Kenyan Courthouses: Handwriting, Missing Witnesses and Wrong Numbers

2014-ODell-AnnieAnnie O’Dell

This is my fourth week in Kenya for my internship with the Equality Effect. I am working in Meru, with a student from the University of Toronto. We have been placed with a partner organization, who does almost everything. It has an orphanage, a health clinic, it provides micro-loans, there’s a school, and most importantly, a rescue centre. The rescue centre currently houses about 25 children, most of whom have been defiled (sexual assault of a minor). They offer them counselling, legal support, medical support, and aid during the transition into motherhood for the girls who become pregnant. Only those girls who either have nowhere to go or are in danger within the community are admitted, others are treated at home.

 Our job is to comb through the files since the 160 Girls decision was made last year to document how police treatment has changed, if at all. The decision clearly stated that the police must diligently fulfil their obligations to all children who bring a complaint of defilement to them. The belief is that, as Meru was ground zero for 160 Girls, the police here are the most likely to be compliant (the decision was binding across the country).

The most interesting part of our job is going to court. We’ve so far seen been to two trials… sort of. The Kenyan legal system is slow and delays happen regularly, mostly for reasons that would not fly in Canada.

Our first court date was at the courthouse in the city. Most of the Courthouse is outdoors, while the courtrooms are indoors. We checked a typed list posted on a notice board to see in what order our case would come. It was supposed to be a mention for an elderly man who had allegedly defiled a girl of 14. (I’m still not entirely certain what a mention is, but in this case, it meant the accused had a chance to accept or deny the evidence placed against him). We waited outdoors, on three long benches under a corrugated roof, for the accused’s name to be called. We sat at one end of the bench with the social worker and the mother of the victim. At the other end of the bench, probably no more than 20 metres away, awaited the accused who was out on bail. While I am not so familiar with Canadian courthouses, I was upset by the casual nearness the accused and the victim were expected to endure. Particularly in such a sensitive case.

Eventually, the accused’s name was called and we followed him into a magistrate’s chambers. The Courts are undergoing a transition, and the magistrates are currently hearing cases in their chambers. The room was barely big enough for the magistrate’s large desk, a desk for a bailiff/secretary, a bench crowded with the accused and his lawyer, and us four standing partially out in the hallway. Kenyans are very soft-spoken people, so I unfortunately did not hear anything. But we were in out and out of that room within a few minutes.

Apparently, a new magistrate was assigned to the case. When this happens, the accused is asked if he wished to re-start the trial or continue. I am unsure what the accused chose, but I believe he did choose to continue. The mention never came though, because the case notes were not typed. The magistrate then adjourned for another month or so, even though the case has been on-going for over a year already. This sort of delay is a frequent occurrence.

Another, even more frequent type of delay, is the absence of witnesses at trial. The second day we spent at a different courthouse. Once again, we checked for our accused’s name on a bulletin board and saw that it would take place in Courtroom 1. We waited for the courtroom to open (about an hour later than it was supposed to) and entered. We, and many others, squeezed into a tiny courtroom on three very uncomfortable wooden benches. A female magistrate eventually walked in. They called one accused at a time to begin their mention or hearing. While it took place in Kiswahili, it was easy to understand that many witnesses and some accused were missing. It was finally our accused’s turn. He was accused of defiling his tutee, his defence was that he thought she was over 18. He stood up. Some questions were asked in Kiswahili. One name was called. Silence. Another name called. More silence. Neither the doctor nor the police appeared to testify. Case adjourned for another month.

We then headed to the police station to enquire why the officer never showed up. We waited on the compound for over an hour to get an answer. The officer was back in the city (about 90 minutes away). But the officer who was helping us went above and beyond. He dug through handwritten files to discover we had with us the wrong court file number. He found us the right one (one digit off). That case has been closed for several months. The accused had been sentenced to 15 years imprisonment! Great news! Though we still have no idea whose trial we witnessed…

How should an activist be?

By Jihyun Rosel Kim 

Before I began my internship, I was told it would involve mostly research. That statement is technically true – the majority of my time here was spent wrestling with Quicklaw, writing memos, or making information charts. However, one thing I’ve learned about the Legal Network is that it is truly committed to the issues identified in its mission statement, and will speak out in various ways.

1. Quiet action at the Court of Appeal

On June 15, staff of the Legal Network and other members of the community (including members of the Ontario Working Group on Criminal Law and HIV Exposure) participated in a “quiet action” campaign at the Ontario Court of Appeal. The Court was scheduled to hear an appeal on a case involving HIV status non-disclosure (R. v. M.), where both the Canadian HIV/AIDS Legal Network and HIV/AIDS Legal Clinic of Ontario (HALCO) were intervenors.

The "HIV Positive" action at the ON Court of Appeal

At trial, the judge ignored case law by not applying the significant risk test (i.e. a person living with HIV must disclose his/her status to the partner when the sexual activity poses a “significant risk of bodily harm”) set out in R. v. Cuerrier. Instead, he charged the defendant with aggravated sexual assault simply on the ground that the defendant did not disclose his status. Although the defendant stated he used a condom (which further diminishes the already-low risk of HIV transmission), the trial judge said it did not matter whether the sex was protected or not.

To demonstrate to the Court that people living with HIV and their allies were concerned about such overbroad use of criminal law, the Legal Network organized a t-shirt campaign—members showed up to the courtroom all wearing the same t-shirt with the logo “HIV Positive” at the front. There were about 18 people at court, and since the assigned courtroom for the hearing happened to be a smaller one, we effectively filled the gallery.

Unfortunately, the Court decided to stay the appeal, to wait for the Supreme Court decision on HIV non-disclosure (R. v. D.C.; R. v. Mabior) later this year. Even though it was a bit anti-climactic, one of the justices did take notice of the audience uniformly dressed in “HIV Positive” shirts to address us directly, and say that he realizes these issues are important and that he will make sure to rule on the issues carefully once the Supreme Court decision came down.

2. Action around cuts to refugee health care

At the end of April, Citizenship and Immigration Canada announced changes to the Interim Federal Health Program, which would effectively cut most supplemental health care benefits for refugee claimants, and all access to government-funded health care services for failed refugee claimants (who may reapply to stay in Canada under humanitarian and compassionate grounds). The only exception would be when the claimant’s health condition presented a “public health risk”—such as HIV. As of now, the public outcry seems to have made Kenney’s office backtrack a little bit from their initial cuts these days, but most of the cuts still remain.

On June 18—the national day of action to protect refugee health care—the Executive Director emailed everyone about the protest in Toronto, and encouraged everyone to attend the protest with him. So later on that day, I went to the Citizenship and Immigration Canada office on St. Clair Avenuewith a team of policy analysts and the ED of the Legal Network, and joined a few hundred people who were chanting “health care for refugees!”

Through participating in these actions, I’ve learned about the joys of being out on the streets with other people who believe in the same things as I do, which offers tremendous comfort in times where laws and policies seem to be going to a dark place. These experiences won’t appear on my CV as things I accomplished, but they nevertheless had a big impact on my outlook on activism and effective advocacy.

And for that intangible feeling of joy that came from connecting with other like-minded people who are committed to making things better, I am very grateful to the Legal Network.

Criminalization of HIV status non-disclosure: what’s the issue?

by Jihyun Rosel Kim 

When people hear the question “should non-disclosure of HIV status be a criminal offence?” their usual response is, “well of course! We shouldn’t hurt people.” When all we see and hear about HIV in the news is so sensationalized to the point that we equate HIV with death and people with HIV with predators, that response is understandable.

The landmark case involving HIV status disclosure was R. v. Cuerrier.[1] In the case, the Supreme Court established that failure to disclose one’s HIV status could lead to a charge of aggravated sexual assault, which can lead to a maximum of a life sentence in prison. Justice Cory for the majority stated that non-disclosure of HIV status that would lead to a “significant risk of harm” would constitute an aggravated sexual assault. However, he never clarified what exactly would amount to “significant risk,” despite the differing levels of risk of transmission in diverse sexual activities. Justice Cory did, however, stated in an obiter that certain actions such as wearing a condom might be seen as mitigating the “significant risk.”

Since the Cuerrier decision in 1998, science has come a long way for HIV/AIDS. Moreover, research has shown that transmission risks for HIV are generally low, and differ significantly depending on the activity. Generally, the transmission rate of HIV during unprotected vaginal intercourse is 0.1% per act (with recent analysis suggesting a more accurate rate would be 0.08% per act).[2] If a person has an undetectable viral load (below 50 copies of HIV virus per mililitre of blood), the risk of infection is about 1 in 10,000 for unprotected sex acts.[3] Recent studies also suggest that antiretroviral therapy can reduce transmission up to 96% in heterosexual couples, where one partner is HIV-positive and the other is HIV-negative.[4]

Yet, Canadian courts have not kept up with scientific evidence. Due to the unclear guidelines regarding what exactly constitutes “significant risk,” courts have continued to send mixed messages regarding legal duty to disclose one’s status. Some courts have held that a person who did not disclose to a partner but wore a condom is not criminally liable. Other courts have held the opposite view by charging a defendant with sexual assault for non-disclosure without considering the kind of sexual activities.

The conflicting messages from the courts seriously undermine and threaten the rights of people living with HIV/AIDS (PLHs). How can PLHs truly prove that they disclosed to a partner – should they require witnesses or signatures? Should activities such as oral sex and mutual masturbation, which bears almost zero risk of transmission, bear the possibility of a criminal charge, when almost no activity in our lives are truly risk-free? What about the issue of partners, who can blackmail and even abuse their HIV-positive partners by threatening to charge them?

(more…)

Investigating “access” to HIV/AIDS treatment

My first two weeks at the Canadian HIV-AIDS Legal Network have felt like an intense and stimulating crash course. One of my first tasks was to gather information on access to HIV/AIDS treatment to help a policy analyst prepare for a guest lecture. The policy analyst also asked me to go beyond the numbers and find any factors that may complicate the numbers that I found. By the time I finished the research, I came out questioning the word “access” altogether. Here were my findings:

    • At the end of 2009, 36% (about 5.2 million) of the 15 million people in need in low- and middle-income countries were receiving antiretroviral (ARV) therapy, which is used to suppress the HIV virus.[1]
    • Only 21 countries provide data on people with HIV who inject drugs.  Out of the 21 countries, only 9 countries had a treatment rate of 10% for this demographic. [1]
    • Some countries may have initiatives and programs that sound great and accessible, but the whole picture is always more complicated. For example, the National AIDS Control Organization (NACO) provides free first-line ARV treatment in India. However, accessing treatment for sex workers is still difficult due to the negative disposition of health workers. One sex worker recalled to the researchers: “If I am going to be in a condition to take tablets [ART], I will not go there because they denigrate us.”[2]
    • Migrants also face additional barriers to HIV/AIDS treatment, due to strict immigration policies. For example, EU’s Return Directive, established in 2008 and enforced in 2010, enables a member country to detain migrants up to six months.[3] This may make public health interventions regarding HIV/AIDS to migrants more difficult.

 If these facts sound a bit foreign and removed, there is also the issue of differing coverage of ARV drugs by province that can cause mobility issues. Some provincial health care systems don’t cover newer form of drugs. Quebec won’t reimburse claimants who buy medication out-of-province.[4]

“Access” has become one of the buzzwords of human rights law. In many reports I read, there are often goals or objectives that have to do with improving or increasing access to certain services. In our efforts to improve access, we must not only focus on the numbers, but also focus on who gets to access services or programs as well, and how social structures and stigmas limit the effectiveness of certain programs.

 

—–

[1] UNAIDS, Report on the Global AIDS Epidemic, 2010.

[2] V. Chakrapani et al. Barriers to free antiretroviral treatment access for female sex workers in Chennai, India,” AIDS Patient Care and STDs 23 (11) (2009): pp. 973-980 at 976.

[3] Directive 2008/115/EC, European Union, art. 15.5. (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:EN:PDF)

[4] Deborah Yoong, “Access and Coverage of HIV Medications across Canada”, published on Toronto General Hospital’s website: http://www.hivclinic.ca/main/drugs_reimbuse_files/Provincial%20Coverage%20of%20HIV%20medications.pdf)

Some thoughts from the IACHR

perri By Perri Ravon

Close to 30 interns are working at the Inter-American Court of Human Rights this summer, assisting the Court’s legal secretariat. Most come from Latin America, where the Inter American system has gained unquestionable political and cultural resonance in the last decades. Others, like myself and a few fellow Americans, are truly discovering a new legal world within the human rights field: case law, judges, advocacy, diplomacy, media…

While working on urgent provisional measures, drafting memos for judgments and monitoring states’ compliance, I have also given thought to the “bigger picture”: the success and the limits of international human rights law, the meaning it has for individuals throughout the Americas… And beyond such theoretical questionings, I am also very interested in the impact such a system can have, today, in a country such as Canada which has not recognized the jurisdiction of the Court, yet which cannot ignore its legal developments. How much can we learn from the Court’s interpretation of the American Convention, from its unique approach to reparations, from its analysis of such issues as gender and economic migrants? How much can be quickly discarded given the immense differences between a regional human rights court and the Canadian legal system? And how much cannot?

Of course, I am fully aware of Canada’s “dualist” nature in terms of its reception of international law, and indeed I am not even alluding to the effects the actual American Convention could have in Canada. Yet, with respect to fruitful influences for future developments in Charter interpretation, the Inter-American Court’s case law may have a greater role to play than would at first appear.

Don’t Underestimate Human Rights Internships in Canada

caylee_hongBy Caylee Hong

Human rights issues are often relegated to the Otherness of the so-called Developing/Third World, accompanied by the perception that human rights work means going to distant places. The association between ‘going far’ and success rings true for internship statuses: human rights internships’ authenticity, credibility and prestige are often aligned with the ‘exoticness’ of their destination (cities like New York or Brussels beings exceptions given they are institutional epicentres of non-governmental and international big-wigs). Having interned in Nairobi for eight months with the UN and volunteered in China and South East Asia, I admit to the draw of experience in the field, the undeniable excitement of foreign travel and the esteem of going far away to work on human rights.

My past four weeks at Amnesty International Canada and the Canadian Centre for International Justice (CCIJ) in the not-so-far-away-land of Ottawa challenge the assumptions that ‘serious’ human rights violations are a distant problem and that ‘the real’ human rights work is abroad. In today’s political climate, staying in the nation’s capital means gaining practical human rights experience on the ground. While a summer in Ottawa lacks the allure of three months in a faraway location, by interning at Amnesty I feel inspired and prepared to work in human rights sectors, both in Canada and abroad. Gaining experience at home and away – while avoiding the conceptual division between ‘local’ and ‘foreign’ human rights issues – is key.

In particular, I have benefited from direct interaction with different justice institutions while gaining diverse legal experience which is exciting given that I am only entering my second year at McGill. Since my second day and continuing through June, I have attended the Military Police Complaints Commission hearings on the Afghan detainee issue where I rapporteured, wrote Amnesty’s updates and undertook legal research. It introduced me to an entirely different type of proceeding, exposed me to new areas of law such as military justice and operational law and allowed me to witness the cross-examination of Canada’s leading military officials and political advisors.

I have also been involved in the hearings at the Canadian Human Rights Tribunal over the underfunding of First Nations children on reserves. The submissions by Professor Joanne St. Lewis and David Nahwegahbow, representing the Assembly of First Nations, truly encouraged me that human rights talk is not about some distant injustice and that knowing the law, being trained in the law, is empowering.

Last week I attended the launch of the homelessness challenge whereby former and current homeless individuals and housing advocates are asking the Superior Court of Ontario for a declaration that Canada and Ontario violated their Charter rights by creating and maintaining conditions that lead to homelessness and inadequate housing. Researching Charter issues surrounding homelessness and its intersections with health, disability and poverty echoed similar issues I had worked on while interning with the UN’s Human Settlement Programme. Urgent action needed to address (in)security of tenure, (in)adequate housing and exclusion link Canada to many other places in the world.

These three direct interactions with justice institutions have impressed upon me the massive scope of human rights work and the intersections between human rights in Canada and those elsewhere in the world. It challenges the not-so-innocent perception that ‘real’ victims/perpetrators of human rights are in distant lands. It forces one to consider the relationship of the Canadian government, the Canadian public and Canadian companies to human rights violations abroad. Bill C-300, which seeks corporate accountability for mining, oil and gas activities in developing countries, and the reform of Canada’s State Immunity Act demonstrate how domestic legislation affects human rights abroad directly.

Don’t underestimate internships in Canada. Closer to home is closer to the action than we would care to believe.

Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.