Stealing Brides in Kyrgyzstan: Why Multiculturalism and Women’s Rights Make Such Uneasy Bedfellows

  By Guest contributor | 20 May 2013 - 10:53 am | Legal Developments
Leave a comment

How justified are appeals to “tradition” in discussions on bride kidnapping in Kyrgyzstan?

Liz Fouksman uses the case of bride kidnapping in Kyrgyzstan to delve into the uneasy intersection of culture and women’s rights highlighted by the debates at the UN Commission on the Status of Women (CSW57) meetings this spring.  

Kyrgyzstan is a small mountainous country which once formed the edge of the Soviet Union, wedged between China, Tajikistan and Uzbekistan. It is a place of rich traditions, including felt making, yurts, and – according to some Kyrgyz  –  kidnapping women in order to acquire a bride.

This past winter, legal penalties for bride-napping in Kyrgyzstan provoked divisive parliamentary debate. According to Women Support Centre, a Kyrgyz women’s rights organization, there are at least 11,800 cases of forced abduction of women every year in Kyrgyzstan, and more than 2,000 of these women reported being raped. At the time of the debate the maximum sentence for kidnapping a bride was three years in jail. The maximum sentence for stealing a cow is eleven. And the main argument in parliament against toughening the sentence on kidnapping? The practice is Kyrgyz tradition.

This ‘tradition’ of kidnapping women to pressure or coerce them into a marriage is a microcosm of the debate at the 57th Session of the UN Commission on the Status of Women (CSW57) this spring. The Commission, charged with creating a non-binding conclusion document on the elimination and prevention of all forms of violence against women and girls, quickly ran into dissent. A number of countries, including Iran, Egypt, the Vatican and – startlingly – Russia objected to the document’s stance on reproductive rights, sexual orientation, or sex education. The main justification for such objections? Tradition.

How justified are the appeals to “tradition” in these discussions on women’s rights? In the case of Kyrgyzstan, the wide-spread belief that Kyrgyz bride-napping is tradition is not in fact rooted in historical reality. Before the Soviet period, non-consensual bride kidnappings were extremely rare. It was only in the mid-20th century, in response to the modernization policies of the Soviet Union, that kidnappings started to occur more frequently, and only over the last six decades has coercive bride-napping gained the reputation of ‘tradition.’ This is the bottom line: tradition is a fluid, changing and constantly recreated thing.

One can see the same process occurring in Russia – one of the countries that reacted strongly to efforts to strengthen women’s rights protections in the CSW57 meetings.  Russia once saw itself as bringing equality for women to the Soviet Union’s Central Asian Republics. Now not only does Russia not consider domestic violence technically a crime, but is using the excuse of religion to imprison politically-active punk bands, and the excuse of  culture and tradition to put  sovereignty and exceptionalism in the path of international agreement.

As Susan Okin pointed out in her controversial 1997 article Is Multiculturalism Bad for Women?, purporting to protect culture and tradition has long been a stumbling point for efforts to protect women’s rights. Protecting multiculturalism can ignore within-group inequalities of power, representation and voice – and thus act as an excuse to allow gender-based violence, discrimination or coercion.

The Commission on the Status of Women did (just barely) avoid including the loophole of cultural exceptionalism in its concluding document. And the Kyrgyz parliament did increase the penalty for bride napping to ten years behind bars (still a year short of stealing a cow). But the debate on culture and women’s rights is not going away. This is not a question of one culture imposing on another, but rather the recognition that tradition is a constantly evolving phenomenon, ever-shifting to accommodate a myriad of ideas and practices – including those of justice and rights. Only with this recognition can we move beyond the multiculturalism stand-off, and continue the global conversation on women’s rights.

 Liz Fouksman is a DPhil in International Development at the University of Oxford, currently based in Kyrgyzstan for field research.

Related posts:

  1. 57th Session of Commission on the Status of Women begins today: OxHRH CSW57 presents a special themed post series
  2. The Agreed Conclusion of CSW57 – Reaffirmation of the Universality of Women’s Human Rights
  3. Bread, Freedom and Social Justice for Women Too?
  4. CSW57: Violence against Indigenous Women and Girls

Denied Education is Denied Survival: The Case of The Nasa People

  By Guest contributor | 17 May 2013 - 9:47 am | Legal Developments, News
Leave a comment

By Ethel Castellanos-Morales and Camilo Castillo-Sánchez -

Colombia is a country with a modern constitutional system that allows it to recognize its different ethnic groups and protect the diversity that is inherent in this multicultural society.  Human rights are further protected by the fact that Colombia integrates several international human rights treaties in the constitution and they can be invoked in certain internal judicial processes.  Nevertheless, the human rights situation for indigenous people is worrying and deserves attention. To shed light on this issue, the case of the Nasa people of the Northern Cauca region will be highlighted.

Sign on a Nasa school in desperate need of repair reads “For an education for all.”

The lack of security in the Northern Cauca caused by the armed conflict between the guerrillas, the army, and the drug traffickers, affects the day-to-day life of the Nasa people. Exacerbated by its geographic isolation and absence of infrastructure such as roads, bridges, telephones, electricity and water services, it stands in stark contrast to the various reservoirs and hydroelectric dams seen throughout the rest of the Cauca Valley. In this challenging context, the Nasa are fighting to preserve their indigenous customs, language, beliefs and to live in peace in their resguardo (reservation), the land designated to them by the Constitution.

After more than twenty years struggling for their rights with limited success, the Nasa have decided to prioritize their constitutionally guaranteed right to education as a mechanism for preserving their culture.  They are convinced that education is fundamental as it facilitates the transmission of their knowledge, language and identity to younger generations.  To this end, they began legal actions designed to confront the government and force it to change its negligent attitude towards their community. The first stage included formal and informal petitions to the government.  After more than ten years without an appropriate answer, the community moved forward and decided to present an Acción de Tutela, a constitutional and informal writ to protect the fundamental constitutional rights of all persons in Colombia.

The four central arguments of the suit are: (1) The Colombian government violates the International Covenant on Economic, Social and Cultural Rights for charging tuition in primary education. (2) The Colombian government does not sponsor and support ethnic education by building schools, hiring prepared teachers, providing text books in the community language. (3) The Colombian government does not guarantee children’s access to schools through roads, transportation, and safety. (4) The Colombian government’s position is condemning this indigenous group to extinction by denying them the ability to transfer their ancestral knowledge to younger generations.

Two judicial reviews rejected the lawsuit on the grounds that other legal resources to demand these rights were never used. However, the plaintiffs argue that the judges ignored the community’s prior legal actions and never made a decision specifically about the key demand, the right to education for indigenous people as a survival mechanism. In April, the Constitutional Court selected the petition for an extraordinary review where it is awaiting a judgment. The question before the Court is whether the government violated the constitution by failing in its duty to avoid and correct violations of the Nasa people’s right to education and by extension their right to survive.

Ethel Castellanos-Morales and Camilo Castillo-Sánchez are Ph. D. students and legal advisors of the Nasa people.

 

Related posts:

  1. The Rise of South Africa’s Education Adequacy Movement
  2. Horizontal application of the right to education in India
  3. Education suspended, rights infringed
  4. ‘He Believed in People’: Remembering Arthur Chaskalson

Public Interest Law in South Africa

  By Guest contributor | 15 May 2013 - 12:59 pm | Legal Developments, Opinion
Leave a comment

By Justice Dhaya Pillay

Public Interest Law practiced strategically has and could continue to advance South Africa’s constitutional project. (Photo: Courtesy of Edgar’s Club)

I am troubled by the inequality in our society despite our grand Constitution. My concern is that the impact of apartheid plagues black and poor people who seem reticent about challenging their circumstances. Public Interest Law practiced strategically has and could continue to advance our constitutional project.

My definition of Public Interest Law is law that impacts the interests of the public, and particularly, law that advances the rights of the vulnerable, the poor and the disadvantaged. Litigation is not the only means of achieving these goals. Advocacy and participation in drafting and commenting on legislation are some activities of PIL practitioners. Typically the impact of PIL decisions have ripple effects. Whereas in the past our primary target was the state, today any person, corporate or human, can be held to account for violations of constitutional rights.

Unfortunately, one of the greatest obstacles to PIL is “inequality of arms” – meaning that access to the courts is often out of reach. Except for a few NGO’s, public spirited lawyers, Public Interest Law firms and to some extent Legal Aid SA, the road to our courts is closed or at best bumpy and potholed. Could this be a reason for poor communities resorting to marches, violence and demonstrations?

Recent events in two spheres of social services demonstrate the importance of Public Interest Law for the development of sound enduring jurisprudence:

Recently, Minister of Health Aaron Motsoaledi  was in a heated radio debate with Leon Louw of the Free Market Foundation on the pros and cons of regulating alcohol usage and advertising. This debate is hard forcourts to resolve. South African Breweries redistributes wealth by employing a huge work force, reaching out to rural areas of South Africa, paying  taxes and paying much needed dividends to pension funds. Regulating alcohol sales could have the unintended consequence of impairing SAB’s capacity to redistribute wealth. At the same time, hardly a serious crime is committed without offenders drinking alcohol. From this single issue of regulating alcohol usage, at least four sectors have an interest in decisions– judges, economists, psychologists, community health practitioners etc. Imagine if any one party was omitted from the debate?

Finding enduring solutions is also a theme in basic education. Recently, SADTU threatened to go slow until the Department of Education re-instates a collective agreement providing a rural allowance. The rights engaged in this dispute include not only the right to fair labour practices and to education, but also the protection that ‘a child’s best interests are of paramount importance in every matter concerning the child’. Education is technically not an essential service in the sense that if interrupted it will not result in a risk to life, health and personal safety. However, education is essential to other important constitutional values and rights. To entrust a court with the task of making a decision in this case without full evidence would be irresponsible.

It may not always be possible to decide between right and wrong, instead striking a balance between competing rights may be the only option. For that, public participation through non governmental organisations and PIL is indispensable.

PIL practitioners may find that some cases have better prospects of success through mediation than litigation. The CC was recommended mediation in an eviction case in Port Elizabeth Municipality. In Mazibuko v City of Johannesburg the City of Johannesburg restricted Phiri residents to 25 litres of free water per person per day. The High Court upheld the residents’ argument and awarded 50 litres per person per day. The Supreme Court of Appeal concluded that 42 litres of water per person per day was sufficient. In contrast, the Constitutional Court declined to decide the issue preferring to leave the decision to the legislature and the executive to investigate. Would mediation have worked better in this case?

In contrast, the CC created a new socio-economic right to electricity in Leon Joseph v City of Johannesburg. Alas for these residents’ victory was phyrric. By the time it took for the case to go to the CC, vandals had stripped the building of electrical wiring. But, SERI used this precedent to reconnect electricity for low income residents in Soweto.

No matter how well a PIL is presented, it counts for nought if implementation is not possible. Organisational capabilities need to be structured into the practice of PIL to to yield the most effective remedies.

Justice Dhaya Pillay is judge of the High Court, KZN. This post is based on the 11th Victoria and Griffiths Mxenge Memorial Lecture, which Justice Pillay delivered at UKZN in May 2013.

Related posts:

  1. Marriage Equality in New Zealand – Part II: Public Interest Litigation
  2. Conceptualising Meaningful Engagement in South Africa: Eviction Cases’ Exclusive Gem?
  3. Pro Bono Work in South Africa: From Moral Duties to Legal Duties
  4. Jurisdiction over police failures in Khayelitsha, South Africa: the inter-governmental dispute

The Role of Civil Society in the Execution of ECtHR Judgments

  By Guest contributor | 13 May 2013 - 8:08 am | Case Analysis, Legal Developments
Leave a comment

By Victoria Prais

Civil society is a necessary partner in the implementation of ECtHR judgments

European Court of Human Rights (ECtHR) judgments  can have a huge impact in Member States by highlighting systemic and serious problems in human rights protection. But what happens once the initial furore over an ECtHR judgment dies down?  The implementation process is critical to the success of the ECtHR system.

The Committee of Ministers (CM) of the Council of Europe is charged with supervising the implementation of ECtHR judgments under Article 46 of the Convention. In Papamichalpoulos v Greece ([34]) the ECtHR expanded  the obligation, maintaining that while Member States have an obligation to end the breach and make reparations , Member States are ‘free to choose the means whereby they will comply’.  This principle establishes that Member States are primarily responsible for ensuring the protection of human rights and the ECtHR should only intervene if a member state fails in that regard.

Moreover, rule 9 of the rules of the CM allows for civil society engagement in the implementation of ECtHR judgments, particularly in respect to ‘general measures’ that seek to redress systematic reasons for the Member State’s breach. Civil society is becoming more involved in the execution of ECtHR judgments. The Department for the Execution of Judgments of the ECtHR has received a steady stream of rule 9 submissions from NGO’s, National Ombudsmen and other national human rights organisations.  Civil society organizations (CSOs) have also provided critical “shadow reports” to the CM about the situation on the ground in various countries.

However, as a lawyer at the Department managing cases from the UK, Ireland & Cyprus, I saw mixed levels of civil society engagement.  In Hirst v United Kingdom (prisoner voting) and  in McKerr v United Kingdom CSOs have been actively engaged and have  filed Rule 9 submissions.

The case of A, B & C v Ireland offers another positive example of CSO engagement. The case involved three applicants, all of whom had crisis pregnancies,  and challenged Ireland’s restrictive abortion regulations.  In December 2010, the Grand Chamber of the Court unanimously held that Ireland’s failure to implement abortion legislation in spite of existing case law constituted an Article 8 violation.  The Court highlighted particular issues that needed to be addressed.

In this case, CSOs have acted as a ‘critical friend’ throughout the implementation process and have, on occasion, been strident in their criticism of the government’s proposed measures.  They critiqued the government’s initial Action Plan. . They criticized the lack of interim measures to give effect to the judgment, and the general delay in implementation of the judgment.In one submission, an NGO provided detailed recommendations for legislation and guidelines to meet the terms of the judgment.

However, the case of Rantsev v. Cyprus/Russia provides a stark contrast to these examples of positive CSO engagement. The case concerned the trafficking of the applicant’s daughter, a young woman who arrived on an “artistes” visa from Russia to Cyprus where she then died. The Court found Cypriot authorities failed to conduct an effective investigation into the death, that Cypriot authorities had failed in their positive obligation to create an appropriate framework to combat trafficking and also that police failed to protect the young woman.  The Court found that Russian authorities failed to effectively investigate the recruitment of the applicant’s daughter in Russia.

The paucity of civil society engagement on the case is noteworthy; there were no Rule 9 submissions on general measures. CSO’s could have provided “shadow” reports with relevant statistics or analysed the effectiveness of the current legislative framework on trafficking. There was no independent analysis of how authorities dealt with trafficking victims in Cyprus and whether operational staff were suitably trained.

It is difficult to explain civil society’s silence in some cases and active engagement in others.  There may be a lack of CSO knowledge on how they can be practically involved in the execution of ECtHR judgments.  Civil society may also be more developed and confident in certain countries than others.  Alternatively, some CSOs may see little value in engaging on repetitive cases whereas they could actually play a vital role.

That said, progress has been made in making civil society a partner in the execution process, and the relationship continues to grow and flourish.. It may take time to get “buy in” from certain quarters, but there is certainly CSO will to be involved in the process.

Victoria Prais is a Legal Officer – Human Rights Based Approach at the Scottish Human Rights Commission.  She is a former lawyer at the Department for the Execution of Judgments of the European Court of Human Rights, Council of Europe.

This blog is largely based on an article by Lucja Miara and Victoria Prais in the European Human Rights Law Review, “The Role of Civil Society in the Execution of Judgments of the European Court of Human Rights”, Issue 5, 2012 pp 528-537. 

Related posts:

  1. Yordanova and others v Bulgaria: an Illustration of the Absence of Watertight Divisions Between the Social Right to Adequate Housing and the Civil Right to Respect for one’s Home.
  2. OSCE Special Representative Maria Grazia Giammarinaro on the Role of Discrimination in Human Trafficking
  3. From Slavery to Strasbourg: The ECtHR makes the first Article 4 finding against the UK
  4. Trafficking in Human Beings and the European Court of Human Rights – In Dubio pro State?

Rendering Abortion Unconstitutional? Article 28 of Zambia’s New Draft Constitution

  By Guest contributor | 10 May 2013 - 12:27 pm | Legal Developments
14 Comments

By Yaliwe Clarke

Given international gains in legislation that protects women’s right to abortion, it is concerning that Zambia’s current draft constitution has put this matter back into national political debate. Due to the inclusion of Article 28 (1) in the new draft constitution that states that “…life

If the draft constitution is passed as it is, Zambian women’s and girls’ chances of suffering from unsafe abortions would increase. (Photo credit: OSISA)

begins at conception,” a new and seemingly unexpected controversy about women’s reproductive right to abortion has hit national television and radio stations. Members of the Non-Governmental Coordinating Council (NGOCC), an umbrella body of women’s organisations, have discussed this matter in their own national consultations with women about the content of the draft constitution.

Recurring themes in previous Zambian constitution review processes included: devolution of the powers of the president; electoral procedures; affirmative action for women; and citizenship.  Despite the fact that national statistics reveal that up to 50% of acute gynaecological admissions in Zambia result from abortion complications, women’s reproductive right to safe abortion has never before been a matter of constitutional concern. Contestations about abortion that arose in recent district, provincial and national constitutional hearings speak to a troubling prevalence of patriarchal attitudes towards women’s legal right to safe reproductive health services in general, and abortion in particular.

At the heart of legal contention on this matter is the fact that Zambia’s existing laws legalise abortion. The Termination of Pregnancy (TOP) Act No. 26 of 1972 (Chapter 304 of the Laws of Zambia) and the Penal Code (Chapter 87 of the Laws of Zambia) make it possible for Zambian women to abort. The TOP Act entitles a woman to seek a termination of pregnancy on health and socio-economic grounds, when her own life and health, or the health of other members of her family, may be put at risk by the pregnancy, or when the foetus may be expected to be damaged or diseased. The Penal Code allows termination of pregnancy in the event a female child is impregnated as a result of raped or defilement. But by stating that “…life begins at conception” Article 28 of the draft constitution pitches these Acts against the ‘unborn child’s’ right to life as stipulated in the current and draft constitution’s Bill of Rights. If passed, the draft constitution could render the TOP Act and Penal Code unconstitutional. This would have huge implications for Zambian women and girls who would not be able to legally seek abortion.

The question of  the morality of abortion from the perspective of ‘Christian values’ enshrined in Article 2 of the draft constitution has made it hard for Zambians to support the idea that women have the right to decide whether to keep an unwanted pregnancy. Many Zambians have found it difficult to argue for the removal of Article 28 because they do not want to be seen to publicly rebuff Christian interpretations of the sanctity of life as stated in the Bible. On the other hand, women’s rights organisations are adamant that should the draft constitution be passed as it is, Zambian women’s and girls’ chances of suffering from unsafe abortions would increase and severely compromise their right to safe reproductive health services.

Yaliwe Clarke is a lecturer and researcher at the University of Cape Town. Her research interests are feminism, peace and security in African contexts.

Related posts:

  1. The More, the Murkier: Of Several Draft Laws on Disability in India
  2. The Agreed Conclusion of CSW57 – Reaffirmation of the Universality of Women’s Human Rights
  3. Human Rights and the UK Constitution
  4. 57th Session of Commission on the Status of Women begins today: OxHRH CSW57 presents a special themed post series

Silencing Rape on U.S. College Campuses: Evaluating the Clery Act

  By Greer Feick | 9 May 2013 - 9:09 am | Case Analysis, Legal Developments
2 Comments

The Steubenville rape verdict a few months ago has sparked a broader conversation about the United States’ endemic “rape culture”, and the responsibility of innocent bystanders and institutions to report sexual violence. One place where the silencing of sexual violence is an ongoing problem is on U.S. college campuses.  Under the Clery Act  — named after Jeanne Clery, a Lehigh University freshman who was raped and murdered in her dorm room in 1986 —U.S. universities that receive federal financial aid must report statistics on campus crime. But in the past year, top schools including Occidental College, University of North Carolina at Chapel Hill (UNC) , Amherst College, and Yale University have come under fire for their failure to report campus rape.

Photo: Occidental Students protesting campus sexual violence policies (photo credit: Oxy Sexual Assault Coalition)

Why is the Clery Act failing to protect American students?

Over the years, the Clery Act has been amended to provide increased protection to rape survivors. In 1992, the Act was amended with the “Campus Sexual Assault Victim’s Bill of Rights”. On March 7, 2013, the Clery Act was expanded through the Campus Sexual Violence Elimination Act (Campus SaVE), which requires universities to educate students on sexual violence.

Despite the expanding legal requirements, in practice, it has proved difficult to ensure that colleges are transparent about rape on campus. Fisher et al. have argued that the Clery Act is “symbolic rather than substantive” – it reaffirms values but lacks teeth.  A quick glance at the statistics indicates that many U.S. colleges report only 0-20 rapes in the past year, unlikely figures given that an estimated 20% of American women are raped at college (which would mean an estimated 50 rapes a year on a campus of 1,000 students).

But if the official statistics are questionable, as of 2011, only seven schools had been fined for violating the Clery Act. In one of the most horrendous cases in 2006, Eastern Michigan University was fined $350,000 for covering up the rape and murder of a student, and leading her family to believe she died of natural causes.

The Clery Act has arguably raised awareness about campus crime among higher education professionals, but these statistics rarely trickle down to students and parents. A report from the Center of Public Inquiry found that schools often train advisors to tell students who have experienced sexual violence to talk to counselors rather than campus police – a move that sidesteps the reporting procedures of the Clery Act, which require only certain campus personnel to report rape. The Clery Act also does not explicitly require campuses to report certain crimes that occur “off campus,” which means that there is a complete lack of transparency around the sexual violence students face on university-sponsored study abroad programs and on off-site research projects. A study by Kathryn Clancy of the University of Illinois, first discussed in April 2013, found that 60% of female students who conducted fieldwork in biological anthropology experienced sexual abuse in the field; this is certainly a cause for great concern.

The greatest challenge with the implementation of the Clery Act is a conflict of interest. There is an information asymmetry between students and college administrators, and it is the responsibility of colleges, which are dependent on high rankings, academic reputations, and alumni donations, to self-regulate. Hopefully, the increasing number of Clery Act violation investigations is the sign of a culture shift – a lax stance on campus rape cannot be tolerated.

Greer Feick is an M.Phil. Candidate in Development Studies. 

Related posts:

  1. Rape and Reform in India: No Legal Fix for a Systemic Problem
  2. Lifting As We Climb
  3. Violence Against Women in South Africa: President Zuma and the ANC Still Have Not Got the Message
  4. Fisher v University of Texas: What the Judges Asked

A Price Tag for Employment Rights? The New Employee Shareholder Status in the UK

  By Guest contributor | 7 May 2013 - 6:21 pm | Legal Developments
Leave a comment

By Dr. Jeremias Prassl -

Section 31 of the recently enacted Growth and Infrastructure Act 2013 has added a third employment status to the existing categories of ‘employees’ and ‘workers’ in English law: the notion of the ‘Employee Shareholder’. The introduction of this new category, based on Adrian Beecroft’s controversial report on Employment Law reforms, has been the most high-profilechange in employment law since the Coalition Government came to power.

Employee Shareholder Status: An Unnecessary Reform?

During consultation on the proposals in the autumn of 2012, responses from employee and business representatives as well as the legal community were near-unanimously hostile; even a protracted battle between the Houses of Parliament in the spring of 2013, however, did not deter the government from pressing ahead with its plans.

‘Employee Shareholders’

Under the new status, employees who receive capital gains tax-exempt shares in their employer (or a controlling enterprise) valued at £2,000 or more in order to become ‘employee shareholders’ are no longer entitled to the following employment rights:

-          The right not to be unfairly dismissed

(with the exception of automatically unfair dismissals, and those in contravention of the Equality Act 2010)

-          The right to statutory redundancy pay

-          The right to request flexible working

-          The right to request to undertake study or training

-          ‘Employee shareholders’ are furthermore subject to longer notice periods before returning from maternity, paternity or adoption leave (up from six or eight weeks’ notice to sixteen weeks.

Procedural Safeguards?

In the face of significant opposition in the House of Lords, the government was forced to make a series of procedural concessions in creating the ‘employee shareholder’ category. Prospective ‘Employee Shareholders’ need to be issued with a detailed statement of particulars, including the terms at which shares will be issued, as well as list of rights denied. Following receipt of this statement, the worker is entitled to independent advice (at the employer’s expense); the offer can only validly be accepted following such advice and after a seven-day cooling-off period. Provisions have furthermore been made to protect existing employees from suffering detriment in employment and/or unfair dismissal as a result of a refusal to become an employee shareholder. Finally, the government has given an undertaking that jobseekers could not be forced to accept employment as ‘employee shareholders’ at pains of losing their entitlement to receive jobseekers’ allowance.

As these safeguards are primarily procedural, however, it is unlikely that they will bestow significant protection on employees – most importantly in so far as there is no protection for prospective employees, who may be offered ‘employee shareholder’ jobs on a ‘take-it or leave-it’ basis.

A Price Tag for Employment Rights?

The exchange of employment rights for shares is deeply problematic: first, because it suggests that such rights can be clearly valued in monetary terms. Given the inherent inequality of bargaining power in the vast majority of employment contexts, it is highly improbable that employees will be able to bargain for more than the prescribed minimum amount of shares. The fact that employers may stipulate for a compulsory repurchase upon the termination of employment, second, exposes employees to additional risks, such as equity market fluctuations: during periods of underperformance (which will frequently be linked with increased job losses), shares in the employing company, and thus the ‘value’ of key employment rights, will be priced at a significant discount.

An Unnecessary Reform

The reforms are supposedly motivated by a desire to ‘maximise flexibility’ and provide ‘the competitive environment required for enterprise to thrive’. Yet it is unlikely that these goals will be achieved: the new status is marred in complexity, whether as a matter of employment law (How will it relate to other areas of statutory regulation? What would happen in the case of a TUPE transfer?) or company law (In which entity should the shares be issued? What rights, if any, should be attached to the shares?). As Simon Deakin has convincingly argued, it is furthermore ‘completely unnecessary and counterproductive […] to link [employee ownership] to the loss of employment protection rights’. As the recent Nuttall Review of Employee Ownership has demonstrated, existing legislation already provides the necessary framework for genuine employee ownership. It is therefore difficult to see what, if any, benefits could be derived from this new status.

Dr. Jeremias Prassl is a Supernumerary Teaching Fellow in Law at St. John’s College, Oxford.

Related posts:

  1. Contesting Refugee Status Cessation: The Rwandan Case
  2. Protecting the Labour Rights and Human Rights of Migrant Domestic Workers – A Labour Regulation Approach
  3. LGBTI Federal Anti-Discrimination laws are a significant first step
  4. Article 14 ECHR: the Elusive Other Status

The Crimes of Gambia’s Criminal Justice System

  By admin | 6 May 2013 - 10:44 am | Legal Developments, Opinion
Leave a comment

Last Autumn, the world witnessed a fleeting frenzy when The Gambia’s eccentric President Jammeh resumed executions for prisoners condemned to death. These executions—the country’s first in 27 years—were soon halted amidst international protest, but not before nine lives had been lost.  Media reports decried the popular vacation spot, revealing for a moment its more troubled reputation and harrowing human rights record. Months later, however, West Africa’s ‘Little Gem’ remains a celebrated holiday destination, with scant attention to Gambia’s ‘darker’ side, and the nine prisoners who lost their lives only six months ago.

Detainees are held on suspicion of treason at Gambia’s Mile 2 Prison, where accounts of torture and forced confessions abound. A corrupt criminal justice system facilitates placement of political enemies on death row.

Jammeh’s moratorium may have calmed the temporary global outcry, but his country’s criminal justice system remains deeply problematic. Whilst death row inmates may wonder when, if ever, the next round of executions may resume, human rights groups should still examine the conditions of indefinite detainment at Mile Two State Central Prison where they are held, without ignoring just how easy it is to end up there.

From confirmed cases of arbitrary detention to evidence of forced confessions, capital punishment can hardly avoid being a controversial tool beyond the primary debate. However, one issue that has received little attention is the accusation that the Gambian government employs corrupt ‘mercenary judges’.

Finally acknowledged by the US Department of State Human Rights reports, these foreign judges oversee ‘sensitive’ cases and are ‘particularly subject to executive pressure’. Senior members of the judiciary are imported from other Commonwealth countries and focus attention their on Chapter VII of Gambia’s criminal code. By broadly defining incitement and sedition, the Gambian legal system has managed to place anyone from missionaries to journalists behind bars under the pretence of treason, a charge that carries the death penalty.

Most commonly targeted, however, are members of security institutions. Consistently at odds with the state structures intended to keep the country safe and intact, the executive regularly clears the top ranks of Gambia’s police force, military branches, and intelligence agency. Wave after wave of police, military, and intelligence leadership is removed as the President seeks to satisfy paranoia and consolidate power, with the judiciary caught in the middle of this tense and volatile battle.

Torture has become the preferred method of discovering the latest plots for rebellion, even if none exist. Victims accused of incitement, opposing the President, or crimes against the state’s sovereign authority tell of electric shocks, sexual torture, forced labour, mock executions, near-drownings, endless beatings, extrajudicial killings, and custodial deaths. Many more have simply disappeared. Others have fled pre-emptively, knowing that without due process, their time was coming, regardless of their deeds.  But those that don’t escape are forced to make death row at Mile Two State Central Prison their home, amidst appalling detention conditions.

With a manipulated legal code, a hijacked judiciary, and law enforcement officials held hostage in a state of fear, Gambia’s criminal justice system will continue to entrench human rights abuse absent the same international pressure that halted last year’s executions. Most notably, Taiwan – Gambia’s blind-eye donor – will have to find its voice.

 

Related posts:

  1. The Justice JS Verma Committee Report on Amendments to Criminal Law relating to Sexual Violence in India- Preliminary Observations
  2. To Whomsoever it May Concern? The Case of Criminal Law (Amendment) Act 2013
  3. Access to Justice for Self-Represented Litigants?
  4. Political Betrayal

Marriage Equality in New Zealand – Part II: Public Interest Litigation

  By Guest contributor | 3 May 2013 - 12:52 pm | Legal Developments, Opinion
Leave a comment

By Max Harris

Editor’s Note: Last week, Max Harris examined the religious exemptions of New Zealand’s recently passed Marriage (Definition of Marriage) Amendment Act 2013.  Today, he takes a closer look at the issues that the Act raises about public interest litigation.

This positive moment for the people of New Zealand raises a host of fascinating questions for human rights scholars and practitioners. Photo: Charles Roffey via Fotopedia.

As noted last week, on April 17, the New Zealand Parliament passed the Marriage (Definition of Marriage) Amendment Act 2013, following a powerful nationwide campaign. From 19 August this year, gay, bisexual, lesbian, transsexual and intersex marriages will be legal. New Zealand’s legalization of same-sex marriages makes it the first country in Asia-Pacific to make the change and the 13th country in the world to do so; the new Act has therefore gained significant attention as other countries consider the issue (like France).

This was not the first time marriage equality had been raised as an issue in the New Zealand legal context.  In fact, in Quilter v Attorney-General [1998] 1 NZLR 523, the New Zealand Court of Appeal considered one of the key issues underlying the legislation: whether marriage that excludes same-sex couples is discriminatory.  The New Zealand Court of Appeal had ruled, in an application brought by three lesbian couples, that the Marriage Act 1955 was not discriminatory (upholding the High Court finding).  Three judges found that the Act was not discriminatory per s 19 of the New Zealand Bill of Rights Act; one judge found that the Act was prima facie discriminatory but that this was justified under s 5 of the Bill of Rights (which allows reasonable limits on rights); and only one concluded that the Act represented unjustified discrimination, stating:

In this country, as in many societies throughout the world, marriage is the single most significant communal ceremony of belonging. … To exclude from that status gays and lesbians who live in enduring and committed relationships, which can reflect all the qualities of heterosexual marriage other than procreation, is necessarily discriminatory. The exclusion is inescapably based on their sex or sexual orientation. Such a basis equally inescapably judges them less worthy of the respect, concern and consideration deriving from the fundamental concept of human dignity underlying all human rights legislation.

However, the dissenting judge, Thomas J, noted that it was not possible to reinterpret the Marriage Act (using s 6 of the Bill of Rights), claiming that the Act was too clear to justify such reinterpretation.

The case was cited during the marriage equality campaign in New Zealand, and the question arises: to what extend did it accelerate the legislative change in New Zealand? The question is an instance of a more general inquiry familiar to scholars of public interest law and socio-legal academics: namely, does litigation, even if unsuccessful, make a difference to social change, by bringing issues to public attention and airing reasons for and against a particular issue? On the surface, it appears that Quilter played only a small role in achieving marriage equality. The Chief Justice of New Zealand, Dame Sian Elias, has suggested in past speeches that Quilter may have contributed to the public debate that made the passage of civil union legislation possible in 2004 – and this seems correct.  It may be that Quilter helped make civil unions possible, but was too distant a memory (it was, after all, over 15 years ago) to make any real difference to the marriage equality legislation passed this year.

On the other hand, Quilter did seem to plant some of the arguments in the public consciousness (though there is room for debate, of course, over how far the words of a legal judgment can be said to have seeped into that public consciousness), and it must have contributed in some way towards further raising the profile of the issue of marriage equality.

Such offhand speculation only gets us so far.  What is needed (here and in other contexts) is a careful, empirical socio-legal analysis of whether and how the case made a difference to the campaign. That analysis would prove valuable both to lawyers and those interested in the general issue of how social change happens.

Max is a BCL candidate at Balliol College, University of Oxford and is a former co-chair of the JustSpeak Steering Group.

Related posts:

  1. Marriage Equality in New Zealand – Part I: Religious Exemptions
  2. Same-Sex Marriage: Bill N°344 Amidst France’s Wider Political Landscape
  3. Gender-Neutral Marriage and ‘Attenuated Discrimination’: Legal Developments in France
  4. Pro Bono Law in New Zealand: A Work in Progress

Engendering the Judiciary – a South African Perspective

  By Guest contributor | 3 May 2013 - 8:51 am | Legal Developments, Opinion
Leave a comment

By Tarryn Bannister -

Recent statistics and debates in South Africa highlight that the country’s transformative vision has not stretched as far as the judiciary and legal sector. Since this is the very sector tasked with protecting, interpreting and enforcing the rights enshrined in the Bill of Rights so as to bring about social justice and the transformation of society-at-large, the facts are cause for worry. 

Justice Kate O’Regan was one of the two women appointed to the first Constitutional Court. While there had been racial transformation, the gendered demographics of the Constitutional Court are the same in 2013 as they were in 1994, with nine male judges and two female judges.
Photograph: Paul Botes

Despite the South African Constitution’s commitment to establishing a society based on non-sexism and the prohibition against discrimination on the grounds of gender and sex, the South African judiciary has failed to adequately represent South Africa’s female population. Speaking at the Commonwealth Law Conference in Cape Town in April, former Constitutional Court justice Kate O’Regan specifically highlighted the lack of gendered transformation within the Constitutional Court. She pointed out that while there had been racial transformation, the gendered demographics of the bench are the same in 2013 as they were in 1994, with nine male judges and two female judges. As apex courts and ultimate guardian of the constitutional rights and the project of transformation through law, this state of affairs is surely inexcusable. 

In addition to this, only 9 of the 473 senior counsel, from whose ranks candidate judges are selected, were black women, while throughout the whole of South Africa, there are only 20 white women practising as senior counsel. The Democratic Government and Rights Unit pointed out that as of October 2012, women made up only 28% of all judicial officers nationwide. This gender imbalance within the legal profession is untenable, given the growing rate of female law graduates within South Africa in the context of a transformative, constitutional democracy. The Judicial Service Commission (‘JSC’) has pointed to government for the dismal demographics at play, whereas the Justice Department has in turn blamed ‘exclusive clubs’ for failing to provide opportunities for female advocates to move up the ladder. But as the Democratic Government and Rights Unit points out, while the JSC is not solely responsible for transforming this gender imbalance, it is empowered to advise national government ‘on any matter relating to the judiciary or the administration of justice’. The JSC could therefore be expected to engage proactively with other stakeholders in order to address the systemic constraints facing women within the legal profession. What is clear is that urgent action, dialogue and collaboration among all stakeholders is necessary in order to address the deep patterns of gender inequality within South Africa.

Tarryn Bannister is Doctoral Candidate at the Socio-economic Rights and Administrative Justice Research Project at the University of Stellenbosch, South Africa.

Related posts:

  1. Unprecedented Step Taken in South Africa to Address Gender Transformation in the Judiciary
  2. Engendering Social Welfare Rights
  3. Violence Against Women in South Africa: President Zuma and the ANC Still Have Not Got the Message
  4. Pro Bono Work in South Africa: From Moral Duties to Legal Duties