Thursday, January 14, 2016

Opportunities&Challenges:Belize's Country Coordinating Mechanism

Posted 14th, January, 2015


May, 2016 will make it 10 years, that UniBAM has been investing in advancing its policy and advocacy priorities. It has built, its legal capacity through the University of the West Indies Rights Advocacy Project, in hiring Senior Counsel Moore to do its LGBT legal review in 2010 on the civil and socioeconomic concerns of LGBT population. It has partnered with Northwestern University, the Michigan Law Clinic to draft briefs for cabinet and in doing legal assessments of particular sections of the law.  Internationally, is has submitted two shadow rights for the Universal Periodic Review of 2009 and 2013 and the International Covenant on Civil and Political Rights while submitting a request for thematic hearings at the Organization of American States in 2014.It has found resources to facilitate its international engagement e on its own terms and leverage that experience for national engagement.














 In 2009, the Belize National Report for the Universal Periodic Review, a reporting mechanism created at the UN to report on a country's progress on human rights, has heard two Belizean National Reports-one in 2009 and one in 2013. The National Report of 2009, spoke of The National AIDS Commission as an Interim Human Rights Commission,  surprising language when given context.  This is important when one looks at the Global Fund 2015 project and module 7 which attempts to deal with removing policy-barriers. In addition,in 2016, Belize got approved a Global Fund Grant with allocated funding for $3,359,024us.Year one has been confirmed with a disbursement of $1,887,349.00us.

The last CCM in December engaged the review of Module 7 as a draft module, which spoke to seven activities that is suppose to address the removal of policy barriers. What can be noted of the activities was its collective attempt to design non-judicary mechanisms to address discrimination while trying to address actual legislative efforts at finalizing the NAC legal Review. Interestingly enough, the PANCAP model Anti-Discrimination Legislation was used to inform partially the NAC Legal Review.

We know from experience that the the 2013 criminal code amendments took over 5 years while the NAC legal Review has been going on since 2008.When the litigation work of section 53 started, it started in 2008 and took another 2 years to reach the Supreme Court. The process, itself, is advancing to its eighth year. When framed in the context of the Belize Country project for Global fund timeline of three years-January 2016  and ends in 2018. The timeline alone points to the challenge of  actual legal reform for the Global Fund project will finish before parliament actually approves any law. It must be noted that the project timeline challenges the system to find the resources to complete the process in a comprehensive manner. The question remains will it? and How comprehensive is the new effort going to be?


The CCM structure that the Global Fund promotes, does offer key population representation at the table, to be informed of resources and activities,  and acts as a monitoring structure in the implementation process of both resources and activities. The challenge for key population, is that it must recognize the limitation of the structure. It should recognize while its civil, political and socioeconomic rights concerns can be expressed, it is the will of the majority members that will prevail. A will that is tainted by suspicion, misplace perception, limited analysis of engagement and concerns about what the political power brokers will accept in legislation. In essence the CCM becomes a gatekeeper against the concerns of rights-holders, especially, key populations. 

In practice, it is willing to ensure non-controversial things like access to medication-ARV's, prevention commodities, HIV prevention education and testing. This practice, extends itself as well to policy-action to the detriment of key population concerns about rights, discrimination and violence. As such the NAC/CCM tends to leave the burden of rights defense and protection to key population building its own leadership, legal and political capacity to engage political leaders.

The result, UniBAM launch its litigation challenge to section 53, submitted three shadow reports to IN international human rights systems, helped to facilitate or influence the development of Trans leadership as an a organization called TIABelize, supported the development of PETAL which as a Lesbian and Bi Sexual women focus, EYBM and BYEC which has a Youth focus, Our Circle, which has a family and community service focus and Tikkun Olam which has a general sex worker focus.  NAC/CCM multi-sectoral response has not, as a priority for developing key population leadership legal and political capacity to advocate in their specialized area to advance the principles of human rights. The NAC/CCM remains a great convener in facilitating institutional communication.





What we recognize is that while the NAC/CCM offers a structure to engage and dialogue on issues of socioeconomic, civil and economic rights that can be leveraged by key population to educate key persons in influential positions about rights concerns without cost. In addition, it offers an opportunity to map allies, opponents and persons in neutral positions or it can act as a monitoring structure to evaluate the policy environment. Representation at the table  has a value that, is only limited by the advocates vision of  action and substance from the NAC/CCM.
Whether it actually is a structure to stagnate rights enforcement and protection mechanisms for key population remains a question to be answered in time. We know that its a child of the state and acts as an institutional screener to minimize rights-holders from advancing the substance of their concerns. It remains a political mechanism that supports the will of the majority at the expense of rights protection concerns of the minority. Its response is generally telling of its conservative commitment to key populations. The use of generic language in strategic planing documents to help facilitate political endorsement and in taking strong public positions on rights base on sexual orientation and gender identity and sex work are two examples of a minimalist approach to rights-holders concerns. Furthermore, it tends to offer justifications that scuttles the advancement of rights beyond the unwritten rule of what the will of the majority is willing to offer. In essence, maintaining the status quo!
Currently, the NAC is in the midst of revamping its legislation to incorporate the CCM into law and calls for a LGBT/MSM/Sex worker/IDU representative in its first draft of the list of representation who can  be on the NAC/CCM. We will be asked to have a mechanism in place to have elect representatives to the CCM. It is not clear, however, if the NAC/CCM will cover the expense of carrying out such a process. A process, that forces key populations to find its own path in scaling-up its political capacity and engagement, as the NAC/CCM may not be the place that will encourage such a process in the multi-sectoral response. From experience, the response will build the administrative skills of key population to monitor and evaluate to support the national response, but will not be very clear, in its support to advance the internal capacity needs of organizations still developing as non-governmental organizations. The result, we systematically collect information differently.
We have seen in sex work how Tikkun Olam looks at contraceptives, abortion issues, sexual and physical violence, emergency care for sex workers families and human trafficking, but the multi-sectoral response, simply focus on testing and providing condoms. In addition, UniBAM, has looked at barriers to Sexual and Reproductive health services, policy barriers through its legal research specific to LGBT population as well as sustains research and documentation into discrimination and violence issues experienced by its population. Though they tried, we have seen our Ministry of Health failing, at its first attempt, to do research with men who have sex with men, even loosing the results after the 2005 study and eventually completing one study on MSM prevalence rates. No study within the system has looked deeply enough into how violence and discrimination in the community impact health seeking behaviours while seeking HIV tests. No study have looked at how socio-economic, civil and political rights help to isolate the populations, socially, and promote exclusion institutionally. No study, has looked at couples relationship and its vulnerability to the lack of protection. In simply term, no study has examined the link between lack of protection in the promotion of vulnerability and effects on self-determination.

Outside of this analysis, the system, recognizes that it has challenges and have people working behind the scenes to navigate the environment in dealing with the politics of rights along with the substance. They are open to conduct engagement meetings and provide information in a timely manner to help to facilitate institutional knowledge of the Global Fund project. They are open to consultation and helps to translate social experiences into language that the Global Fund understands in responding to the rights concerns of Key populations.  
Key populations opportunities, is in using information collected to build support, to conduct political prep work outside of the NAC/CCM system with the political directorate that includes the Ministry of Foreign Affairs which is charged with human rights response. It can do engagement work with diplomats, with international human rights institution and ultimately with the communities affected by discrimination and violence. Additional opportunities, requires key population to collect its own research that it considers important and to circulate that knowledge in reports to the system in small chunks, to blog it for its communities or to archive it to support institutional reviews and academic research.

Furthermore, when we understand the limitation of the NAC/CCM, the policy processes and who are the power brokers, that knowledge, has the ability to shape how reform is advanced in the system. Key populations representatives lack of power,  is not in numbers, but how its scales-up its understanding of  the political environment, conduct strategic engagement, community and political engagement approaches.  In the end, this article, offers the reader only one prospective into advocacy dynamics of the the reform process. The Belize NAC/CCM, while not a perfect system, offers key population the chance to speak in a space that can facilitate a shift in political tone. Sometimes, in any system, it becomes the foundation that helps to shift political tone to substance. Not an impossible task in the advocacy process.

 



 

Tuesday, January 12, 2016

State Policing Our Bodies: LGBT, constitution and Belize Law

Post 12 January, 2016


We have never assessed Belizean law, what the constitution of Belize says about discrimination nor how current laws maybe inconsistent with the constitution. While the blog is about LGBT relationship security, it offers readers the opportunity to reflect about the implication of how the state tries to police the bodies of its citizens, in addition, legal penalties against citizens to comply with it's intent of securing public morality. An intent that is systematic, in denying women the right to use their bodies as they wish in sex work and  in general reproductive decisions; denying young people information to prevent pregnancy and general sexually transmitted diseases; the legal protection to found a family as same sex couples do not have the option of registering their parental rights as a couple; choice over health decision and forcing same sex couples to incur extra cost- in terms of acquiring power of attorney and making wills when succession of estates do not acknowledge the basic dignity of same sex couples common-law unions in the administration of estates.
 

The Constitution affirms in its preamble that Belize is founded upon the Supremacy of God, faith in human rights and fundamental freedoms, the dignity of the human person, and the equal and inalienable rights of all members of the human family.[1]

The Preamble reads as follows:

Whereas the people of Belize (a) affirm that the Nation of Belize shall be founded upon principles which acknowledge ... faith in human rights and fundamental freedoms, ... the dignity of the human person and the equal and inalienable rights with which all members of the human family are endowed by their Creator; ... (e) require policies of state ... which eliminate economic and social privilege and disparity among the citizens of Belize whether by race, ethnicity, colour, creed, disability or sex; which ensures gender equality; which protect the rights of the individual to life, liberty, basic education, basic health, the right to vote in elections, the right to work and the pursuit of happiness; which protect the identity, dignity and social and cultural values of Belizeans, including Belize’s indigenous peoples; ... the establishment of a just and equitable international economic and social order in the world with respect for international law and treaty obligations in the dealings among nations[.]


In addition, section 16 of the Constitution further underscores the law’s commitment to anti-discrimination in law and practice. The Section provides:-

(1) Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect.

(2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person or authority.

(3) In this section, the expression “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by sex, race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.


Furthermore, section 6 of the Constitution also recognizes the equal protection of all citizens before the law. The Section reads:-

 “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”
 
We know as well that section 3 speaks to a categories of rights in which framers acknowledges the diversity of the environment under which Belizeans live. Section 3 speaks to the following:
 Whereas every person in Belize is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely-
(a) life, liberty, security of the person, and the protection of the
law;
(b)freedom of conscience, of expression and of assembly and
association;
(c) protection for his family life, his personal privacy, the privacy
of his home and other property and
recognition of his human
dignity
; and

 
(d)protection from arbitrary deprivation of property

We know that fundamental rights in the constitution applies to all because no where in the preamble does i speak to except L.G.B.T person. When we look at the ruling of Toonen vs Australia, we see sex extends to or is inclusive of sexual orientation.  Of note, we see that  in 2001 the preamble was modified to speak to gender equality which implies implies an even more expansive interpretation of the protection; arguably one that extends beyond biological sex identification of males and females to include sexual minorities.  
Ideals of the constitution, however, do not match  the indent of the constitution in  subsidiary laws. In a way subsidiary laws operationalise the constitution, but in a vacuum where political and legal engagement is absent on LGBT issues and more broadly on a person right to bodily integrity, the lack of systematic monitoring and institutional research have created a system of penalisation, cultivated a system of exclusion that have affected countless generation.
When we look at our Administration of Estate Act, it seems to counter to the ideals of the very constitution, "no person shall be treated in a discriminatory manner by any person or authority," for The Administration of Estate Act, speaks to a wife and husband, but does not acknowledge other person in consensual common-law relationship and their place in the governance of succession.
The Administration of Estate Act, Cap 197 of the Laws of Belize, RE 2000-2003, § 54 (1)  speaks to the residuary estate of an intestate shall be distributed in the manner mentioned in this section, namely-
(a)     if the intestate leaves a wife or husband, with or without issue, the surviving wife or husband shall take the personal chattels absolutely, and the residuary estate of the intestate, other than the personal chattels, shall stand charged with the payment of a net sum of six hundred dollars free of costs to the surviving wife or husband....
       This differential treatment is further enhanced or clouded by the Supreme Court, Judicature Act, Cap 91, Laws of Belize, RE 2000-2003 section 148:01 in its definition of a common-law relationship, speaks to"spouse," "himself" and word like,"a party" and "union" The Supreme Court of Judicature Act of 2003 section[2] 148:01 provides for common law relationships and defines “common law union” or 'union.' The section speaks to, "A party to a common law union shall have the same rights as a spouse to a marriage, in respect of himself ..." but does not speak to defining spouse or reference any interpretation to surrogacy as part of that union in the birth of children or the existence of same sex relationship that have existed for 5 years or more. The lack of clarity opens itself for legal interpretation. 




Section 5 of the Immigration Act Chapter 156 of the Laws of Belize reads as follows:-

5.-(1) Subject to section 2 (3), the following persons are prohibited immigrants-
           
(e) any prostitute or homosexual or any person who may be living on or receiving or may have been living on or receiving the proceeds of prostitution or homosexual behaviour;


Does this mean that a same sex married couple in another country, one Belizean and one Foreign should accept the dignity of their relationship be DE-legitmized and torn apart by the immigration law that bars homosexuals from entering the country. Even, as a matter of policy the Immigration Department does not pry into the private life of a person, the mere presence of the law, though helps to support systematic discrimination in practice.




Amazingly, when one looks at the Constitution at section 26 accepts applications to be registered citizens of Belize from any person who is married to a citizen of Belize, and, any person who has been resident continuously in Belize for five years. When we consider that the law treats common-law unions in the timeline of five years and when one looks at section 26 below which speaks to any person who is married to a citizens of Belize and when one looks at the ideals of our constitution, especially, section 16(3) and 134(1) it amplifies the notation that our subsidiary laws are  have become inconsistent with our constitution and with each other. It challenges us to ask question about which State mechanism is monitoring or working to correct these inconsistencies.



Section 26(1) speaks to
 The following persons may, upon making application at any time after Independence Day, be registered as citizens of Belize –

(a)     any person who is married to a citizen of Belize;

(b)     any person who has been resident continuously in Belize for a period of five years immediately before the date of his application. 


When one adds reflection on the state attempt to police the bodies of is decision, one only need to look at section 53 of Belize's criminal code chapter 101 of the laws of Belize which speaks to the following:


 Every person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for ten years.

When we add the discussion about creating options like safe abortion. Section[3] 127 of the Criminal Code provides for the medical termination of a pregnancy in saving the mother, it will cause injury to the mother physical or mental health. If it would cause suffering of the child base on mental and physically abnormalities. In that same section, if the baby his healthy  and abortion is induced deliberately, it changes the tone of the law and that person would be guilty of an offense. The question here is, can a person simply have an abortion because of rape, incest,is too poor to care for another child? and who determines the emotional impact of caring for the child when the state does not provide sufficient options.

When one looks at access to HIV testing for young people and access to contraceptives, we see the requirement for parental consent in practice by state institutions, we see certain schools allowed to censor health information that could inform students better about their sexuality.

When we speak of sex workers, they can  giveaway their body for free, but the benefiting from earnings and storing earnings in a bank is met with suspicion and resistance, however,monies earned by sex workers can be acceptable if they are domestic workers. Their right to work and economic selves reliance is met with suspicion at the bank, their right to work has no recognition and access to social security, is challenged by the non-traditional nature of their earning. Moreover, if  a foreign sex worker has experienced rape or violence, but have an immigration problem, the law discourages a sex worker from getting justice in court, through deportation, the consequence, violence and discrimination ultimately follows her.

In discussing Belizean law and the constitution, one discovers that independent legal monitoring mechanism are non-existent. The onus is left on citizens to find the resources to correct laws that affect them, the state, of course will counter in the protection of the existing law. As evidence, we see the immigration law defense for Belize at the Caribbean Court of Justice and we see a defense put up against section 53. We see as well that the state has no clear roadmap in reducing the policing of its citizens bodies, for it has no monitoring body to provide guidance. The result is indifference towards correct the inconsistency in law, a practice that remains unchanged since 1981.






Source:
[1] Chapter 4 of the Laws of Belize, Revised Edition 2000, pp. 2-3.


[2] Supreme Court of Judicature Act, Cap 91, Laws of Belize, RE 2000-2003, § 148I: A party to a common law union shall have the same rights as a spouse to a marriage, in respect of himself or the children born out of the union, if any, to apply to the  courts, either during the subsistence of the union or upon the separation of the parties to the union, for maintenance, and any law nor or hereafter in force in relation to maintenance in respect of spouses to a marriage shall, upon the commencement of this section, apply, with the necessary modifications, to a party to a common law union.

[3] Criminal Code, Op. Cit., §112, 127: 112.-(1) A person shall be not guilty of an offence under the law relating to abortion or miscarriage when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith-
(a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated; (b) or that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. (2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in subsection (1) (a) account may be taken of the pregnant woman's actual or reasonably foreseeable environment.

§127.-(1) The crime of causing abortion or miscarriage of a woman can be committed either by that woman or by any other person, and that woman or any other person can be guilty of using means with intent to commit that crime, although the woman be not in fact pregnant.
(2) The crime of causing abortion can be committed by causing a woman to be prematurely delivered of a child with intent unlawfully to cause or hasten the death of the child.