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Schrödinger’s child? The status of children as juridical subject and object

2013 Claire Gunner 100x150

Claire Gunner

For the project I’m currently working on I’ve been relying pretty heavily on the Convention on the Rights of the Child.

My first impression of this instrument was positive. Here is a Convention that recognizes children as subjects of rights, rather than as mere objects of protection. Over and over I have seen the same line of reasoning behind the Convention that children are uniquely vulnerable and so require additional protections.

But these two stated aims of the CRC – to recognize children as subjects, and to extend to them additional protection because of their status as children – actually coexist in significant tension. This might be obvious to most people. But I didn’t realize it until I started reading Mary Beloff’s book, Los derechos del niño en el sistema interamericano.beloff

I could talk about how the idea of the child and childhood is a strange social invention, although one that I don’t think is totally unnecessary. But that’s an issue for a different blog post.

Article 3.1 of the CRC contains the first mention of the “best interests of the child”:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

As Beloff points out, the concept of “best interests” is nowhere really defined, either in the CRC or elsewhere. The concept is the modern-day culmination of the traditional legal paradigm that sees children as objects of protection, which makes sense. But what is it doing in a breakaway new international instrument that was supposed to change the conversation and honor children – that is, persons who have not yet reached the age of majority – as juridical subjects in their own right? At the same time the CRC upholds the right of a child to, e.g., participate and be heard in any legal or administrative decision that affects her, it seems to be conspiratorially winking at the (adult) authorities involved in those processes, as if to say, don’t worry, we know that you really know best.

Beloff also highlights the fact that pretty much every State has signed the CRC. (Somalia and the United States have not.) She suggests that this is because the stakes just aren’t that high, and because it makes a State look good – “We signed this Convention because we care about our children.” The Convention doesn’t, for example, create an independent body that would be responsible for monitoring States’ implementation of their treaty obligations.

“So what?” one might ask. Children don’t have the same juridical capacity as adults because they don’t have the same level of maturity. The fact is that they don’t generally make decisions that reflect their best interests. They need those additional protections.

That is all basically true. But, setting aside the (low) frequency with which adults make decisions that reflect their best interests, let alone those of other people, this tension built into the CRC takes on a more sinister aspect when it comes to, for example, guardianship. My understanding of guardianship is not very profound, but what I do know is that unaccompanied children, children removed from the care of their parents, and others in comparable situations must be, absent emancipation, automatically assigned a legal caregiver responsible for making decisions in those children’s best interests. The guardianship framework also persists in the contexts of the elderly and of persons with disabilities. I don’t necessarily want to suggest that we do away with guardianship altogether, but it seems to be a one-size-fits-all solution for a variety of circumstances whose parties might benefit much more from a more nuanced approach. Guardianship is a monolith in the field of psychosocial and intellectual disability and human rights, as people who don’t want to live in group homes have to fight to be able to lead their own lives. Guardianship is the assignment of a person’s rights to someone else. The implications of something like the CRC for other human rights focus areas are significant.


The dark side of “best interests” also emerges upon examination of the origin of the idea of juvenile delinquency. Beloff cites Anthony Platt’s well-known book, The Child Savers: The Invention of Delinquency, to draw attention to the fact that the original “delinquent children” in the West at the turn of the 20th century were seen as society’s youngest undesirables. The first “children’s rights activists” used the “best interests” justification to jail children and dissolve families who were seen as incorrigible, a social problem whose apparent failure to thrive was in no way connected to a systemic conflation of poverty with moral failing. Perhaps “best interests” needs to be included in an instrument like the CRC. But after reading Beloff I wonder if it doesn’t require some serious reworking before it should be given that honor.


Piracy, Universal Jurisdiction, and Domestic Law in the United States

Andrew Higdon, One Earth Future Foundation. Broomfield, Colorado, USA.

2013 Andrew Hidgon 100x150On November 7, 2008 the Bahamian flagged cargo ship CEC Future was attacked by Somali pirates on the high seas in the Gulf of Aden. The attackers, armed with AK-47s and rocket propelled grenades, fired shots and boarded the ship. The ship and her crew (eleven Russians, one Georgian and one Estonian) were released a month later when the Dutch ship owners paid a $1.7 million USD ransom. In order to negotiate with the outside world, the pirates employed Ali Muhammad Ali who acted as a facilitator and interpreter onboard the ship.  Ali made $16 500 USD from his cut of the ransom, and negotiated an additional $75 000 USD from the ship owners for coordinating the release – all without leaving Somali territorial waters for any significant length of time.

In addition to being a pirate negotiator, Ali also served as the Director General of the Ministry of Education of Somaliland – a fact that neatly conveys at the scale of the problems facing Somalia. US prosecutors used his position to lure him into the US by inviting him to a fake education conference in Raleigh, North Carolina. Upon arrival he was immediately arrested and charged under US piracy and hostage taking laws. How could the US claim jurisdiction over a non-national who committed a crime in another country against a ship sailed and owned by foreign nationals?

Under international law, states must have jurisdiction over the person and the offence in order to affect a legitimate prosecution. In the case of piracy, nations rely on customary international law and the UN Convention on the law of the Sea (UNCLOS 1982) to ground their jurisdiction. Unique among crimes, piracy has long been treated as an offense that any nation can prosecute. Unlike other theories of jurisdiction (such as “the territoriality principle” which gives states jurisdiction over events that take place within their territory,  or “the nationality principle” with gives states jurisdiction over actions committed by a their nationals) piracy is a crime that requires no nexus for a state to properly assert jurisdiction. Basically, any state that finds a pirate on the high seas can prosecute him. Traditionally, this unique jurisdictional aspect of piracy has been viewed as a consequence of the fact that pirates committed their crimes on the high seas, outside of anyone’s jurisdiction, and against the international community at large.

But Ali hadn’t operated on the high seas; he had helped facilitate piracy from Somali territory. The prosecutors charged Ali under 18 U.S.C. § 1651 – the US law that prohibits piracy – which states that individuals commit an offence where they commit piracy as defined by international law. This meant that the court had to examine the provisions of UNCLOS. Despite a long history of academics and law makers articulating the belief that piracy was something that could only occur on the high seas, the court took the opposite view. Brown J. ruled that since the sub article criminalizing the facilitation of piracy did not explicitly mention a high seas requirement (while other articles did) this indicated that no high seas requirement existed. While the position is defensible, it does suggest a challenge to the accepted order of jurisdiction.

It is highly unusual for a state to claim jurisdiction over the actions of a foreign national who committed a crime within the territory of his own nation, and where there is no other nexus with the prosecuting state. This is predicated on the understanding in international law that states will not interfere with the internal affairs of others. With this ruling, the US appears to be signalling its willingness to do so in certain situations. Perhaps the court decided as it did because of the fact that in Somalia there is little chance that men like Ali will ever see a courtroom. It seems unlikely that they would have decided the same way in a case that concerned a more developed nation. In any event, it illustrates the seriousness with which US prosecutors regard international crime and their comfort with dealing with it domestically. It is something that I think we should watch carefully.

Court Filing Fees in Kenya

2013 Tina Hlimi 100x150A hypothetical scenario:

In order to be married in Kianyaga, Kenya, a couple must obtain a marriage license from the Office of Registrar of Marriages by paying a Kshs 200 licence fee. The marriage license fees will not the waived even if the couple applying for the licence cannot afford to pay it. Assume then there is a couple in Kianyaga who desire to marry but simply cannot afford the license fee, what happens?

The couple will not be able to get married legally. This is because licence fees, even part of court proceedings, (e.g. land title deeds; 520 Ksh) must be paid out-of-pocket by all individuals regardless of socio-economic status.

Thus, the delineation between proceeding fees and licence fees is important. In the case of indigents or individuals with access to legal aid, the cost of the former may be alleviated (in civil and criminal matters), whereas licence fees are generally mandatory and consistent across the board.

The inability to pay filing and advocate fees within the matrimonial, family and property law realm is a serious problem for marginalized litigants in Kenya. According to the Pittsburgh Jurist legal website and the US Department of Justice:

Court fees for filing and hearing cases are high for ordinary citizens. The daily rate of at least $25 (2,000 shillings) for arguing a case before a judge is beyond the reach of most citizens.[1]

Further, Kituo Cha Sheria, a Nairobi-based legal organization, which we have been in close partnership with, has reiterated:

Filing and legal fees are too high for a good number of Kenyans. Time, cost and transport keep many away. Women, children and poor men are the ones most affected by this. There is no dependable or practical state provided legal aid scheme. NGOs and Faith Based Organisations have stepped in to provide legal aid and advice the poor and women but they are only able to reach a very small percentage […].[2]

Each week we hear complaints from clients stating that they are still unable to access the judiciary. With our legal aid program we have alleviated the first impediment: namely the costs of hiring an advocate; this is paid for by the organization in aid of the client. The second barrier, consisting of court proceeding and licence fees, is still more difficult to overcome. Given our limited resources, it is fiscally impossible for the organization to cover all of the litigant’s costs.

The complaint is nevertheless valid. The GDP per capita in Kenya is roughly $ 1800 per year (2012 figure; $ 900 per month)[3] or Kshs 156,240 (Kshs13,020 per month). In consideration of amassing legal costs (see table 1), it is clear that legal fees can form a significant portion of an individual’s salary. In these circumstances the principle of proportionality is imperative. If the costs of filing and litigation are more than the amount owed to the client by the defendant (e.g. for a property dispute or land gracing case) then perhaps the case is not worth litigating.  It is of course difficult to explain the idea of proportionality to the client as some simply want retribution.

.Table 1: An example of legal costs in the Kenyan judiciary; much of these costs accumulate to form a significant amount which many individuals will not be able to pay thus delaying proceedings and acting as a deterrent to the judiciary.

Description Cost in Ksh $ CDN
Depositing a will of a living person 500 6
Withdrawing from deposit or inspecting a will of a living person 300 3.59
Depositing a will or certified copy of  a will of a deceased 300 3.59
Particulars of a plaint 100 1.20
Hearing fee in the High court 2000 per day! 23.93
Judicial review 6000 71.80
Order of mandamus 6000 71.80
Prohibition certiorari 6000 71.80
Decree or order 150 1.80
Origination summons Minimum of 1500 17.95
Issue of witness summons 50 0.60
Issue of execution (e.g. warrant of attachment or a sale of property) 50 0.60
Bill of costs for taxation 250 2.99
Affidavit/declaration 50 0.60
For each exhibit or affidavit declaration 10 0.12
communication with a court or tribunal outside of Kenya 250 2.99
Execution of civil warrants 100-200 1.20-2.39

Despite the inability of countless individuals to pay court filing fees, access to justice is an enshrined legal right guaranteed to Kenyans through the International Covenant on Civil and Political rights (ICCPR), which the government ratified in 1972.[4] The Covenant states that an accused offender (in criminal cases) is allowed “to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it” (art. 14(3)). [5] In addition to this criminal clause, the Committee on Economic, Social and Cultural Rights has established that under the International Covenant on Economic, Social and Cultural Rights (ICESCR), State-governments should likewise grant legal aid to individuals who are facing evictions (civil cases). The Human Rights Committee has also encouraged states to provide indigents with free legal aid in civil cases and if interpreted purposely States may even have to provide civil legal aid as per s. 14 of the ICCPR.[6] As a result, some State parties to the ICCPR have consistently reported on their efforts to provide counsel in civil matters.[7] It is nevertheless important to stress that the civil legal aid is not obligatory and that there is no legal right to civil legal aid despite the attention afforded to the issue by some States. This has been reiterated by countries like the United States (e.g. Lassiter v. Department of Social Services).[8]  The same rings true in Kenya, where state-funded legal aid is only available for murder suspects thereby excluding marginalized members of society.[9]

At first blush, it seems that civil legal aid is excluded from federal legal assistance in Kenya. This is partially true; Order 33 of the 2010 Kenyan Civil Procedure Rules includes a section on paupers or indigents. The section guarantees legal assistance (upon proof) to indigent individuals seeking to access the judiciary. In essence, the pauper’s advocate/ filing costs will be covered. However, if the pauper or plaintiff wins his/her case the court will then deduct the costs that the pauper would have paid devoid his/her pauperism (clause 10). If a pauper loses his/her case s/he will have to pay the outstanding court fees as though the suit has not been filed under the pauper designation (clause 11). The latter is an evident disincentive for indigent individuals to pursue their case.

Order 33 clause 10 states:

10. Where the plaintiff succeeds in the suit, the court shall calculate the amount of the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by the court from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit.

11. Where the plaintiff fails in the suit or is dispaupered or where the suit is withdrawn or dismissed because the plaintiff does not appear when the suit is called on for hearing, the court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper.

12. The Government shall have the right at any time to apply to the court to make an order for the payment of court fees under rule 10 or rule 11.

It is also difficult to prove to the judiciary that one is deserving of indigent status. Kituo Cha Sheria states the courts often requires proof of indigent status, necessitating a chief’s letter and his/her presence which is expensive (e.g. transport costs) and complicated; chiefs often refuse to attend court to provide evidence. Further, proof of income is not easy, particularly due to lack of documentation among rural laborers or those working in the non-formal sector.[10] It is ultimately the court’s discretion as to whether they are willing to accept a suit by a pauper. The 2013 Kenyan Supreme Court decision, John Mbugua and another v. the Attorney General, elucidated the requirements for pauperism:

“The threshold of proving that an applicant deserves the leave of the Court to be pronounced as one capable of filing in forma paupers is extremely high […]The onus in pauper briefs lay squarely on the applicant to candidly and in extreme openness reveal all about his status to the Court. Failure to provide disclosure in its strict sense would knock out the matter and would render a matter as uncreditworthy […]The court must be satisfied on the application of an applicant that he lacks the means to pay the required fees or to deposit the security for costs and that the matter is not without reasonable possibility of success […]A court [is] entitled to reject such an application where the court [is] satisfied that the applicant [may] not recover more than nominal damages [idea of proportionality], the court might well be justified in refusing permission because it would be unjust to the other party who [may] have to incur substantial costs which might not be recoverable.”[11]

Akin to legal aid in Canada the question then arises: what about lower income individuals (non-paupers) who are classified as making too much money (or own assets) in order to qualify for legal assistance (income is too high to access legal aid and too low to afford standard legal fees)? This is the case for many individuals living in Kianyaga. Many of our clients own land and assets but still find court filing fees pricey. This is why they protest. Without our aid (seeing an advocate) they would literally have no access to the judiciary.[12]We try to alleviate some of the filing fiscal issues by first asking the client to exhaust all of their potential economic resources (e.g. friends, family, church etc.). If the client has thoroughly searched and exhausted their network and is still unable to siphon together the required money, our research organization is willing to step in and grant the necessary funding. This is, however, only a temporary solution. I believe that the larger issue is systemic and needs to be corrected at both an international and domestic level in order to ensure access to justice (lawyers, court fees and licence fees) for lower-income individuals.

[1] Victor Mosoti, “Constitution, Government & Legislation” online: The Jurist <http://jurist.law.pitt.edu/world/kenya.htm>.

[2] Kituo Cha Sheria, “Kituo Newsletter April 2010”, online: <http://www.kituochasheria.or.ke/index2.php?option=com_docman&task=doc_view&gid=71&Itemid=44>.

[3]The Central Intelligence Agency, “The World Factbook: Kenya,” online: CIA   <https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html>.

[4] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 15 July 2013]

[5] Ibid.

[6] Zachary Zarnow,  “Obligation Ignored: Why International Law Requires the United States to Provide Adequate Civil Legal Aid, What the United States is Doing Instead,  and How Legal Empowerment Can Help” Journal of Gender Journal of Gender, Social Policy & the Law, Vol. 20, (1) [2011] at p. 4.

[7]  Ibid at page 5.

[8] Ibid.

[9] Supra note 2.

[10] Andrew Novak, “The globalization of the student lawyer: a

Law student practice rule for indigent Criminal defense in Sub-Saharan Africa” 3 Hum. Rts. & Globalization L. Rev 33 2009-2010

[11] John Mbugua and another v. the Attorney General online: <http://www.kenyalaw.org/newsletter1/supreme/Issue072013.php>.

[12] Supra note 10.

How Indian Law Produces Statelessness

By Charlotte-Anne Malischewski

While at the Calcutta Research Group, one of my tasks has been to look into the legal aspects of statelessness in India to compliment the extensive archival and field work conducted by the CRG over the last three years in mapping the statelessness situation in India. In my research, I learned that India has numerous legal provisions with actively produce statelessness.

Wait a minute, what’s statelessness again?

Article 1 of the 1954 Statelessness Convention, a stateless person is one “who is not considered a national by any State under the operation of its law.”  Since that definition is now widely understood to be customary international law, meaning it should be applied by all states including those not party to the convention and Article 51(c) of the Indian Constitution provides that India “shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with another,” it follows that, regardless of whether or not the state accedes to either statelessness convention, this definition of statelessness carries the weight of law in India.

So, those who do not have a legal bond with any state are unambiguously de jure stateless. When this narrow definition is applied, however, it usually only covers those who are not automatically granted nationality at birth by the application of state legal instruments, those without nationality who are unable to obtain it through establish legal provision for its acquisition, and those whose nationality is revoked or terminated for any reasons and who do not have a second nationality.  Indeed, the 1954 Statelessness Convention definition precludes those with a legal bond with a state without ensuring that that bond carries with it particular rights, entitlements, or guarantees.  Because there is no universal standard for citizenship or nationality and because discriminatory laws, policies, and practices can mean that citizenship is experienced unequally between those citizens of the same state, it is possible for those with citizenship to experience it in such an ineffective manner that their experience mirror that of those who are de jure stateless.

The term de facto stateless, therefore, exists to describe the position of those who fall within the large range of people whose lived experiences are essentially of statelessness, but who do not form a part of the smaller group of people able to satisfy the de jure  definition.  While the term carries no legal definition and there is no clear consensus about its meaning in the literature, the term is generally used to refer to those who are unable to disprove the assumption that they have a nationality and those whose legal bonds of nationality is ineffective.

Isn’t that a bit restrictive?

Yes, I think so.  This definition rests on an assumed binary opposition of the citizen or national against the stateless person, which fails to account for the complexity of lived realities. In practice, many stateless people are unable to have their status recognized as such and legal bonds of citizenship are not always effective. States generally operate with a presumption of nationality, which makes it impossible for those whose nationality is unknown, but who have not been found to have established that they are without nationality to access protection as stateless people. Additionally, many states have demonstrated reluctance to classify certain people as stateless and others do not recognize the stateless status of those whose citizenship they have denied.  Matters are substantially complicated when the effectiveness of a person’s nationality are considered.

Ok, so how is it that Indian law produces statelessness?

A number of explicit provisions in the Citizenship Act of India, 1955 provide legal means by which a person in possession of Indian citizenship may lose that legal bond. First, renunciation (under section 8) entitles Indian citizens to renounce their citizenship even if by doing so, they would become de jure stateless and can deprive children of their Indian citizenship on the basis of their father’s actions in such a way that may leave them stateless until they reach the mandated age to resume their Indian citizenship by declaration. Second, termination (under section 9) leaves open the possibility that those whose citizenship is terminated end up de facto statelessness, because there is no guarantee that the non-Indian citizenship that has been voluntary acquired is an effective one. Finally, deprivation (under section 10), in no uncertain terms, provides for creates statelessness by prescribing it as punishment for certain action and inaction.

So, what’s to be done?

Simply put, India must stop legally sanctioning the production of statelessness. It should revise its citizenship laws such that citizenship cannot be revoked from those who would be rendered stateless by such an act.  It must, however, be remember that addressing statelessness in India, like elsewhere in the world, is not merely a legal question. The existence of effective rights and entitlements goes much beyond the courtroom to the political arena and socio-cultural milieu.

Ghana’s electoral drama: the 2012 Election Petition

2013 Angela Slater 100x150By Angela Slater

Despite a tumultuous political history, including several military dictatorships, Ghana has reached a period of peace. Despite a fall from previous years, Ghana was ranked as the 58th most peaceful country in the world, ahead of the U.S at 99th and South Africa at 121.[1] Ghanaians are proud of the peace in their country, and most people seem committed to keeping it that way. One symbol of this commitment to peace is Ghana’s most recent constitution, enacted in 1992. Considering Ghana’s chequered political history, the current constitution is a symbol of endurance. Unlike Ghana’s other constitutions it has weathered the rise and fall of four democratically elected governments.[2] Like Canada, Ghana’s constitution entrenched a number of civil, political and human rights. These may be enforced by a special tribunal for human rights, the High Court, or the Supreme Court. Despite this similarity, many parts of the constitution are under litigated by Canadian standards. There are many reasons for this, but part of it has to do with the reluctance to accept judicial review as a legitimate interference in an already tense political process, as well as a widespread concern at confronting the government in an adversarial court battle.[3]

Given this backdrop, a case before the Supreme Court has caught the attention of the whole country. Ghana’s opposition has brought an action before the Supreme Court claiming widespread election malpractice and fraud. Election malpractice has always been a concern in Ghana. During the elections last year Ghana even had extra power shipped in from Nigeria to ensure that the lights stayed on during the electoral period. Unfortunately this wasn’t enough to prevent criticism of the elections. The 2012 Election Petition has now been before the court for over a month, and it is difficult to go anywhere without hearing a radio blaring something about the ‘pink sheets’. Pink sheets are missing!! Pink sheets have irregularities!! Pink sheets are unreadable!! The list goes on. Such a context is ripe for courtroom drama, and there has been plenty of that. Two people have even been thrown in jail for criminal contempt of court. One journalist was jailed for ten days after he called the Supreme Court Justices “hypocritical” in an editorial that appeared in a local newspaper.[4] More humorously recent testimony indicated that a polling officer wrote twenty seven zero instead of two hundred seventy on one of the pink sheets.[5] Throw in a romantic sub-plot and the election petition has all the makings of John Grisham style courtroom thriller.

But among all the drama, a very important legal and political question is at stake. Can Ghana handle the Supreme Court batting down election results and potentially deposing the current administration? Are Ghanaians able to accept the consequences of the judicial review entrenched in their constitution? This is the question that keeps Ghanaians up at night, and it is the reason you can’t go anywhere without hearing about those pink sheets. The concern is legitimate. One of those jailed for contempt of court was a member of the incumbent party who threatened violence if his party was deposed by the court decision. Although he later apologized, his threat plays on the fears of many Ghanaians who know all too well what it means to live under threat of war.

The trial is now coming to a close, and soon Ghana will have to live with the results of one of the biggest legal decisions this country has ever seen. In making its decision, the court has three options: to uphold the election results, call a new election, or award the election victory to the opposing party. A bad decision could spell trouble for the peace Ghana has worked so hard to enjoy. A good decision could be a landmark case that would change landscape for judicial review in Ghana. Despite the beating of war drums and the court room drama, I think that Ghana will weather the election petition. Faith in the court system is at the heart of a constitution which requires judicial review to answer controversial questions. As a Canadian I understand the type of faith required to trust the court to review contentious legislation and administrative actions. Although Ghana is a wildly different place, I think that Ghanaians ultimately have faith in their courts and the democracy they have worked so hard to build. I hope that their faith is justified when the court turns out their decision in the coming weeks.

[1] Institute for Economics and Peace, 2013 Global Peace Index Report (2013) http://www.dailyguideghana.com/?p=87879.

[2] Kofi Kumando & S.O. Gyandoh Jr., Sourcebook of the Constitutional Law of Ghana 2nd ed v.1 pt 1 (Accra: Black Mask Publishing, 2009) at vi.

[3] Peter Atudiwe Atupare, “Legitimacy, Judicial Review and Human Rights Enforcement in Ghana”, (2005-2007) 23 University of Ghana Law Journal 228.

[4]William Yaw Owusu & Nii Ogbamey Tetteh,  “2 Jailed for Contempt”, Daily Guide Ghana, (July 3 2013),  http://www.dailyguideghana.com/?p=87879.

[5]  William Yaw Owusu & Nii Ogbamey Tetteh, “My Boys Did a Bad Job”, Daily Guide Ghana (July 9 2013) http://www.dailyguideghana.com/?p=88449.

Injustice in the Malawian justice system and the objectification of victims

2013 Silvia Neagu 100x150By Silvia Neagu

While I’ve spent a substantial portion of my time so far doing legal research at the university, I also attended court to watch the proceedings of defilement cases. The difference between the Canadian justice system and the Malawian system was shocking at first.

Firstly, the magistrate met with us in his chambers before the hearing, discussed the case openly and made no effort to at least appear impartial. He commented that “you can tell a guilty conscience” because the defendant was not asking a lot of questions. During the proceedings, you could hear the magistrate’s phone vibrating and he also once interrupted a sentencing (before revealing the sentence) to have a  5-minute phone conversation. During the same sentencing, the magistrate wanted to make a point of how lenient he was being, so he passed around bits of paper to everyone in the room and asked us to write down what we thought the sentence should be. Although Alison and I tried to say everything to get out of it, he insisted we take part in the exercise and assured us this would not change the sentence.

The most shocking fact was that the accused was unrepresented and was expected to lead his own defence, despite a lack of basic education. The defendant’s questions to the prosecution’s witness were completely off-target and made the whole process feel like watching a train wreck in slow motion. Because the accused leads his own defence, this also means that he or she is expected to cross-examine the victim when he/she testifies, which is understandably hugely traumatizing for victims. However, in this particular case, the three-year old victim had testified at an earlier date and the accused had not asked any questions. The defendant’s complete lack of understanding of the justice system also meant that the magistrate further compromised his appearance of impartiality. At one point the magistrate was suggesting possible issues that the defendant could raise.

The court room at the Magistrate Court in Zomba, Malawi.

The court room at the Magistrate Court in Zomba, Malawi.

Our meeting with the magistrate and some police prosecutors was also revealing of some of the subversive attitudes towards sexual assault victims and women in general. When discussing the issue of consent, the magistrate explained that they would expect a woman to show evidence of her lack of consent, depending on the relative sizes of the accused and the victim. To illustrate this point, the magistrate then began suggesting that I, for example, would not necessarily be able to accuse one of the thinner police officers in the room of assault. When I looked incredulously at him, he then took the female prosecutor in the room as an example and someone joked about her “huge” size. The magistrate and some of the prosecutors’ attitudes toward victims of defilement also varied with the victim’s age: the older the victim, the less sympathetic they appeared to be.

When discussing the case that day, everyone repeatedly praised how clever the 3-year old victim was and what a shame it was that we had not been present during her testimony. The magistrate and police repeatedly offered to have us meet the girl, which we declined, explaining that we did not wish to trouble her further, even more so because she did not speak English. Despite our refusal, the next time Alison and I were in court, they brought the victim to meet us. It was very awkward and extremely uncomfortable to watch the magistrate question the victim for our benefit – and it was frustrating to realize that there was nothing we could do to stop it. The child was confused as to why two “azungus” (term for white people/foreigners) were there and apparently thought we were adopting her.  When we told this story to our director, Fiona Sampson, she commented that this was an “objectification of the victim”, which is a fitting description.

Another issue that was troubling us was the influence of our physical presence in the court room. When we tried to sit at the back of the court, the magistrate immediately motioned for us to come to the front. In fact, when the magistrate was reading out his judgement at the end of the trial, his judgment included a reference to “our guests from abroad.”

On another occasion, we had informed the prosecutor the particular day that we would be attending court. When we arrived, a clerk told us that the cases were cancelled that day because the President was in Zomba and all the police officers and vehicles were therefore busy. As we walked back to our hostel, we ran into the police prosecutors on the road, who were bringing the accused to the court house specifically because they knew we would be there that day. So Alison and I walked with three accused, two police officers (and the dog from our hostel that was following us around) back to the court house. We were quite the sight !

Herod’s Law: Adventures in Mexican Corruption

2013 Emily Hazlett 100x150By Emily Hazlett

Despite all the work I’ve been doing with Disability Rights International and the endless things to see and do and eat in Mexico City, at some point I found myself in the back seat of a car with seven friends, racing along a cliff-side highway beside the Pacific. I had just arrived in Acapulco that morning when a friend invited us to squeeze into his car and go get some breakfast. Life was nothing but sun and ocean and the promise of huevos rancheros, until we were pulled over by a municipal police officer who threatened us with four hundred of dollars worth of fines for driving infractions.

Now I could probably accept that it’s illegal to be seven people in a car. You may even be able to convince me that seat belts are mandatory. But then apparently we had also run a red light – and we had almost killed an innocent pedestrian in the process. Our list of infractions was limited only by the cop’s imagination, which was running particularly creative on account of all the sunshine.

Eventually we were passed a colourful pamphlet on traffic infractions, published sometime in the 1980s. The pamphlet was provided, not as a legal basis for our infractions, but so that we may have a place to safely hide our pesos while handing them over. Given that my friend could not get his license back without paying the bribe, we ultimately negotiated a $150 ‘fine’ that we paid between the seven of us.

A few days later I was in a human rights working group meeting with representatives of the government (all well-dressed men) and representatives of NGOs (all inspiring young women). We were discussing strategies for improving conditions for persons deprived of liberty in state institutions. A noble mission, but I can’t help but wonder how much impact our efforts will have in a country where the police can easily extort citizens in broad daylight under the guise of law enforcement.

My experience was actually quite tame for the state of Guerrero, which has become one of the most dangerous in Mexico since drug cartels started moving in. Many communities are distrusting of the police, accusing them of conspiring with the cartels. These communities have established their own vigilante justice groups, but these groups don’t work under any official authority, and as a result have no monitoring or oversight.

Our crazed driver, Frank, enjoys the particularly nefarious career of the professional artist: http://franciscomunoz.tumblr.com/

Our crazed driver, Frank, enjoys the particularly nefarious career of the professional artist: http://franciscomunoz.tumblr.com/

And it’s not only Mexico’s legal institutions that are suffering; estimates put the price of bribery and corruption at around $50 billion a year, or 9% of the GDP. Known as mordidas (bites), a Mexican family might spend up to $100 a year on bribes, in a country with an average annual income below $10,000.

When I got home from Acapulco I looked up the driving laws in the state of Guerrero. Turns out that there’s nothing about maximum number of passengers in a car, and seat belts are only mandatory in the front seat.

There is something about studying law in Canada that presupposes an independent justice system, and that takes for granted the rule of law. For only $150 I was able to buy myself a reminder that this isn’t the case everywhere, and that Herod’s laws of corruption and arbitrary abuse of power are alive and well in Mexico.

The Precariousness of academics in Malawi and adventures in legal research

2013 Silvia Neagu 100x150By Silvia Neagu

Muli Bwanji ! Greetings from Malawi!

I’ve been in Malawi for over a month now.  My host organization, the equality effect, is a Toronto-based organization which uses the law to enforce the rights of African women and girls. The organization is starting a new project in Malawi, focusing on the legal treatment of defilement, the legal term for rape of girl children. The organization sent a University of Toronto intern and I to the University of Malawi in Zomba for the first half of our internship.  Zomba was previously the capital city under Malawi’s first president, but is now best described as simply a “big village”.  It is now surpassed in size and importance by the capital, Lilongwe, and the business capital, Blantyre. The town is overlooked by the mountainous area of the Zomba plateau, which makes the town breathtakingly beautiful.

Background on Malawi

In case you do not know much about Malawi, here are some quick facts about “the warm heart of Africa”: the landlocked country sits at the crossroads between East Africa and Southern Africa and was formerly a British protectorate called “Nyasaland.” The country became independent in 1964, and elected its first president, Hastings Banda, whose dictatorial “one-party” reign endured until 1994. Malawi is one of the poorest and least developed countries in the world.  As one of the professors we met observed, “this country is run by development agencies.”

65% of Malawi’s population lives on less than 1$ a day. To put things in perspective, the head waiter at my hostel told me it took him 5 years to find his current job after being let go from a job at a bank.  The prevalence of HIV in Malawi is among the world’s highest ; 11% of the population currently lives with HIV. Malawi’s population is also very young ; 58.8% of the population is 19 and under.[1]

Working at “Chanco” during a sit-in

Our supervisor, Professor Ngeyi Kanyongolo, a legal expert in women’s rights  in Malawi, wanted us to come to Chancellor College (“Chanco”) in order to interact with students and attend some classes. Unfortunately, for the first three weeks of our stay the students were on “sit-in” (strike).  The university was pretty deserted, although we were lucky to meet some of Dr. Kanyongolo’s research assistants, who were extremely helpful in introducing us to the university and Zomba. As we soon discovered, it is not uncommon for students’ academic year to be disrupted in Malawi. When we asked students when their academic year usually begins and ends, they gave us varying dates and said it depended on the dates announced by the government.

The accounts we were given of the “sit in” were, perhaps, a good introduction to the situation of political rights in Malawi, particularly when financial aspects are at play. The students were demanding higher allowances from the government. When the sit-in was announced, the government decided to close the school, giving students only 8 hours to vacate the university (including those living in the university residences). After several weeks, the government gave the students the “choice” of returning to school if they signed a form stating that they “agreed” to the previous conditions. As any student in the world can imagine, being given the “choice” to finish a degree that you’ve almost completed is not much of a choice at all.

We were also informed that the university professors also recently protested, demanding academic freedom, after a professor’s comments in class led to him being summoned by the Inspector General for questioning. The professor had compared the precursor events of the “Arab Spring” to the fuel shortage in Malawi at the time, during a political science class. So, one of my first lessons at Chanco was that when a university is entirely government sponsored, students’ education is easily disrupted, and professors’ ability to speak their minds can be extremely fragile.

Entrance to Chanco

Banner proclaiming Academic Freedom at the entrance to Chanco

Adventures in legal research in Malawi

Doing legal research in Malawi definitely falls under the category of “Things they never teach you in law school.” Firstly, power outages can happen at any time of day and their frequency and duration are completely random. During our first week in Zomba we experienced power outages nearly every day (sometimes for almost the entire day).  In the past couple of weeks, we have been lucky to only have one or two a week. I have learned to ensure that my computer is well-charged.

Secondly, the availability and reliability of internet imposes another challenge. We are lucky that the law faculty has wifi (restricted to staff use only), but it is often slow and does not work during a power outage. We also bought “dongles” – portable internet modems- but these also often had signal problems and limit the amount of downloading/uploading you can do. Therefore, we often save our downloading and uploading for the days when the university wifi is functioning well.

Thirdly, Malawian jurisprudence is extremely hard to locate. While there is a “MalawiLii”, it currently has very few cases. There is no search engine that allows you to search for the leading cases on specific topics. Students tell us that they rely on their course reading lists and photocopies of cases passed down from upper-years to learn the main cases in a specific area of the law. My co-intern and I therefore have been relying on secondary sources to point us to some of the leading cases. We are also lucky that Edge Kanyongolo, the Malawian constitutional expert, had an office steps from us and was helpful in pointing us in the right direction.  Another challenge is that, once we do locate a case, the judge’s reasoning is often very fact-specific and lacks in critical analysis of the rights at play. This makes it difficult to anticipate how a court would interpret a right in a novel factual context.

Lastly, a large number of cases in Malawi are unreported, leaving the current realities of the Malawi justice system largely outside our reach.  For instance, all defilement cases are decided at the magistrate court level (lowest level of courts), where cases are not reported. Because the Department of Public Prosecutions essentially never appeals decisions from the magistrate courts, many acquittals are not only inaccessible to legal researchers like us, but are also shielded from revision by other courts.

University greens

View from the law faculty at the University of Malawi’s Chancellor College


[1] “Malawi Demographic and Health Study, 2010”, Malawi National Statistics Office, 2011.

Of Allegations Concerning Inuit Sled Dogs

By David Nugent

DavidLast month two legal interns and I hired an outfitter to take us dog sledding. After getting into our winter gear, our outfitter drove us through Iqaluit and parked his van by the frozen shore of Frobisher Bay. Walking out onto the ice the outfitter told us about his dogs; how he feeds them a mix of dog food and seal meat and keeps them chained to the ice all winter. These dogs like the cold, he says. Even Iqaluit, situated in the south of Baffin Island, is a little warm for their liking. In the summertime the dogs move inland and keep to the shade. They don’t run in the summer. It’s too hot and there’s always a risk of overheating. These dogs are made for cold places.

As we approach the team the dogs begin to howl and whine. We unhook the dogs from their chains, the outfitter helps the dogs into their harnesses, and then we sit down on the sled behind the team. All of a sudden the dogs begin to pull and our sled, the outfitter, the two other legal interns and I surge forward across the rough sea-ice. Past Iqaluit. Past the neighbouring community of Apex. Out onto the smooth ice of the bay.

The outfitter explains that these are Canadian Inuit Dogs, or Inuit sled dogs, an Arctic working dog that is one of the oldest purebred breeds in Canada. Unlike the dogs in Alaska, these dogs were bred for strength, not speed. These dogs used to pull heavy loads across the snow and ice. Now most of the heavy lifting is done by snowmobiles, four-wheelers and pickup trucks. Still, these dogs are an important part of Nunavut’s history and Inuit culture.

The Inuit sled dog experienced a dramatic decline in the 20th century. Some Inuit elders and others in the community have alleged that the RCMP and other government officials killed large numbers of dogs as part of a widespread conspiracy to deprive the Inuit people of their culture. Specifically, some have alleged that the systemic killing of dogs made it impossible for the Inuit to live on the land, thus forcing them into fixed settlements and a culture of dependence (Final Report: RCMP Review of Allegations Concerning Inuit Sled Dogs at p. 5).  In response to these allegations the RCMP conducted an inquiry and in 2006 published its Final Report: RCMP Review of Allegations Concerning Inuit Sled Dogs. The Report attributed the dramatic decline in dogs to the introduction of snowmobiles in the 1960’s, canine disease and the destruction of some dogs by the RCMP in the 1950‘s-1960‘s for health and safety reasons. The Report found no conspiracy to destroy the dogs or the Inuit way of life.

There are clearly two different versions of events (as documented in the 2010 NFB film Qimmit: A Clash of Two Truths).  Or, more specifically, two versions of how and why certain events happened. Both parties agree that the RCMP killed dogs. Where the parties differ is in regards to how many dogs were killed and why the RCMP killed them.

As a legal intern at Maliiganik Tukisiiniakvik Legal Services I often encounter conflicting narratives, and I’m learning that piecing together what happened and why it happened is an important part of my work. Many mornings begin with a notice from the Crown’s office that an accused is being held at the RCMP detachment awaiting a “show cause” or judicial interim release hearing that afternoon. Our office receives disclosure in the form of the Prosecutor’s Information Sheet (PIS) that includes witness statements and RCMP allegations of what happened. I’ll review the PIS with the supervising lawyer and we’ll arrive at a preliminary understanding of what allegedly happened. However, when I meet the accused at the RCMP detachment to discuss their upcoming show cause hearing, I am sometimes confronted with another version of events. Certain allegations are denied. More often I am told why certain events did or did not happen. Sometimes issues of self-defence or provocation are raised. Other times the accused himself has been the victim of violence in the past. This information will be critical in understanding the case and crafting an effective defence (should the matter ever go to trial). Context is also important at the sentencing stage of the process, particularly in light of the sentencing principles articulated in Gladue and Ipeelee and  s.718.2(e) of the Criminal Code.  And while my work as a student never involves the actual trial or sentencing stages of the process, these principles and considerations are still relevant in the context of show cause hearings. As one lawyer explained to me, if it’s unlikely that the accused would face jail time even in the event that they were convicted, a strong argument can be made that the accused should not be detained prior to their trial.

The accused and I also discuss aspects of their life. Are they working? Are they supporting children? Where and with whom are they living? Are they hunters? What is their history? These are important elements of the story that are rarely found in the PIS. This context also has an impact on the outcome of the bail hearing, the coherence of the release plan we will propose, and ultimately whether or not the accused will be released pending their trial. Several defence lawyers have told me that listening is an important skill to develop.  One lawyer told me that listening and telling her client’s story in court is one of the most important things that she does. Maliiganik’s clients’ voices are often unheard.

The RCMP Review of Allegations Concerning Inuit Sled Dogs also underlines the importance of listening, hearing and reflecting people’s history and lived experience.  More telling than the conflicting narratives was the Report’s methodology that relied heavily upon RCMP officers’ accounts of events, as well as official RCMP and government records. The Report noted that the review team was unable to review many Inuit elder statements that were held by the Makivik Corporation and the Qikiqtani Inuit Association. Instead, the team reviewed elder statements in the fifty-four minute “Echo of the Last Howl” documentary. This section of the Report suggests that RCMP officials were unable to coordinate their efforts and investigation with Inuit groups.

The Report might also reveal an underlying distrust that sometimes exists between certain members of the community and the RCMP (or perhaps the law more generally). When working with Maliiganik clients and their families I sometimes have to make it clear that I am working for the accused (and in their interest) and not for the Crown. This is especially true when I am calling remote communities to represent a person with whom I’ve never met. How do you engender trust over the phone? How do you let the accused know that you’re listening and that you have their best interests in mind? How do you even know what is in the accused’s best interest when you have never met them in person and you have a cursory understanding of their personal history and the events that brought them into custody?

The RCMP Report suggests that officers were acting in the best interests of communities when they destroyed Inuit sled dogs in the 1950’s and 1960’s. These dogs were loose, sick or starving and they posed a health and safety risk to the community. That is why the RCMP destroyed dogs according to the Report. But that is not necessarily how the RCMP’s actions were perceived by members of the community at the time, and it is not how this history is remembered now. In order to act in a person’s best interest, their history and perspective must be understood and acted upon in some way. I am continually learning and re-learning this lesson at Maliiganik Tukisiiniakvik Legal Services.

Back on the ice with the dogs, our guide and the other two legal interns. We decide to stop and rest the dogs. Our guide produces a large Tupperware container of cubed cheese, cured meats, chocolate covered goodies and hot chocolate. As we sip our hot chocolate and admire the light on the land and the snow-covered bay two hunters zip by on their skidoos. They wave and disappear over a snowy ridge. It’s a good time for seal hunting, our outfitter explains. I ask him to take our picture. One of the dogs, sensing an opportunity and the momentary lapse in his master’s attention, lunges for a piece of cured meat and wolfs it down.

Sled Dogs

A Government of Customary Law

2013 Angela Slater 100x150By Angela Slater

The belief that a society should be ‘a government of laws, not of men’ is a cliché that all law students are familiar with. For many it has come to signify the idea behind of the rule of law. For me, it contributed to my belief that the law was a neutral, predetermined, formal set of rules. Though law school has twisted my former beliefs beyond recognition, there is no question that this conception of the rule of law has immense importance in western legal systems. Ghana’s legal system however, does not easily submit to this type of thinking.

Like many African nations, Ghana’s legal system is heavily influenced by traditional, regional legal systems. While it would be easy to categorize these legal systems as ‘informal’ and call it a day, this would not really reflect what is really going on in Ghana’s legal climate.  The constitution itself suggests otherwise and speaks to the level of importance people place in their customary laws. Article 11 of the 1992 Constitution specifically adopts customary law as part of Ghana’s common law. The constitution identifies customary law by location and ethnic group, meaning that the many customary traditions from different geographical regions form part of Ghana’s formal legal system. And we thought Canadian law was pluralistic!

As part of Ghana’s unique cultural and intellectual heritage, these traditional ways of thinking influence Ghanaians both politically and legally. However, Ghana is a society in flux and some of these changes are testing their particular brand of legal pluralism. One such trend is increasing rural to urban migration. Many Ghanaians are flocking to major cities such as Accra or Kumasi. While urbanization is nothing new, this trend is having a particular effect on Ghana’s legal culture. Customary legal systems were based on small villages of extended family members. These systems can no longer support an urban population increasingly structured around the nuclear family unit. Extended families have broken and with them have broken the practices which supported and cared for extended family members.

Unsurprisingly, it is the vulnerable members of Ghana’s society who seem to fall into the increasing gap between the traditional and formal legal systems. The fosterage system, where poorer children were sent to live with wealthier relatives, is often cited as one example of a formerly healthy traditional practice which has become problematic. Nowadays, this practice often denotes little more than slavery with children toiling in the homes of strangers for no pay, little food, and no opportunity to attend school. The conditions of these children require LAWA-Ghana to use the term domestic servitude, rather than domestic assistant, to better reflect these children’s situation.

Another trend Ghana grapples with is the changing role of women in society. Though Ghana is literally a government of men, with only 29 female MPs sitting out of 275 seats, women have been transitioning from the home into the workforce. For the first time in history Ghana’s chief justice is a woman. However, many of Ghana’s customary practices are not particularly favourable to women. Traditional gender roles mean that polygamy is widely practiced in Ghana, girls are not considered proper objects of higher education, and marital rape was not considered a crime until very recently[1]. Due to the position of customary law in Ghanaian legal culture the Matrimonial Causes Act (Act 367) recognizes all sorts of customary marriages. However, urban migration, changing roles of women and the breakup of extended families have caused problems for customary marriages and consequently inheritances resulting from them. Extended families once responsible for caring for widows and their children may not want to carry out their customary responsibilities. The situation is even more complicated in polygamous marriages, where several widows and children may be left with little support once the spouse dies.

Because of these concerns in 1985 Ghana introduced a law dealing with successions for those who die without a will. The intestate succession law was revolutionary when it was passed, offering unheard of protections for spouses and children. As much of Ghanaian law it is extremely legally pluralistic, allowing for a portion of the estate to be devolved via the customary practices of a given region. However, several portions of the law are unclear and some provisions continue to discriminate against women. In 2007 LAWA-Ghana joined other civil society organizations in a push to have this law amended. Though the bill got as far as the last reading, it ultimately failed. The current intestate law remains on the books, causing difficulties for many of the women and children left behind after the death of their partner.

Ghanaian treatment of customary law is a fascinating example of how cultural heritage affects what people are willing to accept as the rule of law. Where Canadians would recoil in horror at the idea of such apparently changeable legal practices, this diversity is central to how Ghanaians think about law. In this way acceptance of legal pluralism is hardwired into Ghana’s legal culture. While Ghana faces many challenges one thing is clear: their challenges cannot be solved by attempting to copy Canadian or European legal systems. Customary traditions will always be part of the conversation in Ghana. Whether this turns out to be a strength or a weakness will depend on Ghana’s willingness to confront the challenges posed by a changing society while staying true to their legal heritage.

[1] The Coalition on the Women’s Manifesto for Ghana, The Women’s Manifesto for Ghana (Accra, Ghana: Combert Impressions, 2004) at 34.

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