Nov 10 2017

Project Five Fifths

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*An interview with Kwame Sekyere

  1. Firstly, congratulations on launching Project Five Fifths. How did this organization get its start?

Thank you! Project Five Fifths has been a thought in my mind for the past couple of years. It hasn’t always been in the form that it’s currently in now, in fact, it was initially just going to be something similar to a blog, but the more I’ve developed as a person in my skills and experiences, the idea has developed with me, as well.

In terms of actually kicking off as a full-blown organization, it’s difficult to put a date, moment or specific decision on it, but I see it as more of a process of growth that started a couple of years ago.

  1. It’s an interesting name – is there a story behind it?

Yes! I’m glad you asked. Just a quick plug, I write a weekly piece on Medium that covers my thinking behind this Project, the first one came out last week and it actually addresses this question.

Okay, so the name has everything to do with the purpose of the organization, it isn’t arbitrary. In 1787 the United States Constitutional Convention brought about an agreement called the Three-Fifths Compromise. In short, enslaved African-Americans would be counted as three-fifths of a person when state populations were counted.

I’ve taken this concept and applied it to 2017, where I believe we see a diminishing of the value of people who are somewhat distant from us, whether economically, socially or even geographically.

So I see Project Five Fifths as the tool that will bridge that distance and raise the value of these people, making them five-fifths of a person.

 

  1. What do you hope to accomplish with this organization?

This is a great question. I’ve got the weird mix of being extremely optimistic and also extremely pragmatic. In practical terms, I want to create some really great media content that people will enjoy engaging with, but content that is fundamentally rooted in giving a more rounded perspective of those who are distant, sharing their stories and simply bringing us closer to them.

 

  1. Will the media content live on the Project Five Fifths website, or is there another platform to house the work?

So the Project Five Fifths website is the main hub where you can find out about everything. But each production is an individual entity, so they will grow on their own. For example, the first production, The Streets Kitchen Podcast, has its own Twitter and Soundcloud page, but everything it does is publicised by Project Five Fifths.

 

  1. What types of media will be featured in your collection (i.e. art, video, photography, etc.)? How do you plan to create and collect this work?

The type of media isn’t so much of a question for me. My main question is how sustainable each production is. I’m not really looking for one-off pieces, I’m looking to produce media content that can build and grow over time. So the type of media can vary, but it’s more about the way it’s packaged and whether it’s sustainable over time.

Because the main focus is the community being served, I try to rely on the eyes of the people in the community organizations I work with, because they are best placed to know what needs to be heard.

 

  1. What can you tell us about the rest of the team behind Project Five Fifths? What experiences and skills are you all bringing to the table?

This question is difficult to answer. In the conventional sense, this is a team of one. But I do have key collaborators, different creatives I like to work with to produce the content. George and Josh are film students that I work with on video content and Luis, who did the sketch in the Introduction video, is multitalented too. In addition, I’ve got the organizations I work with, one example being Streets Kitchen.

So there isn’t a team per se, but there are people whose talents, reach and ideas are vital. For example, it was George and Josh that convinced me to make a podcast, which then developed into The Streets Kitchen Podcast.

 

  1. You’ve just launched, but how do you think Project Five Fifths can evolve down the road?

This is probably the most perfectly timed question you’ve asked! Not only can it evolve, it will evolve and it is currently evolving as we speak. I’ll tell you a secret, when I wrote the script for the Introduction video, the Project Five Fifths I envisaged then was not the one we saw launched on October 16th.

Fundamentally, it is always going to be about making the lives of marginalized people more known. Currently it’s what I call a ‘production hub’, the strength of this is its mobility – it’s not a house but a hub, it can fill different spaces and adapt to different needs. And I guess all this adapting will lead to evolution! I aim to be clear and open with this, which is one of the reasons I write my weekly posts on Medium.

So honestly, I don’t know exactly how it will evolve, but it will and it is!

 

  1. Where can people go for more information or to reach out with ideas?

The website is projectff.co.uk. We are @Project5Fifths on all social media. People can also email on info@projectff.co.uk. I’m always on the lookout for new people and organizations to work with, so please get in contact if you have any ideas!

Author Bio
Kwame is the Founder of Project Five Fifths and is currently doing a part-time MSc in Human Rights at LSE.  You can follow his work on Twitter @KBSekyere

Posted by: Posted on by Heidi Elfriede El-Megrisi

Oct 30 2017

India’s Rohingya Deportation Quagmire: Misplaced Nationalism or a Pragmatic Middle-ground?

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By Siddharth Sunil*

Around the 9th of August 2017, news first broke that the Indian Central Government had passed detailed orders directing, inter alia, the deportation of Rohingya Muslims from the country. The order was passed under Section 3(2) (c) of the Foreigners Act 1946. It was met by widespread criticism and prompted numerous sharply worded news reports, op-eds, special television segments, et al. The Central Government responded to these criticisms (which soon found an outlet through a petition filed in the Supreme Court of India) by contending that the deportation of Rohingya Muslims was justified. In its preliminary affidavit, the Government referred to the Rohingya as “potential terrorists”, owing to their belonging to the Islamic faith.

Needless to say, the affidavit irked consciences of a great number of Indians, and also sparked scathing comments from across the globe. The Government’s allegations were declared to be unsubstantiated, bigoted, incorrect, and made in bad taste. The truth is that there have been absolutely no terrorism-based arrests of Rohingya Muslims, and, save some instances of thieving and other petty crimes (which have been few and far in between), the 40,000-strong Rohingya population residing in India has had a clean record. This begs one to scrutinize the Government’s order with a fine comb, and to read between the lines.

A superficial understanding of contemporary Indian polity would reveal that the impugned order to deport the Rohingya seems to trace its roots neither to the Constitution, nor to statutes (albeit it is backed by one), but to a political ideology. Many believe that a drastic decline in religious tolerance and an increase in attacks on Muslims have characterized the three years that the incumbent government has spent at the Government. However, it is worthwhile to steer clear of these allegations for now, given that they are sans concrete proof.

The Government, in its affidavit in the Supreme Court, has claimed that the deportation of Rohingya Muslims is imperative to protect national security. Further, it has said that Article 19 of the Constitution of India (which, inter alia, provides for a fundamental right of citizens to reside anywhere in India) cannot be extended to the Rohingya Muslims, as they are not citizens of India. Apart from failing to convincingly demonstrate the exact ways in which the protection of national security is to be achieved by deporting the Rohingya Muslims, the order is further surprising, since it is antithetical to the traditional position that India has taken in this regard. India has historically been an accommodative and hospitable nation, and operated its tourism industry for several years under a Sanskrit catchphrase that when translated means “a tourist is akin to God”. By way of example, emphasis and further operational guidelines may be placed on 1991, when a massive influx of Sri Lankan Tamils into India was witnessed. They were allowed entry and granted registration as refugees. There was an implicit acknowledgement of the fact that the Tamils were not all terrorists; it is pertinent to note that it was the Tamils who formed a large part of the terrorist outfit LTTE, which was responsible for the assassination of Rajiv Gandhi, then Prime Minister of India, and thus, tensions against the Sri Lankan Tamils were justifiably at a peak. Despite this fact, the Government (then) managed to take a pragmatic stand, and refrained from branding all Tamils as terrorists. It is, thus, an important observation that no Rohingya Muslim, currently residing in India has been suspected of or convicted for any terrorist act: which lends no credible rationale to the Government’s impugned order.

It may be noted that India is not a signatory to either the 1967 Protocol or the 1951 United Nations Convention on Refugees, but it is a signatory to numerous United Nations Conventions on Human Rights, refugee matters and related issues. Therefore, it may be easy to make a positivist argument against non-refoulement (a fundamental International Law principle that forbids countries from returning asylum-seekers to countries where they would be in likely danger of persecution based on race, religion and nationality, among others) binding India.  However, India’s consistent State Practice in this regard and recent instances in which India has urged fellow nations to refrain from diluting the principle of non-refoulement ensures that, as a customary international law, non-refoulement is binding in India, regardless of whether or not India is a signatory to the relevant treaty.

An aerial shot shows thousands of new Rohingya refugee arrivals crossing the border near Anjuman Para village, Palong Khali, Bangladesh. ; As an estimated 500,000 Rohingya sought safety in Bangladesh between late-August and October 2017, UNHCR began work on an extension site next to the long-established Kutupalong refugee camp in Cox’s Bazar. Whole families, young mothers and unaccompanied minors were among those fleeing for their lives since fighting reignited in Myanmar. They came by boat or walked barefoot for days, wading through vast rice fields. They left most of their possessions behind. Large groups crossed into south-eastern Bangladesh hungry, in poor physical condition and in need of life-saving support. By mid-September, the Bangladeshi Government allocated some 2,000 acres of land on which family tents and temporary communal shelters were erected to shelter new arrivals. UNHCR site planners estimate that these will be sufficient to house 150,000 people.

 

Article 21 of the Constitution of India extends the right to life and personal liberty, unlike Article 19, to non-citizens. In a High Court judgment from an Indian state, it was observed: “the principle of ‘non-refoulment’ is encompassed in Article 21 of the Constitution of India and the protection is available, so long as the presence of the refugee is not prejudicial to the national security”. This judgment is important in that it lays down ‘national security’ as a qualifier. This, the author submits, is a reasonable middle-ground, but there must be an efficient fact-finding mechanism to separate genuine cases affecting national security from false claims of threats to national security. The modalities of such a mechanism, however, would warrant careful consideration. The Supreme Court echoed the need of such a halfway-house (balancing of human rights with national interest) while hearing the petition filed by the Rohingya Muslims, by orally observing that a holistic hearing was in order and said that emotional arguments would not be permitted by the Court. The matter has been deferred to the 21st of November for further hearing.

It must be borne in mind that, thus far, there are no substantive Supreme Court precedents on this matter. Therefore, the onus is now on the Apex Court of India to be the conscience keeper of the Constitution of India and, above all, to demonstrate a willingness to go above and beyond for something that transcends nationalities, and to act as a guardian of human rights. The judgment will be eagerly awaited.

*Siddharth Sunil is a student of the (class of 2020) B.A., L.L.B. (Hons.) course at NALSAR University of Law, Hyderabad, India. He is avidly interested in Indian Constitutional Law, and plans to be a practicing litigator when out of law school.

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Oct 24 2017

Negotiating the Change in Climate Change

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by Johanna L. Gusman, M.Sc., J.D.*

Last month, leaders from around the world gathered in New York for the 72nd Session of the United Nations General Assembly (UNGA), where the General Debate opened on the issue of ‘Focusing on People: Striving for Peace and a Decent Life for All on a Sustainable Planet’. Discussing global climate action was squarely on the agenda, which is certainly timely as natural disasters have nearly quadrupled in number since 1970. The United States and the Caribbean are still coping with the recent hurricane-induced devastation, and one of the world’s largest polluters is seriously considering backing out of its commitment to the Paris Agreement, which is (ironically) the very country that hosted this year’s UNGA. Even without the United States’ commitment to the international community on climate change, overall implementation of climate action policies is well below what is needed to address the enormity of this threat. It is a situation that has scientists, environmental activists and concerned citizens alike calling for more than just continued rhetoric. Yet, in all the dialogues, there is one invasive and not openly talked about issue that must receive more attention if real strides are to be made: fossil fuel industry interference in climate change policy making.

The Paris Agreement calls for countries around the world to abide by State-sanctioned pledges known as ‘nationally determined contributions’, many of which include drastically reducing greenhouse gas (GHG) emissions by limiting domestic dependency on fossil fuels. Trouble is, the United Nations Framework Convention on Climate Change (UNFCCC) provides observer status to the trade associations of some of the world’s most powerful fossil fuel corporations such as ExxonMobil, Shell, and British Petroleum—all of which lobby heavily against policies aimed at doing precisely what countries have pledged to do: limit the most abundant form of GHG, carbon dioxide, the product of burning fossil fuels. This constitutes an irreconcilable conflict in climate change policymaking that should bar industry representatives from being granted access to negotiations that work to limit the consumption of the product from which they profit.

The UN is failing to learn its own lesson on this. One excellent way to limit undue industry influence on global policy making can be found in the international UN legal precedent of Article 5.3 of the World Health Organization’s Framework Convention on Tobacco Control (WHO FCTC), which requires that Parties, in setting and implementing policies with respect to tobacco control, must act to protect public health interests from the commercial and other vested interests of the tobacco industry in accordance to national law. The WHO FCTC derives much of its success in protecting human health from its recognition that the tobacco industry has for years operated with the express intention of subverting the role of governments and of the World Health Organization in implementing public health policies to combat the tobacco epidemic. Climate change leaders would be well-advised to explicitly adopt a similar approach to help fight against corporate capture of their policymaking process. Because just like the tobacco industry has commercial interest in preventing tobacco control, the fossil fuel industry has a powerful vested interest in preventing climate change action.

However, even though the UNFCCC has the mandate to stabilize GHG emissions to prevent dangerous human contributions to climate change, it has yet to take up the fundamental task of reigning in the powerful corporations that extract, burn and sell fossil fuels. In fact, it has not formally acknowledged that the fossil fuel industry’s products and practices have contributed to much of the environmental havoc wreaked on people and this planet nor has it condemned the fact that the industry has actively worked to escape the responsibility for and the consequences of its product when such havoc occurs. What’s more, there is little recognition that the fossil fuel industry has failed to significantly invest in the research and development necessary to make its products and practices safe or to provide any meaningful, sustainable alternatives.

Admittedly, the role of fossil fuel companies, and by extension fossil fuels, in our managed retreat from a carbon-intensive economy is far more complex and nuanced than the tobacco industry and its role in the tobacco epidemic. The tobacco industry provides next to zero benefit to the world and the litany of damning court cases shows that the tobacco industry is an easy villain. It is much harder to convincingly explain the exact nature of the culpability for the impending climate crisis and the specific roles that the fossil fuel industry should have in the necessary collective response. However, where there exists an obvious, irreconcilable conflict that is incompatible with the very spirit of the UNFCCC—the fossil fuel industry has no interest in keeping fossil fuels in the ground as it goes against the essence of its business model—it must be openly addressed. If global leaders are serious about focusing on all peoples and a sustainable planet, recognizing the lengths to which certain transnational corporations will go to protect financial interests over environmental ones is surely an easy step forward in the right direction.

A corporation’s first duty is to its shareholders—nothing else. Fossil fuel shareholder interests (i.e. profit) should not dictate climate change policies, and their influence should, therefore, be limited. Otherwise, we are letting those who do not have to play by the rules, make the rules. Thus, what must remain non-controversial is that in setting and implementing climate change policies, UNFCCC Parties must act to protect public health and environmental interests from the commercial and other vested interests of the fossil fuel industry; not have to sit at the table and negotiate with them. To trust that this makes no difference to UNFCCC policies is not only illogical; it is insane. Believing otherwise amounts to much more than merely allowing the fox to guard the proverbial henhouse. It is akin to letting the fox gobble up the hens at its leisure and then arming it against any attempts at rescue by the farmer.

*Johanna Gusman is a visiting researcher at Mansfield College and an international human rights lawyer with an interdisciplinary background in health and law. She studied as a Gates Public Service Law Scholar, was awarded a Fulbright Public Policy Fellowship at Samoa’s National Human Rights Institute, and recently served as a Technical Officer with the World Health Organization (WHO FCTC) where she was the focal point on human rights, liability as well as trade and investment issues. Johanna will be working with the Institute of Human Rights as she completes her work on the Framework Convention on Tobacco Control project (WHO).

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Sep 29 2017

Mercury Poisoning: Taking action before it’s too late!

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By By Richa Sharma and Raghav Trehan*

“And virtually none of the children knew that mercury is toxic,” -Juliane Kippenberg [1]

 

Mercury is a silver coloured liquid metal which is found in a mercury sulfide mineral called Cinnabar [2]. Mercury is used in gold mining, dental amalgams, thermometers, fluorescent lights and a lot of other fields. This article will be focusing on how child labourers are being affected by the usage of mercury in gold mining and how mercury poisoning can be prevented by using other methods of extraction.

Extraction of Gold – The Process

“Mercury attacks the central nervous system. It can cause lifelong disability, including brain damage, and even death.” – Carlos Conde [3]

Mercury is mixed with the gold ore in order to isolate gold from it. This results in a mercury-gold amalgam which is further heated to obtain gold. Evaporation of mercury gas which occurs during the process is extremely poisonous.

Child labour in Philippines

“Thousands of children in the Philippines risk their lives every day mining gold. Children work in unstable 25-meter-deep pits that could collapse at any moment. They mine gold underwater, along the shore, or in rivers, with oxygen tubes in their mouths. They also process gold with mercury, a toxic metal, risking irreversible health damage from mercury poisoning.” – Juliane Kippenberg [5]

According to the Minamata Convention [4], usage of mercury is supposed to be eliminated. Simply having strict laws on paper is not sufficient for putting an end to this situation. These laws need to be enforced. Poor families and children from various parts of the world are still involved with gold mining, as this is their only source of income. Taking risky dives in search of gold, is not what children as young as 9 years old are meant to be doing.

Let’s have a look at some of the child labour laws in Philippines [6]:

  1. Minimum Age for Hazardous Work (18) is mentioned in Article 139 of the Labor Code (48).
  2. Prohibition of Hazardous Occupations or Activities for Children:
    Department Order 4 on Hazardous Work and Activities to Persons Below 18 Years of Age; Section 12-D of the Special Protection of Children Against Abuse, Exploitation, and Discrimination Act (49, 50)
  3. Prohibition of Forced Labor:
    Section 4-5 of the Expanded Anti-Trafficking in Persons Act; Section 12-D of the Special Protection of Children Against Abuse, Exploitation, and Discrimination Act (51, 52)

As we can see, none of these laws have been enforced. It’s not only about Philippines, various other countries seem to be in the same situation.

Solutions to the problem

Instead of using mercury in order to obtain gold, there are a number of other methods that yield the same results. These methods are less hazardous as they do not involve gold-mercury amalgam. A list of mercury free methods have been listed on EPA’s website [7] – gravity concentration methods such as panning, sluicing, shaking tables and other concentration methods such as using magnets and flotation.

New discovery: Orange peels can reduce mercury contamination

A new study by researchers from Flinders University in South Australia reveals that limonene combined with non-toxic industrial waste can clear up mercury contaminated areas effectively. A polymer is created when these two elements are combined.

“More than 70 million tons of sulfur is produced each year by the petroleum industry, so there are literally mountains of it lying, unused, around the globe, while more than 70 thousand tons of limonene is produced each year by the citrus industry (limonene is found mainly in orange peels) So not only is this new polymer good for solving the problem of mercury pollution, but it also has the added environmental bonus of putting this waste material to good use while converting them into a form that is much easier to store so that once the material is ‘full’ it can easily be removed and replaced.” – Justin Chalker [8]

Summary of recommendations made by the Human Rights Watch report

These recommendations have been made for the Philippines Government, UN agencies and donors, international gold traders and refiners [9]:

  • Investigate and monitor child labor in small-scale gold mining.
  • Offer appropriate part-time youth employment opportunities for adolescents between the ages of 15 and 17, that do not interfere with the compulsory schooling requirement for these children.
  • Ratify the Minamata Convention on Mercury and implement its provisions
  • Conduct biomonitoring in small-scale mining areas to assess levels of mercury exposure among local communities and provide treatment to those in need

References

[1] https://www.hrw.org/report/2011/12/06/poisonous-mix/child-labor-mercury-and-artisanal-gold-mining-mali

[2] http://geology.com/minerals/cinnabar.shtml

[3] https://www.youtube.com/watch?v=qk6utXucq2o

[4] http://www.mercuryconvention.org/

[5] https://www.hrw.org/report/2015/09/29/what-if-something-went-wrong/hazardous-child-labor-small-scale-gold-mining

[6] https://www.dol.gov/agencies/ilab/resources/reports/child-labor/philippines

[7] https://www.epa.gov/international-cooperation/artisanal-and-small-scale-gold-mining-without-mercury

[8] http://www.natureworldnews.com/articles/17729/20151023/water-pollution-orange-peels-suck-up-mercury-new-study-shows.htm

[9] https://www.hrw.org/report/2015/09/29/what-if-something-went-wrong/hazardous-child-labor-small-scale-gold-mining

*Richa Sharma and Raghav Trehan are 4th-year students, pursuing their B.A. LL.B. (Hons.) at Fairfield Institute of Management and Technology, GGSIPU, New Delhi. They are keenly interested in human rights and environmental law. Currently, they are actively volunteering for Greenpeace India’s Solar Campaign.

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Sep 14 2017

Divorce versus Marital Rape: A Tale of Hypocrisy

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By Sachin Dhawan*

As per recent reports[1], the central government of India (the government) has, in response to a petition filed before the Supreme Court, defended the statutory exception permitting child marital rape. The validity of the controversial exception to Section 375 of the Indian Penal Code, which states that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”[2], has been challenged by the NGO Independent Thought.

The government has rightly been taken to task for its shocking stance towards child marital rape. In a brazen display of apathy, it pinned the blame for the social evil on “socio-economic realities”[3] implicitly washing its hands of the problem. In blithely condoning the heinous traditions that sanction the victimization of children, the government made its intentions clear: it was not interested in redressing the problem.

This antediluvian stand by the government is in stark contrast to the affidavit[4] it submitted last year in the case of Shayara Bano v. Union of India. There, it vigorously endorsed the demand for a constitutional abrogation of discriminatory divorce laws affecting Muslim women. The government went all out in this endeavor, proclaiming that “gender equality and the dignity of women are non-negotiable, overarching constitutional values and can brook no compromise”[5]. In this way, it positioned itself as the primary guardian of Muslim women’s rights.

Importantly, most of the affidavit is devoted to detailing the vast network of international covenants and agreements mandating the institution of gender just measures to alleviate the suffering of women. The government takes pains to remind the Court of its past pronouncements on India’s obligation to adhere to international law commitments on gender justice. Sharply expressing its indignation at the suffering of Muslim women due to the practice of triple talaq (instantaneous divorce), the government exhorts the Supreme Court to once again act on the basis of “international covenants to which [India] is a party”[6].

In embracing change for divorced Muslim women while upholding continuity for child brides, the government does not display a consistent attitude towards women’s rights. Indeed, the international obligations cited to uphold gender justice for Muslim women are all but forgotten when it comes to dealing with child marriage, a social evil practiced mostly by Hindus[7]. In such situations, the government prefers to “protect the institution of marriage”[8] rather than invoke India’s international obligations. Despite the severity of the concerns raised by Independent Thought, the government’s response was timid and meek, devoid of the alacrity with which it condemned gender injustice afflicting Muslim women.

Sadly, such behavior is reflective of past conduct of the government. Prime Minister Modi waxes eloquent about the plight of Muslim victims of divorce but has nothing to say about the many more non-Muslim women abandoned by their husbands[9]. Criticizing this employment of a double standard is not to deny the suffering of many Muslim women. However, the selective memory on display when it comes to international covenants suggests that the government’s interest in women’s rights is piqued when the women in question happen to be Muslim, that too on limited occasions[10]. The government’s aspiration to achieve the goals of gender justice as set out in a raft of international accords is laudable but it is an aspiration that should be pursued in the interests of all women.

* Sachin Dhawan is an Assistant Professor at Jindal Global Law School, India.

 

[1] https://scroll.in/latest/846733/centre-defends-ipc-clause-that-protects-husband-for-having-forced-sex-with-minor-wife

[2] https://indiankanoon.org/doc/623254/

[3] https://thewire.in/166569/minor-wife-rape-forced-sex/

[4] https://drive.google.com/file/d/0BzXilfcxe7yucHNsQXpXa0VuZk0/view

[5] https://drive.google.com/file/d/0BzXilfcxe7yucHNsQXpXa0VuZk0/view

[6] https://drive.google.com/file/d/0BzXilfcxe7yucHNsQXpXa0VuZk0/view

[7] https://thewire.in/39885/of-12-million-married-children-under-age-ten-84-are-hindus/

[8] https://thewire.in/166569/minor-wife-rape-forced-sex/

[9] https://thewire.in/86335/abandoned-women-triple-talaq/

[10] https://thewire.in/132084/bilkis-bano-rape-case-narendra-modi/

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Sep 9 2017

The Intense Battle between Indigenous Communities and Powerful Corporations

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By Raghav Trehan and Richa Sharma*

“I say this because I know that if you want to take care of the forest, you need to invest in us – indigenous peoples – because no one takes better care of the forest than we do.”

According to the Brazilian Government, the ongoing construction of the world’s 4th largest dam over the Xingu River is ‘eco-friendly’. The emission of methane gas which displaces oxygen surely sounds pretty eco-friendly to us. Obviously human beings inhale methane and exhale oxygen. Science, right?

The devastating effects of the Belo Monte Dam on the flora, fauna and riverside communities are definitely not ‘eco-friendly’. In fact, 400 square kilometers of the Amazon forest will be flooded by Belo Monte’s reservoirs. Of course, that’s not important. What’s more important is the millions of dollars these corporations will be earning through the exploitation of exhaustible natural resources.

Let’s have a look at what we need to know and what we need to DO!

Everything You Need to Know about the Belo Monte Project

With the aim of ensuring energy security in mind, 1975 saw the formulation of plans for the construction of new hydroelectric dams in Brazil. The initial plan consisted of 297 projects to be built in Brazil. A contract was signed with Norte Energia (a construction consortium comprising of Eletronorte, Neonergia, Cemig, Light, J Malucelli Energia, Vale and Sinobras) to build the project. With a capacity of 11,233 megawatts (MW), the estimated cost of the controversial Belo Monte project is £15bn, making it the 2nd largest hydroelectric dam in Brazil. The installation license for the project was issued by IBAMA (Brazilian Institute of Environment and Renewable Natural Resources) in 2011.

Officials at IBAMA were under serious pressure to give their approval for the project. In 2009, however, two senior managers decided to resign from their posts in opposition to the project. The Belo Monte has been widely criticized by environmental organizations across the globe, because of the severe damage it will inflict on the flora and fauna of the Amazon.

It will increase global warming and cause changes in landscapes.

“Each ton of methane has an impact on global warming about 200 times that of a ton of CO2 while it remains in the atmosphere, but methane remains for a relatively short time (12.4 years on average), whereas CO2 remains about ten times longer.”

-Philip Fearnside

The major downside to such a design specification is the significant shift in landscape required by the turbines; this is why Belo Monte requires a large reservoir; the area does not have a naturally occurring high hydraulic head (an example of a naturally occurring high water head is a waterfall).

-Apratim Guatam, Ian Haubold, Vicky Pacey, David Papirnik, Mehek Premjee and Patrick Schlumpf

Harsh Challenges Faced by the Indigenous Groups

More than 20,000 indigenous groups have been forced to relocate their houses. These groups are continuously losing all the basic necessities (such as food, medicinal crops watered by the river, transportation) that were provided to them by the Xingu River.

Cultural artifacts belonging to the tribes have been washed away by frequent floods. Some people have even lost their family members. The livelihood of riverside communities, which was completely dependent on the Xingu River, is now coming to an end. For thousands of years, this river has been a part of the Amazon ecosystem.

“For us the river means many things. For everything we do, we depend on the river. For us to go out, to take our parents around, to get medical attention, we need the river for all these things. If a dam is constructed on the river, how will we pass through it? … We don’t want to see the river closed off, our parents dying in inactivity. For us the river is useful and we don’t want it to wither away – that we not have a story to tell, that it become a legend for our children and grandchildren. We want them to see it with their own eyes.” – Zé Carlos Arara, a leader of the Arara people.

The local fishing industry has drastically declined as 16.2 million tons of fish have died due to a lack of oxygen. Even though irreparable damage has already been done, IBAMA ordered Norte Energia to pay a fine of $US 10.8 million as compensation.

Brazil has violated the United Nations Declaration on the Rights of Indigenous Peoples. Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples says:

States shall provide effective mechanisms for prevention of, and redress for:

  • Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;
  • Any action which has the aim or effect of dispossessing them of their lands, territories or resources;”

Let’s Have a Look at what We May Lose Forever

White-cheeked spider monkeys, which are commonly found near the Xingu River, might be lost. Not only that, even the giant Amazon River turtles that specifically come to the Xingu River in order to lay their eggs are endangered. Another major loss includes Cacao crops – found near the banks of the Xingu River – that have already been wiped out by Norte Energia.

We may also lose a huge variety of Amazonian butterflies, 45 different types of honey, 16,000 tree species, 180 different tribal languages, some of the world’s most unique spiritual ceremonies, 1300 types of birds, 70% of Amazonian plants which are known to have anti-cancerous properties, Arawati tribes, 20% of the world’s oxygen, 3000 species of fish (including the pink dolphin), 400-500 indigenous Amazon tribes (out of which 50 have absolutely no contact with the outside world), and 1500 unique types of flowers!

What’s Lined Up Next? The Tapajos River!  

More hydroelectric dams such as Chacorão, São Luiz do Tapajós and Jatobá are to be built on the Tapajos River in the near future. Many riverside communities, including the Munduruku tribe, will be affected by the construction work of these dams. Thousands of people are continuously protesting against the proposed projects. The only people who will benefit by these projects are the investors and powerful corporations. The compensation provided by these corporations can never be compared to what’s being destroyed forever – our priceless environment.

What Can We Do to Help?

You can write a letter to the President of Brazil to express your concern.

Works Cited:

  1. Maíra Irigaray, ‘The Munduruku People: A Living History of Resistance’, http://amazonwatch.org/news/2015/0430-the-munduruku-people-a-living-history-of-resistance
  2. United Nations Declaration on the Rights of Indigenous Peoples available at: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
  3. Rhett Butler, ‘10 Facts about the Amazon Rainforest’, http://rainforests.mongabay.com/amazon/amazon-rainforest-facts.html
  4. Philip Fearnside, ‘Dams With Big Reservoirs ‘, https://www.theglobalist.com/dams-climate-change-global-warming-brazil-paris-agreement/
  5. Apratim Guatam, Ian Haubold, Vicky Pacey, David Papirnik, Mehek Premjee, Patrick Schlumpf, ‘Brazil’s Belo Monte: A Cost-Benefit Analysis’, http://franke.uchicago.edu/bigproblems/BPRO29000-2014/Team09-EnergyPolicyPaperBeloMonte.pdf

*Raghav Trehan and Richa Sharma are 4th year students, pursuing their B.A. LL.B. (Hons.) at Fairfield Institute of Management and Technology, GGSIPU, New Delhi. They are keenly interested in human rights and environmental law. Currently, they are interning at the Delhi International Arbitration Centre.

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Aug 11 2017

Inside Immigration Detention

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By (Jason) Hung Yu Shing*

“The 2001 Detention Centre Rule states the purpose of detention centers shall be to provide for the secure but humane accommodation of detained persons in a relaxed regime with as much freedom of movement and association as possible, consistent with maintaining a safe and secure environment, and to encourage and assist detained persons to make productive use of their time whilst respecting in particular their dignity and the right to individual expression.” – Mary Borsworth

Affluent countries, most notably Germany and Sweden, have cultivated a public image as moral nations, particularly over recent years. They are frequently praised for their willingness to host refugees fleeing from countries in turmoil. However, a 2015 report by the Office of the United Nations Higher Commissioner for Refugees (UNHCR) challenged these assumptions. In the report, the five richest nations in terms of GDP (the United States, China, Japan, the United Kingdom and Germany), hosted less than 5% of refugees in that year. In fact, over 86% of refugees are hosted in developing countries where resources are scarce. While developed countries endorse signing and sponsoring international conventions and resolutions in order to bolster refugee rights, their efforts in terms of hosting refugees are very limited.

To better understand this, Mary Bosworth, a professor from the University of Oxford, delves into the living conditions in 6 Immigration Removal Centers (IRCs) in London. She aims to unveil the inner story, and showcase the negative aspects, of those refugee hubs in London. Earlier this year, over 1 million British citizens signed the petition to bar U.S. President, Donald J. Trump, from debuting and speaking at the British Parliament, as an expression of their discontent upon immigration policies that became known as the “Muslim Ban.” In line with the local citizens, British political leaders, including Prime Minister Theresa May and Foreign Secretary Boris Johnson, overtly expressed their disagreement of the “Muslim Ban”, seeing such immigration policies as a violation of moral principles. Ironically, Bosworth reveals that the living conditions at IRCs in London were demeaning to most, if not all, detained refugees. One detainee named Singh, who doesn’t speak English, suffers from continuous racial harassment and assault from five white inmates. He is left both physically and mentally impaired, after having hot tea and soup thrown on him, and being struck with a metal tray (Bosworth, 2014: 44). With respect to all racially divisive situations, it is a shame that the responsible wardens deliberately overlook it.

The predominant reason is because many wardens, who are initially hired in the interest of detainees’ safety, lack the required sense of responsibility to fulfill their duties. Ammon, for example, as many other wardens, merely sees his job as a stepping stone to help him become a police officer in two years. Others, like Arvil, simply work as a detention officer because they need a stable income (Bosworth, 2014: 156).

Aside from the possibility to stay with violent and racist inmates, detained refugees in IRCs are forced to live with ex-prisoners because these detention centers are also former prisons. “Why do we lock up illegal immigrants beside violent criminals in our toughest jails?” MP Tom Clarke questions on behalf of the detainees (Page 44). Albeit the aforementioned 2001 Detention Center Rule unambiguously states that detainees should live in a secure, humane and relaxed environment, these vulnerable groups are in fact living in places where lives can be compromised, and dignity is undermined (Bosworth, 2014: 3).

May reiterates the British position to strengthen the immigration scrutiny and lower the amount of immigrants down to 100,000 or below. Therefore, May indirectly engenders more illegal immigrants sneaking into the United Kingdom with false identification. Hence, there are as many as nearly 3,000 refugees and/or asylum seekers detained in any of the IRCs daily (Bosworth, 2014: 2). If these immigrants were to be repatriated, it is most likely that they would be persecuted. As a result, these vulnerable groups are deadlocked – they cannot return to their socio-politically unstable home countries, nor can they legally reside in the United Kingdom.

References:

Bosworth, M. (2014), Inside Immigration Detention, pp. 2-3, 44, 156            available at: http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199675470.001.0001/acprof-9780199675470

Grinberg, E. (2017), “Travel ban: UK petition to stop Trump state visit hits 1 million”, CNN, available at: http://www.cnn.com/2017/01/29/europe/uk-petition-president-trump-ban-trnd/index.html

Norton, B. (2016), “The 5 richest countries host just 5% of refugees – 86% are in developing countries”, SALON, available at: http://www.salon.com/2016/06/10/the_5_richest_countries_host_just_5_of_refugees_86_are_in_developing_countries/

Wilson, E. K. et al. (2017), “Refugees, Migrants and World Order”, The refugee crisis and religion: secularism, security and hospitality in question, Rowman & Littlefield International

*(Jason) Hung Yu Shing:

– Visiting Summer Research Scholar at UCLA 2017

– Research Assistant at the University of Warwick 2017

– Research Presenter at International Conference of Undergraduate Research 2016

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Aug 4 2017

The Council of Europe Parliamentary Assembly and Conscientious Objection: A Political Trap Ahead for the European Court of Human Rights?

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*By Stephen Harsley

Despite its undoubted importance for the Swedish workforce, it is rare for the labour court system of Sweden to attract a great deal of international attention. However, in April 2017, a court ruling in the case of Grimmark v. Jönköping County Council brought interest and intervention from lawyers and religious activists from as far afield as the United States. The issue at stake was abortion, or rather the extent to which medical professionals (and specifically midwives) can be required to participate in patient care in this area.

Midwives in Sweden are required to assist in providing abortion related care, and the refusal of the claimant in the case to do so, meant she was unable to find a job in this field. However, the Swedish courts rejected a claim of discrimination based on religion, and the claimant (Elinor Grimmark) has already expressed an intention to appeal to the European Court of Human Rights. The case will be based on Article 9 ECHR (freedom of religion and belief), but more controversially, her lawyers and supporters have relied partly on a Council of Europe Parliamentary Assembly resolution on conscientious objection by medical professionals. The possible consideration of the resolution sets a dangerous political trap for the Court, should the case be deemed admissible.

Resolution 1763 on the Right to Conscientious Objection in Lawful Medical Care states that “No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion”. The European Court of Human Rights has previously made clear that Parliamentary Assembly resolutions can be used for the purpose of interpretation (see Demir and Baykara v. Turkey, §74) but has also confirmed that they are non-binding. The potential value of such resolutions comes from their ability to provide an overview of general European political consensus, something that can be highly useful when determining how wide the margin of appreciation should be for states. This is due to the fact that the Assembly consists of a representative sample of national parliamentarians, drawn proportionally from across the political spectrum. Where there is a lack of consensus amongst Member States, they can be granted a wider margin.

Taken at face value, this would seemingly make Resolution 1763 highly useful, particularly in a case where the extent of Sweden’s discretion to limit Convention rights to protect the legal rights of others will be at issue. However, here lies the political trap for the Court. The resolution was passed with 56 votes in favour, 51 against, and 4 abstentions. This means that only one in five members voted in favour, and the majority were not actually present. Those who were came from Conservative parties, despite a progressive majority in the chamber’s overall composition at the time. The Parliamentary Assembly has a quorum rule requiring one third of members to be present in order for votes to be valid. The problem with this is that the value of PACE resolutions is in their status as a representative sample. There is no requirement for the quorum to reflect the political balance of the chamber, meaning that resolutions can be passed that are not at all reflective of European political consensus.

Political independence is an area where the Court has walked a careful line on the issue of abortion in the past, with decidedly cautious rulings. A failure to distinguish between Parliamentary Assembly resolutions based on the composition of the chamber at the time of the vote could well throw away a precious form of independence. In addition, if the Court accords great value to a politically divided resolution, this may well encourage attempts to, in effect, legislate in the area of European human rights law by the Parliamentary Assembly, damaging the reputation of a vital institution, at a dangerous time.

Providing interpretive guidance and being legal binding are two very different things. When a document is legally binding, of course its contents should be abided by. However, for sources that provide interpretive guidance, such as a PACE resolution, their authority comes from the ability of the source to provide evidence of consensus. In this case, it is very hard to see how a document written by a minority of PACE members, largely from one end of the political spectrum can be seen as representative of Europe. Affording legal value to resolution 1763, or indeed any other resolution voted for in a similar manner, could well end up turning the Parliamentary Assembly into a de facto ECHR legislative body. This would be a real blow to the independence of the ECtHR and to the impartial application of European human rights law.

*Stephen Harsley is an advocacy intern with the International Planned Parenthood Federation. He holds an LL.M. in human rights from Maastricht University (Netherlands). 

Sources

Council of Europe: Parliamentary Assembly, Resolution 1763 (2010) on the Right to Conscientious Objection in Lawful Medical Care, 7 October 2010

Council of Europe: Parliamentary Assembly, Rules of Procedure of the Assembly, June 2016, Rule 42-Quorum.

Council of Europe: Parliamentary Assembly, Resolution 1763 (2010) on the Right to Conscientious Objection in Lawful Medical Care, 7 October 2010, Assembly Voting Results, accessed 22/05/17

http://assembly.coe.int/nw/xml/Votes/DB-VotesResults-EN.asp?VoteID=2212&DocID=13164

ECtHR, Demir and Baykara v. Turkey, Appl. no. 34503/97, Judgment of 12 November 2008

ECtHR, Dickson v. United Kingdom, Appl. no. 44362/04, Judgment of 4 December 2007, §78

Sveriges Radio, Anti-Abortion Midwife Supported by American Lobby, accessed 22/05/17

http://sverigesradio.se/sida/artikel.aspx?programid=83&artikel=6614458

Council of Europe, Parliamentary Assembly Working Structure, accessed 22/05/17

http://website-pace.net/en_GB/web/apce/parliamentary-representation

Scandinavian Human Rights Lawyers, Our Cases: The Case of Elinor Grimmark, accessed 29/05/17

http://humanrightslawyers.eu/human-rights/our-cases/the-case-of-ellinor-grimmark/

 

 

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Aug 1 2017

The Quandary of the Climate Change Migrants: Revisiting the Climate Change Displacement Co-ordination Facility and their Legal Status

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By Rudresh Mandal and Hardik Subedi*

Climate change today represents an onerous challenge to legal responsibility across geographical and inter-generational boundaries. Both the environmental as well as the social effects of global climate change are necessitating a re-imagination of the extant legal regime. With the rise of sea levels, storm-surges and inundation of the mainland, countries the world over will soon be faced by an enormous, previously unimaginable climate-induced human displacement crisis. To make matters worse, this issue of climate-induced migration is conspicuous in its absence from international legal instruments.

The threat of migration is especially grave for the Pacific Island nations, whose territories have already begun to be submerged. The Carteret Islanders, in 2003, often referred to as the world’s first climate change refugees, had to be evacuated due to the rise in the sea level. For the populace ofsuch low lying coastal communities, migration seems to be a distinct possibility, with their predicament only being magnified by the loss of their spiritual ties with their land and the impossibility of ever returning home. The problem of the climate refugees is however not limited to the Pacific Islands. Countries such as the Maldives, Bangladesh and Ethiopia are also struggling to cope with the consequences of the rise in sea levels. By 2050, approximately 150 million people are expected to be displaced by climate change. Thus, the need for an adequate and appropriate response of the global community is required to protect and assist those faced with forced displacement, premised upon notions of planetary loyalty and humanitarian concern.

A protest in Calgary on the predicament of Climate Change Refugees on the occasion of the International Day of Action on Climate Change.

However, these ‘climate refugees’ as they have come to be known (though the terminology itself is hotly contested, with alternative phrases such as climate-induced migrants, environmental refugees and so on being suggested) are currently devoid of any remedy in international law. The UN Refugee Convention does not recognize this class of people as ‘refugees’since climate/environmental causes are not enlisted within the Convention. For instance, Ioene Teitiota from the Pacific Island of Kiribati (an island-facing inundation), who sought asylum on grounds of persecution due to climate change, was refused the same by the New Zealand Supreme Court owing to the above short-coming in the Convention.

One of the proposals that was tabled in the preliminary drafts of the negotiating text of the 2015 United Nations Climate Change Conference (COP 21) was that of a ‘Climate Change Displacement Coordination Facility’ (hereinafter Displacement Facility). Though there is no clarity yet on the functioning of this set-up, the facility would primarily deal with displacement, migration and planned relocation of people whose livelihood and very existence are threatened by climate change. The proposal could not however find adequate public discussion and attention in the final agreement of COP 21 owing to its focus on other complex discussions hinging on limiting GHG emissions and preventing disastrous consequences of ‘anthropogenic interference with the climate system’. The rising magnitude of people at risk due to rising sea levels and other rapid-onset and slow-onset climate events make the issues surrounding climate-induced migration and the Displacement Facility too grave a topic to be left at minimal discussion.

Although the Displacement Facility has re-surfaced in the discourse on climate change, certainty on its functional mechanism and the corresponding legal framework to address the practicalities surrounding its operation is still lacking. The Paris Agreement without using the phraseology ‘Climate Change Displacement Coordination Facility’, has ‘requested’ (clearly in a non-binding manner) the Executive Committee of Warsaw International Mechanism to take the lead on operationalising the climate related displacement through a task force. However, the outcome of this stipulation is obscure since it is placed under the head of ‘Loss and Damage’ instead of ‘Adaptation’ thus making it difficult to establish its locus to demand funds under the Green Climate Fund and United Nations Framework Convention on Climate Change (UNFCCC) Adaptation Fund. Hence, the demand for alternate funds,especially when pinned on the argument of largest contributor of greenhouse gases to pay the most would be problematic after the withdrawal of the US (one of the largest emitters) from the Paris Agreement.

In order to develop a framework to ensure the functioning of the Displacement Coordination Facility, the UNFCCC could be made to work in tandem with the UN Security Council. The Security Council herein could ensure compliance by exercising its powers under Article 39 of the UN Charter. However, its exercise is conditional upon the existence of threats and breach of peace, and acts of aggression. Hence, such a suggestion seems presumptuous of the role of the Security Council. Further, the situation has been complicated after the withdrawal of one of the Security Council members from the Paris Agreement dissipating the likelihood of reaching a consensus on imposing sanctions in cases of non-compliance.

Therefore, it is important for having a clear mechanism on how the Displacement Facility operates with increasing climate-induced internal displacement and the threat of the Pacific Islands being submerged within a few decades. However, the Displacement Facility would only be able to tackle the urgent imperatives of relocation and rehabilitation of the climate-refugees. In the long run, an international treaty framework which accords recognition to ‘climate refugees’and which requires countries to accommodate them within their territory is required. The definitional problem will persist given the resistance from the stakeholders (the United Nations High Commissioner for Refugees in particular) to extend the protection under the 1951 Convention to climate-induced migrants. Therefore, alternative international actors and legal frameworks are required to be assessed to identify the best positioned one(s) to address this emerging, yet inevitable, concern. Given the contemporary paranoia towards refugees, it would be expedient to consider establishment of the Displacement Facility at the earliest in order to tackle the short-term requirements of the climate refugees, while stretching the limits of international law to accommodate these refugees in the long run.

Works Cited:

  1. Phillip Dane Warren, ‘Forced Migration after Paris COP21: Evaluating the ‘Climate Change Displacement Coordination Facility‘, https://www.jstor.org/stable/44028186.
  2. Maria Jose Fernandez, Refugees, ‘Climate change and International Law’, fmreview.org/climatechange-disasters/fernandez.html.
  3. Ameen Jauhar, ‘The Nowhere People’, thehindu.com/opinion/op-ed/The-nowhere-people/article16765025.ece.
  4. John Vidal, ‘Global Warming could create 150 million ‘Climate Refugees’ by 2050’, https://www.theguardian.com/environment/2009/nov/03/global-warming-climate-refugees.
  5. Jessica Wentz & Michael Burger, ‘Designing a Climate Change Displacement Coordination Facility: Key Issues for COP 21’, law.columbia.edu/sites/default/files/microsites/climate-change/unfccc_climate_change_displacement_coordination_facility.pdf?utm_content=bufferbc5b7&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer.
  6. Ad Hoc Working Group on the Durban Platform for Enhanced Action, ‘Working Document’, int/files/bodies/awg/application/pdf/adp2-10_8sep2015t1500_cwd.pdf.
  7. Neil Tweedie, ‘The World’s first Climate Change Refugees’, telegraph.co.uk/news/earth/carteret-islands/6752962/The-worlds-first-climate-change-refugees.html.
  8. ‘United Nations Charter’, un.org/en/sections/un-charter/un-charter-full-text/,
  9. ‘United Nations Framework Convention on Climate Change’, int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf.
  10. ‘The Paris Agreement’, https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf

*Rudresh Mandal and Hardik Subedi are 3rd year students, pursing their BA LLB (Hons.) at NALSAR University of Law, Hyderabad. They take keen interest in the intersection of environmental law and human rights.

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Jul 25 2017

A New Spate of Extra-Judicial Killings in Kenya: Redefining Rights and Obligations under International Law

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By Godfrey Mwango*

Introduction

On 1st April, 2017, Kenya’s television media [note: link to video contains potentially disturbing footage] broadcast appalling scenes of a young man being shot dead by the police in East Leigh, Nairobi.

The Black’s law dictionary defines extrajudicial as that which is done outside the course of regular judicial proceedings; not founded upon a court of law. Extra-judicial killings are acts of impunity that deny individuals the due process of law and the right to life as permitted by law.

The police in Kenya are enjoined to investigate criminal offences and also to enforce the law under Article 245 (4) of the Constitution and the provisions of the National Police Service Act, (Cap 84). Article 244 of the Constitution goes a step further by providing that the National Police Service must “comply with constitutional standards of human rights and fundamental freedoms”.

Requirement of the Due Process of Law

The general tenor of criminal law and procedure in Kenya is that the role of the National Police Service is limited to the establishment of reasonable suspicion on an accused person before preferring charges. The rest of the process is then left to the trial court to determine the guilt or innocence of an accused. In Francis Matheka & 10 Others vs. Director of Public Prosecutions and Another, HC Misc. App No. 362 0f 2014, the High Court asserted that only a trial court can make a finding whether or not a criminal offence was committed after hearing the evidence.

Article 2 (6) of the Constitution of Kenya domesticates any treaty or convention ratified by Kenya and provides that such instruments form part of the laws of Kenya. Article 26 (1) provides for the right to life and further emphasizes that this right can only be limited as authorized by the Constitution or any other written law. Article 50 provides that a suspect or an accused person must be subjected to the due process of law which embody the strict observance of the principles of natural justice. The due process of law is also captured under the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, both to which Kenya is a signatory.

Kenya’s Breach of Obligation under Domestic and International Law

The requirement of the due process of law is both a domestic and an international obligation that Kenya must observe when dealing with the accused or persons suspected to have committed crimes. Kenya must comply with the State’s obligations under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. Under the auspices of the International Covenant on Civil and Political Rights,  every accused individual is to be subjected to a hearing. Article 14 of the instrument provides that the accused is to be informed of the nature of charge (s).

Article 10 of the Universal Declaration of Human Rights stipulates that every person is to be presented before an independent and impartial tribunal and is to be accorded fair and public hearing.

Conclusion

Succinctly put, the law is already cast in stone. The National Police Service have no legal authority to determine questions that affect the rights of persons suspected to have committed crimes. The Constitution is the grundnorm and must be respected by all the State actors including the police force. The goal of the Kenyan criminal justice system is not to brandish the sword of punishment of an individual by another or to settle personal vendetta. The course of justice is not to be actuated by ulterior motives or desire to oppress; but, by genuine concerns to render proportionate punishment on behalf of the public for a crime committed. The court is vested with this power and should dutifully guard against such motives that are incongruent to the goals of justice. It should safeguard against usurpation of the inalienable rights guaranteed by the Constitution. The fundamental principles of justice, which include fair play and decency, must not be profaned by the police, who are the high priests in maintaining law and order. The criminal justice system should not be reduced into a pawn by allowing the police to apprehend, prosecute, sentence and execute. The court should not, as it were, fold its arms and stare as the National Police Service execute citizens in broad daylight.

There is no justification for immediate retaliation by police against civilians under municipal law. Kenya is currently in breach of the State’s human rights obligations under both the municipal and international law. Acts of violation of Kenya’s obligations under international law by the National Police Service while discharging its mandate apportions responsibility of the State under the world order. It now behooves Kenya to take urgent remedial measures to ensure compliance with the State’s obligations under both domestic and international law, and to stop extra-judicial killings.

Works Cited

Black’s Law Dictionary 2nd edition available at: http://thelawdictionary.org/extrajudicial/

Video link available at: https://www.youtube.com/watch?v=ush2y3Nvdm4

Constitution of Kenya, Republic of Kenya, 2010 available at: http://www.kenyalaw.org/lex//actview.xql?actid=Const2010

National Police Service Act, Act no 11A of 2011 available at: http://www.kenyalaw.org/lex//actview.xql?actid=No.%2011A%20of%202011

Francis Matheka & 10 Others vs. Director of Public Prosecutions and Another, HC Misc. App No. 362 of 2014 available at: http://kenyalaw.org/caselaw/cases/view/113087/

United Nations Universal Declaration of Human Rights available at: http://www.un.org/en/universal-declaration-human-rights/

United Nations General Assembly, December 16, 1966, International Covenant on Civil and Political Rights, 2200A, New York available at: https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf

National Police Service of Kenya Website available at: http://www.nationalpolice.go.ke

*Godfrey Mwango is an L.L.B graduate of the University of Nairobi. He is currently undergoing the Advocates Training Programme at the Kenya School of Law, where he also serves as a Students’ President. He has a bias for Human Rights, Constitutional and Administrative Law. He has trained under the Honourable Peter Kaluma in the area of Constitutional Law and Judicial Review.

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