Rhino horn trading & resilience of criminal networks

(Many thanks to IntLawGrrls for inviting me to contribute this introductory post)

Wildlife crime is a growing global problem, with major implications for biodiversity conservation.
The trafficking of rhinoceros horn provides a clear illustration of the difficulties that are encountered in attempting to combat the illegal transnational wildlife trade. All five species of rhinoceros are under threat; three of the five ((Black, Sumatran and Javan rhinos) have ‘critically endangered’ status on the Red List of Threatened Species produced by the International Union for the Conservation of Nature, a Switzerland-based nongovernmental organisation. (prior IntLawGrrls posts here, here, here, here, and here)
While habitat destruction is contributing to a massive decline in numbers of rhinos worldwide, poaching for horn is the main culprit.
Recently I wrote a paper about the illegal trade in rhino horn, as part of the Transnational Environmental Crime Project being undertaken at the Australian National University. The project is funded by the Australian Research Council, and conducted in partnership with the Australian Department of Sustainability, Environment, Water, Population and Communities.
About 80% of the remaining world rhinoceros population is in South Africa. In the last five years, the numbers of rhinoceros poached in that country alone has increased exponentially, rising from 13 in 2007 to 448 in 2011. The 2012 number is well on the way to surpassing 500.
The population growth rate for South Africa’s estimated 20,700 rhino is 6% per year, but rhino poaching escalated by 35% between 2010 and 2011 alone.
These figures have given rise to concern that extinction of the species is a real possibility, despite the limits on trade imposed by the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, known as CITES.
The main black market for rhino horn lies in Southeast Asia, particularly Vietnam and China, where demand is driven by a belief that horn has curative properties for a range of ailments (recently expanded to include cancer), and by its use as a status symbol amongst elites. Organized crime networks are taking advantage of opportunities, presented by cultural norms and by the wealth of the growing middle class in the region, to traffic rhino horn to these markets.
Greed is a powerful driver of the trade, with enormous profits to be made. But this alone does not alone determine the trade’s sustainability.
As my paper notes, the illegal trade in wildlife is increasingly meeting with resistance from states and the international community, in the form of law enforcement and regulatory initiatives. Both money and effort are going into training and deployment of personnel to patrol poaching hotspots. New technologies for monitoring rhinos and tracking and catching poachers and smugglers are being deployed. More international agreements, designed to strengthen political will and law enforcement responses, are being signed. Campaigns are under way to inform consumers that rhino horn has no medicinal qualities and make them aware of the horrendous consequences of the trade for the animals themselves.
So why does the illegal trade persist?

Botswana High Court strikes down customary inheritance law as discriminatory against women

Botswana’s High Court has held that a customary law among the Ngwaketse tribe that allocated the family home to the youngest son was anti-constitutional.
Edith Mmusi and her sisters took care of the home and maintained it, but when their father died it was claimed by the son of one of their half-brothers, Molefi Ramantele. He claimed that under customary law women could not inherit the home. While a chief’s court allocated the property to all the children, that court was reversed by the Customary Court of Appeal, which agreed with Ramantele. Mmusi, with the assistance of a private lawyer and the Southern Africa Litigation Centre, appealed to the High Court.
In its 68-page judgment in Mmusi and Others v Ramantele and Another, issued on October 12 and available here, the Court found that the customary law violated the equal protection provision of Botswana’s constitution. It found, first, that the constitution had to be broadly interpreted, as a living document, and that its interpretation should be informed by the persuasive authority of international and comparative law, even though such law was not directly binding on the courts in Botswana (flag above).
Article 3 of the Constitution of Botswana refers to the “protection of the law” applying to all regardless of race, place of origin, political opinions, colour, creed or sex; Article 15 explicitly prohibits discrimination. An earlier case (Attorney-General v. Unity Dow (1992) (prior posts)) had found that the anti-discrimination provision should be read to encompass sex. However, the Court relied on the equal protection provisions, rather than the anti-discrimination provisions, because Botswana, like several other African countries, has a carve-out for discrimination that deals with marriage, divorce or inheritance (15(c)) or is the result of the application of customary law (15(d)). The provisions of Article 15 are not applicable in these cases, but those of article 3 have no such limitation.
Article 3 does, however, limit the right in light of

'respect for the rights and freedoms of others and for the public interest.'

Athalia Molokomme

The country’s first woman Attorney-General, Athalia Molokomme (prior post), had, ironically, emerged as one of the primary defenders of the customary law. She argued that it was not in the public interest to find the practice of favoring males in inheritance to be unconstitutional, because a majority of the population followed such practices, and it was too soon to abandon such culturally ingrained rules.
The Court, through Justice Key Dingake, disagreed, finding in paragraph 196:

“Steve Biko Helped Turn Me Into a Feminist”

Today is the anniversary of Steve Biko’s brutal death in 1977 at the hands of the apartheid government of South Africa (noted by IntLawGrrls here). Anti-apartheid activist and founder of the Black Consciousness Movement, Steve Biko was one of the most inspiring and effective young activists of the last century. So inspiring and effective that the South African government decided he had to be eliminated. But as the articles linked below show, his influence has lived on.
A recent conversation with a former student has prompted me to share once again an essay in the Ottawa Citizen that I shared some years ago on FeministLawProfs. The author of the essay wrote:

'It amazes me that a man I never met, who lived a vastly different life half a world away, influenced my life as much as he did — and in ways that Biko himself never would have expected.
'For one thing, he helped turn me into a feminist.'

Full essay here.
Information about Biko, including footage of a rare film interview, here. Click "media library" near the top for audio of additional interviews.

(Cross-posted on FeministLawProfessors)

On September 12

On this day in ...
... 1977 (35 years ago today),in South Africa, as The New York Times' John F. Burns wrote: "Steven Biko, probably the most influential young black leader in South Africa, died while in police detention," an event that, Burns reported, stirred "fears that his death could increase racial tension." According to the BBC, more than 15,000 persons attended his funeral.  It was eventually revealed that Biko, 30, had died not from a hunger strike, as authorities had claimed, but from severe brain damage inflicted during interrogation. Indeed, Biko's death became a rallying point in the movement that led, nearly 2 decades later, to the election of Nelson Mandela as President of a new, anti-apartheid South Africa. Among the accounts of Biko's life and death is newpaper editor Donald Woods' Biko (1978) (above left). It is one of the books that awakened this 'Grrl to the issue of international human rights. (In a post above, IntLawGrrl Stephanie Farrior also pays tribute to Biko.)

(Prior September 12 posts are here, here, here, here,  and here.)

On July 17

On this day in ...
... 1976, the BBC reported, "The opening ceremony of the 21st Olympic Games in Montreal has been marred by the withdrawal of 25 African countries." In subsequent days other countries left, bringing the eventual total to 33 teams and more than 300 athletes. (credit for map indicating boycotting countries in yellow) The pullout came in protest of the refusal by the International Olympic Committee to ban New Zealand. At that moment, its rugby team, the All Blacks, was on tour in South Africa, which had been expelled from the Olympics since 1964 on account of its apartheid laws. (London's Olympics are set to begin in 10 days; at this writing, no boycotts on the horizon.)

(Prior July 17 posts are here, here, here, here, and here.)

On May 31

On this day in ...
... 1902 (110 years ago today), at Melrose House in Pretoria, representatives of Britain and of the Boers, or Afrikaner nationalists, with whom they'd been fighting for decades, signed the Treaty of Vereeniging (left). (image credit) The Boers ceded the independence, which they had maintained in South African Republic (Transvaal) and the Orange Free State, and submitted to the British Crown in exchange for amnesty and repatriation, some language and property rights rights, and, in a clause that augured the difficult years yet ahead in South Africa, a

'[p]romise of eventual self-government and an agreement that no decision would be taken regarding the franchise of black people until after the introduction of responsible government.'

(Prior May 31 posts are here, here, and here, here, and here.)

Mugabe's elite & universal jurisdiction's reach

'[T]he case will still have a galvanizing effect on the situation in Zimbabwe. Anyone there who is under investigation will now risk arrest by coming to South Africa, a country frequented by the Zimbabwean elite for shopping, medical treatment, catching international flights or visiting their vacation homes in Johannesburg or Cape Town. ... South Africa’s laws could trump diplomatic and sovereign immunity, which means sitting heads of state could be potentially vulnerable, too – although they would have to be on South African soil to face arrest.'

So writes Peter Godwin in a New York Times op-ed, entitled "A Landmark Ruling in South Africa," that adds further context to a ruling last week on which Naomi Roht-Arriaza and I posted here and here. The May 8 judgment in South African Litigation Centre et al. v. National Director of Public Prosecutions et al., issued by a High Court judge in Pretoria, orders South African investigators to, well, investigate victims' complaints that Zimbabwean officials sometimes present in South Africa committed torture. That's a crime against humanity punishable before the International Criminal Court and, by dint of national implementing legislation, in South Africa as well.
The op-ed worries that South Africa will continue to stall, via appeals or otherwise, and urges all to pressure President Jacob Zuma instead to comply with the High Court order.
The op-ed's author made a persuasive case for such pressure well before the May 8 judgment: Godwin (right) was born in what's now Harare, capital of Zimbabwe, and he practiced law there before becoming an author/journalist. Based now in New York, he's not only the President of the PEN America Center, a literary/human rights NGO, but also the author of a powerful memoir, The Fear: Robert Mugabe and the Martyrdom of Zimbabwe. (This 'Grrl had occasion to hear Godwin's stirring account of the book at an event last fall, sponsored by the Dean Rusk Center for International Law & Policy here at the University of Georgia School of Law. (credit for photo accompanying Georgia Political Review interview with Godwin))
Initially published in 2010, Fear tells of Godwin's harrowing trip back home in 2008. He and his sister, Georgina, thought they were returning to a Zimbabwe that soon would oust President Robert Mugabe (prior posts), who long had ruled the country with an authoritarian fist, with Morgan Tsvangirai, against whom a close vote had forced a Presidential runoff election.
This was not to be.
Mugabe supporters unleashed a wave of terror that Godwin's book recounts in painful detail. It is must reading for anyone trying to plumb the nature and significance of "post-election violence" – of anyone, that is, who is trying to figure whether and why international criminal prosecutors deem such violence a crime against humanity. PEV, as it's called, is at the core of 2 much-scrutinized matters before the International Criminal Court:
► The Situation in the Republic of Kenya, about IntLawGrrls frequently have blogged in posts available here; and
► The Situation in the Republic of Côte d'Ivoire, for which former Ivoirian President Laurent Gbagbo sits in detention at The Hague.
There is no Situation in Zimbabwe, as it's not a state party to the ICC.  Thus the significance of the May 8 ruling, and the occasion for Godwin's call for global pressure on South Africa.

Universal jurisdiction rises from the global South

JOHANNESBURG – One of the critiques of transnational prosecutions based on universal jurisdiction is that they are a new brand of neo-colonialism, with former colonial powers seeking to bring into court disgraced leaders of their former colonies. It is true that many of the recent transnational cases involve European courts, while the defendants come from Africa or Latin America. But two cases – each from a different hemisphere – show that as universal jurisdiction provisions become a more regular feature of national law, countries of the South can, and do, make use of them in egregious cases of international crimes.

South Africa

In a judgment issued Tuesday, South Africa’s North Gauteng High Court (Judge H.J. Fabricius) ruled that South African prosecutors and police illegally refused to proceed with an investigation of systematic torture in Zimbabwe. (credit for photo of the Pretoria courthouse)
As IntLawGrrl Diane Marie Amann also discusses in her post below, the case involved allegations, contained in a dossier provided to police and prosecutors by the Southern Africa Litigation Centre and Zimbabwe exiles, that high-ranking officials from Zimbabwean President Robert Mugabe’s political party ordered police to storm the offices of the opposition MDC party on March 27, 2007. Over a hundred people were alleged to have been detained and severely tortured, as part of a widespread and systematic campaign against the MDC. Several of the named defendants traveled regularly to South Africa, although none was identified as being present when the case was heard.
South Africa’s 2002 Rome Statute of the International Criminal Court Act domesticates the Rome Statute. It orders courts to apply the Act, the Constitution, and also allows them to apply the Rome Statute itself as well as customary international law and comparative law:
► Section 1 incorporates the Rome Statute crimes.
► Section 4(3) provides the following:

'In order to secure the jurisdiction of a South African court for purposes of this chapter, any person who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if …
'c. that person, after the commission of the crime, is present in the territory of the Republic; or
'd. That person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic.'

► Section 5(1) requires the consent of the Director of Public Prosecutions to initiate a prosecution.
The South African authorities refused to open an investigation, alleging that, first, the information they had received from the two NGOs was insufficient, and that, secondly, there was no point investigating because the Zimbabwean authorities were unlikely to cooperate, all the evidence was in Zimbabwe, and moreover opening an investigation would likely chill relations with the Zimbabwean police and create political problems. Finally, the government argued, the Act required presence of the defendants to prosecute, and none of the defendants had been shown to be present.
The court rejected all these arguments:
► It found that there was a clear difference between investigation and prosecution, and that all sides agreed that there was reasonable suspicion of criminal acts within the meaning of the Act: that was enough to trigger an investigation. The political and practical difficulties in proceeding were extraneous to the decision to investigate; in effect, the police were ordered to “see how far you get,” including by invoking mutual assistance treaties.
► Moreover, the court found that if the police could not initiate an investigation for crimes committed outside South Africa, the ICC Act would be rendered meaningless. Presence of the defendant was not required in the investigative phase, although it was necessary for trial. The court ordered the police, in collaboration with the prosecutor’s Priority Investigation Unit, to investigate the case, although it made clear that the police were not required to bring any witnesses from Zimbabwe and could not guarantee the safety of any who volunteered testimony. At a later stage, the Director of Public Prosecutions was directed to decide if there was enough evidence to move from investigation to prosecution.
The decision will no doubt at least put a crimp in the travel plans of a wide range of Zimbabwean ZANU-PF party and government officials.

Argentina
At the same time, in a different hemisphere, the universal jurisdiction tables were turned. Investigations proceed in an Argentine case involving the commission of crimes against humanity in Spain’s 1930s civil war.

Complementarity in action: Applying South Africa's ICC Act, national court orders South African prosecutors to investigate torture in Zimbabwe

By means of a fascinating application of complementarity under the Rome Statute of the International Criminal Court, South African prosecutors must investigate allegations of torture committed in Zimbabwe.
So ordered the High Court of South Africa Tuesday, in its judgment in South African Litigation Centre and Zimbabwe Exiles Forum v. National Director of Public Prosecutions and other government units.
Complementarity, of course, is the principle that allots jurisdiction over crimes punishable under the 1998 ICC Statute; specifically, genocide, war crimes, and crimes against humanity. (As posted earlier this week, the crime of aggression may one day be added to that list.) The statute's preamble states:

'[T]he International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions.'

The global community thus looks first to countries to pursue persons suspected of ICC crimes.
And Tuesday's ruling requires one national system to do just that.
In his 98-page judgment, Pretoria-based High Court Judge Hans-Joachim Fabricius reversed prosecutors' 2008 rebuff of the request from 2 applicant NGOs for an investigation into "into acts of torture as crimes against humanity committed by certain named perpetrators in Zimbabwe."
Of special note:
The national order for a transnational investigation issued notwithstanding the fact that the ICC itself cannot exercise jurisdiction over acts in Zimbabwe, a state not party to the ICC statute.
As IntLawGrrl Naomi Roht-Arriaza further discusses today in her post from Johannesburg, the applicants sought investigation of an event alleged to have taken place on March 27, 2007, in Harare, Zimbabwe's capital. Paragraph 8 of the judgment states:

'Zimbabwean police, under orders from the ruling party, the Zanu-PF, raided the headquarters of the opposition party, the Movement for Democratic Change (“MDC”). Over one hundred people were arrested and taken into custody, amongst them were MDC supporters and officials, as well as persons who worked in near by shops and offices. Individuals affiliated to the MDC were detained for several days, and were continuously and severely tortured ... on the basis of their association with the MDC and their opposition to the ruling party.'

It's further alleged that these acts of torture were "'inflicted by – and at the instigation of and/or consent or acquiescence of public officials" as "part of a widespread and systematic attack on MDC supporters and officials and those opposed to the ruling party, the Zanu-PF."
Authority for the court's order is twofold: South Africa's Constitution and a South African statute, the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002.
Here's the reasoning by which applicants successfully invoked South Africa's ICC Act:

'[I]n the light of the collapse of the Rule of Law in Zimbabwe, concern for the safety of the victims, and the unlikely-hood of securing accountability in a Zimbabwean court ... South Africa was legally required to investigate war crimes, crimes against humanity and genocide, regardless of whether they were committed in South Africa or by South African nationals, those responsible could and should be held accountable under South African law designed for this very purpose.'

One hears echo of the "unwilling or unable" requirement of complementarity as set forth in Article 17(a) of the Rome Statute.
The Pretoria court agreed with applicants' reasoning.

South Africa Constitution's sexual orientation equality provision at risk?

South Africa's Bill of Rights, Section 9, subsection 3 provides:

'The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.'

This Constitution, effective in 1997, is the post-Apartheid Constitution. As the government itself boasts,

'South Africa’s Constitution is one of the most progressive in the world and enjoys high acclaim internationally.'

The progressive reputation of the South Africa Constitution is well-deserved, and it is based in part as being the first Constitution to explicitly recognize equality on the basis of sexual orientation.
Interpreting this provision, the highly respected South Africa Constitutional Court has declared sodomy laws unconstitutional, has declared the limitation of marriage to opposite-sex couples as unconstitutional, and recognized family rights for same-sex couple parents. My own recent scholarship on these developments is here and here. (credit for South Africa rainbow map)
But the inclusion of sexual orientation has re-emerged as a controversial issue.

At his blog Constitutionally Speaking blog, Pierre de Vos, Constitutional Law Professor at the University of Cape Town, reports that the House of Traditional Leaders submitted a proposal to the Constitutional Review Committee of the National Assembly to amend section 9 of the Constitution to remove sexual orientation provisions and the Review Committee has referred the matter to the political parties. (credit for de Vos photo) As de Vos explains it:

'This means that the various Parliamentary caucuses of political parties represented in Parliament will soon have to decide whether they support unfair discrimination against people they might believe are not like them, or whether they will affirm their commitment to non-discrimination and the respect for the human dignity of all South Africans, the very bedrock on which the Bill of Rights in the South African Constitution is founded. . . .'

De Vos' analysis is worth reading in full.
Coupled with recent controversies surrounding the composition of the South Africa Constitutional Court, about which I posted a while back, this is alarming news indeed, and threatens South Africa's status as a constitutional democracy that is "one of the most progressive in the world."

(Cross-posted at Constitutional Law Prof Blog)

On April 11

On this day in ...
... 1996, the African Nuclear Weapons Free Zone Treaty was opened for signature at Cairo, Egypt. It's also known as the Treaty of Pelindaba, having been adopted the previous June in that city, "site of the then Atomic Energy Corporation (AEC) of South Africa." The pact renounces nuclear weaponry on the African continent. It entered into force in 2009, and now has 31 members.

(Prior April 11 posts are here, here, here, here, and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The stakes are high. This appointment is about more than just finding a World Bank leader who is a competent non-American. It is about finding a leader with the skills, experience and commitment to make a complex institution more responsive to the evolving needs of all its stakeholders: its debtor and creditor member countries and their citizens — who are the intended beneficiaries of the bank’s operations but who can also be harmed by them. It is about finding a president who will ensure that the bank has the requisite organisational and technical capacities to work with its borrower countries to meet their most urgent challenges — finding growth strategies that reduce poverty, inequality and unemployment within constraints created by climate change and other environmental stresses.'

— Daniel Bradlow, in an op-ed entitled Let’s help elect a female World Bank head (referring to a post that becomes vacant this summer). Bradlow's a law professor both at the University of Pretoria, South Africa, and American University Washington College of Law, Washington, D.C. His proposed nominees: Dr. Mamphela Ramphele (above right) of South Africa, who holds both an M.D. and Ph.D. in social anthropology, and Dr. Ngozi Okonjo-Iweala (above left), who holds a Ph.D. in urban & regional planning, and who's served as Nigeria's Finance Minister since mid-2011. Both women have held the position of Managing Director of the World Bank. (photo credits here and here)

ICC undercurrents in AU impasse

A South African politician's bid to become the 1st woman to lead the African Union Commission ended today -- but her male opponent wasn't re-elected, either.
Mounting the challenge was Dr. Nkosazana Dlamini Zuma (right), the South African Home Affairs Minister and the country's "first woman minister of Foreign Affairs," who was once married to the country's President, Jacob Zuma. (photo credit) A physician who earned her medical degree at Britain's University of Bristol, she served as Minister of Health during the tenure of President Nelson Mandela.
Dlamini Zuma had run for the top AU spot on a platform with planks that included "'ensur[ing] the emancipation of women," and "'consolidating democracy and good governance.'" She'd promised to "'buil[d] on the rich Pan-African tradition of consultation and consensus-building."
But in a closed-door meeting today, she failed to garner enough votes to defeat Jean Ping (left) of Gabon, who's held the chair since 2008. (photo credit)
Even after Dlamini Zuma withdrew according to AU rules, Ping failed to obtain the 2/3 vote required for re-election. Looks as if there'll be a new round of elections, in July in Malawi.
It's reported that the challenge to and non-re-election of Ping reflected "immense criticism from African leaders for the way in which he responded to the Libyan crisis."
For what, specifically?
Presumably, the report refers to Ping's condemnation of the International Criminal Court as "discriminatory" on the July 2011 day he presided over the African Union vote that refused to cooperate with the ICC arrest warrant of Muammar Gaddafi, then the leader of Libya.
That this performance provoked an African Union challenge – at a summit where Ban Ki-moon, the U.N. Secretary-General, earlier had "introduced" Fatou Bensouda of Gambia, incoming ICC Prosecutor – adds to other evidence (here and here) of what seems to be a thawing of long-chilly relations between African states and the ICC.

In Kenya, ICC intervention, domestic solution?

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

NAIROBI, Kenya – The International Criminal Court yesterday confirmed charges against four of six suspects in two cases regarding alleged crimes against humanity that occurred in late 2007 and early 2008 following Kenya’s disputed election.
By the votes of Judges Ekaterina Trendafilova of Bulgaria and Cuno Tarfusser of Italy, who comprised a majority of Pre-trial Chamber II, the ICC determined that trials will go forward against:
► Parliamentarian William Samoei Ruto and radio presenter Joshua Arap Sang in Case I (affiliated with the Orange Democratic Movement opposition party); and
► Deputy Prime Minister Uhuru Kenyatta and public service head Francis Muthaura in Case II (affiliated with the Party of National Unity).
The judges declined to confirm charges against parliamentarian Henry Kosgey in Case I and former police commissioner Mohammed Hussein Ali in Case II, citing the prosecution’s failure to meet the standard of substantial grounds to believe that the crimes were committed and that the suspects were responsible.
The Pre-Trial Chamber's third member, Judge Hans-Peter Kaul of Germany, an ICC Vice President, dissented from the majority decision. He maintained that while the crimes committed were serious crimes under Kenyan criminal law, they did not meet the threshold required to be tried before the ICC. (Prior IntLawGrrls posts on these cases available here.) Among other things, the rift on the bench reveals a larger question about what ought to constitute material jurisdiction in cases before the ICC.
This post focuses not on the decisions themselves, but rather on how they have appeared in Kenyan popular discourse, and on the reactions of some civil society organizations. (map credit)
Commentators on the Kenyan situation have long noted the political dimensions of these cases and their potential for shaping the outcome of Kenya’s next election, which is currently due to be scheduled for the end of this year or for the first quarter of 2013. This is because one of the accused against whom the ICC will proceed, Uhuru Kenyatta, is the presumed successor of current Kenyan President Mwai Kibaki.
In addition to the political implications of this decision, another possible outcome of the ICC process may be a return to domestic paths to accountability.
ICC-related stories had dominated Kenya’s most widely circulated dailies well before the decisions were announced yesterday,around 1:30 p.m. East African time. On the morning of the decision, the lead stories of The Standard and Daily Nation assumed an apocalyptic tone – “Day of Judgement: Confirmed?” and “The Hague: Day of decision.” The Standard proclaimed:

'It could be the single ruling whose ink will rewrite Kenya’s history and its winds shake the political arena from today at 1:30.'

On December 31

On this day in ...
... 1687 (325 years ago), a ship named The Voorschoten set sail from the Netherlands' Delfshaven bound for the Cape of Good Hope, South Africa, a destination it would reach on April 13 of the following year. It carried a group of Huguenots, Protestants who were fleeing persecution in their native, Roman Catholic France. The voyage was the 1st of many that would take place in the next 2 years. Many settled in Franschhoek (Afrikaans for "French corner"), a Western Cape region filled with fields of lavender and vineyards that produce superb wines. (photo credit)

(Prior December 31 posts are here, here, here, and here.)

Criminalization of prostitution as a violation of sex workers’ health rights

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

My Fordham Law students and I recently returned from a research trip to Cape Town, where we’re working with the Sex Worker Education and Advocacy Task Force (logo at right) and other stakeholders on the campaign to decriminalize sex work in South Africa. We had the opportunity to lead a “creative space” session with a large group of South African sex workers allied with SWEAT, and we asked them how the criminalization of prostitution affects their lives. Among other challenges, they described how criminalization fosters grinding stigma and discrimination that creates barriers to their access to health services. They spoke passionately of their need for “dignified medical treatment.”
As we mark the International Day to End Violence against Sex Workers today (prior post), it’s worth remembering that violence has many faces.
The criminalization of prostitution amounts to structural violence denying sex workers the right to health. Criminalization increases the risk of HIV and sexual transmitted infections for sex workers in South Africa and throughout the world, because it:
► Fuels stigma towards sex workers in the healthcare setting;
► Fosters police abuse of sex workers; and thus
► Ensures the lack of sex worker involvement in the development of health policy decisions that affect them.

Stigmatization
The Global Network of Sex Work Projects rightly notes that access to condoms and safe sex information drives down sex worker rates of HIV and sexually transmitted infections. Criminalization, though, stigmatizes prostitutes as criminals, which negatively affects how health workers view them. This leads to discrimination in healthcare settings that obstructs sex workers’ access to services and information. During our creative space session, one of the South African sex workers noted,

'It’s not easy for sex workers to go to health clinics because of the way we’re treated. It’s hard for us to even tell health staff we’re sex workers because of the way they react. We have to lie about ourselves and our stories just to be treated better.'

Health professionals’ often negative and disapproving attitudes towards sex workers also drive sex workers to delay seeking treatment for sexually transmitted infections, HIV testing, and post-exposure prophylaxis medication. In addition, the covert and isolated nature of sex work, due to its illegality, increases sex workers’ susceptibility to sexual violence, and often leaves them hidden from health outreach services that do exist.

Abuse by police
Criminalization also leads to police abuse that increases sex workers’ vulnerability to health risks.
South African sex workers, in statements that echo accounts of prostitution-related police misconduct in other countries, report that police often confiscate condoms from sex workers to use as evidence of prostitution, and further demand unprotected sex from sex workers who seek to avoid arrest. Constant police harassment discourages some sex workers from attempting to access health services, out of fear that revealing their occupational identity at health clinics will lead to arrest. In addition, HIV-positive sex workers who get caught in the common cycle of arbitrary police arrest and detention are often unable to adhere to anti-retroviral treatment when jailed.

Lack of input
Because of their illegal and stigmatized status, sex workers also rarely have formal input in the formulation of health policy decisions that affect them.
Governments designing HIV/AIDS interventions often neither seek out nor listen to the voices of sex workers. Instead, sex workers’ voices remain silenced, precluding their potentially powerful contribution to state health policy.
This impedes the creation of responsive government health care services for sex workers. Health workers, for instance, need training to know what questions to ask and interventions to employ when assisting members from stigmatized groups, like sex workers. But it’s difficult to fight for such necessary trainings and other specialized responses when the groups who need them are criminalized.

Decriminalization & right to health
The above realities combine to obstruct sex workers’ right to the highest attainable standard of health, a right enshrined in many international instruments including the Universal Declaration of Human Rights and the International Covenant on Economic, Social, and Cultural Rights. In light of these abuses, a 2010 report by Anand Grover, the Special Rapporteur on the Right to Health, argued:

'Decriminalization, along with the institution of appropriate occupational health, and safety regulations, safeguards the rights of sex workers.'

Similarly, a 2010 report by UNAIDS embraced decriminalization as a matter of good public health policy. And this past October Festus Mogae, the former president of Botswana and current head of his country's National AIDS Council, became the first high-level African politician to call for decriminalization of prostitution.
Despite a stifling legal environment, groups like SWEAT are heroically doing their part to ensure that sex workers have access to safe sex and other health information and services.
Every night, peer educators and paralegals from SWEAT and the sex-worker-led Sisonke movement pile into a van and travel to areas frequented by sex workers, dispensing free condoms, health information, and legal advice. (credit for Sisonke image at right) While in South Africa, I had the opportunity to tag along during one of their nightly health and legal outreach efforts. As sex workers entered the large SWEAT van, I was struck by how the SWEAT and Sisonke peer educators and paralegals, themselves former and current sex workers, gently, reassuringly, and intently listened to the young women narrate stories of police harassment. They asked the young women what they needed, offered legal advice and assistance, and handed them health pamphlets and free boxes of condoms. They treated the sex workers with dignity – a right intricately tied to the right to health.
It’s time for governments to do the same by ending structural violence in the form of criminalization laws and enforcement practices that deny sex workers the right to health.

On December 10

On this day in ...
... 1961 (50 years ago today), the President of the African National Congress, Albert Lutuli, accepted the Nobel Peace Prize for 1960. The ceremony at the University of Oslo, Norway, "saw some 'firsts.'" It was the 1st time a laureate's spouse -- Lutuli's wife, Nokukhanya Bhengu -- was invited to the platform. And it was also the 1st time that a laureate sang -- in Zulu, the anthem Nkosi Sikelel iAfrika. In his Nobel lecture, the 62-year-old activist and advocate of nonviolence recounted government-committed massacres like that in Sharpeville on March 1960 (prior IntLawGrrls posts here and here). Lutuli derided South Africa's apartheid regime as a "a hangover from the dark past of mankind," and urged all of

'Africa to cast her eyes beyond the past and to some extent the present, with their woes and tribulations, trials and failures, and some successes, and see herself an emerging continent, bursting to freedom through the shell of centuries of serfdom.'

Afterward, according to the BBC, the Foreign Minister of apartheid South Africa "condemned" the lecture as "'propaganda and incitement in Europe.'" (credit for above right photo of Lutuli, and for photo at left of Bhengu, made at a 1977 ceremony marking 10 years after her husband was killed in a train crash)

(Prior December 10 posts are here, here, here, and here.)

On November 30

On this day in ...
... 1973, in New York, the International Convention on the Suppression and Punishment of the Crime of Apartheid was opened for signature. Its 1st article proclaimed

that apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination ... are crimes violating the principles of international law, in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security.

Further "declare[d] criminal" were "those organizations, institutions and individuals committing the crime of apartheid." (credit for image of official emblem for the United Nations' Anti-Apartheid Year, 1978) The convention entered into force on July 18, 1976, and today has 107 states parties. Notable nonparty states include South Africa -- whose policies at the time of adoption were targeted by the treaty -- as well as 3 of the Security Council's 5 permanent members -- France, the United Kingdom, and the United States.

(Prior November 30 posts are here, here, here, and here.)

Alexander Prize Seeking Nominations

My institution, Santa Clara University School of Law, is seeking nominations of outstanding lawyers who might be candidates for the Alexander Law Prize, given annually by the Law School. Now in its 5th year, the “Katharine and George Alexander Law Prize” is intended to bring recognition to lawyers who have used their legal knowledge and skills to help alleviate injustice and inequity. It is named after its two benefactors: George Alexander, Dean Emeritus of the Law School and a Professor of Law for 34 years, and Katharine Alexander, who practiced law for 25 years as a Santa Clara County Attorney. In establishing this Prize, the Alexanders aim to inspire young lawyers to heed the call of the public interest. It is also hoped that the recognition of such individuals will improve the image of lawyers around the world.

The winner of the Alexander Prize receives a substantial cash award to be used as the individual chooses. The winner will be brought to Santa Clara University to be honored at a ceremony in March 2012. The winner will also be invited to participate in lectures and classes and may choose to serve in residence as a teacher, mentor, and scholar for a limited period at the School of Law.

Nominees must be lawyers who have used their skill, knowledge and abilities in the field of law to correct injustice. Selection criteria may include factors such as the:

• Innovative nature of the programs or other activities undertaken
• Courage and self-sacrifice required
• Sustainability of the programs the nominee has implemented
• Number of people benefited

In particular, we are seeking nominees who are committed in both heart and mind to alleviating injustice and inequity.

To nominate an individual for the Prize, feel free to use our nomination form or simply send an email to Noelia McKeever at NMcKeever@scu.edu. In your nomination, please provide the candidate’s name and contact details as well as a narrative as to why you feel the individual is deserving of the Prize. Feel free to include additional information, such as press coverage or web links about the individual. Please submit all nomination materials by January 25, 2012.

A number of exceptional lawyers have already been honored with the Prize in years past:

► 2008 Award Winner: Bryan Stevenson, the founder and executive director of the Equal Justice Initiative in Alabama, where he and his colleagues have helped reduce or overturn death sentences in more than sixty cases.

► 2009 Award Winner: Mario Joseph, one of Haiti’s most influential and respected human rights attorneys and Managing Attorney of the Bureau des Avocats Internationaux (BAI), which uses prominent human rights cases and a victim-centered approach to force open the doors of Haiti’s justice system for the country’s poor majority.

► 2010 Award Winner: Shadi Sadr (upper left), an Iranian lawyer who has risked her life in her efforts to protect the human rights of women, activists, and journalists, and who launched the “End Stoning Forever” campaign and Raahi, a legal center for women which has been forced to close since Ms. Sadr has been in exile.

► 2011 Award Winner: Paul Van Zyl (right), former Executive Secretary of South Africa’s Truth and Reconciliation Commission, co‐founder of the International Center for Transitional Justice (ICTJ), and now the CEO of PeaceVentures.

South African Constitutional Court: Justice Mogoeng's Nomination and Opposition

(Delighted to welcome back alumna Ruthann Robson, who contributes this guest post)

Today, the South African Judicial Service Commission publicly interviewed Mogoeng Mogoeng, President Jacob Zuma's choice for Chief Justice of the Constitutional Court (logo at right). (credit)
While the President has broad discretion under the South African Constitution, the choice has provoked a groundswell of opposition.
For example, the important and well-respected organization Section 27, named after Section 27 of the South African Constitution providing for socio-economic rights, has filed a Submission on behalf of itself and several other organizations, specifically objecting to judgments by Mogoeng, a member of the Court since 2009, in the areas of sexual orientation and gender-based violence cases.
The Section 27 submission requests specific queries from the Judicial Service Commission on the matter of sexual orientation, as well as a statement of his commitment to equality on the basis of sexual orientation as explicitly stated in the South Africa Constitution. The submission notes that Mogoeng (left) dissented in a sexual orientation case without providing reasons as constitutional practice requires. (photo credit)
As for the gender violence issue, the problem is not Mogoeng's silence, but specific troubling statements that the submission outlines. The Section 27 submission concludes:

We have no confidence in his ability either to dispense justice in accordance with the values of the Constitution or in his ability to address the complex gender questions that arise in the judiciary and in the legal profession appropriately. The judgments to which we have referred evidence a patriarchal attitude to women. We have no reason to believe that Justice Mogoeng will not exhibit similar patriarchy in relation to gender transformation in the judiciary, the legal profession and indeed society as a whole.

The Women's Legal Centre, writing on behalf of itself and other organizations and persons, also focuses on the matter of gender-based violence in its Submission, highlighting judgments and statements by Mogoeng, as well as mentioning the matter of sexual orientation.
Both Submissions include a discussion of one of Mogoeng's most controversial judgments. Rendered before he was a member of the Constitutional Court, the judgment eliminated a sentence of jail-time, in favor of a fine, for a man convicted on assault with the intent of doing grievous bodily harm to his "girlfriend." In this previously unreported judgment also discussed by Pierre deVos, the defendant had "‘tied the complainant, his girlfriend, with a wire to the rear bumper of a vehicle. He then drove that vehicle on a gravel road at a fairly high speed over a distance of about 50 metres." Mogoeng found the sentence of two years imprisonment too harsh in part because the man "was provoked by the complainant."
In other cases, Mogoeng reduced or suspended sentences for rape because the parties knew each other.
Cases described by the Southern African Litigation Centre, have prompted the characterization of "shocking" regarding other of Mogoeng's judgments involving sexual assault and violence against women and children. In one, Mogoeng reduces to the miminum the sentence of a man convicted of raping a seven year old girl because her injuries were not "serious."
Several law professors from the United States who have scholarly connections to South Africa, including myself, have signed a letter authored by Penelope Andrews (right), CUNY Law Associate Dean and IntLawGrrls guest/alumna who herself once was a candidate for the Constitutional Court. (photo credit) The letter asks the Judicial Service Commission to seriously consider what would be Mogoeng's role as Chief Justice on the Constitutional Court -- an institution not only important to South Africa's constitutional democracy and transformation, but also internationally.
Today's interview and deliberation -- live-blogged here by deVos, a law professor at the University of Cape Town -- placed the Judicial Service Commission center stage, and are being "described as a test of its character and politics, and, therefore, of its value" in the South African Constitutional democracy.

(Cross-posted at Constitutional Law Prof Blog)