By ALICIA WALLACE
Dozens of Commonwealth government leaders and advisers are attending the Equality and Justice Forum in Cape Town, South Africa hosted by the Equality & Justice Alliance (EJA) this week. They include former Deputy Secretary General of the Commonwealth Secretariat Dr Josephine Ojiambo, Neomai Maravuakula, Senior Human Rights Advisor of the Regional Rights Resources Team in the Pacific, Hon Naveed Qamar, Member of Parliament in Pakistan, HE Dr Joaquim Chiassano, President of Mozambique, and Judith Alpuche, CEO of Ministry of Human Development, Social Transformation, and Poverty Alleviation in Belize. The participants are fully engaging in the forum focused on legal reform, gaining insights from the other regions represented.
EJA was formed after UK Prime Minister Theresa May’s statement of regret regarding the colonial legacy of discriminatory laws that undermine human rights, especially those of women and girls and lesbian, gay, bisexual, transgender and other sexually diverse (LGBT+) people. It is funded by the UK government to support Commonwealth countries in advancing equality through legal reform. It will work not only with governments, but also with policymakers, civil society, criminal justice experts, and diplomats.
In the opening speech, Dr Josephine Ojiambo gave an overview of the Commonwealth’s formation 70 years ago, the Commonwealth Charter, and the diversity of member states. She emphasised the importance of the role of civil society, saying: “[Civil society organisations] play a role in advocating for responsive legislation and policy as well as lobbying, providing technical assistance and supporting responsive government.”
Dr Ojiambo thanked civil society organisations for their work, and encouraged them to push the envelope through continued participation in public debate and demands for transparency. She noted discrimination against LGBT+ people often goes hand in hand with corruption and leads to negative economic consequences while LGBT+ inclusion leads to higher levels of entrepreneurship and innovation.
She noted she is currently providing technical support to the EMBRACE movement in Kenya which is working toward equality in parliament as well as in the public and private sectors. This set the tone for the three-day forum which included case studies from Mozambique, Solomon Islands and the Pacific and Belize.
The 2004 Mozambique constitution recognises the rights of all citizens regardless of race, sex, ethnicity, social position and a range of other identity markers. Article 36 of the constitution affirms the equality of men and women in all spheres of life and Article 122 directs the state to promote, support and value women’s development.
The country also reformed its Family Law Act in 2004. The Act recognizes marriage equality and increased the minimum age of marriage to 18. It introduced a new law on domestic violence in 2009 and adopted a National Policy on Sexual and Reproductive Health and Rights Policy in 2011. It has signed a number of conventions including those on human trafficking and CEDAW. It became clear there were discrepancies between new legislation and policy and the 1886 penal code. As a result of advocacy by civil society and lobbying, a new penal code was drafted to address sexual offences, domestic violence, abortion, “offences against nature,” and trafficking.
The consultative process started in 2010 and parliamentary debates started in 2013. It needed more work before it was finally adopted at the end of 2014. Kubi Rama of Gender Links noted that, in undertaking legal reform, timing is critical, political will is necessary, and attention must be paid to the harmonisation of laws and policies.
Solomon Islands and Pacific
In her presentation, Neomai Maravuakula gave an overview of the Family Health and Safety Study conducted in 2009 to produce statistics reflecting the reality of violence against women in the Pacific. Participants were women and girls between the ages of 15 and 49. Sixty-four percent of every partnered woman have experience physical or sexual violence by an intimate partner. Seventy percent of them did not tell anyone and those who did told a family member.
It is notable that countries in the Pacific have moved away from separate pieces of legislation for domestic violence, sexual violence and protection of children. Instead, they each have a Family Protection Act or Family Safety Act. Vanuatu passed it in 2008, Fiji in 2009, Palau in 2012 and others followed.
Domestic violence legislation in the Pacific covers domestic violence, protection orders, duties of police, lawyers, judges and health professionals, and counselling.
Before the Solomon Islands Family Protection Act, the Evidence Act put the burden of proof on survivors, allowed sexual history to be considered and called for proof of resistance. Maravuakula also noted the “scattered approach” — Islanders Marriage Act, Islanders Divorce Act, Maintenance and Affiliation Act — to family law was not working. The Family Protection Act was a collaborative effort of the Ministry of Women and Ministry of Justice with civil society support. There was a joint effort between the government and civil society to advocate for the bill which went through 13 drafts.
Solomon Islands learned from the experiences of other countries in the region who had already gone through the process. They knew it was important to prepare the ministers to respond to questions and comments about the bill and they produced material in response to cultural and religious concerns. The bill passed without objection and this is credited to the regional awareness, learning from other countries, technical expertise of civil society organizations and consistent collaboration throughout the process.
As with many other countries, the challenge is in implementation. This requires awareness and understanding of the bill, national leaders’ commitment, and training police, magistrates, and health professionals.
Judith Alpuche presented on the reform of the sexual offences legislation in Belize. This reform process started in the 1990s with the rights-based Families and Children’s Act. This was necessary for compliance with the Convention on the Rights of a Child. There was also an inability for the law to adequately deal with rape, sexual abuse and sexual offences outside of penile penetration.
The colonial laws saw women and girls as victims and men and and boys as perpetrators. “Indecent assault” was used as a catch-all for a range of unnamed offences. A participatory stakeholder process led to a 2006 draft of amendments, and high profile cases in 2009 created a sense of urgency. There was a cabinet directive in 2010 for a Criminal Code Amendment Bill. The Ministry of Human Development and the Special Envoy for Women and Children advocated for two years and prioritized the drafting of the bill.
Alpuche noted that financial bills tend to be prioritized, often to the detriment of others. She also shared that the National Gender Policy saw controversy because it included “respect for diversity” and explicitly mentioned sexual orientation.
Faith-based groups that had ignored the consultation process were quickly financially backed by other groups in North America and launched strong opposition campaigns. There was an unprecedented level of civil society engagement during the process which was seen by the government as an opportunity to educate. The legislation passed, bringing equal protection for boys and girls, articulation of violation with and without penetration and stiffer penalties. Lessons learned, she said, include the need for smaller countries working toward legal reform to prepare for a marathon rather than a sprint, the value of ongoing stakeholder analysis, and the benefit of having champions to help prioritize the reform. Alpuche also noted that reform processes undertaken in Belize led to more public dialogue on issues of importance.
The EJA forum has created a space for legislators, advisors and young people to share experiences and ideas, ask questions, and access technical assistance. Fourteen countries are present, fully participating in the dialogue and showing commitment to bringing the legal reform needed to eliminate discrimination against women, girls, and LGBT+ people. The programme is completely voluntary and countries need only contact the EJA to join.
While The Bahamas is not eligible to receive funding, it is welcome to participate in regional meetings, access other resources, and engage in knowledge exchange with other Commonwealth countries.
It would certainly be advantageous for the Bahamian government to access all help available so the next attempt to advance constitutional gender equality can be more productive and we can get back to work on the marital rape bill as well as others that beg for our attention. We can do better for the women, girls, and LGBT+ in this country and there is nothing wrong with asking for help. We both need and deserve it.