The Equal Rights Review

The Equal Rights Trust The Equal Rights Review

The Equal Rights Trust (ERT) is an independent international organisation whose Promoting equality as a fundamental human right purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice. and a basic principle of social justice

Established as an advocacy organisation, resource centre and think tank, ERT discrimination, developing strategies for translating the principles of equality into practice.focuses on the complex and complementary relationship between different types of In this issue: ■ The Ugandan anti-homosexuality bill Chair of the Board: Bob Hepple ■ Northern Ireland transformed Board of Directors: Sue Ashtiany ▪ Tapan Kumar Bose ▪ Shami Chakrabarti ▪ by affirmative action Claire L’Heureux-Dubé ▪ Gay McDougall ▪ Bob Niven ▪ Sonia Picado ▪ Michael Rubenstein ▪ Theodore Shaw ▪ Sylvia Tamale ■ HIV-based discrimination in China Founding Chair: Anthony Lester ■ Gender equality jurisprudence Executive Director: Dimitrina Petrova in Africa Staff: ▪ James Fitzgerald (Advocacy ■ Testimony from Western Sahara ▪ Ellen Leaver (Legal Intern) ▪ activists KatherineJarlath Clifford Perks (Legal(Legal Researcher)Officer) ▪ Kelly Scott (Executive Assistant)and Communications ▪ Serap Yildirim Officer) (Financial and Administrative Manager) ■ Role of the judiciary in developing equality Consultants: Felicitas Aigbogun ▪ David Baluarte ▪ Amal De Chickera ▪ Stefanie Grant ▪ Muhsin Hendricks ▪ Chris Lewa ▪ Pratibha Menon ▪ Elizabeth Mottershaw ▪ ▪ Gail Saliterman Laban Osoro Volunteers: Anne-Marie Forker ▪ Vania Kaneva

Sponsors: Arcus Foundation ▪ Ford Foundation ▪ J. M. Kaplan Fund ▪ King Baudouin Foundation ▪ Network of European Foundations ▪ ▪ ▪ Tides Foundation ▪ UK Department for International Development ▪ UK Foreign Oak Foundation Open Society Institute

and Commonwealth Office The Equal Rights Review Volume Four (2009) Four Volume Review Rights The Equal Biannual publication of The Equal Rights Trust Volume Four (2009)

Contents

3 Editorial The Sexual Orientation Frontier

Articles

7 Christopher McCrudden, Raya Muttarak, Affirmative Action without Quotas in Heather Hamill, Anthony Heath Northern Ireland

15 Wan Yanhai, Hu Ran, Guo Ran, Discrimination against People Linda Arnade with HIV/AIDS in China

26 Sibongile Ndashe, Solomon Watch the Courts Dance: Litigating the Right . Sacco to Non-discrimination on the Ground of Sex

35 Amal De Chickera Through the Lens of Dignity: An Essay on . Equality and Liberty Special

49 Sylvia Tamale A Human Rights Impact Assessment of the . Ugandan Anti-homosexuality Bill 2009

58 ERT Legal Brief on the Ugandan Anti-homosexuality Bill 2009

71 Naz Foundation v. Government of NCT of Delhi and Others: ERT Case Note Testimony

77 Torture and Discrimination in Western Sahara

Interview

87 Equality in the Courts – A Judicial Perspective: ERT talks with Claire L’Heureux-Dubé and Kate . O’Regan Activities

99 Jarlath Clifford Workshop Report, Mumbai, 12-13 December 2009

109 Jim Fitzgerald The Equal Rights Trust Advocacy

116 Update on Current ERT Projects

120 ERT Work Itinerary: July – December 2009 2

Editor: Dimitrina Petrova

The Equal Rights Review is published biannually by The Equal Rights Trust. The opinions expressed in authored materials are not necessarily those of The Equal Rights Trust.

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The Equal Rights Review, Vol. Four (2009) 3 Editorial

The Sexual Orientation Frontier

The second half of 2009 contained two very dif- tion on the basis of sexual orientation or gender - identity very often intersects with other forms of discrimination, for example with discrimina- judgmentferent days in of the the Nazglobal Foundation struggle for case, LGBT decrimi equal- tion on the basis of HIV/AIDS status, as shown by ity. On 2 July 2009, the Delhi High Court, in its 2009, an absurd bill proposing to criminalise - nalised homosexuality in India. On 14 October- sistingWan Yanhai homophobic and others legislation in this issue. increasingly On the othermeet ure to report homosexuals to the police within withhand, opposition cultural and from religious heterosexual justifications rights for advo per- 24even hours, the promotion was introduced of LGBT in rights the parliament and the fail of cates, on the basis of the universality of human Uganda. So, where are we heading: forward, to- rights and the ensuing need for comprehensive- wards a growing global recognition of the equal ness and consistency of equality legislation. greater discrimination against people on the ba- sisrights of theirof LGBT sexual persons, orientation, or backwards, gender towards identity universal right to equality that The Equal Rights and gender expression? It is in this nexus between LGBT rights and the

According to the Yogyakarta Principles, sexual typesTrust situates of discrimination, its own efforts. its strengthAs the Trust's is in focus ap- orientation is understood to refer to each per- is on the complex relationship between different- - tional and sexual attraction to, and intimate and outproaching of an integrated LGBT equality equality from agenda. a unified In perspecpractical son’s capacity for profound emotional, affec terms,tive and this not means allowing that wherever LGBT equality our work to be takes left gender or the same gender or more than one us, be it to a round-table on draft anti-discrimi- sexual relations with, individuals of a different nation legislation in Nairobi or a training work- each person’s deeply felt internal and individual shop for equality lawyers in Mumbai, we make a experiencegender. Gender of gender, identity which is understood may or may to notrefer cor to- respond with the sex assigned at birth, including the personal sense of the body (which may explicitlypoint – and on if the needed agenda. a fuss – about having LGBT representatives in the room and LGBT equality appearance or function by medical, surgical or The rights to equality and non-discrimination otherinvolve, means) if freely and chosen, other expressions modification of of gender, bodily apply to all people regardless of their sexual including dress, speech and mannerisms. orientation or gender identity. The Equal Rights Trust incorporates this understanding in all its Few issues within international human rights projects, advocating that states should give effect to the principles of equality and non-dis- controversy among states. Yet the good news crimination on the basis of sexual orientation can compete with LGBT rights for a record of and gender identity in their national constitu- legitimately extricated from universal human tions or other appropriate legislation, if not yet is that LGBT rights can no longer be easily or far from being an exception, is rather the rule in achieved through amendment of legislation or therights. phenomenology On one hand, of multipleinequalities. discrimination, Discrimina- judicialincorporated interpretation. therein. In “Giving its legal effect” opinions, may ERT be

The Equal Rights Review, Vol. Four (2009) 4

often seeks to derive, if possible, the protection apart from the legal indivisibility characterising human rights, there is also the issue of human norms and doctrines already existing in national rights politics, an area governed by the stark divi- andof equal international rights for LGBT law. This persons approach from concepts, of walk- sion in political interests. Dr Tamale draws atten- ing on a sometimes narrow and shaking bridge tion to the crucial question why homosexuality, a of legal continuity is complementary to the ap- phenomenon that has always existed in African proach of ringing alarm-bells about the real-life as well as non-African societies, is being politicised in her country at this particular moment, - and what political purpose is being pursued, at triesrift between with illiberal the capabilitiesblockages to of the LGBT recognition and non- of this point in time, by the obsession with people’s LGBT persons to participate in society. In coun their bedrooms. LGBT rights, both approaches are necessary. different ways of making love in the privacy of discrimination is very empowering, as it allows In an exciting current project, ERT is looking toERT’s construct unified both framework legal continuity on equality and and political non- carefully into places that many would deem

- and the sources of shari'a law. Islam does contain edsolidarity in the Specialaround sectionLGBT rights. of this The issue, usefulness featuring of someharsh strongor hopeless commitments for LGBT to rights, equality namely and tolerIslam- anthe ERT unified legal framework submission on onequality the infamous is demonstrat Ugan- ance that have been eclipsed by recent cultural dan Anti-homosexuality bill. ERT’s analysis from polarisations. There is no reason why equal- the perspective of major concepts of equality law ity advocates should make a gift to misogynist shows that the Bill breaches the equality provi- and homophobic interpreters of Islam by shy- sions of the Constitution of Uganda itself. The ing away from the vast universe of this religion, ERT brief further demonstrates that discrimina- with its plurality of meanings and labyrinths of tion on grounds of sexual orientation or gender interpretation. This universe, after all, is the only identity is covered – and outlawed – by the ma- cultural home to millions of people, including jor international human rights instruments, as thousands of lesbians, gays, bisexuals and trans- interpreted by UN treaty bodies in recent years. gender persons. The Declaration of Principles on Equality, which the Delhi High Court in Naz cited as the “current The vigorous domestic and international back- international understanding of the principles on lash of condemnation of the Ugandan Anti-ho- - mosexuality Bill indicates that regressive ho- porating personal characteristics into the class mophobic moves anywhere in the world today equality”, contains the criteria, or tests, for incor- have a limited chance to succeed. A cultural shift in attitudes towards sexual minorities is taking thoseof “prohibited tests. grounds of discrimination”; “sexu place in our time. In South Africa in the 1990s, al orientation” and “gender identity” clearly pass laws criminalising homosexuality joined apart- Dr Sylvia Tamale, a Ugandan lawyer and mem- heid laws in the history museums. India has now ber of the ERT Board of Directors, whose speech on the Anti-homosexuality bill is included in the and other equality movements that will send the Special section of this issue, also stresses the criminalisationfollowed suit. It of is homosexuality the joint effort to the of archives the LGBT impossibility to isolate the rights of homosexu- of history in a growing number of countries in als from other rights, not only in legal terms but the South, and open the road to realising equal also from the point of view of enforcement. But

rights for LGBT people.

Dimitrina Petrova

The Equal Rights Review, Vol. Four (2009) 5 ARTICLES

"The Northern Ireland experience shows that progress can be made towards fair employment without resorting to quotas that would probably be politically unacceptable in the rest of the UK or in Europe."

Christopher McCrudden, Raya Muttarak, Anthony Heath

The Equal Rights Review, Vol. Four (2009) 6

The Equal Rights Review, Vol. Four (2009) 7

Affirmative Action without Quotas in Northern Ireland

Christopher McCrudden, Raya Muttarak, Heather Hamill, Anthony Heath1 New research has shown that Northern Ireland’s innovative affirmative action programme has resulted in improvements in fair employment, both for Catholics and Protestants.2

Historically, Catholics and Protestants in not only a direct association between the Northern Ireland were typically highly segre- agreements and positive change, but that gated from each other in employment, with Catholics being concentrated in particular on employers overall, with a general move sectors of the labour market, and in par- towardsthat there fair appeared employment. to be "spill-over" effects rates two to three times as high as those of In this article, we provide a non-technical ac- Protestants.ticular firms, But and for suffering the last twentyunemployment years, count of this research and some preliminary - "headline" results, together with a brief anal- tive action has used detailed monitoring for ysis of some policy implications. More de- Northern Ireland’s programme of affirma tailed discussion, together with an account where necessary, to ensure for both groups of research methods and data analysis will "fairfirms’ participation" composition plusin employment, agreed action avoiding plans, be published subsequently. the setting of quotas. 1. Background The legislation requires employers to carry out regular reviews of their workforce com- Northern Ireland has, since 1989, had a re- position to determine whether there is fair markable and innovative programme of af- employment, and to undertake remedial ac- - tion where required. These reviews enable forcement measures to ensure that both the Commission responsible for enforcement communitiesfirmative action in Northern that aims Ireland to use - Catholics legal en of the legislation (from 1990 to 2000, the and Protestants - enjoy "fair participation" in Fair Employment Commission; from 2000, employment. the Equality Commission) to identify those The Northern Ireland approach is radically representative and to initiate agreements - withemployers them forwhose improvement. workforce is insufficiently ity of opportunity in the rest of the UK and different from the approach to inequal study over the past two years into the extent programmes.is also somewhat The different success (or from otherwise) the much toThe which Nuffield any Foundation changes to fundedworkforce an in-depth compo- ofbetter-known the Northern American Ireland approach affirmative may action well sition can be attributed to the fair employ- have important implications for other juris- ment policies. The interdisciplinary team of dictions such as the EU that are considering how to tackle issues of fair employment (for researchers from Oxford University found

The Equal Rights Review, Vol. Four (2009) 8

example in the context of ethnic inequalities greater in periods when the programme rein the labour market). ceived greater political emphasis from the federal government than in periods (such as 2. Affirmative Action in Other Countries the Reagan years) when government relied more on market forces to remedy dispari- ties. been practised in a number of countries, mostAffirmative notably action in India, in the where labour quotas market have has 3. The Northern Irish Approach to Fair been established for the employment of Employment members of the Scheduled Castes, Scheduled - - lic sector jobs, and in the USA where federal tablished by the Fair Employment (North- Tribescontractors and Otherare obliged Backward to show Classes evidence in pub of ernThe Ireland) affirmative Act action 1989 (amending programme and was sub es- fair employment with respect to gender and stantially replacing the previous 1976 fair ethnicity in order to qualify for government employment legislation which essentially contracts. There are also programmes in prohibited discrimination but which did not South Africa, Malaysia, Canada, Namibia, Fiji - mote fair employment). This legislation was paper focuses. require any significant positive action to pro- and finally in Northern Ireland, on which this - The American programmes have been by subsequently modified by the Fair Employ far the most extensively researched. Several ment and Treatment (Northern Ireland) Or studies have compared the employment Theder 1998Northern (FETO). Ireland legislation imposes on growth of females and minorities in estab- all regulated employers, both public and pri- lishments that are federal contractors (and vate, a duty to carry out regular reviews of the composition of their workforce in order to determine whether there is fair participa- 11246so subject3 employers to affirmative with action)federal with contracts that tion of both communities, and to undertake of non-contractors. Under Executive Order- remedial action where fair participation has not been achieved. The major tool available are thenrequired obliged to file to address reports thisindicating by making “un under the legislation to the principal legal derutilization” of women or minorities and- enforcement agency (initially the Fair Em- ten goals and timetables. Contractors may ployment Commission (FEC), and from 2000 becorrective sued and efforts barred including from federal the contractsuse of writ if the Equality Commission for Northern Ire- - land (ECNI)) was to select regulated employ- tive action. ers for investigation and, where deemed nec- they are judged to be not pursuing affirma essary, to establish agreements to improve Whilst there is some disagreement about the the representation of the under-represented group. While the majority of agreements that the federal contractor programme as a have been established to remedy Catholic wholesize of the has effects, improved there the is proportionsgeneral agreement of Af- under-representation, there have also been rican Americans and of women both in em- a number designed to remedy Protestant ployment generally and in managerial posts employers. under-representation in specific regulated specifically. The gains, however, have been

The Equal Rights Review, Vol. Four (2009) 9

- primarily employed persuasion rather than ly included process requirements and sub- enforcement. stantiveThese affirmative requirements. action They agreements involved: typical In summary, the most notable features of the ■ Changes in the way in which regulated Northern Ireland legislation and approach to employers conducted their personnel functions, particularly by formalising advertising, hiring, promotion, dismissal, and equal ■affirmative Its symmetrical action are: character – the legislation opportunities training; applies both to Catholic and to Protestant under-representation; ■ deemed most appropriate for regulated em- ■ A concern with outcomes and not solely ployers, Specified such affirmativeas the use of action targeted measures adver- with process (although issues of process are tising to the under-represented group, and by no means ignored); statements in advertisements particularly welcoming applications from the under-rep- ■ The annual monitoring of regulated em- resented group; ployers composition and the publication of these returns identifying individual regulat- ■ ed employers by name; which regulated employers committed themselves The toadoption achieving of specified them in ordernumerical to reduce goals ■ under-representation, together with timeta- account of the availability of suitably-quali- bles by which these numerical targets would A definition of fair participation that takes be achieved. area; fied personnel in the relevant geographical No reverse discrimination or quotas was ■ The use of legally-binding and voluntary permitted or could be required by the FEC/ agreements depending on the judgement of ECNI. (A major exception to this approach in- the Commission as to which is more likely to be successful to achieve compliance and re- where a form of quota system has been in dress under-representation; operationvolves affirmative since the action implementation in the police of force the Patten Report of 1999.) ■ The limited measures that employers were permitted to take in order to redress under- There are two main sorts of agreement, representation in comparison with other namely legally enforceable agreements and countries such as the USA or India adopting voluntary agreements negotiated with Com- of the agreements (around two-thirds) have 4.affirmative The MacBride action Principlesmeasures. beenmission voluntary staff. In ones. practice, The Commission the great movedmajority towards legally binding agreements when it Another politically important reason for was unable to secure a satisfactory voluntary agreement. Ultimately these legally bind- Northern Ireland was provided by the cam- ing agreements are backed up by sanctions paignemployers to establish to engage the in MacBrideaffirmative Principles. action in although in practice the Commission has This was a campaign by US-based activists,

The Equal Rights Review, Vol. Four (2009) 10

largely from the Irish-American community, - together with some human rights groups, to put pressure on the British government to staff member to oversee the company’s af act more decisively on fair employment in principles.firmative action efforts and the setting up of timetables to carry out affirmative action campaign was to put pressure on American In addition to the above, each signatory to corporationsNorthern Ireland. with One subsidiaries of the main in aims Northern of the the MacBride Principles was required to re- Ireland to adopt a set of anti-discrimination port annually to an independent monitoring principles called the MacBride Principles. agency on its progress in the implementation These were named after and sponsored by Sean MacBride, a controversial Irish states- of these Principles. (This was specified in the Companies1986 amplified were version invited of to the indicate Principles). their ac- inman the who Irish had Republic, been chief founder of staff of Amnesty of the IRAIn- ternational,during the 1930s, and recipient Minister of of the Foreign Nobel Affairs Peace The model chosen was that previously adopt- Prize in 1974. edceptance in the Sullivanof the Principles Principles by relating “signing” to Souththem. Africa although, unlike in South Africa, there The MacBride Principles were launched in was no substantial move to force divestment 1984. American companies with subsidiaries from companies that were unwilling to sign in Northern Ireland were invited to commit the Principles. The MacBride Principles had themselves to a series of non-discrimination no legal force in Northern Ireland, but there was the risk of economic sanctions from US operations in Northern Ireland. These prin- state or non-governmental activity. For ex- andciples affirmative had much in action common principles with the incontent their ample, some US jurisdictions (such as New of the agreements described above that were - reached with the FEC/ECNI. They included, tions in Northern Ireland could lose state or inter alia: cityYork contract City) legislated bids if their that firms Northern with Ireland opera subsidiaries were not implementing the ■ Increasing the representation of individu- MacBride Principles. als from under-represented religious groups in the work force, including managerial, su- The body monitoring the operation of the pervisory, administrative, clerical and tech- MacBride Principles in the United States was nical jobs; the Investor Research Responsibility Centre

■ All job openings should be publicly adver- with that of the FEC/ECNI agreements should (IRRC). A comparison of their effectiveness be made to attract applicants from under- economic sanctions in the case of MacBride representedtised and special religious recruitment groups; efforts should mightbe instructive. be expected On the to one strengthen hand, the their risk efof- fects, although the risks might be expected ■ The abolition of job reservations, appren- - to recede (particularly following the Belfast/ ment criteria, which discriminate on the ba- to decline over time as the “troubles” began- sisticeship of religion restrictions or ethnic and origin; differential employ sure from activists accordingly might have Good Friday Agreement of 1998) and pres ■ The appointment of a senior management institutional authority and legal power of the been reduced. On the other hand, the greater

The Equal Rights Review, Vol. Four (2009) 11

FEC/ECNI to check on implementation of the ■ To draw policy recommendations. agreements might be expected to increase 7. Key Findings

5.their Lawsuits long-term effectiveness.

A third source of pressure for regulated 1.The Agreements study identified were four positively key findings: associated employers to engage in fair employment with improvements in fair employment, both practices, analogous to lawsuits in the US, those designed to improve Catholic repre- is provided by cases alleging discrimination sentation and those designed to improve brought against regulated employers by indi- Protestant representation. Voluntary agree- vidual complainants. From 1998 these have been heard in the Fair Employment Tribunal, legally-enforceable Article 13 agreements; which hears complaints of discrimination on ments proved to be more effective than the the basis of religion or political opinion. The - ing employment and increasing shares in managerial/professional2. Agreements were effective occupations both in –boost i.e. FET has the power, if it finds in favour of the the gains were not restricted to workers in complainant, to make a financial award (with low skill occupations; 6.no Our upper Research limit specified). Objectives 3. There was no sign that either Fair Employ- ment tribunal cases or the MacBride Princi- ples had lasting impacts on individual regu- ■Our To research assess whether had five mainagreements objectives: concluded lated employers; between employers and the Commissions had been successful in improving the ex- 4. Improvements in fair employment were tent to which regulated employers moved not restricted to regulated employers that towards fair employment (both in occupa- had agreements – there appeared to be tional and employment terms), and to assess whether the legally-enforceable or the vol- such that there was a general move towards fair"spill-over" employment, effects with on a clear non-agreement decline in "ex firms-

■untary agreements were more effective; 8.treme" The Effectsfirms at of both Affirmative ends of the Action spectrum. Agree - Fair To Employment investigate Tribunal, whether and other the influences MacBride ments in More Detail Principleson firms such increased as individual progress cases towards taken fair to

■employment To evaluate in individualthe overall firms; success of the af- Turning, first, to the various measures of- licCommission agreements enforcement (on the growth activity, of Catholicwe find employment legislation; employment)significant effects and forboth voluntary for voluntary Protestant Catho firmative action programme set up in the fair agreements (on the growth of Protestant em- ■ To understand the principal mechanisms which facilitated progress towards fair employment; Moreover,ployment). in In the contrast, case of theCatholic effects agreements, of legally- enforceable agreements are not significant.

The Equal Rights Review, Vol. Four (2009) 12

- ly enforceable agreements is clearly smaller both on the share of Catholic employees in thanthe magnitude that for the of voluntary the coefficient agreements. for the legal regulatedWe also found employers significant where and there positive were effects less than 36% Catholics, and on the share of Prot- - estant employees where there were less than untary Commission agreements have been 41% Protestant employees. This can prob- The most striking positive finding is that vol

andmore to effectiveProtestant agreements,than the legally to agreements enforceable beingably be located attributed in the to two "spill-over" tails of the effects distribu with- concludedones. This under finding the applies Fair Employment both to Catholic Com- tiona declining (Figure number 1). As Figure of non-agreement 1 shows, the distri firms- mission and under its successor the Equality bution of regulated employers shifted from a bimodal one in 1990 to a unimodal one both on overall employment in the concern andCommission, on the share and toof the professional effects of andagreements mana- tails of the distribution. gerial employees. It thus seems to be a very in 2005 with fewer firms located in the two robust result.

Figure 1: Distribution of regulated employers by percentages Catholics: 1990-2005 (non- agreement regulated employers)

No-agreement Concerns .02 .015 .01 kernel density kernel .005 0

0 10 20 30 40 50 60 70 80 90 100 Percentages Catholics

1990 1995 2000 2005

Source: Monitoring return data, 1990 – 2005.

The Equal Rights Review, Vol. Four (2009) 13

Apart from these positive results, we have - - ership from the top of an organisation is dividual Fair Employment Tribunal activity Our qualitative research suggests that lead found little evidence for direct effects of in reforms. Actual implementation of reforms of legally enforceable Commission agree- iscrucial bound in to theinvolve effective a degree implementation of discretion on of ments,and not or a greatfor MacBride deal of evidence agreements. for the effect the part of lower-level employees: formal - If this analysis is correct, then reforms of er rule out discretion, and how that discre- the kind sought by the Commission in their tionprocedures, is exercised even mayif tightly well specified, depend upon can nev the agreements, requiring wider advertising and extent to which junior employees perceive outreach, can potentially play a bigger role that their seniors value the objectives. Vol- than reforms designed to eliminate discrimination at the point of application. So even if typicallyuntary agreements, negotiated) where have senior been staff persuaded of the - offirm the concerned legitimacy (with of the whom exercise, agreements may thus are cialthe financial penalties incentives imposed) of lead tribunal regulated cases (the em- be more wholeheartedly implemented than ployerscosts of todefending reform their them selection as well as procedures the finan are legally enforceable agreements where (in itself an untested assumption), this may the leadership of the concern had to be com- pelled to accept the intervention. to the degree of under-representation in the concern.not in itself make a great deal of difference This still leaves open the question of why the MacBride agreements were less successful This is not in any way intended to deny the than the voluntary agreements negotiated importance of direct discrimination in hir- - - MacBrideby the Commission. agreements. One As American possibility subsid might- tioning, promotionof the sort that or firinghave been (although carried unfortu out on iariesbe the theydifferent may alreadybasis for havetargeting had infirms place for racialnately discrimination no field experiments have been of attempted discrimina in more professionalised and civil-rights ori- Northern Ireland). Rather our point is that ented personnel functions. additional processes, some of which might be regarded as constituting indirect discrim- Finally, it is important to recognise that our ination or deriving from prior beliefs about - likely discrimination (such as the "chill fac- fects of legally-enforceable or of MacBride tor"), may well be even more widespread but agreementsfailure to find on direct fair employmentevidence of positive within inef- may also be more susceptible to policy inter- dividual regulated employers does not in vention. any way imply that such agreements were without value. Here, our earlier distinction - - becomes highly relevant. The fact that the mentBut if activitythis argument is correct, for how explaining might we differenc explain Commissionbetween direct had effects the power and tospill-over impose legaleffects- es in the effectiveness of tribunal and agree- ly-enforceable agreements, and that it was tary and legally-enforceable agreements, or willing to exercise that power on occasion, betweenthe differences Commission in the andeffectiveness MacBride of agree volun- might well have made its task of securing ments, all of which aim to tackle recruitment voluntary agreements considerably easier. It practices? might also have signalled to other, non-agree-

The Equal Rights Review, Vol. Four (2009) 14

ment, regulated employers that the Commis- "delivered" these favourable outcomes appeared to be: of these agreements on other regulated em- ployerssion "meant might business". well have The been signalling important effect for ■ The professionalisation of Human Re- the overall success of the programme. sources within regulated employers. In particular, the appointment of a designated employee to ensure compliance with FEC/ECNI 9. Policy Implications guidelines.

The Northern Ireland experience shows that ■ Formal advertising and recruitment meth- progress can be made towards fair employ- ods rather than by word of mouth. ment without resorting to quotas that would probably be politically unacceptable in the ■ Targeted advertising of vacancies to en- rest of the UK or in Europe. courage applications from the under-represented group. A fundamental aspect of the Northern Ire- ■ The introduction of criteria-based redun- land programme is the monitoring of em- dancy policies. ployees, the targeting of employers by the Commission where progress is not being These measures do not appear to have in- made, and the use of agreed programmes volved major administrative burdens on and timetables to achieve progress towards - fair employment. The key mechanisms that ceptable. firms and have proven to be politically ac

1 Muttarak is a post-doctoral researcher in the Department of Political and Social Sciences, European University Christopher McCrudden is Professor of Human Rights Law at the Faculty of Law, University of Oxford. Raya Institute. Heather Hamill is a University Lecturer in Sociology and Fellow of St Cross College, University of Oxford. Anthony2 Heath is Professor of Sociology in the Department of Sociology, University of Oxford. Foundation for their encouragement. We could not have undertaken this work without the support of the Equality Commission This work was for Northernsupported Ireland by the whoNuffield granted Foundation us access award to the OPD/33573. data and we We are are very very grateful grateful to tomany the individualNuffield of the IRRC) for her invaluable help on the MacBride Principles together with other members of our Advisory staffBoard: at Evelyn the Commission Collins, Jonathan for their Leonard, help in Richardmanaging Lempert, the dataset. Tim Cunningham,We would also Ian like Shuttleworth to thank Heidi and WelshSir Bob (formerly Hepple. 3 28 September, 1965, 30 F.R. 12319.

The Equal Rights Review, Vol. Four (2009) 15

Discrimination against People with HIV/AIDS in China

Wan Yanhai, Hu Ran, Guo Ran, Linda Arnade1

In many ways the spread of HIV/AIDS in - China follows a familiar pattern to that in 2 many other countries. For example, there is of high infection among specific sub-popula increased HIV risk and transmission among tions and in some localities.” vulnerable groups such as drug users, sex four haemophiliacs from Zhejiang province workers, men who have sex with men, and discoveredFollowing the that first they HIV/AIDS were infected case in 1986, with migrant workers. However, the increas- HIV/AIDS due to contaminated blood in an ing rate of heterosexual HIV transmission, imported blood coagulation factor from a especially among minority groups and the foreign blood supply. In 1989, the Yunnan - Ministry of Health found that 147 men at the nated blood transfusions in the mid 1990s border of Burma and China were HIV posi- havepresence made of the“AIDS Chinese villages” HIV/AIDS due to contami situation tive. By 2004, the number of reported HIV 3 unique. cases was approximately 107,000. From 1995 onwards, the growth of “AIDS In this article, we aim to outline how the his- - tory of HIV/AIDS in China has led to the cre- nated blood supplies, caused the HIV/AIDS ation of HIV/AIDS prevention programmes epidemicvillages”, whichto increase developed over large due areas to contami of rural - central China.4 Consequently, many farmers, women and children already living in poverty for “targeted” populations. We will also dis risk of HIV face stigma and discrimination on became infected with HIV/AIDS. The source cuss how different groups living with or at multiple levels. Lastly, we will provide a brief of women’s infection was primarily medical overview of some relevant advocacy and le- operations, for example during gynaecologi- gal rights work undertaken by civil society to cal operations or during childbirth, and their combat such stigma and discrimination. husbands who sold blood in blood stations or received blood in hospitals. Children fre- 1. The History of HIV/AIDS in China quently became infected through their parents and mortality due to infection was ini-

HIV/AIDS patient appeared in China. Since which family members realised that they had then,It has Chinesebeen almost people thirty have years fought since to thecontrol first tially high. This was often the first point at the HIV/AIDS epidemic. However, to this - day, HIV/AIDS infection rates continue to in- been affected by HIV/AIDS. The effects of a crease in China, even though according to the becameparent suffering orphans andfrom experienced HIV/AIDS compound increased most recent China UNAIDS reports: povertyed the suffering and hardship. of their children who often

“China’s HIV epidemic remains one Recent trends indicate that the spread of of low prevalence overall, but with pockets the HIV infection is more prevalent through

The Equal Rights Review, Vol. Four (2009) 16

heterosexual and same sex sexual activity. lack basic education, have limited Chinese

are key targets in HIV/AIDS prevention pro- employment in their hometowns. In some Consequently,grammes in China. sex workers Furthermore, and LGBT HIV/AIDS people cases,language migration capabilities, is driven and are by unable their involve to find- prevention policies are poorly developed in ment in illegal activities in their home towns respect to migrant populations and research - indicates that presently China is facing the ties and barriers for access to HIV prevention challenge of the HIV prevalence in this sub- schemes.and regions9 which in turn presents difficul group.5 Sex workers, in particular female sex work- 2. HIV/AIDS-affected Regions and Target Populations spread of HIV/AIDS due to the expansion ofers, the have sex increasingly work industry been in affected urban centres by the Those who have been infected with HIV and the large scale migration which has oc- through blood transfusions include resi- curred within China as a result of economic dents in rural areas of central China (Henan development. At the same time, infections province is the most well-known area due to among men who have sex with men (MSM) wide-ranging media reporting) and haemo- and risky homosexual practices, such as un- philiacs in east China who received unsafe protected anal sex, continue to increase new blood products. The Chinese government has HIV infections.10 - minal care for these groups; however, many 3. Official HIV/AIDS Statistics began to coordinate efforts to provide ter contaminated blood transfusions spend their wholefamilies lives infected struggling and affected to obtain bysupport, HIV due jus to- prevalence in China remains relatively low, tice, and compensation from the local gov- atAccording an estimated to official 0.05% UNAIDS (0.04 to statistics,0.07%) of HIVthe ernments, hospitals and companies that sold total population. However, infection rates them contaminated blood products.6 some localities are extremely high.11 Intravenous drug users (IDUs) with HIV/ among some specific sub-populations and in AIDS are another target population, especial- By the end of 2009, an estimated 740,00012 adults and children were living with HIV, as Yunnan, Xinjiang, and along the border of Vietnam.ly in the drug Most trafficking IDUs are jobless,areas of andChina, may such be Health Education believes the true number the victims of drug circles. Eventually, many toalthough be higher, the sinceBeijing many AIZHIXING Chinese Institutepeople are of become infected with HIV. In Xinjiang, the reluctant to be tested due to fear, stigma and region with the fourth largest population of HIV infection in China, drug users make up infected through heterosexual transmission, - 16.0%discrimination. through Of homosexual the 740,000, transmission, 43% were ers.7 Migrant IDUs in urban centres, such as 32% through IDU, 8% through commercial theBeijing, highest Shanghai, proportion Chengdu, of HIV-positive and Wuhan suffer con- plasma donation and transfusion of infected - blood and blood products, and approximate- ed population, some of whom are also from ly 1% through mother-to-child transmission ethnicstitute minorities.a significant8 Many proportion of these of individualsthis affect (MTCT).13 Approximately, 91,000 or 12.3 %

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of people living with HIV/AIDS were infected through sexual contact between HIV positive discriminatory against migrants. As a pre- persons and their regular partners. HIV sufferers, it nonetheless is inherently must have a household or city registration permit,requisite documentation for benefitting which from themigrants policy, have one were transmitted through heterosexual contact,Of the 33% 48,000 through new homosexual infections in contact, 2009, 24%42% discriminatory in its application and further through IDU, and 1% through MTCT.14 marginalisesdifficulty accessing. migrants This who policy live with is indirectly HIV.

4. Some General Policies prevention in China, the law enforcement The “Regulations on AIDS Prevention and systemFor NGOs and working the lack in of thecooperation field of HIV/AIDS from the Ministry of Health are the two principal bar- - - edTreatment” in China towhich respond came to into the spreadforce in of March HIV/ tive and palliative treatment for everyone. AIDS.2006 Thewere regulations the first special provide legislation the fundamen draft- Practicalriers to ensuring and institutional effective barriersHIV/AIDS are preven cre- tal rights of people living with HIV/AIDS. For example, Article 3 states: - cultated to by promote both law safe enforcement sex through condom and official use “… No institute or individual shall amonghealth organisations;high risk populations, for example, since itcondoms is diffi discriminate against people living with HIV, are considered evidence of the sex trade. 15 Similarly, to obtain Methadone Maintenance Treatment (MMT), the main treatment for AIDS patients and their relatives.” heroin drug users16 of the most important HIV/AIDS prevention required from the police – which imposes so- andThe “Fourcontrol Frees regulations and One currently Care” policy operating is one cial and legal obstacles, specific for IDUs documents who may are be at an increased risk for HIV transmission due -positive persons to access treatment and to unsafe sharing of needles. In accordance medicinesin China. In through effect, four this basic policy provisions. enables It HIV with the provisions of new Chinese drug leg- provides people living with HIV/AIDS access islation adopted on 1 June 2008, police can to: (1) free anti-retroviral therapy (ART) test a drug user’s urine at any time17. If the medicine and treatment for rural and city result is positive, the person is liable to a residents who live in poverty; (2) free HIV prison sentence of at least two years. These consultations and HIV-antibody screenings, provisions create serious barriers in IDU’s which have been designated by medical in- access to healthcare not only due to the stig- stitutions; (3) free health counselling and matisation that many drug users experience prenatal guidance and delivery services; and but also as a consequence of the strict drug (4) free as well as timely perinatal mother testing policies. Many IDUs are reluctant to to child transmission (PMTCT) drugs and go to the police to acquire the necessary doc- infant testing reagents for HIV-infected umentation, without which access to MMT is pregnant women. The "one care" refers to impossible.18 subsidies for people living with HIV/ AIDS and patients who are in poverty. In spite of the broad benefits the policy bestows on

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5. Prejudice and Discriminatory Policies the result is that many students feel that they against People Living with HIV/AIDS in are being discriminated against rather than China protected.20

Many HIV-positive persons are unfairly or The employment experience for people with unjustly treated due to their HIV-positive sta- HIV is similar to the experience of students in tus and/or potential risk of infection, due to schools. It is not uncommon for a worker who prejudice, discrimination and stigmatisation. has tested positive for HIV to be persuaded to In 2008 a survey conducted by the China leave work. In some informal and small-scale HIV/AIDS Media Partnership (CHAMP) ex- privately-owned companies, people who are - HIV positive are often dismissed outright on ing that nearly 48% of respondents would the grounds that they have HIV.21 notposed like the to level have of dinner prejudice with that a person exists, living find with HIV/AIDS, and approximately 41% of At hospitals patients living with HIV/AIDS respondents would not like to have a co- often experience discriminatory treatment worker who is HIV-positive. In schooling, from doctors or nurses if their status is dis- about 30% of respondents thought that stu- closed or revealed. Although regulations ex- dents living with HIV/AIDS should not be ad- ist which require doctors to protect an HIV- mitted by the school to study with students positive person’s privacy and provide them who are not HIV-positive. When it comes to with the same medical treatment as other people infected with HIV/AIDS by drug in- patients, in practice privacy is widely denied. jection and/or sexual intercourse, about one Furthermore, doctors and surgeons often re- third of respondents think that HIV/AIDS is fuse to treat or operate on patients who are the punishment they deserve.19 HIV-positive. According to one study more than 12% of respondents had been refused medical care at least once since they tested social prejudice that people living with HIV/ positive for HIV. Consequently, many people AIDSLegal experienceand policy inmeasures much of oftenChinese reflect society. the living with HIV/AIDS are limited to health- Within the school system, for example, if a care treatment in designated healthcare de- student’s HIV-positive status is disclosed, partments which primarily fall outside the he/she will face a number of challenges. mainstream hospital system.22 For example, Schools often attempt to persuade the stu- in Beijing, there are only two hospitals which dent to move out of the shared dormitory. provide specialised medical treatment for This separation distinguishes HIV-positive people living with infectious diseases (in- students from others, discriminates against cluding HIV/AIDS). In is clear that the social them in access to education and increases prejudice and stigma fuel mistrust between their risk of harassment by other students patients and healthcare practitioners, and and teachers. In some cases, the school will they in turn fuel practices of non-disclosure likely put pressure on the HIV-positive stu- and hiding by patients of their HIV/AIDS sta- dent to study in isolation. The systematic dis- tus which invariably increases the risk for both patients and practitioners. is often borne out of a vision by educational providerscrimination that which they students are actually with HIV protecting suffer Discrimination is also prevalent in the Chi- students who are infected by HIV/AIDS. Yet, nese commercial insurance sector. People

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excluded and marginalised by government programmes due to stigma, discrimination, spiteliving of with the factHIV/AIDS that commercial experience insurance significant to - coverdifficulties the costs in obtaining of medical a health treatment insurance. for peo In- tivities. This section provides an overview ple living with HIV/AIDS has been available ofor howthe “illegality” discrimination of their against behaviours marginalised or ac since 2005, the provisions granting access to groups can by compounded by their HIV/ such insurance are extremely restrictive and AIDS status. in reality exclude a great number of groups at high risk of HIV/AIDS. For example, peo- High-risk groups experience acute discrimi- ple who have been infected with HIV/AIDS nation on the basis that they are perceived to through injecting drugs or through blood be living with HIV/AIDS. Multiple discrimination is also frequently encountered by these from commercial insurance. groups as their HIV status intersects and transfusions are sometimes unable to benefit compounds other characteristics, such as The extent of discrimination and stigma suf- ethnicity, occupation and sexual identity and fered by people living with HIV/AIDS is de- increases the detriment they experience. Dis- pendent on how a person became infected. crimination is meted out to high-risk groups For people infected by blood transfusions, in many social areas including but not limited to access to housing, residency permits, of stigma experienced tends to be lower. medical treatment, and education. Addition- Thissexual is based violence, on the or perception “by accident”, that the they level are ally, as many individuals in China are not well aware of the ways in which HIV transmission can occur, discrimination and harassment in who“blameless” have become victims infected and their through HIV statusconsen is- all stages of employment is prevalent. “not their fault”. On the other hand, people sual sexual intercourse or drug use tend to MSM experience increased levels of stigma, harassment and discrimination as their actions In China, MSM are at a high risk of HIV/AIDS are viewed negatively and their HIV-positive because of both stigma and discrimination.23 status is perceived to be the result of a bad or Recent research has shown that HIV infec- inappropriate decision. tion among MSM has increased from 0.4% in 2005 to 3.3% in 2007.24 Many MSM in Chi- 6. Stigma and Discrimination among na are unable to be open about their sexual “High-risk Groups” orientation and as a result may take part in risky behaviours; for example, younger male As set out above, HIV/AIDS is an issue that particularly vulnerable. MSM are further Chinese society. These include men who have marginalisedsex workers in known China asdue “money to the social boys” and are sexhas with affected men (MSM), many sex marginalised workers, migrants groups in family pressures associated with passing on - the family name from father to son and the resulting pressure to marry. MSM and other dedicatedand drug users.to working The Beijingwith these AIZHIXING groups and In endingstitute of the Health discrimination Education and (AIZHIXING) stigmatisa is- from being able to marry, or donate blood, - andLGBT frequently individuals experience continue discrimination to be prohibited in tion is necessary as these groups are often employment.25 tion that they suffer. Strong civil society ac

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Transgender People Transfusion-infected Persons

- Those who have been infected due to con- crimination. In Beijing, for example, many taminated blood supplies and transfusions Transgendermale to female persons transgender face persons significant are only dis able to dress and act as their female per- particular, haemophiliacs are at a high risk sonas in discreet venues, such as hotels or ofare contracting another highly HIV through affected transfusion. population.31 In In Karaoke rooms. In a survey conducted by the mid-1990s, many people were infected in this manner, especially in Henan, Shanxi, - and Sichuan provinces,32 and continue to AIZHIXING from December 2008 to January be denied access to treatment and compen- transgender2009 among people fifty transgender had been arrested persons, and AI sation33 approximatelyZHIXING found 50% that had approximately been threatened 20% by of victims and activists to speak out and de- the police.26 Additionally, research has found mand justice.. This For has example, galvanised during the the efforts events of that transgendered persons who engage in around World AIDS Day 2009, a group of sexual services often face harassment and people from Henan province who were HIV- insults from their guests and clients. positive went to Beijing to demand greater equality of treatment and compensation, de- Sex Workers spite political oppression.

Currently, sex work is illegal in China, yet a Intravenous Drug Users (IDUs) strong informal sex work economy continues to thrive in urban capitals such as Bei- - jing, Kunming, and Shanghai.27 Sex workers, tised, victimised and discriminated against in particular female sex workers face a great dueA final to groupassociations which withhas been HIV ishighly intravenous stigma deal of discrimination and stigma from cli- drug users. In China, the government has ents, family, police, and the Chinese govern- long viewed drug addicts negatively as “drug ment.28 that the rate of violence towards sex workers is high and An AIZHIXINGmay decrease research condom report use byfound sex addictsabusers” have and becomelawbreakers. the victims The result of stigma of this- workers and their clients.29 The report also tisationofficial perception and general is discrimination. that millions of34 Drug drug found that consumption of drugs and alcohol addicts are disproportionally subjected to often leads to unsafe sexual practices among questioning, forced urine tests, and interro- sex workers. Through in-depth interviews, gation by police and authorities. the report documented that many sex workers also face insults and abuse from their A high incidence of drug use is a growing partners. Beyond the social barriers that problem among the Uyghurs, a Muslim eth- put sex workers in a particularly vulnerable nic group living mainly in Xinjiang province HIV-risk category, many female sex workers are apprehensive about being tested for HIV young people, women, and migrants.35 A re- because if they test positive, they face losing incent western survey China,in Beijing, and which affects sampled in particular more their jobs or income. They also fear the risk than 210 active drug users, found that ap- 30 proximately 50% were Uyghur. Additionally, a survey conducted by the think tank known of being identified as being a sex worker.

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as the Research Centre for Health Develop- in the process of receiving medical treatment on Injection Drug Users in Beijing ment; (2) in the process of applying for so- found that among 503 Han Chinese drug us- cial security; (3) through community-based ers, 23 were HIV-positive -- a prevalence of home interviews for medical and health care; approximately 4.57%. However, out of 583 Uyghur drug users, 303 were HIV-positive, a prevalence of approximately 51.97%.36 (4) identification by the local community; Theand (5)disclosure identification of one’s by HIV the status media. may occur As a result of restrictions faced by migrants during a hospital stay in the process of rou- in gaining Beijing residency, many Uyghurs tine medical tests. Compulsory HIV tests are are denied access to necessary healthcare quite common in medical settings, especially treatment such as MMT.37 Data collected before operations, and a person’s HIV status must be disclosed to doctors. However, the only 11.9% of Uyghur drug users were able circulation of this information across the tothrough get access an to AIZHIXING the MMT during survey the shows period that of hospital may result in the patient being de- 2007 to 2009.38 Unfortunately, since this sur- nied medical treatment.40 vey, thirteen HIV-infected Uyghur drug users have died. In some regions, the emergence of projects which deliver medical care to patients at As discrimination against IDUs increases, their home has increased the likelihood that law and policy responses must target social a person’s HIV status would be exposed. At security provision which is currently not the community level, a person’s HIV status, available to IDUs in some provinces. Policies their drug use or prostitution histories are currently distinguish starkly between catego- kept by the local police. However, no strict ries of poor people: subsistence allowance is regulations or appropriate safeguards are in granted to those who live under the minimal place to ensure a person’s right to privacy is cost of living but denied to those who experi- protected, and therefore information can be ence poverty due to drug use or gambling.39 easily disclosed or misused. This is not only Furthermore, in many other areas IDUs are potentially harmful for the person living with disproportionately targeted for detrimental - and discriminatory treatment. Most employ- bers and close relatives, including children. ers refuse to employ drug users or those who HIV/AIDS, but can also affect family mem have previous experience of using drugs. couples who have been found to be HIV- AIZHIXING has documented cases where and discrimination, and crimes in the work- education and schooling for their children. place,Those suchwho doas theft,find work are often often blamed face prejudice on for- Inpositive other facecases, difficulties if a student in securingis found toaccess have to a mer or current drug users. Similarly in the family member who is HIV-positive, he/she wider community drug users and those with may be forced to take an HIV test. unjustly targeted for criminal activity. While the media can play a positive role in a history of drug use are easily identified and educating and providing the general popula- 7. HIV Status and Privacy Protection tion with information about HIV/AIDS care and prevention, it can be a double-edged A person’s HIV status can be disclosed in a sword violating people’s right to privacy number of ways in China. These include: (1) -

through the publishing of confidential medi

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cal and personal details about persons living (for those who are infected with HIV/AIDS with HIV/AIDS. through blood transfusion); (9) inclusion of vulnerable groups; and (10) inclusion of 8. Advocacy for the Rights of People Liv- HIV/AIDS and high-risk groups within a hu- ing with HIV/AIDS man rights framework in China.

Discrimination against people living with Environment for the Development of - HIV/AIDS NGOs cal treatment, employment, schooling and socialHIV/AIDS security is still in severemainland in the China. fields Faced of medi with discrimination, people living with HIV/AIDS politically sensitive issue such as HIV/AIDS, are unable to utilise relevant laws or regu- As an NGO working on a controversial and- lations to protect their rights.41 Therefore, - advocacy is very important in combating dis- isterAIZHIXING and obtain faces a various legal status barriers in China and chal and crimination and ensuring equality for those lenges. First, it is difficult for an NGO to reg disadvantaged not only by HIV/AIDS itself but by the social prejudice that surrounds forcedwithout to this register an NGO as is anot company. protected43 Second,by law. - Most HIV/AIDS NGOs have therefore been ducted three advocacy programmes aimed at with corporate burdens such as a liability for providingthe condition. awareness Recently, raising, AIZHIXING advocacy has con and highas a registeredtaxation. Third, company there AIZHIXING are very few is fundsfaced policy development support to combat the from the Chinese government which support

HIV/AIDS. is a lack of government transparency in pub- inequality suffered by people who live with licNGOs information that work and on HIV/AIDS.law enforcement. Finally, Inthere or- AIDS and Human Rights der to circumvent these organisational bar-

In 2008, the Chinese government drafted a issuing public appeal letters and statements National Human Rights Action Plan, which is andriers, initiating AIZHIXING’s lawsuits advocacy to urge has greater focused trans on- aimed at developing the government’s role parency at governmental levels and a more in protecting vulnerable groups and improving people’s lives. The Action Plan, however, to work.44 did not provide protection for the human equitable environment for HIV/AIDS NGOs rights of people living with HIV/AIDS. Thus, Difficulties Facing AIDS Activists during the Olympic Games for AIDS Human Rights we proposed ten key pointsin AIZHIXING’s relating to 2008 AIDS Chinese human Legalrights Reportwhich should have been included in the National Human Rights Action Plan.42 These points ofDuring HIV/AIDS the 2008 were Olympicsuppressed Games by the in ChineseBeijing, are: (1) eliminating HIV/AIDS discrimina- government.HIV/AIDS activists In Hubei and province, workers for in example,the field tion; (2) informed consent on HIV testing; (3) privacy protection; (4) access to drugs; people living with HIV/AIDS, in an attempt to (5) ensuring HIV-positive people’s rights in stoplocal thesepolice people confiscated from conductingthe identity petitions cards of employment and social security; (6) indi- in Beijing. Similarly, a woman who wanted vidual freedoms and security; (7) revision of compensation for HIV blood infection was detained, charged with blackmailing and im-

relevant laws; (8) financial aid for lawsuits

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prisoned for one year. Working to support funding multiple HIV/AIDS grassroots or-

- has helped decrease stigma and discrimina- these activists, AIZHIXING collaborated with tionganisations through the throughout establishment China, of centres AIZHIXING and theAIDS China treatment AIDS CBO and Network prevention to submit urging a let the support groups for the lesbian, gay, bisexual ter of appeal to the state council office for and transgender people, female sex workers, suppression of HIV/AIDS activists; (2) ad- and Uyghur communities, as well as through dressoffice tothe (1) cases conduct of people an investigation in Henan infectedinto the with HIV/AIDS through blood transfusions. Conclusionrelevant advocacy and policy efforts. - duced discrimination against people living Multiple levels of stigma and discrimination withAIZHIXING’s HIV/AIDS advocacy in China programs by helping have them re AIDS in China. The prevalence of HIV among rights. For example, victims of contaminated marginalisedaffect people sub-groups living with, further or at increasesrisk of HIV/ bloodknow transfusions and fight for or their forced legal drug and testing human are the discrimination against these groups. - There is a pressing need for further advo- fend their basic legal rights. Additionally, AI- cacy to protect the human rights of people able to call upon AIZHIXING lawyers to de in China, especially people living with HIV/ used other media outlets to raise awareness AIDS and other vulnerable populations, such ofZHIXING the rights has ofpublished people living multiple with letters HIV/AIDS and as sex workers, drug users, and migrants. as well as groups such as sex workers, mi- This is a challenge, given the political, social, grants, and drug users. Finally, by encourag- and cultural climate relating to social change ing a stronger network of community-based in China. A great deal of work remains to be HIV/AIDS organisations in China as well as done.45

Wan Yanhai is the Director of the Beijing AIZHIXING Institute of Health Education. Hu Ran is Research Assistant at2 See the UNAIDS same Institute. China, Key Guo Data Ran, 2009,is Research available Program at: Officer, and Linda Arnade is Consultant at the same Institute. http://www.unaids.org.cn/en/index/page.asp?id=178&class=2&classname=Key+Data.

3 Cell Research, Vol. 15, No. 1, 2005, p. 825–832, available at: http://www.nature.com/cr/journal/v15/n11/full/7290354a.html. He, Na and Detels, R., “The HIV Epidemic in China: history, response, and challenge”, 4 Zunyou, W., Keming, R. and Detels, R., “Prevalence of HIV infection among former commercial plasma donors in Health Policy and Planning, Vol. 16, No. 1, p. 41–46, available at: http://heapol.oxfordjournals. org/cgi/reprint/16/1/41. rural eastern China”, 5 Sexually Transmitted Infections, Vol. 81, 2005, pp. 442-447. Qian, H. Z., Vermund, S. H., and Wang, N. N., “Risk of HIV/AIDS in China: Subpopulations of Special Importance”, 6 Reuters, Reuters Profiles “AIDS Village” in China’s Henan Province, 15 March 2004, available at: http://www.the- body.com/content/world/art10302.html.

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7 China and Eurasia Forum Quarterly, Vol. 4, No. 3, 2006, p. 35-50. Gates, B. and Gang, S., “HIV/AIDS in Xinjiang: A Growing Regional Challenge”, 8 Harm Reduc- tion Journal, Vol. 3, No. 4, 2006. Qian, H. Z., Schumacher, J. E., Chen, H. T. and Ruan Y. H., “Injection Drug Use and HIV/AIDS in China”, 9

10 Testimony provided to Beijing AIZHIXING Institute by M. Rayila, December 2009. AIDS Education and Prevention, Vol. 1, Issue Choi, 1, K.,2004, Gibson, p. 19-30. D., Han, L. and Guo, Y., “High Levels of Unprotected Sex with Men and Women among Men Who Have Sex with Men: A Potential Bridge of HIV Transmission in Beijing China”, 11 See above, note 2.

12 Ranging between 560,000 and 920,000 adults and children.

13 See above, note 2.

14 See above, note 2.

15 State Council of the People’s Republic of China, Regulations on AIDS Prevention and Treatment, 2006, p. 1, available at: http://www.ilo.org/public/english/protection/trav/aids/laws/china2.pdf.

16 See Drug Policy Alliance, 2010, available at: http://www.drugpolicy.org/library/research/methadone.cfm.

17 Forced Drug Testing in China: Public Humiliation and Disruption of Daily Life, November 2008. Beijing AIZHIXING Research Institute, 18 Report on the Status of Human Rights of Chinese Drug Users, August 2008.

19 BeijingChina HIV/AIDS AIZHIXING Media Research Partnership Institute, and Partners, AIDS Related Knowledge, Attitudes, Behavior, and Practices: A Survey of 6 Chinese Cities, 2008, available at: http://www.pte-china.org/what-we-do/background/.

21 TestimonyIbid. provided to Beijing AIZHIXING Institute by R. Hu, December 2009.

22 Institute of Social Development Research, The China Stigma Index Report, 2009, available at: http://www.unaids.

org.cn/uploadfiles/20091124085420.pdf.23

24 Testimony provided to Beijing AIZHIXING Institute by Y. Ling,, November 2009. Nature, 455, 2008, pp. 609 – 611. Lu, L., Jia, M., Ma, Y., Yang L., Chen, Z., Ho, D. D., Jiang, Y. and Zhang, L., “The Changing Face of HIV in China”, 25 China Daily, 28 August 2009, available at: http://www.chinadaily.com.cn/2009-07/28/content_8485672.htm. Matos, N., “Lesbian blood donors take action over being shunned”, 26 The Survey Report on the Status Quo of Beijing Transgender Sexual Service Providers, 2009. Beijing AIZHIXING Institute, 27 - Sexually Transmitted Diseases, Vol. 31, Issue Huang, 11, pp.Y., Henderson, 695 – 700, availableG. E., Pan, at: S. http://journals.lww.com/stdjournal/Abstract/2004/11000/HIV_AIDS_Risk_and Cohen, M. S., “HIV/AIDS Risk Among Brothel-Based Female Sex Work ersAmong_Brothel_Based_Female_Sex.11.aspx. in China: Assessing the Terms, Content, and Knowledge of Sex Work”, 28 Research Report on Behavior, Rights Protection, and Service Needs of FSW in 2008, 2008. Beijing AIZHIXING Institute, 29

30 Testimony provided to Beijing AIZHIXING Institute by Y. Huso, December 2009.

31 Testimony provided to BeijingReport AIZHIXING on the InstituteCurrent Situation by W. Rong of ChineseRong, December Haemophiliacs 2009., 2006.

Beijing AIZHIXING Institute,

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33 Some refer to this as the “Henan AIDS scandal”.China Internet Information Center, 30 June 2004, available at: http:// china.org.cn/english/2004/Jun/99851.htm. “Much to Be Done in Henan AIDS Villages,” 34 Report on the Status of Human Rights of Chinese Drug Users, August 2008.

35 BeijingMingjian, AIZHIXING N., Wheeler, Research K. M., Cheng, Institute, J., Yonghai, D., Chen, W., Fitzwarryne, C. and Wang, J., “HIV/AIDS Prevalence Harm Reduction Journal, Vol. 3, No. 7, 2006, available at: http://www.harmreductionjournal.com/content/pdf/1477-7517-3-7.pdf. and Behaviors in Drug Users and Pregnant Women in Kashgar Prefecture: Case Report”, 36 Research Center for Health Development on Injection Drug Users, PowerPoint presentation, December 2009, on file37 with the authors. Report on the Status of Human Rights of Chinese Drug Users, August 2008.

38 Beijing AIZHIXING Research Institute, Beijing AIZHIXING Research Institute, August 2009.

39 Guo, R., “Overview of the Urban Uyghur Floating Population”, Social Security in the People’s Republic of China, available at: http://www.undp-povertycentre.org/publications/cct/2chine.pdf. Testimony provided to Beijing AIZHIXING Institute by R. Hu, December 2009. See also 40 See above, note 22.

41 Suppression of Beijing Blood Safety Conference, Detention of Activist Wan Yanhai and Related Blood, Haemophilia, HIV/AIDS, and Human Rights Issues, Beijing AIZHIXING Institute, 2009, available at:: http://www.upr-info.org/IMG/ pdf/BAI_CHN_UPR_S4_2009_anx_Bloodissues_ENG.pdf.42 Chinese Legal Report for AIDS Human Rights, 2008.

43 Beijing AIZHIXING Institute,

44 Testimony provided to Beijing AIZHIXING Institute by R. Guo, October 2009.

For instance, on September 14, 2008 we collaborated with the China AIDS CBO Network to issue a public appeal letter,45 namely to call upon the government to strengthen the protection of AIDS NGOs. [email protected] or visit www.aizhi.net. For further information, please contact Mr. Wan Yanhai, Director of the Beijing AIZHIXING Institute, at:

The Equal Rights Review, Vol. Four (2009) 26

Watch the Courts Dance: Litigating the Right to Non-discrimination on the Ground of Sex

Sibongile Ndashe, Solomon Sacco1

Introduction

Litigating the right to non-discrimination issues in the national contexts of Zimbabwe, on the ground of sex has produced mixed Tanzania and Nigeria respectively. results in a number of African jurisdictions. In spite of the fact that courts have looked at 1. Common Challenges across Africa laws that discriminate against women with varying degrees of success, some issues such The easy cases have been the ones that have as women’s property rights continue to be not involved property rights. The case of At- the most unpredictable terrain when sub- torney General of the Republic of Botswana 2 ject to litigation. Increasingly, in the region v. Unity Dow in Botswana became synonymous with progressive court decisions aimed and internationally, courts have begun to at protecting women’s rights in Africa. Ms. understand that discrimination on a prohib- Unity Dow, a citizen of Botswana, challenged the constitutionality of Section 4(1) of the however, stopped some courts from insisting Citizenship Act which denied Botswana citi- thatited ground discrimination cannot be on justified. the basis This of has sex not, can zenship to her children on the basis that her husband was a foreigner. The provisions of with women’s inheritance rights. It is when still be justified, particularly when dealing Section 4(1) patently discriminated against women as Botswana citizenship could be the judicial precedent and recognised stan- granted to children whose father was a Bo- courts seek to justify the unjustifiable that dards on non-discrimination have fallen foul tswana citizen irrespective of whether the of the law. mother was a foreigner.3 In outlawing the discriminatory provision of the Citizenship This article draws attention to selected cases Act, the Court relied on the right to non-dis- in a range of African countries, highlights the crimination on the ground of sex, in spite of forward and backward steps that courts have the fact that the ground of sex is not expressly taken with respect to prohibiting discrimina- mentioned in the section of the Constitution tion on ground of sex and provides an over- prohibiting discrimination.4 view of some of the struggles associated There have been other less well known cases where courts across Africa have declared endwith sex litigation discrimination in this have field. experienced Part one maps sig- laws and practices unconstitutional on the out some hotspots where litigation efforts to basis that they discriminated against wom- examine how courts have reacted to these en. In Longwe v. Intercontinental Hotels,5 the nificant challenges. Parts two, three and four

The Equal Rights Review, Vol. Four (2009) 27

Zambian High Court held that the Interconti- heritance where the courts have upheld the nental Hotel’s policy of refusing entrance to principle of equality and non-discrimination. women unaccompanied by a male escort was In the Kenyan case In re Wachokire8 the ap- inconsistent with Section 23 of the Zambian plicant petitioned the Thika Chief Magis- Constitution. Section 23 contains a protection from discrimination clause that includes land that had belonged to her deceased fa- the obligations under Articles 1, 2, and 3 of thertrate's where Court she for lived an award with herof one-half four children. of the the UN Convention on the Elimination of She had been denied this award due to the all Forms of Discrimination against Women application of Kikuyu customary law, under (CEDAW). In Uganda v. Matovu,6 the judge re- which a woman lacked equal inheritance fused to apply a caution to the uncorroborat- rights because of the expectation that she ed evidence of a complainant in a rape case on the basis that the cautionary rule discrim- Court held that the customary law violated inated against women. The cautionary rule Sectionwould get 82(1) married. of the The Kenyan Chief Constitution, Magistrate's was a rule of common law, applicable in most which prohibited discrimination on the basis of sex. It was also held to violate provisions courts should not rely on the uncorroborated of international law that provided for legal former British colonies, to the effect that the- - cally Article 18(3) of the African Charter and committedevidence of againsta single witness women, in and sexual in private,offenc Articleequality 15(1 between - 3) of men CEDAW. and womenWhile this – specifi was a thises; since rule discriminatedsexual offences against are most women. commonly lower court decision, and hence not binding on other courts in Kenya, it is an important In Tanzania, courts have sought to engage and noteworthy demonstration that courts with international standards in order to re- can deal with discriminatory customary law dress the gender discrimination which ex- by relying on international law and existing isted in customary law. The case of Jonathan Constitutional frameworks.9 v. Republic7 in which the appellant, who had been convicted of rape, claimed that abduct- Taking stock of this litigation experience, a ing and raping the victim woman was a per- general trend has been that courts are more missible form of customary marriage, is a willing to strike down as unconstitutional pertinent example in this regard. Although - the court in Jonathan did not exclusively erty or inheritance norms. Whilst discrimi- focus on discrimination, it relied on the ob- nationdiscriminatory against women laws that on dothe not basis affect of gender prop adequate relief to women who are victims guarantee in other cases across Africa, these ofligations violence under and theCEDAW obligation to protect to ensure and offer that or sex has been found to offend the equality marriage shall be entered into only with the of precedent that they seemed to promise. free and full consent of the intending spous- Thosecases have cases not seemed sparked to the promise expected that flurry the es required by Article 16(2) of the Universal courts would not condone laws, practices or Declaration on Human Rights (UDHR) to de- policies that discriminate against women. termine that the customary practice was un- In practice, however, laws that mandate dis- lawful. criminatory inheritance regimes have not been repealed or struck down. Instead there In addition to these progressive decisions has been confusion in a number of countries there have been some cases involving inon how to deal with non-discrimination and

The Equal Rights Review, Vol. Four (2009) 28

the jurisprudence developed in the earlier decisions and uncertainty. Parts 2 – 4 of this decision of Katekwe v. Muchabaiwa13 which paperinheritance examine and this this trend has led in greater to conflicting detail held that because the Legal Age of Major- through focusing on the Zimbabwean, Tanza- ity Act completely emancipated women who nian and Nigerian experiences. reached the age of majority, and no longer required the assistance of guardians, fathers 2. Zimbabwe could not sue for damages for the seduction of their daughter and lost the right to de- The Supreme Court decision of Magaya v. mand bride prices. The progressive nature of Magaya10 has often been cited as an example the earlier judgments in cases such as Kate- of the limitations of litigation in enforcing kwe v. Muchabaiwa proved to be too adven- the right non-discrimination on the ground turous for the Zimbabwean legal system and of sex. Magaya related to the inheritance the Supreme Court in the Magaya case over- of intestate estates. The appellant, Venia ruled the prior decisions on the basis that Magaya, was daughter and eldest child of they applied an incorrect understanding of customary law. respondent was the second son by the deceased’sthe deceased second by hismarriage. first marriage, The Zimbabwean while the This is always one of the dangers of judge- Supreme Court, in a unanimous decision, led legal reform. From Katekwe through to held that women were not allowed to inherit Magaya there had been no drastic overhaul under customary law and that this discrimi- of the Supreme Court bench14 (although nation was permitted under the exclusion Chief Justice Dumbutshena who had led the bench in earlier pro-equality decisions had Constitution, which excludes customary law retired) and the decision in Magaya was not and(or “clawcertain back”) aspects clause of personal in Section law 23 from of the the result of political interference.15 How- non-discrimination clause. Further, the court ever, the conservative Justice Muchechetere held that the non-discrimination clause did was able to lead the Supreme Court into ef- not prohibit discrimination on the ground of fectively overturning a string of progressive sex (although the Court conceded that inter- Supreme Court decisions. The case is educa- national law norms that prohibit discrimina- tive in demonstrating how a slight change in tion on the basis of sex might be applicable in the composition of personnel on a Supreme interpreting the Constitution). Court bench can easily erode gains made through litigation. Prior to this decision, Zimbabwean courts had taken progressive steps in prohibiting Indeed the Zimbabwean Supreme Court in discrimination on the ground of sex despite Magaya recognised the discriminatory nature of the law it was applying but decided earlier case of Chihowa v. Mangwende,11 the that it could not reform the law: Supremethe existence Court of theheld “claw that back”a woman clause. who In had the reached the age of majority could succeed “Further, I do not consider that the her father. In reaching its decision the Court court has the capacity to make new law in a concluded that the provisions of the Legal complex matter such as inheritance and suc- Age of Majority Act of 1982 superseded cus- cession, in my view all the courts can do is to tomary law and removed all impediments to uphold the actual and true intention and pur- women’s inheritance.12 This case built upon port of African customary law of succession

The Equal Rights Review, Vol. Four (2009) 29 against abuse (…) Matters of reform should single judge of the high court but does not 16 have binding force so other judges continued to make contrary determinations. Thisbe left self to imposedthe legislature.” restraint on the part of the Court when dealing with inherent and far In Ndossi v. Ndossi,20 a case involving a dis- reaching practices of discrimination is an un- pute between the widow and the brother of fortunate abdication of its role in protecting a deceased man’s estate, the Tanzanian High the right to freedom from discrimination under international human rights law and the replace the deceased’s brother with the de- Constitution of Zimbabwe. ceased’sCourt confirmed widow as a the lower administrator court decision of the to deceased’s estate. The High Court held that 3. Tanzania the Tanzanian Constitution provided that "every person is entitled to own property In Tanzania, where the Constitutional right and has a right to the protection of that prop- to non-discrimination is not subjected to a erty held in accordance of the law" and that - Article 9(a) and (f) of the Constitution gener- tion on the ground of sex is explicitly pro- ally domesticated human rights instruments hibited“claw-back” by Section clause, 13 and of the where Constitution, discrimina the - role of the courts has been equally problem- crimination principles contained in Article atic. In the case of Ephraim v. Pastory,17 the 2(b)ratified and by (f) Tanzania, of CEDAW. including21 The decision the anti-dis of the High Court held that customary law which - prohibited women from inheriting and sell- ciples of international law were directly ap- ing clan land violated the Tanzanian Consti- plicableHigh Court in Tanzania in effect – a found decision that which these could prin tution and consequently upheld the sale of have very far reaching consequences for the land by a woman who had inherited it from Tanzanian legal system. her father. However, in the later case of Stephen and An- Subsequent decisions have criticised this on other v. the Attorney General,22 the High Court procedural rather than substantive grounds held that the customary law that prohibited a woman from inheriting and selling clan land customary law discriminated was not in- was discriminatory and unconstitutional but correct,- finding the that proper while procedure the conclusion for challeng that the- refused to strike down the law. In arriving at ing the constitutionality of that law had not this decision the Court applied a version of been followed.18 Ephraim v. Pastory’s trag- Constitutional avoidance and approved the edy, therefore, seems to be one of process.19 dictum set out in Attorney General v. W. K. Bu- The case came before the High Court not as a tambala where the court stated: constitutional reference but as ordinary civil litigation. According to the Constitution, the “We need hardly say that our Con- Chief Justice had to make rules regarding the stitution is a serious and solemn document. referral of constitutional matters and this had We think that invoking it and knocking down not been done when Ephraim v. Pastory was laws or portions of them should be reserved heard. The laws regarding inheritance rights for appropriate and really momentous occa- of women under customary law, therefore, sions. Things which can easily be taken up by remained unchanged. In the end, Ephraim administration initiative are best pursued in v. Pastory became a landmark decision of a 23

that manner.”

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The Court in Stephen and Another then pro- case of Mojekwu v. Mojekwu26 had to deter- ceeded to hold that that the customary law mine whether the appellant (the only sur- rule, which was in violation of the Constitu- viving male relative to his deceased uncle) tion, could not be struck down because they was entitled to inherit the respondent’s (the were protecting the “sacrosanct nature of the deceased uncle’s widow) estate. The appel- - lant claimed he had the right to inherit the estate under the application of the custom Court.Constitution”24 While andConstitutional ensuring that avoidance “only matmay of Ili-Ekpe, which precluded women from tersbe an of acceptablegreat importance” principle were where brought there to the are inheriting and designated the closest male other legal avenues to protect one’s consti- family member as the heir. The Court held tutional rights, in this case the only remedy that the Ili-Ekpe was inapplicable and that referred to by the Court was to urge district the Kola tenancy custom, which does allow councils to lobby the responsible Minister to women to inherit, was applicable. The Court change the law, therefore leaving the solution opined, in obiter, that the Ili-Ekpe custom was purely in the hands of the political process. repugnant and applied the repugnancy doc- trine, which mandates courts not to enforce It would appear however, that the real reason any law if it is contrary to public policy or re- for the decision was a reluctance to interfere pugnant to natural justice, equity and good with customary law. The Court alluded to conscience. In doing so, the Court of Appeal this by stating: held that the custom was also contrary to the human rights protections within the Nige- rian Constitution as well as the human rights change by judicial pronouncements. A legal obligations in CEDAW. decision “Itmust is impossible be able to totake effect immediate customary effect, unless overturned by a higher court. For The case was appealed to the Supreme Court, customs and customary law, it would be dangerous and may create chaos if courts were Kola tenancy custom. However, the Supreme to make judicial pronouncements on their Courtwhich declinedconfirmed to makethe decision a decision based on theon theva- 25 lidity of the Ili-Ekpe custom and held that it was precluded from doing so by rules of pro- constitutionality.” cedure because the validity of the custom High Court was that it would not make a ju- was not a legal issue before the court. Effectivelydicial pronouncement the decision on the ofconstitutional the Tanzanian- ity of the admittedly unconstitutional provi- In considering the decision of the Court of Appeal, the Supreme Court turned to ad- of repealing the Constitutional protection of dress sex discrimination. It expressed its non-discriminationsion. The High Court’s as decision this applies had the to effect cus- lack of doubt in the lower court’s concern for tomary law. the perceived discrimination against women and held that the concern was understand- 4. Nigeria able. The Supreme Court however then pro- ceeded to criticise the Court of Appeal for The Nigerian legal system has also encoun- over-reaching itself. In doing so it took issue and expressed dissatisfaction with the Court gender equality in respect to inheritance of Appeal’s language which was so far reach- rights.tered conflicts The Court between of Appeal customary in the landmark law and ing that:

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"(...) it seems to cavil at, and is ca- sonal and customary law is often excluded pable of causing strong feelings against, all from the ambit of these principles. It is this customs which fail to recognise a role for tension between customary law and consti- women. For instance the custom and tradi- tutional principles of equality that has cre- tions of some communities which do not ated problems for lawyers and judges alike. permit women to be natural rulers or family From a strategic litigation perspective, this is 27 an important opportunity for litigation and lobbying. However, results so far have been heads.”The approach of the Supreme Court negates mixed. the principle that all laws that discriminate The judicial development of customary and should be struck down, as well as the law according to constitutional principles wholeon a prohibited role of the ground Courts cannotin ensuring be justified adher- of gender equality has not been easy and ence to the Constitution. This view, includ- straightforward. In some countries, such as ing the examples, entrenches the idea that a Zimbabwe, constitutional exclusion clauses norm rather than the exception. The court full application of equality laws. Thus, early proceededjustification to for state discrimination that: has to be the advanceshave “protected” have been customary easily overturned law from the by later conservative judges. Issues of property “[T]he import is that those communities stand to be condemned without a for courts to deal with. In the Zimbabwean hearing for such fundamental custom and Magayaand inheritance case it appear is no coincidence particularly thatdifficult the tradition they practice by the system by case which overturned the whole line of pro- 28 gressive cases was a case involving property and inheritance. which they run their native communities.” of the women in this case to inherit, its obiter In jurisdictions that have constitutions that statementsWhile the Supreme on the needCourt to confirmed give a hearing the right to communities that practice discriminatory for courts to point and decide that the Con- customs before these are held unconstitu- stitutioncontain “claw-back” mandates discrimination. clauses it has been The easycon- of women to an extra consideration that does Lesotho are just some that still retain the nottional apply has to the other effect fundamental of subjecting rights. the rights stitutions of Zimbabwe, Kenya, Gambia and customary law and personal law from inqui- 5. Analysis and Trends ry“claw-back” into the discriminatory clause. These impact clauses of custom exempt- ary law and consequently they prevent pro- Personal law is governed by customary law hibition of discrimination provisions under across most African countries. Many principles of customary law are inherently discriminatory against women, especially with Equalitythe constitution before the from law taking and equal effect. protection regards to inheritance with many systems of the law become a meaningless gesture in excluding women from inheritance alto- gether. However, principles of equality have one recognises that the majority of women’s been entrenched in the Constitutions of most humanthe face rights of such violations “claw-back” occur clauses. in the private When countries on the continent, even though per- sphere, particularly in the family law setting,

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to exclude this branch of law from being subjected to the discrimination test guaranteed Tanzania indicate that more work needs to by the constitutional right to non-discrimina- beThus done the byconflicting lawyers decisionsto push the in Nigeriaboundaries and tion is an acceptance of discrimination. This of the law. In Zimbabwe it was only following was explicit in the Magaya case, where the litigation that the legislature acted to amend Supreme Court held that they were bound by the inheritance law and develop customary the Constitution and exhorted the legislature law in accordance with non-discriminatory to take steps to deal with the discrimination. principles in the Constitution. Therefore, although the decision in Magaya was dis- appointing, the end result of lobbying and clauses the courts show an unfortunate in- litigation was a positive amendment to the Ingenuity countries when where refusing there to areinterfere no “claw-back” with dis- intestate inheritance rules. Ultimately such criminatory inheritance rules. As has been - illustrated in the examples of other jurisdic- tegic litigation as part of a strategy for social tions, when it comes to laws that discrimi- change.law reform confirms the importance of stra nate against women, the courts have shied away from looking at whether a customary - practice is unconstitutional because it is dis- ing positive changes to the law. However, this criminatory on the ground of sex or gender. willJudges always can berely extremely on the nature influential of the in bench. mak The basis for this reluctance has been that It is therefore dangerous to rely on judges to there needs to be wider consultation with creatively interpret the law to realise equal- the communities that practice those particu- ity. While this was successful in the Unity lar customs. Whilst community participation Dow case, the Magaya case demonstrates in law reform is important, especially where the ease with which a conservative bench customary law is concerned, the Tanzanian can overturn a progressive chain of cases. and Nigerian courts appear to have imposed Indeed, many countries in Africa have taken requirement of consultation for challenges to concrete steps to eliminate discrimination discriminatory customary law in ways that against women in the personal sphere, even do not exist when other rights are enforced in instances where the Constitution contains through litigation. A potent example of this is the Stephen and Another case where the Tanzanian High Court was quite sanguine in underscorea “claw-back” the clause. duty of These states steps, to eliminate taken in - discriminationspite of the presence against of women. “claw back” clauses, nation to continue, and restricted challenges toaccepting the political the effect process. of allowing the discrimi Strategic litigation should attempt to ensure that decisions prohibiting discrimina- Conclusion tion on the grounds of sex and gender are well-thought out and resistant to criticism. Strategic litigation on the right to gender Lawyers should attempt to persuade courts equality in the area of inheritance is crucial to make decisions that establish or build on across Africa, as part of wider lobbying strat- principles already set by a previous judg- egies. This article demonstrates that some ment in order to develop stronger jurispru- jurisdictions have produced random and var- dence. More importantly, there is a need for ied judgments which have led to direction- the continued appealing of decisions that less, inconsistent and unclear jurisprudence. subject the enjoyment of rights by women

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to extraneous considerations, such as the needed on the part of courts to set out clear political process used in the Stephen and An- jurisprudence that demonstrates why such other distinctions constitute unlawful discrimina- discrimination when courts are presented tion and how they violate the principle of with discriminationcase, or that create claims different on the basistests for of - shrine proper content and purpose into this principleequality. Onlyacross then African will itstates. be possible to en sex. It is not sufficient that the rule has been found to be discriminatory. More effort is

Sibongile Ndashe is a Lawyer with the Equality Programme of INTERIGHTS. Solomon Sacco is a Lawyer in the Africa2 Botswana Programme v. Unity of Dow, INTERIGHTS. Journal of African Law, 1992, 36(1), pp. 91-2.

3 The full text of this case is available at: http://www.law-lib.utoronto.ca/Diana/fulltext/dow1.htm.

4 Section 15 of the Constitution of Botswana. The Courts noted that section 3 of the Constitution guaranteed all rights regardless of sex.

5 Longwe v. Intercontinental Hotels [1993] 4 LRC 221 (HC of Zambia).

6 Uganda v. Matovu

7 Jonathan v. Republic, Criminal, Criminal Session Appeal Case No. No.53 of146 2001, of 2001, High High Court Court of Tanzania of Uganda at Moshi, at Kampala, 21 September 21 October 2001. 2002.

8 In re Wachokire, Succession Cause No. 192 of 2000, 19 August 2002.

9 This approach can be contrasted to some High Court decisions where the courts refuse to have recourse to international human rights instruments in order to uphold women’s rights.

10 Magaya v. Magaya, SC No. 210-98, Zimbabwe, 16 February 1999.

11 Chihowa v. Mangwende, 1987, (1) ZLR 228 (S).

12 However, in Vareta v. Vareta (S-126-90, unreported) the Supreme Court held that under customary law the eldest son is the natural heir to his deceased father, even if there is an elder daughter. It concluded that the Legal Age of Majority Act, 1982, did not alter this fact.

13 Katekwe v. Muchabaiwa, 1984, (2) ZLR 112 (S).

14 Indeed the same bench gave many decisions in favour of the enjoyment of civil and political rights and fundamental freedoms such as the right to demonstrate (see for example, In re Munhumeso & Ors 1994 (1) ZLR 49(S)) and in doing so it took creative steps to limit the state’s power to interfere with fundamental freedoms. rights (see for example, Chairman of the Public Service Commission and others v. Zimbabwe Teachers Association and However,others 1997 the (1) bench SA 209 was (ZS)) less interestedor in cases in protecting intervening the positively rights of women. in cases that affected economic, social and cultural 15 In fact, the executive had already introduced legislation to ensure a more equitable approach to intestate succession.

16 See above, note 10, judgment of Justice Muchechetere, page 49, available at: http://jurisafrica.org/docs/ customarylaw/vii_Magaya_v_Magaya_judgment.doc. This principle appears to have only been applied to the intersection between sex discrimination and customary law as the Zimbabwean Constitutional Court at that time was very active in protecting other civil and political rights beyond strictly textual interpretations of the Constitution -- see for example In re Munhumeso 1994 (1) ZLR 49 (S).

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17 Ephraim v. Pastory, AHRLR (TzHC 1990).

18 See, for example, Stephen and Another v. the Attorney General, Miscellaneous Civil Cause 82 of 2005.

19 The case was not referred to a higher court, however. As it was a decision of a single judge, it is not binding on the other judges and, more importantly, for the reason that the proper procedure (for constitutional litigation) was not followed, it did not lead to the invalidity of the laws concerned in the case.

20 Ndossi v. Ndossi, Civil Appeal No. 13 of 2001, High Court of Tanzania at Dar Es Salaam, 13 February 2002.

21 Article 2 states: “States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (...) (b)To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women. (…)(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against

women.”22 See above, note 18.

23 Attorney General v. W. K. Butambala [1993] TLR 46.

24 The Court also relied on section 8(2) of the Basic Rights and Duties Enforcement Act [cap 3 R.E. 2002] which of redress for the contravention alleged are or have been available to the person concerned under any other law, or provides that: “The High Court shall not exercise its powers under this section if it is satisfied that adequate means means of redress for the purposes of this section, as to hold so would make the enjoyment and enforcement of all thatrights the subject application purely is to merely the democratic frivolous orprocess. vexatious.” Further, A purely the enjoyment political process of all rights cannot on abe non-discriminatory considered an adequate basis is without doubt a matter of the greatest importance.

25 See above, note 18, p. 21.

26 Mojekwu v. Mojekwu, [1997] 7 N.W.L.R 283.

27 Mojekwu v. Mojekwu, [2004] 4. S.C. (Pt.II). 1. (Nigeria, Supreme Court); (2004) 7 MJSC p. 165. A summary of the pdf. judgment is available at: http://www.law.utoronto.ca/documents/reprohealth/LG028-9_Nigeria-Mojekwu_cases. 28 See above, note 27.

The Equal Rights Review, Vol. Four (2009) 35

Through the Lens of Dignity: An Essay on Equality and Liberty

Amal De Chickera1 "You are a human being. You have rights inherent in that reality. You have dignity and worth that exist prior to law." Lyn Beth Neylon Introduction

ing logic. Can they all be right? Can equality equality has captured the imagination of generationsThe evident ofconflict philosophers, between liberty statesmen, and and perfectly compatible all at once? If not, economists and theologians.2 Perhaps no thereand liberty must be be incommensurable,a fundamental divergence conflicting in ideological divide has had a greater, more understanding amongst these greats. Are 3 from they speaking of the same notion and degree groundbreaking philosophical debate, to wide-rangingpolitico-economic impact polarisation on global affairs; of the world these values in the same manner, if they have groundedof equality? them Of liberty?at all? Do Have they they even grounded consider both to be values?6 In other words, are they reachingorder and its armed zenith conflict.in the crude The libertarian–articulation talking past each other? Is a pamphlet to egalitarian conflict has raged over centuries,- Dworkin a book to Nozick?7 ogy of the Cold War era. Positions may have softened,of conflicting and capitalist indeed some and communistbridges built; ideol but I believe that they are indeed talking past the debate continues... each other. But my essay is not an attempt to consolidate their positions. I have an alter- nate view of my own - that the two are not been truly fascinating. Berlin argues that incommensurable and their apparent con- Philosophical discourse on the conflict has- ent that they are incommensurable.4 Berlin’s are complementary values that are grounded theincommensurability two values are so and fundamentally the notion of differ non- inflict the is inherent merely illusionary.dignity of humanity, I believe which the two le- hierarchical compatibility form the two ends gitimises, shapes and limits them. of a spectrum on which liberty and equality have repeatedly been ranked and pitted against each other, with a divergence in re- startingI hope to with justify Berlin’s my position incommensurabil by fleetingly- values themselves. When considering the ityjourneying and moving through on to the those different that prioritise positions, collectivesult rivalled greatness only by ofthe the flexibility minds which of the have two one value over the other. I then embark on 5 it a dignity analysis, through which I hope to is not surprising that most of the views have convince you of the role played by dignity as strongdevoted appeal considerable and are time grounded on the on conflict, convinc- -

“commensurator” of the seemingly incom

The Equal Rights Review, Vol. Four (2009) 36

mensurable. I wish to go further. My argu- between equality and liberty is not due to ment endorses a particular worldview which incommensurability. Williams’ tragic cases is based on and promotes dignity. I therefore conclude by establishing some guiding prin- 12 ciples which stand both as parameters of the Aare mother those in having which to “an decide agent whichcan justifiably child to dignity analysis and as yardsticks to measure think that whatever he does will be wrong”. human progress in this regard. themselves,save from a and fire not is athe quintessential decisions of “tragicagents Berlin and Incommensurability thatcase”. are As atWilliams fault in states,tragic itcases. is the13 Suchsituations situations almost always arise due to resource In a seminal essay, Isaiah Berlin introduced mother could rescue both children. Any ap- - limitations - with the help of a fireman, the commensurablethe world to his values.twin concepts8 of “positive” is a tragic case brought about by resource and “negative” liberty and the notion of in limitations,parent conflict and between not incommensurability. equality and liberty “Everything is what it is: liberty is liberty, not equality or fairness or justice or - culture. (...) if I curtail or lose my freedom in tion14 have rallied around their respective order to lessen the shame of (...) inequality, Conflicting ideologies on resource alloca and do not thereby materially increase the in the two values being seen as synonymous individual liberty of others, an absolute loss ofslogans each, of to “liberty” the exclusion and “equality”, of the other. resulting But 9 such ideologies do not hold a monopoly over the values they claim represent them best. of liberty occurs.” Equality is more than socialism, and liberty and must be prioritised over each other, but greater than liberal capitalism. It is socialist inBerlin’s each suchpoint situationis that these the valuesloss of doone conflict value and capitalist ideology which are incommen- is one which cannot be compensated for by surable, not liberty and equality themselves. the gain of another, for they are incommensurable. Williams sums up Berlin’s position According to Williams, the claim that values better than I can hope to by saying that: are incommensurable asserts at least four separate but connected denials: that no one “there is a plurality of values which - ing values, or value (independent or not) can not reducible to one another; consequent- currency, value independent of the conflict canly (...) conflict we cannot with one conceive another, of and a situation which are in canbe appealed ever be resolved to rationally in a rationalresolve the manner. conflict,15 had been eliminated, and that there had been and that consequently, no conflict of values which it was true both that 10all value-conflict Using these criteria, I hope to establish that dignity can and must be used as a fundamen- Berlinno loss did of value not view on the the way.” incommensurability tal independent value to resolve equality-lib-

the basis of progress11 and the incommensu- of values in a negative light. To him, conflict is aterty some conflicts, of the thus foremost proving positions that the on two liberty are andindeed equality. commensurable. But first, let us look rability of values is a great source of conflict. I too believe that conflict is a great stimulant of progress, but to me, the seeming conflict

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A Brief Survey of the 21 of equality of opportunity, he states Liberty-Equality Debate that: goal” There have been countless accounts of liber- “No one has a right to something ty and equality; some pitting the two against whose realization requires certain uses of each other, others rallying under their uni- things and activities that other people have stance on both. The great revolutions were rights and entitlements to particular things foughtfied banner. in their All name great16 worldand communities religions have con a- andrights how and they entitlements choose to over.exercise Other [them] people’s (...) tinue to strive to reap their fruits in contem- - porary society.17 A comprehensive overview dividual and the means that will be available on subject matter so rich is impossible. In- fix the external22 environment of any given in stead, I give a brief account of three positions toTherefore, him.” no person or authority would be thinking, beginning with the one furthest awaywhich fromhave mine,greatly and influenced ending contemporary with the clos- resources for the good of others.23 est. justified in coercing an individual to use his Nozick’s position may seem normatively un- Robert Nozick desirable - even repugnant and callous - but - Nozick is probably the most outstanding rately.24 Even those who appreciate taxation contemporary proponent of the minimalist it reflects contemporary society rather accu state and self ownership theory. Strongly in- laissez-faire state is promoted by the World 18 Nozick is a libertar- Bankloathe and the IMFeffect in it all has third on their world savings. countries, The ian whose values uphold liberty, security and resulting in rapid privatisation, as multina- fluencedproperty byrights. John As Locke, Cohen states: tional companies establish themselves as stronger economic players than most small “[Nozick] holds that each person and middle sized countries. The disparity possesses over himself, as a matter of moral between rich and poor continues to grow, right, all those rights that a slaveholder has and extreme prosperity and abundance is over a complete chattel slave as a matter of juxtaposed against abject impoverishment legal right; and each person is entitled, mor- as never before. ally speaking, to dispose over himself in the way that such a slaveholder is entitled, legal- John Rawls 19 Rawls developed his landmark theory of jus- lyFurthermore, speaking, to Nozickdispose purportsover his slave.” that people tice against this backdrop.25 A liberal thinker, have an equally strong moral right to any and Rawls shares little else in common with Noz- all world resources which they acquire own- ick.26 He most famously developed the notion ership of, as long as “the position of others no - longer at liberty to use the thing is thereby tion of justice for liberal, democratic societ- 20 ies.of “justice as fairness” as a political concep

Equality(not) worsened”. ranks a clear last in Nozick’s eyes. There are two principles of justice as fair- Speaking against the “minimum egalitarian ness:

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“Each person has an equal claim to Dworkin proceeds to argue for what he calls a fully adequate scheme of equal basic rights 31 based on his two and liberties, which scheme is compatible principles of ethical individualism: with the same scheme for all; and in this “equality of resources”, scheme the equal political liberties, and only - those liberties, are to be guaranteed their fair cording to which it is objectively important 27 that1. The all principle human lives of “equal be successful importance” and not ac wasted. value.” “Social and economic inequalities

according to which it is the person whose life toare allto undersatisfy conditionstwo conditions: of fair first, equality they are of 2. The principle of “special responsibility” opportunity;to be attached and to positions second, they and areoffices to beopen to for the success spoken of in principle one.32 it is, who is specially and finally responsible 28 Dworkin’s equality of resources – “in which the greatest benefit of the least advantaged people are equal not in their welfare but Rawls’members liberalism of society.” is clearly more just than 33 – can Nozick’s. He proposes, to an increasingly only be a successful project if people are af- unfair world order, a pragmatic approach fordedin the resourcesthe freedom at totheir take command” responsibility for to sharing wealth, promoting liberty and their own ambitions. Consequently, it is “an cooperating as a community. However, with account of distributional equality that is immediately and obviously sensitive to the spe- the second, Rawls clearly considers liberty 34 tothe be first a more principle fundamental taking lexical value priority than equal over- Accordingly, “liberty becomes an aspect of ity; even though his condition that both are cialequality character rather andthan importance (...) an independent of liberty”. po- subject to the provision of the basic needs of 35 citizens underscores his commitment to social justice.29 againstlitical ideal curtailing potentially liberties in in conflict favour with of equal it”. - ityTherefore, of resources there when is no necessary. justifiable36 argument Ronald Dworkin Dworkin later provides valuable insight into - his thinking when he claims that the two enced me most. Consequently, it is not sur- principles of ethical individualism “together prisingDworkin that is thehis position philosopher is closest who to has the influ one - Dworkin states that: stractdefine invocation the basis of and equality conditions and the of second human I propose. In a strong affirmation of equality, ofdignity”, liberty. and37 that the first principle is an ab “No government is legitimate that does not show equal concern for the fate of Thus Dworkin sets the stage, with clinical all (...) citizens. (...) Equal concern is the sov- precision, for me to embark on a dignity ereign virtue of political community – with- analysis of my own. out it government is only tyranny – and when a nation’s wealth is very unequally distribut- ed (...) then its equal concern is suspect."30

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Dignity Analysed of dignity, as evidenced by this statement in the Microcensus case that “the state violates human dignity when it treats persons as - 49 Dignitytion. It is is a vague,one of elusivethe most concept, difficult which words most to pin under a succinct and compelling defini- Themere following objects”. tragic anecdote captures the essence of Kant’s philosophy: in 1994, Kevin constructionpeople have aof sense dignity of, particularlybut would find compel diffi- Carter took the Pulitzer Prize winning pho- ling.cult to Its articulate. basis is the This subjective; is why I findits conclusion, Dworkin’s tograph of a famine stricken Sudanese child objective.38 Dworkin appeals to the personal crawling towards a United Nations food camp – to what (he considers) people would con- a mile away, as a vulture looked on. The child sider important to themselves, which he then was a means to further Carter’s end. The ex- applies broadly. Accordingly, if I consider my life to be of value, and worthy of success, by the fact that Carter continued his journey there is no compelling reason for me not to immediatelytremity of objectification after taking the is picture. demonstrated No one regard all human life in the same light.39 Fur- knows what happened to the child, and Cart- thermore, this intrinsic value is of objective er committed suicide three months later, due importance – “the success or failure of any to depression.50 40 and “is not only important to the person whose life it Feldman speaks of three levels of dignity – human life is important in itself”, 41 dignity of the human species, of groups and This notion of dignity demands mutual re- of the individual.51 As Feldman observes, spectis (...) andif and concern. because It that rings is ofwhat Jesus’ he wants”.teaching to "do unto others as you would wish them “the dignity of the species and (...) of do to you",42 a notion which would be con- the individual tend to work together. (...) [T] vincing only if our common human heritage reating corporal punishment as degrading meant our lives were of equal value. Indeed within the meaning of Article 352 of the Eu- all major world religions sound uncannily similar on this point,43 a fact which I see as a sense that in certain circumstances it de- a universal assertion of the inherent dignity gradesropean bothConvention the individual on Human and Rights the whole reflects of of humanity. humanity to treat people in such a way."53

Dignity has historically been linked with hu- - man individualism. The stoics pinned dignity tive-objective approach and highlights an- 44 and religions have various ra- otherThis perspective aspect of dignity;feeds off namely, Dworkin’s that whilstsubjec tionales for it.45 - dignity is inherent to us, it is something we derson “reason”, us unique from the rest of nature. No risk losing. The broad dignity of the race is other distinguishing Our commonfactor46 is humanity necessary ren to compromised when the inherent dignity of establish that human life is of intrinsic and the individual is; and the whole of humanity 47 just as it is to the individual. Kant’s conceptualisa- its own. unquantifiabletion of dignity can value be to summarised all humanity, in the slo- suffers when humanity inflicts suffering on gan that people should always be treated as Consequently, history has repeatedly demon- ends and not as means to an end.48 - strated that the inherent dignity of humanity man Constitutional Court endorses this view has been most strongly asserted in response The Ger

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to situations of gross injustice and human 58 - was born from the ashes of World War Two, at large. Such an approach is “empathical”, withsuffering. both the International Charter of the Unitedhuman rightsNations law Thisdemands conception consistency of dignity and is affirms complimented the in and the Universal Declaration of Human byherent, Kant’s unquantifiable assertion that value people of should humanity. be

dignity of humanity.54 individuals compromises the dignity of the Rights recognising and affirming the inherent humantreated raceas subjects, as a whole. as the objectification of being inviolable to man. The55 post-war The connection German Constitution also strongly affirms dignity as The Scope of Dignity dignity was elaborated by the Federal Consti- tutionalbetween Court past tragedyin the Abortion and the Case affirmation: of As we saw earlier, Dworkin’s conception of dignity has the two dimensions of equality “The Basic Law contains principles and liberty. Whilst I endorse this understand- (…) which can only be explained by the his- ing, I feel this is only part of the story. Dignity torical experience and by the moral-ethical is a broader concept, which contains multi- recollection of the past system of National ple dimensions that are closely interconnect- Socialism. The almighty totalitarian state de- ed and co-dependant, operating with strong manded limitless authority over all aspects of social life and, in pursuing its goals, had no community and security59 are all dimensions regard for individual life. In contrast to this, ofsynergetic dignity; theeffect. pillars Liberty, (if you equality, like) which autonomy, stem the Basic Law established a value-oriented from the foundation of dignity. International order which puts the individual and his digni- human rights law operates on this basis, with 56 dignity as the core of a diverse but inter-related body of inalienable rights.60 tyThe into South the veryAfrican centre experience of all its isprovisions.” another example. As articulated by its Constitutional Dignity as "Commensurator" Court in Makwanayne: It is my proposition that as the foundation- “Respect for the dignity of all human al basis of human rights, dignity holds the beings is particularly important in South Af- rica. For apartheid was a denial of a common humanity. Black people were refused re- revisitspecial Williams’position of incommensurability “commensurator” in test, all spect and dignity and thereby the dignity of accordingconflicts between to which competing two values rights. are incom Let us- all South Africans was diminished. The new mensurable only if no single currency or value (independent or not) can be appealed to equal worth of all South Africans. Thus rec- Constitutionognition and rejectsprotection this pastof human and affirms dignity the is the touchstone of the new political order and Dignityrationally is notresolve necessarily a conflict a currency; between them.to claim 57 so, one would have to develop a uniform method of quantifying dignity in all circum- isTo fundamental summarise the to theabove: new dignity Constitution.” is a concept - best understood by appealing to subjective sible) and unnecessary exercise. However, it notions of how one should be treated and isstances, more than an infinitely an independent complex value (if not – for impos it is a one’s life valued, and applying them to society fundamental one, which can be applied to ra-

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tegrity and property of others, maintaining liberty and equality (and all other rights). tionally resolve apparent conflicts between Liberty without constraint is both meaning- - lessorder and and counterproductive efficiency and respecting – we are privacy. social ity and liberty are conceptualised as values creatures who are willing to order our lives Iwhich use the promote word “apparent”and uphold becausedignity, theyif equal will so as to make community possible and meaningful. Liberty must be given the direction - nitynever is conflictfalse and with must each be abandoned.other. Any notion The bal of- equality or liberty which conflicts with dig and purpose which dignity offers – it must inherent dignity must always be preferred. be a “dignified liberty”. - Berlin’sance between concern the of two there which being best a totalaffirms loss our of istics. Firstly, it is attached to responsibility. value when one is compromised for the oth- A dignified liberty has two main character er does not arise, for equality and liberty are his actions.66 Secondly, it demands reciproci- not freestanding values, but merely means Onety.67 who is free must take responsibility for of asserting the more fundamental value of liberty for all.68 This outlook compels us to dignity. Dignified liberty can only mean dignified

Dignity-centric Notions of Equality (i)see Crimethings mustdifferently. be punished, Two quick often examples: through and Liberty the deprivation of liberty. Under the dignity analysis, such a deprivation of liberty will It becomes clear, therefore, that the "type" of liberty and equality we speak of is important. dignity is preserved. Thus, the conditions of Equality and liberty can be deemed com- prisons,only be the justified quality to of the rehabilitation, extent that the human stig- mensurable under a dignity analysis, only to ma attached to convicts, the fairness of the the extent that they are based on dignity, and legal process, the mode in which the victim’s are facets of it.61 Equality and liberty so con- grievance is addressed all come under strong ceived are not absolute rights, but then, no scrutiny. version of either can ever be.62 They become valuable notions only to the extent that they (ii) Property ownership has long been as- promote and protect the inherent dignity of sociated with the liberal tradition,69 and is humanity. Likewise, any limitation on either an ignition-point of libertarian-egalitarian debate. Dignity analysis challenges this out- dignity is protected.63 I shall call them "dig- becomes justifiable only to the extent that look. Property ownership has resulted in un- believable disparity of wealth worldwide. If nifiedDignified liberty" Liberty and "dignified equality". a trivial slap is considered wrong and harmful, should not a system which has polarised We live in a world in which our liberties are continuously constrained by social conven- with severe implications on the dignity of the tion and law.64 I cannot speak in the library, largercommunity group be into questioned? “haves” and70 “have-nots” spit on the road, drive on the right, strike my enemy, play loud music, shoplift or even pat Dignified Equality a child without risking dire consequences. There are reasons for all these constraints,65 Equality is a multi-faceted, much debated no- including protecting the liberty, bodily in- tion.71 Which form of equality is most com-

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patible with dignity? I propose four, which that governments show equal concern for the(iii) livesDworkin’s of all “equalitycitizens.75 of Aconcern” democratic demands gov- compliment each other and combine to offer ernment “of the people, by the people, for the (i)us aThe “dignified universally equality”. accepted procedural 76 can only be legitimate to the extent

law. However, this fundamental notion of people”and commitment for the well being of all “the equality is affords under threat people due toequality various before factors the that its policy and law reflects equal concern- 72 political will73 lates more as a challenge to good governance and corruption. A dignity analysis would ispeople”. a vital Thiscog in notion the equality of equality wheel. which trans changeincluding our financial approach prowess, to procedural equality, beginning with an acknowledgement of its (iv) Finally, equality of opportunity (or re- substantive dimension, and challenging us to sources) demands that each individual be given every opportunity possible to make a success of his life.77 Such a notion is dedicat- (ii)find Anti-discrimination better ways of ensuring law is it. also universal- ed to battling inequalities which paralyse an ly applied. Accordingly, factors such as race, - colour, sex, religion, etc., are seen as invalid erty, illiteracy, sickness, violence and all such grounds on which to discriminate against scourgesindividual’s which efforts entrap to succeed, humanity including in their povvi- people. As with procedural equality, “anti- cious cycle.

which fails to impact ground realities shaped A Dignity Worldview bydiscrimination” generations oftoo discrimination. is often an empty Hence, phrase, the What does it mean, that liberty, equality (and notion of substantive equality is an attractive other rights) can be viewed as commensu- means of comprehensively dealing with dis- rable, complementary and co-dependent crimination through addressing past-injus- values under a dignity analysis? What are tice. As the Canadian Supreme Court inter- the implications of such a commitment? Dig- preted Canada’s equality clause in Law: nity challenges society to strive collectively; whether through battling poverty, opposing “[T]he purpose of s. 15(1) is to pre- violence or resisting elements of tabloid and vent the violation of essential human dig- reality TV culture which subject individuals nity and freedom through the imposition of to public humiliation. There are many ways disadvantage, stereotyping, or political or - social prejudice, and to promote a society in puts in this regard, as a means of concluding which all persons enjoy equal recognition at thisto affirm essay. dignity, and I wish to make two in law as human beings (...) equally capable and equally deserving of concern, respect and Dignity as a Tool of Adjudication

treatment will not likely constitute discrimi- nationconsideration. within the(…) purpose Alternatively, of s. 15(1) differential where adjudication which draws on legal principle it does not violate the human dignity or free- Dworkin’s “law as integrity” is a method78 in of a dom of a person or group in this way, and in consistent and correct manner.79 I see dig- tonity enable as the judges fundamental to judge principle “hard cases” on which also assists in ameliorating the position of theparticular disadvantaged." where the74 differential treatment should be adjudicated. Accordingly, any reso- all “hard cases” concerning human rights

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lution which protects and promotes the in- Most robot stories that followed drew from herent dignity of humanity would be the cor- these laws, presenting a crisis that arose rect one. when they were being violated. I myself am 96 but the egalitarian - nature of the laws captured my attention. tional principle of most international human no science-fiction buff - rightsThe fact documents, that dignity80 manyis affirmed modern as aconstitu founda- - tions81 and increasingly more national apex bers,Whilst many all human cause creations harm as benefit well. Asimov their cre is courts82 is evidence enough that dignity is al- sensitiveators and to the this best potential benefit harm, significant and believ num- ready being used as a powerful tool of adju- ing it to be unjust, formulated the laws which dication. Dignity has been used as a guiding compel robots to always serve man’s best principle by courts around the world, when interest, and never cause harm to humans, adjudicating on matters as diverse as capital even at the wish of their creator. punishment,83 corporal punishment,84 socio- economic rights,85 torture,86 defamation,87 These are just laws, which we would do well equality,88 imprisonment,89 privacy,90 to replicate in the real world. Such a replica- abortion,91 degrading treatment,92 occupation may read as: All human creations (includ- tion and entertainment93 and even the ban- ing laws and institutions) must always serve ning of shooting down hijacked passenger mankind, and must never harm the inherent aircraft.94 dignity of humanity.

Court adjudication, whilst essential, can- This statement, which I call the "dignity prin- not single-handedly achieve social change ciple", is very similar to Jesus’ response to or a dignity-respecting world order. A more the Pharisees who chastised his disciples for proactive, engaging approach is necessary plucking grain on the Sabbath.97 He said, “the to transform democratic institutions with Sabbath was made for man, not man for the which we interact on a daily basis. Sabbath; so the son of man is lord even on the 98 thus indicating that the law must A Futuristic Aside – the Three Laws always be interpreted and applied in the of Robotics mannerSabbath”, which serves man’s needs best.99

- This must be the yardstick by which the per- formance of all human institutions is mea- lawsRenowned of robotics, science which fiction govern author the lives Isaac of Asi all sured and the impact of policy decisions as- robots,mov first in introduced1942. Accordingly: the world to the three sessed. I bring my essay to a conclusion, by applying this principle to the human institu- "1. A robot may not injure a human tion of property ownership. being or, through inaction, allow a human being to come to harm. The concept of ownership (as opposed to 2. A robot must obey orders given consumption and occupation) is a human to it by human beings, except where such or- creation, and thus would be subject to my dignity principle. Consequently, the notion 3. A robot must protect its own ex- of property ownership must be one that istenceders would as long conflict as such with protectionthe First Law. does not only serves mankind, and does not harm the 95 inherent dignity of humanity. Accordingly, conflict with the First or Second Law”.

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ful lives, must be challenged. Man’s liberty to needs such as shelter, food, privacy, security, own property must be limited to the extent furtheranceproperty ownership of knowledge, which etc. fulfils is compat human- that it leaves space for his fellow man to lead ible with the principle, but ownership which excludes other humans from enjoying these of equality and liberty would have merged very same needs, and which prevents hu- intoa dignified the unifying life. It superioris only then, value that of thedignity. values mans from leading meaningful and success-

1 Amal De Chickera is Legal Consultant at The Equal Rights Trust. By publishing this personal essay, ERT hopes to provoke and invites polemical responses on the equality v. liberty dilemma, which will be published in future issues. 2 Not to mention teachers, students, grocers, entrepreneurs, farmers … 3 With the possible exception of clashing religious fundamentalisms. 4 Liberty – Isaiah Berlin, 5 Including Dworkin, Rawls, Nozick, Cohen and Williams. Berlin, I., “Two Concepts of Liberty”. in: Hardy, H., (ed.), . Oxford: OUP, 2002, p. 172. 6 Raz for example proposes a strong case for discounting equality as a moral value. See Raz, J., The Morality of Free- dom, 7 Dworkin, R., Law's Empire, Oxford: Clarendon University Press, 1988, Chapter 9. 8 Values which are impossible to measure or compare, as they lack any common quality. Oxford: Hart Publishing, 1998, p. 45. 9 Berlin, I., see above, note 4, p. 172. 10 Williams, B., Moral Luck, Cambridge: CUP, 1982, p. 71. 11 Berlin, see above, note 4, p. 172. 12 Williams, see above, note 10, p. 74. 13 Ibid. 14 Namely, socialism and liberal capitalism. 15 Williams, see above, note 10, p. 77. 16 Including the French and Russian Revolutions and the American Civil War. 17

18 InThe particular world is Locke,riddled J., with Two conflictTreatises - domesticon Government and international, (Various Editions). violent and non-violent – with countless groups fighting for liberty and equality of rights. 19 Contemporary Political Philosophy – An Anthology, 20 Nozick,Cohen, G.R., A., Anarchy, “Are Freedom State and and Utopia Equality Compatible?”, in: Goodin, E. and Pettit, P. (eds.), Oxford: Blackwell Publishing, 2006, p. 416. 21 Ibid, p. 235. , Oxford: Basil Blackwell, 1974, p. 178. 22 Ibid, p. 238. 23 Cohen, see above, note 19, p. 417. 24 Surely a world in which six-million US dollars are paid for exclusive photographs of some people’s babies (see http://omg.yahoo.com/most-expensive-celebrity-baby-pictures/news/8129?nc), whilst other people whose babies die for lack of clean drinking water receive no money for being photographed, is more repugnant and callous than any conceivable philosophy? 25 Rawls, J., A Theory of Justice: Revised Edition, Cambridge, Massachusetts: Harvard University Press, 1971; revised in Rawls, J., Political Liberalism, New York: Columbia Classics, 1993; and Rawls, J., Justice as Fairness: a Restatement, Belknap Press, 2001. 26 A testament to the richness of the liberal tradition.

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27 Rawls, Political Liberalism, see above, note 25. p. 5. 28 Ibid, p. 6. 29 Ibid, p. 7; See also Rawls, A Theory of Justice, see above, note 25, Chapter 2. 30 Dworkin, R., Sovereign Virtue: The Theory and Practice of Equality, Cambridge, Massachusetts: Harvard University Press, 2000, p. 1. 31 Ibid, p. 3 and chapter two in general. 32 Ibid, p. 5. 33 Ibid, p. 120. 34 Ibid, p. 121, 122. 35 Ibid, p. 121. 36 Especially since liberty is frequently compromised to protect lesser ideals - as in the curtailment of free speech to minimise noise pollution. 37 Dworkin, R., Is Democracy Possible Here? Princeton: Princeton University Press, 2006, p. 10. 38 Ibid, pp. 9 – 17. 39 Ibid, pp. 11 – 12. 40 Ibid, pp. 9 – 10. 41 Ibid, p. 9. 42 Luke 6:31.

See generally Buddhism: “Hurt not others in that you yourself would find hurtful”, Udana-Varga 5:18; Hinduism: “Do naught unto others which would cause you pain if done to you”, Mahabharata 5:1517; Islam: “No one of you is ahate.org/ believer foruntil more he desiressuch quotes. for his brother that which he desires for himself”, Hadith of an-Nawawi 13, Sunnah; and Judaism:44 “That which is hateful untoHRLR you,, do2007, not Vol.impose 7, No. on 2, others”, pp. 299 Talmud, – 329, p. Shabbat 304. 31a – and see http://stop-the- 45 Grant. E. , “Dignity and Equality”, 46 Such as superior intelligence or free will. Including the belief that we have been made in God’s image. 47 Alien invaders may see otherwise. 48 49 Microcensus Case 27 Grant, see above, note 44, p. 304. 50 http://thexodirectory.com/2008/02/famine-stricken-child-and-vulture.html. BVerfGE 1 (1969). 51 PL, 1999; Win: 682 – 702, p. 684; see also Feldman, D., Civil Liberties and Human Rights in England and Wales 52 Feldman,Freedom fromD., “Human torture Dignity and cruel, as a inhuman Legal Value: and Part degrading 1”, treatment. , 2nd Ed., Oxford: OUP, 2002, p. 125. 53 54 See the preambles of these two documents. Feldman, “Human Dignity as a Legal Value”, see above, note 51, p. 685. 55 56 Abortion Case Article 1(1), Basic Law for the Federal Republic of Germany. 57 S v. Makwanyane 1995 (3) SA 391 (CC) at para. 329. 39 BVerfGE 1 (1975), cited in Grant, “Dignity and Equality”, see above, note 44, p. 307. 58 Funny Face! 59 NotIn all to its be forms confused – physical, with the psychological, bizarre philosophy material, of "empathicalism" etc. espoused by Audrey Hepburn in the film 60 Feldman argues that there is no human right which is unconnected to human dignity. See “Human Dignity as a see above, see above, note 44; Steiner, H., Alston, P. and International Human Rights in Context: Law, Politics, Morals, ThreeLegal Value”, and Four. note 51, p. 690; see also “Dignity and Equality”, Goodman,61 As in Dworkin’s R., analysis and international human rights law. 3rd Ed., Oxford: OUP, 2008, Chapters Two, 62

63 Even Nozick’s is a limited “liberty”. Other limitations necessary to promote values such as public order and efficiency would only be permissible to

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the extent that dignity is not compromised. 64 Dworkin, Sovereign Virtue, see above, note 30, Chapter 4. 65 Some more trivial than others. 66 Thus Dworkin’s second principle. 67 68 Taking us back to Feldman and the link between dignity of the group and of the individual. Going back to Jesus’ commandment. 69 Two Treatises. 70 Going back to Locke and his 71 See I further Dworkin, comment Sovereign on this Virtue issue, see in above,the final note section 30; Rawls, of this A essa Theoryy. of Justice, see above, note 25; Raz, The Morality of Freedom, see above, Contemporary Political Philosophy – An Anthology,

72 Who has the means tonote engage 6; and in a Goodin long litigation E. and Pettit saga withP. (eds.), a multi-national company? Oxford: Blackwell Publishing, 2006, Part VI for a useful collection of essays. 73 at the expense of cases which have less of a public impact. 74 LawGovernment v. Canada prosecutors (Minister of often Employment prioritise and cases Immigration) due to resource [1999] constraints, 1 S.C.R. 497 taking at para up 51. politically relevant matters 75 Dworkin, Sovereign Virtue, see above, note 30, p. 1.

76 see http://www.whitehouse.gov/history/presidents/al16.html Abraham Lincoln upon dedicating the Gettysburg military cemetery, 77 Whatever that notion may be, as long as it does not depend on or result in the erosion of dignity of anyone (including his own). 78 79 Dworkin, Law's Empire, see above, note 7, p. 226 and Chapter Seven. Cases which are difficult to resolve by virtue of perceivably falling within the cracks of the law. 80 Including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Convention on Economic, Social and Cultural Rights. 81 82 Including the Canadian and French apex courts. Including the German, South African and Hungarian Constitutions. 83 Makwanyane, see above, note 57. 84 Christian Education South Africa v. Minister of Education 2000 (4) SA 757. 85 Government of the Republic of South Africa v. Grootboom (1) SA 46 (CC). 86 Public Committee against Torture v. The State of Israel and the General Security Service (1999) 7 B.H.R.C. 31. 87 Khumalo v. Holomisa 2002 (5) SA 401 (CC). 88 Law v. Canada, see above, note 74. 89 Life Imprisonment Case

90 Bernstein v. Bester 1996 45 (4) BVerfGE BCLR 449 187 (CC); (1977). and National Coalition for Gay and Lesbian Equality v. Minister of Jus- tice, 1999 (1) SA 6 (CC). 91 Abortion Case, see above, note 56. 92 Tyrer v. United Kingdom, Eur. Ct. H. R., Judgment of April 25, 1978, Series A, No. 26. 93 The Dwarf Throwing Case,

94 Luftsicherheitsgesetz Case, discussed in Feldman, “Human Dignity as a Legal Value”, see above, note 51, p. 701. PL, 2006; Aut: 457 - 466 for a useful critique BVerfG, of the1 BvR judgement. 357/05 of February 15, 2006; See Moller, K., “On Treating Persons as Ends: the German Aviation Security Act, Human Dignity, and the German Federal Constitutional Court”, 95 Astounding Science Fiction, Street & Smith, March 1942; see http://en.wikipedia.org/ wiki/Three_Laws_of_Robotics for information on the laws in general. 96 IAsimov, stumbled I., “Runaround”, upon the three in: laws when watching the recent blockbuster I Robot one forgettable evening. 97 98 Mark 2:27-28. Harvesting in any form was forbidden on the Sabbath – God’s designated day of rest. 99 This sounds very similar to the natural law position that an unjust law is no law at all.

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“The re-criminalisation of homosexuality is meant to distract the attention of Ugandans from the real issues that harm us."

Sylvia Tamale

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The Equal Rights Review, Vol. Four (2009) 49

A Human Rights Impact Assessment of the Ugandan Anti-homosexuality Bill 2009 Sylvia Tamale

On 14 October 2009, the Anti-homosexuality Bill was introduced before the parliament of Uganda. The Bill received international criticism from human rights organisations and states alike. If passed, the Anti-homosexuality Bill would legitimise, institutionalise, increase and perpetuate the profound discrimination and gross inequality suffered by lesbian, gay, bisexual and transgender (LGBT) people in Uganda today. On 18 November 2009, Dr. Sylvia Tamale, Professor of Law and Trustee of The Equal Rights Trust, delivered this speech at Makerere University, Kampala, assessing the impact that this Bill would have on human rights.

I would like to thank the Human Rights and Peace Centre for inviting me here this after- the struggle for human rights over the years; noon to share my views on this bill. It is great hatred and discrimination that has affected that HURIPEC organised this to be a dialogue iii. Third, I will highlight the social meaning and not a debate because debates have a of the bill; and tendency to polarise and divide along irra- iv. Finally, I shall put on my legal hat and out- tional gut-level responses. A dialogue, on the line the legal implications that this bill holds other hand, usefully sets the stage for people for our country if passed into law. to listen to each other with understanding and tolerance and helps build bridges. I hope 1. Common Issues of Concern stepping stone for all of us to embark on a I have scrutinised the bill thoroughly and the rewardingthat this public journey dialogue of mutual will respect, mark the simple first Honourable Member of Parliament David decency and fairness. Bahati will be surprised to learn that I share some of his convictions. For example, Hon. Mr. Chairperson— Bahati, I share your desires as expressed in the preamble to the bill: My brief talk this afternoon is divided into 1. To strengthen the nation’s capacity to deal four sections: with emerging internal and external threats to the family unit. It is nevertheless impor- i. First, I will address issues of mutual con- tant to point out that most of these can hardly cern that I share with Hon. Bahati [the MP be fought through the regulatory mechanism who introduced the Anti-homosexuality Bill of the law; – editor's note]; 2. To protect the cherished culture of the ii. Secondly, I will open the window of his- people of Uganda, particularly the positive aspects of it; tory and offer us a glimpse of the politics of

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3. To protect Ugandan children and youth d) Levirate marriages where a man inherits who are vulnerable to sexual abuse and ex- his dead brother’s wife were a customary re- ploitation—whether the abuse is hetero- or quirement in many African communities. homosexual. While these may have been cultural practices I do not have the time and space this after- at some point in our history, it is also impor- noon to engage in a detailed sociological dis- tant to recognise that family institutions all cussion of the concept that the bill refers to over the world are undergoing rapid trans- formation. The changes that we see in this it is my humble opinion that the concept basic unit of society are the result of many needsas the “Traditional to be unpacked African and Family”. scrutinised. However, Mr. factors, including economic crises, an in- Chairperson, as you very well know, Africa is creasing number of working mothers, tech- a vast continent with an extremely rich and diverse cultural history. Indeed, it would be natural disasters, globalisation, migration, next to impossible to mark a particular insti- thenological HIV/AIDS advancements, pandemic, etc. armed Many conflicts, of these tution as the one and only “Traditional Afri- changes and indeed the evolution of culture cannot be halted, certainly not through law.

Ican will Family”. cite just a few examples to demonstrate Perhaps the undisputed value that is a com- that matrimonial relations among various mon denominator in all traditional institutions of the family in Africa is the group deal: solidarity that we have embedded in our ex- African communities have differed a great tended family networks. Unfortunately, the support, stability, love and respect that were traditionally taboo among the Baganda, mar- the hallmark of this family model are rapidly riagesa) While among marriage blood-related between firstkin were cousins consid was- being eroded and will soon become history. ered the best unions among the Bahima here in Uganda; Thus, while I agree with you, Hon. Bahati, that we must seek ways of dealing with is- b) There is the phenomenon of chigadza- sues that threaten our families, I do not agree mapfihwa where the family of a barren wife that homosexuality is one of those issues. Mr. among the Ndaus of Zimbabwe would "do- Chairperson, ladies and gentlemen, what is- nate" her brother’s daughter to her husband sues currently threaten our families here in to become a co-wife and bear children on be- Uganda? I will name a few: half of the barren woman; a) Blood-thirsty Ugandans and traditional c) Practices of non-sexual woman-to-woman healers that believe that their good fortune marriages among various African customs, will multiply through rituals of child sacri- for example the Nandi and Kisii of Kenya, the Igbo of Nigeria, the Nuer of Sudan and the Kuria of Tanzania for purposes of coping b)fice; Rapists and child-molesters who pounce with various reproductive, social and eco- on unsuspecting family members. Research nomic problems; shows that over 50% of child sexual abuse undertaken by the NGO Hope after Rape

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reports involve children below ten years of i) Rising poverty levels and growing food age, and the perpetrators are heterosexual insecurity which lead to hunger, disease, suf- men who are known to the victims;1 the latest report from the Uganda Bureau of c) Sexual predators that breach the trust Statisticsfering and show undignified that over living. 60% Figures of Ugandans from placed in them as fathers, teachers, religious living in rural areas live below the poverty leaders, doctors, uncles, and sexually exploit line.6 young girls and boys. A 2005 report by Rais- ing Voices and Save the Children revealed I do not see how two people who are in a lov- that 90% of Ugandan children experienced ing relationship and harming no one pose a 2 threat to the family simply because they hap- pen to be of the same sex. The argument that d)domestic Abusive violence partners and who defilement; engage in domestic homosexuality is a threat to the continuity violence, whether physical, sexual or emo- of humankind and that it will lead to the ex- tional. The 2006 national study on domes- tinction of human beings in the world simply tic violence by the Law Reform Commission does not hold water because there are too - many heterosexuals in the world for that to sive in our communities. Sixty-six percent of become a reality. How many of you in this peopleconfirmed in all that regions domestic of Uganda violence reported was perva that domestic violence occurred in their homes time soon?... So, just as the priests, nuns and and the majority of the perpetrators were monksroom would who are “convert” sworn toto a homosexuality life of celibacy willany 3 The Uganda not cause the extinction of humanity, homo- Demographic Health Survey of 2006 put the sexuals will not either. “male heads of households”.4 2. Lessons from History figuree) Parents slightly who higher force at 68%; their 14-year old daughters to get married in exchange for Anyone who cares to read history books bride price and marriage gifts; knows very well that in times of crisis, when people at the locus of power are feeling vul- f) A whole generation of children who were nerable and their power is being threatened, either born and bred in internally displaced they will turn against the weaker groups in persons camps or abducted by the Lords Re- society. They will pick out a weak voiceless sistance Army (LRA) in the northern sub-re- group on whom to heap blame for all society’s troubles—refugees, displaced populations, stateless persons a.k.a. illegal immigrants, g)gion The of millionsKitgum, ofGulu children and Pader orphaned districts; by HIV/ minorities with no status, children, the poor, AIDS. The Uganda Aids Commission puts the the homeless, commercial sex workers, etc. cumulative number of orphans due to AIDS at 2 million;5 point: I will offer a few examples to illustrate this h) The all-powerful patriarchs that demand ■ In Uganda, colonialists at various times total submission and rule their households blamed traditional chiefs and elders as well with an iron hand; as Muslims as the main impediments to progress and civilisation;

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■ Dictator Idi Amin blamed Asians for Ugan- where did the idea of destroying homosexu- da’s dire economic problems and expelled all ality come from? As his Excellency President Indians in the early 1970s; Museveni pointed out at the inaugural Young Achievers Awards Ceremony last weekend, ■ homosexuals existed prior to the coming of threatened during his second regime in Europeans to Uganda. According to the Presi- the When early Milton 1980s Obote’s he embarked political on power a deliber was- dent, “[t]hey were not persecuted but were ate campaign of hostility towards refugees not encouraged either".8 The idea of destroy- in Uganda, particularly those of Rwandese ing homosexuality came from colonialists. In - other words, homosexuality was not intro- yarwanda in Uganda and the whipping up duced to Africa from Europe as many would ofextraction. anti-Rwandese Obote’s sentiments persecution included of the Ban the want us to believe. Rather, Europe imported constant reference to his political opponent legalised homophobia to Africa. Yoweri Museveni as a “foreigner from Rwan-

in Uganda directly through laws that were im- ■da”; In the 20 years that northern Uganda suf- portedHomosexuality from Britain was introducedduring colonialism. as an offence And what did these same colonialists think of the

atfered Kony armed7 and conflict, the LRA the was National blamed Resistance for all the certainly did not introduce sodomy laws in Movement administration pointed fingers order“Traditional to protect African the Family”traditional in Uganda? African Theyfam- north. ily. In fact they believed that the traditional atrocities and suffering of the people in the African family was inferior to their nuclear ■ The transmission of HIV/AIDS at various monogamous one and considered the for- points in our history has been blamed on mer barbarous and "repugnant to good con- - science and morality". This colonial attitude mercial sex workers, truck drivers, young womendifferent aged “weak” 15-23 constituents and others. including com case of R. v. Amkeyo, in which Justice Hamil- tonwas dismissed well exemplified customary in themarriages infamous as 1917mere ■ When native South Africans faced a dire "wife purchase". economic crisis, they turned against black - Today, with all the economic, social and political crises facing Uganda, homosexuals xenophobic“foreigners”, attacksblaming against them for helpless the high immi un- grants/migrantsemployment rates and and refugees sparking in May off 2008. brutal - present a convenient group to point fingers The lesson drawn from these chapters in our gentlemen,at as the “biggest the re-criminalisation threat” or the “real of homo prob- recent history is that today it is homosexu- sexualitylem” to society. is meant Mr. to Chairperson, distract the attention ladies and of als under attack; tomorrow it will be another Ugandans from the real issues that harm us. exaggerated minority. It conveniently diverts the attention of the millions of Ugandans who have been walk- Homosexuality has troubled people for a very ing the streets for years with their college

and there are many debates around it. Mr. gentlemen, homosexuals have nothing to do Chairpersonlong time. Some and religionsdistinguished find itparticipants, distressing withcertificates the hundreds and no jobsof thousands on offer. ofLadies families and

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that sleep without a meal or the thousands mother who is trying to come to terms with of children who die unnecessarily every day her child’s sexual orientation may be dragged from preventable or treatable diseases such to police cells for not turning in her child to as malaria, diarrhoea, measles, pneumonia, the authorities. The same fate would befall etc. Homosexuals are not the ones respon- teachers, priests, local councillors, counsel- sible for the lack of drugs and supplies at pri- lors, doctors, landlords, elders, employers, mary health care centres. MPs, lawyers, etc.

3. The Social Implications of the Bill to the Furthermore, if your job is in any way related Average Ugandan to human rights activism, advocacy, education and training, research, capacity building You may think that this bill targets only ho- or related issues, this bill should be a cause mosexual individuals. However, homosexu- for serious alarm. In a very undemocratic and unconstitutional fashion, the bill seeks include “touching another person with the to silence human rights activists, academ- intentionality is defined of committing in such a broad the act fashion of homo as to- ics, students, donors and non-governmental to abuse and puts all citizens (both hetero- the space of civil society. The bill also under- andsexuality”. homosexuals) This is at a provisiongreat risk. highlySuch a provi prone- minesorganisations. the pivotal If passed role of into the medialaw, it willto report stifle sion would make it very easy for a person to freely on any issue. The point I am trying to witch-hunt or bring false accusations against make is that we are all potential victims of their enemies simply to destroy their repu- this draconian bill. tations and cause scandal. We have not forgotten what happened to Pastor Kayanja and Dr. Martin Luther King Jr. told us many years 9 ago, “Power at its best is love implementing the demands of justice, and justice at its best is other men of God in the recent past. love correcting everything that stands against term of imprisonment for up to three years love.” Article 1 of the Universal Declaration of forMoreover, any person the bill in authorityimposes aover stiff a homosexfine and -a Human Rights instructs us: “All human beings are born free and equal in dignity and rights.” hours of acquiring such knowledge. Hence Many great people that we respect and ad- theual who bill requiresfails to report family the members offender towithin spy on24 mire have spoken out for the rights of homo- one another. This provision obviously does sexuals. These include international award not strengthen the family unit in the manner winners and champions of freedom and that Hon. Bahati claims his bill wants to do, humanity - President Nelson Mandela, Arch- but rather promotes the breaking up of the bishop Desmond Tutu and President Barack family. This provision further threatens relationships beyond family members. What do former president of Botswana Festus Mogae I mean? If a gay person talks to his priest or addedObama. his Just voice yesterday, to those it who was have reported come that out in opposition to the Bahati Bill.10 bill requires that the priest or doctor breach his doctor in confidence, seeking advice, the We must remember that the principal mes- individual and immediately hand them over sage at the heart of all religions is one of totheir the trust police and within confidentiality 24 hours. Failure with the to gaydo love. (And now these three remain: faith, hope and love. But the greatest of these is love - 1 puts them at risk of being arrested. Or a

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Corinthians 13:13). All religions teach the The interpretation section (Clause 1) repli- virtues of tolerance and urge their followers to desist from passing judgment. Ladies and for elsewhere. Its novel provisions lie in the gentlemen, this bill promotes hatred, intoler- cates several definitions that are provided- ance, superiority and violence. Even if you lated activities. I have already alluded to the believe that homosexuality is a sin, this bill potentialattempt to danger define thathomosexuality Ugandans and face its from re is not the best method to address the issue. It the threatening and broad fashion in which is valid to have religious and spiritual anxiet- ies but our jurisprudence has a long history of separating the institutions of religion from Clausethe bill 13defines which a attempts“homosexual to outlaw act”. the “pro- the law. The law, Mr. Chairperson, does not - seek to ally any legal principle with a par- atic as it introduces widespread censorship ticular religion. Mr. Stephen Langa is free to andmotion undermines of homosexuality” fundamental is veryfreedoms problem such deliver his lectures on morality but it is unac- as the rights to free speech, expression, as- ceptable to reduce what he is preaching into sociation and assembly. Under this provision an unscrupulous person aspiring to unseat a 11 a legal analysis of this bill. member of parliament can easily send the in- law. In my final submission I want to turn to cumbent MP unsolicited material via e-mail 4. The Legal Implications of the Bill or text messaging, implicating the latter as Mr. Chairperson, ladies and gentlemen, the Anti-homosexuality bill has a total of 18 one “promoting homosexuality”. After being clauses; 12 of these 18 clauses (i.e., 67%) Secondly,framed in by that criminalising way, it will the be “funding very difficult and are not new at all as they simply replicate sponsoringfor the victim of to homosexuality shake free of the and “stigma”. related what we already have on our law books. So - liament has been given a bill two-thirds of activities”, the bill deals a major blow to thewhose first content point I duplicates want to highlight existing is laws. that Par Take, for example, the Most At Risk Popula- tions’Uganda’s Initiative public introduced health policies by the and Ministry efforts. of So, let us examine the content of the remain- - ing six clauses that introduce new legal pro- lations in a comprehensive manner to curb visions. theHealth HIV/AIDS in 2008, scourge. which targets If this specific bill becomes popu law, health practitioners as well as those that Clause 6 provides for the recognition of the have put money into this exemplary initiative will automatically be liable to imprisonment victim of homosexual assaults. This is a pro- for seven years! The clause further under- ceduralright to issue privacy that and no confidentialityone can dispute for and the it mines civil society activities by threatening can easily be inserted in the Penal Code provisions that criminalise rape and aggravated intimidating tactics to shackle their directors andthe fundamentalmanagers. rights of NGOs and using

defilement. Clause 14 introduces the crime of “failure to extremely problematic from a legal point of view.Nevertheless, They violate the remainingUganda’s Constitution five clauses andare have noted above, under this provision any many regional and international instruments persondisclose in the authority offence” is obliged of homosexuality. to report a ho -As I mosexual to the relevant authorities within

that Uganda has ratified.

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24 hours of acquiring knowledge of their sexual orientation. Not only does this pro- any rational basis for such inordinate at- vision infringe on the right to privacy but it tentionsuch provision to homosexuality. is made. It Andis difficult how exactlyto see is practically unenforceable. It dangerously will they enforce this provision? Is the gov- opens up room for potential abuse, black- ernment going to storm the bedrooms of mail, witch-hunting, etc. Do we really want to consenting adults, or deploy spies to follow move sexual acts between consenting adults them when they travel abroad in order to into the public realm? establish who they have slept with and how they did it? Does this include heterosexual Clause 16 relates to extra-territorial juris- couples that engage in anal sex? What about diction, and basically confers authority on our constitutional right to privacy? In short, Ugandan law enforcers to arrest and charge this provision of the Bill is a gross abuse of a Ugandan citizen or permanent resident the principle of extra-territoriality. But more who engages in homosexual activities out- importantly, the bill carries hidden venom side the borders of Uganda. This law enforce- that is bound to spread beyond persons that ment model is normally used in international engage in homosexuality. crimes such as money laundering, terrorism, etc. The Ugandan Penal Code already pro- Perhaps the most shocking aspect of this vides for crimes that call for extra-territorial- bill is Clause 18, which requires Uganda to ity. All these touch on the security of the state opt out of any international treaty that we - e.g. treason, terrorism and warmongering (see S. 4 of the PCA). spirit of the bill. Article 287 of the Constitu- tionhave obligespreviously Uganda ratified to fullythat goessubscribe against to the all within and partly outside Uganda, the Penal prior to the passing of the 2005 Constitution. CodeWhen provides: it comes to offences committed partly Weits international cannot legislate treaty or obligations simply wish ratified these obligations away. Indeed, international law “When an act which, if wholly done prohibits us from doing such a thing. Article within the jurisdiction of the court, would be 26 of the Vienna Convention on the Law of Treaties clearly sets out the pacta sunt ser- within and partly beyond the jurisdiction, ev- vanda rule which requires that “Every treaty anery offenceperson who against within this the jurisdiction Code is done does partly in force is binding upon the parties to it and or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly Articlemust be 123performed (1), a by provision them in good deliberately faith.” placed in Chapter Seven of the Constitution (dealing with the powers of the Executive) Notewithin that the clausejurisdiction.” 16 of the[Section Bill employs5] the says: than S.5 of the Penal Code that uses the con- “The President or a person autho- disjunctive “or”, which gives it wider reach- rised by the President may make treaties, con- poses to do is to elevate homosexual acts to a ventions, agreements, or other arrangements positionjunctive of“and”. such Therefore, importance what that the they Bill appear pro between Uganda and any other country or be- to be at an even higher plane than murder, tween Uganda and any international organi- rape or grievous bodily harm for which no

sation or body, in respect of any matter.”

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This is a wide power that can only be limited private member’s bill. Do we really in our by express language under the Constitu- heart of hearts want our country to be the tion itself. A major procedural limitation is - found in the next clause of the same article, ers spy on their children, that teachers refuse which provides: first on the continent to demand that moth that our gay and lesbian citizens are system- “Parliament shall make laws to aticallyto talk about and legallywhat is, terrorised after all, “out into there” suicide? and Ladies and gentlemen, you may strongly agreements or other arrangements made un- disagree with the phenomenon of same-sex govern ratification of treaties, conventions, erotic conduct; you may be repulsed by what you imagine homosexuals do behind their Anotherder clause substantive (1) of this article.” limitation (Art. is 123 found (2)) in bedroom doors; you may think that all homosexuals deserve to burn in hell. However, President cannot by the mechanism of Ar- it is quite clear that this Bill will cause more the Bill of Rights, in Chapter 4. In effect, the problems around the issue of homosexuality be to amend the Constitution. Indeed, any than it will solve. I suggest that Hon. Bahati’s suchticle 123(1)treaty wouldsign treaties be, as awhose matter effect of munici would- bill be quietly forgotten. It is no more or less pal law, null and void to the extent of such than an embarrassment to our intelligence, inconsistency, in terms of Article 2 (2) of the our sense of justice and our hearts. Constitution. Thank you for your attention. Parliament therefore has only a procedural Responses in the Questions and Answers role to incorporate treaties into Ugandan law Session – and that is the full extent of its powers. It cannot purport to proscribe ex ante the limit Mr. Chairperson, in the interest of time I will of the President’s treaty-making powers. Nor respond to only three issues: indeed can parliament bind its own future action by purporting to exercise in advance ■ its power to scrutinise treaties signed by the President and determine which of them are “Mad some people”, of the words“like bats used seeing to describe the world ho- to ratify. All that parliament can do is to ei- mosexualsupside down”, by the “animals”, audience. “wicked”… All the heckling These ther ratify or refuse to ratify a treaty after it and vicious jeering… Mr. Bahati, you com- is signed, and in the latter case such a treaty menced your talk this afternoon by saying, does not become part of Ugandan law. This is the balance of executive power and demo- you were in any doubt about the fact that cratic input achieved by Article 123, and one your“We arebill is not whipping in the hate up hatred campaign.” and violence Well, if that clause 18 of the Bill is incompetent to amend. discourse that transpired in the room this afternoon.against homosexuals, just reflect back on the Mr. Chairperson, distinguished participants, I wish to end by appealing to members of ■ Secondly, Mr. Chairperson, I think it is the parliament and all Ugandans who believe in height of paternalism and arrogance for Hon. human rights and the dignity of all human Bahati and Mr. Langa to stand here and say beings to reject the Anti-homosexuality bill. they are legislating against homosexuals I am imploring Hon. Bahati to withdraw his because they love them, they feel sorry for

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them, that they face the risk of cancer, that human beings as worthy of dignity and rights their lives are reduced by 20 years, etc. Ho- and I am not obsessed with how people have mosexuals are not asking for your pity, love, sex in the privacy of their bedrooms. I sup- approval or redemption. They only want you port the rights of all human beings regardless of how and with whom they have sex as long as they are adults and are not harming any- to affirm their humanness and their right to one. So, the question should not be whether ■exist Finally, and be Mr. different. Chairperson, Hon. Bahati asked I support homosexuality, or heterosexuality the question, “Tamale, do you support homo- for that matter. that I am a simple woman who recognises all Thank you very much, Mr. Chairperson. sexuality?” I would like to tell Hon. Bahati

1 A study cited in Uganda Youth Development Link, Report on Sectoral Study on Commercial Sexual Exploitation of Children in Uganda Labour and Social Development, January 2004. , Commissioned by the International Labour Organisation (ILO) and the Ministry of Gender, 2 See Raising Voices and Save the Children (edited by Dipak Naker), Violence Against Children: The Voices of Ugan- dan Children and Adults

3 See Law Reform Commission,, 2005, available A Study Report at: http://www.raisingvoices.org/files/VACuganda.RV.pdf. on Domestic Violence, April 2006, p. 112.

4 See http://www.measuredhs.com/pubs/pdf/FR194/FR194.pdf.

5 Value for Money Audit Report on Uganda AIDS Control Project,

See Report by the Office of the Auditor General, 6October 2007,Spatial available Trends at: of http://www.oag.go.ug/docs/UACauditreport.pdf. Poverty and Inequality in Uganda: 2002-2005, February 2009.

7 SeeJoseph UBOS, Kony (b. 1961) is the Head of the Lord’s Resistance Army, a guerrilla group that was engaged, since 1986, in a violent campaign in the northern part of Uganda to establish a theocratic government based on the Christian Bible. (Editor’s note)

8 See Daily Monitor, Nov. 16, 2009, p. 2.

9 In 2009, a scandal erupted when Pastor Robert Kayanja of the Miracle Centre Cathedral in Kampala was accused ofahead sexually of a visitabusing by American two teenage preacher male church Benny members.Hinn to the Other Miracle pastors Centre had Cathedral. assisted the(Editor’s teenagers note) in filing their complaints, which were later withdrawn. Kayanja's supporters accused rivals of seeking to damage his reputation 10 See Daily Monitor, November 17, 2009, p. 10.

11 Stephen Langa was the organiser of a March 2009 conference in Kampala of evangelical Christians featuring militant U.S. preachers whose purpose was to promote traditional family values and oppose homosexuality. The conference is said to have had a strong impact on Ugandan politicians and to have facilitated the elaboration of the (Editor’s note)

Anti-homosexuality Bill introduced in October 2009.

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ERT Legal Brief on the Ugandan Anti-homosexuality Bill 2009 (Excerpts)

On 9 December 2009, ERT has submitted a legal brief to Ugandan President Yowere Museveni outlining how adoption of the Anti-homosexuality Bill currently being debated would breach both Uganda’s Constitution and its international treaty obligations. ERT’s submission calls on President Museveni and Ugandan parliamentarians to reject the Bill in its entirety, and to review the constitutionality of section 145 of the Ugandan Penal Code, which is currently used to prosecute homosexual conduct.

The 23-page submission by The Equal Rights Trust focuses solely on the rights to equality and non-discrimination, providing a detailed analysis of the way in which the proposed Bill would affect the enjoyment of these rights. ERT argues that protection from discrimination provided by the Constitution of Uganda includes protection on grounds of sexual orientation and gender identity. It further argues that the Bill does not comply with the Constitution’s own provisions for restricting fundamental rights. In the second part of the submission, ERT turns to questions of compliance with international law from the point of view of equality and non-discrimination.

Excerpts of Part 1 of the legal brief are published below. Footnotes have been omitted.

To President Yoweri Kaguta Museveni

Kampala, Uganda State House Nakasero, P.O. Box 24594 Dear Mr President,

I write on behalf of The Equal Rights Trust (ERT) to express our serious concern about the Anti-homosexuality Bill 2009 which was introduced before the Ugandan parliament on 14

AsOctober you must 2009. be (…) aware, many stakeholders both inside and outside Uganda have expressed concern with the Anti-homosexuality Bill. In view of this, in the present submission we will draw your attention to issues arising from this Bill only from the point of view of the rights

independent opinion on whether the Bill is compatible with the Constitution of Uganda and to equality and non-discrimination, which are our focus of expertise, offering an objective

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adopted, the Bill would contravene both. If passed, the provisions of the Anti-homosexuality Billinternational would legitimise, law in respect institutionalise, to these rights. increase On andthe basisperpetuate of our theanalysis, profound we conclude discrimination that if people in Uganda today. and gross inequality reportedly suffered by lesbian, gay, bisexual and transgender (LGBT)

The Bill proposes to “fill the gaps in the provisions of other laws”, in particular section 145 of- the Penal Code, which in effect makes same-sex conduct illegal through the criminalisation of “unnatural offences”. The Bill’s explicit purpose is to criminalise not only same-sex relation shipsSummary but also of Findings the actions of those who promote the rights of LGBT people.

In this brief, The Equal Rights Trust presents substantive legal arguments which establish the conclusion that the Anti-homosexuality Bill is contrary to: violate, inter alia, Article 21 (equality and freedom from discrimination) of the Constitution. • The Constitution of Uganda: In particular, the adoption of the Anti-Homosexuality Bill would the Anti-Homosexuality Bill would contravene Uganda’s obligations under the International Covenant• Uganda’s on obligations Civil and Politicalunder international Rights, the Internationalhuman rights Covenant law: In particular, on Economic, the adoption Social and of

Cultural Rights and the African Charter on Human and Peoples' Rights.

Anti-homosexualityOn the basis of the legalBill is analysis adopted, presented we urge you,herein in theand strongest in the anticipation possible terms, of the to: egregious (i)discrimination, Reject, in its entirety,stigmatisation the Anti-homosexuality and persecution that Bill; LGBT and people and others will suffer if the (ii) Take steps to review the constitutionality of section 145 of the Penal Code and remove this provision from Uganda’s legislation. (…)

1. The Constitution of Uganda

Article 2 of the Constitution of Uganda states clearly that the Constitution is the supreme law of Uganda, that it is binding on all authorities and persons throughout the country and that any other law or any custom which is inconsistent with its provisions shall be void. A strong commitment to equality pervades the Constitution. The Preamble provides that the people of Uganda are committed to building a better future by establishing a socio-economic and political order through a popular and durable national Constitution based on the principles of unity, peace, equality, democracy, freedom, social justice and progress. Furthermore, a commitment to an equal and inclusive society is expressed through Article III (ii) which states: time recognising the existence of their ethnic, religious, ideological, political and cultural di- “Every effort shall be made to integrate all the peoples of Uganda while at the same versity.”Most notably the Constitution espouses a fundamental right to equality through Article 21.

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1.1 The Right to Equality

Article 21 (1) states:

“All persons are equal before and under the law in all spheres of political, economic,

(…) social and cultural life and in every other respect and shall enjoy equal protection of the law.”

- The Anti-Homosexuality Bill creates several new offences within Ugandan criminal law. These include: (1) “The offence of homosexuality” which under Article 2 criminalises same-sex sex ual conduct (including “touching with the intention to commit the act of homosexuality”) and carries a penalty of life imprisonment; (2) “Aggravated homosexuality” under Article 3 which- imposes the death penalty on persons who are found guilty of committing “homosexuality” in a range of “aggravated” circumstances including “committing homosexuality” with per asons marriage under withthe age a person of 18, ofand the “committing same sex are homosexuality” liable on conviction where to the life offender imprisonment. is living with HIV; and (3) “Same-sex marriage” which under Article 12 provides that people who contract - criminate against people on grounds of their sexual orientation. The adoption of this Bill wouldThese offencescreate arbitrary along legalwith provisionsmany other withincontained the incriminal this Bill justice overtly system and systematically which are inher dis- ently discriminatory and clearly contravene Article 21 of the Constitution of Uganda.

people and those who would defend their basic human rights – and seek to subject these The offences introduced by the Anti-Homosexuality Bill target a certain class of people - LGBT

protectionpeople to arbitrary, of the law; unreasonable (ii) criminalise and their unjustifiable ability to discrimination form private relationships; within Ugandan (iii) criminal make it law. In doing so the Bill seeks to (i) systematically deny LGBT people their right to enjoy equal to equality under Article 21. The Constitutional Court of Uganda has in previous decisions impossible for LGBT people to live their lives with dignity; and (iv) deny their inherent right discrimination on grounds of sex: offered a clear interpretation of the purpose of Article 21 of the Constitution in relation to “The concept of equality in the 1995 Constitution is founded on the idea that it is generally wrong and unacceptable to discriminate against people on the basis of personal characteristics such as their race or gender (...) There is urgent need for Parliament to enact the operational laws and scrap all the inconsistent laws so that the right to equality ceases to

life, but where Parliament procrastinates, the courts of law being the bulwark of equity would be an illusion but translates into real substantial equality based on the reality of a woman's

notArticle hesitate 21(2) to of fill the the Constitution void when states:called upon to do so or whenever the occasion arises.”

“Without prejudice to clause (1) of this Article, a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social

or economic standing, political opinion or disability.”

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Sexual orientation is not explicitly listed as a prohibited ground of discrimination within Ar- ticle 21(2). Nonetheless a solid legal basis exists for the conclusion that Article 21(2) pro- conclusion: i.hibits Read discrimination as a whole, Article on the 21 protectsgrounds allof personssexual orientation. from discrimination; Two justifications support this ii. Sexual orientation is covered through a test for adding of new grounds to the enumerated grounds in Article 21(2)

(i) Read as a whole Article 21 protects all persons from discrimination

The interpretation of the Constitutional Court case in Uganda Association of Women Lawyers and Others v Attorney General makes it clear that the grounds listed in Article 21(2) are illus- trative and not exhaustive. The opinion of A. E. N. Mpagi-Bahigeine Ja states that the concept of equality within Article 21 is founded on the idea that “it is generally wrong and unacceptable to discriminate against people on the basis of personal characteristics such as their race - able to discriminate on grounds which are analogous to race or sex. This reasoning taken togetheror gender”. with The the prevailing text of Articleimplication 21(1) of which this reasoning sets out isthat that the it isright also to wrong equality and protection unaccept applies to all persons creates a strong presumption that under Article 21(2) discrimination on the grounds of sexual orientation is unconstitutional.

(ii) Sexual orientation is covered through a test for adding new grounds to the enumerated grounds in Article 21(2)

Most jurisdictions have adopted a variant of one of two broad approaches when setting the

It narrowly construes the right to equality to apply to a limited range of protected grounds, orpersonal classes, scope and ofrespective the prohibition personal of discrimination.characteristics, Thesuch first as race, is termed sex or a closed-listdisability onapproach. the basis that these characteristics have historically resulted in discrimination and victimisation against individuals who have them. Through specifying that the right to equality applies only to certain characteristics, a closed list approach guarantees that the scope of protection from discrimination is not overly broad. It also ensures that the right to equality is not misused by preventing legitimate distinctions from being made or by allowing spurious claims of discrimination.

While the closed list approach permits greater legal certainty, it is often too restrictive and on a new or emerging ground undermines the object and purpose of the constitutional guar- anteesnon-flexible of equality in its application. and of national The impossibilityequality legislation. to seek Consequently, protection from many discrimination legitimate claims based of discrimination would fall because they cannot be argued within an explicitly prohibited ground.

A second approach - the open list approach - also explicitly lists grounds of discrimination such as race, sex or political opinion which have historically resulted in discrimination against individuals with certain group characteristics. In addition to these, the open list approach

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prohibited by law. This approach recognises that the grounds on which serious discrimina- tionincludes manifests the expression itself often “other evolve status”, or are born which anew enables from new social grounds events andof discrimination that individuals to are be often victims of discrimination on grounds which do not necessarily have a link to historical oppression, victimisation or marginalisation. It therefore allows courts and other judicial bodies to expand the list of prohibited grounds of discrimination to analogous cases in which individuals can experience similar unjust discrimination.

International human rights instruments elaborated in the framework of the United Nations in the wake of the 1948 Universal Declaration of Human rights follow the open list approach,

Committeeestablished andfirst the by Committee Article 2 of on that Economic, Declaration. Social Makingand Cultural use of Rights the open have listdetermined – the “other that discriminationstatus” provision, on internationalgrounds of sexual human orientation rights treaty is covered bodies, by including the provisions the UN of Humanthe respective Rights Covenants under their oversight (the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) because it is analogous to the explicitly proscribed grounds of discrimination. Yet many legal systems avoid the open

which potentially any distinction regardless of its triviality could invoke a claim of discrimi- nationlist approach and a violation as it allows of thean overly right to broad equality. and flexible interpretation of the right to equality in

The Declaration of Principles on Equality (2008), which can be described as the current international understanding of the principles on equality as well as a moral and professional consensus on equality, was agreed upon by a group of experts from all regions of the world,

arising from both the open-list and closed-list approaches to grounds of discrimination, the Declarationwhose work of was Principles facilitated on by Equality The Equal has developedRights Trust. a compromise In response solutionto the sets that of retainsdifficulties the

This ensures that the protection against discrimination is not extended to spurious or il- legitimateflexibility and claims inclusiveness of discrimination. of the open Principle list approach 5 of the but Declaration encases it of within Principles a strict on legal Equality test. states:

“Discrimination must be prohibited where it is on grounds of race, colour, ethnicity, descent, sex, pregnancy, maternity, civil, family or carer status, language, religion or belief, political or other opinion, birth, national or social origin, nationality, economic status, association with a national minority, sexual orientation, gender identity, age, disability, health status, genetic or other predisposition toward illness or a combination of any of these grounds, or on the basis of characteristics associated with any of these grounds.

Discrimination based on any other ground must be prohibited where such discrimination (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or

(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on the prohibited grounds stated above.”

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Therefore, applying the test set out in this document of good practice, in order for sexual orientation to constitute a prohibited ground of discrimination, it must be shown that either: (a) Discrimination on the grounds of sexual orientation causes or perpetuates systematic disadvantage in Uganda; or (b) Discrimination on the grounds of sexual orientation undermines human dignity in Ugan- da; or - ment of a person’s rights and freedoms in a serious manner that is comparable to discrimination(c) Discrimination on the prohibited on grounds.the grounds of sexual orientation adversely affects the equal enjoy

We now turn to examine whether the adoption the Anti-Homosexuality Bill, which would legitimise and perpetuate discrimination on grounds of sexual orientation, would be compatible with this modern understanding of the prohibited grounds of discrimination.

(a) Discrimination on the grounds of sexual orientation causes or perpetuates systematic disadvantage in Uganda

The Anti-homosexuality Bill criminalises activities on the grounds of sexual orientation. It not only criminalises acts of people who engage in same-sex conduct but also criminalises acts of people who promote the rights of LGBT persons and those who fail to report “the conduct,offense theyof homosexuality”. will be committing The effect a crime. of Furthermore,the Bill is that anyone on the whogrounds aids, thatabets, a gay,counsels, lesbian or or promotesbisexual person the freedom engages, of peopleattempts to engageto engage, private or “conspires same-sex conductto engage” also in commits private asame-sex crime.

- - ers).The Bill It perpetuates therefore reaffirms the existing the existing discrimination, disadvantage victimisation and introduces and disadvantage new forms experiencedof disadvan tage on the grounds of sexual orientation (for both LGBT people and human rights defend by LGBT people as a result of the application of the criminal code by making a broad range- of activities aimed at promoting tolerance toward and inclusion of LGBT people a criminal offence. The Bill also promotes the systematic disadvantage of LGBT people and those associ (…)ated with the LGBT movement both inside and outside Uganda. South Africa has acknowledged the disadvantaging and negative impact that sodomy laws have had on gay men. In the leading judgment of the Constitutional Court which declared these laws unconstitutional, Justice Ackerman stated: on gay men in the light of the approach developed by this Court (...) (a) The discrimination is “I turn now to consider the impact which the common law offence of sodomy has andon a identity specified of ground. gay men Gay at a men deep are level. a permanent It occurs at minority many levels in society and in and many have ways suffered and is oftenin the past from patterns of disadvantage. The impact is severe, affecting the dignity, personhood difficult to eradicate.”

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The Canadian Supreme Court also recalled in the case of Vriend v Alberta that its previous jurisprudence declared that sexual orientation was analogous to other grounds contained in section 15(1)18 of the Canadian Charter of Rights and Freedoms because of the disadvantage

LGBT people “In Egan suffered., it was held, on the basis of ‘historical social, political and economic disad-

176), as well as previous judicial decisions (at para. 177), that sexual orientation is a ground vantage suffered by homosexuals’ and the emerging consensus among legislatures (at para.

Theanalogous South toAfrican those andlisted Canadian in s. 15(1).” jurisprudence illustrates that constitutional guarantees to

people inherently disadvantage them and infringe their right to equality. The Anti-homosex- substantive equality require that laws which systematically criminalise the activities of LGBT

seeksuality toBill severely seeks to impair victimise, their criminaliseability to lead and a stigmatisenormal life. all The those negative associated consequences with the of LGBT this movement in Uganda. All offences within the Bill disadvantage LGBT people in a way which would be unable to participate in any way in Ugandan economic, social, political, cultural or civilBill would life. leave LGBT people at such a disadvantage in comparison to everyone else that they

(b) Discrimination on the grounds of sexual orientation undermines human dignity

The second test on which another ground of discrimination ought to be added to the list of protected grounds is whether it undermines human dignity. The jurisprudence of the Cana- dian Supreme Court, in the case of Vriend v. Alberta, has declared that recognising the human - ity under section 15 (1) of the Canadian Charter of Rights and Freedoms: dignity of people with a different sexual orientation is critical to ensuring their right to equal “It is so deceptively simple and so devastatingly injurious to say that those who are - thy. Yet, if any enumerated or analogous group is denied the equality provided by s. 15 then thehandicapped equality of or every of a differentother minority race, groupor religion, is threatened. or colour Thator sexual equality orientation is guaranteed are less by ourwor constitution. If equality rights for minorities had been recognized, the all too frequent trag- edies of history might have been avoided. It can never be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of

Upholdingevery individual.” human (…) dignity has also been put forward by the Constitutional Court of South Africa as a fundamental basis to strike down sodomy laws. In the case of National Coalition for Gay and Lesbian Equality v Minister of Justice, CCT 11/98, 1998, the Court found that the sodomy laws violated the right to equality contained in section 9 of the Constitution of South

unfair, Justice Ackerman considered three elements to be material. First, the discrimination Africa. Confirming that the discriminatory impact which the sodomy law had on gay men was

is on a specified ground. Gay men are a permanent minority in society and have suffered in

The Equal Rights Review, Vol. Four (2009) 65

- hood and identity of gay men at a deep level. It occurs at many levels and in many ways and is the past from patterns of disadvantage. The impact is severe, affecting the dignity, person private conduct of consenting adults which causes no harm to anyone else. It has no other purposeoften difficult than toto criminaliseeradicate. Second, conduct the which nature fails of to the conform power to and the its moral purpose or religious is to criminalise views of a section of society. Third, the discrimination which the sodomy laws constituted has, for the impaired their fundamental dignity. reasons already mentioned, gravely affected the rights and interests of gay men and deeply The Indian judiciary recently moved to strike down section 377 of the Indian Penal Code, which criminalised homosexuality, and declared it unconstitutional. In the Naz Foundation decision, the Delhi High Court held that the discrimination perpetuated by section 377 severely the inevitable conclusion was that the discrimination caused to the gay community was unfair,affects unreasonable the rights andand interests in breach of of homosexuals Article 14 (right and todeeply equality) impairs of thetheir Constitution dignity. It found of India. that The High Court found that section 377 also violated Article 15 (right to non-discrimination) of the Constitution and concluded “that sexual orientation is a ground analogous to sex and

Thethat centralitydiscrimination of human on the dignity basis ofto sexualthe reasoning orientation of the is notCanadian, permitted South by ArticleAfrican 15”. and Indian courts in striking down laws and policies which discriminated against people on grounds of their sexual orientations has three important implications for the Anti-homosexuality Bill in Uganda. First, the Bill perpetuates an ideology that LGBT people are unnatural, immoral isand acceptable, a threat to if Ugandan not obligatory. society. Second, This fundamentally by imposing violates a life sentence the dignity penalty of all forLGBT engaging people in Uganda and encourages a system in which the stigmatisation and humiliation of LGBT people sends a blanket message that these people should be treated with the lowest possible regard, worth,private concern activities and the respect. Bill denigrates Third, treating LGBT people a person as the as lowesta criminal “class” because of Ugandan of a characteristic society and which is innate to them not only violates the human dignity of the individual -- it violates the dignity of all Ugandans by betraying their wish to build their society upon the democratic principles of equality, unity, tolerance and understanding as expressed in Article III of the Constitution. At its most fundamental level the purpose of the Bill seeks to undermine the the test set out in Principle 5 of the Declaration of Principles on Equality, provide protection fromhuman discrimination dignity of LGBT on the people grounds throughout of sexual Uganda. orientation. Therefore, Article 21(2) should, under

(c) Discrimination on the grounds of sexual orientation adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on the prohibited grounds

The third basis upon which other grounds of discrimination must be prohibited is when the a manner comparable to the discrimination on the explicitly prohibited grounds. The Anti- discrimination on that ground seriously affects the equal enjoyment of a person’s right in

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homosexuality Bill seriously restricts several rights and freedoms including, inter alia, the rights to equality, privacy, freedom of expression, association and assembly.

In determining whether the discrimination on grounds of sexual orientation would be comparable to discrimination on the grounds enumerated in Article 21(2), several factors have

Court, in the landmark decision of Harksen v. Lane, opined that there will be discrimination been identified as material by courts in other jurisdictions. The South African Constitutional- - verselyon an unspecified in a comparably ground serious if it is manner. based on The attributes Canadian or Supreme characteristics Court has which stated have that the what po prohibitedtential to impair grounds the offundamental discrimination dignity have of in persons common as human“is the factbeings, that or they to affect often servethem asad the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal Naz Foundation case cited above held that sexual orientation was analogous to sex and was therefore covered under Articleidentity”. 15 Based of the onIndian this jurisprudence,Constitution. the Delhi High Court in the

(…) Similar to race and sex, sexual orientation is a fact of nature and a permanent or long-lasting characteristic of the human person. (…)

As noted above, the Ugandan Constitutional Court has strongly emphasised that the “concept of equality in the 1995 Constitution is founded on the idea that it is generally wrong and unacceptable to discriminate against people on the basis of personal characteristics such

whole class of the people of Uganda as criminals because of their race or sex. The Constitu- tionalas their Court race ofor South gender.” Africa It would has considered be intolerant this to point: this concept if a law sought to categorise a

of gay men. “Just There as apartheid can be no legislation doubt that rendered the existence the lives of a lawof couples which punishesof different a form racial of sexualgroups expressionperpetually for at risk,gay men the sodomy degrades offence and devalues builds insecuritygay men in and our vulnerabilitybroader society. into Asthe such daily it lives is a

Itpalpable is clear invasiontherefore of that their under dignity all threeand a testsbreach set of out section in the 10 South of the African Constitution.” Protection of Equal- ity and Prevention of Unfair Discrimination Act 2000 and the Declaration of Principles on Equality 2008 discrimination on grounds of sexual orientation – which would inevitably be caused by the Anti-homosexuality Bill if adopted – runs counter to the Ugandan Constitution itself. It plainly causes and perpetuates systematic disadvantage, undermines human dignity

been caused if the Bill was concerned with one of the characteristics protected by Article and adversely affects the enjoyment of rights in a manner similar to that which would have- tion to be prohibited, the fact that the discrimination caused by the Anti-homosexuality Bill 21(2). While only one of these tests need to be satisfied to require a ground of discrimina 21(2). satisfies all three tests is a clear indication that sexual orientation should be read into Article

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1.2 The Exceptions and Limitations Permissible by the Constitution of Uganda

It is necessary to further consider whether the de jure discrimination which the Anti-homosexuality Bill seeks to enact is compatible with any of the limitations of fundamental rights permitted by the Constitution of Uganda. in two circumstances. First, Article 21(4) permits Parliament to enact laws that are aimed at:Derogating from the fundamental right to equality contained in Article 21 is only justifiable

“(a) implementing policies and programmes aimed at redressing social, economic, educational or other imbalance in society; or (b) making such provision as is required or authorised to be made under this Consti- tution; or

(c) providing for any matter acceptable and demonstrably justified in a free and Thedemocratic purpose society.” of Article 21(4)(a) seems to be to provide a mechanism to allow parliament to take positive measures to counter systematic disadvantage and discrimination without these measures violating Article 21 themselves. The Anti-homosexual Bill clearly does not fall within this category of legislative measures. Indeed, rather than seeking to redress the status of outcasts. Moreover, it seeks to punish those who do attempt to combat the discrimi- disadvantage and discrimination suffered by LGBT people, the Bill further perpetuates their

Nornation does and the oppression Bill fall within experienced the envisaged by LGBT remit people of Article in Uganda. 21(4)(b). Subsection (b) provides that Parliament may derogate from its obligations under Article 21(1) and (2) if it does so in - tution’s strong commitment to equality and integration of all people in Uganda, it is unclear howmaking the provisions introduction which of this are Bill “required could be or either authorised” required by orthe authorised Constitution. by the Given Constitution. the Consti

It is easy to see that the Anti-homosexuality Bill does not meet the conditions for derogation provided under Article 21(4)(c). Imposing life imprisonment and the death penalty for pri- - able in a free and democratic society. Indeed, in at least one respect, the Bill undermines one ofvate, the non-violent key components sexual of conduct a free and between democratic two consenting society: Article adults 13 is notof the acceptable Bill (promotion or justifi of homosexuality) seeks to impose severe restrictions on freedom of speech, a right protected elsewhere in the Constitution.

The second provision permitting derogation from Article 21 is provided by Article 43 of the Constitution, which permits the restriction of any of the fundamental rights contained in the Constitution where it is necessary to preserve the public interest. With reference to Article 43, the Bill’s memorandum puts forward only one public interest argument to justify a violation of LGBT people’s fundamental right to equality: that homosexual behaviour constitutes

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include: a “threat to the traditional family”. The memorandum to the Bill states that its objectives constitute a threat to the traditional family; • prohibiting and penalising homosexual behaviour and related practices in Uganda as they and declarations which are contrary or inconsistent with the provisions of this Act; • prohibiting the ratification of any international treaties, conventions, protocols, agreements

• prohibiting the licensing of organisations which promote homosexuality. homosexual conduct constitutes a threat to the traditional family lacks any factual basis or evidence;The public it interest appears claim to be in basedthis case on is deeply unjustifiable rooted for stereotypical three reasons. and First, prejudicial the charge attitudes that

conduct contradicts this assertion and no evidence exists to suggest that homosexual con- ductabout is LGBT a threat people. to the The traditional experience family. in countries Second, the which notion permit of the same-sex traditional relationships family is itself and subjective. As Sylvia Tamale points out, matrimonial relations among various African com-

does not permit any limitation of the enjoyment of the rights and freedoms prescribed that munities have differed a great deal. Third, “public interest” for the purposes of Article 43 Respect for the fundamental rights of each person is itself an essential aspect of the public are beyond what is acceptable and demonstrably justifiable in a free and democratic society. expense of such fundamental rights is itself an assault on the public interest. For this reason, theinterest latter in point a democratic would remain society. valid Therefore, even if it thewere protection a proven ofempirical the “traditional fact that notfamily” imprison at the-

even though no such fact has been established by research in any society. ing homosexuals in a given society has the effect of undermining the “traditional family” – (…) 1.3. Discrimination in the Enjoyment of the Right to Privacy

would,The offences if adopted, created violate by theArticle right 2 (offenceto privacy of contained homosexuality), in Article Article 27(2) 13of the(promotion Constitution of ho ofmosexuality) Uganda, which and provides:Article 14 (failure to disclose the offence) of the Anti-Homosexuality Bill

“No person shall be subjected to interference with the privacy of that person’s home,

Criminalisingcorrespondence, private communication activities between or other consenting property.” adults inherently infringes the human right to privacy set out in Article 27 of the Constitution. The criminalisation of such conduct Na- tional Coalition for Gay and Lesbian Equality v Minister of Justice (1998), Case CCT 11/98 the Southhas been African criticised Constitutional as a flagrant Court denial held of that the rightthe sodomy to privacy laws by in other place African in South courts. Africa In violated the constitutional right to privacy. Justice Ackerman stated:

“Privacy recognises that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference

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from the outside community. The way in which we give expression to our sexuality is at the core of this area of private intimacy. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy (...) the same time and independently a breach of the rights of privacy and dignity which, without The offence [sodomy] which lies at the heart of the discrimination in this case constitutes at

Atdoubt, paragraph strengthens 36 of the the Court’s conclusion judgment that the Justice discrimination Ackerman emphasisedis unfair.” the wider social harm caused by criminalising such private conduct:

“It is at the same time a severe limitation of the gay man’s rights to privacy, dig-

- allynity andand givesfreedom. rise Theto a wideharm varietycaused ofby other the provision discriminations, can, and which often collectivelydoes, affect unfairly his ability pre to- ventachieve a fair self-identification distribution of social and self-fulfilment. goods and services The harm and the also award radiates of social out into opportunities society gener for

Furthermore,gays.” in 2008 the High Court of Uganda in the case of Victor Juliet Mukasa and Yvonne Oyo v. Attorney General accepted that a search conducted without a warrant at the house of Ms Mukasa, President of the Sexual Minorities in Uganda, violated her right to privacy. In so doing, the court declared that Ugandan constitutional rights apply to gay, lesbian, bisexual and transgender people. Consequently, if this Bill was adopted it would overturn the inter-

- pretation of the High Court. It would also afford arbitrary and draconian powers to police and proportionlaw enforcement of Ugandan officials citizens – the theirinevitable constitutional outcome rightof which to privacy. would be the fundamental im pairment of LGBT people to enjoy private lives. As such it would inherently deny a significant - mosexuality Act 2009, if adopted, would violate Article 27 of the Constitution of Uganda, in On the basis of the legal reasoning presented above ERT is of the opinion that the Anti-ho- sion, all human rights defenders. respect to LGBT people, as well as all those who would promote LGBT rights, and by exten In addition to the substantive violation of Article 27, the Bill would also violate the accessory aspect of Article 21 of the Constitution. The constitutional right to non-discrimination and equality contained in Article 21 has two aspects: (i) a substantive and free-standing right to equality which is not necessarily associated with or dependent on the existence or exercise of

- natedany other against right in set relation forth by to law:the enjoyment “all persons” of areother equal rights “in set all spheresforth by oflaw, political, and in economic,particular othersocial rightsand cultural set forth life in and the in Constitution every other respect”;itself. The (ii) Anti-homosexuality an accessory right Bill not will to be violate discrimi the enjoyment and exercise of the right to privacy. This means that they will not only have their right toof privacyLGBT people as such and substantively of those who infringed, promote but LGBT the infringementrights to non-discrimination will be discriminatory, in the because the right to privacy enjoyed by persons with heterosexual orientations and/or persons who express opinions and acts in ways hostile or abusive to homosexuals will not be

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similarly infringed. The latter categories of persons will enjoy their privacy and not pay impossible penalties for being who they are or for holding their opinions or expressing their beliefs.

In conclusion, the Anti-homosexuality Bill, if adopted, will also violate the Article 21 right to non-discrimination in relation to the right to privacy as provided in Article 27 of the Consti- tution of Uganda.

2. International Law

If made law, the provisions within the proposed Anti-Homosexuality Bill would contravene Uganda’s international human rights obligations. This section of the submission sets the legal foundations of this position.

(…) Conclusion

The Equal Rights Trust recommends that the Ugandan parliament reject the Anti-homosexuality Bill in order to ensure Uganda’s adherence to its own Constitution and international and regional law. As the preceding analysis makes clear, passage of the Bill would be both unconstitutional and put Uganda in breach of its obligations under binding international and regional treaties. From the point of view of the right to non-discrimination and equality, the Bill is unconstitutional: it is in direct contravention of Articles 21 of the Ugandan Constitution

rights permitted by the Constitution. Furthermore, by passing the Bill, Uganda would violate itsand international the discrimination legal obligations which it espouses as a party cannot to the be ICCPR justified and on CESCR. the basis Uganda’s of the limitations Constitution of contains strong guarantees of equality and non-discrimination, but these rights are ineffective if they are selectively denied. Any step which entrenches discrimination against one group undermines the strength of the right to equality itself. Furthermore, at a time where many countries are liberalising their laws with respect to the criminalisation of homosexuality, to move in the opposite direction would be a disgrace.

Dear Mr President, I extend the expertise of The Equal Rights Trust if you require any assistance in strengthening the rights to non-discrimination and equality in Uganda.

Yours sincerely, Dr Dimitrina Petrova Executive Director The Equal Rights Trust

The full text if the legal brief is available at: http://www.equalrightstrust.org

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Naz Foundation v. Government of NCT of Delhi and Others

ERT Case Note

The Naz Foundation submitted that Section over a century of discriminatory treatment 377 violated the fundamental rights guaran- againstOn 2 July people 2009, the because High Court of their of Delhi sexual ended ori- teed under Articles 14, 15, 19 and 21 of the entation by declaring the application of sig- Constitution of India. It brought the action in the public interest on the grounds that Penal Code (IPC) unconstitutional. Section its work on combating the spread of HIV/ 377nificant is a elementsrelic of the of BritishSection legal 377 ofsystem the India and AIDS was being hampered by discrimination experienced by the gay community as a re- This case note sets out the facts of the case, sult of Section 377. This discrimination, the examinesin effect theit judicialcriminalised reasoning same-sex behind theconduct. petitioners submitted, resulted in the denial judgment and comments on some of the im- of fundamental human rights, abuse, harass- plications of the decision. ment and assault by public authorities, thus driving the gay community underground and Facts subjecting them to greater vulnerability in violation of their fundamental rights. Naz Foundation v. Government of NCT of Delhi and Others WP(C) No.7455/2001 concerned The Legal Arguments Submitted a writ petition (a public interest action taken before the court) brought by the Naz foun- The Naz Foundation - ferers, which argued that Section 377 of the The Naz Foundation submitted that the ha- Indiandation, Penalan NGO Code working was unconstitutional. with HIV/AIDS Secsuf- rassment and discrimination of the gay and transgender community in India resulting been on the statute books since 1861 and has from the continued existence of Section 377 tion 377 entitled “Of Unnatural Offences” has consensual sexual acts between persons of were guaranteed under the Constitution, in- theeffectively same sex. been Section interpreted 377 states: as criminalising cludingaffected the the right rights to equality,of that community the right to non-which discrimination, the right to privacy, the right “Whoever voluntarily has carnal intercourse to life and liberty, and the right to health. against the order of nature with any man, woman or animal, shall be punished with They argued that the Constitution protects [imprisonment for life], or with imprison- the right to privacy (which is not expressly ment of either description for term which mentioned) under the right to life and liberty may extend to ten years, and shall also be li- enshrined in Article 21. Furthermore, they submitted that the right to non-discrimina- able to fine.”

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tion on the ground of sex in Article 15 should ment. They argued for the removal of Sec- not be read restrictively but should include tion 377 stating that it makes a large number of people in high risk categories in relation that the criminalisation of homosexual ac- to HIV/AIDS reluctant to come forward for “sexualtivity by orientation”. Section 377 They discriminated also contended on the treatment due to a fear of law enforcement grounds of sexual orientation and was there- agencies, and that in driving homosexuality fore contrary to the Constitutional guarantee underground it increases risky behaviour of non-discrimination under Article 15. such as unprotected sex.

Finally, the Naz foundation stressed that The Judgment courts in other jurisdictions have struck down comparable provisions relating to In a decision that has been applauded not sexual orientation on the grounds that they only as a landmark victory for equality and violated the rights to privacy, dignity and social justice but also in terms of its robust equality. legal reasoning the High Court of Delhi concluded that “Section 377 IPC, insofar as it The Government of India criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and

and the Ministry of Health and Family Wel- fareBoth submitted the Ministry legal of opinions Home Affairs in respect (MHA) to While15 of the many Constitution”. elements of the decision will the writ petition. Interestingly, however, the two ministries came down on opposite sides High Court’s emphasis on the right to equal- itybe far-reaching(Article 14 and for 15 LGBT of the rights Indian in India,Constitu the- tion) is particularly praiseworthy, for at least hand,of the argued legal argumentfor the retention offering of Section “completely 377 two reasons. First, the judgment must be oncontradictory several grounds. affidavits”. First, that The it MHA, provided on one for praised for its completeness. In undertaking the prosecution of individuals for the sexual a comprehensive and detailed analysis of the law of India in respect to discrimination on in the rape laws. Third, that if removed it the grounds of sexual orientation, the High abuse of children. Second, that it filled a gap Court has left little margin for the decision to be overturned on the basis of misinterpre- interest.would provide Finally, for MHA “flood submitted gates of thatdelinquent Indian tation or misapplication of the law. Second, societybehaviour” does which not morallywould not condone be in the such public be- the High Court’s reference to and application - of the highest international standards on ues such as these. equality to the Indian context set a positive haviour and law should reflect societal val example which should inspire judicial deci- By contrast, the Ministry of Health and Fam- sion-making in countries which presently ily Welfare (in conjunction with the National criminalise same-sex conduct. - dence in support of the Naz Foundation’s The High Court began its Article 14 analysis submissionAids Control – Organisation) that the continued presented existence evi by setting out that any distinction or classi- of Section 377 is counter-productive to the - - ferentia which has a rational relation to the fication must be based on an intelligible dif efforts of HIV/AIDS prevention and treat

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objective sought and must not be unfair or Court referred to the Human Rights Com- unjust. Section 377, the Court said, does not mittee’s decision in Toonen v. Australia, distinguish between public and private acts, (No.488/1992, CCPR/C/50/D/488/1992, or between consensual and non-consensual March 31, 1994) in which the criminalisation acts, therefore does not take into account rel- of sexual acts between men was considered evant factors such as age, consent and the na- a violation of Article 2 of the International ture of the act or absence of harm. Thus, such Covenant on Civil and Political Rights, where criminalisation in the absence of evidence of a reference to "sex" was taken as including harm seemed arbitrary and unreasonable. - sis of Indian and international human rights In considering the legal principles imposed jurisprudencesexual orientation. the HighOn the Court basis declared of the analy that by Article 14 of the Constitution, the Court Section 377 was also unconstitutional on the took into account the Equal Rights Trust’s basis of Article 15: Declaration of Principles on Equality as “the current international understanding of Prin- “We hold that sexual orientation is a ground analogous to sex and that discrimi- (right to equality), 2 (equal treatment) and 5 nation on the basis of sexual orientation is ciples on Equality”. Citing in full Principles 1- not permitted by Article 15. Further, Article tion, together with landmark jurisprudence 15(2) incorporates the notion of horizontal from(definition the Canadian, of discrimination) South African of the and Declara United application of rights. In other words, it even States courts, the High Court emphasised prohibits discrimination of one citizen by an- that there was a need to include sexual orien- other in matters of access to public spaces. tation among protected grounds of discrimi- In our view, discrimination on the ground of nation and build indirect discrimination and sexual orientation is impermissible even on harassment into any consideration of the the horizontal application of the right en- right to equality.

Thus, dealing with the argument that Section Summingshrined under up itsArticle judgment, 15.” the High Court 377 was neutral, as submitted by the MHA, stressed the importance of upholding the the High Court stated that although the pro- values of equality, tolerance and inclusive- vision on its face was neutral and targeted ness in Indian society by stating: acts rather than persons, in its operation it unfairly targeted a particular community, “If there is one constitutional tenet having the result that all gay men were con- that can be said to be underlying theme of sidered criminal and it therefore violated Ar- - ticle 14 of the Constitution. - the Indian Constitution, it is that of 'inclusive Moving on to consider whether the refer- Indianness'. This society, Court nurtured believes over that several Indian generaConsti- tions.tution Thereflects inclusiveness this value deeply that Indian ingrained society in should be interpreted as including sexual traditionally displayed, literally in every as- orientationence to “sex” on in theArticle basis 15 that of the discrimination Constitution pect of life, is manifest in recognising a role on the grounds of the latter is based on ste- in society for everyone. Those perceived by reotypes of conduct on the basis of sex – as was argued by the Naz Foundation, the High the majority as 'deviants' or 'different' are not on that score excluded or ostracised.”

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Some Implications It is expected that it will be many years before the decision is handed down by the Su- For the moment, the decision of the High preme Court. Yet it is noteworthy that the Court of Delhi has invalidated the criminali- level of criminal conviction over the lifespan sation of consensual same-sex conduct be- of Section 377 was low. In practice the true tween adults across all of India. As the writ danger of Section 377 was that it permitted petition involved a constitutional matter, the and promoted the harassment, victimisation judgment applies throughout India. How- - ever, the judgment is restricted to adults. Therefore, “Section 377 (…) will continue to and persecution of LGBT people by law en- govern non-consensual penile non-vaginal lationsforcement of their and human other officials, rights and to thehave extent been sex and penile non-vaginal sex involving mi- unablethat LGBT to live people their have lives suffered in equal dignityextreme with vio others in Indian society. Such harassment and discrimination will not automatically go Thenors.” Central government has reportedly decided not to contest the decision. At the same and discrimination from law enforcement of- time, according to author Ratna Kapur, away. LGBT people will still face harassment these will be clearly in violation of the law. “at least nine other petitions have Furthermore,ficials and wider it will society, take albeit time from for the now judg on- - mous being that of Baba Ramdev, the brand reported that the message that homosexu- ambassadorbeen filed in the for Supreme Ayurveda Court, and the Pranayama most fa ment to “bed-in” and activists have already yoga. The challenges are based on arguments reached some law enforcement agencies. that range from assertions that homosexual- Consequently,ality is no longer there a criminal is an urgent offense need has fornot ity is an illness for which there is a cure to expressions of anxiety over the crisis of cul- and law enforcement agencies, to reinforce tural identity produced by the decision. Most awareness-raising among both LGBT people of the challenges allege that homosexuality is people about their new legal rights and pub- associated with rampant promiscuity of the the impact of the decision and inform LGBT- West, which centres hedonism and pleasure tions. that are not apparently a part of our genetic lic officials about their concurrent obliga cultural make-up."1

Case note prepared by Jarlath Clifford

1 NUJS Law Review, Vol. II, No. 3, July-September 2009, Kapur, p. R.,382. "Out of the Colonial Closet, but Still Thinking ‘Inside the Box’: Regulating ‘Perversion’ and the Role of Tolerance in De-radicalising the Rights Claims of Sexual Subalterns”,

The Equal Rights Review, Vol. Four (2009) 75 TESTIMONY

“They took me down from the car and tore down my clothes leaving me naked in front of their ferocious eyes. All this was done while they were video- taping everything. They beat me in every part of my body."

Nguia El Haouasi

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Torture and Discrimination in Western Sahara

- niaThe by conflict the Spanish in Western when Saharathey withdrew is one of in the 1976. longest The Mauritaniansrunning and most pulled forgotten out soon in after the world. Known as Africa's last colony, Western Sahara was sold to Morocco and Maurita the International Court of Justice. A sixteen-year war ensued between the Moroccans and the Moroccans annexed much of the remaining territory in defiance of a ruling from - dumand the for Sahrawiself-determination independence was movement,promised, the POLISARIO Front. Under the terms of a but1991 has UN yet ceasefire to be carried agreement, out. a referen

Stefan Simanowitz, co-chair of the Free Western Sahara Network, sent to The Equal Rights Trust abundant testimony and background information documenting the torture and discrimination of Sahrawi

2009, some of which is publicised below.1 activists during the period August-October

Since the occupation of Western Sahara by by UN High Commissioner for Human Rights Morocco in 1975 the indigenous Sahrawi and numerous human rights organisations. population who remained in the territory A 2008 report by Human Rights Watch found that Morocco violated the rights to expression, association, and assembly in thehave failure suffered to holdfrom thediscrimination, referendum arbitrary on self- Western Sahara.2 An Amnesty International determinationarrest and torture. in the Over territory, the years, the native with report of the same year found that "politically Sahrawis from the occupied zone have motivated administrative impediments have been used to prevent human rights groups obtaining legal registration and curtailing repressiondemonstrated as a result. their Despite defiance the repression, through a their scope of activities".3 There is also thenon-violent uprising civil(or Intifada) struggle, built and inhave its intensitysuffered widespread evidence of the use of torture. As in May 2005 and still continues. signatory to the International Convention for the Protection of All Persons from Enforced Serious concerns about human rights Disappearance Morocco should, according violations against the Sahrawis who have to campaigners, reveal the truth about the remained in Western Sahara have been raised

hundreds of disappeared Sahrawis. Over

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the past three decades more than 500 for 24 years (of which he spent 14 years indigenous Sahrawis who have challenged on death-row) and the President of the the Moroccan occupation of Western Sahara Sahrawi Committee for the Right of Self- Determination, says with bitterness that the young people who were born and grew up Thehave Process “disappeared”. of Moroccanisation under occupation start to lose command of the Hassanyia language. Morocco has engaged in a massive campaign aimed at the Moroccanisation of The rules for immigration and naturalisation Sahrawi culture and identity. Throughout show the racial discrimination that the the disturbing narratives of struggle and Sahrawi community faces within the resistance, the nation-building policies administration and military regime bodies. promoted by the Moroccan regime or the politics of Moroccanisation are denounced and fought by the Sahrawi activists. Despite Sahrawis have Moroccan identification the Sahrawi culture being threatened by thecards, other but side, are marked the only differently available passport in order isto the warn Moroccan about their one Sahrawi and this origins. fact is yet On Sahrawi: another source of much anger. This situation these efforts at Morroccanisation, says one “we have coexisted, not integrated to deal with the Moroccan documentation with the Moroccan culture (…) we have the whensuffocates they proceed those to exiled legalise Sahrawis their situation, who have complicity of the Sahrawis in the refugee for instance in Spain. An exile who prefers to camps because they have preserved 95% pure remain anonymous expresses his resentment our cultural practices.” that:

“[I]n my Spanish documentation they wrote that I am Moroccan because of my policy.The first French, harmful classic strategy Arabic highlightedand Moroccan by passport and this is dreadful. I want to dispose dialectsall Sahrawi are usedactivists in schools, is the official administration, language of it because it hurts so much.” market shops, military bodies and in the media. The use of Hassanyia has become The third policy associated with the process limited to the Sahrawis’ social life. Mohamed of Moroccanisation is the enforcement of a Daddach, victim of forcible disappearance national core curriculum in schools, along

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with the fact that the majority of the teachers Moroccan regime. According to Thobhani, are immigrant settlers from Northern throughout the occupied territories Moroc- provinces. Mayara, for instance, explains that can national festivities are marked with she has: “demonstrations and manifestations and declaration of loyalty to the king”. However, as El “learnt about her history and her culture only through personal efforts, through the internet, with Sahrawi people, militants Gahlia explains:“[D]uring the king throne festivity on and family.” the 30th of July, the Sahrawi poor people who enjoy the ‘National Promotion’ [a programme According to Bada (an Intifada activist): providing social support] are forced to wear their traditional dressing and go to demon- “[T]he school staff coordinate with strations to show their allegiance to the king the security services and during the national if they do not want to lose [their social sup- Sahrawi festivities our traditional dress is port].” forbidden.” These are the kinds of tools used by Morocco There is no university in Western Sahara. to co-opt the Sahrawi identity and create an This is another strategy which highlights illusionary image of happiness among the the attempts at the Morrocanisation of the Sahrawis. In similar fashion, renaming geo- Sahrawi. The Moroccan authorities are graphical and cultural features according to aware, according to Brahim Elansari, that the Moroccan dialect is harmful for the na- “universities are normally politicised and - could generate civil movements among the nation practiced by the Moroccan regime is students”. This is, indeed, what has happened itstive drive people. to register One illustration the Sahrawi of the people discrimi with with the Intifada, “where Sahrawi students Moroccan names. and teachers in Moroccan universities and schools have played a courageous role in Another deeply harmful, old and visible supporting their compatriots through pacific Moroccanisation practice is the settlement demonstrations”. strategy which has been used as a tool for demographic change. With approximately National symbols and holidays associated 90,000 Sahrawis living on the occupied side, with Moroccan history are imposed by the they have become a minority within their

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The Politics of Terror markets and administration bodies, the ma- homeland.jority are settlers On the from streets, the inNorth. the coffee-bars, The North- The politics of terror which were pursued ern settlers are employed in administration and military bodies and are paid 85% more were promoted by King Hassan II and his than their counterparts outside the territory. during the so-called “Years of Lead”, which situation. This has occurred, perhaps most settlers through exemption from income tax aides, have had lasting effects on the current andFurther, subsidised incentives fuel and are food. offered to Northern presence in the territory (around 100,000 soldiers).significantly, According through to Sahrawi a notorious human military rights Discriminatory practices at all levels of em- activists, during the last 30 years more than ployment result in widespread unemploy- 260,000 people have been displaced; more ment for native Sahrawis, a situation which than 20,000 arbitrary detentions have taken is worsened by the region’s economic under- place; there have been more than 500 victims development in comparison to Morocco. The of forcible disappearances; more than 120 Moroccan government has also actively “en- murders; and various forms of torture have - nities for Western Saharans inside Morocco, Fatma and Mamia Salek, who have been ex- ascouraged” a means increased of diluting employment the Sahrawi opportu popula- been suffered by thousands of Sahrawis. iled in Tenerife since 1999 and have been tion and their identity. This has, however, not victims of forcible disappearance for sixteen years, explain: the Sahrawi identity. only proven ineffective but has reinforced “[W]hen we were released, we were The family, activists, relatives, friends and like two dead bodies because of the tortures new forms of communication technology are and ill-treatment. After our liberation, we used as a means to struggle against the Mo- passed almost nine years in the occupied zone, roccan claim of a “one identity, one culture, in ‘freedom’, but within a larger prison as we Marroquinité were persecuted all time.” of the Sahara. Even though the Sahrawi iden- one history and one territory” tity and culture are threatened by exposure All testimonies described their experience to Moroccan culture and identity, this has be- as a nightmare, permanents threats, nights without sleeping due to the fear of police resistance and reinforcing Sahrawi identity. harassment, physical and psychological tor- come a powerful force fuelling the flames of The Sahrawis’ preservation of their culture ture. As a result, most of them have left the and identity is not just a struggle against the country on clandestine "pateras". Moroccan aggression but against the cultural values that accompany the process of mod- Since the second half of 1999, along with the - passive demonstrations, the opposition has madic people, since the Spanish colonisation been developing Sahrawi civil society. Nowa- theyernisation have adoptedand globalisation. a sedentary Originally lifestyle. aNev no- days, the only legal civic organisations work- ertheless, their traditional nomadic way of life ing in the territory are those that respect the is still being preserved through their intermit- Marroquinité. tent, but permanent, periods spent at the At- lantic coast near the occupied El Ayoune, and “fact”In spite of ofa Sahrawisome achievements, activists con- in the badia (desert) in the liberation zone. tinue to denounce the increasing obstacles

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posed by the Moroccan authorities. Moroccan police arrived, beat the students and Their committees and associations have not been legalised even though swiftdrove actionthem to of police human stations rights where organisations, they suffered in- for the establishment of civic organisa- cludingfurther beatings Amnesty and International, interrogation. the Owing six students, to the tionsthey under fulfil allMoroccan the legal law, requirements consequently they have to work clandestinely. The hours, at approximately 4 a.m. on Friday 7 August activists, working primarily without 2009.dubbed The the students “Oxford returned Six”, were to released their homes within in oc36- funding and on a voluntary basis, and cupied Western Sahara only to experience further in some cases their relatives, frequent- harassment by Moroccan authorities. Some of their stories are described below. detention. ly suffer persecution, harassment and Since his release on 7 August 2009, Mohamed Daa- The troubling narratives of violence - dents, has subsequently been picked up by the po- violence is formative of people’s per- licenoun, on Member several occasions, of the “Oxford beaten Six” and Group threatened. of Stu ceptionssuffered ofby who the theySahrawi are andillustrate what valhow- ues they adhere to. Moroccan violence of a police car while a police man revved the en- and discrimination at all levels, de- gine.On one In occasion September he was 2009, forced he wasto lie excludednaked in front from ployed against the whole Sahrawi community, have strengthened its struggle - for a separate identity. strationsschool and against not allowed the occupation to complete in Western his final Sahara year. inOn which 15 September all his friends 2009 werethere detainedwere several and demonimpris- The “Oxford Six” Group of Students oned. Since then he has been subjected to a constant stream of harassment by police and security theOn theUK after evening they of were 5 August invited 2009, to take six officers who follow and threaten him each time he- Sahrawi students were due to fly to landleaves to his claim house. asylum. On 5 October 2009, he along with organised by the British organisation another member of the “Oxford Six”, fled to Eng Talkpart in Together a course and on conflict jointly fundedresolution by the British Council and the EU Youth Together Program. The course was scheduled to run from 6 to 18 August - dents were stopped in Agadir airport andat St told Edward's that they School, could Oxford. not travel. The stu Al- though their tickets and visas were all in order and they had already checked in, the Moroccan authorities refused to let them board their plane. No reasons were given and the students, who had been preparing for this trip for many months, staged a hunger-strike protest in the airport terminal. That evening

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Following her release on 7 August 2009 Nguia In Her Own Words El Haouasi, 19, was picked up by police in El Aaiun on 27 August 2009. She was blindfold- “My name is Nguia El Haouasi. ed, beaten, stripped naked and threatened

and Aziz Anouch, blind-folded and subjected I was arrested several times, and the lat- herwith torape. physical Two police and psychologicalofficers, Khalid torture. Barakt est abduction took place on August 27th, 2009. Last Thursday, I was on a visit to by additional Moroccan security agents who Hasanna Aliya, a Sahrawi activist, who beganThese two interrogating police officers her and were removed then joined her was tortured by Moroccan police in the clothes. They asked her about her politi- city of Tantan. I left the house along with my friends Hayat Rguibi and Sadani Ali- - ya. After we got out of the house, a police tionedcal affiliations her reasons and for her wanting views regardingto participate the car stopped nearby. The officers in the Morocco-Western Sahara conflict, and ques car, Aziz Anouch and his colleague officer - in a youth conflict resolution programme Khalid Barakt, forced me into the car and being run in Oxford, England earlier in Au then drove me to the bank river of Sakia El Hamra near the middle school Allal ben abdalla. They handed me over to other police officers in plain clothes who joined us soon after my abduction. They blindfolded my eyes, and began to beat me brutally while using verbal abuse, cursing. Many other police agents joined the existing police gang, namely agents belonging to Mo- roccan secret services. I did not see them, but I distinguished their voices and they asked me many questions such as: What are the dialogues that take place amongst the Sahrawis on the return of the Sahrawi threat that she would be exposed naked on Ould Suelem from the refugee camps? I thegust. internet Nguia's if ordeal she revealed was videotaped her ordeal with and didthe told him I was not in the city of Laayoune not cease her human rights activities. Nguia at this time. I was in the city of Agadir. states that she was also threatened with rape if she did not answer the questions, and one Then they asked me: What do you think regarding this subject of defectors, such as Ould Suelem? I told them that the Polisa- killthat herof the next high-ranking time they caught officers, her. part She of wasthe rio was very democratic, and they do not Moroccan DIAG secret service, threatened to then abandoned at around 2 a.m. in the dark know any form of dictatorship, and that and left naked on the outskirts of Laayoune. Polisario gives everyone the right to go - wherever they like and not like you Mo- hrawi family who clothed her and helped her reachShe was her able family. to find refuge with another Sa roccans who prevented us from travelling

The Equal Rights Review, Vol. Four (2009) 83 to Britain, and kept us at the airport in el took me down from the car and tore down Masira in Agadir. We were going to join my clothes leaving me naked in front of the program Talk Together on behalf of their ferocious eyes. All this was done while the young Sahrawi generations in the oc- they were video-taping everything. They cupied territory, and you the Moroccans, beat me in every part of my body. Under you showed the world that you are dicta- this psychological and physical torture I tors. You did not let us travel, and travel- agreed to what I was asked to say. They ling is a human right. After I told them only gave me my malhfa [Sahrawi women these answers, they went mad. They said , and blindfolded me that the Sahrawi human rights activists again and more torture followed. are the ones who incite us to engage in cloth - editor's note] peaceful demonstrations, and they are the Whilst they were filming me, there was ones who support us and who give us na- a man who asked me all these questions tional flags to raise during the demonstra- while hiding his face, and they called him tions. I replied that nobody incites us, and by his alias name so that I could not identi- we do all this only for the defence of our fy him, I am sure he was a VIP government cause and our right and we simply express servant. They say that they were filming our views and that it is spontaneous. me to show the world that they maintain security. They threatened me saying they Then they asked me about the peaceful would publish the video on the internet, demonstrations that I supposedly organ- exposing my body to the entire world so ised in the neighbourhood of Matallah as to scandalise me. district in Laayoune and who was in it. The officers beat me more in an attempt to make me tell them the names of persons I call upon international organisations involved. to intervene to stop violations that occur daily in the occupied territories of West- I told them that all the Sahrawi people ern Sahara (…) Morocco has violated hu- take part in the uprisings, and I do not man rights in many ways, Moroccan forc- know any one of them. There are young es film sessions of Sahrawi citizens under people, children and women and I was torture and pressure. We do not want to there to express my opinion and I had my bear all this and we are being watched in flag like all the Sahrawis. He told me that every place and our houses are besieged they will now record a video, and we need and controlled. We cannot tolerate this you to say that it is the Sahrawi human situation anymore. The MINURSO [the rights activists who incite you to partici- United Nations Mission for the Referen- pate and organise these demonstrations dum in Western Sahara - editor’s note] and that they are just a group of separa- are there but they are doing nothing at tists. all to help us. They do nothing to stop the ongoing violations of human rights, and After refusing to say these lies, I was asked we urge the United Nations to intervene to strip off my clothes and I refused. They to stop the torture exerted on our people.

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We need international monitoring and all defenders of human rights to help us protection. The international community and to stop the mass violations commit- is doing nothing so far to stop this drama. ted by the Moroccan occupation forces to- We ask all civil societies in the world and wards the people of Western Sahara.”

1 ERT thanks Laia Blanch for her work in collating and writing up testimonies whilst working with the ASVDH credits: Courtesy of the Free Western Sahara Network. (The Sahrawi Association of Victims of Grave Human Rights Violations Committed by the Moroccan State). Photo 2 Human Rights Watch, Human Rights in Western Sahara and in the Tindouf Refugee Camps, 19 December 2008,

available3 Amnesty at: International, http://www.hrw.org/sites/default/files/reports/wsahara1208web.pdf. Challenging Repression: Human Rights Defenders in the Middle East and North Africa, 2008, available at: http://www.amnesty.org/en/library/asset/MDE01/001/2009/en/3fe5c240-d77d-4e15-8957- 5928387d1093/mde010012009eng.pdf.

The Equal Rights Review, Vol. Four (2009) 85 INTERVIEW

"The role of the judiciary in shaping the concept of substantive equality has been crucial and exceptional."

Claire L'Heureux-Dubé

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Equality in the Courts - A Judicial Perspective

The Supreme Court of Canada and the Constitutional Court of South Africa have been key sources of inspiration for developing and understanding the human right to equality. Both courts have spearheaded the development of the substantive model of equality which adopts meanings of equality derived from international human rights law. They have been, and remain, trailblazers in providing progressive interpretations of the right to equality and their jurisprudence stands at the forefront of constitutional law.

ERT talks with two past leading figures of both courts: Claire L’Heureux-Dubé, Justice of the Su- preme Court of Canada from 1987 to 2002, and Kate O’Regan, Justice of the Constitutional Court of South Africa from 1994 to 2009, about what equality means to them and their experience of judging on equality issues.

ERT: You are widely recognised as one of the leading judicial proponents of the fundamental right to equality. Can you tell us a little bit about the life experiences and influences that have shaped your perspective on equality?

Claire L'Heureux-Dubé: - ination in my mother’s womb as I feel so much that it has always been part of me. IMy guess mother I started was fighting diagnosed discrim with Multiple Sclerosis when I was about nine years old and she spent 50 years in a wheelchair. That makes you sensitive to people with disabilities. From there to start thinking in terms of equality, it is but a small step. My perspective became clearer when I tried to enter Law school and later to look for a job as a lawyer and I realised that women were not treated with the same respect and consideration in comparison to men.

Kate O’Regan: up in South Africa There during were the two1960s formative and 1970s influences – a society on foundedme. The firston promoting and dominant inequality one was on thegrounds fact thatof race. I grew As a member of the favoured white racial group, this reality was masked from me during my childhood years, but as I grew older the deep injustice of apartheid became more and more evident to me. Secondly, the way women were - treated in my family was sharply different to the experi

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ences of my peers. Both my parents were professionals and both worked. I had four Preamble also gives guidance when it states brothers, but I was expected to have a career thatment the of humanConstitution rights has and been freedoms”. adopted The to just as much as they were. My expectation of “improve the quality of life of all citizens and equality between men and women, nurtured at home, was not what my peers experienced, of the equality clause provides that equality nor what most women in our broader society “includesfree the potential the full and of each equal person”. enjoyment The of text all knew. promote the achievement of equality, legisla- ERT: The Supreme Court of Canada and tiverights and and other freedoms”. measures It designed also states to thatprotect “to the Constitutional Court of South Africa or advance persons or categories of persons have spearheaded the concept of sub- disadvantaged by unfair discrimination may stantive equality in their jurisprudence. How do you see the role of the judiciary in way to a substantive conception of equality. shaping the concept of substantive equal- Nevertheless,be taken”. So the equality Constitution remains itself an points extraor the- ity? - cording to Chief Justice McLachlin)1 and it is Claire L'Heureux-Dubé: The role of the ju- undeniabledinarily difficult that courtsright (the have most a crucial difficult role ac in diciary in shaping the concept of substantive determining its content and application. equality has been crucial and exceptional. It showed leadership in the interpretation of ERT: The right to equality has often been equality provisions in the constitution and “underused” as a human right by some almost all by themselves they turned the ta- international and national courts. For bles in favour of a more comprehensive inter- example, many equality guarantees for pretation of rather vague equality provisions LGBT rights have been secured through in the Constitution and the Charter of Rights the right to privacy rather than equality. and Freedoms. The Supreme Court of Canada In other cases the discrimination element and the Constitutional Court of South Africa of a case is not considered if a violation of were the predominant judiciaries to shape another substantive human right is found. the thinking about equality, perhaps because Do you think courts and judges find it dif- their constitutions were recent ones. The ficult to engage the right to equality as an Canadian Charter of Rights and Freedoms autonomous fundamental human right was adopted in 1982 and the Constitution and if so why is this? of South Africa was adopted in 1996, and their equality provisions were modelled on Claire L'Heureux-Dubé: Courts and judges the Universal Declaration of Human Rights, which is also of recent vintage (adopted in of equality, mostly on account of the particu- 1948). lardo in social fact find context it difficult of their to respectivedefine the scope countries and their respective backgrounds. This Kate O’Regan: The text of the South African has been so in Canada where, for example, Constitution is clearly committed to a sub- in 1993, in the Mossop case, the majority of stantive conception of equality. For example, section 1 of the Constitution sets out its a homosexual couple who were deprived of founding values and includes “human dignity, the court did not find discrimination against- the achievement of equality and the advance- erosexual couple2. In 2003, however, the the same benefits that were given to a het

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Supreme Court found discrimination on the ERT: As a judge you have had to interpret basis of denial of same sex marriage to gays and apply the constitution of your country. and lesbians. Thus, Canadian society itself In dealing with cases of gross inequality had moved forward on the issue during that and discrimination, some judgments will decade. inevitably have some impact on the country’s economic and social policy. In such Kate O’Regan: cases, is there any particular difficultly in engage equality as a fundamental right. This maintaining the principle of separation Courts do find it difficult toof powers and would you be worried that in such cases judges step into the role of isequality because clause it is suchis not a readilydifficult apparent right. The from dif legislators? theficulty clause lies itself.in the Equalityfact that is,the in objective this sense, of an empty concept that has to be given purpose Kate O’Regan: It is true that adjudicating and meaning from a broader constitutional equality cases (particularly those that deal analysis.3 used by courts was equal treatment. In societies predicated The first on unequal conception treatment of equality (such maywith impactsocial benefits) on budgetary may affectquestions. social In policyKho- as apartheid South Africa), equal treatment sasignificantly, and Others and v Ministerthat orders of made Social by Develop courts- - ment; Mahlaule and Others v Minister of So- entiation between people is commonplace cial Development and Others4, the Court had inis asocieties, powerful and concept. the question Yet it has is flaws. what Differforms to consider a challenge brought by a group of indigent Mozambicans who had perma- principle of equal treatment of itself cannot nent rights of residence in South Africa to of differentiation are impermissible. The the provisions of the Social Assistance Act impermissible. In addition, at times treating which provided that only South African citi- peopleanswer the which same forms will entrench of differentiation existing pat are- zens were eligible for certain social security - ment may be required to remedy this. Finally, equality right but also on the right of access equalterns of treatment social inequality does not and address different the needtreat tobenefits. social securityThe Court, (section relying 27 notof the only Constitu on the- to recognise that at times group identity and tion) held that the exclusion of people who - had been granted rights to permanently re- stances, insisting on equal treatment may side in the country was not a reasonable difference are important. In such circum measure to realise the right to social security often of deep importance to individuals and and that it constituted unfair discrimination. groups.be to deny It wasdifference in response and diversity to the perceived – matters - - der and noted that its order would increase ception of equality has emerged, focusing on overallThe Court expenditure did consider on the social effect grants of the by noor theflaws impact of equal of rules treatment, and practices that a different on individu con- more than 2% of overall expenditure on such als and groups. A substantive conception of grants. This case gives an interesting insight equality however still needs to identify what into the relationship between equality and constitutes inequality. It is this question with the social and economic rights entrenched which courts must grapple in their own constitutional and historical context. such cases do raise sharply the proper role ofin thecourts South in constitutionalAfrican Constitution. democracies, Of course, and courts will always be cautious not to usurp

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the proper constitutional functions of the democratically elected arms of government, This does not mean of course that I was not particularly the legislature. awarethe politics of the surrounding social debate high and profile the cases.social context. It simply means that public opinion, Claire L'Heureux-Dubé: While some of the though important but often volatile, would Supreme Court of Canada decisions in which never dictate my opinions which were based I participated did impact on the country’s on the facts and arguments before us as well economic and social policies (i.e. Eldridge v. as on reason and jurisprudence. British Columbia (Attorney General)5 – where hospitals were found to be discriminating by Kate O’Regan: It is true that equality cases not providing interpreters for deaf people), often generate controversy in the broader there has been a certain reluctance to ex- community. Nevertheless, I do not think that pand in this area for reasons that I will discuss later. in an equality case from the political contro- versyit is difficult that may to separatesurround one’s the case.role as The a judge judi- In our constitutional democracy, the role cial task lies in the sphere of legal reasoning of the judiciary is to ensure that legislation and not in the realm of political statement. does not infringe on the constitution. In that Although the sphere of legal reasoning is sense, there has been a healthy dialogue not entirely autonomous from political dis- between courts and Parliament. It remains true, however, that the courts are very aware course, it is nevertheless apart from it. This of the limits of their power in areas of socio- can be illustrated by the fact that in some of economic rights. The majority decision in the the most controversial cases politically, the case of Gosselin v. Quebec (Attorney General)6 answer provided by legal reasoning is not that held that a Regulation which set the base amount of welfare payable to persons the South African Constitution prohibits that difficult or controversial. For example, under the age of 30 at roughly one third of unfair discrimination on the grounds of the base amount payable to those 30 and sexual orientation. The question in the case over was constitutional – which I along with concerning the prohibition of marriages be- 2 other colleagues dissented – is typical in tween same-sex couples constituted unfair that regard. The case of Kadhr7 - presently discrimination. This question was not dif- before the Supreme Court of Canada – which involves Canadian foreign policy engages this from the Court was that it did. dilemma and will be interesting to watch. ficult to answer and the unanimous answer ERT: Allow me to ask a somewhat techni- ERT: Many cases involving human rights cal question. There remains a great deal create political tension and often polarise of confusion in many jurisdictions which social opinion. This must be particularly are attempting to adopt and implement true if the case involves a serious inequal- equality laws about what grounds of dis- ity or discrimination issue. As a judge, crimination should be prohibited and was it difficult for you to separate your- what should be the scope of the prohi- self from the politics surrounding high bition. What do you think, if a certain profile cases? ground of discrimination is prohibited at the constitutional level, should the prohi- Claire L'Heureux-Dubé: As a judge, it was bition apply in all cases and in all areas of law, or should a contextual case by case

never difficult for me to separate myself from

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approach be adopted? If a contextual ap- which stands for all cases and in all areas of proach was adopted, would some kind of law. In human rights legislation where dis- legal test be necessary to set out the con- crimination is alleged on the basis of guaran- ditions of when the discrimination should teed rights usually before administrative law be prohibited? bodies, case by case decisions are mostly the rule (see, for example, the case of Anselem9, Kate O’Regan: Under the South African Con- or Multani10) and the notions of reasonable stitution, there are three legs to a discrimination challenge based on one of the prohibited prevalent. grounds. First a litigant has to establish that accommodation or justification are often there has been discrimination on a prohib- ERT: In some jurisdictions such as the United Kingdom, there has been a debate presumed that the discrimination is unfair, among discrimination lawyers as to the butited aground. defendant Once may that rebut has beenthis in shown, two ways, it is desirability of prohibiting discrimination either by showing the discrimination to have on the ground of socio-economic status. been fair or, in the case of legislation, by Do you have a view on this issue?

The relationship between the fairness enqui- Claire L'Heureux-Dubé: As I mentioned showing it to be reasonable and justifiable. - one. What is clear is that the issues of fair- cally protected by the Canadian Constitution ry and the justification enquiry is a difficult andearlier, its socio-economic Charter of Rights rights and are Freedoms not specifi so the question of its justiciability and the po- nessClaire and L'Heureux-Dubé: justification are deeply In the contextual. Canadian constitution, sexual orientation was not part constitutional structure remains in place. I of the enumerated grounds of discrimination thinktential there to fit theseis great rights potential within in the this Canadian regard and economic rights were not mentioned in the guaranteed rights, in fact they were spe- both under section 7 (right to life, liberty and security of the person) and the equality the deliberations which preceded the adop- provisions within section 15 of the Charter tioncifically of the discussed Constitution. and not included during as the minority in the Gosselin v. Quebec (At- torney General)11 In the case of sexual orientation, the Court jurisdictions such as South Africa and India case demonstrated. Other expanded the list of enumerated grounds of have something to teach us in that regard discrimination as it had done early on in the dealing with the right to food, housing and case of Andrews v. Law Society of British Co- livelihood. lumbia8 to include discrimination on the basis of citizenship. The reasoning of the Court The International Covenant on Economic, was based on the fact that, due to the par- Social and Cultural Rights (ICESCR) is an im- ticular way the discrimination grounds had portant cornerstone of the triumvirate Bill of been worded in section 15 (right to equality) Rights, and yet throughout its history debates of the Canadian Charter of Rights and Free- have raged about whether the rights therein doms (which includes the words "in particu- - lar"), the list was not exhaustive. tocol to the ICESCR (adopted on 10 Decem- bercontained 2008 are and enforceable. opened for The signature Optional on Pro 24 In constitutional interpretation, there is no September 2009) is a milestone for enforcing case by case decision but an interpretation the rights of those living in poverty around

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your view on this issue and how, in your judicial activities, have you struck the bal- sincethe world. without If ratified economic by Canada, equality it women could have are ance between individual justice and posi- renderedsignificant second results, class particularly citizen status. for women, tive action in equality cases?

Kate O’Regan: Kate O’Regan: A common consequence of question in the abstract. If the jurisdiction past discrimination is entrenched inequal- in question adopts I find a substantive it hard to answer conception this ity and steps need to be taken to remedy this of equality, I would be cautiously supportive inequality. South Africa is a deeply unequal of including socio-economic status as a pro- society because of the history of institutiona- hibited ground. My concern would be that in lised racial discrimination. It is very hard to a jurisdiction where formal equality is the eradicate this legacy. I do not think we know primary conception of equality such a provi- yet how to achieve it and accordingly courts sion could be used to protect the rights of the should, I think, be slow to tie the hands of already advantaged. It may well be that the the legislature and executive. They should be economically disadvantaged would be bet- given rein to seek innovative ways of reme- ter protected by the entrenchment of social dying patterns of exclusion and disadvantage and economic rights as in the South African as section 9(2) of our Constitution contem- Constitution. In South Africa, the social and plates. The only constraint lies in ensuring economic rights, together with the clear that the measures adopted do not constitute transformative purpose of the Constitution a material denial of the dignity and worth of expressed in the preamble (a part of which the previously advantaged group. The line is I quoted above) make plain that the Consti- tution seeks to protect the economically dis- in South Africa which adopts a similar ap- proachof course is difficultMinister to of draw. Finance The andleading Others case v historical context. I should add that in South Van Heerden12 which relates to the pension Africa,advantaged. the close In my identity view, this between is fitting race in andour rights of parliamentarians (see, for example, social and economic disadvantage means para. 44). that provisions that discriminate on grounds of socio-economic status will ordinarily have Claire L'Heureux-Dubé: In the Canadian a disparate impact on the grounds of race. Thus, the indirect discrimination provision guaranteed by section 15 (2) and the courts of section 9 is of great importance in pre- initiallyConstitution, considered positive whether action the is specifically legislation venting unfair discrimination on the grounds had an ameliorative purpose in the context of socio-economic status. of analysing whether the impugned provision or action infringed the claimant’s dig- ERT: An important element of the right nity. The courts placed clear limitations on to equality is that it sometimes requires positive/affirmative action to overcome this contextual factor by noting that under- the past disadvantage of particular inclusivethe scope ameliorative of government legislation justification will underrarely groups. For some people this conception satisfy section 15 (1) where it excludes mem- of equality is not only difficult to under- bers of an historically disadvantaged group. stand but controversial as it is perceived In sum, either an unconstitutional purpose as an affront to the principle of merit and to notions of individual justice. What is government law or act. Recently in the case or unconstitutional effect could invalidate a

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of R. v. Kapp13 the Court seems to have put a istic of A, A would not have been treated new emphasis on section 15 (2) which could less favourably” test is generally regarded become another stumbling block for equality the required standard of proof. Can you claimants. explain a little about what this means in reality and why exactly the intention of ERT: For civil cases, the European Union the discriminator should be considered anti-discrimination law shifts the burden irrelevant in deciding cases of discrimi- of proof onto the respondent when per- nation? sons who considers themselves wronged because the principle of equal treatment Claire L'Heureux-Dubé: The intention of the has not been applied to them establish, discriminator is totally irrelevant in deciding before a court, facts from which unequal cases of discrimination, as made clear by the treatment may be presumed. What has Supreme Court of Canada. In fact, the irrel- your judicial practice been on the ques- evance of intent by itself has brought about tion of the burden of proof in discrimina- positive changes in the discriminatory prac- tion cases? Meiorin14 tices which at first sight seemed innocuous. Claire L'Heureux-Dubé: The burden of One strong example of this is the - proof to litigants on equality issues is rela- essarycase, which value involved but it was the never stress adapted testing of to fire- the - fighters. The testing was not only of unnec ence in treatment and its impact on disad- vantagedtively light groups in Canada. shifts Evidence the burden of aof differ proof wasphysical absolutely conditions unintentional of women's it was lungs. still Thus dis- to the government to dispel the notion of criminatory.while the disadvantaging effect on women discrimination, whether intentional or not. However, there seems to have been recent Kate O’Regan: In South Africa, it is not neces- developments which may render that bur- sary to establish intention to discriminate for den heavier to litigants. a litigant to succeed with an unfair discrimination claim. The jurisprudence is focused Kate O’Regan: Section 9(5) of the South Afri- on whether a litigant has shown that the im- can Constitution provides that once a litigant pact of the challenged rule or practice was has established discrimination on one of the discriminatory and whether the discrimina- listed grounds, it is rebuttably presumed tion is unfair. Intention remains relevant to to be unfair. This provision is repeated in remedial or restitutionary action, however. the Promotion of Equality and Prevention To focus on intent, rather than impact, is to of Unfair Discrimination Act 2000. Perhaps make the object of equality law the preven- because of these provisions, the burden of tion of intentional discriminatory conduct. proof in equality cases has not given rise to Much discriminatory conduct may be unintentional, but nevertheless very harmful to so far. significant difficulties in the jurisprudence intent to impact shifts the focus from the per- ERT: In proving cases of discrimination, those who are affected by it. Turning from the intention of the discriminator is no The purpose becomes not merely outlawing longer considered necessary in many ju- intentionallypetrator to those discriminatory affected by behaviour,discrimination. but risdictions. In proving direct discrimina- outlawing all behaviour that has unfairly dis- tion, a “but for the [protected] character- criminatory impact.

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ERT: What do you feel was the most chal- crimination. There is now an abundance of lenging equality issue you encountered in jurisprudence in this area of the law to be your career as a judge? followed by courts around the world in this global legal world which has now a common Kate O’Regan: denominator: the language of human rights case. Many equality cases are challenging. and equality. Although there is more to do in I find it hard to pick out one- this area, the most imperative task now is im- - plementation and in that the role of non-gov- ence.Perhaps This one issue of thehas mostarisen difficult sharply areasin South re Africalates to in gender relation equality to polygynous and cultural marriages, differ Dissemination of information, jurisprudence, for example in the cases of Bhe and Others publicernmental and judicial organisations education (NGOs) on the is issue crucial. of v. Magistrate, Khayelitsha and others; Shibi v. Sithole and others; SA Human Rights Commis- this respect The Equal Rights Trust’s initia- sion and Another v. President of the Republic tiveequality in the for elaboration, all is among publicationthe tasks of NGOs.and dis In- of South Africa and another15 and Gumede v. semination of the Declaration of Principles President of the Republic of South Africa and of Equality (which have already been used by Others.16 It has also arisen in the context of the High Court in India) perfectly illustrates school uniforms as with the case of MEC for the next step in achieving equality in all its Education, KwaZulu-Natal and Others v. Pil- dimensions worldwide. lay.17 Kate O’Regan: There are many challenges Claire L'Heureux-Dubé: The most challeng- left for equality jurisprudence. The three that ing equality issues I encountered in my ca- come to mind are: (i) identifying the purpose reer as a judge were discrimination against of equality clauses in a manner which renders women, for example the cases of Moge v. the jurisprudence sound and predictable; (ii) Moge18; R. v. Seaboyer; R. v. Gayme19; R. v. developing a jurisprudence on restitutionary O'Connor20; or R. v. Ewanchuk21, particularly against women in divorce, rape and sexual assault, and against homosexuals as in the toequality experiment (affirmative with measures action) which to undo permits the cases of Canada (Attorney General) v. Moss- legislatures and executives sufficient scope- op22 or Egan v. Canada23. I am proud of the out treating previously advantaged commu- fact that most of my dissents in those areas nitiesharmful unfairly; effects and of (iii)past determiningdiscrimination the withre- are now the law. lationship between the promotion of gender equality, on the one hand, and the protection ERT: In what areas or what issues do you see the most significant future challenges other. in the field of equality law? of cultural and religious difference on the

Claire L'Heureux-Dubé: The courts in gen- Interviewer on behalf of ERT: eral have done a great job in the area of dis-

Jarlath Clifford

1 Supreme Court Law Review (2001) Vol. 14, pp. 17-27.

See McLachlin, B., “Equality: the most difficult right”,

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2 Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554. In this case the Canadian government denied an employee bereavement leave on the grounds that he was gay. The Supreme Court held that this was not unconstitutional.

Justice3 L'Heureux-Dubé dissented. Harvard Law Review, 1982, Vol. 95, p. 537.

4 SeeKhosa Westen, and Others P., “The v Minister Empty Idea of Social of Equality”, Development; Mahlaule and Others v Minister of Social Development and others [2004] (6) SA 505 (CC). In this case the appellants had been denied support under the South African Social Assistance Act 1992 because they were not considered citizens, despite being permanent residents of South Africa. This denial was held to be unconstitutional by the Court and relevant sections of the Act were struck down.

5 Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624. In this case the Supreme Court held that a guaranteed by the Canadian Charter of Rights and Freedoms, section 15(1). failure to provide sign language interpreters in the health service violated the right to equal benefit of services 6 Gosselin v. Quebec (Attorney General) [2002] 4 S.C.R. 429, 2002 SCC 84.

7 Prime Minister of Canada, et al. v. Omar Ahmed Khadr

(presently under deliberation). This case involves Omar Ahmed Kadr, a Canadian citizen, who was detained in Guantanamo Bay in July 2002 and allegedly tortured by Canadian8 Andrews officials.v. Law Society Mr Kadr’s of British return Columbia to Canada [1989] is still 1 beingS.C.R. 143.deliberated. In this case a British subject permanently resident in Canada was denied entry to the provincial Bar on the grounds that he was not a Canadian citizen. The Supreme Court held that the actions of the Law Society violated Section 15 of the Charter of Rights and Freedoms.

9 Syndicat Northcrest v. Amselem [2004] 2 S.C.R. 551, 2004 SCC 47. In this case the managers of property co-owned - nies of their shared building. The application for an injunction was granted by the Supreme Court and upheld by theby Syndicat Court of NorthcrestAppeal disallowing sought an any injunction such construction. against the construction by Orthodox Jews of ‘Succahs’ on the balco 10 Multani v. Commission scolaire Marguerite-Bourgeoys [2006] 1 S.C.R. 256, 2006 SCC 6. In this case the Supreme Court of Canada struck down an order of a Quebec school authority that prohibited a Sikh child from wearing a kirpan to school as a violation of freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms.

11 See above, note 6. Gosselin involved a challenge to a government law that excluded citizens under 30 from receiv- 15 of the Canadian Charter of Rights and Freedoms. ing social security benefits. The Supreme Court in a majority of by 5 to 4 held that there was no violation of section 12 Minister of Finance and Others v Van Heerden [2004] (6) SA 121 (CC). In Van Heerden, the Constitutional Court held that laws allowing for the disparate allocation of pension contributions between old and new parliamentarians were not to be unconstitutional, despite the claim that such laws discriminated along racial and political grounds. The decision meant that certain parliamentarians would receive a lesser pension entitlement than others.

13 R. v. Kapp - sively to aborigine groups was in breach of section 15 of the Charter of Rights and Freedoms. The Supreme Court held that the [2008] scheme 2 wasS.C.R. constitutional 483, 2008 SCC and 41. did The not appellants violate section argued 15 that of thea scheme Charter. granting fishing licenses exclu 14 British Columbia (Public Service Employee Relations Comm.) v. BCGEU ("Meiorin") [1999] 35 C.H.R.R. D/257 (S.C.C.). In Meiorin

the Supreme Court heldbona that thefide Government occupational of requirement. British Columbia's aerobic standard used to test the fitness of forest fire-fighters discriminated on the basis of sex, and that the Government failed to show that the discriminatory15 Bhe and Others standard v. Magistrate, was justified Khayelitsha as a and others; Shibi v. Sithole and others; SA Human Rights Commission and Another v. President of the Republic of South Africa and another [2005] (1) SA 563 (CC). In these cases the equal right of inheritance to women was discriminatory. The court struck down the legislation and provided a new Constitutionalregime that ensured Court theof South equal Africa treatment confirmed of both a womenprevious and decision children that in had inheritance found that matters. legislation which denied the 16 Gumede v. President of the Republic of South Africa and Others [2008] ZACC 23. In Gumede a woman who entered the introduction of the Recognition of Customary Marriages Act in 1998. This was held to be discriminatory and into a customary marriage was denied any financial entitlement upon divorce as her marriage took place before- tional. several legislative provisions allowing for such financial exclusion were struck down and held to be unconstitu

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17 MEC for Education, KwaZulu-Natal and Others v. Pillay the Equality Court on the basis that the refusal to allow a pupil to wear a nose stud as an expression of her Hindu religion and culture on the basis that it was in contravention [2008] of the(1) school’sSA 474 (CC). code Thisof conduct case was amounted first argued to unfair in discrimination. The Court found that although refusal was discriminatory, it was not unfair. This decision was taken on appeal to the High Court who overturned the earlier decision. Whilst acknowledging the importance of uniforms in the school environment and the adherence to school rules, the Constitutional Court held that granting religious and cultural exemptions would not undermine the admirable purpose that uniforms serve. The school’s governing body was accordingly ordered to amend its code of conduct to provide for the reasonable accommodation of deviations on religious or cultural grounds and the requisite procedure.

18 Moge v. Moge [1992] 3 S.C.R. 813. In Moge v. Moge, a husband who had been paying his wife spousal and child support following their divorce, when his former spouse found new employment applied to have the support cut-

off. The Supreme Court held however that such a cancellation was discriminatory and did not recognise the wife’s 19non-financial R. v. Seaboyer; contribution R. v. Gayme in [1991] supporting 2 S.C.R. the 577. family This and case home. involved the provisions in the Canadian penal code that restrict the right of defence lawyers to cross examine the sexual history of those who allege rape.

20 R. v. O'Connor [1995] 4 S.C.R. 411. In this case the Supreme Court held that the medical and counselling records of a complainant in a sexual assault case that are held by a third party can be disclosed by order of the judge if they meet two requirements. First, the applicant must establish, without seeing them, that the records are likely to be relevant to the case. Second, the judge must review the records and decide whether to disclose them based on balancing the right to make full answer and defence, and the right to privacy.

21 R. v. Ewanchuk [1999] 1 S.C.R. 330. The accused was acquitted of sexual assault on the grounds that the victim case the Supreme Court held that there was no defence of implied consent. had offered implied consent, despite verbally denying consent several times and complying only out of fear. In this 22 See above, note 2.

23 Egan v. Canada as being of the opposite sex was unconstitutional and denied him his rights under s.15(1) of the charter. The courts [1995] 2 S.C.R. The appellant claimed that the definition of "spouse" in the Old Age Security Act held against the appellant however, upholding the constitutionality of the definition.

The Equal Rights Review, Vol. Four (2009) 97 ACTIVITIES

■ Workshop Report: Mumbai 12-13 December 2009

■ The Equal Rights Trust Advocacy

■ Update on Current ERT Projects

■ ERT Work Itinerary: July-December 2009

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The Equal Rights Review, Vol. Four (2009) 99

Legal Workshop on Equality and Non-Discrimination Law Workshop Report, Mumbai, 12 – 13 December 2009

Jarlath Clifford1

Introduction and Aims

The Equal Rights Trust and the Human Rights Law Network (HRLN) organised a national training workshop for over 35 Indian lawyers, paralegals and legal activists in Mum- bai on 12 and 13 December 2009 as part of the project Promoting better implementation of equality and non-discrimination law in In- dia which began in May 2009. The purpose of the workshop was to develop the capacity equality and non-discrimination law, mak- ingof NGOs use of and national lawyers and in internationalIndia to implement equality standards and best practice, based on the Declaration of Principles on Equality. It featured training and discussions on a range of issues, including overviews of equality and non-discrimination law; gender discrimination; disability rights; equality monitoring and enforcement bodies; and sexual orientation and gender identity.

The workshop had four main aims:

1) Increasing the knowledge and use of international and comparative equality and 3) Empowering workshop participants to act non-discrimination law by Indian legal prac- as disseminators of the knowledge and ex- titioners and activists; pertise acquired during the workshop;

2) Developing Indian legal practitioners and 4) Encouraging workshop participants to en- activists’ familiarity with key Indian juris- gage with key anti-discrimination concepts prudence on equality and non-discrimina- - tion, particularly laws and judgments related ity (covering all grounds of discrimination) to gender, disability and sexual orientation; inand their to adopt work. a unified perspective of equal

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To achieve these aims, the workshop, the - nation issues could be addressed through a uni- project, assembled a group of national the context of India many significant discrimi andfirst of international two to be conducted equality as practitioners part of the discrimination. that are experts in the issues covered by fied perspective which examines all grounds of the workshop to act as trainers. To em- Session 1: Overview of Equality and phasise the linkages and complementary Non-discrimination Law aspects of international and comparative law and Indian law, each session part- Session 1 began with a presentation by Michael nered international trainers with Indian Rubenstein, who introduced the concepts of trainers. The trainers for each session equality and discrimination as applied and understood in law. Mr Rubenstein spoke on the need to protect against discrimination on the thewere trainers as follows: were in Session Michael 1, Rubenstein“Overview grounds of gender, race, religion or belief, age, of Equality and Non-discrimination Law”, disability, sexual orientation, gender identity and social status. Within each of these areas, Leonardand Colin and Gonsalves. Flavia Agnes. Session Amita 2, “GenderDhanda Discrimination”, was conducted by Alice discrimination, such as pregnancy and mater- nityhe unpicked discrimination several in different the context manifestations of gender; the of “Roleand Oliver of Monitoring Lewis served and as Enforcement trainers for Session 3, “Disability Rights”. Session 4, this concept included philosophical or political and Kalpana Kannabiran, and Session 5, values;meaning and of “belief”, the complexity specifically of genderwhether identity or not Bodies”, was delivered by Neil Wooding discrimination in the case of intersexed people. Aditya Bandopadhyay. Each trainer con- “Sexualducted an Orientation”, interactive featured workshop as session trainer with the aforementioned training objectives in mind over the course of the two days of the workshop. A group training exercise was also organised to give participants the opportunity to apply the knowledge gained through the interactive sessions.

The workshop opened on 12 Decem- ber with a short introduction by Human - tik Sharma. He introduced the purpose andRights aims Law of Network’sthe workshop Legal and Officer, the basisKar

developed the need for the project. ERT’s Following on from this, his discussion focused on upon which HRLN and ERT identified and- a more detailed analysis of gender discrimina- duced the mission and purpose of The EqualLegal OfficerRights Trust. Jarlath He Clifford drew attention then intro to in this context. For example, should employees - betion judged in employment upon the nature and the of meaning the work of that “equal” they spective on equality and argued that in do or the value of this work to the company? the advantages of utilising a unified per

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Mr Rubenstein discussed the ways in and dissuasive, which might include changing policy which economic pragmatism in the or organisational procedure. The presentation was business world can often result in concluded by listing several other remedial options gender discrimination as the pull of such as the entitlement to compensation in the form market forces supersedes principles of pecuniary or non-pecuniary damages and court- of equality. The complexity of proving ordered injunctions. sexual harassment was also discussed and the issue as to whether any test applied should be objective or subjective was also explored. Moving on andfrom shown gender, to theinclude different distinctions facets on of theracial grounds discrimination of nationality, were identified ethnicity and language as well as more traditional concepts of racism.

Mr Rubenstein then turned to address the notion of positive action and positive discrimination. He explained that positive action was an important instrument that was necessary for achieving equality. Discussing a positive prohibition on discrimination, he stated that laws should proscribe discrimination in social security, and access to goods, facilities and services such as healthcare. Hereafter discrimination that manifest in daily he examined the different forms - of rect, indirect, perceived, associative, andlife, referring multiple to discrimination the definitions as of well di as harassment and describing how such discrimination occurs in practice. Finally, he gave an overview of available in the event of unlawful dis- - crimination.the different In remedies relation thatto the should burden be salves, who talked about recent developments in In- of proof, it was explained that it should dianThe secondequality speaker and non-discrimination of the session was jurisprudence. Colin Gon be for the defendant to prove that no discrimination has taken place. Mr Constitution and its jurisprudence as a strong source Rubenstein stressed that sanctions He identified Articles 14, 15, 16 and 46 of the Indian for a breach of the right to equality case of Raghunath Rao v Union of India (AIR 1993 SC 1267)of equality in which protection. the right Mr to Gonsalves equality referredwas held to to the be need to be effective, proportionate

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a fundamental right of the Indian Constitu- any commitment to non-arbitrary treatment tion and that no constitutional amendments should be based on the principles of natural can be made to take away or abridge this fun- justice. damental right. He also explored the case of S.R.Bommai v Union of India (1994 3 SCC 1) How equality can be both procedurally and - substantively achieved was then considered. gion and asserted that secularism was also a basicwhich feature dealt specifically of the Constitution. with the issue of reli a need for procedural integrity but there was alsoMr Gonsalves a requirement stated that that the there substantive was not onlyele- ment of all laws be fair, just and reasonable – and that internal checks and balances were necessary to ensure consistency of the execu-

groups vulnerable to discrimination were tive. Towards the end of the session, specific- tive discrimination for groups such as Dalits andidentified women and was the necessary case was in made order that to reduce posi their inequality. In his closing remarks Mr - pendent judiciary capable of review on the basisGonsalves of reasonableness stated that legal and aid proportionality and an inde - His presentation then turned to the “Doc- ity. was fundamental to the fight against inequal Session 2: Gender Discrimination trine of Classification” in relation to “equality- before the law”. He noted that classifications Alice Leonard commenced the second ses- should be be understandable. reasonable and In that addition, any differit was sion by building on what Mr Rubenstein had stressedence identified that distinctions between groups between of groupspeople discussed with regard to direct and indirect should have a rational nexus to the object discrimination. She began by recalling the of the legislation. The discussion was then experience of discrimination in the United broadened and the question of whether mo- Kingdom in the 1970s, highlighting the gen- rality should ever be a factor in determining der gap inherent in the social fabric of the the reasonableness of distinctions between nation at the time. She drew on examples groups of people was raised. from many spheres of social life such as the

and female university students and the ste- forward the view that there ought to be guar- reotypicallydifferentiation gendered between roles the that numbers women of tookmale anteesFollowing against this discussion, arbitrary treatment Mr Gonsalves and thisput on if they entered into the labour market. should be formulated as a positive obligation Ms Leonard then discussed the emerging on the state which requires a duty to intro- legislation that marked the beginning of sex duce policies to ensure that all people are equality law in the United Kingdom through able to enjoy the equal protection of laws. He the Sexual Discrimination Act of 1976. She drew together the notions of arbitrariness discussed the major developments in equal- and the concepts of justice, explaining that ity jurisprudence in the 1970s and 1980s

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which created counterweight to the preva- that women were much more likely to work lence of stereotypical assumptions about on a part-time basis due to child care duties. women. This stereotyping, she explained, Following the presentation, participants was particularly visible in industries such as separated into groups and undertook a case engineering and oil were there was a reluc- study exercise which required them to apply tance to recruit women due to the belief that the legal standards and concepts presented they could not cope with the physical nature by Ms Leonard. Two case studies were given of the work. to the workshop participants. Case study 1 involved women in the judiciary of India She then compared UK sex discrimination law and the Indian jurisprudence on sex dis- respect to direct and indirect discrimination crimination to show that many of the same and required think about participants what evidence to “issue was spot” neces in- sary to bring a successful case of discrimination. Case study 2 involved the employment of women on the railways of India. This case study also required participants to think critically about the equality issues involved, spot any potentially discriminatory elements within the case study scenario and develop arguments supporting the position that the

generalised assumptions about women were prevalent both in India and the UK. Ms Leonard moved on to talk about the emerging concept of indirect discrimination which migrated to the United Kingdom appearing infirst the developed Sex Discrimination in the United Act States of 1976. and then She in overcoming deep-rooted inequalities and discrimination which occurred in the rail- urgedreflected participants on the importance to think of this strategically concept groups spent time discussing and analysing them, their clients and their work. Finally, theway case industry studies in India and presented was not justifiable. their conclu The- about how indirect discrimination affects sions to the workshop. legislation had been interpreted in the Brit- ishshe courts.laid out Shethe different provided severalways in exampleswhich this The second trainer of this session was Fla- of employers who indirectly discriminated via Agnes who spoke about equality and against women by providing redundancy pay discrimination in family law, including in- only to full-time workers with the knowledge heritance, marriage and divorce. She began

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this lively interactive session by stressing pecially in relation to maintenance payments, the complexity of assessing gender discrimination in India due to the tradition of legal rather than a monthly allowance was seen pluralism and the overlap between religious, asbut a the missed choice opportunity to offer women to develop a lump a uni - sum civil and customary laws. Ms Agnes stated form civil code. The issue of polygamy was from the outset that all laws in India pertain- raised once more and compared with Hindu ing to the family were built upon patriarchy polygamy, with Ms Agnes asserting that Mus- and relied heavily upon traditional interpre- - tations of woman as the chaste wife and the lygamous marriages were recognised in the virginal daughter. Muslimlim women tradition were and slightly thus better Muslim off women as po did receive maintenance payments. To con- Moving on from this general assumption, tinue her analysis, Ms Agnes then looked at Christian law. The main challenge for Chris- laws were examined. Beginning with Hindu tian women, she stressed, was the denial of law,each Ms religious Agnes described tradition’s the specific salient personalfeatures rights of divorce on the ground of cruelty – a of the law reforms that occurred in the 1950s which attempted to transform the religion’s until 2001. To conclude, Ms Agnes set out values on gender. For example, the Hindu thatground there which are still was many not officially discriminatory recognised ele- Succession Act of 1956 which ended the ments in secular statutes that disadvantage practice of testamentary succession and al- women, as well as customary practices that lowed widowed women full access to their are prevalent across much of India. husband’s estate. Despite some developments such as this one, a prevailing gender inequality still exists in the Hindu tradition. For example, women who are not in legally recognised monogamous relationships fail - tance laws. to benefit from the changes made to inheri

as the Hindu Marriage Act of 1955 were then The flaws in other legal developments such of the roles of men and women in the mari- talpresented. home, the Because legitimate of thegrounds different for divorce nature - ditionally, though both men and women are Session 3: Disability Rights entitledwere very to different maintenance for men payments and women. follow Ad- ing a divorce, stereotypical conceptions of Session 3 began with an icebreaking activity women prevail and they are far less likely by asking each person in the room to intro- to receive payments if they are portrayed as sexually promiscuous. that came to their minds when they thought ofduce disability. themselves The responses and to say from the the first attend word- Ms Agnes then discussed how Muslim laws ees were quite varied and included descrip-

that there had been some developments, es- affect gender equality in India. She asserted tions such as “disadvantage,” “suffering,” “misunderstood” and “challenge". Oliver

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Lewis then began the training with the challenging task of presenting an overview of the United Nations in which CRPD could be promoted at Convention on the Rights of Persons with Disabili- Mr Lewis discussed the different ways- ties (CRPD) which came into force in 2008. Describ- ly on the importance of independent ing the history and the philosophy behind CRPD, he monitoringthe national bodies level, focusing as well as specifical the par- described how existing human rights mechanisms ticipation of persons with disabilities were inadequate for people with disabilities. He and civil society more generally. He moved on to discuss who exactly would be covered by CRPD. Drawing together the ideas of disability to CRPD which contains procedures and equality, he emphasised the importance of a throughthen introduced which individualsthe Optional can Protocol seek person’s ability to participate equally in society. He - lation of their rights. At the end of his ever evolving within CRPD. presentation,remedies if they Mr haveLewis suffered placed CRPDa vio also noted that the concept of disability is fluid and within the broader global picture, speaking of its developmental nature and pointing out that its ultimate aim should be to include disability measures in the broader developmental programme in order to achieve the

MillenniumProfessor Amita Development Dhanda Goals. continued the session by discussing the gap between international disability standards and the domestic law in India. She spoke not only of the need for consistency in the content of any given legislation, but also the need for Following these introductory remarks, Mr Lewis consistency in the implementation turned to look at the principles contained in CRPD, and monitoring of such legislation. which, to some extent, moved beyond the concept Professor Dhanda also highlighted of disability and brought together ideas of equality. the need for a change in the outlook The training continued with an interactive session of domestic legislation. Change was which required participants to form into groups and examine separate UN Conventions in order to make including a move from a narrowly comparisons with CRPD. Following on from this, constructedrequired on medical many different conception levels, of the discussion turned to look at the practicalities of disability, to a more encompassing implementing the provisions of CRPD and how the social formulation of the concept. She Indian government could ensure the protection of stated that India needed to leave be- these rights. Mr Lewis stated that implementation hind its welfarist approach to people must be at both the national and international level with disabilities and move to a more - sophisticated rights-based approach. sary. Monitoring, it was suggested, could take the Additionally, the government of In- formand, inof orderconferences to be effective, between statemonitoring parties aswas well neces as dia must be encouraged to ensure committees. the participation of disabled per-

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sons in policy decisions rather than merely CRPD. At the international level, country re- their representation. The discussion then ports should be undertaken with the support of national governments. disability law. Professor Dhanda spoke of the addressed the current deficiencies in Indian The Session was characterised by a spirited Indian law is exhaustive and overly medi- and inclusive discussion. cal.problem This discussion of defining built disability, on from which Mr Lewis’ in the Session 4: Role of Monitoring and Enforce- evolutionary character of the concept of dis- ment Bodies previous observations about the fluidity and the law relating to employment, the lack of a Session 4 began with Dr Neil Wooding ex- ability. She highlighted the deficiencies in- plaining the role and powers of the United ty provisions, and the practice of developing Kingdom Equality and Human Rights Com- rehabilitationspecific disability programmes allowance outsidein social ofsecuri gov- mission (the Commission). He introduced ernment. It was pointed out that, apart from the remit of the Commission and the ways - in which it wished to re-shape the approach sic and necessary elements were absent in to equality. The Commission aimed to pro- the overt legislation. deficiencies Professor in the Dhanda Indian laws, referred ba mote a more integrated approach to equal- particularly to the lack of a commitment to the life, liberty and integrity of persons with of discrimination and amalgamating them disabilities. underity, bringing the broadtogether and several encompassing different types title of equality. According to Dr Wooding, they Professor Dhanda then commented on the - ence and to incorporate human rights into laws. She spoke of mental health laws, the is- theaimed campaign to promote for equality. the appreciation of differ suesconflicts of contract that exist formation, within guardianship Indian domestic and the exclusionary provisions which prevented The discussion turned to look at the aims of people with disabilities from accessing sev- the Commission with respect to the Equal- eral legal rights. At the implementation level, ity Act of 2006. Dr Wooding explained that the primary goals were for all individuals to ways in which the international standards achieve their full potential as well as the pro- couldProfessor be Dhanda incorporated highlighted into the the domestic different motion of the need to respect human rights and the diversity of society. Within these planning and resource allocation as well as goals, dignity and worth of all individuals concretesphere. She reforms spoke in of the the domestic need for effectivelaw and should be accommodated. These broad aims, more general awareness raising. example, the need to strengthen good rela- Addressing the issue of monitoring both at tionshipsit was highlighted, between contain individuals, specific reducing goals, for in- the national and international level, Profes- equality and eliminating discrimination. sor Dhanda emphasised that the need for a multi-disciplinary approach was key. Under Having laid out the aims of the Commission, the auspices of the Disability Commissioner, both human rights institutions and disabil- that the organisation performs. At the policy ity organisations should be actively involved levelDr Wooding he discussed then set responsibility out the different for enforc roles- in the monitoring of the implementation of

ing the law and influencing the development

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of legislation. In addition, Dr Wooding point- enforce the right to life and liberty consti- ed out that there was a strong need to promote good practice and facilitate campaigns upon international mechanisms in order to strengthentutionally and such the guarantees. efforts ofHowever, jurists it to was draw of equality. It was explained that the Com- noted that despite these attempts there were missionin order alsoto engage performs stakeholders a regulatory in the role field to still gaps in enforcement. Professor Kannabi- promote compliance with the law. Remind- ing participants about the themes touched on the disability rights session, Dr Wood- ing discussed the enforcement role of the Commission which included, among other things, powers to seek judicial reviews and injunctions and to conduct investigations. Intelligence-sharing was also an important function of the Commission in respect to enforcement.

promotingTo conclude the his values talk, Dr of Wooding equality. Heidentified stated thatsome enforcement of the difficulties alone faced would in notenforcing automati and- ran also noted the positive impact that “Com- cally result in transformational change. Ad- ditionally he highlighted the need for a multi- that such inquiries were still undermined by disciplinary approach to problem-solving fairmissions trial issues. of inquiry” had had, but warned that was not overly legalistic. He pointed out that many of these problems were complex Having examined the setbacks associated and the result of long-standing cultural and with the current system of monitoring and social phenomena. He exposed some ten- - sions that exist between the Commission - and other organisations in the regulation of enforcement, the proposed Equal Opportu- equality promotion. nabirannity Commission introduced and the the concept findings of of“parity the Ex of pert Group were discussed. Professor Kan- Professor Kalpana Kannabiran continued ing equality. The trainer then discussed the Session 4 with a discussion of the role of status” which was identified as key to achiev monitoring and enforcement bodies in India. To contextualise the discussion, Professor furthershortcomings thought, of the including 2008 Equal on an Opportunity expansion Kannabiran began with an overview of the Commission Bill. She identified the need for recent human rights movement in India and the acknowledgement that real access to jus- thatof the would meaning act as of a the measure term “deprived”, for identifying and tice for all was a major concern in the coun- groupsalso on in the need proposed of assistance. “deprivation Professor index” Kan- try. Professor Kannabiran discussed how nabiran went on to examine in detail how this movement had advanced and was today this could work in practice by analysing the taking the form of the move towards the cre- relationship between discrimination, deprivation and diversity. in India. She recognised recent attempts to ation of an Equal Opportunity Commission

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In relation to procedural matters, the need cording to Mr Bandopadhyay, the roots of for a clear understanding of the jurisdiction cultures where masculinity is a privileged Professor Kannabiran then discussed what statediscrimination and any male lie in who “shame-based” does not conform eastern to and scope of the Commission was identified. this ideal is persecuted by the entire society. His presentation generated a great deal of in- the Expert Group had termed the “indices of terest among the trainees who then engaged recognition” and proposed the idea that the with him in a frank and open question and anddefinition all-encompassing. of “deprived To group” conclude should and not bring be answer session. togetherof a fixed manycharacter, of the but issues should that be haddynamic been raised in her discussion, Professor Kanna- Final Panel Discussion and Future Steps biran posed questions about the mandate of The entire panel of trainers assembled for a any proposed mandate could encompass so- the Equal Opportunity Commission and how workshop participants asked questions on allfinal topics question covered and answerin the workshop session, where and dis the- lutions to the concerns of the Expert Group. cussed possible strategies to achieve equal Session 5: Sexual Orientation rights in India through litigation, activism and campaigning for more progressive liti- - gation on issues related to equality and non- sented by Mr Aditya Bandopadhyay and discrimination. generatedThe final session a great of dealthe workshop of interest was among pre the participants. India is a country that has The issues and concerns discussed in this only just decriminalised homosexual activ- workshop are a key source of information - for identifying (i) the challenges that prac- viduals from outright discrimination in any titioners and activists experience in India, aspectity and of offers economic, no social protection and political to LGBT life. indi Mr Bandopadhyay described the extent to present in Indian law. These issues and con- which sexual minorities are mistreated and cernsand (ii) will the also conceptual be a key source difficulties of information that are discriminated against by their friends, fami- and direction in drafting the legal Handbook which will be produced in the framework of The session was very forthright and graphic this project. Consequently, the experience, ly, government officials, especially the police. knowledge and expertise gained by work- feminised males and transgendered individ- shop participants will be disseminated to a ualsin its and portrayal brought of thethe severitybrutalities of inflictedtheir plight on broader audience through the publication of - the Handbook.

home to many present for the first time. Ac

Jarlath Clifford is Legal Officer at The Equal Rights Trust. Photo credits: Subhash Chandra Vashishth

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Equal Rights Trust Advocacy

Jim Fitzgerald1

In the period since the publication of ERR Volume 3 (June 2009), ERT has been continuing with its work to expose patterns of discrimination globally and to combat inequality and discrimination both nationally and internationally. A major component of ERT’s advocacy work has been advocating for the Declaration of Principles on Equality by using the Principles as a basis for assessing legislative and judicial developments. Below is a brief summary of some of the most important ERT advocacy actions.

ERT Submits Written Comments to Mol- ERT’s most important recommendations re- dovan Government on Draft Anti-discrim- lated to: ination Law ■ - - crimination and harassment; ments to Vitalie Pârlog, Minister of Justice of The definitions of direct and indirect dis theOn 10Republic July 2009, of Moldova ERT submitted on the Draftwritten Law com on ■ The absence of a reasonable accommoda- Preventing and Combating Discrimination.2 tion provision; The Draft Law aims to ensure the enjoyment by all persons in the territory of Moldova to ■ equal rights and equal treatment in political, prohibition of discrimination in access to economic, social and other spheres of life. goods The and unjustifiably services; broad exceptions to the

While there are numerous non-discrimina- ■ tion provisions currently in force in Moldo- to monitor the compliance with the Law. va, as well as some judicial interventions to The creation of a Government Committee protect from discrimination, the lack of com- In spite of its concerns ERT commended the prehensive anti-discrimination law has been covers all grounds of discrimination and for Draft Law for its unified approach which holding back the fight against discrimination. prohibited ground of discrimination. InThe its Draft submission Law is anERT attempt assessed to fillthe this Draft gap. Law including sexual orientation as a specifically and set out its concerns on several crucial Moldova is just one of approximately 160 issues that should be addressed properly. countries in the world that currently have ERT provided recommendations on the basis no comprehensive anti-discrimination law of the Declaration of Principles on Equality to protect the most vulnerable and disadvan- as an international instrument of best prac- taged individuals and groups in society. tice to guide legislators and policy makers in strengthening national equality regimes.

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ERT Urges the Sudanese Parliament to Re- released on Tuesday 9 September 2009 after peal Indecency Law her behalf. the Sudan Journalists Union paid the fine on Parliament of Sudan expressing concern Ms Hussein’s case highlights the need to re- aboutOn 17 the September discriminatory 2009, ERT application wrote to of theAr- peal a law which raises a number of serious ticle 152 of the Criminal Act 1991, which has human rights concerns, particularly with been used to discriminatorily target women regard to the right to non-discrimination. and non-Muslims.3 The letter also echoed Whilst it is gender neutral on its face, Ar- broader concerns that whipping, the pre- ticle 152 of the Criminal Act has reportedly scribed punishment for breaching Article been applied in a manner that discriminates 152, constitutes cruel, degrading and inhu- against women. According to reports by na- man treatment. tional and international human rights organisations, Article 152 has often been used to ERT urged the authorities to repeal Article prosecute women for conduct – such as the 152 of the 1991 Criminal Act. It further urged wearing of trousers – deemed inappropri- the authorities to review the country’s criminal justice and other legislation in order to and judges. Women have been routinely ar- ensure it complies with the principle of non- rested,ate by individualdetained, tried law enforcementand then, on officers convic- discrimination, which is central to international treaties to which Sudan is a party. disapproves of their attire. Furthermore, it appearstion, whipped that many simply women because sentenced a police officerby the Article 152 of the Sudanese penal code states: have been displaced to the North by the con- Public Order Courts are non-Muslims who “(1) Whoever commits, in a public flictERT inSubmits the South Expert of Sudan. Opinion on Proposed place, an act, or conducts himself in an inde- Amendments to Latvia’s State Pensions cent manner, or a manner contrary to public Act morality, or wears an indecent or immoral dress, which causes annoyance to public feelings, shall be punished, with whipping not expert opinion on the proposed amendments toOn the 30 State September Pensions 2009, Act ERTto Latvia’s submitted Saeima an (Parliament).4 The amendments in question exceeding (2) forty The lashes, act shall or a fine be deemed or both. con- are a response to the European Court of Hu- trary to public morality, if it is so considered man Rights judgment in the case of Andreje- in the religion of the doer, or the custom of va v. Latvia (application no. 55707/00, judgment of 18 February 2009).

ERT’sthe country letter wherefollowed the the act imprisonmentoccurs.” and In the Andrejeva decision the Strasbourg subsequent release of Sudanese journal- court found that Latvia had discriminated ist Lubna Hussein for breaching Article 152 against non-citizens as compared to citizens, - in not recognising their employment before ber 2009, Ms Hussein was sentenced to one 1991 by organisations which had been legal- month’sby wearing imprisonment trousers. On after Monday refusing 8 Septem to pay ly registered in former Soviet republics other than Latvia, as counting towards pensions.

a fine for breaking the law. Ms Hussein was

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In its submission ERT argued that the pro- amended in response to concerns about the posed amendments, which aim to end dis- extension of equal rights for women.5 crimination against non-citizens with respect to pension entitlements by reducing or The letter stated that there was much to be welcomed in the Code and expressed ERT’s both citizens and non-citizens, are contrary concern that progressive articles would be to“levelling Latvia’s down” international the pension legal entitlements obligations, for amended or removed in response to hostile and to the object and purpose of domestic pressure in recent months over the enact- equality legislation. articles in the Code which undermined the ERT’s submission emphasised that: principlesment of the of Code. equal ERT participation also identified and three non- discrimination, and called for these provi- ■ The levelling down of entitlements is con- sions to be amended before the Code is ad- trary to Latvia’s obligations under interna- opted to avoid putting Mali in breach of its tional and European law; international obligations. The letter was sent as Mali’s parliament de- ■ Comments and guidance issued by the UN Committee on Economic, Social and Cultural bated the bill at second reading, after Presi- Rights and the European Commission indi- Code into law amid protests led by Islamic cate that regressive measures are not justi- leadersdent Amadou in late TouréAugust. refused Citing theto sign need the to new“en- obligations; fiable in order to meet non-discrimination atsure a smallcalm and number a peaceful of provisions society”, which President had The European Court of Justice has ruled out ■ drawnTouré askedcriticism. parliamentarians to look again end practices of discrimination on grounds In its letter, ERT urged members of the Na- the possibility of “levelling down” in order to of sex, and this principle should apply in re- tional Assembly not to amend or remove ar- spect to other types of discrimination. ticles from the draft which extend rights for women, including: ERT appealed to the Latvian parliament to reconsider, in the second reading stage, the ■ Article 3, which states that no one can be amendments to the State Pensions Act and discriminated against due to their genetic at- vote for the adoption of amendments which tributes. would harmonise upwards the pension entitlement of the non-citizens to those of citi- ■ Article 282, which sets the minimum age zens of similar employment history. for marriage to 18 for girls. The current law sets a minimum age of 18 for males and 15 ERT Urges Malian Parliament to Improve for females. and Pass New Family Code ■ Article 284, which sets out that marriages - will be considered void in the absence of con- dent of the National Assembly of Mali, Dion- sent by both parties. On 19 October 2009, ERT wrote to the Presi National Assembly to ensure that the draft ■ Article 313, which states that spouses have Personscounda Traoré,and Family calling Code on is membersnot regressively of the joint responsibility for the wellbeing of the

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family. The current law in force states that a polygamy and to ensure that spouses have woman should obey her husband. the same rights and responsibilities both during marriage and in the event of its dis- ■ Article 320, which provides a right to divorce by mutual agreement. ■solution.” Article 314 which stated that the hus- ■ Articles 559-605, which replace the term band is the head of the family, has the right to choose the family’s residence and has re-

“paternal power” used in Article 86 of the forward that Article 314 was both in breach bothcurrent parents Marriage to share and parental Guardianship rights and Code re- ofsponsibility the Convention for the on family’s the Elimination finances. ERT of Dis put- withsponsibility. the “parental authority” and provide for crimination against Women and the Protocol on the Rights of Women in Africa, and that it ■ Article 769, which sets out the rights to inis inconsistent with other Articles in the draft heritance of children, descendants, parents Code, which seek to put men and women on and siblings on an equal basis. an equal footing.

■ Articles 793, 794 and 795, which ensure ERT also used the opportunity to urge Ma- that both male and female spouses can in- lian authorities to take comprehensive and herit equally in cases of intestate succession. - ness-raising campaigns, aimed at eliminat- In the letter ERT also urged the members of ingeffective practices measures, of polygamy. including public aware the National Assembly to consider removing or amending three provisions in the draft ERT Calls on Commonwealth Heads of Code which undermine the right to equality. Government to Condemn the Ugandan These were: Anti-homosexuality Bill and Urges Ugan- dan President and Parliament to Reject ■ Article 290 which included same sex mar- the Bill riages in a list of prohibited forms of marriage. ERT submitted that this prohibition put same sex partners at a disadvantage in - respect to their right to found a family and On 26 November 2009, ERT wrote to the- urged the Malian parliament to be guided ernmentCommonwealth to condemn Secretary an Anti-homosexuality General, Kama by recent interpretations by the UN Human Billlesh recently Sharma, introduced calling on in the the Heads Parliament of Gov of Rights Committee. Uganda and to take urgent action to repeal existing homophobic laws across the Com- ■ Article 302 which authorised and legiti- monwealth.6 The letter was sent in advance mised the practice of polygamy, which violates the equal rights of women in relation to meeting later that week. men. Mali should be guided on this issue by of the Commonwealth Heads of Government the UN Committee on the Elimination of Dis- Homosexual conduct is currently illegal in crimination Against Women, which has ex- the majority of Commonwealth nations, de- pressed concern that Malian family law does spite the commitment in the 1971 Common- not outlaw polygamy and recommended that wealth Declaration of Principles to “foster

Mali “put in effect measures to discourage human equality and dignity everywhere”.

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Code, which is currently used to prosecute to: homosexual conduct. In the letter ERT urged Heads of Government ■ - The submission focused on the rights to dress the issue of laws criminalising homo- equality and non-discrimination and provid- sexual Establish conduct a Ministerial and advise Action member Group states to ad of ed a detailed analysis of how the proposed the Commonwealth on the legal implications of retaining such laws. rights. ERT argued that protection from dis- criminationBill would affect provided the by enjoyment the Constitution of these ■ Condemn in the strongest terms the Anti- of Uganda includes protection on grounds homosexuality Bill which was tabled in the of sexual orientation and gender identity. It Parliament of Uganda and consider sanc- further argued that the Bill does not comply tions which would follow from adoption of with the Constitution’s own provisions for re- the Bill. stricting fundamental rights and is in breach of the international human rights obligations ■ Include a political commitment to tackling by which Uganda is bound. its meeting. ERT Action on International Human homophobic laws in the final communiqué of Rights Day ERT argued that current international law prohibits discrimination on the basis of sexual orientation and gender identity. Relying Rights Day - ERT invited new endorsements on interpretation by UN human rights bod- ofOn the 10 DecemberDeclaration 2009 of Principles - international on Equality, Human ies and broadly recognised legal principles to a set of key principles drafted and signed by support its case, ERT highlighted that in re- 128 leading experts and launched by ERT cent years, the UN Human Rights Committee, the Committee on Economic, Social and Cul- ERT responded to the initiative of the UN tural Right and the Committee on the Rights Highin October Commissioner 2008. With on thisHuman renewed Rights appeal, to de- of the Child have all concluded that the right clare discrimination as the theme of Human to non-discrimination includes protection Rights Day 2009. on grounds of sexual orientation or gender identity. - dations related to the rights to non-discrim- inationERT has and also equality addressed to thespecific governments recommen of nine countries on which it had focused its submittedOn 9 December a 25-page 2009, legal following brief theto Ugandan letter to work earlier this year: Latvia, Malaysia, Mali, Presidentthe Commonwealth Yowere Museveni Secretary outlining General, how ERT Moldova, Sudan, Thailand, Uganda, UK and the adoption of the Anti-homosexuality Bill the USA. currently being debated in the Ugandan parliament would breach both Uganda’s Con- - stitution and its international treaty obliga- ernments from Europe, Africa, Asia and the tions.7 ERT urged President Museveni and Americas:ERT addressed specific appeals to 9 gov Ugandan parliamentarians to reject the Bill in its entirety, and to review the constitu- ■ Latvia – ERT urged the Latvian government tionality of section 145 of the Ugandan Penal and its lawmakers to uphold the equality of

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all persons under its jurisdiction in respect to as the basis for new policies ensuring equal- their pension rights and not roll back current ity between Sinhalese and Tamil communi- levels of social security, as recommended in ties. ERT’s expert opinion earlier in the year. ■ Sudan – ERT addressed recommendations ■ Malaysia – ERT called on the government to the Sudanese parliament calling for the of Malaysia to ensure equal rights for state- repeal of section 152 of the Criminal Code, less Rohingya migrants under its jurisdic- which prohibits ‘indecent’ acts and conduct tion, following previous advocacy and ahead as it has been used discriminatively against of the publication of its special report on the women and non-Muslims. situation of Rohingya held in detention in that country. ■ Uganda – ERT called on authorities and parliamentarians to reject the proposed An- ■ Mali – ERT reiterated its recommendations, ti-Homosexuality Bill which is currently be- the message of which is that Mali’s MPs and ing debated in Uganda, one of 80 countries President should not give in to pressure from in the world where homosexual conduct is opponents of the draft Family Code which illegal. seeks to extend rights for women in respect of marriage, property and inheritance. ■ UK – ERT wrote to the leaders of the UK’s three major political parties urging them to ■ Moldova – ERT called on the government to ensure that adequate parliamentary time is ensure that the Draft Law on Preventing and made for the 2009 Equality Bill to be enacted - before parliament rises. est international standards on equality as Combating Discrimination reflects the high ■ consultation and to push for its adoption by institute a review of immigration detention theset outparliament. in its submission to the government's policies, USA – ensureERT called that on all President remaining Obama stateless to

■ Sri Lanka – ERT reiterated its call to Presi- resettled in safe countries and sign the 1954 dent Rajapaksa to use the principles of equal- Conventiondetainees at onthe theGuantanamo Status of Bay Stateless facility Per are- ity enshrined in Sri Lanka’s constitution and sons. in ERT’s Declaration of Principles on Equality

2 JimThe Fitzgeraldtext of the isERT Advocacy letter to and the Communications Minister of Justice Officer Vitalie at Pârlog The Equal is available Rights Trust.at: http://www.equalrightstrust.org/ ertdocumentbank/ERT%20Submission%20to%20Moldova%20on%20Law%20on%20Preventing%20and%20 Combating%20Discrimination.pdf.

3 The text of the ERT letter to the Sudanese Parliament is available at: http://www.equalrightstrust.org/ ertdocumentbank/090916%20Sudan%20Lubna%20Hussein%20clean%20Speaker%20_2_.pdf.

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4 The text of the ERT submission to the Latvian Parliament is available at: http://www.equalrightstrust.org/ertdocumentbank/Microsoft%20Word%20-%20Latvia%20PisjmoDaudze%20_2_.pdf.

5 equalrightstrust.org/ertdocumentbank/091015%20Mali%20-%20Traore%20Final%20Fr.pdf. The text of the ERT letter to the National Assembly President Dioncounda Traoré is available at: http://www. 6 pdf. The text of the ERT letter to Commonwealth General Secretary Kamalesh Sharma is available at: http://www. equalrightstrust.org/ertdocumentbank/091126%20Sharma%20-%20CHOGM%20Homophobic%20Laws%202. 7 The text of the ERT submission to Ugandan President Museveni is available at: http://www.equalrightstrust.org/ - ion.pdf. Excerpts of the submission are reprinted in this volume. ertdocumentbank/The%20Equal%20Rights%20Trust%20Uganda%20Anti%20Homosexuality%20Bill%20Opin

The Equal Rights Review, Vol. Four (2009) 116

Update on Current ERT Projects

Project “Law Enforcement Discrimination Project “Detention of Stateless Persons” and Death in Custody” This project started in May 2008 with the Launched in December 2007, this project has aim of strengthening the protection of state- three main objectives: (i) to systematise the less persons who are in any kind of detention existing knowledge on the relationship be- or imprisonment due at least in part to their tween deaths in custody and discriminatory being stateless, and to ensure they can exer- policy or conduct by law enforcement bod- cise their right to be free from arbitrary de- ies; (ii) to enhance the global understand- tention without discrimination. UNHCR and ing of the nexus between deaths in custody others have expressed the view that stateless and discrimination; and (iii) to develop and persons should not be detained only because promote new advocacy tools to complement they are stateless. If detention has no alter- existing investigation techniques and stan- native, its maximum length should be speci- dards. criteria. However, this principle has not been ERT has worked with researchers in Nigeria, translatedfied, based into on international strict and narrowly or national defined legal India and the US to prepare materials for its standards or into practice. Progress is ham- - pered by a lack of information on cases of de- - ingsfinal andreport, analysis whose on publicationdeaths in custody is forthcom – rais- detention, of stateless persons. inging. questionsThe report onwill the fill linksa gap betweenin existing deaths writ tention, including prolonged and indefinite in custody, the identities of those who are The project therefore pursues two interrelat- dying and equality and discrimination - in- ed objectives: (i) to document the detention, cluding discrimination in law enforcement. or other forms of physical restriction of state- The report will argue that used correctly, the less persons (de jure and de facto) around the analytical frameworks of discrimination and world; (ii) to use this information to develop equality can assist law and policy makers, detailed legal analysis as a basis for interna- practitioners and campaigners to identify tional and national advocacy against the ar- - bitrary detention of stateless people. tive prevention of deaths in custody. The re- portchanges will thatcover will several contribute widespread to more patterns effec Below is a summary of ERT’s documentation of human rights violations in Nigeria and the USA, in which victims’ vulnerability are com- where stateless persons are at risk of deten- binations of race, socio-economic status, na- tionefforts since in thea number publication of countries of ERR and Volume regions 3 tionality and mental health status. It will be a (June 2009): call for policy makers, practitioners and campaigners to use discrimination and equality a. United Kingdom: ERT has undertaken a frameworks in their work, their research and review of relevant UK legislation, policy and their analysis. jurisprudence; established contact with relevant UK experts and support/activist groups

The Equal Rights Review, Vol. Four (2009) 117

working with detainees; established contact with key government bodies, including sub- statelessness. They submitted their research mission of a series of formal questions to the into the different contexts of Palestinian UK Borders Agency; established contact with a number of stateless detainees; and under- Inin OctoberSeptember 2009. 2009, the project coordinator, taken a number of interviews with stateless Amal De Chickera, presented a paper on pro- detainees. tecting stateless persons in detention, ‘Pro- - b. USA: ERT has worked on a report on the ing to the challenges of a changing world’, at immigration and security based detention tecting people in conflict and crisis: respond- of stateless persons in the USA containing tre. a unique perspective on issues of security University of Oxford’s Refugee Studies Cen - ees. of being reviewed by independent experts. detention, including the Guantanamo detain The final project publication is in the process c. Stateless Rohingya (South and South East Project “Religious Diversity and Health- Asia): Field research was conducted and care in Europe” testimony collected from Rohingya persons in Myanmar, Thailand, Malaysia and Bangla- This project started in June 2008 with the desh. ERT worked on a report on the situa- aim of producing a thematic dossier mapping tion of stateless Rohingya in Malaysia. d. Kenya: The Kenya researcher conducted in- out the problem field on “The State, Religious terviews with stateless persons in immigra- Diversity and Healthcare in Europe”. tion detention in Nairobi and also travelled in the European Union: Policy Issues and to the northern and coastal areas of Kenya to Trends,The final was report, published Religion in September and Healthcare 2009. The report covers a number of issues rang- in the regions, and he submitted his research ing from euthanasia to fertility treatment, inprofile September and interview 2009. stateless populations from belief-based exemption for doctors to e. Egypt: Two researchers who were com- perform abortion to medication and dietary missioned by ERT in May to carry out re- needs of religious patients, from organ dona- search on stateless persons in detention in tion to contraception, and from circumcision Egypt submitted their research in September 2009. of health policy is balancing fundamental hu- manto suicide. rights On such these as issues,the right a major to equality, challenge the f. Australia: In June 2009, ERT contracted the right to health and the right to freedom of re- - ligion, while adhering to secular principles. duct research on immigration and security This challenge is common across the Europe- detentionRefugee Council in Australia, of Australia particularly (RCOA) focusing to con an Union where key issues relating to health- on the new policy being introduced by the incumbent government. and have had to accommodate religion. care policy have been influenced by religion g. Stateless Palestinians: In June 2009, ERT enlisted students from the UCL Student Hu- for policy development in areas of general, man Rights Programme to conduct research sexualThe report and identifiesreproductive, policy and trends mental and health needs-

The Equal Rights Review, Vol. Four (2009) 118

care. Taking stock of the current legal basis sive training over two days with a general of health policy in the European Union, the introduction to fundamental concepts in dis- analysis is based on the integrated frame- crimination law; special thematic sessions work on equality as expressed in the 2008 on discrimination on grounds of sex, sexual Declaration of Principles on Equality. The orientation and disability, and the role of report provides a platform for discussion on monitoring and enforcement bodies. The how the religious needs of the community, participants were lawyers and paralegals al- religious doctrines, and religious practices ready engaged in human rights work, includ- - ing individual casework and litigation, from lic health policy, and how such policy ought all regions of India. The second training ses- toin be the shaped European in order Union to regionensure affectequality pubin sion is scheduled to take place in late 2010. healthcare. Project “Empowering Disadvantaged Project “Promoting Better Implementa- groups in Kenya through Combating Dis- tion of Equality and Non-discrimination crimination and Promoting Equality” Law in India” This project started in July 2009 with the This project started in May 2009 with sup- aim of enabling Kenyan civil society organi- port from the UK Foreign and Commonwealth a national anti-discrimination regime. ERT based Human Rights Law Network (HRLN). issations working (CSOs) with to two be keylocal players partner in organisa building- TheOffice project and will in partnership run until March with 2011 the and Delhi- its tions on a range of activities with the view to promoting the adoption of comprehensive lawyers to implement equality and non-dis- anti-discrimination legislation, including the criminationpurpose is to law build and the policy capacity in India of NGOs through and development of draft comprehensive anti- the promotion of national, regional and in- discrimination law and adoption of a joint ternational standards and best practice. lobbying strategy.

ERT and HRLN will produce a comprehensive In September 2009, ERT held an initial plan- handbook for paralegals and human rights ning meeting with its partners, the Federa- lawyers on equality and non-discrimination tion of Women Lawyers (FIDA) and the Ke- law in India, presented from an international nyan Human Rights Commission (KHRC) to and comparative perspective, and will deliv- discuss strategies and approaches for devel- er two training sessions for lawyers and ac- oping comprehensive anti-discrimination tivists on the same subject. A team of four re- law in Kenya. This allowed the partners to searchers based at HRLN have been recruited assess the opportunities and challenges pre- to draft substantial sections of the handbook sented by, among other things, the rejection covering, gender, disability and sexual orientation discrimination. First drafts have been Cabinet and the new Harmonised Draft Con- received and are currently being reviewed. stitution,of the draft which Equal was Opportunities published forBill consulby the-

- 2009, the partners undertook a baseline sur- veytation to inassess November. the awareness In the finaland capacity quarter of workshopsOn 12 - 13 – December reported in 2009 a separate the project material de civil society to promote anti-discrimination inlivered this volume. the first Participants of its two planned received training inten- law and developed an audit of equality and

The Equal Rights Review, Vol. Four (2009) 119

non-discrimination legislation and jurispru- for its adoption. Alongside the roundtable, dence. the partners prepared to deliver a training - The partners worked to prepare a roundtable cation of discrimination law concepts. This in Nairobi in January to bring together key willworkshop be followed for NGO by staffa study on visitthe useto the and UK appli for stakeholders for a preliminary discussion on a small group of Kenyan specialists, and fur- the potential for and desired content of new ther training workshops delivered in Kenyan equality legislation and to discuss strategies cities outside Nairobi.

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ERT Work Itinerary: July - December 2009

July 2, 2009: Delivered workshop on various aspects of equality law at the “Community

JulyCohesion 10, 2009:and Equalities” Submitted Lambeth written EMAT comments Conference, to Vitalie in London. Pârlog, Minister of Justice of the Republic of Moldova on the Draft Law on Preventing and Combating Discrimination, making recommendations based on the Declaration of Principles on Equality.

September 9, 2009: Wrote a joint letter with Equality Now to the UK Foreign Secretary and Minister for Equality urging them to ensure that the UK delegation to the UN Human Rights Council did not oppose a resolution to introduce a special mechanism looking at equality before the law for women.

September 17, 2009: Wrote to the Parliament of Sudan expressing concern about the discriminatory application of Article 152, which has been used to discriminatorily target women and non-Muslims, and making recommendations based on the Declaration of Principles on Equality.

September 19 - 24, 2009: Held a series of consultations and meetings with ERT partner organisations, ERT consultants and victims of human rights violations, in Nairobi.

September 22 - 24, 2009: Presented a paper on protecting stateless persons in detention

at an international conference, “Protecting people in conflict and crisis: responding to the Septemberchallenges of 25, a changing 2009: Published world”, at “ReligionUniversity and of Oxford’s Healthcare Refugee in the Studies European Centre, Union: in Oxford. Policy

European Foundations. Issues and Trends”, researched and written by ERT on commission by the Network of September 30, 2009: Submitted an expert opinion on the proposed amendments to the State Pensions Act to Latvia’s Saeima (Parliament).

October 16, 2009: Made a presentation on multiple discrimination, at roundtable on

October“Multiple 19,discrimination”, 2009: Wrote organised to the President by Minority of the Rights National Group Assembly International, of Mali, in London.Dioncounda

Family Code is not regressively amended in response to concerns about the extension of equalTraoré, rights calling for on women. members of the National Assembly to ensure that the draft Persons and

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October 27, 2009: Network of European Foundations, in Brussels. Participated in a consultation on “Religion and Democracy Project” of the November 11, 2009:

Made a presentation on the conference “Roma participation”, organised Novemberby ERIO, in Brussels.19 - 20, 2009:

Participated in Open Society Justice Initiative conference, “States Novemberobligations 25,to the 2009: stateless Participated under international in initial consultation law”, in London. on project “The Fundamental Rights by the Fundamental Rights Agency, in Vienna. of Persons with Mental Health Problems and Persons with Intellectual Disability”, organised November 26, 2009: in the Parliament of Uganda Wrote and to the to takeCommonwealth urgent action Secretary to repeal General, existing Kamalesh homophobic Sharma, laws acrosscalling onthe the Commonwealth. Heads of Government to condemn an Anti-homosexuality Bill recently introduced

December 8, 2009: Issued a coordinated appeal to the governments of Latvia, Malaysia, Mali, Moldova, Sri Lanka, Sudan, Uganda, the United Kingdom and the United States of America, urging them to take the opportunity provided by Human Rights Day 2009, to implement recommendations to tackle discrimination in their respective countries.

December 9, 2009: Submitted a legal brief to Ugandan President Yowere Museveni urging him to reject the Anti-homosexuality Bill in its entirety, and to review the constitutionality of section 145 of the Ugandan Penal Code, which is currently used to prosecute homosexual conduct.

December 10, 2009: Invited new endorsements of the Declaration of Principles on Equality, a set of key principles drafted and signed by 128 leading experts and launched by ERT in

Rights to declare discrimination as the theme of Human Rights Day 2009. October 2008, thus responding to the initiative of the UN High Commissioner on Human December 10 - 11, 2009: Made a presentation on best practices in implementing equality at

European Agency for Fundamental Rights, in Stockholm. the “Fundamental Rights Conference 2009: Making Rights a Reality for All”, organised by the December 12 - 13, 2009:

Organised and delivered together with HRLN a “Legal Workshop Decemberon Equality and 19, Non-Discrimination”, 2009: in Mumbai. The Guardian, UK. Published article “From Guantánamo to where?” on the stateless Decemberdetainees in 27, Guantánamo, 2009: Published article “’Smoke and Mirrors’: The Durban Review Conference Human Rights Law Review and Human Rights Politics at the United Nations”, , OUP.

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and Commonwealth Office The Equal Rights Review Volume Four (2009) Four Volume Review Rights The Equal Biannual publication of The Equal Rights Trust Volume Four (2009)