Equality for All: Building Bridges for an end to AIDS
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(Extract from Speech delivered to the Forum for government, civil society and faith-based leaders to launch the St. Kitts and Nevis Human Rights Campaign
Making St. Kitts and Nevis Better: Equality for All)
There is a tendency today to view human rights and equality issues in one of two ways. First, as something from outside of the region – “something being pushed by American and Europeans”, seeking to undermine the fabric of Caribbean society. Second, and perhaps more problematic, there are some of us who are of the belief that there are no real substantive human rights issues impacting our society. Human rights and equality are just not seen as priority issues. We reason to ourselves: ‘Women and girls are fine and are often doing better than men and boys in school; the disabled are fine (we have ramps - don’t we?) With respect to sexual minorities – I was recently told – “St Kitts and Nevis (?) - we hardly have any of those people here! Those we know are fine – they are friends with everyone and no one does them anything. They are not a priority for us; other issues are much more important”.
Both positions, in my view, are extremely challenging. Why? Human rights, that is, rights to which you are entitled just on the basis of being a human being, are not external ideas being pushed on us. Human rights are rights that our ancestors fought for. They are deeply rooted in our collective psyche as black, brown and Creole peoples. We all deeply relate to the right to be treated with humanity and dignity as a people, whether we were brought here to the region as slaves or indentured servants. We fought for freedom from oppression, yet there continues to be segments of our community who have not felt that full realization of human rights such as women, the mentally and physically disabled and sexual minorities. There is still work to be done. There are still priorities to be tackled to make our Caribbean societies better places for ALL people.
I wish to examine the structural approaches to human rights. I then wish and engage in a brief discussion on the role and potential limitations of our constitutional and legislative processes and the major human rights issues impacting our Caribbean societies and our proposed responses. I start by posing some questions that are central to this discussion: Is it fine for some of our citizens, because they are different, to be less entitled to the full realization of citizenship? How do each of us from our various perspectives approach the issue of equality? What value added can we bring to this discourse?
Human Rights & Faith: Twin pillars of nation building
It has become either unpopular or hackneyed to “harken back” to the 19th century colonial era, but at times our historical context is important to remind us of the continual cycles of history. Modern historians: Dr Eric Williams, former Prime Minister of Trinidad and Tobago; Professors Woodville Marshall and Hillary Beckles of Barbados and the Late Professor Gordon K Lewis of the University of Puerto Rico, among others, have carefully documented these cycles. In so doing, they have, inter alia, provided the evidence that during the 19th century, our struggle for human rights and the ending of slavery was a partnership between enslaved people, abolitionists and other faith based leaders. Faith leaders locally and in the metropole raised awareness of the inhumanity of slavery and asserted the fact of “humanhood” and “personhood” of black people, when it was unpopular and even dangerous to do so.
The role of constitutions
The constitutional history of many Caribbean countries demonstrates this dual relationship between faith and governance. For example, in 1983 The Federation of St Christopher and Nevis became an independent Commonwealth State. The Constitution of Saint Christopher and Nevis states:
WHEREAS the People of Saint Christopher and Nevis-
a) declare that the nation is established on the belief in Almighty God and the inherent dignity of each individual;
b) assert that they are entitled to the protection of fundamental rights and freedoms;
c) believe in the concept of true democracy with free and fair elections;
d) desire the creation of a climate of economic well-being in the context of respect for law and order; and
e) are committed to achieve their national objectives with a unity of purpose:
NOW THEREFORE, the following provisions shall have effect as the Constitution of Saint Christopher and Nevis:-
These phrases taken from the Preamble to the constitution, stress
- the belief in Almighty God is central to the foundation of this nation
- the inherent dignity of each and every individual
- ALL are entitled to protection of fundamental rights and freedoms
- respect for law and order
This is also the case for constitutions across the English-speaking Caribbean and they have been pivotal in consolidating the institutions of the newly independent states – Parliament, Police, Defence and Security and Judiciary. In so doing they guarantee, at least in principle, our right as citizens to be protected against the powerful force of the state. However, these most remarkable instruments of our constitutions have confounded us on the issue of economic, social and cultural rights despite the language in the constitutions themselves. The question is why?
Simply put, in the pre-independence era in which our constitutions were being created, we were preoccupied with negotiating new states and we were desperate to change and emerge from our colonial past. Yet for continuity, we were cautious and careful to preserve our colonial heritage, as much as possible. Hence our prevailing cultural and religious norms, language and education shaped and formed our new governments. We created what we knew, what we could contextually negotiate and what our people and nation builders were comfortable with. So our constitutional focus has been on national development, preserving stability, continuity and securing our place in the world. In this respect, our constitutions rely on parliamentary legislators and an independent judiciary as the guardian of our human rights. Citizens freely elect their government and rely on the fairness of the judicial system at the national level, and through final courts of appeal such as the Privy Council and the Caribbean Court of Justice. Reflecting on our development across the region, despite the constitutional primacy given to faith, the role of the Church in the human rights agenda has not been fully articulated in our national discourse, and this is deserving of exploration. Despite current efforts to re-colonize the Church’s agenda, in Latin America and in Africa, the Church has historically been a powerful force for change with “liberation theologies” being an example. The Church here in the Caribbean has historically seen itself as contributing to nation building through schools, hospitals and other social and spiritual support to individuals. The work of the parliamentarians, judiciary and legal profession in partnership with civil society actors has largely carried the human rights issues we have made progress on.
Unfortunately, our constitutional jurisprudence has been extremely slow to respond to the promise inherent in our constitutions. Across the region, the words identified in the preamble of the constitution have been found by the Courts to be superfluous. Some legal minds have reasoned that these words (which affirm the very essence of our society: affirming faith, human dignity and protection) are unjustifiable. Some judgements suggest preambles are of no effect; in other words, you cannot use them, you cannot sue and seek redress for violations of your economic, social and cultural rights contained in the preamble to constitutions because they are legally unrecognised by our judiciary. Yet these are rights, including the right to health, the right to education and the right to work that must be protected. This narrow interpretation of constitutions combined with the seemingly insurmountable role of constitutional clauses which preserve previous colonial laws around buggery, vagrancy and loitering, for example, provide for continuity and have seemingly made a mockery of constitutional jurisprudence. Therefore interest among the legal profession in pursuing public interest and social justice cases has been slow. Male and female commercial sex workers who are street based are still held for loitering or vagrancy under provisions of the law, dating back to colonial times and the desire to regulate where people operate.
Academics such as Simeon Macintosh and others have found these “saving law” clauses which keep old laws in new constitutions, as inherently contradictory and have implored the judiciary to move beyond them. It is only a matter of time before an interesting case emerges that provides the opportunity to move on some of these issues. In other Commonwealth jurisdictions such as India, preamble statements have been used to ensure that the interpretation of its constitution is more relevant and meaningful in addressing contemporary issues. The engagement of the judiciary in the human rights agenda is an important element in the movement towards achieving equality for all.
This is also a call to action for the legal profession to identify deserving social justice/public interest cases and for the judiciary to realize the full potential of the constitution as a living instrument of social change.
The role of legislation
As an eternal optimist, I am completely unflappable in my belief in the potential of our judiciary and legal advocates. In contrast, for others, this shared optimism is tempered with pragmatism and a philosophy that constitutional jurisprudence is an unreliable basis for achieving social justice in a timely and efficient manner. In other words – you have to get the right cases, have the time and resources to pursue them, as often deserving claimants have no resources. You then have to play the judicial lottery. Will you find a judge or Court prepared to move the law along so you hit the jackpot?
Pragmatists (or optimists with insurance) suggest that alternate approach to addressing human rights issues beyond litigation is to rely on the Government to bring pieces of ordinary legislation and policies to advance human rights and equality. In recent times, laws across the region have ended bastardy for children out of wedlock and the Equal Pay was recently passed. These are examples of legislation that Governments have brought to advance the human rights and equality agenda of women and children. The process of developing legislation is usually more engaging of and responsive to community stakeholders. In advancing legislation, Governments provide collaborative leadership in protecting and promoting the rights of citizens. Ministers, together with unheralded leaders – our bureaucrats and technocrats – could move an agenda forward through legislation. Human rights and equality issues are legitimate concerns for which the Church, Judiciary, Government and key stakeholders must take action.
Social Consciousness and Moral responses
Working in the HIV arena, we need to recognise that other groups in society also have a common interest in human rights. For example it is recognised that women and the disabled have been struggling for equality. Recently knighted Dame Suzette Moses-Burton of St. Maarten declared, in 2010 at a PANCAP/UNAIDS/UWI Symposium on HIV and Human Rights, that as a PLHIV she had come to the recognition that the human rights needs of HIV positive persons are the same human rights needs of all persons. Human rights are rights of all persons regardless of race, gender, sexual orientation, and disability.
Within PANCAP we have been calling for an end to HIV exceptionalism – where our concerns rest only with the human rights needs of People Living with HIV and other vulnerable communities denied access to prevention, treatment care and support. There is increasing recognition of a broad human rights and equality agenda that must be pursued across the region. Making our societies more tolerant and making equality for all the focus of our efforts, will provide an enabling environment and promote access.
In relation to the needs of women, I am aware that St. Kitts and Nevis is committed to implementing the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) and has recently passed supportive legislation. This country and its Minister of Health the Hon. Marcella Liburd is to be commended for its recent passing of the Equal Pay Act. This legislative intervention is a major stroke for advancing the rights of women.
In an effort to accelerate the region’s approach to human rights through legislation, PANCAP has developed model antidiscrimination legislation which is designed to provide guidelines that countries may wish to adopt. The legislation focuses on regulations designed to eliminate discriminatory acts such as abuse, vilification, isolation against persons on the basis of HIV status, gender disability and sexual orientation and other grounds. It provides approaches to guarantee access to health and educational institutions, clubs and societies and other private spheres. It establishes that responsibility to eliminate discrimination is not only that of governments but also of private entities, NGOs and individuals. This model legislation also calls on countries to identify redress for a broad range of discriminatory issues.
The need for dialogue
In developing the model legislation, it was recognized that countries in looking at their legislative agendas had to factor whether they were prepared to lead or follow public opinion. There is a role for both approaches.
In some instances, policy makers may wish to reflect national consensus for social cohesion. In other instances, depending on the social good being promoted, policy makers may wish to lead and shape consensus. Tobacco legislation and civil rights legislation are good example or where government has had to lead to promote changes.
Sometimes national consensus could be wrong and history is replete with examples where national leadership has been required to move deeply rooted position, for example ending the “bastard” child.
In many cases a social dialogue is essential to ensure that ideas contend to form part of the evolving policy framework.
The willingness of a society to engage in dialogue represents a phase of maturing and deepening of democracy and recognizes that in today’s environment there are high levels of social literacy. By this I mean the ability of persons to navigate their world and the issues around them.
In some countries, local and international civil society has led efforts to enhance legal and social literacy, raise awareness of existing rights and redress and promote law reform or new legislation where necessary. PANCAP and its partners, UNDP and UNAIDS, have worked with Parliamentarians to remove certain issues from partisan discord. This, it is hoped, will give Government the flexibility to engage with the political Opposition on the development of key legislation. Building political partnership is not idealistic – it is already occurring in some countries in this region such as Barbados and I am very hopeful about St. Kitts and Nevis from my discussions here with various actors.
Neither is it idealistic to believe that the faith-based community could provide key leadership on issues. Asking the Church to change its position on the morality of homosexuality is deeply problematic. But what if you asked the church to examine the facts and craft its own response grounded in Biblical principles. Like the Abolitionists of old – the Bible can be a force for societal change.
The facts are – sexual minorities in some countries face violence, abuse and vilification. Some economically marginalized women engage in sex work (on the street or in clubs) or transactional sex. They do this as a means of feeding their families, but are outcasts because of their lifestyle. What if the church was to be made aware that at-risk communities such as MSM are not accessing HIV care and treatment because of the expressed attitudes of health care providers many of whom sit in their pews? What if they were told that because these vulnerable persons feel so scorned by society they do not present for HIV services until it is too late? The Church will respond and has responded.
For example, the Caribbean Conference of Churches has produced Guidelines for faith leaders on HIV and Codrington College in Barbados for the Anglican Diocese has included HIV awareness as part of its pastoral care programme. Many persons of faith are beginning to stand up ion places like Jamaica as being against violence, abuse and discrimination against all persons.
Tolerance does not have to mean acceptance. It means, however, provision of a space for doing the “Jesus walk” – engaging with the marginalized down trodden and alienated – for winning souls and transforming lives not through judgement but through love. Doing nothing is simply not an option.
The St. Kitts and Nevis constitutional development embraced belief in Almighty God as central to development. The faith communality has to be part of the process of creating solutions which realize the promise of our constitutions.
Building consensus at community level
PANCAP, the organization I represent, is intricately linked with St. Kitts and Nevis. PM Douglas was one its first architect and has remained its Chair. PANCAP has worked steadily over the past 11 years to support the SKN national HIV programme at the Community level. Through the pooled procurement system (PPS), ARVs were provided to the OECS as a result of PANCAP’s negotiation with Brazil which was led by PM Douglas for the entire OECS. More recently, PANCAP has bought life saving medications through Trinity Global and our CARICOM based Global Fund Round Grant. We are doing outreach and capacity building with women and girls through UN Women, the Caribbean HIV and AIDS Alliance (CHAA)(SISTA) project, and the Regional Stigma and Discrimination Unit.
The special consultation planned in SKN for World AIDS Day in December, is intended to bring together social partners, including representatives of FBOS, youth and media, to discuss the accelerated agenda for human rights with a view to eliminate stigma and discrimination. This event in SKN is supported by both government and opposition. It is also happening throughout the Region and augurs well for the proposed solutions that have emerged from the community consultations. It is important for the region to see the leadership of the people of SKN on issues of social justice which our forefathers struggled to attain.
In this discussion, I have sought to place human rights within the context of our social development and to demonstrate its basis in the Constitution. Though not being a theologian – I have sought to incorporate an appreciation on how the Bible and people of Faith can contribute to the discourse. It is self evident that the sustainability of our society must be supported by a collective will to stamp out discrimination and to enhance our dialogue on human rights. There are groups within the society who need to feel the promise of equality captured by the constitution of SKN. I look forward to hearing more on your discussions and see the bridges that you will be building to the future.
Juliette Bynoe-Sutherland is the Director of the PANCAP Coordinating Unit
This article is an excerpt of the presentation by Ms. Bynoe-Sutherland to the Forum of Faith-based leaders which is part of the St. Kitts and Nevis Human Rights Campaign Making St. Kitts Nevis Better: Equality for All.