A toast to Africa's last absolute monarchy

Today is the first day that it has rained since I got here and I could not be happier to see it. The last few days it has been just too hot and I have found it been pretty difficult to summon the energy to do anything. In fact I was so excited to go to one of Swaziland’s only clubs last night to watch Nameless perform (Kenya Hip Hop artist) but passed out as soon as I got back home from playing basketball in Manzini. I really should go and buy food as I have nothing in the house, but instead I am finishing off the remnants of last night’s double burger (over estimated how much I could eat again) and think it is time to finally write a bit about politics in Swaziland.

Swaziland is the last absolute monarchy in Africa, which means that while it still has a Parliament, the king can override anything that they actually decide, and he makes full use of this privilege. As you can imagine, in some cases this can lead to a great deal of confusion, particularly when you have a king that does not give too much thought to the consequences of his words. In the past few weeks the problems with this kind of system have been brought into sharp focus by the saga of the striking teachers. Following a decision to give high-up government positions pay rises (this at a time when Swaziland is feeling the pinch like everybody else) teachers have been protesting for a similar pay rise, or they demanded that at the very least Ministers’ wages should return to normal. Some teachers were dismissed because of the strikes – which caused national uproar. Because of the outrage the question then arose whether or not these firings were legitimate. The cabinet issued a statement stating that all teachers who had been fired remained as such – the decision was not revoked, they had behaved inappropriately and now they were to suffer the consequences. However, the next day the king stated that, and I quote ‘All fired teachers should go back to school.’

Now, I know what you’re thinking – what a clever guy. He does not state explicitly whether his comment is in fact overriding what the Cabinet decided. He does not say whether (a) the firings are not actually valid and everyone who WAS a teacher remains so and should return to work accordingly or alternatively (b) those teachers who were fired were legitimately dismissed and therefore do not count as the ‘teachers’ who should return to school.  If ambiguity is his game then this guy is doing an absolutely stellar job.

Thankfully for us all a week later he was good enough to clarify that he was, indeed, overriding what the Cabinet decided, and that EVERY teacher should return to school.  And all this in the run up to final examinations for thousands of young Swazis. I promise I will never complain about our beloved DC again.  

Oh shit wait. I’ve just seen the reshuffle... Perhaps a Swazi who was visiting the UK for the past few months would be similarly baffled by our politics.

Avocadoes, AIDs and ignorance

I’m sitting down to write after having had my usual Portugese rolls (still not sure exactly what these are) and avocado for lunch. The avocadoes are so cheap and oh my(!) I cannot describe how good they are. They do not have the starchy quality and plastic tastelessness which seems to plague their European counterparts, instead their seductive creaminess makes it difficult to decide whether you would rather rub their soft pulp all over your body or actually eat them. While the entire Southern African region has a pretty good rep for their quality of avocadoes Swaziland is particularly well endowed (sorry couldn’t resist) – so if you are in the region go to a street seller – NOT a supermarket - and get some. But be sure to ask for some especially ripe ones – if you’re as pale as I am they will assume you want the harder tasteless ones.

This lunch has brought me on to writing about women and relationships in Swaziland, because all I can think about now is how female sexuality here sits in stark contrast with the pure pleasure and, yes I would go so far as to say sensuality, of these avocadoes. Unprotected sex is what is rotting this country with 25% of the population suffer from AIDs here. It is a national epidemic. As a direct consequence the life expectancy here is 38 – the lowest in the world.  As is the case in other countries, no one is quite sure what to do about this. The toilets of my office have a hamper of condoms sitting by the kitchen sink and the border control has dispensers which are overflowing. No one takes them. I simply cannot understand why men gamble their lives by not using condoms. Most seem to accept two things in life: firstly that they are entitled to sleep with as many women as they want, whether they are married or not and secondly that it is likely they will contract AIDs as a result. Most NGOs here treat abstinence and strict monogamy as the best way for dealing with AIDs. However, it is clear that this stance is having minimal impact on how people actually live their lives. Part of the problem lies in the fact that women are not entitled to expect fidelity from their husbands. In fact, if a man stays faithful to his wife – the only thing anyone would say is ‘Why?’ It would be assumed that there is something wrong with the man, and most certainly not a quality which is valued by society.  

I have no idea what the solution is. I feel pretty powerless in all of this. For the first time in my life I have had my opinions shot down with the phrase ‘You white people’ or, with a roll of the eyes - ‘You are just SO white.’ I am conscious that I come across as ignorant at points and that most of my arguments imply that I am entitled to feel things, to act because of passion, desire and because of what I want. The advice I have to give is as if these women live in the UK too. Here women do not think about what they want or value. They marry and do their best to put up with infidelity and beatings as a trade for stability. Love and affection, something most of us would consider a prerequisite for a relationship, is considered a rare bonus. They hope that they are lucky and that their partners do not have sex with infected women or men – but the number of orphans in Swaziland is steadily growing because so few men refrain from extra marital affairs. UNICEF and other NGOs are struggling to care for these vulnerable children and assume the role that was once taken care of by the child’s family because of lack of funding.

I think the view women have of relationships is almost epitomised by how they see lesbianism. It is seen as the ultimate exotic life choice and self indulgence. It puts your sex life over stability and the traditional family concept – so central to life here. Satisfaction does not seem to be a consideration, though sadly nor does remaining faithful to an abusive partner guarantee safety.

Though I do wonder if they feel a similar sense of pity for me and my unstable lifestyle, if I am as alien to them as they are to me. But I’m afraid that I’ll probably never know. I don’t think I want to know the answer.

Week 1 Swaziland

The power keeps cutting out as I write this so apologies if it seems a bit disjointed. Mbabane, and in fact Swaziland as a country is incredibly mountainous and suffers from pretty extreme weather conditions at times. While it is not yet the season known for lightning strikes it is astonishingly windy and I think that this may be the source of my electrical problems. And it is making such a bloody racket outside. Last night the wind was making so much noise that I woke up thinking someone was breaking into my house – I jumped out of bed and ran into the hall hurling abuse at the would-be assailant and yielding the frying pan I keep beside my bed (for these exact purposes). My poor guard had no idea what was going on and started shouting to me from outside, obviously assuming that I was in danger and not, as was the case, a complete idiot.

Despite my paranoia Swaziland seems to be a pretty safe country – this is according not only to my own experiences in the week that I’ve been here, but also those of my colleagues in the UNICEF office and the staff of the Waterford UWC. The most hassle I have had has been the odd marriage proposal or the offer of someone’s shoulder as a pillow. The men I have met here actually remind me a bit of men in Northern Ireland – they could be construed as misogynistic and seedy, but really they are pretty well meaning and jovial. And it is in tune with the Swazi culture, where being friendly to everyone and open about everything you think is a very important part of how Swazi people interact. It is considered rude to speak to someone, even in passing in a shop, and not first ask how they are. While this is a nice little ritual some people find it gets a bit annoying quite quickly, but I still appreciate the sentiment, especially after my last few months spent in the London. Maybe I’m just cut out for a more rural way of living? You can take the girl out of Donaghadee....harhar.

I’ve also joined a local basketball team, who are so lovely and make me feel like the new Michael Jordan. I can just hold the ball above my head and no one can touch it without fouling me.  It makes me realise how important a role sport can play in making friendships. It encourages the kind of camaraderie that can transcend nationalities and even language. If I hadn’t joined this team (who are the current local league winners – jussaying!) there would have been little chance of meeting native Swazis and not simply sticking to the expat circuit, which is so common in many African countries. So shout out to Mr Cameron for reinstating compulsory competitive sports in schools – good call.

I need to go rescue my laundry before it all blows away. But I didn’t have time to talk about the incredibly interesting political situation here! Next time.

The Tories haven't just cut legal aid, they've attacked the notion of what a democracy should stand for

When we elect our government one of the things we entrust them with is the strings to the public purse. The problem with money is that it is a finite resource – you can’t spend as much money as you would like on everything, you have to prioritise. This is what our politicians do on our behalf. Now, Britain’s economy has entered a double dip in the first quarter of 2012 so instead of being on our way out of the recession we have actually regressed and are in greater financial difficulty than we were in the last quarter of 2011. All eyes are even more firmly fixed on the coalition on making us money. What’s the most obvious way of making money? I’m no economist but I would say a safe bet is concentrating resources on investments, and cutting funds to areas which offer no prospect of returns. Legal aid is one such area which can offer no returns. It is essentially a hand out to those in need of access to the legal system to address a complaint. And so, unsurprisingly the current government saw the pre existing legal aid as a bit of an inconvenience in the current economic climate. They decided that really, it was time that it just went away. And if life and democracy was purely about economics and getting rid of any inconveniences that hinder economic growth that would be fine. But sadly, politics is about more than money and economics - it’s also about principles. And this is something the Tories seem to have completely forgotten when they decided to completely eradicate legal aid in the UK. 

The proposals which have just gone through Parliament make it official – the legal aid budget is now pratically non-existent. All in all the government plans to save a massive £350 billion from its legal aid cuts. This will mean that more people who have been wronged by a private party or the government itself could be denied access to the legal process. Why do I think that this a terrible thing? Because it strikes to the very heart of what we consider the purpose of the law to be. Part of the justification for allowing the law to impose obligations on each individual is that there is a reciprocal benefit incurred from the public at large complying with the law. In other words, you follow the law, in part, because the integrity of the law protects you as well. It stops you from doing a variety of things, but in return you yourself are protected by the assurance that if someone breaks the law to your detriment, the legal system will intervene to remedy the situation. But this assurance becomes meaningless if in practice you cannot access the legal system because of financial barriers. The poorest, most vulnerable and those most in need of protection will not be given funding to make a complaint. As well as undermining one of the key theoretical functions of the law, on a practical level these reforms will also do great damage. Those already on the margins of society will feel further excluded as the legal system could be seen as recourse only for the wealthy and elite. The cuts have been attacked for being particularly reckless in regard to women who have been subject to domestic abuse. The Telegraph reported recently that an Equality Impact Assessment found 361,200 women will lose their access to legal aid for cases involving debt, education, family, housing, public law and welfare benefit cases. That is a huge number of losses for just one specific group of legal aid beneficiaries to account for.  You can see that it is not outrageous in any way to claim that these cuts will mean the death of legal aid. 

The main problem is that our attention as voters is often not focused on issues like this. People do not prioritise legal aid as a key party policy until it actually affects them. Then the individual involved will become interested in the legal system and the remedy it could afford them. However, the general public is more interested in things which they know will definitely affect them. How much the government decides to tax us will definitely affect each one of us. So we are all very interested in how much someone in our income will be taxed - hence the attention focused on George Osbourne’s most recent budget. Legal aid on the other hand is something which will ever come close to directly benefiting everyone. In fact, in practice, the cuts will only affect a very small section of society. But the point is that in theory it could affect a larger cross section of society and this is why symbolically the cuts to legal aid leave true democracy on shaky ground. For a democracy is only true and real when effectively includes and provides protection for all of its citizens, and the legal aid cuts leave gaping holes. 

This is why it is important that more people understand how important the role of an effective legal system is to a modern democracy. Those who are able to write and condemn this shameless corner cutting should. It is critically important that we get people to think about what kind of society they want to be a part of, as opposed to focusing purely on immediate fixes. Don’t get me wrong, the economy is a mess and the government must recover funds from somewhere. But vast and reckless cuts to the legal aid cannot and should not be tolerated, less we lose our democratic integrity entirely.

The relevance of Human Rights law and civil liberties in the next election

The current political situation 

As I stated before, there are many facets of the HRA and the ECHR which are inherently European in character. A party like the Conservatives, who capitalise on nationalistic ideals, were always going to be critical of these aspects of the Act. However, at points David Cameron has gone further than what might have been anticipated. In the past he has painted a very negative image of the HRA and has described the culture which the Human Rights Act has created as ‘chilling.’ He has openly stated that at the very least a review of the Act as it currently stands is needed (though in light of the recent Hamza case which he deemed ‘positive’ he has been more favourable). Given the theoretical underpinnings of the Liberal Democrats it is unsurprising that they have used their role in the coalition to block and challenge some of the proposals. In the next election, however, the Conservatives will be running for power and will be seeking to distinguish themselves from the Liberal Democrats. Depending how the case law in Strasbourg develops in the next few years there is a real possibility that the Conservatives will try and use their restricted vision of Human Rights as one of their selling points. This could be seen as a bid, in part, to win over people in the lower income tax bracket, circumventing the outrage over the current budget and the suggested pasty tax which seems, at least in form, to unduly favour the rich. Here I will discuss two of the main proposals that the current Conservative government have suggested and I will outline (a) my specific concerns with each of them and (b) what this reveals about how politicians can manipulate what ‘Human Rights law’ means to win votes. 

Specific previous suggestions by the Conservative Government 

Secret Courts and surveillance proposals 

(a)    What is the proposal

The recent Secret Courts proposals would allow the Secret Services such as MI6 to conduct trials in without press coverage or general public awareness. 

(b)   Issues with the proposal

I cannot stress enough how dangerous and regressive this is, as highlighted by the fact that the Commission for Human Rights immediately responded to the proposals so damningly. One of the main benefits of the HRA is that the government has been forced to be more open, by way of the courts having greater powers to review all governmental actions but also more intense qualitative powers of review. It is especially important in the UK for there to be a higher level of public awareness as the courts have a weaker role than our European counterparts – where the courts can actually strike down government action. In the UK, the courts have no such power. Indeed, the main argument for the UK system not allowing the courts to strike down a piece of legislation or other governmental action is that the electorate holds the government accountable for their actions by way of their how they cast their vote in the next election. That is why it is particularly important that restricting any legal matter from public ears needs to be well justified. Because if the information of a governmental action is not released to the public, then how can they hold the government accountable? 

Martin Kettle wrote a particularly good piece in the Guardian recently where he reminded readers of the fact that we are not at actually at war. This so called ‘War on Terror’ as he rightly points out is not a war at all, and simply using this turn of phrase does not justify taking extreme measures in the interests of national security. Yes, it is important that the UK take sufficient measures to protect itself and its people, but in this case the extremity of the threat, from what I can see, is not great enough to justify restricted access to the courts. Further, Ken Clarke has admitted that the secret court proposals are in response to concerns from the US about their intelligence which, if presented in a public court of law, would be accessible to the public at large. So not only are the government suggesting that freedom of information should be limited, but that it should be done for the benefit of another nation state. 

The importance of freedom of press has been highlighted by the recent shooting of unarmed Trayton Martin where after international pressure his shooter was arrested. Here, we saw how the power of the press could be used for social justice. Technological advances have strengthened democracy by making it easier to access information and make our response to it heard.

(c)    Motivations and potential effects of the proposal

It was rather odd and perhaps a little silly really, to announce in the same set of the proposals that the government is going to be held less accountable to the public at large, but at the same time that they wish to increase control over that self same public. This suggests that the current Conservative party are aiming for a less libertarian approach and instead with to increase their own power.

Bill of British Rights 

(a)    What is the proposal?

Instead of referring to the ECHR, David Cameron stated last year that he thinks that the way forward for Human Rights law is a British Bill of Rights. Basically, the courts would work with a list of rights similar to the ECHR, but one that contains what Parliament considers specifically British as opposed to European rights. It is unclear what exactly the Conservatives envisaged when this proposal was announced. Though clearly capitalising on anti – Strasbourg feelings propelled by the press, to me it seems that the practicalities and actual effects of such a Bill were almost completely overlooked. At best the proposal was a poorly thought out way of taking a stand against the ongoing findings of the Strasbourg court on terrorism cases, and at worst a shameless play at winning support from those susceptible to nationalist and punitive sensitivities. 

(b)   Issues with the proposal

Firstly, how exactly would a British Bill of Rights differ from the ECHR? Would it be more rights built on top of those pre existing in the ECHR? This seems unlikely given that most of Cameron’s statements on the matter suggest that he thinks we are almost crippled by a saturation of civil liberties in this country. So, if we are going to take away rights from the ECHR then which specific aspects of the Convention are clearly ‘not British?’ The right to life and a family? Perhaps the right to freedom of expression? The ECHR allows a ‘margin of appreciation’ for each country to take into account their own respective cultural values. It was deliberately cast in broad terms so that it could be considered universal, and it would be incredibly difficult and potentially misleading to try and specify the limitations of such rights when they vary so much on the facts of each case. We allow judges the discretion to develop the case law incrementally, as each new set of facts arises and with respect to each state’s culture.

Secondly there are a large number of people who reside in the UK who do not consider themselves British. When David Cameron announced these proposals there was outcry from Scottish, Northern Irish and Welsh people who did not want to have their rights classed as ‘British.’ 

(c)    Motivations and potential effects of the proposal

Given the practical difficulties with the British Bill of Rights, what really worries me is that politicians seem to be willing to utilise the general public’s lack of comprehension of the legal system to make meaningless proposals in a bid to win votes. The British Bill of Rights is unlikely to come to fruition in the near future, but the fact that the very concept was suggested leads me to think that more brash and ill thought out ideas may follow.

In my next post I will be looking at Ken Clarke’s latest proposals, aimed at limiting the role of the Strasbourg court, and how they confirm some of my existing fears.

Unlocking Human Rights law in the UK

I doubt that there is a single person in Britain who has not come across the vague concept of ‘human rights’ in the past couple of decades. However, many of us have no real idea what the objectives of that Human Rights law are and how it really works in practice. It is more important than ever that people understand the strengths and weaknesses of Human Rights law as these issues are going to be debated heavily in the next election and will influence how people vote. In this post, I want to give you a layman’s guide to the Human Rights law in the UK. This should allow someone who does not have a background in law to get up to speed with the outline of how the law works and the main problems which have faced Human Rights law in recent years. It by no means goes into all issues surrounding the complex issues – but should provide a basic framework for forming opinions and understanding the difficulties Human Rights law now faces in the UK.

How is the body of human rights law formed in the UK?

Human rights law in the UK, as we currently know it, was implemented by the 1998 Human Rights Act. It was seen as incorporating the European Convention of Human Rights (signed by the UK and various other European countries in the 1950s) into domestic law. In other words, it made the European Convention of Human Rights legally binding on the UK. Before the Act was implemented the common law allowed judges the discretion to develop concepts pursuant to many of the aims of the HRA on a case by case basis in order achieve justice. But the HRA was the first time in modern British history that recognised rights were written down and had to be considered when the government wished to act.

To whom does the Human Rights Act apply?

Officially the Human Rights Act only applies to actions of the government and the organs of the government i.e. the public sector. In general it cannot be evoked between two private parties, though the courts have found various inroads into this rule. For example, the term ‘public body’ has been used very loosely to include large private companies such as British Gas.

Why was the Human Rights Act an unusual addition to British law?

The Human Rights Act was quite out of sync with the way that English law normally developed. Of course Parliament had passed legislation before but never an Act which would affect every case of government action. Instead of the law developing on a case by case basis judges were suddenly asked to work with a new piece of legislation which would revolutionise public law (and indeed spill into private law as well). Unlike other European countries like France and Germany, the UK does not have a written constitution. As such, implementing the European Convention of Human Rights by way of the Human Rights Act smacked much more of European methodology i.e. having a tangible list of rights the government should strive to protect. How the pre existing common law rights would fit in with the HRA was uncertain.

What exactly do the courts do with the HRA?

The court can either interpret applicable legislation or case law in a way that is compatible with the HRA or declare the act of the government incompatible. In general, the court will strive as much as possible to ‘interpret’ the law in a way that is compatible with the HRA and there are very few relatively few instances where the court has found a piece of legislation incompatible.  Even if an act is found incompatible the courts in the UK still cannot ‘strike down’ acts of government, unlike the Supreme Court in the US or Constitutional Court in Europe. But a decision of incompatibility, while rare, does heavily influence how the government behaves. The prime example of this is Belmarsh – where the court held that anti – terror legislation was contrary to the HRA and the government decided not to proceed with the proposed Act.

How can we understand the main problems facing the Human Rights Act?

It seems to me that there were/are two major problems facing the HRA when it was implemented, and which still have a huge impact today:

(a)    Unlucky timing – terrorism and the HRA

As I have already stated the HRA marked the introduction of a different kind of approach to the issues surrounding human rights and civil liberties. In order to prepare them for this, they were given two years to evaluate and prepare for the Act coming into force in 2000. However, the staggering problems which presented themselves could not have been more unexpected and challenging. The Act was passed by Parliament in a time of prosperity and security, what has been dubbed by many analysts as Tony Blair’s Golden Years -before 9/11, Iraq and Afghanistan. It was an Act passed almost immediately before the British government felt that it had to radically alter its policies to fight a ‘War on Terror.’ To say that this was bad timing is a bit of an understatement. When there is an issue of national security the government need to bypass the normal procedural requirements in order to effectively and efficiently protect its people. Under the HRA, the courts were charged with the responsibility of ensuring that no individual had their civil liberties overlooked so as to protect the public at large. So pretty much exactly when the courts were getting used to implementing the HRA, they had to deal with the toughest of questions. When is it proportionate and appropriate to allow the government to take advantage of the qualified nature of human rights in pursuit of the protection of the majority?

Cases involving terror suspects are always those which critics of the HRA point at to show its faults. They ask why the unelected government should not be allowed to do as it chooses and why unelected judges unnecessarily infringe upon the government’s power to protect its people. We have to remember why the ECHR was signed in the first place. In the wake of WW2 and Nazi Germany we realised that as well as issues of national security justifying the use of extreme measures, they can also be used as an excuse and must therefore be kept closely in check at these times. The argument that voters hold the government accountable by way of their choice in the next election does not hold, as the popular opinions can sometimes be transformed into horrifying and repugnant ideals, as in Nazi Germany, by the exercise of power of the current government and the press. Popular opinion is not enough to ensure that each and every citizen has their basic freedoms protected by the state, enabling them to enjoy life at the most rudimentary level. The courts (to a certain extent) are removed from popular opinion and can play important role in evaluating objectively decisions made by the government, with a clear set of rights to be considered in each instance, as in the HRA, and can draw attention to any issues they may wish to review.

(b)   Interests of the media

Closely related and heavily influential to public consciousness is the press, and in particular the tabloids. The Sun and the former News of the World consistently targeted human rights in the UK, and the Sun still does; with headlines suggesting that our law is now made up of ‘Rights gone Mad.’ However, such publications motivations for doing so are appreciated by too few. There is good reason why the paparazzi want to turn popular opinion against human rights law. The way Human Rights law stands continues to restrict what they can publish and thus costs them money. The Court in Strasbourg has severely limited the content which they are able to print. In the hallmark case of Von Hannover v Germany the European Court in Strasbourg ruled highly in favour of the right to privacy over the right of the media to publish pictures of celebrities. When the tabloids attack the HRA and Strasbourg they are unquestionably tapping into nationalist and highly punitive sentiments which are popular in Britain, and yes, this does help sell papers. But they are also doing something much more sinister; they are driving forward criticisms of the HRA and keeping them in the public consciousness for their own commercial interests.

Why might the British public be led to be suspicious of the HRA?

(a)    More power to the unelected judiciary – this problem is closely connected with the fact that the HRA has a strong European flavour to it. People in Europe are used to the idea that the court is entitled to review actions taken or laws passed by the government, and see it as the court’s right state whether or not such acts are in compliance with the pre existing and authoritative constitution. These countries have had a Supreme Court for this purpose for many years. Here in Britain, this has not been the case. Our founding constitutional principle has been Parliamentary Sovereignty i.e. that the democratically elected law making body makes decisions – with the authority of the will of the people behind them. As explained above, while the court in the UK still does not have the right to strike down acts of government, a declaration that an act is incompatible with the HRA will have a very strong influence.

(b)   The role of the European Court in Strasbourg - Not only do the courts now have a seemingly new found power, what really gave the Human Rights Act bite was the fact that it enabled individuals to not just appeal to a court in their own country – but to the European Court in Strasbourg as well for a ruling. While decisions of Strasbourg are not technically binding on the court in the UK, it has a great influence on how the court will deal with a case - by and large our courts have followed the jurisprudence of the Strasbourg court. That is not to say that Parliament can be said to follow the case law (or jurisprudence) of Strasbourg completely. Recently the Court in Strasbourg has held that prisoners should have the right to vote, whatever crime they have been convicted of. However Westminster have explicitly stated that they have no intention of giving effect to this decision, with Conservative MPs being genuinely ‘shocked and appalled’ by the decision.

I hope this provides a good introduction to Human Rights law and makes the subject seem a bit more approachable. In the next few posts I will consider how all of this relates to our current political situation and why it is important to grasp the basics to understand ongoing civil liberties discussions. At the time of writing this there is such a wide variety of ongoing issues that I am itching to discuss about including the secret court proposals and the deportation of Abu Hamza.

If you have any questions, issues or points of contention with any of the above please write to me! The main thing that this blog is supposed to do is get people thinking and discussing – so reasoned criticisms are more than welcome.