Vulnerable Groups

In this parallel session, we heard from a number of inspiring women on a variety of issues affecting the rights of vulnerable groups.

Hon Christine Njagi Mmbwanga, a senior resident magistrate in Kenya, began the session by emphasising how climate change is further entrenching the disadvantage of vulnerable communities. For example, in Kenya, when climate change leads to drought, women are forced to walk long distances to get water. On these long and dangerous journeys, women are at increased risk of suffering violent and sexual attacks. Case studies from elsewhere have also shown that when crops fail due to drought, there is an increase in domestic violence. Therefore, it is important that we all act to mitigate the effects of climate change in order to promote the rights of these vulnerable groups. The Magistrate first talked about general climate-related policies that governments can pursue. Turning to what the judiciary could do, she said that judges must provide access to justice to these communities, uphold the rule of law and promote environmental values in their judgments. She stressed the importance of judges making reasoned and evidence-based decisions on environmental issues, citing examples of positive decisions to this effect in Kenya. Another positive step in Kenya was the establishment of specialist environment and land courts in 2011.

We then moved to South Korea where Hon Seonwha Kim’s presentation was focussed on disability and indirect discrimination. She explained that there are two types of discrimination: direct discrimination, which is unfair treatment on unreasonable grounds, and indirect discrimination, which is where society forces different individuals to comply with the same “neutral” standards, generating unfair outcomes (also known as “disparate impact”). The Judge spoke of two recent cases in the South Korean courts which recognised the concept of indirect discrimination. The decisions were notable for a number of reasons, including that the court viewed the concept of guaranteeing the rights of disabled people not as social welfare but as the execution of a legal duty. There was also increased emphasis on the emotional toll that indirect discrimination has on disabled people. Moving forward, the South Korean judiciary have published guidelines for judicial support for people with disabilities, which will help to realise the constitutional value of equality before the law.

Dr Elizabeth Macharia-Mokobi then discussed two contrasting decisions in Kenya and Botswana, one month apart, regarding the decriminalisation of private adult consensual same sex relations. In the Botswanan decision, the court struck down laws criminalising consensual same sex relations, whereas these laws were upheld in Kenya. Dr Macharia-Mokobi provided a fascinating analysis of the differences in reasoning behind these results. Most notable to us, following on from the previous presentation by Hon Seonwha Kim, was her explanation that the right to be free from indirect discrimination was recognised in the Botswanan decision but not in the Kenyan. That is, in Kenya, the court had reasoned that the sections were not discriminatory as they applied to all persons, whereas in Botswana the court had recognised that this had a different effect on the different groups. This, along with other factors, led to the contrasting results. Dr Macharia-Mokobi reflected that we must recognise that “Equality means concern and respect across difference – not homogenisation of behaviour.” She also noted that the journey is not over in either of these countries. For Kenya, the court decision has in some ways provided a roadmap for the plaintiffs to return to court for a successful bid. And, in any case, in both countries all arms of government, as well as society, will continue to play a role in the fight for equality: “Action from all, no matter how small, is important”.

Keeping our focus on Botswana, Hon Annah Raisibe Mathiba gave a very interesting talk on how to manage a project during the pandemic. She has been tasked with managing an IAWJ-led project on LGTBI rights. The project has two aims. First, it aims to bolster the capacity of the judiciary, as currently not all Botswanan judges are aware of international human rights jurisprudence on LGBTI issues and there is a lack of cases on these issues locally. Second, the project focusses on students at the local university, with the aim of training LGBTI-rights driven lawyers. The project has, naturally, faced many a hurdle due to the pandemic. For example, the proposal with the university had intended to have physical rather than online classes, while consultation with stakeholders was to take place by travelling throughout the country and meeting in person. But the Judge reflected that in some ways the changes forced by the pandemic have been positive: there are cost-savings from doing things virtually, wider coverage around the country can be obtained, and there is more time for deeper personal conversations with guests. She emphasised that anyone with an idea for a project should persist with it, despite the challenges of COVID-19.

From Tanzania, Hon Joaquine Antoinette de Mello spoke of the fight against child marriage. The relevant Tanzanian statute provided a minimum marriage age for girls of 15 with parental consent and 14 with the approval of a court. In contrast, the minimum age for boys was 18. A recent survey found that 36% of women aged 25–49 were married before their 18th birthday. Unfortunately, technical issues cut short the Judge’s presentation, but we celebrate the recent landmark decisions of the Tanzanian courts ruling these provisions unconstitutional. The devastating long-term consequences for girls of child marriage cannot be understated.

After their individual presentations, our presenters joined us for a panel discussion, expertly moderated by Hon Janet Nosworthy and Hon Rebecca Guillen-Ubaña. The panellists grappled with difficult questions, for example on the appropriate scope for judicial ‘activism’ on these issues. We encourage members who missed out to watch this fascinating discussion. In terms of a take-home message, we look no further than the wise words of Dr Macharia-Mokobi: “to take care of our neighbour, is to take care of ourselves”.

Reported by Maddy Nash and Taz Haradasa