Theme: Human rights
Protecting the rights of the transgender community through legislative development
Us, and them: time for a paradigm shift in African mental health policy
My name is Susan Fock Tave and I am from the Seychelles. Though a surgeon by trade, I had to give up clinical practice in 2014 on medical grounds, soon adopting the post of Principal Medical Officer in the Seychelles Hospital, the only referral hospital in the country. I was still finding my feet in this new position when I was asked to act as the Chairperson of the newly established National Mental Health Advisory Committee at a time when the national approach to mental health would be utterly transformed.
The Republic of Seychelles consists of 115 islands in the Western Indian Ocean with a population of just under 100,000. The right of every citizen to the enjoyment of the highest attainable standard of physical and mental health is proudly enshrined in Article 29 of our Constitution.
Seychelles, as is the case in many other countries, has its fair share of mental illness and mental ill-health. Discrimination and stigmatisation of people suffering from mental illness, though not rampant or institutionalised, is still a cause for concern. Until recently, persons with mental disabilities did not benefit from the social and financial protections reserved for those suffering physical disabilities. In 2006, the Mental Health Act marked a significant improvement on the Mental Treatment Act of 1906: disparaging language such as ‘Commissioner of Lunacy’ were ditched, and more decision-making powers were reserved for mental health professionals. But the 2006 Act still served to ‘protect’ society from mentally ill patients, and so did little to preserve their basic rights to dignity, privacy and autonomy. These contradictions meant that the act could never be fully implemented, which ultimately derailed progress.
‘disparaging language such as “Commissioner of Lunacy” were ditched, and more decision-making powers were reserved for mental health professionals’
A proposal to include Seychelles in a Pan-African project to review mental health legislation was welcomed with open arms. The project, led by the Commonwealth Nurses and Midwives Federation and funded by the Commonwealth Foundation, employed a multi-stakeholder approach–which meant that everyone who needed to play a part was included from the outset. The first step of the process was to establish a national advocacy group to pool experience and resources and agree on a piece of legislation, and so the National Mental Health Advisory Committee was born. Membership comprised mental health professionals, policymakers, a user of mental health services and a caregiver. This local working group was given technical support from Dr Soumitra Pathare, the Director of Centre for Mental Health Law and Policy at the India Law Society, and Ms Jill Iliffe from the Commonwealth Nurses and Midwives Federation.
Step two consisted of an assessment, not only of the 2006 Act but also of the legislative environment. This meant reviewing relevant legislation, policy documents and international conventions to which Seychelles is party. Most importantly, the 2006 Act was assessed for compliance with the Convention of the Rights of Persons with Disabilities, widely considered the gold standard for mental health legislation. The assessment was not favourable. In a presentation of review findings in October 2015, Dr Pathare summarised: ‘If you are a person with mental illness, you really don’t have a choice but to consent.’
‘No amount of tweaking could shift this paradigm. The recommendation, therefore, was to repeal and replace.’
Indeed, the 2006 Act appeared to be premised on the assumption that persons with mental disabilities have no capacity. Even when a person was determined to have capacity; their consent could be overridden by relatives or health professionals. And the consequences could be harshly punitive: unlimited ‘detention’ in a mental hospital–without the recourse of appeal. The only escape? Discharge at the discretion of a psychiatrist for ‘good behaviour’. Furthermore, the Act did not make provision for participation of persons with mental disabilities or their representative organisations in any of the regulatory bodies created under the Act. Ultimately, the Committee concluded that amendments to the 2006 Legislation could not change the fundamental spirit of the Act, which was designed to protect ‘us’ from ‘them’. No amount of tweaking could shift this paradigm. The recommendation, therefore, was to repeal and replace.
The result is the Mental Health Care Act of 2020, recently approved by the Seychelles National Assembly. It’s an exemplary piece of legislation that meets the high standards laid out in the Convention on the Rights of Persons with Disabilities, and in the words of that convention ‘it takes to a new height the movement from viewing persons with disabilities as “objects” of charity, medical treatment and social protection towards viewing [them] as “subjects” with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent’. I urge other African nations to build a collective will for change, draw on their own national mental health expertise, and enact reform. It’s my hope that the story of the Seychelles can inspire this cause.
Dr Susan Fock-Tave is Chief Medical Officer in the Seychelles Department of Health.
Space for change?
Often, when I talk about striving to make human rights progress within the Commonwealth, I’m met with raised eyebrows. The Commonwealth? I’ll hear, is that really the right place to be pushing for progress?
It’s a healthy scepticism I come across time and time again, especially from those who are well-versed in the long-lasting impact of the British Empire on its former colonial subjects. The Commonwealth, for many, feels like a vestige of a foregone time, a time in which certain countries were under the thumb of others, a time where the imposition of British law and values upon a litany of diverse and distinct cultures went largely unscrutinised by the global community. And so, the Commonwealth’s origin story, and the fact that its existence cannot be uncoupled from the legacy of empire, continues to ring loud in the ears of many. Especially those who are still dealing with inherited colonial laws that expressly discriminate against certain communities.
‘For the Commonwealth to be seen as a space for change, it must continue to adapt to the wants and needs of its most marginalised citizens’
It was in this light that the Commonwealth Foundation held the first of its Critical Conversations series, bringing together a diverse array of thinkers and doers to examine the Commonwealth’s past and reimagine its future. It was a chance to have an honest conversation about the legacy of the Commonwealth while also discussing its potential as a space for progress, where decision-makers and activists can come together and challenge each other to create a fairer and more positive future.
Although it may seem counterintuitive to some, the Commonwealth has proven itself as a useful space for civil society organisations to come together and advocate for positive change. This wasn’t necessarily a view shared by all panellists, but it is a truth I have seen in action. As Executive Director of Kaleidoscope Trust, the United Kingdom’s leading international lesbian, gay, bisexual and transgender (LGBT+) human rights organisation, I have found that the organising done to create awareness and advocate on LGBT+ human rights issues at Commonwealth-specific fora, such as the Commonwealth Heads of Government Meeting (CHOGM), has often had a resounding impact.
The work of The Commonwealth Equality Network (TCEN), a network of 62 LGBT+ organisations across the Commonwealth, for which Kaleidoscope Trust acts as Secretariat, is a testament to this. TCEN aims to create a positive and more equal future for LGBT+ citizens in the Commonwealth, in a context where 34 of 54 Member States criminalise homosexuality as a direct result of inherited colonial-era laws. For LGBT+ activists in the Commonwealth, an acknowledgement of the past was the first step toward envisioning a more equal future. And so TCEN went about advocating for this exact thing—a statement of acknowledgement and regret from the UK government.
The network achieved this primarily by centring the voices of young grassroots activists in our advocacy both before and during CHOGM 2018, which was held in London. This simple act, of creating opportunities for the lived realities of LGBT+ people to be heard in high-level diplomatic spaces, was enormously impactful.
It included creating a platform for Melusi Simelane, a young gay man from eSwatini, to talk about the safety and security of LGBT+ people in his country at the Committee of the Whole, during an event for Commonwealth accredited civil society organisations to present priorities relating to CHOGM to high-level Commonwealth officials. It also included working with the Commonwealth Foundation to ensure Zeleca Julien, a lesbian activist from Trinidad and Tobago, was able to speak about her experiences fighting for equality at the opening plenary of the Women’s Forum at CHOGM 2018, the first time an LGBT+ person was granted the opportunity to do so.
Beyond these specific examples, we also aimed for as much LGBT+ civil society representation as possible at Commonwealth events. CHOGM, for example, is a unique opportunity for LGBT+ organisations to come face to face with diplomatic or parliamentary representatives from their countries or regions, an opportunity that few other diplomatic spaces provide. Where they might not be able to safely do so in their own countries, representatives of TCEN organisations were able to hold their national-level parliamentary representatives to account within a Commonwealth space.
TCEN is one of many examples of how the Commonwealth can be used as a force for good, particularly for the LGBT+ community. But TCEN is only the beginning. As our work has continued, we have sought to ensure we are building a more intersectional human rights movement in the Commonwealth, working with youth organisations and those fighting for women and girls rights to make sure that the progress we achieve can also support the aims of other marginalised groups.
For the Commonwealth to be seen as a space for change, it must continue to adapt to the wants and needs of its most marginalised citizens—and that includes examining the mistakes of the past, mistakes that have led to staggering inequalities, and aiming to rectify them accordingly. So long as the Commonwealth can continue to create spaces for the likes of TCEN to make their voices heard, it deserves to be championed as a promising avenue for real progress.
Phyllis Akua Opoku-Gyimah (Lady Phyll) is Executive Director of Kaleidoscope Trust.
Health and disability rights: multi-stakeholder approaches
The Foundation recently convened learning exchanges with civil society leaders working on health and disability rights—particularly the rights of vulnerable populations who have been ‘left behind’. The participants, who hailed from 11 Commonwealth countries and had each received support from our grants programme, shared strategies and approaches to realise these rights by making governments more accountable.
This is the fourth in a series of blogs profiling the case studies our partners shared. Previous blogs in the series have examined how our partners gather citizen data and present it to decision-makers to improve health outcomes. This month’s blog looks at how our partners engage a range of stakeholders—from government agencies to think tanks and families—so they can advance health outcomes. This is known as a multi-stakeholder approach; it involves identifying and understanding the varied institutions and actors that can create change and considering how each can be persuaded to think and act differently to fulfil health rights.
Community Tours in Guyana
ChildLinK aims to improve the protection of children with disabilities at home, within families, and in education—particularly children with autism and those experiencing abuse. Their approach is based on building relationships between children and their families and communities, as well as government agencies and decision-makers. One innovative method they use is known as a ‘Community Tour’.
With guidance from the Ministry of Social Protection and ChildLinK’s caseworkers, ChildLinK identifies communities seeking more information on child protection or communities where there are high numbers of reported child rights violations. These communities are then contacted to assess whether they would participate in a Community Tour; if the community agrees, a small delegation of officials from, for example, the Ministry of Social Protection, local schools, and the police spends half a day in the neighbourhood, meeting and speaking with each household as well as families in the streets and in local shops. They carefully uncover a picture of the issues faced by children in the community and instances of child abuse. They explain what support is on offer and distribute information (posters and brochures) in shops, schools, and health centres.
‘They have helped build relationships between government agencies so they can work more effectively together.’
Quarterly, multi-agency meetings are organised at which information from the tour is processed. Regional teams are sensitised to the needs of children and children with disabilities, and a comprehensive inter-agency action plan is formulated. ChildLinK and local partners implement and monitor the action plan while regularly feeding back to the communities in question.
Community Tours have made governance institutions better informed about the situation of children, including children with disabilities. They have helped build relationships between government agencies so they can work more effectively together. Children and families say these tours leave them feeling more supported and help build their trust in government agencies with whom they can directly engage. Insights gained from the tours are currently being considered by the government as they develop new guidelines for schools to improve the educational outcomes of children with autism. ChildLinK plans to use future tours to identify community advocates who will be trained to sustain community monitoring and awareness.
Preventing and controlling non-communicable diseases in India
HRIDAY’s Non-Communicable Disease (NCD) Taskforce programme is another example of a multi-stakeholder approach. The Taskforce aims to improve cross-sector collaboration to achieve health targets that reduce non-communicable diseases (diseases that are not directly transmissible between people). It brings together government, health service providers, international agencies such as the World Health Organization, research institutions, and civil society organisations.
At the start of their project, HRIDAY reviewed the available literature and consulted with experts on the Taskforce to track India’s progress against national and international targets on NCDs. Using the findings, HRIDAY established an accountability framework: a document that recommends additional action that the government and other stakeholders should commit to in order to meet the country’s targets. Crucially, the document provides a framework for civil society to monitor the government’s progress and hold decision-makers accountable to their promises to fulfil health rights.
The Taskforce keeps HRIDAY abreast of emerging trends, identifies which actors have the power to contribute to greater NCD control, and helps prioritise areas where action is urgently needed. Due to growing recognition of the greater risk that people living with NCDs have to COVID-19, the Taskforce is accelerating action on risk factors for NCDs such as tobacco and alcohol use, unhealthy diets and physical inactivity.
The work of the Taskforce also feeds into that of the Healthy India Alliance (HIA) which is part of the Global NCD Alliance. The HIA connects global developments with national civil society action on NCDs. Additionality, as HRIDAY functions as the Secretariat of Healthy India Alliance, they can facilitate information sharing between the Taskforce and global partners.
Dr Shobha Das is a former Director of Programmes at Minority Rights Group International and Gillian Cooper is the Programme Manager of Knowledge, Learning, and Communications at the Commonwealth Foundation.
Strengthening the implementation of legislation to end violence against women and girls
Safeguarding the rights of older women and men
Tackling youth violence: inclusion for a change
At the 1998 World Conference on Youth, the origin of International Youth Day, the late Kofi Annan made his famous opening remarks: ‘No one is born a good citizen; no nation is born a democracy. Rather, both are processes that continue to evolve over a lifetime. Young people must be included from birth. A society that cuts itself off from its youth severs its lifeline; it is condemned to bleed to death.’
There is a fact that gives Annan’s sanguineous metaphor grim new meaning: violence is now the fourth leading cause of death in young people worldwide. Perhaps no other community of nations should seek to understand this fact more urgently than the Commonwealth; sixty per cent of our more than 2.4 billion citizens are under the age of 30. Here we explore three of our recently approved grants projects that are empowering youth so they can overcome this scourge.
‘Too often, discussions on violence in these communities are one-off events, occurring after policy decisions have been taken and without sufficient youth representation.’
In data released in 2017 by the UN, the murder rate in Jamaica stood at 57 per 100,000 of the population, the second-highest recorded rate in the world. Despite significant efforts to address this problem on the part of the Government of Jamaica, the young continue to be severely affected by violent crime as both victims and perpetrators. In a project that will last two years, Fight for Peace International will work in two of Kingston’s worst-affected neighbourhoods: Denham Town and Parade Gardens.
In designing this project, Fight for Peace focussed on how affected communities were being cut off from policy development and decision-making. Too often, discussions on violence in these communities are one-off events occurring after policy decisions have been taken and without sufficient youth representation. To counter this tendency, they will train 1000 youth and civil society leaders to formulate evidence-based recommendations during regular, specially organised meetings. This will provide youth groups with an opportunity to share their perspectives on security policies so, ultimately, these can be tabled at Jamaica’s Commission on Violence Prevention. Youth leaders will also be trained to deliver traditional and social media campaigns, giving them the tools to influence public discourse on the issue.
‘[In South Africa] an estimated 23 people are shot and killed every day, with the highest rates of death by homicide found among 15-29-year-olds.’
The same UN data that put Jamaica’s murder rate among the highest in the world ranked South Africa’s as eighth. Firearms play a significant role in the perpetration of violence in South Africa. The 2000 Firearms Control Act, which introduced measures such as stricter licensing, led to a significant decline in recorded shootings. Still, an estimated 23 people are shot and killed every day with the highest rates of death by homicide found among 15-29-year-olds. With a grant from the Commonwealth Foundation, Gun Free South Africa will support youth groups to deliver their input during the Control Act’s review in 2020. Young people with experience of gun violence will give oral presentations at public hearings to increase the impact of their recommendations. The organisation will also train youth groups to develop and implement safety initiatives in their communities, including the establishment of gun-free zones in schools and other public places. These initiatives will be coupled with awareness campaigns to mobilise support in favour of greater safety.
While young men are more likely to be the victims and perpetrators of violent crime both in Jamaica and South Africa, these projects will develop analyses and policy proposals that address the differing ways in which women and girls are affected, while ensuring they are fully represented at each stage.
Survey data collected in 2013 in Nigeria provides just a glimpse of the burden of violence shouldered by women: 28 per cent of women aged 15-49 have experienced some form of sexual violence. Of the woman surveyed, one in ten had experienced physical and/or sexual violence in the last 12 months alone. The Government of Nigeria has a clear policy framework in place to address the sexual abuse, violence and exploitation suffered by women and girls, including The Child Rights Act and the Violence Against Persons Prohibition Act. But neither has been ratified in all Nigerian states and serious problems persist throughout the country. For example, there has been an alarming rise in reports of so-called ‘baby factories’, in which women are forced to give birth to children who are then taken from them and sold into illegal adoption and potentially also for exploitation. Other reports suggest a worrying rise in the normalisation of abuse in educational settings.
Nationwide ratification of the key laws and their effective application would go a long way in confronting this trend. Grants partner Youth Alive Foundation have identified what they believe to be the principal obstacles to the first step of ratification: a lack of coordinated advocacy, low public awareness, and prevailing cultural beliefs. Their project will create an alliance working across five target states made up of parliamentarians, students, and civil society and media organisations. The alliance will start by carefully mapping existing laws and policies to identify gaps, and, by gathering data in tandem, they will produce authoritative guidelines on how to bring nationwide ratification closer.
Constructive engagement between civil society and government lies at the core of the Foundation’s strategy, and in this new cohort of projects, there is a discernible sense of civil society cooperating with governments and building on their work. These projects do this by broadening and deepening participation of youth groups to strengthen national legislation. They are aimed at achievable and institutionalised change and highlight the importance of including the voices of the young from which there is much to learn.
Leo Kiss is Communications Officer at the Commonwealth Foundation.
For information on our next grant call and all other updates on our grants programme please sign up here. Profiles for each newly endorsed project will be available on the Commonwealth Foundation’s project pages soon.
Shielding democracy from COVID-19
Across the world, COVID-19 has unleashed a tidal wave of state power. What can we do to ensure that the great pandemic of 2020 is not remembered for an unravelling of democratic values, a disintegration of the rule of law; an irreversible erosion of hard-won rights and freedoms?
The risk is very real. Authoritarianism, the enemy of personal freedom, dines richly on fear and uncertainty. As a former UK Chief Justice recently remarked, we often give up our freedom voluntarily in return for promised protection from some external threat. Accepting this aspect of our humanity leads us to understand that passivity is dangerous. Today, more so than ever, the long-term well-being of our societies requires us to engage our leaders: to support them, yes, but also to question and challenge.
‘Emergency measures that come without an expiry or review date should always raise a red flag.’
The first step is to be absolutely clear about what is acceptable during a time of crisis and what is not. All political systems recognise the need for extraordinary action in extraordinary times. Even in liberal democracies, additional powers can be granted and certain can be suspended during a health or other public emergency ‘which threatens the life of the nation’. The rationale is straightforward. When things go terribly wrong, our leaders need the space and capacity to respond swiftly and effectively. As citizens, we agree to make a temporary sacrifice in order to secure our longer-term freedom and prosperity.
In the real world, things are never that simple. Too often, the rights and freedoms we sacrifice in extraordinary times are permanently damaged. In the aftermath of the 2001 US terrorist attacks, for example, ‘temporary’ powers that infringed on basic rights to privacy and security were granted to national security agencies. Many of these laws are still with us, now routinely used for non-terrorism purposes: from migration control to suppression of the media.
How do we distinguish between a legitimate response to an extreme threat on the one hand and a dangerous overreach on the other? In some cases, the answer seems straightforward. In Cambodia for example, the recently passed COVID-19 emergency law grants an already dictatorial and unchallenged government vast new powers: from property seizure to media controls. Hungary is on the verge of an indefinite state of emergency that will allow its Prime Minister to rule without reference to Parliament until he decides the emergency is over. And the Philippines’ response has quickly morphed from lockdown to crackdown.
‘An informed, engaged and questioning citizenry is the best defence we have.’
Fortunately, such instances of shameless power-grabbing remain the exception, at least for now. But the trend is clear, with Oxford University’s COVID-19 government response tracker confirming that governments of every political stripe are granting themselves sweeping new powers to forcibly detain individuals; close schools; shut borders; restrict internal movement; limit free speech; impose curfews and ban public gatherings. Whether by executive fiat or via parliaments, these laws are being rushed through without the attention and scrutiny that much less-important legislation routinely receives.
Many of these responses are raising hard questions. For example, is it appropriate for governments to use surveillance technology that is normally deployed against enemies of the state to track the movements of their own citizens? And how far should that go: what if, for example, these new rules turn out to support biometric surveillance? What if new laws and regulations have a disproportionately negative impact on certain social or ethnic groups? What if they are deployed to silence protest—to effectively outlaw criticism of state policy in this or other areas? And even if we presume that strong measures might be necessary, how can citizens pass judgement on the actions of their leaders during this critical time when governments across the world, 47 at last count, are postponing national and local elections?
Deciding what constitutes a reasonable law is tricky. It might even be impossible until after the fog has lifted. At this stage, the best question we can ask is whether the authorities are demonstrating that their reaction to COVID-19 passes the two-fold test of being necessary and proportionate to the threat as it is currently understood. That involves weighing a myriad of factors, not least the underlying democratic health of the country: a government that is generally responsible and answerable to its people deserves to be trusted much more than one which is unaccountable.
On top of the general tests, we must be alert to the classic warning signs of overreach. Emergency measures that come without an expiry or review date should always raise a red flag. Laws that fail to specify their objective—and to relate the application of new powers solely to securing that objective—should raise another. Laws that erode basic democratic protections—for example by exempting their application from judicial or parliamentary scrutiny—are also to be treated with great caution. And in this situation, as in all others, we must be highly wary of emergency-related restrictions on those fundamental rights that serve to protect all others: freedom of speech, expression and information. This is the time for radical transparency: any attempt to suppress information, debate and dissent should be robustly challenged.
The COVID-19 pandemic has expanded the reach and power of the state to a degree that is unprecedented in the living memory of most modern democracies. The consequent loss of rights and freedoms may well turn out to be necessary. But history teaches a harsh lesson: sacrificing liberties is a dangerous game with a highly uncertain outcome. An informed, engaged and questioning citizenry is the best defence we have.
Dr Anne T. Gallagher AO is Director-General of the Commonwealth Foundation.
