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It starts and ends with the community

2015-Cina-Margherita By Margherita Cinà

A few days ago I was visiting Kabarole District in Western Uganda and I was talking to a local man involved in projects for strengthening his community. Being a Canadian interested in development and finding myself in a new, and very different country, I asked him what the biggest challenge was with development initiatives in the area. He responded:

“In Uganda, we have a saying: ‘God gives meat to those who do not have teeth’. This means that many people are given things that they cannot use, and that’s a big problem with development initiatives because many organizations do exactly that. Organizations need to know the local community, their needs, culture, and governance structures before they come and try to help us. For there to be long-lasting success, organizations have to work with the community so that members can take ownership over the project and so that efforts are not wasted. Many organizations don’t do that.”

Since beginning my internship at the Center for Health, Human Rights and Development (CEHURD), I have witnessed the workings of an organization that does not make that mistake. I have had the opportunity of being involved in all three of CEHURD’s programs (Human Rights Documentation and Advocacy, Strategic Litigation, and Community Empowerment) and have been able to witness the importance and the effectiveness of the approach of engaging community members and providing them with the knowledge to demand for their rights. Particularly through the Community Empowerment Program, CEHURD works with local communities to identify specific health issues and work together to address them by creating knowledge and awareness.

At the beginning of June, I went with the CEHURD team to Manafwa District in Eastern Uganda and participated in implementing a project in partnership with the African Rural Development Initiative (ARDI), a Community Based Organization that works closely with CEHURD in that area. Together, our two organizations have been working to advance sexual reproductive health (SRH) in schools in certain districts of Uganda to sensitize students on issue of SRH and to help them make informed decisions about their own reproductive health. The project also involved holding stakeholder dialogues with religious and cultural leaders, the police, and community members, all of whom play essential roles in the topic of SRH.

This community project is a direct response to a study conducted by CEHURD in 2014 entitled “Criminalization of Abortion and Access to Post-Abortion Care in Uganda: Community experiences and perceptions in Manafwa District”. Uganda has one of the highest rates of maternal mortality in Eastern Africa with a rate of 438:100,000 live births. Of the over 6,000 estimated maternal deaths that occur in the country every year, about 26% (more than one quarter!) are attributed to unsafe abortions. While common in many districts in Uganda, the study conducted by CEHURD revealed that unsafe abortions are particularly prevalent in Manafwa District. A local health care centre, Bugobero Health Centre IV, reported that they received approximately 25 patients per month who needed post-abortion care (PAC), while a total of 205 abortion cases were registered by public health facilities in the district over a period of 12 months. Given the illegal nature of abortions, it is likely that these numbers do not show the whole extent of the problem, as many cases remain unreported for fear of the legal and social consequences of this criminal act.

Over the three days in the field, one of our main activities was to engage students from four schools, including Lwakhakha Primary and Secondary, Bumbo Secondary, and Kisawayi Primary, to critically think about and discuss SRH issues. During our time at each school, over 500 students were involved in debating the topic: “Should the use of contraceptives be encouraged in schools?

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This topic was chosen in order to open dialogue between school children about contraceptive use and the high rates of unsafe abortions that occur in their district. Students between the ages of 8 and 22 were selected ahead of time to debate both sides of the argument. At the end of the formal section of the debate, the floor was opened up to other students that wanted to contribute arguments either for or against the motion.

Overall, the level of debate was very good and the students were all enthusiastic and quite comfortable talking about issues of sex, contraceptives, pregnancy and sexually transmitted illnesses. There were however many misconceptions of the use of contraceptive that were found across all 4 schools. Among the most frequent mistakes were that contraception use damages reproductive organs, causes permanent infertility, produces deformed babies with big heads or the size of small rats, leads to diseases such as hypertension, and that girls will waste the family’s little financial capital on buying these pills, Injectaplans, or condoms.

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Following the debate, a community health worker, a midwife at a Health Centre III, gave the students sexual education by explaining biological basics as well as addressing some of the myths and misconceptions about contraceptive use that arose during the course of the debates. Importantly, she also informed all the students that contraception, such as pills and condoms, are actually free of charge at health centres and therefore can be obtained by anyone. She told the students of the “youth-friendly services” are available in many health centres and that students should begin to start accessing them if they are engaging in sexual activities.

The nurse also brought in the issue of unsafe, self-induced abortions, an issue that had arisen by a few of the students arguing for the use of contraception to be encouraged in schools. Many early pregnancies by young girls who are still in school can lead to the girls seeking unsafe abortions in order to remain in school or the avoid stigma by family or community members. In order to avoid these early pregnancies, it was highlighted that the two best options were abstinence and, if that is not possible, condom use.

The students remained engaged throughout the whole session. At the end of the midwife’s talk, students asked very relevant and interesting follow-up questions and, upon an informal evaluation at the end of the session, students clearly indicated that they had learnt new information about contraception use and were aware that some of their initial ideas were in fact wrong.

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My visit to Manafwa District taught me many things and helped me reflect on some of my own conceptions of human rights and development initiatives. Firstly, I began to think deeper about what exact “the right to health means”. The right to health imposes 3 obligations on the government: the obligations to respect, protect, and fulfill. Empowering community members through these dialogues and debates is the beginning of creating an environment where individuals take ownership of their rights and begin not only to understand them, but to also be able to hold appropriate people or institutions accountable. The government always has the three obligations however, when individuals are not aware of their rights, they are not able to demand those rights. By informing individuals on their sexual reproductive health rights, the government becomes accountable for its duty to respect and protect the communities.

Secondly, I had the opportunity to experience and reflect on what it takes to begin to effect real change in a least developed country like Uganda. My personal interests have always been in development issues, particularly around health issues, in low- middle-income countries and yet this is the first time that I have had the opportunity to work with an indigenous NGO and, more specifically, to interact with the community members that many international laws and policies I’ve read or studied are supposed to help. This experience in Manafwa District with the CEHURD team has allowed me to better understand the challenges and barriers that individuals and communities face as well as their specific needs and stories. The Community Empowerment team at CEHURD engages people in a way that directly involves those affected in shaping decision and will ensure sustainable change. International laws or policies can serve as guiding principles, but no change will be effective unless the laws and policies are not based on specific community contexts and the realities on the ground.

When it comes to reducing the number of maternal deaths due to unsafe abortions, the road begins with educating children on the facts of SRH and then including all key stakeholders in the discussion. Sustainable and effective change starts by addressing specific community needs and involving all those in the community in the change process.

“I came too far, I can’t give up.”

– Pirate in Captain Phillips

2015 Meredith Carly

By: Carly Meredith

It’s starting to feel like I’ve been here forever. I am not saying that the time feels long. In fact, the days have flown by. It’s just that I’ve absorbed so much knowledge and experienced so much change in such a short period of time that seems impossible that only two months have passed since I arrived in Colorado

I have become so engrossed in my work that the weeks are passing in the blink of an eye. I have been  extensively researching piracy’s kidnap for ransom model and, more specifically, the “forgotten hostages”  that it claims as its victims; those whose governments and ship-owners have refused to pay the ransoms that stand in the way of their release. The days, months, and even years pass as the hostages gradually lose faith in ever being rescued, while the pirates desperately cling to the hope that someone will eventually fork up the sums they have demanded.

The most famous incident of kidnap for ransom by pirates is the case of Captain Phillips, who was held hostage following the hijacking of the Maersk Alabama back in 2009. Fortunately, the U.S. navy was able to step in and successfully rescue their Captain.

His ordeal lasted 4 days.

Now, imagine the 26 crew-members of the Naham 3; hijacked on March 26, 2012, they have remained hostages since that day.

Today marks their 1200th day in captivity.

Their ordeal isn’t over. Our work has just begun. If and when they are released, the world will have changed, their jobs will have been replaced, their economic situation will have worsened dramatically, on top of the physical and mental repercussions that they and their families will have endured.

This world can indeed be a cruel place, but Colorado serves as a constant reminder of the tremendous amount of beauty that it also contains.

I have completely immersed myself in the “Boulder culture”. Known for its peculiar ways, Boulder County is characterized by its hippie vibe and outdoor lifestyle. As a result, I have become an inspired yogi, a lover of organic produce and an avid hiker.

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Keeping busy with all of these new activities has made the transition to Colorado rather seamless, though there have been a few mishaps along the way –

Like the time the hike to Diamond Lake became a hike into Diamond Lake. Wearing nothing but shorts and a t-shirt, we hadn’t anticipated the mounds of snow and ice that we would encounter along the way. When we finally made it to our destination, it appeared as though the lake was surrounded by firm, snow-covered ground; that’s until I fell through the snow and into the glacial water.

And, despite my usual aversion to cats, I’ve befriended a cute grey one. Leaving the house in a rush one morning, I found out the hard way that he’d left me a dead mouse offering right by my front door. If he’d only known that if there’s one thing I dislike more than cats, it’s definitely mice.

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But, if there’s one place I love, it’s definitely Colorado. If you ever make your way to Colorado, you should know that when you say “sorry” to someone, they won’t say sorry back like Canadians tend to do. Instead, they will kindly tell you “you’re fine” or “you’re okay”.

They’re right. I am okay. More than okay.

What Rachel and Robert Want: How Should The Law Approach Legal Capacity?

2015 Zidel Max 2By Max Zidel

Imagine for a moment that you have a 20 year-old sister named Rachel who has severe intellectual disabilities. While Rachel can usually answer simple yes or no questions, she is for the most part non-verbal. Further, as a result of her particular mental capacity, Rachel is not generally able to understand complex ideas – particularly those pertaining to concepts like health or long-term well being.

Imagine now that it is ten minutes to midnight, and as per usual, Rachel refuses to brush her teeth. Should you be able to force her to do it, even though she hates it? On the one hand, you are aware of the fact she is an adult, and that she is entitled to make her own decisions about how she wants to live her life. And anyway, you feel terrible about forcing her to do something that you know she hates or feels uncomfortable doing. On the other hand, you know that if Rachel doesn’t brush her teeth on a regular basis, she will surely develop severe health problems and eventually have to have her teeth removed. Not only will this be painful and expensive, but it will cause her a great deal of discomfort on a daily basis and prevent her from eating many of her favourite foods. Rachel, for example, absolutely loves eating a hot dog at a Blue Jays Game, and you dread the day when you will have to deny her one on account of teeth problems that she may not fully understand. You are also afraid for her: the kids in the “normal” stream at her public school already giver her a hard time for being different – imagine what they would say if her teeth were missing (though of course they shouldn’t care, this is the society in which Rachel lives in). But no matter how many times you try to explain the consequences of not brushing her teeth to Rachel, you know that because of her particular mental capacity that she just won’t be able to fully grasp the implications of her choice. And deep down you know that if she did understand those implications, she would probably just suck it up and brush her teeth. As a loving sibling who respects Rachel’s autonomy but also cares a great deal about her well-being, what are you supposed to do? More importantly, what should the law allow you to do in such a case, if anything?

IMG-20150708-WA0006Take another example. Your husband Robert is dealing with a mild form of paranoid schizophrenia. Though Robert’s condition is extremely manageable and for the most part highly stable, every so often his symptoms become severe for a short period of time. Over the past few months, Robert and yourself have been making extensive plans to move into his late mother’s flat that he recently inherited. Everything is ready – the new floors, paint, tiling etc – when suddenly Robert’s symptoms flare up he becomes convinced that moving in is no longer a good idea and that instead he should sell the flat immediately. You know – or at least you believe that Robert is not thinking clearly and that he would regret it immensely if he were to proceed with the sale. You try to talk him out of it by revealing the contradictions in his current thoughts on the matter and emphasizing his previous plans, but it doesn’t seem to work. Robert has already found a buyer and he is convinced he needs to sell the flat as as fast as possible, even if at a significantly reduced price. Should you be allowed to intervene? if so, for how long and with what powers?

IMG_20150708_135004987The answers to these questions are far from easy, and they have occupied the minds of legislators from as far back as those who instituted the system of tutorship in Ancient Rome. They are also precisely the questions we at MDAC had to grapple with this morning during a presentation led by some of our interns on the notion of ‘legal capacity.’ For the next few days, MDAC’s interns will be leading presentations on different aspects of this central concept in disability rights as a precursor to a much larger research project that MDAC will be launching sometime in the coming months.

“Legal capacity” is a legal construct that signifies the ability of an individual to have and exercise rights and obligations, which range from taking out a loan to consenting to medical treatment. In the case of persons with intellectual or psycho-social disabilities, the notion of legal capacity has often been conflated with that of mental capacity, which has led to a system of enforced substituted decision-making, whereby the capacity of these individuals to make even basic decisions is stripped from them and placed in the hands of a family member, friend or representative of the state. For the governing UN treaty on disability rights – the CRPD – the answer to this tendency is clear (see the 2014 General Comment): such a conflation of legal and mental capacity is simply discriminatory and therefore arbitrary, and states should therefore abolish all forms of substituted decision making. But is this position always defensible?

IMG-20150708-WA0003During the meeting, we looked carefully at the two examples above in order to take a more nuanced look at the CRPD position and the particular conception of individual autonomy upon which it relies. As most of us seemed to agree, the CRPD’s call for a movement away from substituted toward supported decision-making is a well-needed intervention in a huge number of cases where a person’s most basic rights and capacity for autonomy is arbitrarily taken from them solely on the basis of disability. However, when we took the CRPD’s logic and applied it to cases like those of Rachel and Robert, not all of us were entirely satisfied with the potential consequences of such an unbending position.

How responsive would Rachel be to the kind of supportive decision-making that the CRPD advocates? What would that look like? Are we satisfied that her autonomy is even enhanced by allowing her short-term discomfort to overcome the long-term well-being she may be absolutely incapable of seeing? How about in Roberts case, where it is highly likely that Robert might actually get really upset with his partner for allowing him to sell the flat during during a difficult period in Robert’s schizophrenic cycle?

At the end of the session we were of course left with more questions than answers. Moving forward, we will be hearing presentations on some promising approaches from jurisdictions that have made great efforts in trying to define autonomy and ‘will and preference’ in the context of persons with mental disability. We will also be looking at how they balance the protection of these rights against other core rights, such as the right to health, life and long-term well-being. Slowly but surely, we hope to build effective guidelines for states trying to promote the right to legal capacity for individuals with mental disability. Stay tuned for more developments!

Tensions entre droit coutumier et common law

2015 Beaubien OlivierPar Olivier Beaubien

Cela fait maintenant plus de cinq semaines je vis à Lusaka, capitale de la République de la Zambie, pour un stage avec l’organisme « Disability Rights Watch Zambia ». Moi qui n’avait jamais mis les pieds hors de l’Occident, je m’accoutume lentement mais sûrement au rythme, au mode de vie et à la culture riche et complexe de cette nation.

Dès mon arrivée, j’ai remarqué la pluralité des influences culturelles qu’on retrouve ici. Le pays regroupe plus 72 groupes ethniques qui parlent jusqu’à 46 langues différentes. Alors qu’en région la pluralité des coutumes persiste à ce jour, la capitale est un lieu où tous se rencontrent et où se dessine une culture que les locaux qualifient eux-mêmes de « sud-africaine ». À cette diversité locale s’ajoute la forte influence anglaise. L’anglais est très utilisé à Lusaka, mais s’ajoutent aussi des influences plus subtiles, comme la consommation quotidienne de thé et l’engouement pour les clubs de soccer – de « football », pardonnez-moi – anglais.

Ce n’est cependant pas tout! La ville a de nombreuses et visibles communautés arabes et chinoises. Les derniers sont souvent des travailleurs, venus à la suite d’investissements dans le pays. À la télévision, les programmes les plus populaires sont des soaps latino-américains et des productions de Bollywood; les stations de nouvelles alternent entre CNN, BBC et Al-Jazeera. Un court séjour ici rend évident que la culture occidentale, que plusieurs perçoivent pourtant comme multiculturelle et ouverte sur le monde, est paradoxalement fermée sur elle-même et ses productions culturelles.

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Cette multitude d’influences trouve son chemin jusque dans le droit. En Zambie, le droit coutumier a toujours une place importante dans la vie de plusieurs. Le pays compte des dizaines de chefs traditionnels qui exercent un poids politique non négligeable et plusieurs tribunaux appliquent ce droit coutumier pour régler des questions de droit de la succession, de droit de la famille et de droit des biens.

Il existe à plusieurs égards des tensions entre ce droit coutumier et la common law nationale. Le droit coutumier a par exemple tendance à exclure les femmes de l’héritage de propriété foncière et à diminuer les droits aux pensions en cas de divorce. S’en suit le débat sensible et difficile opposant d’une part les traditions de peuples et d’autre part des valeurs perçues comme progressistes et modernes par certains, et comme un héritage colonial occidental par d’autres. Le débat entre tradition et équité n’est pas sans rappeler certains autres débat qui sévissent en Amérique, comme on peut l’observer dans les tensions persistantes avec les Premières Nations ou les réactions mixtes à la décision de la Cour Suprême des États-Unis. En Zambie, cette tension a cependant une toute autre ampleur.

Ces débats éthiques trouvent leur chemin jusqu’au droit des personnes avec handicap. Un problème récurrent est l’abandon par les pères lorsqu’un enfant naît avec un handicap. Bien que le droit donne certains recours à ces femmes pour obtenir du soutien financier, peu réussissent à l’exercer et à exiger des pensions de leur ex-mari. Un autre problème est que les gens avec un handicap sont souvent mis à l’écart lorsque viennent les questions de succession réglées par droit coutumier.

J’ai récemment participé à une conférence de la « Zambia Land Alliance » dans laquelle j’avais le mandat de représenter les difficultés – trop nombreuses – d’accès à la propriété que vivent les personnes handicapées. On m’y a demandé mon opinion sur la mise en place de quotas pour assurer la distribution d’un minimum raisonnable de terres aux femmes et aux handicapés, et ce même dans les terres traditionnelles sous le contrôle des chefs. La question fut toute particulièrement difficile pour moi. L’histoire de la Zambie commande la prudence lorsque vient le temps d’imposer des lois remplaçant celles des peuples locaux, tout particulièrement si on est un étranger caucasien.

Paralegals Training

Alors que j’offrais une réponse nuancée digne du stéréotype de l’avocat, plusieurs membres présents ont appuyé la motion. D’autres ont proposé une collaboration avec les chefs et rappelé que certains de ces chefs avaient pris l’initiative de lutter, à l’intérieur même de leur « chiefdom », contre les mariages d’enfants. Cette intervention simple m’a fait chaud au cœur. Elle m’a laissé optimiste par rapport à l’exercice difficile mais important auquel doit se livrer la Zambie : l’articulation des droits humains fondamentaux dans une culture qui est la leur, et non pas par la culture des puissances impériales du passé.

Recent developments in international criminal law

2015 Bayly ValleryBy Vallery Bayly

The fight against impunity is central to many aspects of ASFC’s work. In Guatemala, in Haiti, in Colombia, in Mali, ASFC has emphasized the importance of combating impunity for serious human rights abuses. Over the past eight weeks, I’ve looked at the role of international criminal law as a tool to combat impunity, and some of the positive developments that have occurred over the last 25 years. Here are a few examples:

The establishment of the International Criminal Court

On July 1, 2002, the Rome Statute came into force, creating the International Criminal Court (ICC). The ICC is a permanent institution that has jurisdiction over the most serious international crimes: most notably, genocide, war crimes, and crimes against humanity (Rome Statute, article 5). The ICC is particularly important in terms of what it represents: a willingness in the international community to devote attention and resources to the prosecution of serious international crimes. Its first judgment was rendered in 2012.

Domestic trials for serious violations of human rights

The ICC’s jurisdiction is “complementary” – meaning that domestic courts bear the primary responsibility for prosecuting serious international crimes, but the ICC can step in when domestic courts are either unable or unwilling to do so (see Article 17 of the Rome Statute). Many international crimes and cases of serious human rights abuses have been prosecuted at the national level on the basis of various types of jurisdiction, including universal jurisdiction (the notion that any state can prosecute the most serious international crimes, regardless of where they were committed). For an overview of cases that have been prosecuted under the principle of universal jurisdiction, see TRIAL’s website.

Some notable domestic cases include Alberto Fujimori, the former president of Peru who was convicted of human rights abuses committed during his presidency and sentenced to 25 years’ imprisonment by Peruvian courts. Closer to home, last year the Quebec Court of Appeal confirmed Désiré Munyaneza’s conviction and sentence for genocide, war crimes, and crimes against humanity committed during the Rwandan genocide.

Development of the rules and principles of international criminal law

Efforts to prosecute international crimes at the international and domestic level have naturally led to the development of a jurisprudence of international crimes. International criminal law has also been codified in various ways. The Rome Statute is the most obvious example, but principles of international criminal law are also codified in instruments such as the Genocide Convention and the Convention against Torture. In Canada, the Crimes Against Humanity and War Crimes Act of 2000 implements the Rome Statute in Canadian law and codifies a number of rules and principles of international criminal law in the Canadian context. Many other countries have similar laws. Codification and the development of jurisprudence have made international criminal law more precise, clear, and certain – although plenty of work still remains to be done.

Visibility

Perhaps most importantly, the visibility of international criminal law as a tool to combat impunity has increased. ASFC is one of many human rights organizations engaged in an ongoing discourse about impunity and the importance of seeking justice for the victims of serious human rights abuses.

There are still many challenges to overcome. Existing international criminal law institutions have been (justifiably) subject to criticism. Impunity remains a serious problem. But the tools to combat it exist, and human rights defenders have increasingly made use of them.

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