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.