Immigration removal defense at Make the Road New York

"Caminante, no hay camino. Se hace el camino al andar."

"Searcher, there is no road. The road is made by walking."

The organization Make the Road New York, where I worked during the past summer, takes its name and its mission from the above quote from Spanish poet Antonio Machado. MRNY is a very active Hispanic community organization with over 10,000 members who participate in everything from worker's rights campaigns to citizenship workshops to English classes. One of the many services that MRNY provides is legal services, and this past summer I had the opportunity to help the organization develop it's relatively new immigration/removal defense practice.

Immigration law is quite a hot topic and practice area right now, and there is a staggering, overwhelming need among low-income immigrant communities for these services. This is an already incredibly vulnerable and marginalized population, and MRNY's team of organizers and lawyers take pride in working together to provide "one-stop shop" assistance for the Hispanic immigrant communities of New York.

My role in all of this was to be a legal advocate for our members who are either in immigration removal proceedings or have an outstanding deportation order: essentially, the emergency cases. One of the strange ironies of US immigration law is that it is often the tragedies in people's lives that make them eligible for some form of immigration relief that allows them to remain in the United States. Victims of crimes or trafficking can receive U-Visas or T-Visas, respectively. Children who have been abandoned or abused by their parents can receive Special Immigrant Juvenile Status. Those who have been driven from their home countries by brutal persecution receive asylum. Much of my summer was spent simply listening to our members tell their stories, working with them to find a way that something positive could come from the difficulties they've encountered and looking for any possible basis for them to stay in the United States with their families.

MRNY members at a worker's rights rally in Union Square. July 2012.

But it was also filled with lots of joy. MRNY is first and foremost a member-based community center, so every day there are meals in the communal kitchen, bachata and reggaeton blasting on the radio, and events from open-mic nights to dance parties for LGBTQ youth. At a major worker's rights rally in July, to which MRNY sent busloads of staff and members, the common refrain during the march was "El pueblo unido, jamás será vencido" "The people united will never be defeated." MRNY does an excellent job of fostering this sense of community and unity, which helps the members feel supported and for the attorneys makes the ups and downs of the legal work much easier to handle.

It was also a historic summer to be involved in immigration advocacy because of the new deferred action policy for undocumented youth announced on June 15. The policy allows undocumented people under the age of 30 who were brought to the US before age 16 and graduated high school here or served in the US military to remain in the United States (though it does NOT confer legal immigration status) and apply for work permits. In addition to my casework, I was able to help with workshops to familiarize and prepare people for the new policy. The response from our members and the immigrant community at large was overwhelming. It has been over 25 years since the last amnesty law. Even though the new policy offers nothing close to amnesty, the response showed the strength and size of the undocumented community, and how eager people are to be recognized and live a full, uninhibited life out of the shadow of "illegality."

It was an incredibly rewarding summer- I'm grateful to the amazing MRNY staff, and most importantly to all my clients who taught me so much and made the work meaningful. ¡Gracias a toda la gente de SHCNY!

Equality Now

I worked with Equality Now for the summer as a legal intern. It is an international human rights organization that works for the protection of the rights of women and girls worldwide. It campaigns against trafficking and sexual violence. The organization also supports and publicizes selected laws prevalent in legal codes and statutes of different countries addressing the most common and significant gender based discriminations in law. 

Summer is a great time in New York. The city presents a different sight even for its residents. Tourists from all over the world pour in and there is a sense of festivity in the air. There is a lot to do for whatever your interests are. Although New York gets that all around the year but during summer it just doubles. I always loved this so-much-to-do air and international character of the city and living here has been a interesting experience. I had never worked in New York before nor even thought about it before coming to Fordham. It was my first experience, working in New York and I found it as impressive as living here. There is always so much to do and my work had an international character.

I was assisting Equality Now’s staff under its two main programs; discrimination in law and Sexual violence against women. I worked on cases of rape, kidnapping, police abuses, and discrimination in law. However, as I sit to down to write this blog, I ask myself this question- what did I learn? Reflecting and recollecting the past weeks, I think I just learnt one word during this summer.

 E.Q.U.A.L.I.T.Y

This one word describes how this summer taught me eight valuable lessons in advocacy and campaigning of human rights issues.

E for Everyday life at a nonprofit: This summer gave me a chance to see what everyday life is in a nonprofit. It was a practical exercise in advocacy and campaigning of gender issues. There is a sense of satisfaction when a change occurs through your work. There is frustration when despite efforts nothing comes through. It was also a lesson in the working dynamics of a nonprofit. Moreover, Equality Now highlights abuses of women rights around the globe. The cases that I worked on came from different regions, cultures and legal systems. It broadened my understanding of the gender issues and related laws.

Q for Quality of work matters for advocacy: My work as an intern was closely supervised. I had two supervisors who were constantly giving me feedback. I researched and they highlighted the missing links in my research. I drafted communications and they got back to me with the changes. I could see where I went wrong in my draft or what was missing in my research. It gave me a good tutorial in improving quality of my work.

U for Unequal world, we live in: I worked on cases from different countries and researched on local laws of those regions that exposed me to the prevalent gender discrimination in laws around the globe. It is alarming to see how women are exploited in the name of culture, religion and society. Every society discriminates against women in some way. We are still a long way short from giving women their rights.

A for Advocacy in a different region: Equality Now usually works in collaboration with a local partner and provides the support it needs to pursue a case. I learnt about the importance and mechanism of collaboration with the local groups. Advocacy is better served when you empower the people and there is a struggle from within. It is a valuable aspect of advocacy and campaigning of human rights issues. 

L for Legal research: I was researching on cases from different countries at Equality Now. I would also look for local laws and relevant facts of the case. This research was a unique experience. Facts of a case were often conflicting. Not many countries have data-bases to look up for relevant laws. Finding the most updated version of laws was another challenge. I had to check twice or thrice before passing on my research. It was a good (but tedious) practice in refining searching skills.

I for Intelligent ways of communication for advocacy: Equality Now issues Action Alerts on cases to create awareness about an issue or discrimination in law. It also sends out communications to governments and human rights bodies. I assisted the program officers with these communications and saw how important writing and drafting is for advocacy. I also worked on preparing fact sheets for the cases to authenticate the details relevant to cases. These intelligent ways to communicate could make a lot of difference.

T for Tools of social change: Legal advocacy respects and tolerates local courts and customs. It approaches the local laws with a sense of tolerance and strives for setting a legal precedent in that system. Equality Now supports cases that have precedent setting value in legal systems. It supports victims and helps them come forward to bring about this legal reform. I realized how a case could give justice not only to one victim but also to many others.

Y for Your voice can make a difference: Equality Now issues Action Alerts to draw attention to cases of abuses. It emphasizes much on creating awareness and generating a voice. It pushes for action and provides support by circulating these communications. This awareness and understanding of the people serves an important role in advocacy. These voices can push authorities for action if generated and communicated in an organized way.  

It was a great summer experience learning these lessons in advocacy and human rights campaigning. I expect this word EQUALITY guides me through as a human rights advocate. 

Prosecuting War Criminals at the ICTY

I spent this past summer interning at the International Criminal Tribunal for the Former Yugoslavia (ICTY). I was a legal intern at the office of the Prosecutor assisting on the Radovan Karadzic case.  The ICTY was established in 1993 pursuant to The United Nations Security Council Resolution 827 giving the Tribunal a mandate to prosecute persons responsible for serious violations of international humanitarian law on the territory of the Former Yugoslavia since 1 January 1991. Since its establishment, the Tribunal has issued 161 indictments and is currently in the midst of the prosecutions of the two highest ranking individuals accused of war crimes, Radovan Karadzic and Ratko Mladic. Karadzic, a former president of the Republika Srpska, and Ratko Mladic, a former military leader, are both accused of orchestrating the genocide in Srebrenica and carrying out a campaign of ethnic cleansing in Bosnia and Herzegovina. 

 The Tribunal is currently involved in the prosecution of the two most important cases in its history, and at the same time the Tribunal is also trying to implement the Completion Strategy. In 2003 and in 2004, the UN Security Council passed two resolutions 1503 and 1534 on the completion of the ICTY’s work which called on the Tribunal to finish its investigations in 2004, complete first instance trials in 2008, and finally finish all the work by 2010. However, due to late capture of Karadzic and Mladic, in 2008 and 2011 respectively, the Tribunal’s completion strategy has been postponed, currently setting a deadline of 2014 to complete the Karadzic trial and later completion date for Mladic and Hadzic. 

             With the Tribunal reaching the final stages of the Completion strategy, this summer was a perfect stage to evaluate whether the Tribunal had achieved its mandate.   The mandate was a two-pronged mandate: to prosecute those most responsible for violence and to contribute to the efforts of reconciliation and peace.  The Tribunal has been successful in the prosecution of the perpetrators. In its nearly two decades of existence, the Tribunal has issued 161 indictments and successfully apprehended all of the accused. The Chambers found that atrocities committed in Srebrenica targeted against Muslim men in July 1995 were genocide, and found several individuals guilty of committing genocide. The Tribunal also broke ground in the prosecution of sexual violence crimes, recognizing that rape is not a side product of the war, but is a serious crime that can be prosecuted as war crimes and crimes against humanity.  

While the Tribunal contributed to the expansion of international law, it has been less successful in contributing to reconciliation and peace on the ground.  Bosnia and Herzegovina is fractured between the three major groups, Serbs, Croats and Muslims, each living in their own communities with little interaction. They are all taught a different version of history at school and politicians continue to exploit the war to gain popular support. In June 2012, the current President of Republika Srpska Tomislav Nikolic publicly stated there was no genocide in Srebrenica but acknowledged that grave war crimes were committed.[1] On the first day of Ratko Mladic’s opening statement, news emerged that Srebrenica, the symbol of Muslim suffering, will likely elect a Serb major in October elections. The political take over of Serbs 10 years after the genocide is due to the fact that former Muslims residents are no longer allowed to vote in the mayoral elections.[2]  Against the backdrop of this grim political situation, the Tribunal has in recent years built up and expanded its outreach program with the aim to educate the public in the Former Yugoslav Republics about its work. The ICTY Outreach program has set up workshops around the republics to work with young people and engage them in the dialogue to understand each other, their points of contentions and help them move forward.

I believe that the Tribunal’s legacy will be shaped by how successful the Tribunal is in helping to build up the national judicial capacity of Bosnia and Herzegovina. The Tribunal is an ad hoc body, one that was never intended to prosecute all the criminals, only the most responsible ones. Thus, the Tribunal in its completion strategy, started to transfer some cases back to the national courts while in 2005 the government of Bosnia and Herzegovina set up War Crimes Chambers and a Prosecutor’s office tasked to prosecute war criminals pursuant to the National Strategy for War Crimes. The OSCE Mission in Bosnia in its report Delivering Justice in Bosnia and Herzegovina: An Overview of War Crimes Processing from 2005 to 2010, stated that in its first five years of existence, the judicial system in Bosnia has successfully prosecuted 200 cases related to the conflict, thus showing a strong commitment to delivering justice.[3]  Further, Human Rights Watch in its report Justice for Atrocity Crimes: Lessons of International Support for Trials before the State Court of Bosnia and Herzegovina, reported that seven years after the establishment of the War Crimes Chamber, most people who were interviewed for the report confirmed that international judges and prosecutors have encouraged public faith in the impartiality and in the day to day work of the Chambers and the Prosecutor.[4] However, despite the positive news, the ICTY Prosecutor Serge Brammertz in its report to the UN Security Council in June 2012 urged the government of Bosnia and Herzegovina to donate more money to the judicial system and reaffirm its commitment to pursuing impartial justice.

                       

The Tribunal has not been perfect, and many may argue that it cost too much or the trials last too long; there is no doubt that the ICTY made significant contributions to international law and especially international criminal law. The Tribunal’s commitment to bring justice will not only have a long lasting effect for victims and their families, but also on me, having given me a unique opportunity to assist in the Prosecution of Radovan Karadzic and reaffirmed my commitment to international human rights legal issues.

---

[1] Srebrenica not genocide- Serbia’ President Nikolic. http://www.bbc.co.uk/news/world-europe-18301196

[2] As Ratko Mladic trial begins, followers are poised to take power in Srebrenica, http://www.guardian.co.uk/world/2012/may/10/ratko-mladic-trial-followers-srebrenica

[3]  OSCE. Delivering Justice in Bosnia and Herzegovina: An Overview of War Crimes Processing from 2005 to 2010.

[4] Human Rights Watch, Justice for Atrocity Crimes: Lessons of International Support for Trials before the State Court of Bosnia and Herzegovina.

Pursuing Justice for Human Trafficking Survivors

This summer I worked at the Anti-Trafficking Program, a division within Safe Horizon, a non-profit organization in New York City.  Safe Horizon's motto is "Moving victims of violence from crisis to confidence," and working with their Anti-Trafficking Program, I saw this occur throughout the summer.
 
Victims of human trafficking have experienced force, fraud or coercion in their work.  While most people have heard the term sex trafficking, labor trafficking is much more common, with three labor trafficking victims for every one victim of sex trafficking.  I was able to handle many labor trafficking cases as well as a sex trafficking case this summer, providing immigration relief and criminal justice advocacy for clients.

Traffickers create an environment of isolation.  When a survivor of human trafficking first escapes from a trafficker, their immediate needs include shelter, food and medical assistance, as well as legal assistance.  For most foreign nationals who have been trafficked into the United States, immigration relief is a primary concern.  The Trafficking Victims Protection Act, now known as the Trafficking Victims Protection Re-authorization Act (TVPRA), provides a Visa specifically for these victims.  This immigration relief not only allows a survivor to obtain legal status in the United States, it also makes a survivor eligible for public assistance.  For trafficking victims who have come from working incredibly long hours for little to no pay, these benefits begin to create a system of stability and support. This is a main benefit of the T-Visa, which is not available under other types of immigration relief (such as the U-Visa for crime victims).

After three years in T-Visa status while continually present in the United States, or after the investigation and prosecution of a trafficking case is closed, T-Visa holders can adjust their status to that of permanent resident.  This allows them to travel outside the US and return to their home country to visit family and friends, while maintaining status in the United States.  After 5 years as a permanent resident, trafficking victims can nationalize and become US citizens.  Many clients I worked with this summer were in the process of adjusting status to become permanent residents.  This involved filing forms with US Customs and Immigration Services, after meeting to draft an affidavit, obtain a police good conduct certificate and a medical exam performed by a civil surgeon.

What I found most rewarding this summer was working directly with clients.  After suffering through so much, trafficking survivors deserve immigration relief and a chance to build a life in the United States, free from fear of re-victimization or deportation.  Furthermore, a developing trend in trafficking victim services is pursuing civil remedies, such as back pay from their traffickers for all their unpaid labor.  These civil suits provide victims with further support and should be pursued more widely.  Since the creation of the right for civil suits for trafficking victims 10 years ago, only 90 suits have been filed.  Learning about the lack of civil suits this summer emphasized the need for more attorneys in the anti-trafficking field.

To read about a large labor trafficking case, check out this website, describing the bust of a labor trafficking ring in Kansas City, Missouri.  Crystal Management, the company responsible for trafficking so many individuals, used recruiters in victims' home countries to convince them to come to the United States for a better job and a better life.  Unfortunately, those who came were shocked to learn that after paying large sums of money in their home country (sometimes as much as $30,000), they would not be working in the promised jobs in the US.  Instead they were forced to live in overcrowded apartments, work more than 40 hours a week with no overtime pay, and have all their paychecks come and show almost no compensation, as they were subject to "deductions" for rent, transportation and other services, all of which was supposed to be covered by their original deposit.

http://www.bizjournals.com/kansascity/stories/2009/05/25/daily15.html?page=all

My Friends, the Future Supreme Court of Ghana

A year ago, I found myself at brunch with a dozen of the most powerful women in Ghana. I had chosen to stay in Africa an extra month after the Fordham summer abroad program to continue working at the Ghana AIDS Commission. Though I had the occasional visitor from the States, my main friends were my co-workers, all 20-somethings with a taste for Star beer and reggae nights on the beach, just like me. Professor Paolo Galizzi had invited me to a brunch, and I felt way out of my league among the elegantly dressed, beautifully well-spoken women around the long table.

The brunch was hosted by the Virtue Foundation, a non-profit organization that works with international development policy challenges. Virtue had established itself in Ghana as a leader in the right to health and women’s empowerment arenas, and its latest project was supporting a Supreme Court clerkship program established by the Leitner Center in 2007. Ghana had never had Supreme Court clerks before then, and Virtue was now sponsoring three exceptionally talented young female attorneys in the hope that the women and the judges would learn from each other over a yearlong period.

At the brunch, I met these women, along with their senior counterparts. I sat next to a shy, intelligent woman named Susie, who was one of the new clerks. After speaking with her for an hour on the subject of women’s rights in Ghana, I was convinced that in 20 years, she would be at the head of the very same table at the very same brunch, a distinguished judge offering her wisdom to the next generation. And I very much wanted to be there to see it.

When I got back to New York, I contacted Jocelyn Kestenbaum, the Programs Director at Virtue, about an internship. Though it was way too early to start looking for the summer, she humored me and I visited her office for what turned into one of the most exhausting and invigorating interviews of my life. I was excited to hear I got the job, and even more excited when I found out that I would be working on the Ghana clerkship program.

(Supreme Court building in Accra, Ghana)

This summer, I have gotten to know the three clerks well. They keep long journals of their experiences, noting cases they find interesting and new things they learn. All three of them are wonderful writers, providing intelligent and occasionally funny commentary on the happenings at the Supreme Court. I have corresponded with them about their final research projects, offering suggestions when I can and empathy otherwise. 

The biggest challenge has been discussing legal research. The clerks, Jocelyn, and I met in June over Skype for an hour and a half long research training session, led by me. Once again, I felt out of my depth talking to these amazing women, the very top of their fields. After talking for a few minutes though, I relaxed. Even though I am still in school and they are technically attorneys, there are things I can teach them to help make their writing and research stronger. 

Required classes are annoying at the time, but in retrospect, I am very glad for the training Fordham has given me. I am also glad that I go to a school that supports learning outside of the classroom: for everything I taught the clerks in our training session, I have learned two from reading their journals. I have worked on many projects this summer, but becoming friends with the future female leaders of Ghana has been the most rewarding.

Check out more of Virtue Foundation's great work!

Raising Awareness Around Conflict-era Sexual Violence in Nepal

Advocacy Forum (AF), a Nepali human rights organization, undertakes systematic monitoring and documentation of human rights violations, litigation and advocacy to strive to uphold international human rights standards and advance the rule of law.  Currently, AF is comprised of a Human Rights Documentation and Monitoring Department, Prevention of Torture Department, Child Rights Monitoring Department, Criminal Justice Department, and Transitional Justice Department.  I mainly focus on reporting the sexual violence situation in Nepal, paying particular attention to conflict-era instances of sexual violence. 

            In 1996 the Communist Part of Nepal (Maoist) (CPN-M) declared a people’s war that grew into a full-fledged armed conflict between the CPN-M and Nepali government forces.  During the period between 1996 and 2006, at least 13,000 people lost their lives and many individuals were victims of extrajudicial executions, disappearances, torture, and sexual violence.  The signing of the Comprehensive Peace Agreement in 2006 marked the end of the conflict, calling for the ensurance of human rights, including a commitment to fundamental rights and the rule of law.  Additionally, the agreement made a promise to uphold Nepal’s international obligations to human rights.  However, to date, many of these promises have not been fulfilled.

            Overwhelmingly, instances of sexual violence have gone underreported and have been poorly documented in both the domestic arena as well as internationally in comparison to the other violations during the conflict.  In Nepal a strong culture of impunity exists for sexual violence cases, as well as other human rights violations.  Additionally, research points to societal norms discouraging women from coming forward and the State’s failure to properly register, investigate, and prosecute cases of sexual violence as obstacles to justice.  

            During my time at AF I was fortunate to attend “Litigating Gender-Based Violence in Nepal,” a workshop facilitated by AF and REDRESS.  The workshop brought together human rights defenders from across Nepal and experts from around the world to strategize on new avenues to pursue in order to achieve truth and justice for victims of sexual violence.  With a short, 35-day, statute of limitations for cases of rape, most if not all domestic remedies are unavailable for women who suffered such abuse during the conflict.  The group discussed the availability of international mechanisms and experiences utilizing such avenues.  

            The workshop proved extremely valuable to my work on sexual violence for AF.  Beyond providing a solid background on domestic and international mechanisms available to Nepali victims, the workshop provided a forum for the attorneys to discuss specific challenges they face representing victims and survivors.  Armed with the knowledge of these obstacles, the group strategized on how to overcome them.  This exercise aided in my understanding of the situation in Nepal and provided me with the tools and knowledge to move forward in reporting and advocating on behalf of victims and survivors of sexual violence.

Ensuring Justice for Indigent Defendants

Volunteering with the International Legal Foundation (ILF)

Imagine, you get arrested, put into a police car, driven to a station, and placed in an interrogation room.  What do you do?  Ask for a lawyer?  Good call!

But you won’t get a lawyer … because you don’t have money to pay for one …

… so, you get interrogated, maybe beaten, then locked-up, brought back for further questioning the next day – and so it goes for about a week. Afterwards, the police may lose interest in you, leave you alone in your cell until you finally appear before a judge two months later, who only postpones the hearing for another month because the prosecution didn’t show up…

Sounds incredible?  Yes, it does, but this is the fate of millions of people that get caught up in criminal justice systems all around the world.  The situation is particularly dire in many developing countries, but even in high-income countries like the United States, 50 years after Gideon v. Wainright, the situation is still far from perfect.

The International Legal Foundation (ILF – http://theilf.org/), headquartered in New York, is an NGO assisting countries emerging from conflict or in transition to establish public defender systems that provide effective criminal defense services to the poor. To date, it has established public defender programs in Afghanistan, Nepal and the West Bank that have provided criminal defense services to over 22,000 poor men, women and children.  In the process, it has built a culture of public defense in these countries that has had a transformative effect on the criminal justice system, resulting in better enforcement of laws and fewer instances of abuse and exploitation.  Clients who had languished in detention for years have been released and the innocent have been acquitted.  Judges have learned the importance of their role in the justice system and their ability to make legal rulings, changing policies and practices from the bench. ILF also won landmark victories that have improved the justice system.

- Outdoor Prison in Nepal -

I was interested in the ILF's work for three particular reasons:  First, having worked with entities like the UN or the OSCE, I wanted to gather experience with a smaller NGO which would offer me the possibility to learn about every aspect of its organizational and substantive work.  I wanted to get exposure to fundraising, advocacy, the drafting of training material for new start-up missions, as well as working on mission reports and case summaries.

Second, I was persuaded by the ILF's focus on one specific problem - providing poor people in post-conflict countries and countries in transition with an effective criminal defense.  Unlike other NGOs I came across in my work so far, the ILF does not shift its interest to where money can be raised at a certain moment, but concentrates on this ‘core-business'.  Moreover, the ILF has been so successful in its fieldwork that bigger international organizations are now asking for their help (e.g. the EU Police Mission in Palestinian Territories).

Finally, having worked in criminal law and investigations and concentrating on this area also during my LL.M. in International Law & Justice at Fordham, I am very aware of the crucial importance of providing effective representation for criminal defendants.  Working for the ILF was also a fantastic way to simultaneously apply my practical and academic experiences in criminal law, on the one hand, and in international human rights law on the other.

- Nepalese Defendants with ILF-Lawyer -

My tasks over this summer proved that I made the right choice:  I worked primarily on the ILF's global advocacy initiative, rallying support within the UN for resolutions and declarations by which member states would commit themselves to ensuring access to counsel for everybody arrested and/or indicted - a promise remaining far too often 'law in the books'.  In connection with this ILF-initiative, I covered UN-conferences and meetings with member states, drafted text-proposals for international declarations and pledges, and researched the procedures governing the work of different UN bodies.

Apart from this, I was a contact point for the ILF’s West Bank Mission, researching the requirements for the country-office’s registration and other administrative duties towards the Palestinian Authorities.  I also analyzed the criminal procedure laws of neighboring states for arguments to be made with regard to the interpretation of Palestinian legal provisions, and researched national laws regarding the provision of legal aid worldwide.

Last but not least, I was involved in developing a strategy for transitioning the ILF’s local staff and expertise into sustainable government structures, in reviewing and editing the ILF’s advocacy material, and in fundraising efforts for our Nepal country mission.

With regard to the last point, I would like to use the opportunity here to draw attention to the particularly urgent need of ILF-Nepal to fill a gap in funding until the beginning of 2013 when it is expected to receive long-term grant funding to cover the expenses of this highly successful legal aid program!

Therefore, please visit the ILF’s website for specific information on the Nepal program (http://theilf.org/our-programs/ilf-nepal) and for the urgent call-for-donations (http://theilf.org/opportunities/support-ilf-n) to keep the ILF’s Public Defender Program in Nepal alive!

Thank you in advance for your interest and support!

Lal Bibi… More than just ALP at Stake

Lal Bibi is 18 years old and the youngest daughter in a Kuchi family, who are semi-nomadic herders. She and her family live in a tent in the outside the city of Kunduz and raise sheep for their livelihood. Unfortunate events brought her to limelight recently. Lal Bibi says that she was abducted and raped because her cousin offended a family linked to a local militia commander, Ishaaq Neezami. She says that Commander Nezaami’s men kidnapped her and took her to the home of one of his sub-commanders, Sakhi Dad where she was chained to a wall, sexually assaulted and beaten. Lal Bibi spent the ensuing five days in a dark room being tortured and repeatedly raped. According to her, this ordeal ended a week after her capture when she was dumped, bruised and battered, outside her home in a remote village in northern Konduz Province. She was taken to Kunduz hospital and subsequent medical examination proved that there was reliable physical evidence consistent with her account.

The case came to attention because of the involvement of personnel from Afghan Local Police, an American-financed program that aims to convert former insurgents into village self-defense forces, distinct from the existing national police force. During a meeting of the country's National Security Council, President Hamid Karzai ordered the Interior Ministry to arrest the suspects in this case and disarm the police unit in Konduz. In a statement released on the same day, the Interior Ministry confirmed that two men had been arrested and that a "young woman" had been "harassed" and not raped. Commmder. Muhammad Ishaq Nezaami who disappeared shortly after the discovery of the incident was later arrested. One of the accused, Khodaidad says that they could not have raped the girl because a local cleric had married them and that the girl was given as ‘baad – the practice of trading women as a payment to resolve disputes between families, clans or tribes. Typically, when a girl is given in baad, it happens after the meeting of elders and consent of families. 

 

The events occurred in Kuduz province that is one of the most turbulent in northern Afghanistan. The case brought to fore the problems facing the Afghan Local Police program. It is a favorite initiative of the NATO commander Gen. David H. Petraeus. Afghan police officials see it as an easy-on-the-pocket way to beef up their forces in remote areas. The ALP is trained by American Special Forces units in collaboration with the Afghan authorities and attached to the government through the Interior Ministry. The Afghanistan National Army and National Police are expected to expand to a combined 352,000 personnel by the end of the year, but even that force cannot cover remote. The ALP is supposed to cover this gap. But the forces of ALP have been involved in abuses over the years even before this incident. Bibi's case is just the latest in a long line of incidents where more than 10 local policemen have been arrested and charged since 2010 on various accounts of abuse, ever since the launch of the initiative.

More importantly, the case is critical for Afghanistan’s law on Elimination of Violence Against Women (EVAW). President Karzai signed the new set of laws in August 2009, criminalizing violence against women, including rape, battery or beating; forced or underage marriage; practice of baad; humiliation; intimidation; and the refusal of food. Article 17 of the EVAW law specifically punishes rape with life imprisonment. The law also punishes the "violation of chastity of a woman that does not result in adultery with imprisonment of up to seven years.

Earlier Courts prosecuted cases of adultery and rape solely according to Articles 422-433 of the 1976 Penal Code that do not explicitly criminalize rape and were insufficient to deal with the matter. Article 427 of the Penal Code states that a person who commits adultery or pederasty shall be sentenced to long imprisonment and in case of aggravated conditions, such as deflowering a maiden; the strictest punishment will be meted out to the offender. Article 429 provided that the punishment for a person who, through violence, threat, or deceit, violates the chastity of another (whether male or female), or initiates the act, shall be sentenced to long imprisonment, not exceeding seven years. According to a report by the UN Convention on the Rights of the Child the laws were insufficient. The cases were dealt through Sharia law, which was interpreted in the local context and influenced by tribal customs. Although it was un-codified but it impeded successful prosecution of rape cases punishable by stoning to death or 100 lashes of the whip.

The accused in this case claims that he had married the girl.  Nevertheless, forced marriage is illegal under Afghan law. In Afghanistan, marriage laws are based both on the Afghan civil code and on Sharia law that applies to issues not covered by the civil code. Marriage laws prescribe a minimum age of 16 for girls and 18 for boys, though a girl of a younger age may be married with the permission of her father or guardian. Consent to marry is explicitly required for individuals who are 18 or older. Under Sharia law, marriage is not valid without the consent of parties between ages 15-18, and the consent of both individuals is required, not just the guardians. Furthermore, Elimination of Violence Against Women (EVAW) bans forced marriages. In 2007, the Supreme Court certified a new official marriage contract that both parties must sign, but it has not yet been implemented widely. Moreover, Article 517 of the Penal Code states that someone who forces a girl or widow into marriage “contrary to her will or consent” shall be given a short-term prison sentence, the duration of which is not specified but is unlikely to be more than one year.

Some members of Afghanistan’s National Security Council argued that pursuing the allegations could tarnish the image of the Afghan Local Police that they view as vital to maintain security and keeping the Taliban at bay. There is more at stake in this case than just the sake of necessity of Afghan Local Police. This case is critical for the EVAW and Afghan political will to implement such laws.  According to a United Nations Assistance Mission in Afghanistan Report in 2011Government’s implementation of the law, in particular by police and prosecutors, was limited and that much greater efforts were needed to improve enforcement. In many regions, police and prosecutors continue to refer cases of violence against women to mediation and traditional dispute resolution mechanisms that do not enforce the EVAW law or the Penal Code and failed to adequately protect the rights of women. Often these incidents go unreported. The case might set a precedent for Afghani women and its legal system to deal with these issues without recourse to alternative methods of justice and help Afghan society develop laws to counter sexual violence against women.

An Opportunity for Women Rights in Zambia

The time is crucial for Zambians. Their decisions today will determine the years or perhaps decades ahead. The country is drafting its new Constitution. Zambians especially women should be more watchful as the choices made now will decide the kind of life they and their next generation will be living. The Constitution Review Committee’s proposal to repeal gender discriminatory Article 23 should be welcomed whose clauses (4)(5) and (7) allowed for discrimination on the basis of custom and other traditional practices in areas of marriages, inheritance and death (burial rights). The Committee has taken a step to repeal the Article 139 (13) that subsumed feminine gender in the masculine gender and rendered women invisible. But there is more that can done for the women of Zambia.

Women must be provided full rights relating to their health and reproduction. First draft of the Constitution provides contradictory provisions for the reproductive rights of women. Article 52 states that without limiting any right or freedom guaranteed under the Bill of Rights, women have the right to reproductive health. But in Article 28 (1), the proposed draft says that a person has the right to life, which begins at conception. Determining the point of fertilization is medically difficult and if assumed that life begins at conception, it would compromise the human rights of women. These two articles contradict each other and if read with Article 317, the latter can lead to restrictions as a result of which reproductive health services and procedures may become unconstitutional in Zambia.

Photo Credit: Richard Mulonga/IPS

Other African constitutions have provided women these rights too. In South Africa, although the Constitution does not mention abortion but the two sections of the bill of rights give women these reproductive rights. Section 12(2) and section 27(1)(a) implicitly guarantee this right to women. Constitutions of Tanzania and Uganda also accept the rights if the life of a woman is in danger. Kenyan Constitution approved in 2010 accords women this right in Article 43 (1) (a).

The Republic of Zambia is also under international commitment to guarantee this right to women. Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) that Zambia ratified in 1985 provides that states Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.

The Constitution must also provide equality and non-discrimination as a non-derogable right. First draft does not expressly mentions equality or proscribes unfair discrimination as a non-derogable right. Article 69, relating to non-derogable rights and freedoms proposes does not mention equality or nondiscrimination as a non-derogable right. Other African constitutions have guaranteed provision of such equality among genders. Constitution of South African expressly provides against unfair discrimination and counts it as a non-derogable right. Article 9 says there cannot be any discrimination on the grounds of race, color, ethnic or social origin, sex, religion or language. This article is a part of the Table of Non-Derogable Rights. In Malawi according to Article 45.3 of the Constitution women rights are non-derogable rights that are included in the Chapter IV.

The Constitution does not provide for specific women representation in National Assembly and District Councils. Article 136 of the proposed draft that deals with the composition of the National Assembly does not specify any seats for women. Although the initial draft ensures women representation in Parliamentary Service Commission, Judicial Service Commission, Provincial Assembly but it does not guarantee women representation in National Assembly and District Council. The constitution is vague on women representation and it is possible that there won’t be enough numbers in Parliament if the Constitution does not specifically provide for the seats for women. The proposed draft is also vague about representation of women in political parties.

The number of women in National Assembly has declined over the years. In the 2011 Elections, there were only 17 women elected as compared to 141 men that make for 10.76% of the total seats. Zambia is a party to the SADC Declaration on Gender and Development (SADCGD (1997) which provides for, amongst other measures, the achievement by member States of a minimum target of 30% women in politics and decision-making positions by 2005. It is time to fulfill the commitment now.

Moreover, some Constitutions in Africa do ensure women representation in their Parliaments. The Constitution of Tanzania allows for reserved seats through its Article 66. 1(b) and Article 78.1. Ugandan Constitution also ensures women representation in Parliament for each district through Article 78(1) and one-third membership in its local governments through Article 180. The new Kenyan Constitution passed in 2010, through its Article 81 (b) of maintains a one third requirement for either gender in elective bodies giving women of Kenya at least 1/3 minimum in elective public bodies.

The proposed draft must also specifically include the right to be free from ‘gender-violence’. It does not mention gender violence expressly in the Bill of Rights. Its Article related to security rights does not include ‘gender violence’.  Although addition of “gender violence” was considered and reviewed by the Constitution Review Committee (mentioned in report on page 136,137) but it was recommended that the provision should be maintained without addition.  

Zambia is required by Convention on the Elimination of All Forms of Discrimination against Women to ensure measures to eliminate violence against women. Although CEDAW does not contain an explicit reference to violence against women, the CEDAW Committee has issued a General Recommendation (No. 12 eighth session, 1989) that states that violence directed against a woman recognized and addressed as discrimination under the convention.

The proposed draft interestingly, does not guarantee provision of socio economic rights. The language is vague is Article 61, which provides that Parliament shall enact legislation that provides measures, which are reasonable, to achieve the progressive realization of the economic, social and cultural rights and in such matters, where the state cannot fulfill its duty, the constitution court cannot interfere. Zambia is under commitment to ensure provision of socio economic and cultural rights especially to women. Article 3 of CEDAW says that States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women.

The making of the Constitution is a choice to decide about the future. The proposed draft should reflect the future goals and aspirations of Zambians especially its women. Zambia also has this opportunity to fulfill its international commitments and follow the leading examples of other African constitutions. The making of this Constitution is a chance to rectify discriminatory elementsembedded in customs, laws and mindsets and Zambians, should view this as an important opportunity.