Justice for all

Path to Justice from Penal Reform International on Vimeo.

This quarter, I’m interning with the Northwestern University Center on International Human Rights, a legal clinic in the law school. One of our projects is an access to justice project in Malawi, where we work to improve legal representation for prisoners - particularly those sentenced to death and without access to legal counsel - through a collaborative effort with local actors and organizations. I’m writing my final paper this quarter on our work in Malawi, and through this research I’ve discovered just how acute the crisis of representation really is. Malawi only has about 7-15 legal aid lawyers for the entire country, and these lawyers take on both civil and criminal cases. Thus, while there is technically a legal right to representation for the indigent accused, in practice it is very difficult for legal aid lawyers to spend sufficient time on each case.

Ultimately, the system is extremely overburdened, and most lawyers are only able to meet with their client at trial. Because of the lack of time and resources, it is extremely difficult for legal aid lawyers to conduct investigations; this involves traveling to distant villages to interview witnesses, and is simply not feasible considering the limited time and money that legal aid lawyers have. Malawi also has only one law school, which graduates about 30 lawyers a year; many of them go into private practice, and only a few become public defenders. Turn over is high, and many public defenders leave each year to go on to do different work. Prisons are overcrowded and conditions can be life-threatening, with malnutrition and infectious diseases.

Enter the Paralegal Advisory Service Institute (PASI), which is a project of the non-profit Penal Reform International. PASI is a model that has been SO highly effective in Malawi that it has been implemented in many other countries as well. It is essentially an organization that provides thorough and high-quality training for individuals who want to become paralegals. These paralegals then join forces with the legal aid lawyers to move prisoners through the criminal justice system more efficiently and more effectively. With a focus on alleviating overcrowding and getting remand prisoners out, PASI has proved to be extremely valuable. These highly trained paralegals are able to talk to clients, talk to witnesses, conduct a lot of investigative work on cases, and provide this information to public defenders. Paralegals also conduct trainings in prison where they involve the prisoners in skits that show them how to navigate the justice system, and to help them better understand legal proceedings. Prisoners who know their legal rights are better able to advocate for themselves in court.

Our partner in Malawi is PASI, and they have done an amazing job by implementing a cost-effective and innovative method of improving access to justice and legal services for all. The results are impressive: PASI’s prison clinics between Nov. 2002 and Jun. 2007 empowered about 150,000 prisoners to represent themselves in court, apply for bail, present a mitigation plea, or draft an appeal to the High Court. Even more incredible, PASI has reduced the overall remand population (those imprisoned while awaiting trial) from 40-45% of the overall prison population to only 17.3%.

Due to its success, the model has been replicated in Kenya, Benin, Uganda, and Niger; it is currently being piloted in Bangladesh. The organization is proving an absolutely incredible model for improving legal aid, and I look forward to seeing its worldwide implementation over the years!

The LRA - from the Enough Project

While the deadly Lord’s Resistance Army (LRA) may have left Uganda for good, the notorious rebel army hasn’t stopped wreaking havoc in the region. Ugandan President Museveni recently said at a press conference in Kampala that Joseph Kony, leader of the LRA, may now be in southern Darfur. Kony has been fleeing ever since he refused to sign a peace deal with Kampala. About a month ago, after he was forced out of the DRC, he fled to the Central African Republic. And now, he’s in Darfur.

Part of the problem, certainly, is the ICC arrest warrant for Kony and other top LRA commanders. Many now believe that one of the reasons Kony hasn’t yet signed a peace treaty with Kampala is because he’s attempting to evade the ICC arrest warrant. Moreover, Kony is refusing to agree to a peace deal because he hopes the ICC will drop his warrant. However, there really is no evidence that the ICC is obstructing peace in the country, despite a strong debate over the issue. Kony has long avoided peace agreements - he is likely simply using the ICC as an excuse to continue doing what he originally intended to do. There is no evidence, really, that Kony wants peace.

Another complication is that the LRA may be receiving assistance and support from Khartoum; the LRA has received such support in the past, and the Sudanese government clearly has a track record of using militia groups to cause chaos and target civilian populations. It’s certainly possible, but there is no concrete evidence as of yet that this is taking place.

Now, it seems that both al-Bashir and Kony, who are both wanted by the ICC, have joined together. What could this mean? Quite simply: further chaos, instability, and perhaps even violence. Darfur doesn’t need any further instability, especially with the upcoming elections and referendum.

The Obama administration needs to devise a strong response to this negative development. The reality is that today in central Africa, all the conflicts are inextricably linked. This recent news is testament to the trend of the regionalization of conflict. Rwanda, Sudan, the DRC, and the CAR are all involved in the regional conflict today. When rebel leaders and perpetrators of mass atrocity in one region are allowed to go free, the problem burgeons into a regional conflict with more and more actors involved. Perpetrators will increasingly begin to band together in the face of common threats, resulting in continued insecurity throughout the region. That’s why institutions like the ICC are so important in stopping these deadly regional conflicts. But the ICC lacks any enforcement power, and so countries like the US have to step in to help the ICC enforce its arrest warrants.

If this increasingly interconnected regional conflict continues to be ignored, peace may not be a possibility for the Great Lakes region.

Charles Taylor Trial (Credit: BBC)

I just ran across this fascinating Time interview with Stephen Rapp, who was previously chief prosecutor for the Special Court for Sierra Leone (H/T Shelby Grossman). Rapp states:

The concern all of us had was that we were conducting justice in a comfortable courtroom with long trials and well-paid attorneys. Prisoners had single cells, and they had committed the worst crimes. A mile away in the local prison there were simply no resources. Cases can’t go forward, witnesses are lost, and people stay in detention for many years at a stretch. [If I was] to do it over, I would try to develop a court within the national system. That would be my preference. Maybe not a court that costs $30 million a year like the Special Court, but an appropriate court.

This is something I thought about while writing the post “Villains & Supervillains,” after my trip to The Hague with the ICC Student Network last year, but never fully articulated.

I understand that many of these “supervillians” - war criminals, genocidaires, leaders who have led crimes against humanity, are some of the worst perpetrators in that world. For that reason, they receive special attention, and they are given fair trials and adequate living conditions. They are allowed to represent themselves in court, and a great deal of attention is paid to their trials to ensure they are truly fair. This all makes complete sense, because their trials are, and should be, high profile and well publicized in order to draw attention to their horrific crimes and resulting punishments, and thereby contribute to ending the atmosphere of impunity worldwide. Without fair trials and without widespread publicity of these proceedings, there is no chance that the justice being done will deter future perpetrators (though the possibility of deterrence itself is arguable).

But the greater travesty and grosser injustice is the fact that we are pumping millions of dollars into international courts which have doubtful impacts, and are simultaneously completely ignoring the life-threatening conditions in the national justice systems of many developing countries. Isn’t this ironic? While war criminals are getting the royal treatment, everyday people - many of them poor - are arbitrarily detained in various African countries, often for stealing a piece of bread or for political reasons. In many African countries, torture continues to be widespread as an interrogative tool despite laws in the books prohibiting it.

In the Democratic Republic of Congo (DRC), 80% of prisoners are in pre-trial detention, and there is no law criminalizing torture. In Kenya, even petty offenders must wait an average of 5 years to have their case heard. In Kampala, Uganda, many prisons are overcrowded, often at 300% of capacity. And in Nigeria, women are held alongside men in prison, often leading to rape and sexual violence. In Zimbabwe, news reports have shown emaciated inmates starving to death from lack of food, often forced to catch and eat rats to survive.

The criminal justice systems of many developing countries are in far worse conditions than that of the U.S., and are arbitrary, unfair, and life-threatening. If the international community devoted one-tenth of the attention to this issue as they do to providing fair trials to supervillains, then many more innocent lives would be saved.

As the status quo stands, a guy who is responsible for the genocide of thousands gets a lawyer of his own and a fair trial, while the poor, innocent, arbitrarily detained are tortured and starve to death without ever having access to counsel. Is this fair, or just? I don’t think so. This doesn’t mean we should pay less attention to war criminals, but that we should work harder to ensure a fair trial to those who are not.

I wanted to briefly post these two talks, which I absolutely absolutely loved recently.

1. Shashi Tharoor, on India’s “soft power”

Click here to watch it (unfortunately TED won’t let me embed it for some strange reason).

Shashi Tharoor was elected to India’s parliament in May 2009, representing Thiruvananthapuram, Kerala as minister for external affairs. You can follow him on Twitter @shashitharoor - exciting if you’re a social media/politics nerd like me. In the past, Tharoor has worked with the UN as High Commissioner for Refugees, and on peacekeeping operations in the former Yugoslavia (he came in a close 2nd behind Ban Ki-Moon in nominations for Secretary General!). I think it’s immmensely exciting that people like him are entering the Indian political arena, and I’m looking forward to seeing how his career pans out.

This TED talk is funny yet eloquent and it really puts a new “face” to India: the country’s soft power. Indian culture - everything ranging from Bollywood and soap operas to it’s cuisine, yoga, tech and software genius, the magic of the “IITs” and ultimately, India’s democratic values and history of pluralism is what is defining the country around the world - not just it’s economic miracle, or it’s poverty.

2. Chimamanda Adichie, on the danger of a “single story.”

Adichie is a Nigerian novelist, and I really want to read her books at some point. To quote her profile:

In Nigeria, Chimamanda Ngozi Adichie’s novel Half of a Yellow Sun has helped inspire new, cross-generational communication about the Biafran war. In this and in her other works, she seeks to instill dignity into the finest details of each character, whether poor, middle class or rich, exposing along the way the deep scars of colonialism in the African landscape.

Adichie’s newest book, The Thing Around Your Neck, is a brilliant collection of stories about Nigerians struggling to cope with a corrupted context in their home country, and about the Nigerian immigrant experience.

This talk is absolutely brilliant, talking about how assuming a “single story” of Africa - that it is a continent of poverty, war, and disease full of people needing to be “saved” by the kind White man - is so misleading. True, there is poverty and war in Africa, but this is only part of the story; stereotypes are not necessarily wrong but they are incomplete. By getting to understand all the stories behind a country, a continent, or a people, we gain a true appreciation of them and acknowledge our common humanity. One of the most brilliant talks I’ve seen and I’ve totally quoted it in fellowship applications already… Enjoy!

In “Our Turn to Eat,” Michaela Wrong writes about Kenya:

Kenya’s foreign partners failed to grasp that a system of rule based on the ‘Our Turn to Eat’ principle was explicitly designed to prevent the trickle-down upon which they counted for progress. The better Kenya’s economy fared, the more unstable the country actually became, because public awareness of inequality - sociologists call the phenomenon ‘invidious comparison’ - deepened a notch.

It was a poor bet for the donors to make, for nothing sabotages development programmes more dramatically than violence. Decades of work on school-building, AIDS prevention and gender-awareness-raising are wiped out in a moment when the first shamba goes up in flames and its terrified family hits the road. Convinced they grasped the big picture, the donors somehow managed to miss the approaching near-collapse of an African state.

And:

As for the Western tendency to turn a blind eye to blatant graft and routine human rights abuse in the eagerness to save ‘the poorest of the poor’, it is a feature of donor relations across the continent.

And finally:

If they only set foot on the continent, idealistic Westerners would be astonished to hear how often, and how fiercely, politically engaged Africans…call for aid to be cut, conditionalities sharpened. Kenyan journalist Kwanchetsi Makokha is not alone in detecting an incipient racism, rather than altruism, in our lack of discrimination. ‘Fundamentally the West doesn’t care enough about Africa to pay too much attention to how its money is spent. It wants to be seen to do the right thing, and that’s as far as the interest goes.’

While I haven’t had the chance to read the whole book yet, I’ve read a few chapters through one of my classes. I find her quotes fascinating - that donors and aid agencies are so focused on helping the poor that sometimes they forget to think about the broader context in which their work is operating. It seems to me that donors are generally less willing to support more “abstract” projects such as human rights monitoring or anti-corruption initiatives, because they want “direct” results and want their money to directly go to the poor through education, healthcare, microfinance loans, etc. But being aware of this broader context is, as Wrong indicates, absolutely vital if genuine change is going to occur. The ultimate goal of NGOs should not be simply to provide aid but also to contribute to the creation of a capable, efficient state that itself can provide these public goods to its people.

This definitely requires a more holistic outlook, taking into account human rights violations and corruption as part of the context in which people live. There is a problem today where “human rights” and “development” are looked at as two separate areas. But they really need to be integrated in order to generate the best outcomes.

Also, I find it interesting that she (like Dambisa Moyo) is pushing for increased governance conditionalities, and for aid to be cut until governments change their corrupt practices. I definitely see the value in governance conditionalities but would shy away from advocating a complete cut in aid. I like Kristof’s balanced take on the issue, where he emphasizes that aid has its shortcomings but has also seen some successes. We need to find a middle ground between aid and trade (or some way to include both), and perhaps one way to do so is to begin with governance conditionalities.