and programs that are being developed to address the problem, and all of them seemed serious and committed to the work. I am confident that CEHURD will be able to work with them toward the implementation of programs that will improve upon this situation in a significant way.

Health Facility Assessment

On my last day, I conducted a facility assessment, which took the form of an interview with the in-charge at a health facility in the village of Mamba. Luckily, I had been given a detailed assessment tool, because if I had been told to assess this facility according to my own standards, I’m not sure how I would have proceeded. The health facility does not have a doctor. From what I understood, the in-charge is trained in nursing, and, occasionally, they have a midwife come by. The facility has no electricity, no bathrooms, no running water, and had run out of stock on about half of its medication. Unfortunately, CEHURD’s area of expertise does not lie directly in facility improvement. From what I understand, it is the government that is responsible for that.

Interviews with Adolescent Girls and Young Women

In total, I surveyed 17 girls. 15 of them were transactional sex workers, all of whom were in relationships, some of whom were married, and all of whom had been tested and were HIV negative. I asked them questions about their experiences with gender-based violence, ranging from verbal abuse to being violently forced into sex using a weapon. Only one of the 17 told me she had never experienced any abuse, and the translator seemed to think that she wasn’t telling the truth. One of the girls, after I asked her whether her husband insults her and humiliates her in public, looked deeply confused, and then replied, “Of course.” Others laughed when I asked whether or not their partners had ever slammed them against the wall as if to say, “What kind of a question is that? Doesn’t that happen to everyone?”
To say the least, it was a lot to process.

One main issue that revealed itself from the interview responses we received is the lack of access to justice and the necessary HIV services in cases of sexual assault. The problems that amount to this issue are extensive and interlinked. Girls are very often married off at a young age in order to bring money to their families. If a girl has been sexually assaulted, she may be considered impure and possibly not suitable for marriage. Therein lies the first problem. Next, there is a 72-hour window in which a person can visit a clinic after sex in order to get the medication that would prevent HIV had they contracted it. However, since many girls are too afraid to tell anybody when they have been assaulted, and are also unaware of the 72-hour window, many do not receive the proper preventative care. Furthermore, most of the women with whom I spoke told me that they were too afraid to tell police officers about their experiences with sexual assault. They fear not being believed, being stigmatized, and having to face the anger of their perpetrator and/or their families. Furthermore, often, private negotiations will take place between the victim’s family and the perpetrator, and so the perpetrator is rarely formally punished. Beyond this, even if a victim does go through with the process of successfully filing a police report, there are two related access to justice problems that lie beyond that. The first is that the only court that hears those cases is quite a significant distance away from the village, and transport is both inconvenient and costly. The second is that the law states that the health worker who examines the victim after the assault took place must testify at the hearing. However, there exists no means of compensation for the worker’s time or transportation. Therefore, the large majority of the time, the health worker simply does not show up. When this happens, the case is thrown out.

***

On a more personal note, I have to say that as emotionally challenging as it was, speaking with these girls and women was a humbling privilege. Despite the hardships they shared with me, I sensed nothing but kindness and positivity radiating from them.


I sincerely hope that the empowerment programs that CEHURD implements will effect real change in the lives of these girls and women. Given the passion, focus, and dedication of the Community Empowerment team, I have faith that they just might.

Sunset over Lake Walamo in the village of Mamba

Divisional Court as a small world: cultural homogeneity or a forum for dialogue?

 

“Small world,” remarked another Canadian Civil Liberties Association (CCLA) summer student sitting next to me. We were looking around the Ontario Divisional courtroom at Osgoode Hall in Toronto and we were both waving at or pointing out friends and acquaintances dotted across the wooden benches.

“Ah, there’s my friend Ella, I guess she’s working at the firm that’s doing pro bono for another intervenor.”

“Oh, there’s my classmate Sean, I forgot that he’s at the Attorney General this summer.”

“Woh, I think that woman pleading right now is a cousin of my good friend Dave!”

We’d taken the day out of the CCLA office to sit in on closing arguments for Christian Medical and Dental Society (CMDS) v College of Physicians and Surgeons (CPSO), a constitutional challenge to policies requiring that doctors give “effective referrals” when the doctors are themselves religiously or morally opposed to certain procedures—procedures like abortion and doctor-assisted dying.

CMDS’ counsel was arguing that with the new requirement that they give referrals, CPSO is making medical professionals decide between their religious beliefs and their professional role, and hence infringing their section 2(a) freedom of religion Charter rights. CPSO, on the other hand, asserted that the rules around effective referrals adequately balance the competing rights and freedoms with the statutory objective, maintaining access to healthcare services, while only minimally impairing certain physicians’ freedoms.

Fascinating though the case may have been (and may continue to be once the decision is rendered and potentially appealed), what I initially took away from the courtroom was an eerie feeling of cultural homogeneity. In part by virtue of my attendance at a central-Canadian law school, I was acquainted with a sizeable percentage of the people in the room before I walked in the door. Drawn largely from an urban, white, progressive background, a set of like-minded folks appeared to fill the benches.

But what dawned on me as the day unfolded was that not everyone in the room was cut from the same cloth. After speaking over the lunchtime adjournment to a couple of students and young lawyers whom I did not recognize, I realized the intervenors and partisan spectators on the other side of the argument brought with them noticeably more religious and conservative worldviews.

It became clear that the demographics were not homogenous after all, but rather reminiscent of a kind of bifurcation that I’d observed while working on Parliament Hill in Ottawa. There, my colleagues in the Parliamentary Internship Programme were generally progressive and more often than not believers in the positive potential of state power. But while we would mostly socialize amongst ourselves on the Hill, the program placed us in both opposition and government offices, at a time when the Harper Conservatives ran the show. I realized through that experience that a steady stream of young conservatives churned through those offices as well, many drawn from evangelical backgrounds and many of them more fiery and committed to politics than I’d previously grasped.

Like on the Hill, the population in the courtroom was lined up mostly along partisan lines, even sitting on different sides of the room. These proceedings could be understood, I realized, as politics in another arena. Charter rights would take the place of policy, judges opinions the place of MP votes—but the crowds would still root for their side and one would temporarily prevail over the other.

What’s more, at least in one framing of the dispute, each side had its own bit of the Charter to root for; the CMDS was rallying behind the importance of the section 2(a) freedom of religion while the CPSO and many of its allies were arguing that section 1 should carry the day, saving any apparent infringing policies in the process.

“Nobody here is doubting the sincerity of your clients’ beliefs,” said one judge to the CMDS counsel in the dying moments of the hearing. The judge was staring the counsel down as if to act out the drama of the Charter, as if to say: yes, your clients have this right but whether it prevails depends upon what we find to be necessary for the functioning of a free and democratic society.

In that courtroom and mediated by the language of law, the perspectives of people like me hopefully came into dialogue with those of people from a markedly different background and set of convictions. In that sense, it would be all of our arguments and sentiments that would constitute the real small world of this case—the microcosm of opinion, arrayed around this particular dispute and working itself out in the reasoning of the judges, striving in their way to do justice to each and to all.

Opinions expressed are my own and do not necessarily reflect the view of the CCLA.

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