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Content writing for the Maritime Security Index and research on the maritime activities of terrorist organizations

By Derek Pace

With less than one week left in Colorado, I’m still astounded at how much I’ve learned in just a few (very short) months. The bittersweet goodbyes have started, and with each passing day, I’m realizing that my time here is all too limited. Here’s a recap of the projects in which I’ve dabbled at work since my last post.

After transitioning away from the research and data collection phase of the Maritime Security Index, my time at work has been consumed almost entirely by writing. If you know me personally, you know that that’s the exact opposite of a problem in my eyes. I love to write; I could do it all day and have even thought of doing it professionally. At One Earth Future, I’ve been writing various forms of content for the Maritime Security Index, including country reports and issue briefs. The former takes the form of a two-page report that contains, among other things, two mini-reports on a country’s place within the international maritime sector. One mini-report focuses on something that the country is doing well, or perhaps on a certain maritime advantage that the country has due to its resources or coastal tourism industry. The other is more constructive and centers on a challenge that the country is currently facing or a way in which the country could improve.

These mini-reports, which we call a “solution” and a “challenge” respectively, can come from any of OEF’s nine maritime security issue areas: Piracy & Armed Robbery, Coastal Tourism, Coastal Welfare, Illicit Trades, Maritime Mixed Migration, Blue Economy, Fisheries, Maritime Enforcement Capacity, and International Cooperation. Each of these issue areas impacts a country’s maritime security situation in numerous ways. Some of the impacts are discrete, but usually, they are connected very clearly to other issues. For example, a country that has a strong fishing industry and healthy fish stocks in its waters will likely have a relatively high level of coastal welfare. When fishers can catch plenty of fish, feed their families, and receive artisanal fishing protections from the government, economic insecurity on the coast is reduced. Here’s another example: countries that have a low level of maritime enforcement capacity, meaning a small, weak navy that cannot adequately perform the full range of naval functions, is at a higher risk of piracy in its waters. All of the issues are connected, and I enjoy seeing how they fit together to form a broader picture.

I’ve also written geographic introductions for many countries. These are simply short, 100-120-word blurbs about the location of a country, its borders, and its coastline. The country introductions will be placed at the beginning of the “solution” and “challenge” reports to provide background information for reference.

Finally, I have written several region summaries–reports on the Maritime Security Index data findings for a specific issue area–for the Middle East-North Africa region. The region summaries have given me a prime opportunity to delve back into a region that I’ve found fascinating for years and that I explored in my undergraduate career in both Religious Studies and Arabic classes. I looked through this year’s data for the forthcoming Maritime Security Index for the Middle East and North Africa and described, broadly, what each issue area looks like in that region. I wrote one region summary for each of the nine issue areas with the exception of Piracy & Armed Robbery, since piracy is one of the specialties of Stable Seas (my division at OEF) and our team boasts multiple piracy experts.

During my last two weeks of work, I’ve been doing research for an extensive report on terrorist organizations and the various ways in which they and their peer organizations use the maritime sector in pursuit of their goals. Such use of the maritime sector can include anything from smuggling illicit drugs by sea to running sex trafficking rings in ports to bribing port inspectors to keep quiet about illegal shipments of drugs, arms, gems, and even wildlife.

I’m incredibly proud of the work that I have done at OEF. My talent and efforts have been recognized and celebrated here, and I can clearly see the value of the work that I am doing, which, I’ve come to realize in recent years, is essential to my happiness in the workplace. I don’t want to do something for no reason; I have to be certain that my work will contribute to a broader mission in some tangible way. I’ve had that certainty all summer at OEF. Recently, our division leader sent our team a first draft of one of the two-page country reports, complete with text boxes and graphs. I was, quite simply, overwhelmed when I saw the text that I had written right there on the page. It was then that I realized that when OEF publishes the Maritime Security Index this fall, my writing will be published along with it, and will subsequently be read by government officials both in the US and abroad, as well as by other maritime security stakeholders, such as conflict studies organizations, nonprofits, and academics. What I’ve been able to do here is exactly what I’ve always wanted to do, and while I genuinely do not want to leave Colorado, I will leave with the certainty that I have contributed substantially to numerous exciting projects this summer and discovered a new interest that I may never have discovered otherwise.

Voir du Québec la situation des droits humains dans le monde

Par Jennifer Lachance

Durant mon stage chez ASFC, j’ai entre autres pu étudier la situation des droits humains dans trois pays d’Afrique, notamment en ce qui concerne la République centrafricaine (RCA). Étant donné que les résultats de cette recherche sont ceux qui m’ont le plus bouleversé, j’ai pensé que je pourrais partager certaines de ces trouvailles dans le texte qui suivra. Il convient toutefois de noter que les résultats présentés sont le fruit d’une recherche préliminaire, et que ces faits mériteraient d’être corroborés par une visite sur le terrain.

Durant cette recherche, j’ai constaté que, en RCA, trois groupes de personnes sont particulièrement affectés par les violations de droits humains : les femmes, les enfants et les autochtones.

Situation des femmes

Les femmes ont particulièrement été touchées par le conflit armé en RCA, notamment en raison du fait que presque tous les groupes armés ayant participé au conflit entre 2003 et 2015 ont commis des violences sexuelles et basées sur le genre[1]. Des viols collectifs ont fréquemment été commis, de même que les viols commis en public et/ou sous les yeux des membres de la famille de la femme en question[2]. La plupart du temps, les groupes armés ciblaient des personnes appartenant au même groupe social, ethnique ou religieux que le groupe armé ennemi[3].

En dehors du conflit, la situation des femmes est également difficile. La violence domestique envers les femmes est commune[4], les lois protégeant les femmes contre le viol ne sont pas appliquées de manière efficace par le gouvernement[5]et les mutilations génitales féminines sont fréquentes (près de 25% des filles et femmes en RCA en ont subi)[6].  Les femmes sont également à risque d’être accusées de sorcellerie[7], dont la peine peut aller d’une amende salée à la prison à vie avec travaux forcés s’ils ont « causé » la mort[8].

Situation des enfants

Au niveau de la situation des enfants, les violations de leurs droits ont lieu à 3 niveaux, d’abord en ce qui concerne leur éducation, ensuite en ce qui concerne les mariages précoces et finalement en ce qui concerne leur utilisation comme enfants soldats.

Éducation :

En ce qui concerne l’éducation, même si l’école est obligatoire jusqu’à 15 ans, il y a un haut taux d’analphabétisme, notamment chez les filles, les personnes vivant en région rurale et les populations autochtones[9]. Cette situation est notamment due au fait que certains groupes armés utilisent les écoles à des fins militaires[10]. Rien qu’en 2017, 12 à 22 % des écoles étaient fermées à cause que des groupes armés occupaient l’espace, ce qui a empêché 10 000 enfants d’aller à l’école pendant une année entière[11].

Une autre raison qui explique ce haut taux d’analphabétisme se trouve dans les obstacles liés à l’exigence d’enregistrer les enfants à la naissance[12]. Sans enregistrement, les enfants ne peuvent pas fréquenter un établissement scolaire[13]. Or, beaucoup de familles ne sont pas conscientes des implications du non-enregistrement des enfants[14].

Mariages précoces :

En RCA, 68 % des filles sont mariées avant l’âge de 18 ans, alors que 29 % sont mariées avant l’âge de 15 ans[15]. Selon l’UNICEF, cela représente le 2eplus haut taux de mariage infantile au monde[16]. Ces pratiques sont devenues d’autant plus communes dans le cadre du conflit armé, étant donné que les familles perçoivent souvent le mariage comme une manière de protéger leurs filles de la violence sexuelle en temps d’insécurité[17].

Enfants soldats :

Depuis 2012, plus de 14 000 enfants ont été recrutés par des groupes armés non étatiques[18].

Discrimination envers les Autochtones :

Certaines communautés autochtones comme les Baka, qui représentent 1 à 2 % de la population,subissent beaucoup de discrimination[19].Cette discrimination s’opère au niveau du peu d’influence qu’ils ont pour prendre des décisions qui affectent leurs terres, leur culture, leurs traditions et l’exploitation des ressources naturelles[20].Leurs emplois sont souvent précaires et sous-payés; il leur est difficile d’obtenir des documents d’identité ou d’avoir accès aux services de santé ; et ils sont parfois réduits à l’esclavage par d’autres groupes ethniques locaux[21].

Réponses du système judiciaire à ces violations :

Malgré ce sombre portrait de la situation des droits humains en RCA, l’accès au système judiciaire en réponse à de telles violations est très limité[22].

 

[1]MINUSCA, République centrafricaine : Mapping des violations des droits de l’homme 2003 – 2015(mai 2017), en ligne : <https://www.ohchr.org/FR/Countries/AfricaRegion/Pages/CARProjetMapping2003-2015.aspx>, à la p 17.

[2]Ibid.

[3]Ibid.

[4]US Department of State, 2018 Country Reports on Human Rights Practices: Central African Republic (13 mars 2019), en ligne (pdf): <https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/central-african-republic/>, à la p 18.

[5]Freedom in the World 2019, Central African Republic, en ligne : <https://freedomhouse.org/report/freedom-world/2019/central-african-republic>, à la p 18.

[6]Ibid.

[7]Comité pour l’élimination de la discrimination à l’égard des femmes, Observations finales sur le rapport unique de la République centrafricaine valant rapport initial et deuxième à cinquième rapports périodiques(24 juillet 2014), en ligne : ONU <https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/CAF/CO/1-5&Lang=Fr>, au para 25.

[8]MINUSCA, République centrafricaine : Mapping des violations des droits de l’homme 2003 – 2015 (mai 2017), en ligne : <https://www.ohchr.org/FR/Countries/AfricaRegion/Pages/CARProjetMapping2003-2015.aspx>, à la p 238.

[9]Comité des droits économiques, sociaux et culturels, Observations finales concernant le rapport initial de la République centrafricaine (4 mai 2018), en ligne : <https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E/C.12/CAF/CO/1&Lang=Fr>, au para 39.

[10]US Department of State, 2018 Country Reports on Human Rights Practices: Central African Republic (13 mars 2019), en ligne (pdf): <https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/central-african-republic/>, à la p 19.

[11]Ibid.

[12]Ibid.

[13]Ibid.

[14]Comité des droits de l’enfant, Observations finales concernant le deuxième rapport périodique de la République centrafricaine(8 mars 2017), en ligne : <https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/CAF/CO/1-5&Lang=Fr>, au para 32 d.

[15]Ibid.

[16]Ibid.

[17]US Department of State, 2018 Country Reports on Human Rights Practices: Central African Republic (13 mars 2019), en ligne (pdf): <https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/central-african-republic/>, aux pp 19-20. Voir aussi Girls Not Brides, Central African Republic, en ligne : <https://www.girlsnotbrides.org/child-marriage/central-african-republic/>.

[18]Child Soldier International, Des milliers de vies à réparer : Les défis de la démobilisation et réintégration des enfants associés aux groupes armés en République centrafricaine(mai 2016), en ligne (pdf) : <https://www.child-soldiers.org/Handlers/Download.ashx?IDMF=f61aefa1-5257-41b8-9f47-876533b40d63>.

[19]US Department of State, 2018 Country Reports on Human Rights Practices : Central African Republic (13 mars 2019), en ligne (pdf) : <https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/central-african-republic/>, à la p 22.

[20]Ibid.

[21]Ibid.

[22]US Department of State, 2018 Country Reports on Human Rights Practices: Central African Republic (13 mars 2019), en ligne (pdf): <https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/central-african-republic/>, à la p 9.

Black Economic Empowerment

Forging a future for Namibia, where ownership reflects the demographic of the country.

Like many days, I am the last to find out not only what I am to do for the day, but more pressingly, where I am to do it. It’s one of my favourite parts of the job- the excitement and unpredictability each day will bring.

We had barely arrived at the Commission’s office, when we received frantic calls that I was to go immediately to the State House, to accompany the Chairperson and the lawyers working on the National Equitable Economic Empowerment Framework (NEEEF). Scattered, I grabbed all the files I could, put on my nice spare shoes I keep at the office and ran out. As we raced through congested streets, I ran over the key points, strengths and weaknesses of the national economic strategy that I had amassed during my research and writing thus far.

Yet I couldn’t help but draw a blank when the massive golden gates of the President’s headquarters opened… the beauty and magnificence of the expansive white building, the golden Oryx, bright green foliage and marble encasing the main State House itself was simply breath taking.

But back to business (literally). I have spent much of my internship researching and writing reports and strategic plans on the core theoretical structure and implementation of financial instruments, for the equitable economic framework in Namibia. This required conducting cross-jurisdictional analyses predominantly with South Africa, but also with Malaysian and Canadian economic strategies that sought to incorporate and address racial disparities in accessibility and ownership within domestic markets.

The principle at the core of Namibia’s NEEEF policy is black economic empowerment. Inspiration was drawn from the Broad-based Black Economic Empowerment (BEE), which is a form of affirmative action crafted by the South African government, to address and change the economic landscape of racial inequalities of Apartheid, and increase economic participation of Black people in the South African economy. Interestingly, “black” as legally defined by the South African legislation encompasses African, Coloured, and Indian persons who are citizens of the country. Turning to the Namibian context, the purpose of legislation, reports and strategies based on NEEEF is to forge a future for Namibia where ownership reflects the demographic of the country. Much of this includes learning from the South African implementation of BEE and why the country struggled in practice to achieve the outcome of racial economic transformation that they originally had envisioned.

Namibia is only 29 years old, gaining independence from South Africa in 1990. The constitution of Namibia was created not by an act of Parliament, but rather as a negotiated settlement- a peace treaty, essentially- to secure independence. In effect, it solidified the ways in which the country’s economic landscape would be shaped and the way it would remain present day. Importantly, property as it was during Apartheid remained unaltered. Furthermore, constitutional provisions (for example, property under Article 16(1)) were created during this peace negotiation that protected property owners as they stood under Apartheid.

“Writing the Constitution” – Picture taken during my visit to the Independence Museum of Namibia.

If you grocery shop, or buy commodities, you will see that the previously disadvantaged majority (hereafter PDM; as defined under NEEEF means “victims of Apartheid policies”) occupies the lower level positions: sales representatives, cleaners, and public facing staff. However, ownership and controllership of those very firms, the upper management levels, are mostly held by the previously advantaged minority (PAM) Namibian population. In Namibia, there are a few owners of larger enterprises that own a monopoly on the major chains in Namibia- Pick and Pay (groceries), Pupkewitz (cars) and Shoprite (merchandise) for example.

The main challenge now remains, 29 years after independence, how do we shift the economic landscape to be more reflective of the actual demographic composition of the people of Namibia? Perhaps more importantly, how do we have more PDMs owning and controlling the economy and do so legally, in accordance with the constitution as it currently stands, unamended since Independence.

The basis upon which NEEEF operates is within government procurement. Corporations that do business with the government that meet certain compliance standards and statistical thresholds within employment and ownership of previously disadvantaged majority persons, are favoured. There are five pillars under which enterprises will be evaluated for procurement with government: Ownership, Management Control and Employment Equity, Human Resources and Skills Development, Entrepreneurship Development and Community Investment. A scoring system is enacted whereby, for example under the Ownership Pillar, “a business will score a minimum of 10 points if it is 25% owned by previously disadvantaged Namibians. For every additional 7.5% owned by previously disadvantaged Namibians, a business will score 1 additional point up to a maximum of 100% giving a total of 20 points“. Long term, the goal is for PDMs to not only own shares in companies, but to own enterprises themselves.

Much of a Nation’s independence is not simply political, but economic emancipation from external international access and controllership of the economy. In the Namibian context, if you drink water, eat chocolate or even moisturize with lotion, turn the product and you will invariably see “Product of South Africa”.  Despite Apartheid being over, South Africa dominates the Namibian economy through the reliance on their exports for goods in the country. In light of this, NEEEF also holds the potential to reduce import reliance and create a foundation for domestically producing commodities here in Namibia, and even long term to create an export economy for the country.

The NEEEF is a revolutionary attempt to achieve economic prosperity for the country by economically empowering and providing tools and financial instruments to those persons that were socially, educationally, and economically disadvantaged as a result of Apartheid. It provides the basis for a new vision of the country, based on social economic transformation to enhance equity, accessibility and ownership of the previously disadvantaged majority population.

After a most exciting day discussing economic empowerment in the country.

Day 2 of economic empowerment strategizing, back at the LRDC Office.

A Prison in the Middle of Nowhere

“You have to wear a long skirt, for the security of the inmates.”

The day before our visit to Muinaina Prison, I was told that a woman is not allowed to enter a prison in Uganda if she is not wearing a skirt. What else did I know about prisons in Uganda? Almost nothing.

I had spent the last couple days reading a report from a partner organization, Interaid, about refugee clients in Luzira Prison in Kampala that they wanted Refugee Law Project to take on. The report described each prisoner’s country of origin, their charges, sentence, and their requests. While many requested help with their appeals, a prison transfer, or to contact their families, every single one requested the basic necessities of cooking oil and rain boots. I had also heard people say that conditions in prison in Uganda are awful, and likely responsible for the country’s low recidivism rate of 30%—the lowest in Africa. In the car during the three-hour drive to Muinaina from Kampala, I went over these clues in my mind. First, I had to wear a skirt. Second, the inmates want cooking oil and rain boots. Third, the conditions are so bad no one wants to go back.

With these clues, I unsophisticatedly adapted an image of North American prisons in my mind. Muinaina would be, I thought, the same, but the incarcerated persons might do their own cooking and the courtyard would be mud instead of cement. I wrote off the third clue because it’s difficult to imagine any prison anywhere where the conditions would be such that people would leave wanting to return.

For most of the drive from Kampala, we had no idea where Muinaina Prison was. We stopped for directions three times, and each time we were simply told to keep driving. The tarmac road turned to dirt, but the same open hills of green tea plants and matoke rolled by. Suddenly, or so it seemed to me, my colleagues breathed sighs of relief and announced our arrival. What gave them that idea? As I looked around, I saw nothing that indicated a prison. There was no massive parking lot or ten-metre high wall, no buildings made of flat grey cement with barred windows. Then I spotted a man in a bright yellow uniform with a herd of cows. Then another man in a bright orange uniform carrying a bundle of firewood. And a group of ten men in yellow carrying sacks of maize. A group in mixed yellow and orange tilling a field. They were prisoners, but there were no guards to be seen.

As we got closer what I thought was just another collection of houses surrounding a school turned out to be the prison staff quarters around the inmates’ wards. We went in, gave the name of the client we were there to see and were shown to a wooden bench looking into a courtyard through a gate. Nearby, three or four guards stood talking. They were the first security personnel I had seen in Uganda without guns. There was no privacy, but we were not searched or asked any questions. A guard simply called to an inmate near the gate to tell our client that he had visitors. I realized that it is not surprising Muinaina does not have the fluorescently lit visiting room that I had pictured during the journey there. The prison is so remote; it is difficult to imagine visitors are more than a rare occurrence.

When our client appeared dressed in yellow, he sat on an identical wooden bench on the other side of the gate bars and described his case. Yellow is the colour for incarcerated persons on remand, while orange is the colour for those who have been convicted—at least most of the time. These days, prisons often run out of yellow uniforms due to the huge number of persons incarcerated waiting trial. They make up more than 50% of Uganda’s prison population and many are relegated to the orange of convicted persons.

Much like the lack of information about the whereabouts of Muinaina Prison, RLP had been referred our client’s case without any details. This is not uncommon. RLP has eleven offices across Uganda serving thousands of clients who often do not have permanent phone numbers, residences, or in some cases, even birthdates. RLP staff at other offices refer the vague details of a potential client and my supervisor, Jesse, sets out into the field and hopes for the best.

Our client told us he had been incarcerated for over three months. Originally, he was told he would be brought to court for a bail hearing on June 11th, but the day of, the guards told him he wasn’t going. He hadn’t heard anything since. No one was surprised by this story. The prison is so remote that there is no internet or cell service there. Communication to and from the prison is difficult and expensive. Just as family members of incarcerated persons do not know where they are or how they are, the incarcerated persons themselves are usually not informed of the status of their file or when they will get to appear in court. There is no broad promise of legal aid in Uganda, and without an advocate on the other side any information is difficult to come by.

Court room at the Law Development Centre in downtown Kampala

As my colleagues interview our client, in a mixture of Congolese Swahili and Luganda, I watch as the courtyard comes to life. Inside, there only appears to be one guard, distinguishable among the sea of orange and yellow by his beige uniform. The incarcerated persons sat in three neat groups, two of yellow and one of orange. Surrounding each group were three or four other individuals in yellow or orange, each carrying a long skinny stick. While the single prison guard appeared to chat amicably with them, they seemed to be the ones in charge.

The colour doesn’t seem to matter, however, in Uganda’s overpopulated prison system. Uganda has 249 prisons, with a maximum carrying capacity of 16 612 individuals. The most recent statistics say that the total population of these prisons is 48 422, exceeding their maximum capacity by over 30 000 people. Individuals on remand are not separated from those convicted and those convicted of the most serious offences are not treated any differently than the rest. Muinaina is only one prison among these 249, but as the inmates get up and move around it is not difficult to see how overcrowded the facilities are and how impossible it would be to separate offenders by their crime or sentence.

Without any signal or instruction, some men begin sorting through maize, separating kernels and putting them through a grinder to create maize flour. Others begin cooking in a corner. Some men work at a makeshift carpentry station under the branches of a young tree. One man in yellow discusses something with the guard and then uses a saw to cut a long branch off of another small tree. This man then appears to be able to wield the same authority as the other men in orange and yellow overseeing the activities in the courtyard. No one objects. The sticks do not appear to be threatening at all. Granted I cannot hear or understand anything that is being said, they seem almost like a wooden pointer in a classroom, used to indicate or just to hold, imparting a sense of confidence and status to the bearer.

Along the edges of the courtyard are two long single-story buildings with many doors. While the centre of the courtyard is bustling with activity, men on the edges sit on the doorsteps or lean against the walls of these buildings. They look like they are waiting for something and have been waiting so long they have run out of things to talk about. Many watch us intently from afar as we interact with our client. Soon, without warning, the men return to their original three groups of yellow and orange sitting on the ground. After a short while, they get up and work or wait again. And then return to their groups. And repeat.

The Ugandan Prison Service (UPS) promotes farm prisons like Muinaina as self-sufficient entities that teach inmates agricultural skills they can use when they are released. It is one of many rehabilitation programs that has been promoted by the UPS since the Prisons Act was passed in 2006. In a way, what I saw presented a much more believable version of rehabilitation than what I know of prisons at home. There was no trace of the North American version of incarceration where individuals are surrounded by cement above and below as well as on all sides or where a fight between inmates or bad behaviour is punished with solitary confinement. Instead, Muinaina seemed to function like a small village, replicating life outside the prison quite well. At the same time, the shortage of resources is evident. Indeed, it is probably the shortage of resources that makes this style of prison both possible and necessary. The government does not have the funds to provide food, so the inmates must grow and cook their own. Other shortages, like space, medical services, and clean water reported in Ugandan prisons, however, are less possible for prisons to remedy on their own. Even worse, there are reports of torture and ill-treatment, especially among individuals incarcerated on remand as guards are charged with securing confessions to push cases forward. The difference between forced labour as punishment and agriculture as a rehabilitative program may be impossible to observe in such a short visit. For individuals waiting for a trial date that may never come in Uganda’s backlogged and bureaucratic judicial system, all of these conditions—no matter how rehabilitative—violate their fundamental rights.

The entrance of Muinaina Farm Prison

It is colder at Muinaina than in Kampala, cold enough to remind me of a late September evening at home, and the sky is dark with coming rain. When it rains, it will get colder and the ground will turn to clay. The ten men carrying sacks of maize return from the fields. The guards unlock the three padlocks keeping the prison gate closed, and the men run in, deposit their maize in a pile and run out again. They repeat this three times in the period we are there. Some of these men have uniforms including pants or a sweater, while others wear only shorts and a t-shirt. Many of these men are barefoot, while others are wearing the much coveted rain boots.

As we drove away, I asked Jesse why no one seems worried about the men escaping. They seem free to graze cattle as far from the prison as they wish or to disappear into tall fields of maize unsupervised. Jesse asked me in return, where would they go? My response of ‘anywhere’ only made him laugh. Their yellow or orange uniforms make them visible from so far away, they would need to run naked. Moreover, many of them are safer here than at home as traditional justice in their villages sometimes means wrongdoers must be killed for the sake of peace. Besides, he said, the guards know the prisoners aren’t stupid. They could be out of here any day, so why would they run?

Adam, our translator and driver for the day

Jesse, a lawyer with Refugee Law Project and my supervisor

Mombasa: Sun, Sea, and a Study of Sexual Violence

By Julia Green

After our whirlwind day in the Hague, Jenna and I were able to spend a night with Jenna’s relatives in Nairobi before our flight to Mombasa the next day. The side of Nairobi I saw during my first day and a half in Kenya seemed comparable to many other large cities I’ve visited. I saw tall buildings, nice restaurants, large shopping malls and people milling about in stylish clothes as they went about their days. Since we arrived during Kenyan wintertime, even the weather, which was about 15 to 20 degrees, was not the scorching heat I imagined. Everyone we interacted with was completely punctual, defying the expectation of “African time” I had been warned would be the norm. Given that the two other times I have lived abroad it was in countries where very few people spoke English, I think I was even thrown off by the fact that I could communicate perfectly with everyone I met. As I boarded the flight to Mombasa after our short stay in Nairobi, I found myself wondering if I would actually experience the culture shock I expected during my first time in Africa.

A typical Mombasa sight.

From the moment we arrived in Mombasa, however, it was clear that Kenya’s second largest city has a completely different vibe than the capital. We spent our first weekend there using the daylight hours to take in the sights: shanties and open-air markets, groups of men running with heavy rickshaws of fruit, packs of skinny cows holding up traffic, and of course, the beautiful blue water of the Indian Ocean.

The roads, most of which were unpaved and quite bumpy, seemed to be governed by an unspoken code of chaos that allowed cars, tuk-tuks, and “boda-boda” motorbikes to smoothly manoeuvre around each other with only the occasional honk despite the absence of traffic lights. Members of the nomadic Maasai tribe, adorned with handmade jewelry and wearing their brightly-coloured shukas(a toga-like linen garment), walked amongst the crowds of people in Western clothing with their wooden staffs in hand.

The Indian Ocean.

In Mombasa, income disparity between the different classes was also more apparent. As we sat in traffic (and boy, does Mombasa have traffic) many forlorn-looking street children came to the window of our car begging for money. Minutes later, before we could even process the poverty, we would drive past a luxury resort glamorous and excessive enough to be considered fit for the wealthy Kenyans and foreign tourists that frequented it. The city was extremely humid, reaching temperatures of 30 degrees during the day and only dropping to about 27 or 28 at night. According to locals, the heat was part of the reason why everyone was consistently late for every engagement – in Mombasa, we definitely experienced the more relaxed attitude towards punctuality we had been told about. Despite any inconveniences caused by the chaos, the heat, or the poverty though, everyone we met seemed to be relaxed and happy. On Sunday we could hear the peaceful calls to prayer from several nearby mosques competing with the loud, joyful songs that floated out of the churches.

Mombasa has both a strong Muslim and Christian community.

On our first day at the International Centre for Reproductive Health Kenya (ICRH-K) we met with the organization’s acting director as well as the team’s in-house lawyer who we would work closely with during our time there. The four of us discussed mine and Jenna’s educational and professional backgrounds, as well as what we were hoping to get out of the internship. By the end of the meeting we had come up with a rather ambitious project: we were going to look at all the cases of gender-based violence reported to the local hospital’s Gender-Based Violence Recovery Centre (GBVRC) from the past six years and find out how many of them wound up getting legal justice in the courts. For all of the cases that didn’t result in a conviction, we planned to get to the bottom of why they had fallen through the cracks.

Jenna and I with our coworkers at the GBVRC.

In retrospect, I don’t think that any of us sitting in that meeting room on our first day realized just how much work would be required to bring this project to fruition. When we got to the hospital, we discovered that there was no centralized, digitized database for all of the patient files. Instead, all the patient records were kept in a locked storage room in binders that appeared to have no rhyme or reason when it came to their order on the shelves. Despite how confusing the filing system seemed to us, the nurse and paralegal from the GCVRC somehow knew exactly where every file was and were always able to help us find what we needed in a matter of minutes. Slowly but surely, we worked our way through the hundreds of handwritten files and entered information we deemed to be relevant into a carefully crafted Excel sheet.

It took us just over a month to go through the nearly 4,000 cases that had been reported to the hospital between 2013 and 2018, but our work didn’t stop there. After we had collected the data from the GBVRC we started visiting all of the local police stations, where we asked if we could go through their sexual offence files to see how the cases had been handled. Because of the reputation of the equality effect, the Canadian non-profit our placement was organized through, the police response to us was for the most part agreeable. There were a few administrative hurdles we had to get past in order to get what we needed at some stations, but by the end of July we managed to work through almost all of the sexual offence files that the eight Mombasa police stations could produce for us.

While we carried out the data collection, we also conducted interviews with relevant parties including police officers, counsellors, health professionals and even a local magistrate (judge), all who work closely with

Jenna and I, aka the dream team, hard at work going through police files.

survivors of sexual violence. Jenna is an Excel whiz who used her skills to crunch the numbers from our data sets, and I put my journalism degree to work as I transcribed the interviews and carefully documented any observations we made as we visited the police stations. All of this information came together to give us a clear picture of challenges in the justice system for cases of sexual violence. The quantitative and qualitative research we conducted allowed us to see clearly where improvement was needed to increase convictions, and also gave us some ideas for initiatives that could help to deter perpetrators from committing sexual violence in the first place. The end result was a comprehensive draft of a report almost 50 pages long that we were able to send to the ICRH-K to help guide their future work with survivors of gender-based violence. Before we left Mombasa, we had the opportunity to present our findings at a journal club, a monthly event where researchers from local universities and non-profits come together to share what they have been working on. In many ways, it felt like we had completed an entire thesis project in just two short months.

When I look back at our time in Mombasa, I still find it incredible to believe how much we accomplished in so little time. Because I had worked in non-profit before and know how common it is for interns to be forgotten or underused, I had fairly low expectations for the work I would do over the summer. Happily, my expectations for my time in Kenya were once again defied. I can already see all the ways that my time with the ICRH-K Kenya will make me a better student, a better researcher, and down the line, a better lawyer. Most importantly though, I know that the lessons I learned in Mombasa have helped me to better understand the many human rights challenges that persist around the world. I came away with an understanding of gender inequality, poverty, and corruption that I simply could not have gotten in a classroom or from a book. Throughout the summer I found myself constantly thinking about how grateful I was to have such an incredible opportunity through my studies at McGill.

Fostering links with the general public: a role for civil society

By: Samantha Backman

 

On a soft August evening, I gathered with my coworkers from BCNL to attend the launch of an art exhibition in the Crystal Garden, a lush green oasis in the heart of Sofia. The sun’s rays permeated the cover of the park’s majestic trees to illuminate an array of boards depicting striking photographs, vibrant illustrations, and thought-provoking texts. This was an exhibit with a particularly special mandate – to portray “socially-engaged” art.

 

With funding from the Sofia Municipality and in partnership with the Center for Non-Formal Education and Cultural Activity (ALOS), BCNL organized a contest through which young people were to engage with the topic of civil rights and freedoms via photography, visual arts, and writing. The competition had a particular focus on freedom of association, freedom of assembly, and freedom of speech. The goal of this “Civil Alarm Clock” initiative was to develop the participants’ sense of civic culture and to stimulate their interest in human rights.

 

The award-winning works on display in the Crystal Garden evidenced a profound personal connection to a variety of themes, from environmental protection to “fake news.” In casting my eyes over the pieces, I was moved by the palpable commitment of these young artists to the defence of civil rights. They had mobilized art as a vessel to express their passion, their outrage, their determination.

 

This unique initiative has prompted me to reflect upon the importance of public outreach for civil society organizations. I am fascinated by BCNL’s mandate to foster connections with the general public in order to promote civil society and human rights on a societal level. Including everyday people in a dialogue about human rights seems perfectly in line with the grassroots, bottom-up orientation of civil society organizations. Moreover, I would like to believe that these kinds of efforts cultivate active citizenship and a sense of “community.” The exercise of thinking about what it means to have rights and what it is at stake when rights are trampled upon or lost undoubtedly makes us more sensitized to the world around us, with all of its injustice. If we can get people to “care” about human rights, then do we not have a greater chance of creating a more just and equal world? If people are awakened to the host of human rights issues around them, perhaps we can stem the tide of apathy towards the infringement of rights.

 

As I conduct my research on disability rights during my internship, I have come to see that there is a critical need for public outreach in this field. I have come to understand that securing legal reforms in the area of legal capacity and supported decision-making is only the first step towards ensuring that persons with disabilities enjoy the right to equality before the law in practice. Next, a broader cultural shift is required in terms of the ways in which persons with disabilities are viewed by their communities. Indeed, the United Nations Special Rapporteur on the Rights of Persons with Disabilities has called upon states to raise awareness about the abilities and rights of persons with disabilities, and to dismantle stereotypes and negative attitudes towards persons with disabilities.[1] The Special Rapporteur affirms that “persons with disabilities must not be seen as objects of care, but rather as rights holders in the same way as every member of society.”[2]

 

How exactly are states to engage with the public to raise awareness about disability rights and combat prejudice against persons with disabilities? This is certainly not a straightforward question. Nevertheless, civil society organizations may provide crucial assistance in carrying out public outreach initiatives, as they can lead sensitization efforts on a local scale. Firmly embedded in their communities, civil society organizations like BCNL are singularly well-positioned to broadly spread awareness of social issues and to build bridges between people and groups so that we may ultimately peel back stereotypes and secure equal rights on the ground.

[1] Catalina Devandas Aguilar, “Report of the Special Rapporteur on the rights of persons with disabilities (theme: legal capacity reform and supported decision making)” (12 December 2017), online: < https://www.ohchr.org/Documents/Issues/Disability/A.HRC.37.56.docx>  at para 79.

[2] Ibid.

 

The “Civil Alarm Clock” art exhibition in the Crystal Garden

 

Photo Credit: BCNL. Attendees at the exhibition enjoy a live violin performance.

 

Photo Credit: BCNL. Attendees at the exhibition hear from one of the contest’s prizewinners.

 

A photo from my hike in the magnificent Seven Rila Lakes

 

Tsarevets Fortress in the city of Veliko Tarnovo

Les gens et les expériences

Riley Klassen-Molyneaux

One Earth Future, Colorado, États-Unis

13 aout 2019

 

Hier, près du somment de la plus grande montagne des Rocheuses, Mount Elbert, un ami a posé une question à moi et à une deuxième amie qui complétait notre équipe tripartite. Il nous a demandé ce qui comptait le plus : l’activité, l’endroit, ou les gens qui nous entourait. L’amie a répondu de la manière qu’on répondrait tous du premier abord : c’est la combinaison des trois, de l’activité, de l’endroit, et des gens qui nous entourent, qui donne la meilleure expérience.

 

Mais notre interrogateur n’était pas satisfait. Nous étions tous d’accord pour dire que participer à une activité incroyable est mieux quand on arrive à la partager avec quelqu’un, durant ou après, mais il nous incitait à choisir un des trois pris en isolation : l’activité, l’endroit, ou les gens.

 

Introverti qu’il est, l’ami a répondu à sa propre question en disant qu’il préfère largement une activité stimulante qu’un bel endroit ou un groupe de gens avec qui il pourrait causer. Notre amie a décidé que s’il fallait choisir, elle choisirait aussi l’activité au prix de l’endroit et des gens.

 

Bien sûr, j’ai fait un tas d’explorations moi-même au Colorado, y compris le Denver Zoo, Denver Museum of Nature & Science, certains restaurants délectables comme Mezcal ou Machete Tequila + Tacos, et plusieurs randonnés qui permettaient des réflexions intéressantes. Je n’ai pas pu faire plusieurs activités aussi, comme le Colorado State Capitol, le Boulder History Museum, et St. Mary’s Glacier.

 

Mais ma réponse à sa question était que les gens me paraissaient le plus important, bien que l’activité et l’endroit comptent aussi.

 

Au cours de mon séjour avec One Earth Future (OEF) au Colorado, ce sont les gens qui m’ont marqué le plus. Cette expérience était incroyable grâce à ceux et celles que j’ai rencontrés, mais je les ai rencontrés grâce à l’endroit et nous avons créé nos amitiés au cours des activités inoubliables.

 

Tout au long de mon stage, j’ai pu m’entrainer avec un des meilleurs pratiquants de jiu-jitsu brésilien aux États-Unis, John Combs. De cette manière j’ai rencontré des Américains venant de chaque coin du pays. Le gymnase m’a offert des amitiés que seule la méritocratie du sport le peut.

 

De compagnie avec une douzaine d’athlètes de mon gymnase, j’ai eu l’expérience culturelle d’assister au 21e anniversaire d’un des nôtres et de rire en imitant l’accent russe, les uns les autres, et de profiter de la causerie fraternelle. Je crois bien qu’il y avait aussi de la boisson mêlée à cette affaire.

 

L’autre stagiaire, Derek, son amie, et moi sommes allés voir Canyonlands et Arches National Parks, entre autres, au Utah.Là-bas on a vu combien le ciel est bleu perché sur le rouge des pierres du désert. On y était aussi pour discuter du Sud des États-Unis et pour rire tout le long du trajet.

 

J’ai pu faire la fête à Denver avec un groupe de jeunes avocates et étudiantes en droit. Autour des tequilas, j’ai pu retracer mes capacités de danse two-step au fameux Grizzly Rose et leur dévoiler que le Canada était plus de quelques arpents de neige.

 

Au travail, j’ai appris à connaitre mes collègues, devenus amis. J’ai aussi appris que sauver le monde, un conflit à la fois, un pays à la fois, n’impliquait pas la morosité conversationnelle que je trouve chez beaucoup de bienfaiteurs dans le monde.

 

Dans deux affaires qui impliquaient aussi des breuvages alcoolisés, avec des collègues de OEF j’ai assisté à un match de soccer et un match de baseball. Il y avait là des expériences culturelles américaines où j’ai profité de leur compagnie sous prétexte du sport. Ces évènements, en plus des happy hour multiples auxquelles j’ai assistées, m’ont permis de connaitre mes collègues sur le plan personnel et m’ont fait partie de leurs opinons honnêtes sur OEF dans une ambiance décontractée.

Pour une course de relais sur trois cent miles qui montait du Wyoming jusqu’à Steamboat Springs, Derek et moi avions le supplice et le privilège de nous entrainer à côté d’une coureuse olympique prospective et dix autres personnes motivées. Ensemble, à travers des montagnes, nous avons couru l’un après l’autre pour plus de trente heures sans arrêt et sans beaucoup dormir. Le résultat était un placement compétitif –– même si on ne l’était pas –– et des amitiés forgés sous la sueur et des éclats de rire sans fin.

 

Avec ma copine, qui est venue me visiter, j’ai pu monter plusieurs montagnes au Rocky Mountain National Park, au Eldorado State Park, et au Chautauqua Park qui se situe dans la ville même de Boulder. Au cours de nos explorations, on a appris sur l’histoire de Boulder et on a vu le paysage qui entoure cette ville exquise.

 

En écrivant ces lignes, le centre-ville de Calgary s’approche et mon avion descend vers la mère patrie. Une chose est sure : je reviens à ma ville natale avec des souvenirs qui vont durer aussi longtemps que ma mémoire.

Statutory Analysis and the Necessity of Data:

In my first year Constitutional Law course, my professor went on a small tangent during one class about the importance of data. We were discussing equality rights, and she was explaining “adverse effects discrimination” – imploring us to think divergently by considering that facially neutral policies and laws may have differential impacts on certain groups. Without data, she elaborated, these adverse effects are not always clear.

In May, when I finally had time to read for pleasure, rather than for school, I devoured Caroline Criado Perez’s book, “Invisible Women: Data Bias in a World Designed for Men.” The book outlines countless ways that the gender data gap unintentionally leads to policies and designs that put women disproportionately at risk. As I read this book, my mind was pulled back to that Constitutional Law lecture. Little did I know that my summer placement would build on this pattern, highlighting in my mind the importance of understanding laws within the context of their background and enforcement.

Since June 10th, I have been working at the Centre for Law and Democracy (CLD). The organization, which works to “promote, protect and develop those human rights which serve as the foundation for or underpin democracy,”[1] is best known for its data – in particular, the Global RTI (right to information) Rating. The rating system consists of 61 Indicators, which each evaluate a different component of “RTI” laws. The fact that the organization created this type of quantitative evaluation is not surprising, since the Executive Director studied and taught mathematics before obtaining an L.L.B. and pursuing a career in human rights.

While the organization is best known for this rating system, however, the vast majority of the organization’s time is spent on other projects, which tend to be focused more on qualitative analysis of laws from around the world. In particular, my work has mostly involved statutory analysis of international laws related to civic space. The analysis I conduct is then used for a project CLD is currently working on with a major international NGO. While many of my tasks are meant to be merely focused on the evaluation of laws, and not policy, I’ve quickly learned how difficult it is to conduct this type of analysis sincerely without looking at the reality on the ground.  In many cases, law and practice – those two perennial counterparts – are unfortunately juxtaposed.

The easiest laws to evaluate are the ones that are clearly deficient. For example, the Penal Codes in Rwanda and the Democratic Republic of the Congo (DRC) contain provisions that criminalize those who damage the reputation of heads of state.[2] In Rwanda, this provision exists despite the fact that general defamation has been decriminalized. In the DRC, the Code contains a general defamation offence,[3] but insulting the head of state (prohibited under the press law) carries a heavier penalty.[4]  In both cases, the provisions violate international standards, which establish that public officials must withstand a greater degree of criticism than others.[5] Issues like these – where laws clearly violate international standards, or, as is common in the area of access to information, simply don’t exist[6] – are easy to spot.

It becomes much more difficult when laws appear acceptable on their face, but a quick google search shows that practices in the applicable country do not align with the official laws or policies. Here, data becomes crucial in order to understand why this misalignment occurs. Often times, it’s a mere issue of enforcement – when state actors ignore the laws, they become irrelevant. For example, while Montenegro’s public assemblies law largely reflects international standards – containing a notification (rather than approval) system, creating an appeal process for refusals of assemblies, and recognizing (albeit in a vague way) spontaneous assemblies[7] – police frequently misinform organizers of assemblies on their rights and obligations.[8] As a result, the rights conferred by the law are largely meaningless. However, in many other scenarios, the divergence between law and practice are caused by much deeper issues.

Often times, the failure to operate in accordance with the official laws has to do with the reason for the laws’ existence in the first place. An example of this issue can be seen in Serbia’s Law on Personal Data Protection (adopted in 2018).[9] The motivation for passing this law was (at least in large part) to support Serbia’s goal of EU membership – not, as one might assume, to create the best data protection scheme in the Serbian context. Because of this, the law virtually mirrors the European Union’s General Data Protection Regulation (GDPR) but fails to take into account Serbia’s history in this area.[10] In general, there is a lack of privacy culture in the country, meaning that most individuals and organizations are not aware of privacy rights.[11] In terms of legislative history, the previous 2010 Law on Electronic Communications required telecommunication providers to keep records of the source, destination, and timing of all electronic communications for one year, for potential government use.[12] Until 2013, this data could be collected without a warrant,[13] and even after this provision was found unconstitutional, rates of unauthorized access were unknown, as technical systems created by the previous regulatory framework continued to exist.[14] Because of this, the 2018 law may appear acceptable on its face, but when considered in relation to Serbia’s history, its flaws are more crucial than they may first appear. While it is too soon to fully examine the law’s impact, it has been criticized as being overly complicated – which is problematic in light of the lack of privacy culture – and as failing to address digital privacy issues – which is concerning considering the existence of current avenues for unauthorized surveillance.[15]

The impacts of a country’s background on the effectiveness of a particular law is, of course, very context specific, but has been relevant in each of the nine countries I’ve looked at through my placement. In many cases, the motivations behind legislation are rooted in international political goals, but in others, the motivations are rooted in different, but equally relevant concerns: In Rwanda, media laws have to be considered in light of the media’s role in the genocide.[16] In Bosnia & Herzegovina, policies regarding government consultation with civil society have to be understood in light of the fact that NGOs were largely created after the war to deal with service needs, not civil society ones.[17]

As a law student who previously completed an undergraduate degree in “legal studies,” I’ve long been aware that laws cannot be fully assessed in isolation. However, my time at CLD has greatly deepened this understanding, as I’ve seen how many different ways practices can deviate from laws. Issues can, of course, can be rooted in a law’s structural flaws, but can also arise when the law appears perfectly adequate but fails to take into account the context it is meant to operate within. Data, then, seems crucial for anyone hoping to affect positive change through statutory analysis, as recommendations for future improvement should ideally be sensitive to the causes of the deficiencies, rather than just the technical inadequacies of the applicable law – virtually identical provisions can be appropriate in one country, and entirely lacking in another. Much like in the context of equality issues, where policies that appear neutral can have adverse effects on different populations, and in the context of design, where the gender data gap can put women at disproportionate risk, sincere analysis of human rights law requires data regarding the motivation for the creation of each law and the societal context that it operates within.

In this way, my placement at CLD has not only made me familiar with international human rights standards related to civic space and given me the opportunity to engage with laws from a variety of different legal systems; it has also given me a new skepticism that will undoubtedly impact how I consider the laws I study through the remainder of my degree (and later, engage with through the course of my career).

 

 

[1] Centre for Law and Democracy, “About Us,” https://www.law-democracy.org/live/about-us/what-we-do/.

[2] Art 236 of Law No 68/2018 of 30/08/2018 (Rwanda); Article 77 of Law No 96-001 of 22 June 1996 (DRC); Article 251, 252.

[3] Art 74 of Decree of 30 January 1940 on the Penal Code (DRC).

[4] Article 77 of Law No 96-001 of 22 June 1996.

[5] General Comment No. 34, CCPR/C/GC/34 at para 38.

[6] For example, the Democratic Republic of the Congo, Burundi, and Madagascar recognize the right to information in their constitutions but have no implementing legislation.

[7] Law on Public Assemblies and Public Performances, Official Gazette of Montenegro No. 52/16.

[8] ECNL: Monitoring the Right to Free Assembly (2017): (http://ecnl.org/wp-content/uploads/2017/12/ECNL-FoPA-Montenegro-2017.pdf), pg. 4.

[9] Law on Personal Data Protection (Official Gazette of the Republic of Serbia. No 87/2018).

[10] BD2P, “Serbia: The Law on Personal Data Protection,” December 2018, online: https://www.bd2p.com/upload/files/1545208079-eef11.pdf at pg. 3.

[11] EDRi, “Will Serbia Adjust its Data Protection Framework to GDPR,” 2019, online: https://edri.org/will-serbia-adjust-its-data-protection-framework-to-gdpr/.

[12] Art 128-129 of the Law on Electronic Communications (Official Gazette of the Republic of Serbia, No 44/10).

[13] Global Freedom of Expression (Colombia University), Summary of Constitutional Court decision (Official Gazette RS, no. 60/13), online: https://globalfreedomofexpression.columbia.edu/cases/serb-law-on-electronic-communications-articles-128-1-128-5-129-4-2013/.

[14] Global Information Society Watch, “Serbia,” 2014, online: https://www.giswatch.org/en/country-report/communications-surveillance/serbia.

[15] EDRi, “Will Serbia Adjust its Data Protection Framework to GDPR,” 2019, online: https://edri.org/will-serbia-adjust-its-data-protection-framework-to-gdpr/.

[16] See Allan Thompson, The Media and the Rwanda Genocide (London: Pluto Press, 2007).

[17] See discussion in Arnaud Kurze, “Time for Change: Aid, NGOs, and Transitional Justice in Bosnia-Herzegovina,” (2017) 1:5 Transitional Justice Review.

Law and Justice: Friends or Foes?

A very cloudy sunrise at Angkor Wat

By Adelise Lalande

As I prepare for my 32 hour-long journey home to Canada, I look back on my third week of work at LICADHO, when I sat in on interviews with incarcerated teenage girls in a prison outside Phnom Penh. While I was the designated note-taker for these interview sessions, I am sure I was brought along not because of my mediocre calligraphy skills, but rather because my manager thought it would be a great learning experience. 

Over the course of two hours, I jotted down the stories of fifteen- and seventeen-year-old girls who were facing up to twenty years in prison for nonviolent, drug-related offences. Prison conditions in Cambodia are horrendous. Because bail provisions aren’t being applied properly by the courts and because of the government’s “war on drugs” since 2017, overcrowding is a serious issue. Some inmates share a single cell with upwards of a hundred inmates. A bed is considered to be a luxury item which few have access to. Showers are similarly rare. With daily temperatures outside averaging about 35 degrees celsius, I can only imagine how suffocating prison cells must get. 

Trying (and failing) to master the art of crossing streets in Phnom Penh

The legal system in Cambodia fails not only defendants but also victims. In a country where 35% of the population still lives in poverty, many are unable to pay the bribes demanded by authorities in exchange for pursuing cases. Others lack the resources required to make frequent trips to court. The justice system is effectively inaccessible to those without money. 

For example, I was particularly shocked to learn that the cost of a rape kit in the country—which courts require in order to prosecute—is over US$40. Subsidised kits are available but the process for obtaining one is long and complex. For these reasons, victims of human rights abuses are often compelled to accept out-of-court cash settlements in lieu of pursuing charges. Their abusers thus get to walk free. 

In prisons, NGOs are greatly relied upon to deliver basic necessities, such as food, medicine, menstrual hygiene products, vocational training and recreational/cultural activities. As is the case in the justice system, prisons are worse for those without means. LICADHO reported in 2015 that basic commodities and individual rights come at a price behind bars. Due to widespread corruption in the system, bribes are demanded from inmates in exchange for anything from extra food and showers to opportunities for paid work and library access. LICADHO has even received reports of inmates having to pay bribes to receive medical care. 

Wat Phnom

Those behind bars are generally poor, and thus the strictest parts of the Cambodian criminal system  apply to them. This is not often the case for individuals with access to money. The same week of my prison visit, for example, a young woman who killed a young student in a hit-and-run while recklessly driving her Range Rover was released from prison after just two months in detention.  She was from a wealthy, well-connected family.

Cambodia’s legal system is skewed toward the country’s authoritarian leaders as heavily as it is toward its wealthy constituents. As any illusion of democracy in the country evaporates, the government has shown an eagerness to manipulate the legal system to maintain its power and quash dissent. Last week, I attended the trial of former Radio Free Asia (RFA) journalists Uon Chhin and Yeang Sothearin. The two men face espionage charges that carry a prison sentence of up to 15 years for allegedly sharing with RFA’s U.S. bureau publicly available information that was purportedly “damaging” to the government’s reputation. This is just one example of the government’s efforts to suppress independent journalism and freedom of expression in the country via the legal system. 

Like many of my peers, I recall writing something in my cover letter for law school about wanting to learn how to use the legal system to achieve greater social justice. Prior to coming to Cambodia, I saw in law the “space for struggle to advance the social project of human liberation and emancipation… even while expressing and reinforcing the rule of the bourgeoisie,” to quote from Prof. Issa G. Shivji. But since I’ve been here and witnessed first-hand the ways in which the law predominantly serves to preserve existing power imbalances and promote kleptocratic rule, I find it more difficult than I did in the West to brush aside law’s deficiencies.

Today, I still believe the law can help achieve more equitable societies. But I enter my second year of law school  armed with greater awareness of the ways in which legal systems can also be used to further social injustice and am thus more critical of the rule of law’s basic tenets than I once was. 

 

Tourist street in Siem Reap

Pit stop along the highway

Sunset over the Tonle Sap river

 

Gladue as Restorative Justice

When first arriving in Nemaska, a small community of 760 persons in Northern Quebec one sees a community that looks as prosperous as any Southern Canadian counterpart. Residents are serviced by a modern airport, have access to new swimming and fitness facilities, and new buildings are constantly under construction

This appearance of prosperity, however, disguises many of the difficult historical experiences that community members have confronted. Indeed, the reason that Nemaska and many other communities in the region appear so new is that they were constructed largely since the 1980s, after the Cree were forced into a sedentary way of living that began during the fur-trade period and culminated with the James Bay Hydroelectric Project and the flooding of their lands.

As a Gladue writer for the Department of Justice and Correctional Services of the Cree Nation Government, part of my placement has been devoted to conducting historical research about the community. It is this information, some of which is presented below, which allows the Court to better understand why some offenders appear before the Court and which may therefore diminish the moral blameworthiness of the offender.

 

The James Bay Hydroelectric Project

The defining event of the modern life for the Cree of the James Bay has been the creation of the James Bay Hydroelectric Project. This project began with Quebec’s desire to harness the natural resources of the land to complete its modernization. The construction of the Hydro-Electric Project was a central feature of Robert Bourassa’s 1970 electoral campaign and his promise to create 100,000 jobs, and once elected, he saw that the project was a priority.

This project, which would require changing river flows and create massive flooding, threatened the Cree way of life which was depended upon continually moving across the landscape in small, extended family groupings, to harness game resources. Although Cree groups in the James Bay did gather around the Hudson’s Bay Company trading posts where they sold furs, acquired supplies, socialized and arranged marriages, this typically occurred only in the summer months when game was scarce and fish thus became the primary subsistence food.

In advance of this project, the Nemaska people who had settled around the trading post at Lac Némiscau were visited by Hydro-Quebec officials and told that their land would be flooded and that they would have to move.  For this and other reasons, such as the closure of the Hudson’s Bay trading post, Nemaska people were relocated by the Federal government, with half going to Mistissini and half to Waskaganish (Rupert House).

The site of the Hudson’s Bay Company trading post on Lac Némiscau

However, at the time, the Cree did not have an overarching identity and instead, “the region was comprised of eight different communities having relatively little to do with each other… [and] whose primary allegiances were to their own communities (and in fact in some cases even to smaller units than the community).”[1]  As such, the Nemaska people were largely treated as outsiders in other communities, and forced to erect housing on the least desirable lands.

While beginning to transition to a sedentarized life, Nemaska people experienced other difficulties as well. For instance, elders recall that the time in exile was the first time that people had sustained access to alcohol and that alcohol overconsumption became a pressing social issue. Likewise, the time in exile also disrupted traditional cultural practices such as fishing since people from the inland were unfamiliar with coastal tidal waters.

While living in exile, the James Bay Hydro Electric Project proceeded without consultation with the Cree. It was only a young generation of Cree leaders, such as Philip Awashish and Billy Diamond, who heard about the project by reading a day-old copy of the Montreal Star, used their residential education, to organize resistance and launch a legal challenge that brought the Quebec government to the negotiating table.[2]

 

Part of Hydro-Québec’s modification of the Rupert River that was expected to result in the flooding of the Nemaska trading post.

 

Power lines run across the landscape of the James Bay region.

Creating a Community

The James Bay and Northern Quebec Agreement (JBNQA) provided for the relocation of members of the Nemaska band to a new site. As such, in 1978, those who were exiled at Mistissini and Waskaganish were re-located to the shores of Champion Lake. However, even after being re-located to their new community, the Nemaska people continued to experience hardship because the government was not fulfilling their terms of the JBNQA. In 1980, for instance, an epidemic of gastro-enteritis resulting from insalubrious living conditions hit Nemaska and three children died.

Cree communities are built on land reserved for their exclusive use under the JBNQA

In 1981, then M.P. for Cariboo-Chilcotin, Lorne Greenway, read the following into the record of the Standing Committee on Indian Affairs and Northern Development:

In August 1980 the Quebec ministère des Affaires sociales (MAS) received word from the Cree Indians of James Bay that an epidemic had broken out in their villages of Nemaska and Fort-Rupert. A mission of medical and environmental specialists was dispatched to the scene. They found: people living in substandard housing; appalling sewage and waste water disposal facilities; contaminated water supplies; poor hygiene and relative isolation from the outside world. In Nemaska, for instance, some 35 families still lived in tents, awaiting the construction of houses on permanent sites, five years after the Agreement was signed. Furthermore, the village’s isolation from the provincial road network limited outside communication to air and motor-canoe. Solid garbage and waste were being dumped into a site near the edge of Lake Champion, a shallow lake that will not long tolerate such practices without becoming polluted.[3]

While more suitable residences were eventually constructed—though housing shortages continue to plague the community—sedentarization had additional social consequences. Living in houses designed for nuclear families, for instance, upended traditional living arrangements which were based upon extended or multi-family cohabitation. A diet which had once been based around game meat was replaced by processed foods imported from the South. Likewise, whereas once every activity had been oriented towards the locality, after settling on reservations, people were now incorporated into complex administrative structures based in distant cities such as Val-d’Or.

Other more existential questions, however, were more difficult to answer: How do people who came to see themselves as “hunters and trappers,” now adopt to making a living through wage labour? How do people without a tradition of communal living—or even, perhaps, a notion of community in the sense of Western social theory—successfully live together? And finally, how do people who have experienced so much hardship, move forward with their lives in the context of radical change?

Gladue and Restorative Justice

These last two questions are ones to which there is no clear answer, and they become particularly acute in the context of serious crime and persistent offenders. Statistics illustrate that aboriginal persons are three times more likely to be victimized by crime than other Canadians.[4] Further, “Perpetrators of violence against Aboriginal people are most often other members of the Aboriginal community such as spouses, relatives, or friends of the victim, and as such, victimization among Aboriginal people in Canada is often regarded as a mirror image of Aboriginal offending.”[5]

The justice system has largely relied upon imprisonment to address of aboriginal offenders, leading to the problem of aboriginal overrepresentation that I previously discussed. However, given the colonial history of aboriginal populations—some of which is discussed above—those appearing before the court as offenders are, from another perspective, also victims.

Court rooms in Cree communities are circular, reflecting the idea that the community should be involved in justice matters.

Gladue reports allow for the possibility to address this dual victimization through restorative justice. Restorative justice approaches see crime as both a violation of the law and as a violation of relationships and communities. They therefore involve those affected by a crime to try to repair the harm done while encouraging an offender to take responsibility for their actions. Restorative justice approaches therefore not only allows the offender to grow through the process but, for all those to have their say in any proposed solutions.

Gladue reports allow for the possibility to address this dual victimization through restorative justice, which sees crime as both a violation of the law and as a violation of relationships and communities. Gladue reports allow for the realization of restorative justice in several ways, but most obviously by proposing sentences to the Court that address the underlying issues that brought an offender to appear before the Court. Courts in the James Bay region, for instance, have allowed offenders to participate in Sun Dances as well as attend land-based programs given that spending time on the land “is recognized throughout Cree society as a potential source of personal improvement.”[1] These restorative sentencing options are tailored to suit the particular offender and the community, and emerge from interviews with the offender and others, allowing those impacted by crime to have a say in its resolution.

Additionally, since Gladue reports engage with the life history of the offender, supplemented by information from other family members, the process of creating and reviewing the report allows the person to reflect upon their life experiences as well as their offences. They are often therefore able to plot a better path forward, both for themselves and their community, that will allow them to live a more harmonious life.

[1] Paul Wertman, 1983. Planning and Development after the James Bay Agreement. The Canadian Journal of Native Studies 3(2) at page 278.

[2] Ronald Niezen, 1998. Defending the Land: Sovereignty and Forest Life in James Bay Society (New Jersey: Prentice Hall) at page 48.

[3] Standing Committee on Indian Affairs and Northern Development, 32nd Parliament, 1st Session. March 26, 1981 at page 1101.

[4] Jodi-Anne Brzozowski, Andrea Taylor-Butts, and Sara Johnson, 2006. Victimization and offending among the Aboriginal population in Canada (Ottawa: Canadian Centre for Justice Statistics) at page 1.

[5] Katie Scrim, 2017. Aboriginal Victimization in Canada: A Summary of the Literature. Available: < https://www.justice.gc.ca/eng/rp-pr/cj-jp/victim/rd3-rr3/p3.html>

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