Western Imposition or Knowledge Deficit? The Road of Political Engagement

22nd April, 2015

I was at a presentation at Michaal Kirby lecture called: Can the Commonwealth of Nations Survive? A Dismal Story of Human Rights. and it was fascinating to listen to the evolution of the Commonwealth. What was clear from the presentation was that political rights did not occur without a cost.

He explained that The Commonwealth of Nations being a voluntary association of 53 states, constitute more than 25% of the membership of the United Nations; nearly 40% of the World Trade Organisation; more than 35% of the Organisation of American States; and just under 40% of the African union. The represent 26% of the South East Asian Association for Regional Cooperation; around 90% of the Caribbean Community and Pacific Islands Forum and over 20% of the Organisation of Islamic Countries.

He pointed out that litigation helped to advance rights, among Commonwealth countries came 'in a number of courtroom',..For Example, ' in Botswana;[1] Kenya;[2] Malaysia;[3] and Australia... In February 2015, the Supreme Court of Bermuda found in favour of a same-sex couple who complained about their inability jointly to adopt a child whom they were raising together. The Supreme Court of Bermuda held that the case was one of direct discrimination against unmarried couples because of their marriage status and indirect discrimination against them because of sexual orientation... Fiji (lately readmitted to the Commonwealth) adopted constitutional provisions in 2013 prohibiting discrimination on the grounds of ‘sexual orientation, gender identity and gender expression’.... A minor amendment was made in Samoa by the Crimes Act 2013 deleting ‘indecency between males’ from the Crimes Ordinance 1961. The same amendment in 2013 removed the previous offence of a ‘male impersonating a woman...’Rwanda where the President terminated a Bill to introduce a sodomy crime saying that it was not part of that country’s legal tradition (which had been Belgian). Similarly Mozambique adopted a new Penal Code in July 2014. This removed a previous provision criminalising same sex sexual conduct even though between consenting adults...The hard work for removal was done by the local legislature after local civil society organisations sought reform, supported by the United Nations.'

Kirby goes on to point out the culture of indifference in the Commonwealth and referred to the efforts of the EPG or Eminent Persons Groups to recommend support for a commissioner. The EPG at the Perth CHOGM  2011, found out,'Effectively, the Secretary-General’s negative opinion torpedoed the proposal for a commissioner.' When this is placed in context with addressing the political commitment to the rights of L.G.B.T individuals, he reports,

'Perhaps the most virulent opposition to the EPG recommendations on HIV/AIDS and sexuality came from The Gambia. On 9 October 2014, President Yahya Jammeh signed into law an amendment of the Criminal Code Act 2014 introducing life imprisonment for a broad and vaguely worded offence of “aggravated homosexuality”. He described homosexuality as “satanic behaviour”. According to the Human Dignity Trust website, 8 persons were arrested under the new law after November 2014, including a 17 year old boy. President Jammeh, who originally came to office following a coup d’état, claimed in January 2015, that L.G.B.T people and supportive Western nations, like the United States of America, were parts of an “evil empire”. Of one development, however, we can take satisfaction. Just prior to the 2013 CHOGM, President Jammeh announced that he was taking Gambia out of the Commonwealth. The Secretary-General, instead of taking the opportunity to express hopes for the country’s return, to the Commonwealth should have insisted, in a clear voice, that the nation’s laws were an affront to the Commonwealth Charter and to universal human rights...

He goes in his presentation, 'Not a week goes by, but reports are published concerning serious human rights violations in Commonwealth countries. These include: 

* The imposition by the State of Punjab High Court in Pakistan of the death sentence against a Christian mother of five Asia Bibi. Human Rights Watch says that the blasphemy law has long been unduly misused to target religious minorities;[4]

* The about turn of the Prime Minister of Malaysia, following an earlier promise to introduce repeal of that country’s Sedition Act, a legacy of colonial rule, adopted first to deter antagonistic protest against the Government but used now for contemporary means of control;[5] and

*The complaints in the UN Human Rights Council against the alleged refoulement by Australia of Sri Lankan refugee applicants arriving in recent years by boat. These steps were part of a legal regime to which the refugee applicants have been subjected, under successive governments, to “enhanced screening process”.[6]  '

What the presentation did was to offer insight into how countries of the commonwealth value human rights in practice and how present weak mechanism and political responses of the commonwealth has helped to perpetuate abuses. More precisely, it offers, a context into, the not so unique practice of ignoring the civil, social and political rights of citizens.    

  

Belize is no different in this regard, the Maya's of Belize fought for close to 30 years for customary land rights acknowledgement and used the courtroom  as a tool to hold the state accountable for its lack of recognition. It finally succeeded in 2015. The strength and effectiveness of Civil Society,it seems, in using democratic tools like, international systems at the OAS, UN or national and regional courts, seems to be the last bastion of upholding commonwealth values in practice. What is clear is that Civil Society has a clear role in advancing rights, in an environment where political leader lack knowledge about their legal responsibility to their L.G.B.T citizens. This is reflected in in the idea that that L.G.B.T issues is a Western Imposition,despite, constitutions across the commonwealth, which speaks to all citizens rights. For Belize, the education, laws, religion, political system are western concepts that have been adopted already. The laws specifically, were adopted from the British. More precisely, the constitution, does not say fundamental rights extends only to heterosexuals and as such, leaders already have a legal responsibility to protect all their citizens. Regionally, among CARICOM member states political leaders, seems to play on national values, which is self-serving that reflect, the self-interest and personal prejudice of political leaders willing to absolve their legal responsibility. So what makes leaders resist acknowledging their legal responsibilities? Is anyone guess, one can theorize, personal prejudice, never meeting anyone L.G.B.T, being in the closet themselves, self-interest in sustaining personal power, are just some assumptions.  

What is clear,is that courtroom process is just one layer in the march to equality, shadow reports in international treaty obligations, a regional court in the Caribbean and public engagement around diversity, seems to be the compliment.

In a process in 2011, U.N.D.P in collaboration with WIN Belize was able to organize a National Dialogue on Human Right where Michael Kirby appeared by video at the Radission in Belize. We influence that process and saw, the planning given life in the process.

It was clear, however, that U.N.D.P role is to provide technical assistance, as it maintains a fragile balance of diplomatic relations and supporting civil society in rights engagement in Belize. To have call our government to task, would have disturbed its diplomat standing. Furthermore, in advocacy, one realises that its about timing, strategy, human relations and politics and that getting attention for an issue can be either a cloudy or clear process. 

It is clear to me that L.G.B.T advocates domestic and international is affected by political messages and that we have a responsibility to share strategies to help transform policy norming, development interventions, mechanisms and laws into a process that is accessible, reliable, and helpful in holding national system accountable for the lack of protections that exists. More importantly, international spaces are vital, in leverage political engagements, nationally. This also applies to international spaces that can be used to advance funding targeting areas, policy priorities and development positions on a global scale. In the end, the idea that we can progress with our rights, in societies that are accustom to marginalising groups, is to ignore fundamentally that no society will just acknowledge rights of a marginalised group without opposition. 

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[1] “Gaberone High Court Ruled in Favour of LGBABIBO Barred from Registration by Department of Labor & Home Affairs” 14 November 2014.

[2] Court is considering an application the National Gay & Lesbian H.R. Group to be registered as a NGA, Kenya..

[3] Court of Appeal of Malaysia, 7 November 2014, Khamis v State Government of Negeri Sembilan and Ors (Prohibition on cross-dressing held void).

[4] The Australian, 13 February 2015, 8 (“Pakistan to Defend Blasphemy Accused”).

[5] BBC News, Asia, 2 July 2013 (“Malaysia PM Najib Razak makes sedition pledge” but see “Malaysia’s creeping authoritarianism”, Wall Street Journal, 17 March 2015, 12.

[6] E. Howie, “Understanding Australia’s Opposition to the Investigation by the Human Rights Council of Sri Lanka’s War Crimes”, CHRI, Newsletter (2014) Vol. 21, no. 2, 5.