I attended the Yale Law School Doctoral Scholarship Conference held between November 30 and December 1, 2012. The conference brought together graduates students from law schools and faculties across the world. Its theme was “Conflict and Collaboration: Interrogating the Role of Law in Building Solidarity.” I made a presentation in which I applied insights from Pierre Bourdieu’s “habitus” to frame a sociological understanding of the impact of legal education, professional training and socialization on lawyers and judges in post-colonial human rights adjudication in Commonwealth African countries. The traditional formalistic view of adjudication holds that in resolving individual cases judges are constrained only by rules and doctrine applied to specific factual situations. These factors are therefore conceived as being internal to the field of law and adjudication. According to this model, law is obsessed with ineluctable rules, principles and axioms. According to Edward White, “judges began their decisions by making verbal distinctions, [and] defining concepts in useful ways. They then pronounced their definitions as axiomatic. From then on it was a rush downward to the result: the axiom was applied to the facts of the case, certain things ‘inevitably’ followed.” However, Bourdieu’s concept is critical of the above theory and proposes a different framework. He suggests that judges are constrained not by exogenous rules or doctrine external to their own attitudes, but are ideologically prompted by the pressures of the legal habitus. To that extent, the constraints on adjudication are rather internal to the judges. They are expressed and become manifested by way of endogenous attributes, (which according to John Elster are “second order attitudes”). These attributes grow from within judges through educational exposure, traits acquired through professional orientation and socialization as well as those from training and experience. Using comparative examples from three Commonwealth African countries – Ghana, Malawi and Nigeria – I argued that in these jurisdictions professional habituation provides a better account of human rights adjudication than do doctrines, rules and constitutional texts. The transposition of British laws and systems and consequential displacement of the cultures and traditional dispute resolution processes of the colonized in these countries is very well noted in the literature. What is less elaborated is the extent to which the impact of these colonial structures and systems has endured well beyond the termination of the pure colonial experience. The paper’s central argument therefore was that the orientation of the courts in these three jurisdictions in human rights decision-making is likely more a function of the pressures of the legal system to which they have been habituated through education and professional socialization than the constraints of rules and doctrine. I was able to expose the continuing influence of colonial common law principles on clearly non-common law constitutional questions especially in the resolution of human rights complaints. My presentation showed that judges, lawyers and scholars all share a measure of responsibility for this situation which has retarded the effective use of domestic constitutional guarantees in the countries studied to protect human rights and limit governmental power. This led me to propose solutions that could ameliorate this dynamic. While there may have been need in the past to inculcate comparative elements into the teaching and study of constitutional law in the targeted African countries, that need is now totally urgent and ever more critical. Opening up the legal education curriculum to comparative constitutional adjudication and praxis would highlight flaws inherent in the current pedagogical approach in these countries that is heavy on common law concepts and doctrine. This would go a long way towards altering the institutional structures of the current legal habitus and enabling a reformed one. But reformation of the legal curriculum would take time to produce expected results. In the short term therefore, on-the-job judicial training programs should take on board the challenges of creating a new habitus in designing modules for this area of the law. It was a most exciting and beneficial experience for all those who attended.
Sunday, September 16, 2012
Thursday, August 23, 2012
In a recent report which first appeared here in the Open Society Foundations website, Richard Lee examined the decision of the SADC member states to kill its Tribunal’s individual human rights complaints mandate. According to Lee, "[Leaders of the Southern Africa Development Community (SADC) took a momentous decision in Maputo over the weekend—to shut the doors of the SADC Tribunal, preventing the region’s citizens from seeking justice for human rights abuses. The shocking decision, which was taken at the annual summit of SADC Heads of State and Government in Maputo, not only left the tribunal in limbo but also rendered it completely toothless by denying individual access to the court. “The decision to deny the region's inhabitants any access to the tribunal is astounding and entirely without any lawful basis,” said Nicole Fritz, Director of the Southern Africa Litigation Centre (SALC). “Civil society groups were worried that SADC leaders would conspire to weaken the tribunal but this is far worse than we had feared. SADC has destroyed it.” The summit's final communiqué explains that SADC leaders have “resolved that a new Protocol on the Tribunal should be negotiated and its mandate confined to interpretation of the SADC Treaty and Protocols relating to disputes between Member States.” The original tribunal protocol made it clear that individuals also had access to the court. In fact, all previous cases heard by the tribunal had been brought by individuals. “The decision flies in the face of the recommendations of both the SADC-instituted review of the tribunal and SADC's own Ministers of Justice and Attorneys General,” said Fritz. “It is also completely at odds with the best practice of other regional institutions and undermines the protection of human rights and hopes for future economic growth and development.” The SADC Tribunal has been defunct for the past two years after SADC leaders demanded a review of its powers and functions, following a series of cases in which it had ruled against the Zimbabwean government. Despite a campaign spearheaded by legal bodies, civil society organizations, and individuals such as Archbishop Emeritus Desmond Tutu, SADC’s leaders decided not to the revive the tribunal immediately and to ensure that in future it will be little more than a shell. “Our leaders have shown their contempt for all of us in southern Africa and for the rule of law,” said Fritz. “Not only did they deny the region’s citizens access to the tribunal but member states almost never bring legal cases against each other so the court will be a complete waste of taxpayers’ money.”]"
Friday, August 10, 2012
|Saif al Islam Gaddafi|
It is not often that African governments and the continent’s civil society groups agree on any issue. Both sides are most times at loggerheads. African governments, it is trite to state, are hardly the best advertisements for responsible political leadership. That is the reason its extensive natural resource endowments have done little to stop the continent lagging behind all other regions of the world in developmental terms. But the International Criminal Court (ICC) is already changing all of that. It is pressuring Africans, government and civil society alike, into an uneasy coalition of forces. This coalition believes strongly and with justification that the ICC is upon a worn stereotype. They say the court is traveling a bombed out route. Along that route is a conspicuous sign with as clear a message as daylight which is that bad things happen only in Africa. While there has always been and might continue to be challenges in Africa, the ICC has apparently landed the continent at a crossroads of a different kind. A court established for the highest values and best intentions (that of bringing the worst war criminals and human rights violators to justice) is seen to be openly victimizing Africa and redefining the very idea of global criminal justice. All current cases at the ICC involve African countries – Cote D’Ivoire, Libya, Central African Republic, Darfur in Sudan, Democratic Republic of Congo, Northern Uganda and Kenya. The court also claims to be examining different situations in countries such as Afghanistan, Chad, Colombia, Georgia, Guinea, Honduras, Nigeria, the Occupied Palestinian Territories, and the Republic of Korea. But only a few Africans are taken in by what seems to be the afterthought of examining situations outside the continent. The statistics that count are far more poignant. Earlier this year, Thomas Lubanga Dyilo of the Democratic Republic of Congo became the first individual ever convicted by the ICC of war crimes for enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities in the DRC between September 2002 and August 2003. More of such indictments involving citizens of the DRC are still pending at the court. Last year the ICC’s pre-trial Chamber issued warrants of arrest against the late Libyan leader, Muammar Mohammed Abu Minyar Gaddafi, his son Saif Al-Islam Gaddafi, and Abdullah Al-Senussi, Director of Military Intelligence, for alleged crimes against humanity (murder and persecution) committed in Libya from 15 February until at least 28 February 2011. There is also currently a pending global warrant for the arrest of Sudanese leader, Omar Al Bashir for alleged crimes related to the Darfur crisis. Besides the situations referenced above in which the court claims to be looking at events in some countries outside Africa, the roll call of those either already indicted or facing the court’s indictment process show a troubling picture for equality before the court and the credibility of its procedures. There is a strong, justifiable feeling among African political leaders that the ICC is biased against the continent. And nothing better illustrates this feeling than the difference in international response to the analogous Libyan and Syrian crisis situations. Bashar Assad has by far exceeded whatever crimes may have excused the indictment of Gaddafi, his son and chief spy. Yet the same international community that acted with some urgency on Libya has simply not shown up in the case of Syria. No system of justice survives such blatant discrimination without forcing its legitimacy to the surface. While one is not excusing the atrocities of Gaddafi, Lubanga or Bashir, yet the processes of international accountability for crimes against humanity must go round all those whose actions merit them. Significantly, the major global powers that should have their weight firmly in support of the ICC have chosen to operate outside its jurisdiction. Yet the court has remained attractive to Africans only because accountability procedures at domestic and continent-wide levels are either lacking or inefficient. And this is the core of the continent’s dilemma. Are victims of atrocities in Africa to be left without justice? Or should a discriminatory international system be relied upon even where its methods merely reinforce anti-African stereotypes? In my view while non-justice is unacceptable, discriminatory justice sinks to that same level.
Thursday, July 5, 2012
|Picture of the “Wailing Wall” To the extreme right is tower of the Al Aqsa mosque|
I have just completed a two-week visit to Israel. When it became ever so likely that I would make this trip, I had coined a mantra to underscore its essence to both my career and faith. The words I used were: two birds, one stone. By this, I was expressing a resolve to kill two birds using a single stone in the course of my visit. The major reason I was in Israel was to attend the AGORA (the Greek word for an open place of assembly), a yearly summer workshop program that brings together doctoral students from up to ten member institutions of the Association of Transnational Law Schools (ATLAS). This year’s attendees included students from the University of Melbourne, London School of Economics, Osgoode, Canada, National University of Singapore, Universidad Deusto in Bilbao, Spain, New York University, University of Montreal, Bucerius University in Hamburg and the host institution, Bar Ilan University, Tel Aviv. At the AGORA, the first of which was hosted at Osgoode Hall Law School in 2008, participating students discussed the theoretical and methodological challenges of their research. They also shared their work with peers from the other participating Law Schools and got helpful feedback. (A more complete account of the history and objectives of the AGORA could be found in Philip G Bevans and John S Mckay, “The Association of Transnational Law Schools’ Agora: An Experiment in Graduate Legal Pedagogy” (2009) 10 (07) German Law Journal 929). The second reason for making the trip was mine entirely. But that notwithstanding, it had providentially been incorporated into the social aspects of the AGORA program. I had to see Jerusalem, the Holy City and perhaps the most important historical site for all the Abrahamic religions, including Christianity to which I subscribe. The 2012 AGORA turned out to be a huge success. What Professor Oren Perez and his team served up was extraordinary and matches my earlier experience of the program at New York University in the summer of 2010. The most significant part of the doctoral project, as programs like the AGORA show, might be completing research and writing up a dissertation. Yet it is not the only one. As important as the dissertation is as a major goal, it still has to go hand in hand with other career-building experiences like creating a community of peers with whom one can be in scholarly conversation. Networking is a huge part of developing an academic career and the earlier one starts is often the better. What AGORA achieves in one brush-stroke is to translate this goal into an achievement for its participants. They could learn at the feet of experienced faculty from the host institutions and elsewhere while making friends with peers that could help their academic developments going forward. On all these fronts, the 2012 AGORA more than delivered the expectations of its attendees. But if the AGORA in Tel Aviv was great, the Jerusalem experience put the icing on the cake of my Israeli adventure. Not only from a religious context was this a reality, it was more so in shedding light on the nature of the Israeli/Palestinian conflict which one had hitherto only observed from a safe distance. I came away with many impressions. The representation of the conflict in the media is often far removed from actual on-ground situation. Here I recall that some worried friends were concerned for my safety and a few in fact tried to talk me out of making the trip. I wouldn’t be able to forgive myself had I given in to those concerns that turned out a little far-fetched. Though there are hardliners at both ends of the conflict, my sense is that they are fewer in number than others who have come to the realization that sustainable peace is more in the interest of both the Israelis and the Palestinians. I also found out how come Jerusalem is very central to the resolution or non-resolution of this conflict. As Jews prayed at the Western Wall which was recaptured from Arabs following the 1967 six-day war, just across from it stood the Al Aqsa mosque which sits comfortably on the Temple Mount. Jews and Moslems lay equal claims to this site as of strong historical and religious significance. To the Jews, the Wailing Wall is remnant of the second temple erected after the first one built by King Solomon was destroyed. On their part, Moslems claim the Temple Mount as the place from which Prophet Mohammed took off to heaven. Though I was told this is not the real cause of persisting disagreements on both sides, the challenge of resolving looked distinctly huge from a neutral perspective.
Wednesday, June 13, 2012
I never was enthusiastic about Twitter the first time I learnt about it. My thinking then was that there were already too many social media that seemed to duplicate themselves. It didn’t occur to me that Twitter offered anything different than say Facebook or LinkedIn for instance. I now know better. Twitter, since I got a handle on it and figured out how to leverage its benefits has since displaced Facebook as my social media of choice when looking for real time information. But make no mistake about it; I didn’t abandon Facebook altogether. In fact rather than mutually exclusive alternatives, I have since discovered that Twitter and Facebook could, and do reinforce one another. Twitter appears to thrive on its own pace and fury. There is always the danger that you might lose helpful information and materials unless you pick them up while they are still fresh off their source. That could be a lot of work. But if you synchronized Twitter and Facebook such that your tweets also appear on your Facebook timeline you could in fact be building an informal library. As an aspiring academic, I feed these days off information in my area of research. Before Twitter, I used to get snatches of materials that interest me. They used to trickle in once in a while. Now with Twitter, I seem to have unlocked a treasure trove. Information that might interest me now arrives in torrents. The magic has been to select twitterers that I “follow” carefully. I have to be certain they produce and disseminate the kind of information that is of interest to me. My experience suggests therefore that you could know a person by reading her/his tweets. The same applies to me as well. I have taken stock of some of my tweets in the last month and how they did swing from the serious to the light-hearted and to the downright hilarious. One of them comes from a discussion on a different social media platform, Linkedin which wondered why up to 54 per cent of the cases before the African Commission on Human and Peoples’ Rights fail the admissibility test. A different tweet contained a list of seven important international treaties yet to be ratified by the United States, strengthening its core case to popular exceptionalism. Yet another tweet told the story of five smaller countries calling for more transparency at the United Nations but which, according to a diplomat from one of those countries, earned them “several clear notices both in our capitals and here in New York to say ‘don’t do it.’” One more serious tweet was addressed to the most important choice before legal graduates: are they to follow the worn path of pure legal industry business or should they be concerned with social justice issues? The Yale Law School 2012 Commencement Speaker had advised its graduates to remember the poor and work for equal justice. Among the more lighthearted tweets included one indicating that more than a third of divorce filings in the United States contain the word “Facebook.” Another let it be known that courts in parts of Canada are turning to video conference testimonies to cut costs. At the more professional and career level, I had tweets on what it takes to get a dissertation or thesis published as well as on how to swallow criticism without taking it personally. The last of these tweets is especially significant for younger academics entering the new worlds of peer-review and critique. What my experience prowling the twitter-sphere tells me is that social media is changing the way we think about accessing precious information as well as how one could keep abreast of helpful events as they happen in real time.
Wednesday, June 6, 2012
Why does it matter that FIFA forced the Nigerian government to bow to its threats and how does this indicate a new direction in international law? Nigeria’s capitulation matters because it demonstrates how states which used to be the main actors on the international law arena are being rendered irrelevant by a posse of newer actors and institutions. These newer actors are taking over the previous role of states by the sheer dint of globalization as well as the apparent failure of traditional mechanisms for the regulation of state behavior in international law. The United Nations is today almost out of focus, paralyzed by the manipulative use of the veto by the permanent members of its Security Council. The same paralysis afflicts the activities of the International Criminal Court except cases involving Africans indicted by the system. The international criminal justice system is being undermined by the world’s most powerful nations. Nor could any binding agreement be reached on the framework for international climate change governance. The UN system tried in Kyoto, in Copenhagen and most recently in Durban to put together a binding instrument with no breakthrough achieved. Yet there are challenges that these failed processes should be confronting – war crimes, gross human rights abuses, confronting the dangers of climate change. They require solutions that can only wait with disastrous consequences. And as international law is suffering paralysis on the most crucial issues facing the world community, solutions are being sought in the private sphere which unlike the public institutions that are trapped in a legitimacy bubble, offers more functional and practical alternatives. While some of the mechanisms are hybrid, incorporating private/public elements like the World Trade Organization and World Bank, others like the international Financial Action Task Force (FATF) are intergovernmental/voluntary and at first brush private but do impact the public sphere in very significant ways. FIFA on its part is purely a non-governmental institution registered as a public charity. It is different from the WTO, World Bank and FATF that has states as members. FIFA’s membership is drawn from national football associations which like FIFA itself ought to be non-governmental. But in reality they (especially those in Africa) are not. African football associations take government funds to run their activities. Yet they are difficult to control by those same governments. And while prevailing orthodoxy holds that sports (football included) do not mix with politics, the reality is different. Sports and politics can no longer be effectively separated. Otherwise why would some Western European governments threaten to use the occasion of the EURO 2012 in Poland and Ukraine to protest the treatment of Ukrainian opposition politician, Yulia Tymoshenko? Popular sport is therefore now a powerful globalizing force as well as potent international governance tool. How sport is deployed, in addition to its relationship to other international governance mechanisms, demonstrates that at present governance is supplanting law at the international level. It also shows that rather than international law, it might be more correct to speak in terms of global governance as the new direction for international relationships. This suggests a rethinking of scholarship in the entire field.