tag:theconversation.com,2011:/nz/topics/constitution-517/articlesConstitution – The Conversation2024-03-25T15:10:00Ztag:theconversation.com,2011:article/2262012024-03-25T15:10:00Z2024-03-25T15:10:00ZSenegal: Macky Sall’s reputation is dented, but the former president did a lot at home and abroad<p><a href="https://www.britannica.com/biography/Macky-Sall">Macky Sall</a>’s legacy as Senegal’s president since 2012 became more complex in his last year in office. The year was so filled with transgressions that they appeared to have tarnished his reputation indelibly. </p>
<p>For some months he gave the impression to his adversaries and critics that he had <a href="https://www.emerald.com/insight/content/doi/10.1108/OXAN-DB278700/full/html">third-term ambitions</a> – not uncommon in contemporary west African politics. </p>
<p>A public outcry followed his <a href="https://www.aljazeera.com/news/2024/2/3/senegals-macky-sall-postpones-presidential-election">decision</a> on 3 February 2024 to postpone the polls that had originally been scheduled for three weeks later. Then his deputies in the national assembly <a href="https://www.aljazeera.com/news/2024/2/6/senegal-parliament-delays-election-to-december-15-after-chaotic-vote">voted unanimously</a> to postpone the elections and prolong Sall’s term in office until December. </p>
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<a href="https://theconversation.com/macky-sall-throws-senegals-democratic-credentials-into-doubt-222923">Macky Sall throws Senegal's democratic credentials into doubt</a>
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<p>On 6 March, the country’s Constitutional Council <a href="https://www.france24.com/en/tv-shows/eye-on-africa/20240215-senegal-constitutional-council-rules-election-delay-unlawful">ruled</a> that the delay was unconstitutional and that the elections would have to be held before 6 April <strong>before April 2 rather</strong>, when Sall’s presidential term expires. </p>
<p>In compliance, Sall slated Senegal’s election for <a href="https://www.bbc.com/news/world-africa-68497489">24 March</a>. With that decision, the danger of an authoritarian drift in Senegal appears to have been averted. </p>
<p>The time has therefore come for a more reasoned evaluation of his eight years in office.</p>
<p>I’ve been an <a href="https://theconversation.com/profiles/douglas-yates-1462326">observer</a> of Senegalese politics since the late 1990s, doing democracy building for the US Information Agency’s Africa Regional Bureau, teaching African politics to graduate students in Paris, and commenting in the media on developments in Senegalese politics. </p>
<p>Based on my experience, I would argue that Sall’s presidential terms have made some economic, domestic and international achievements worth remembering now, in these days of suspense and doubt. </p>
<p>In my view the legacy of <a href="https://www.presidence.sn/en/presidency/biography">Macky Sall</a> has been saved. Or at least that is how it appears.</p>
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Read more:
<a href="https://theconversation.com/2024-senegal-election-crisis-points-to-deeper-issues-with-macky-sall-and-his-preferred-successor-223035">2024 Senegal election crisis points to deeper issues with Macky Sall and his preferred successor</a>
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<h2>What he leaves behind</h2>
<p>Among his presidential legacies are major infrastructure projects, including airports, a better rail system and industrial parks. </p>
<p>Senegal’s airports were in a deplorable condition when he came to office. The country had 20 airports, but only nine had paved runways. In their poor state, these airports did not attract the major international business flyers who could set up businesses and hire the country’s educated workforce or collaborate with its innovative entrepreneurs.</p>
<p><a href="https://www.nrv-norvia.com/en/projects/blaise-diagne-international-airport">Blaise Diagne International Airport</a>, named after the first black African elected to France’s parliament in 1914, opened in December 2017. The project, which was started in 2007 by his predecessor, Abdoulaye Wade, was completed by Sall. </p>
<p>Located near the capital, Dakar, with easy access via a modern freeway, it has boosted passenger mobility and freight transport. The national airline, <a href="https://flyairsenegal.com/en/home/">Air Senegal</a>, is based here. It reaches more than 20 destinations in 18 countries. </p>
<p>Sall also built the country’s first regional express train, the <a href="https://www.railway-technology.com/projects/dakar-regional-express-train/">Train Express Regional</a>, an airport rail link that connects Dakar with a major new industrial park (also built during Sall’s tenure) and the Blaise Diagne International Airport. </p>
<p>Sall also strengthened the regional airport hubs of the country. He spearheaded the <a href="https://www.transcon.sn/en/project-intro/project-objectives">reconstruction</a> of five regional airports within Senegal. </p>
<p>The Diamniadio Industrial Park, 30km east of Dakar, financed by loans from Eximbank China, was completed in 2023. The park is a flagship industrial project of Sall’s industrialisation strategy for Senegal. </p>
<p>The new park is positioned at the heart of a network of special economic zones, including Diass, Bargny, Sendou and Ndayane. </p>
<p>Enterprises from multiple fields, including pharmaceuticals, electronic appliances and textiles, are setting up offices in the park, which is expected to manufacture high-quality products that meet local needs. </p>
<p>The airports, trains and industrial parks are expected by Sall’s supporters to make a real contribution to Senegal’s transformation from post-colonial peanut exporter to import-substitution manufacturing hub.</p>
<p>In my view, what Sall leaves behind is substantial, particularly when compared with the highly <a href="https://www.npr.org/2010/01/05/122220923/for-many-in-senegal-statue-is-a-monumental-failure">controversial African Renaissance Monument</a> of his predecessor Abdoulaye Wade. The 171-foot-tall bronze statue located on top of a hill towering over Dakar, built by a North Korean firm, has contributed little or no value to the country’s economy.</p>
<p>Sall has also made some contributions to Senegal’s reputation abroad, positioning himself as a respected and influential player on the international stage. As president of the regional economic body Ecowas in <a href="https://www.presidence.sn/en/newsroom/senegals-place-in-ecowas_1122">2015-2016</a>, he made improving economic integration the focus of his term. </p>
<p>He also worked to build closer relations with other international organisations, including the G7, G20 and the African Union. While chairman of the AU from 2022 to 2023 he <a href="https://www.forbesafrica.com/opinion/op-ed/2023/07/30/african-union-must-be-in-the-g20/">lobbied</a> for inclusion of the African Union in the G20, complaining that South Africa was the continent’s only member of any economic forum of international importance. </p>
<p>In his <a href="https://au.int/en/pressreleases/20220920/77th-session-united-nations-general-assembly-address-he-macky-sall">address</a> to the United Nations General Assembly, he championed the cause of the continent. There was no excuse, he said, for failing to ensure consistent African representation in the world’s key decision-making bodies. </p>
<p>He emphasised the importance of increased funding from developed countries for climate adaptation initiatives in developing countries, particularly those in Africa.</p>
<p>Sall’s management of the <a href="https://www.who.int/health-topics/coronavirus#tab=tab_1">COVID crisis</a>, which reached Senegal in March 2020, was his first major test of leadership. Despite its limited resources, Senegal <a href="https://www.devex.com/news/how-senegal-has-set-the-standard-on-covid-19-98266">outperformed</a> many wealthier countries in its COVID pandemic response, thanks to Sall’s leadership.</p>
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Read more:
<a href="https://theconversation.com/senegals-internet-shutdowns-are-another-sign-of-a-democracy-in-peril-207443">Senegal's internet shutdowns are another sign of a democracy in peril</a>
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<h2>Contribution to Senegal’s democratic tradition</h2>
<p>His important legacy will be his participation in the democratic tradition of Senegal. </p>
<p>Firstly, he took on Abdoulaye Wade’s dynastic ambitions to name his son Karim Wade as the heir apparent. Sall then went on to <a href="https://www.lemonde.fr/en/le-monde-africa/article/2024/02/23/senegalese-president-macky-sall-promises-to-step-down-but-does-not-set-election-date_6551927_124.html">respect</a> his two-term limit on the presidency. This means he will soon hand power over to a successor, maintaining a unique and <a href="https://2012-2017.usaid.gov/senegal/newsroom/fact-sheets/senegal-democracy-and-governance-fact-sheet">uninterrupted tradition</a> of power transition in one of west Africa’s most stable democracies. </p>
<p>It hasn’t all been plain sailing. In recent years, the temptation of power seemed to have overwhelmed Sall. He started giving out <a href="https://www.africaintelligence.com/west-africa/2023/03/02/paris-and-washington-fret-over-macky-sall-s-third-term-ambitions,109919519-eve">troubling signs</a> of his desire to remain in office beyond his constitutional mandate.</p>
<p>Then, after testing the waters and finding public opinion was strongly opposed to his violating the limits that he himself had imposed while in the opposition to his predecessor, he <a href="https://www.bbc.com/news/world-africa-66093983">declined</a> to present himself for elections. Instead, he endorsed the candidacy of his <a href="https://www.rfi.fr/en/africa/20231222-senegalese-pm-amadou-ba-named-as-ruling-party-s-presidential-candidate">then-prime minister Amadou Ba</a>. </p>
<p>But this was followed by a series of arrests of his most vocal opponents, in particular the popular social media celebrity <a href="https://www.bbc.com/news/world-africa-68562465">Ousmane Sonko</a>. </p>
<p>More than <a href="https://www.google.com/search?q=How+many+dead+in+Senegal+protests&rlz=1C1ONGR_frFR949FR949&oq=How+many+dead+in+Senegal+protests&gs_lcrp=EgZjaHJvbWUyBggAEEUYOTIHCAEQIRigATIHCAIQIRigAdIBCDQzNDJqMGo3qAIAsAIA&sourceid=chrome&ie=UTF-8">350 protestors</a> were arrested during demonstrations in March 2021 and June 2023. At least 23 died. </p>
<p>Then came his last-minute presidential decree <a href="https://www.lemonde.fr/en/le-monde-africa/article/2024/02/05/senegal-president-macky-sall-postpones-election-and-his-departure-from-the-presidency_6494443_124.html">postponing</a> the election earlier scheduled for 25 February. </p>
<p>This was followed by <a href="https://www.lemonde.fr/en/le-monde-africa/article/2024/02/10/senegal-student-killed-in-protest-against-election-postponement_6510579_124.html">democracy protests</a> and by violent police repression of urban protests, which resulted in civilian deaths. </p>
<p>After protests, Sall made another extraordinary about-turn. He <a href="https://www.aa.com.tr/en/africa/senegals-president-pledges-to-comply-with-constitutional-councils-ruling-hold-presidential-poll-soon/3139996#">announced</a> that he would respect the Constitutional Court decision, which denied him the right to prolong his presidential mandate and required that elections be held before 6 April. </p>
<p>In doing so he preserved the system of checks and balances in Senegal. In addition, his decision to <a href="https://www.france24.com/en/africa/20240315-senegal-s-top-opposition-leaders-sonko-faye-released-from-prison-says-lawyer">release</a> Sonko and his other opponents from prison and grant them amnesty has preserved the space for democratic opposition and civil liberties.</p>
<p>Sall’s legacy as a voice of Africa may offer him a lateral promotion from the presidency of Senegal to the seat of some international organisation.</p><img src="https://counter.theconversation.com/content/226201/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Douglas Yates does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>With the conduct of the 24 March elections, Senegal’s President Macky Sall appears to have saved his legacy.Douglas Yates, Professor of Political Science , American Graduate School in Paris (AGS)Licensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2248882024-03-01T18:33:43Z2024-03-01T18:33:43ZGhana’s new anti-homosexuality bill violates everyone’s rights, not just LGBTIQ+ people - expert<p>Ghana’s new <a href="https://edition.cnn.com/2024/02/28/africa/ghana-passes-anti-homosexuality-bill-intl/index.html">anti-homosexuality bill</a> infringes several rights and freedoms, not only of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) people but of heterosexuals too. The bill has been in the works since 2021 when it was tabled in parliament as a <a href="https://www.graphic.com.gh/features/opinion/private-member-s-bill-key-to-parliamentary-effectiveness.html">private member’s bill</a>.</p>
<p>The objective of the <a href="https://cdn.modernghana.com/files/722202192224-0h830n4ayt-lgbt-bill.pdf">Human Sexual Rights and Family Values Bill</a> is</p>
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<p>to provide for human sexual rights and family values and for related matters.</p>
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<p>At the heart of the contention about the proposed law is the question of discrimination, its purpose and its effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.</p>
<p>The title of the bill, obviously, is ironic because the law rather sets out to deny the right to sexuality and related rights to LGBTIQ+ people and to criminalise their actions. The key action which is criminalised is consensual sexual relations between two homosexual adults.</p>
<p>The bill defines such practices, linking them to similar provisions in the <a href="https://ir.parliament.gh/bitstream/handle/123456789/2433/ACT%2030.pdf?sequence=1&isAllowed=y">Criminal and Other Offences Act of Ghana</a>. Interestingly, it also criminalises and denies other acts, such as oral sex, which heterosexual couples also do to homosexuals and lesbians. The LGBTIQ+ community is also prohibited from marriage and from adopting or fostering.</p>
<p>If the president signs the legislation, Ghana will join <a href="http://www.globalequality.org/component/content/article/166">36 African countries</a> where homosexuality is illegal. It’s punishable by death in <a href="https://www.fairplanet.org/story/death-penalty-homosexualty-illegal/">some countries </a>, including Nigeria and Mauritania. So, Africa remains a tough place for LGBTIQ+ people. But there has been some progress in countries like South Africa and <a href="https://healthpolicy-watch.news/mauritius-supreme-court-throws-out-colonial-anti-gay-law/">Mauritius </a> where colonial era laws have been repealed.</p>
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Read more:
<a href="https://theconversation.com/mauritius-is-the-latest-nation-to-decriminalise-same-sex-relations-in-a-divided-continent-215270">Mauritius is the latest nation to decriminalise same-sex relations in a divided continent</a>
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<p>As a scholar of international human rights law, I believe this bill will infringe the right to privacy, right to health, freedom of association and expression, and press freedom. It will also impinge on the rights of teachers, lecturers, civil society activists and citizens who share content on social media platforms that the bill deems illegal. </p>
<h2>Compromising key freedoms</h2>
<p>The bill’s criminalisation of consensual sexual relations between two homosexual adults and imposition of sentence of three years on violators of that provision of the law is prohibitive and disproportionate. The practice should not be criminalised, but if at all, violation should at best attract a non-custodial sentence, for example a fine or community work. The LGBTIQ+ community has the right to be treated with dignity. The fact that someone is gay should not lead to a loss of his/her humanity.</p>
<p>Moreover, since the only way the criminalisation of consensual sex can be enforced is by “peeking through the window”, this will infringe on the right to privacy.</p>
<p>There has been many instances where members of the LGBTIQ+ community, and even those who the society consider as such but are not, have been <a href="https://www.theguardian.com/global-development/2021/jul/13/arrested-abused-and-accused-wave-of-repression-targets-lgbt-ghanaians">arrested </a>and subjected to acts of molestation, abuse, torture and <a href="https://www.hrw.org/news/2021/09/20/ghana-lgbt-activists-face-hardships-after-detention">other forms of violence</a> and <a href="https://www.losangelesblade.com/2024/02/05/man-in-ghana-assaulted-for-being-gay/">extrajudicial measures</a> which constitute a violation of their right to dignity. Some are even killed. The vigilante groups that effect these arrests also have the habit of extorting money from the alleged perpetrators of LGBTIQ+ practices. Where the “suspects” end up at the police station, the police have also resorted to extortion of large sums of money from the suspects before letting them go. </p>
<p>The law seeks to avert such occurrences by imposing a term of imprisonment of between six months to three years for anyone who harasses someone accused of being LGBTIQ+. However, this is a feeble attempt by the sponsors of the bill to appease or assure the LGBTIQ+ community. </p>
<p>The forced disbandment of LGBTIQ+ associations in Ghana, will constitute a violation of the right to freedom of association and freedom of expression, among others. It has been abused in a number of instances and is likely to be further abused even more. The provision that seeks to make owners of digital platforms or physical premises in which LGBTIQ+ groups organise guilty of promoting LGBTIQ+ activities violates the right to freedom of association and expression, among others. </p>
<p>Also, the provision on imposing harsh sentences on teachers and other educators who talk about LGBTIQ+ in the classroom is likely to infringe on the right to academic freedom and the right to education. Further, the imposition of six to 10 years of imprisonment for anyone who produces, procures, or distributes material deemed to be promoting LGBTIQ+ activities is likely to lead to the abuse of the right to freedom of expression, information and education and even press freedom. The same goes with the provision on criminalising the “public show of romantic relations” between people of the same sex, even including cross-dressing.</p>
<p>What is important to also note is that the law is not made to restrict or violate the rights of the LGBTIQ+ community only. Teachers, lecturers, media personnel and civil society activists, people who share content over social media platforms, or broadcast content on LGBTIQ+ are also going to be held criminally responsible.</p>
<h2>Presidential or constitutional challenge</h2>
<p>I propose that President Nana Akufo-Addo should not assent to the law as it is, relying on <a href="https://lawsghana.com/constitution/Republic/constitution_content/113">article 108</a> of the 1992 Constitution since, being a private members bill, it has likely financial implications for the state. Thus, relying on <a href="https://www.hrw.org/news/2021/09/20/ghana-lgbt-activists-face-hardships-after-detention">article 106</a>, he can refer the bill to his highest advisory body (<a href="https://cos.gov.gh/">Council of State</a>) for its advice. Otherwise, he has the power to state in a memo to the Speaker of Parliament any specific provisions of the bill which in his opinion should be reconsidered by Parliament. </p>
<p>If he does not, the matter can be taken to a Human Rights Court by a citizen, relying on <a href="https://lawsghana.com/constitution/Republic/constitution_content/38#:%7E:text=(5)%20The%20rights%2C%20duties,freedom%20and%20dignity%20of%20man.">article 33(5)</a>of the Constitution, which provides that “the rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.” </p>
<p>The other option is to go straight to the Supreme Court to challenge the constitutionality of the bill.</p><img src="https://counter.theconversation.com/content/224888/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kwadwo Appiagyei-Atua does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ghana’s anti-gay bill will affect heterosexual’s tooKwadwo Appiagyei-Atua, Associate Professor of Law, University of GhanaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2211252024-01-16T14:13:41Z2024-01-16T14:13:41ZSouth Africa’s ANC marks its 112th year with an eye on national elections, but its record is patchy and future uncertain<p>The speech President Cyril Ramaphosa delivered at the <a href="https://www.anc1912.org.za/wp-content/uploads/2024/01/ANC-January-8th-Statement-2024.pdf">112th birthday celebration</a> of South Africa’s governing party, the African National Congress (ANC), on 13 January can be seen as the party’s opening election gambit: a stadium packed to capacity, the display of a united leadership, and an invocation of three decades of success, delivered by a leader firmly in control of his party.</p>
<p>The <a href="https://www.anc1912.org.za/anc-january-8th-statement/">annual January 8</a> statement, unsurprisingly, was a 30 year self-assessment and is self-congratulatory. It was silent on the many failings under ANC rule: <a href="https://www.resbank.co.za/content/dam/sarb/publications/statements/monetary-policy-statements/2023/november-/Statement%20of%20the%20Monetary%20Policy%20Committee%20November%202023.pdf">sluggish economic growth</a>; <a href="https://theconversation.com/south-africas-police-are-losing-the-war-on-crime-heres-how-they-need-to-rethink-their-approach-218048">crime and lack of security</a>; <a href="https://theconversation.com/local-government-in-south-africa-is-broken-but-giving-the-job-to-residents-carries-risks-155970">failure to deliver essential services</a> and <a href="https://mg.co.za/thought-leader/opinion/2023-01-31-south-africa-must-maintain-and-build-new-infrastructure/">maintain public infrastructure</a>. </p>
<p>Ramaphosa said the anniversary <a href="https://www.anc1912.org.za/anc-january-8th-statement/">occasion</a> was an opportunity to focus members of the party on the tasks ahead of the <a href="https://www.eisa.org/election-calendar/">2024 general elections</a> – expected between May and August. He pointed out that the ANC had, over its 30 years in power, put in place the building blocks of a social democratic state. These include:</p>
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<li><p>a <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> that guarantees human rights to all South Africans and is much admired around the world</p></li>
<li><p>protecting workers’ rights, promoting investment and economic development and providing a legal framework for black economic empowerment </p></li>
<li><p>an active role for South Africa on the international stage, and solidarity with people struggling for their rights and striving for a just world order.</p></li>
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<p>Assuming the moral high ground by <a href="https://www.politicsweb.co.za/politics/anc-in-full-support-of-sas-case-against-israel-in-">supporting the cause of Palestine</a> was a reminder of the ANC that once won the hearts of many South Africans and international supporters: principled and standing up for justice, as it had done in the struggle against apartheid.</p>
<p>Ramaphosa highlighted the oft-repeated statistics reflecting “delivery” by the ANC-led government since 1994: </p>
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<li><p><a href="https://www.dhs.gov.za/content/media-statements/human-settlements-delivers-47-million-houses-1994">4.7 million houses</a> have been built and provided “mahala” (for free) to South Africans, including houses allocated to nearly 2 million women </p></li>
<li><p>89% of households now have access to water and 85% have <a href="https://www.statssa.gov.za/?p=12211">access to electricity</a></p></li>
<li><p><a href="https://www.timeslive.co.za/politics/2024-01-15-listen-28-million-people-rely-on-social-grants-ramaphosa-boasts-about-ancs-efforts-to-prevent-poverty/">more than 28 million people</a> are beneficiaries of social grants aimed at alleviating poverty.</p></li>
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<p>Along the way, mistakes had been made, Ramaphosa said. But the ANC stood resolute in addressing the stubborn legacy of colonialism, apartheid and patriarchy.</p>
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Read more:
<a href="https://theconversation.com/factionalism-and-corruption-could-kill-the-anc-unless-it-kills-both-first-116924">Factionalism and corruption could kill the ANC -- unless it kills both first</a>
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<p>Not much was said about these mistakes. The ANC is nursing its fragile unity ahead of a general election later this year. Tactically, it might have been wiser for the party to own up to some of its shortcomings, as this could have denied its opponents and critics the chance to <a href="https://dailyinvestor.com/south-africa/41313/cyril-ramaphosa-celebrates-28-million-grant-recipients-four-times-the-number-of-taxpayers/">ridicule some of its claims</a>. </p>
<p>As a political scientist, I am interested in the ingredients of <a href="https://www.researchgate.net/profile/Sandy-Africa">durable democracies in post-conflict societies</a>, including South Africa, Mauritania and Libya. Thirty years after its first democratic elections, the stakes are high for the ANC as the party that took the lead in ushering in a new era.</p>
<h2>Despair and frustration</h2>
<p>It is an open secret that the party has been <a href="https://theconversation.com/factionalism-and-corruption-could-kill-the-anc-unless-it-kills-both-first-116924">riven by factions</a>. And the state it runs has been <a href="https://www.statecapture.org.za/">racked by corruption</a> for which few have been held accountable.</p>
<p>The perception that South Africa has been unsuccessful in the fight against corruption has dented the country’s image, and lessened its international leverage and stature. </p>
<p>This, in spite of the ANC government having <a href="https://www.gov.za/sites/default/files/gcis_document/202105/national-anti-corruption-strategy-2020-2030.pdf">an anti-corruption strategy</a>. And, to the chagrin of some members, the party has insisted that those facing allegations of corruption must <a href="https://www.dailymaverick.co.za/article/2023-01-06-anc-resolves-to-keep-step-aside-rule-with-case-reviews-every-six-months/">relinquish state and party positions</a>.</p>
<p>There is disappointment that the reversal of the perception of a party mired in corruption has been <a href="https://www.news24.com/news24/opinions/columnists/sipho-masondo/sipho-masondo-instead-of-our-greatest-moment-ramaphosa-has-been-our-greatest-disappointment-20230502">slow in the making</a>. </p>
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Read more:
<a href="https://theconversation.com/book-predicts-ancs-last-decade-of-political-dominance-in-south-africa-166592">Book predicts ANC’s last decade of political dominance in South Africa</a>
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<p>There is a mood of despair over <a href="https://www.gov.za/news/speeches/minister-bheki-cele-second-quarter-crime-statistics-20232024-17-nov-2023">high levels of crime and violence</a>. There is also widespread frustration over <a href="https://wandilesihlobo.com/2023/01/14/crumbling-basic-infrastructure-limits-south-africas-agriculture-and-tourism-growth-potential/">crumbling infrastructure</a> and <a href="https://theconversation.com/south-africans-are-revolting-against-inept-local-government-why-it-matters-155483">poor service delivery</a>.</p>
<p>Lashing out at detractors, a confident Ramaphosa said that South Africa was markedly different to that of 30 years ago – and that this was an achievement of the ANC.</p>
<p>He urged members and supporters to campaign for a decisive victory and avoid a coalition with other political parties. Coalitions, he argued, did not benefit the people but the deal-makers who came from the smaller parties. This argument is not without merit – the coalitions have <a href="https://www.nelsonmandela.org/news/entry/coalitions-the-new-normal-in-south-africa">rendered some municipalities dysfunctional</a>.</p>
<p>Yet, in spite of the public pronouncements, the ANC may be bracing itself for a coalition government. Several surveys say the party will garner <a href="https://www.politicsweb.co.za/documents/anc-polling-under-50-for-2024--brenthurst-foundati">less than 50% of the vote</a> needed to form a government. </p>
<p>The largest opposition party, the Democratic Alliance, has struck a deal with like-minded parties in the hope of <a href="https://mg.co.za/politics/2023-08-17-opposition-parties-agree-on-moonshot-coalition-vision-principles-and-priorities/">unseating the ANC</a>.</p>
<h2>Wooing young voters</h2>
<p>Ramaphosa’s speech reflected the party’s comfort zone, one in which it does not have to appease multiple factions. But this may be a short-lived luxury.</p>
<p>In addition to having to contend with a record number of <a href="https://www.bbc.com/news/world-africa-67741527">splinter formations</a> in the <a href="https://www.eisa.org/election-calendar/">upcoming general elections</a>, the ANC is also facing a generational change. </p>
<p>The <a href="https://www.eisa.org/election-calendar/">2024 general election</a> may become the battle for the soul of the young voter. If that is the case, then the ANC needs a fresh image, one less reliant on its history as a liberation movement. It must reflect the interests and aspirations of potential supporters more: <a href="https://www.gov.za/news/media-statements/statistics-south-africa-quarterly-labour-force-survey-quarter-three-2023-14">unemployed youth</a>, women under constant threat of <a href="https://www.afrobarometer.org/publication/ad738-south-africans-see-gender-based-violence-as-most-important-womens-rights-issue-to-address/">gender-based violence</a>; the <a href="https://debtline.co.za/south-africas-middle-class-is-r10k-poorer-than-in-2016/#:%7E:text=The%20financial%20landscape%20for%20South,compared%20to%20their%202016%20earnings.">financially squeezed middle class</a>, and those living in crowded, <a href="https://link.springer.com/article/10.1007/s10708-022-10808-z">uninhabitable circumstances</a>. </p>
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Read more:
<a href="https://theconversation.com/africas-oldest-surviving-party-the-anc-has-an-achilles-heel-its-broken-branch-structure-150210">Africa's oldest surviving party – the ANC – has an Achilles heel: its broken branch structure</a>
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<p>Ramaphosa called on supporters to stand up against gender-based violence, and to resist the exclusion of marginalised people, such as the LGBTQI community and disabled persons. He acknowledged the positive role of the youth in society, and commended the ANC Youth League <a href="https://www.enca.com/top-stories/anc-youth-league-wants-more-young-people-parliament">for their inputs</a> in shaping the statement. He promised that the party would attend to their concerns and recommendations: </p>
<ul>
<li><p>beneficiation of raw materials </p></li>
<li><p>reindustrialisation of the economy </p></li>
<li><p>the energy crisis</p></li>
<li><p>the climate crisis</p></li>
<li><p>the quality of public services. </p></li>
</ul>
<p>These items are already on the ANC’s policy programme being implemented in government. So if the party had been more astute, the January 8 statement could have indicated, especially to its younger constituency, what would be done differently this time round. As it is, these items also feature high on the list of priorities of other political parties, including those formed in recent months.</p>
<h2>Bravado amid disillusionment</h2>
<p>The ANC, through its January 8 statement, put on a show of bravado. However, it would be foolhardy of it to ignore the fact that the political terrain has shifted.</p>
<p>Even long-serving members within its ranks have become disillusioned with the party, as evidenced by the recent <a href="https://www.politicsweb.co.za/documents/why-i-am-resigning-from-the-anc--mavuso-msimang">resignation of ANC veteran Mavuso Msimang</a>, who later retracted his decision. Not all of these can be labelled rogue ex-members. In any case it is just posturing for the ANC to claim that it is and has been the <a href="https://theconversation.com/the-anc-insists-its-still-a-political-vanguard-this-is-what-ails-democracy-in-south-africa-141938">only vehicle</a> through which citizens can express their political agency. </p>
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Read more:
<a href="https://theconversation.com/the-anc-insists-its-still-a-political-vanguard-this-is-what-ails-democracy-in-south-africa-141938">The ANC insists it's still a political vanguard: this is what ails democracy in South Africa</a>
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<p>The ANC leans heavily on its liberation movement brand. But this will not necessarily be a determining factor in who will sway voters later this year. Many see the ANC as having brought the country <a href="https://www.dailymaverick.co.za/opinionista/2023-03-01-the-anc-has-mastered-the-art-of-demolition-not-building/">to the brink of failure</a>. Others see its policies as centrist and <a href="https://theconversation.com/the-anc-isnt-ready-to-radically-transform-the-south-african-economy-75004">not radical enough</a>.</p>
<p>The governing party has only a few months in which to persuade voters to give it yet another chance to govern South Africa. It won’t be easy.</p><img src="https://counter.theconversation.com/content/221125/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sandy Africa does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ANC leans heavily on its liberation movement brand. But this will not necessarily be a determining factor in who will sway voters later this year.Sandy Africa, Associate Professor, Political Sciences, and Deputy Dean Teaching and Learning (Humanities), University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2168962023-11-02T03:48:42Z2023-11-02T03:48:42ZIs a terrorist’s win in the High Court bad for national security? Not necessarily<p>Yesterday, Abdul Nacer Benbrika, perhaps Australia’s most notorious convicted terrorist, <a href="https://www.theguardian.com/australia-news/2023/nov/01/abdul-nacer-benbrika-australian-citizenship-convicted-terrorist-wins-high-court-battle">won in the High Court</a>. </p>
<p>A six-one majority of the court <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/33">struck down</a> a ministerial power to revoke the Australian citizenship of certain terrorist offenders. </p>
<p>Benbrika’s citizenship had been revoked as a result of his <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2009/21.html">conviction</a> in 2008 of a range of terrorism offences, including directing the activities of a terrorist organisation for which he was sentenced to 15 years in prison. </p>
<p>Following the court’s decision, Benbrika remains an Australian citizen. So will he go free? And what does this mean for national security?</p>
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Read more:
<a href="https://theconversation.com/should-new-australians-have-to-pass-an-english-test-to-become-citizens-175324">Should new Australians have to pass an English test to become citizens?</a>
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<h2>Unconstitutional punishment</h2>
<p>This was not the first time the High Court had stopped the minister for home affairs revoking the citizenship of someone involved in terrorism. </p>
<p>Delil Alexander was a dual citizen of Australia (by birth) and Turkey (by descent) when he entered Syria in 2013 with the terrorist organisation ISIS. </p>
<p>In 2021, the minister revoked Alexander’s Australian citizenship because Alexander had engaged in certain terrorist conduct which demonstrated he had “repudiated his allegiance to Australia”.</p>
<p>Revoking his citizenship was, the minister reasoned, in the public interest. </p>
<p>At that time, Alexander was in prison in Syria and could not be contacted by his family or lawyers. His sister, Berivan, challenged the citizenship-stripping law on his behalf and <a href="https://www.hcourt.gov.au/cases/case_s103-2021">won the case</a>. </p>
<p>In Benbrika’s case, the situation was a little different. </p>
<p>Unlike Alexander, Benbrika (a dual national with Algeria) had actually been convicted of terrorism offences, which gave the minister a basis on which to strip his Australian citizenship. </p>
<p>Yet the court’s reasons for striking down the citizenship-stripping powers were similar in the two cases. </p>
<p>First, the court acknowledged that loss of one’s citizenship is at least as serious as detention. </p>
<p>Second, the court interpreted the law as being designed to punish the person for their conduct. </p>
<p>Under the separation of powers, which the Constitution protects, imposing punishments for wrongdoing is generally the work of courts and should follow a criminal trial and finding of guilt. </p>
<p>In this case, the minister was essentially – and unconstitutionally – trying to go around the courts by punishing these individuals outside the criminal process. </p>
<h2>What now for Benbrika?</h2>
<p>The consequence of Alexander remaining an Australian citizen is that it remained Australia’s responsibility to, for instance, take steps to find out where he was, re-establish contact with him, and provide consular assistance. </p>
<p>Alexander may even need to be brought back to Australia where he would be dealt with under our own laws and justice system (it is, after all, a serious federal offence to join ISIS). </p>
<p>Benbrika, on the other hand, has served his sentence for terrorism offences and won his fight to maintain his Australian citizenship. </p>
<p>So will he walk free? Is it only a matter of time before he is radicalising more young people and inciting further hatred and violence?</p>
<p>Whatever lies ahead for Benbrika, it is unlikely to be any sense of freedom. </p>
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Read more:
<a href="https://theconversation.com/as-new-aussie-citizenship-rules-kick-in-the-fair-go-finally-returns-to-trans-tasman-relations-208739">As new Aussie citizenship rules kick in, the ‘fair go’ finally returns to trans-Tasman relations</a>
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<p>Australia has more extensive counterterrorism law than anywhere else in the world. A <a href="https://theconversation.com/before-9-11-australia-had-no-counter-terrorism-laws-now-we-have-92-but-are-we-safer-166273">recent count</a> put the tally at almost 100 laws enacted since the 9/11 attacks in 2001.</p>
<p>Many of those laws tweak the usual rights given to people as they move through the criminal justice system. </p>
<p>This includes the option of post-sentence imprisonment – “continuing detention orders” – for those who are assessed to pose an unacceptable risk of committing national security offences. </p>
<p>Such an order can be made for up to three years and there are no limits on renewal. </p>
<p>Not only has Benbrika already been subject to those orders but, in 2021, he lodged an unsuccessful High Court <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2021/4.html?context=0;query=benbrika;mask_path=au/cases/cth/HCA">challenge</a> to those laws. </p>
<p>For as long as Benbrika is assessed to pose an “unacceptable risk” to the community, he will remain in prison. </p>
<p>But what if he satisfies a court that his release no longer poses an unacceptable risk? </p>
<p>Under Victorian law, Benbrika could be subject to an extended “supervision order”, which can be made for up to 15 years (with a possibility of being renewed for a further 15 years). </p>
<p>On top of this are federal “control orders”. </p>
<p>This is the kind of order imposed on <a href="https://www.abc.net.au/news/2007-12-21/hicks-control-order-granted/994358">David Hicks</a> on his return from Guantanamo Bay, and on <a href="https://fedcourt.gov.au/digital-law-library/judges-speeches/speeches-former-judges/justice-marshall/marshall-j-20070906#:%7E:text=Issuing%20of%20the%20Control%20Order,on%20Mr%20Thomas'%20personal%20liberty.">Joseph “Jihad Jack” Thomas</a> after his acquittal for terrorism offences. </p>
<p>Control orders allow for an extremely wide range of restrictions and obligations to be imposed on a person if those conditions are “reasonably necessary, appropriate and adapted” to protecting the community from terrorism. </p>
<p>Control orders last for up to 12 months, but there are no limits on their renewal.</p>
<p>Under a supervision order or control order, Benbrika could be required to:</p>
<ul>
<li><p>stay at a certain address</p></li>
<li><p>be subject to curfews (even amounting to home detention) </p></li>
<li><p>wear a tracking device</p></li>
<li><p>not use the internet, a phone or other devices</p></li>
<li><p>not contact certain people or go to certain places </p></li>
<li><p>undertake education, counselling or drug testing </p></li>
<li><p>or any number of other restrictions or obligations deemed necessary for community protection. </p></li>
</ul>
<p>Breaching one of these orders is punishable by five years imprisonment. </p>
<h2>But wouldn’t it be better to deport him?</h2>
<p>There is a symbolic attraction to taking away the citizenship of someone who has acted in a way that shows no allegiance to – and even a violent disregard for – Australia and basic community values. </p>
<p>Indeed, the one judge who upheld the citizenship-stripping laws, Justice Simon Steward, did so on the basis that citizenship-stripping was not designed to punish. </p>
<p>Instead, he argued it was merely an acknowledgement that the person themselves had severed their ties to Australia.</p>
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Read more:
<a href="https://theconversation.com/what-does-being-australian-mean-under-the-constitution-38889">What does 'being Australian' mean under the Constitution?</a>
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<p>A <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0010/2771452/11-Pillai-and-Williams.pdf">study</a> looking at counterterrorism citizenship-stripping in the United Kingdom, Canada and Australia found the laws were serving this symbolic role. </p>
<p>But symbolism is a thin shield for national security. </p>
<p>When it comes to actually protecting security, the evidence shows that citizenship-stripping comes up short. </p>
<p>People have been stripped of their citizenship and committed terrorist acts elsewhere. Khaled Sharrouf, Australia’s most notorious foreign fighter, is one such person. </p>
<p>In a globalised world, people stripped of citizenship can still serve a pivotal role in recruitment and radicalisation, especially on the internet. </p>
<p>Kept in Australia, as an Australian, the full weight of our vast security laws can be brought to bear on Benbrika. </p>
<p>Stripped of his citizenship, Benbrika would have been beyond the reach of those laws, and it would be naïve to think that simply making him not-Australian would negate the risks he may present.</p><img src="https://counter.theconversation.com/content/216896/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Ananian-Welsh does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Convicted terrorist Abdul Nacer Benbrika yesterday won the right to remain an Australian citizen. So will he go free? And what does this mean for national security?Rebecca Ananian-Welsh, Associate Professor, TC Beirne School of Law, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2100952023-10-27T12:18:10Z2023-10-27T12:18:10ZLouisiana’s ‘In God We Trust’ law tests limits of religion in public schools<p>When Louisiana passed a law in August 2023 requiring public schools to post “<a href="https://www.usatoday.com/story/news/nation/2023/08/03/louisiana-in-god-we-trust-law/70519434007/">In God We Trust</a>” in every classroom – from elementary school to college – <a href="https://www.theadvertiser.com/story/news/2023/01/19/louisiana-lawmaker-files-bill-to-put-god-in-every-school-classroom/69821507007/">the author of the bill claimed</a> to be following a long-held tradition of displaying the <a href="https://www.pbs.org/wgbh/frontline/article/in-god-we-trust-reaffirmed-as-national-motto-again/">national motto</a>, most notably on U.S. currency. </p>
<p>But even under recent Supreme Court precedents, the Louisiana law may violate the <a href="https://constitution.congress.gov/constitution/amendment-1/">establishment clause of the First Amendment</a>, which prohibits the government from promoting religion. I make this observation as one who has researched and <a href="https://books.google.com/books?hl=en&lr=&id=XoV15X_SoA4C&oi=fnd&pg=PR9&dq=Frank+Ravitch&ots=scSow4fFWy&sig=5kTKn_GYJGWmnVY4Paj1XGg_TAI#v=onepage&q=Frank%20Ravitch&f=false">written extensively on issues of religion</a> in the public schools.</p>
<p>The Louisiana law specifies that the motto “shall be displayed on a poster or framed document that is at least 11 inches by 14 inches. The motto shall be the central focus … and shall be printed in a large, easily readable font.” The law also states that teachers should instruct students about the phrase as a way of teaching “patriotic customs.”</p>
<p>Similar bills are being promoted by groups like the <a href="https://cpcfoundation.com/about/">Congressional Prayer Caucus Foundation</a>, a nonprofit that supports members of Congress who meet regularly to <a href="https://www.usatoday.com/story/news/politics/2015/09/28/prayer-caucus-funded-taxpayers-defends-faith-government-policy/72428692/">defend the role of prayer in government</a>. To date, 26 states have considered bills requiring public schools to display the national motto. Seven states, including Louisiana, <a href="https://www.blitzwatch.org/in-god-we-trust-school-displays">have passed laws</a> in this regard.</p>
<h2>Recent shift in the law</h2>
<p>The Supreme Court has long treated public schools as an area where government-promoted religious messaging is unconstitutional under the First Amendment’s <a href="https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion">establishment clause</a>. For example, the Supreme Court held in <a href="https://www.oyez.org/cases/1961/468">1962</a>, <a href="https://www.oyez.org/cases/1962/142">1963</a>, <a href="https://www.oyez.org/cases/1991/90-1014">1992</a> and <a href="https://www.oyez.org/cases/1999/99-62">2000</a> that prayer in public schools is unconstitutional either because it favored or endorsed religion or because it created coercive pressure to religiously conform. In <a href="https://www.oyez.org/cases/1980/80-321">1980</a>, the court also struck down a Kentucky law requiring the Ten Commandments to be posted in classrooms.</p>
<p>At the same time, the court has protected private religious expression for individual students and teachers in public schools. </p>
<p>The Louisiana law comes at a time of <a href="https://www.brookings.edu/events/understanding-the-threat-of-white-christian-nationalism-to-american-democracy-today/">rising concerns about Christian nationalism</a> and on the heels of a pivotal court case. In the 2022 case <a href="https://www.oyez.org/cases/2021/21-418">Kennedy v. Bremerton School District</a>, the court overturned more than 60 years of precedent when it ruled that a public school football coach’s on-field, postgame prayer did not violate the establishment clause. In doing so, the court rejected long-standing legal tests, holding instead that courts should look to <a href="https://www.oyez.org/cases/2021/21-418">history and tradition</a>.</p>
<p>The problem with using history and tradition as a broad test is that it can change from one context to the next. People – including lawmakers – are apt to ignore the negative and troubling lessons of U.S. religious history. Prior to the Kennedy decision, history and tradition were used by a majority of the court to decide establishment clause cases only in specific contexts, such as <a href="https://www.oyez.org/cases/2013/12-696">legislative prayer</a> and <a href="https://www.oyez.org/cases/2018/17-1717">war memorials</a>.</p>
<p>Now, states like Louisiana are trying to use history and tradition to bring religion into public school classrooms.</p>
<h2>A history of ‘In God We Trust’</h2>
<p>Contrary to what people often assume, the phrase “In God We Trust” has not always been the national motto. It <a href="https://blogs.loc.gov/law/2013/04/in-god-we-trust/">first appeared on coins</a> in 1864, during the Civil War, and in the following decades it sparked controversy. In 1907, President Theodore Roosevelt urged Congress to <a href="https://timesmachine.nytimes.com/timesmachine/1907/11/14/106767538.html?pageNumber=1">drop the phrase from new coins</a>, saying it “does positive harm, and is in effect irreverence, which comes dangerously close to sacrilege.”</p>
<p>In 1956, amid the Cold War, “<a href="https://theconversation.com/the-complex-history-of-in-god-we-trust-91117">In God we Trust</a>” became the national motto. The phrase first appeared on paper money the next year. It was a time of significant fear about communism and the Soviet Union, and atheism was viewed as part of the “communist threat.” Atheists were <a href="https://www.routledge.com/Anti-Atheist-Nation-Religion-and-Secularism-in-the-United-States/Klug/p/book/9781032310107">subject to persecution</a> during the <a href="https://www.eisenhowerlibrary.gov/research/online-documents/mccarthyism-red-scare">Red Scare</a> and afterward. </p>
<p>Since then, the motto has stuck. Over the years, <a href="https://www.reuters.com/article/us-usa-religion-motto-idUSKCN1LD24K">legal challenges</a> attempting to remove the phrase from money have failed. Courts have generally understood the term as a form of <a href="https://www.oyez.org/cases/1983/82-1256">ceremonial deism or civic religion</a>, meaning religious practices or expressions that are viewed as being merely customary cultural practices.</p>
<h2>The future of the law</h2>
<p>Even after the Kennedy ruling, the Louisiana law may still be unconstitutional because students are a captive audience in the classroom. Therefore, the mandate to hang the national motto in classrooms could be interpreted as a form of religious coercion. </p>
<p>But because the law requires a display rather than a religious exercise like school prayer, it may not violate what has come to be known as the <a href="https://www.oyez.org/cases/1991/90-1014">indirect coercion test</a>. This test prevents the government from conducting a formal religious exercise that places strong social or peer pressure on students to participate. </p>
<p>The outcome of any constitutional challenge to the Louisiana law is far from clear. Prior cases involving the Pledge of Allegiance offer one example. Though the Supreme Court dismissed on standing grounds the <a href="https://constitutioncenter.org/blog/the-latest-controversy-about-under-god-in-the-pledge-of-allegiance">only establishment clause challenge to the pledge</a> it has considered, lower courts have held that reciting the pledge in schools is constitutional for a variety of reasons.</p>
<p>These reasons include the idea that it is a form of <a href="https://www.pewresearch.org/religion/2008/08/28/on-ceremonial-occasions-may-the-government-invoke-a-deity/">ceremonial deism</a> and the fact that since 1943 students have been <a href="https://edition.cnn.com/2019/02/19/us/pledge-of-allegiance-explainer-trnd/index.html">exempt from having to say the pledge</a> if it violates their faith to do so. </p>
<p>The Louisiana law, however, requires instruction about the national motto. </p>
<p>If the law is challenged in court and upheld, teachers could teach that the motto was adopted when the nation was emerging from <a href="https://millercenter.org/the-presidency/educational-resources/age-of-eisenhower/mcarthyism-red-scare">McCarthyism</a> and fear of communism was widespread. Moreover, they could teach that many people of faith throughout U.S. history would have viewed this sort of display as against U.S. ideals.</p>
<h2>Division is likely</h2>
<p>More than two centuries before Roosevelt argued that it was sacrilegious to put “In God We Trust” on coins, the Puritan minister and Colonist Roger Williams famously proclaimed that “<a href="https://www.taylorfrancis.com/chapters/mono/10.4324/9780429054860-4/forced-worship-stinks-god-nostrils-margaret-mur%C3%A1nyi-manchester">forced worship stinks in God’s nostrils</a>.” Williams founded the colony of Rhode Island, at least in part, to promote religious freedom.</p>
<p>Additionally, there is no prohibition on alternative designs for the national motto posters as long as the motto is “the central focus of the poster.” In Texas, a parent donated rainbow-colored “In God We Trust” signs and others written in Arabic, which were subsequently <a href="https://www.dallasnews.com/news/education/2022/08/29/southlake-schools-rejects-in-god-we-trust-signs-featuring-rainbows-arabic/">rejected by a local school board</a>. This situation, which gained significant media attention, brought the exclusionary impact of these laws <a href="https://theconversation.com/uncivil-obedience-becomes-an-increasingly-common-form-of-protest-in-the-us-209928">into public view</a>.</p>
<p>It could be argued that accepting wall hangings that favor Christocentric viewpoints – and rejecting those that reflect other religions or add symbols such as the rainbow – is <a href="https://www.oyez.org/cases/2021/20-1088">religious discrimination by government</a>. If so, schools might be required to post alternative motto designs that meet the letter of the new law in order to uphold free speech rights and prevent religious discrimination. </p>
<p>The Louisiana law would have been brazenly unconstitutional just two years ago. But after the Kennedy decision, the law may survive a potential legal challenge. Even if it does, one thing is for certain: It will be divisive.</p><img src="https://counter.theconversation.com/content/210095/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frank S. Ravitch does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Does Louisiana’s requirement for public schools to post ‘In God We Trust’ in all classrooms violate the doctrine of separation of church and state? A legal scholar weighs in.Frank S. Ravitch, Professor of Law & Walter H. Stowers Chair of Law and Religion, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2147362023-10-15T04:45:46Z2023-10-15T04:45:46ZBetween state and mosque: new book explores the turbulent history of Islamic politics in Mozambique<p><em><a href="https://www.imf.org/external/pubs/ft/dp/2014/afr1404.pdf">Mozambique</a> is a multi-religious southern African nation with excellent relations between faiths. Relations between Muslims and the state have been good too. But the situation became more complicated <a href="https://theconversation.com/mozambiques-own-version-of-boko-haram-is-tightening-its-deadly-grip-98087">in 2017</a> when a bloody jihadist insurgency broke out in the north. Eric Morier-Genoud has published extensively on politics and religion in Mozambique. His latest book, <a href="https://www.hurstpublishers.com/book/towards-jihad/">Towards Jihad? Muslims and Politics in Postcolonial Mozambique</a>, looks at the historical relationship between Islam and politics in the country. He fielded some questions from The Conversation Africa.</em></p>
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<h2>When was Islam introduced to Mozambique?</h2>
<p>Islam has a very old presence in Mozambique. It is estimated to have arrived within the first century of the start of the faith, with Arab, Ottoman and Persian traders. It settled at once during and after the 8th century among new Swahili networks, cultures and societies that developed on the east African coast between Somalia and what is today Mozambique. </p>
<p>Expansion of the Islamic faith inland was slow and only made significant progress in the 19th and 20th centuries. This was the time when European colonial powers occupied Africa, building new infrastructure such as roads and railways that helped the spread of different faiths. </p>
<p>At <a href="https://www.britannica.com/place/Mozambique/Mozambique-under-the-New-State-regime">independence in 1975</a>, Muslims represented 15% of the population of Mozambique. The latest census indicates it stood at 19% <a href="https://www.britannica.com/place/Mozambique/Religion">in 2017</a>. Today Muslims live mostly on the coast and in the north of the country. A majority of the population of Niassa and Cabo Delgado provinces are Muslim, as are 40% of the population of Nampula province.</p>
<h2>What’s been the political experience of Muslims since independence?</h2>
<p>A majority of Muslims, like all other religious people in the country, were in favour of independence. But when Frelimo, the liberation movement, came to power at independence in 1975, its policy was socialist-oriented and the government turned against religion. Frelimo saw faith as a superstition and an impediment to its programme. It closed churches near state and educational institutions, restricted religious practice, and even ran atheist campaigns between 1978 and 1980. </p>
<p>In the 1980s, the Frelimo party-state shifted towards tolerance, meaning a policy of minor religious restrictions and a strict separation between state and church/mosque. Frelimo party members were prohibited from being members of a religious institution. Faith institutions were ordered to focus on religion only. </p>
<p>In the 1990s, after the end of the <a href="https://www.britannica.com/question/How-did-the-Cold-War-end">Cold War</a> and the official abandonment of socialism, the Frelimo government moved towards a freer religious regime. </p>
<p>Nevertheless, the post-socialist <a href="https://www.portaldogoverno.gov.mz/por/Governo/Legislacao/Constituicao-da-Republica-de-Mocambique">1990 constitution</a> did not allow political parties based on regionalism, ethnicity or religion. So there’s a limit to what Muslims can do politically for their faith.</p>
<p>A law to recognise Muslim religious holidays in the 1990s was blocked by the Supreme Court in the name of secularism. Muslims argued this was unfair since Christmas is an official holiday, although called <a href="https://www.timeanddate.com/calendar/?country=126">“family day”</a>. </p>
<p>Similarly in the 2000s Muslim politicians (organised in a formal cross-party lobby in parliament) struggled to influence a new law to define the family, inheritance rights and women’s rights. </p>
<p>Consequently, many Islamic organisations and politicians have moved away from politics in the last two decades, to focus on education, social works and proselytism.</p>
<h2>What led to the current insurgency?</h2>
<p>There is much debate about the causes of the jihadi insurgency in northern Mozambique. <a href="https://www.iese.ac.mz/wp-content/uploads/2019/09/cadernos_17.pdf">Researchers</a> have identified poverty, youth marginalisation, ethnicity and religion as push factors. </p>
<p>The pull factor is a jihadi project of more justice and equality through sharia law and a caliphate. It offers an alternative plan for state and society, and a path to it through violence. The insurgency developed regionally (in connection with Tanzanian jihadis) and the insurgents connected formally to the Islamic State, the <a href="https://www.economist.com/middle-east-and-africa/2022/08/11/how-al-qaeda-and-islamic-state-are-digging-into-africa">international terrorist group</a>, in early 2018. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/mozambican-terror-group-is-strikingly-similar-to-nigerias-deadly-boko-haram-201039">Mozambican terror group is strikingly similar to Nigeria's deadly Boko Haram</a>
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<p>My book shows that the overwhelming majority of Muslims in Mozambique do not want full sharia law and a caliphate. Nor do they accept the violence used to achieve these objectives. </p>
<p>The insurgents have nevertheless settled militarily in the extreme north, where they have established bases in deep forests and rely on Islamic State for some technical support and public relations.</p>
<h2>What support, if any, do the insurgents enjoy in Mozambique?</h2>
<p>Insurgents enjoy hardly any support nationally. Locally, they draw some support from networks they established, from long-held local grievances, and from mistakes the state, the army and the police have made since the start of the conflict. </p>
<p>Other dynamics have come into play, including displacement, violence, uncertainty and fear. Today, the “Al-Shabaab” insurgents (as they are known in Mozambique) operate in a territory of about 30,000 square kilometres which represents less than half of the province of Cabo Delgado (one of the 11 provinces of Mozambique). </p>
<p>This is a very limited territory, but one where crucial economic projects are located. Among others, private investment is unfolding for the production of onshore and offshore LNG gas, and companies have developed graphite projects that have turned Mozambique into the second largest world producer of this mineral. </p>
<p>The insurgents have hardly expanded since they began their armed insurrection in October 2017. In 2021 they carried out attacks in Niassa and Nampula, but they withdrew rapidly. It is not clear whether they chose not to expand, or whether the government and its <a href="https://www.usip.org/publications/2022/06/regional-security-support-vital-first-step-peace-mozambique">international allies</a> have been effective in containing them. Still, the armed conflict continues today, six years on.</p>
<h2>How can the peace be restored?</h2>
<p>This is a topic of debate. The government has been active mostly militarily, with an international intervention since 2021. It wants to root out those it calls international “terrorists”. </p>
<p>Many commentators and partners of Mozambique believe that to resolve the conflict, one also needs to address the root causes: poverty, youth marginalisation and ethnicity. Donors and the Mozambican government have started social and economic programmes focusing on youth and on economic development in the north of Mozambique. Even private companies such as TotalEnergie want to engage in such programmes.</p>
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<strong>
Read more:
<a href="https://theconversation.com/catalogue-of-failures-behind-growing-humanitarian-crisis-in-northern-mozambique-149343">Catalogue of failures behind growing humanitarian crisis in northern Mozambique</a>
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<p>An element which has not been touched upon yet relates to the pull factors. There are several possibilities. One would be for the state and civil society to develop a reflection and consultation about the future of the country and about inclusion and representation. It could look at social, economic, political, historical, cultural, and religious elements, aiming to establish a medium-term “agenda for the nation”.</p><img src="https://counter.theconversation.com/content/214736/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eric Morier-Genoud does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The overwhelming majority of Muslims in Mozambique reject the violence of the insurgents and their quest for a caliphate.Eric Morier-Genoud, Reader in African history, Queen's University BelfastLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2115422023-08-17T13:12:48Z2023-08-17T13:12:48ZTrees, rivers and mountains are gaining legal status – but it’s not been a quick fix for environmental problems<figure><img src="https://images.theconversation.com/files/543183/original/file-20230817-27-tw75sv.jpg?ixlib=rb-1.1.0&rect=18%2C18%2C4007%2C2999&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Whanganui River, New Zealand.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/whanganui-river-major-north-island-new-2158593181">Wirestock Creators/Shutterstock</a></span></figcaption></figure><p>As the scale and severity of environmental issues become more obvious, lawmakers are experimenting with new ways to protect nature. <a href="https://theconversation.com/rights-for-nature-how-granting-a-river-personhood-could-help-protect-it-157117">One approach</a> that has gone from blue-sky debate to meaningful reality over the past 50 years is to give elements of the natural world – trees, rivers and mountains – legal rights and allow people to go to court on their behalf.</p>
<p>In 2022, Spain’s Mar Menor saltwater lagoon became the <a href="https://www.waternewseurope.com/legal-rights-for-mar-menor/">first ecosystem in Europe</a> to be granted a limited legal status similar to a company. Meanwhile, Ireland’s recent <a href="https://citizensassembly.ie/report-of-the-citizens-assembly-on-biodiversity-loss-report-launches/">Citizens’ Assembly on Biodiversity Loss</a> concluded with a <a href="https://www.rte.ie/news/environment/2023/0405/1374285-biodiversity/">recommendation to amend the constitution</a> to include a provision on the rights of nature.</p>
<p>This idea can be traced back to the early 1970s, when American legal scholar Christopher Stone spontaneously threw it into a classroom discussion about the gradual expansion of rights, and was pleasantly surprised by the positive response it got. </p>
<p>He knew that the US Supreme Court was about to hear an important case on what lawyers call “standing” (whether or not one has the right to be heard by a court in a particular dispute), in which an environmental organisation called the Sierra Club was seeking to prevent the development of a ski resort in the Sequoia National Forest. Stone also knew that one of the justices, <a href="https://en.wikipedia.org/wiki/William_O._Douglas">William O. Douglas</a>, who was well known for his environmental sympathies, would be writing a foreword to an issue of a legal journal. </p>
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<img alt="Giant sequoia trees covered in snow." src="https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543194/original/file-20230817-27-nxigvt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Sequoia National Forest, California.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/giant-forest-covered-by-snow-after-378711073">Panpilas L/Shutterstock</a></span>
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<p>Stone quickly wrote an article called <a href="https://huminst.red.uic.edu/wp-content/uploads/sites/412/2019/04/May-6-Stone-Should-Trees-Have-Standing.pdf">Should Trees Have Standing?</a>, elaborating on his initial thought just in time to get it into that issue. Douglas picked up the idea and endorsed it in <a href="http://cdn.loc.gov/service/ll/usrep/usrep405/usrep405727/usrep405727.pdf">his judgment</a>, saying: “The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water — whether it be a fisherman, a canoeist, a zoologist or a logger — must be able to speak for the values which the river represents and which are threatened with destruction.”</p>
<p>Though this did not sway the other members of the Supreme Court, it did spark a brief flurry of academic writing on the subject (the ski resort was never built anyway). Stone <a href="https://www.youtube.com/watch?v=eV9JmQwFXg0">became a media celebrity</a> for a short while before the idea of giving parts of nature legal rights faded from the public eye.</p>
<p>Fast forward to the 21st century and academics alongside environmental activists have given the idea a new lease of life. It has grown to include different schools of thought and these theories are now being <a href="http://harmonywithnatureun.org/rightsOfNature/">put into practice worldwide</a>. </p>
<p>So far, they have <a href="https://theconversation.com/when-a-river-is-a-person-from-ecuador-to-new-zealand-nature-gets-its-day-in-court-79278">not been a quick fix</a> for environmental problems. But they are leading to some successes.</p>
<p>More experiments may help identify how to make them work well effectively. But simply granting rights to nature is probably not a substitute for strong institutions and meaningful enforcement. This becomes clear when we explore the experiences of three different countries.</p>
<h2>New Zealand</h2>
<p>In 1840, the <a href="https://theconversation.com/explainer-the-significance-of-the-treaty-of-waitangi-110982">Treaty of Waitangi</a> was signed between the British crown and New Zealand’s indigenous Māori people. The treaty aimed to protect the Māori people’s right to their land and resources.</p>
<p>As part of a settlement to remedy past breaches of the treaty, both a <a href="https://maorilawreview.co.nz/2014/10/tuhoe-crown-settlement-te-urewera-act-2014/">former national park</a> called Te Urewera and the <a href="https://www.whanganui.govt.nz/About-Whanganui/Our-District/Te-Awa-Tupua-Whanganui-River-Settlement">Whanganui River</a> have been recognised in New Zealand law as entities with their own rights (although not all the rights of a human person) since 2014 and 2017 respectively. This has involved the creation of two boards to manage the natural resources, featuring joint representation from the government and the local tribe. </p>
<p>Plans for rethinking Te Urewera are still being formulated, and representation for the Whanganui River has only recently been appointed (like many things, it was delayed by the COVID pandemic). However, a strategic plan will be developed in tandem with a NZ$30 million (£14 million) fund to support the river’s health and wellbeing.</p>
<p>Time will tell if reframing this process so that nature itself has a voice will yield better outcomes.</p>
<h2>Bangladesh</h2>
<p>In 2019, the High Court of Bangladesh <a href="https://www.clientearth.org/projects/access-to-justice-for-a-greener-europe/updates/legal-rights-of-rivers-an-international-trend/">recognised the Turag River</a> (and all other rivers in Bangladesh) as a living entity with legal rights and required that the government take significant action to protect it. </p>
<p>The state agency with overall responsibility, the National River Conservation Commission, has <a href="https://www.tbsnews.net/features/panorama/repeat-offenders-who-pollute-rivers-should-be-jailed-nrcc-chairman-520134">promised rapid action</a>. But, still today, many water bodies in the country are “dead” thanks to <a href="https://www.thedailystar.net/environment/pollution/water-pollution/news/river-pollution-its-now-all-over-the-country-3270451">pollution</a> caused by the widespread <a href="https://www.thedailystar.net/news/bangladesh/news/turag-turns-dumping-zone-3173131">dumping of industrial and human waste</a>.</p>
<p>The Buriganga River, which flows south-west of Bangladesh’s capital city of Dhaka, is now so polluted that its <a href="https://www.reuters.com/investigates/special-report/earth-day-bangladesh-river/">water appears black</a> outside of the monsoon season.</p>
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<img alt="An aerial view of the Buriganga River." src="https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/543185/original/file-20230817-27-abwl2o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The Buriganga River has become the most polluted river in Bangladesh.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/dhaka-bangladesh-november-13-2020-top-1853982250">Sk Hasan Ali/Shutterstock</a></span>
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<h2>Ecuador</h2>
<p>In 2008, Ecuador adopted a <a href="https://www.constituteproject.org/constitution/Ecuador_2011?lang=en">new constitution</a> that includes an article explicitly recognising nature’s right to “exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution”. This development has enabled landowners and environmentalists to bring cases to court to protect the country’s <a href="https://theecologist.org/2020/nov/06/rights-nature-ecuador">rivers</a> and <a href="https://theecologist.org/2020/nov/06/rights-nature-ecuador">forests</a>, <a href="https://www.cambridge.org/core/journals/transnational-environmental-law/article/how-ecuadors-courts-are-giving-form-and-force-to-rights-of-nature-norms/186BBD0B99125ED2BAB3FE752C386FEA">slowly making this right a reality</a>. </p>
<p>A striking example of this unfolded in 2021 when the Ecuadorian Constitutional Court <a href="https://verfassungsblog.de/the-los-cedros-forest-has-rights/">revoked mining permits in Los Cedros</a> – a cloud forest area of great biodiversity in the Andean mountains. It asserted that these permits not only violated the rights of local residents (such as the right to clean water and a healthy environment), but also the rights of the forest itself.</p>
<p>This is a significant step with ramifications for the future. However, it also highlights a common objection: that environmental matters frequently also include some form of human interest that can serve as a basis for legal standing. Consequently, granting nature rights may be unnecessary.</p>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4402290">Whether they work or not</a>, some form of rights for aspects of nature are likely to become part of most legal systems this century. Anyone with an interest in environmental protection should be aware of the idea and its development.</p>
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<img alt="Imagine weekly climate newsletter" src="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/434988/original/file-20211201-21-13avx6y.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p class="fine-print"><em><span>The author does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article.</span></em></p>The idea of giving aspects of nature legal rights is gaining traction – but the results are mixed.Rónán Kennedy, Associate Professor, University of GalwayLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2079072023-08-15T12:35:26Z2023-08-15T12:35:26ZMontana kids win historic climate lawsuit – here’s why it could set a powerful precedent<p>Sixteen young Montanans who <a href="https://www.youthvgov.org/">sued their state</a> over climate change emerged victorious on Aug. 14, 2023, from a first-of-its-kind climate trial.</p>
<p>The case, Held v. State of Montana, was <a href="https://climatecasechart.com/case/11091/">based on allegations</a> that state energy policies violate the young plaintiffs’ constitutional right to “a clean and healthful environment” – a right that has been enshrined in the <a href="https://leg.mt.gov/bills/mca/title_0000/chapters_index.html">Montana Constitution</a> since the 1970s. The plaintiffs claimed that state laws promoting fossil fuel extraction and forbidding the consideration of climate impacts during <a href="https://deq.mt.gov/public/mepa">environmental review</a> violate their constitutional environmental right.</p>
<p>Judge Kathy Seeley’s <a href="https://westernlaw.org/wp-content/uploads/2023/08/2023.08.14-Held-v.-Montana-victory-order.pdf">ruling in the youths’ favor</a> sets a powerful precedent for the role of “<a href="https://www.ncelenviro.org/issue/green-amendment/">green amendments</a>” in climate litigation. </p>
<p>The lawsuit, heard in Montana district court, was the first in the U.S. to rely on a state’s constitutional right to a clean and healthful environment to challenge state policies that fuel climate change. In light of the success in Held, it won’t be the last. </p>
<figure class="align-center ">
<img alt="A young woman and two young boys listen as lawyers talk. Young people fill two rows of benches behind them in the small court room." src="https://images.theconversation.com/files/542681/original/file-20230814-30-wfvp4c.jpg?ixlib=rb-1.1.0&rect=9%2C45%2C6029%2C3965&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542681/original/file-20230814-30-wfvp4c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542681/original/file-20230814-30-wfvp4c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542681/original/file-20230814-30-wfvp4c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542681/original/file-20230814-30-wfvp4c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542681/original/file-20230814-30-wfvp4c.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542681/original/file-20230814-30-wfvp4c.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Rikki Held, the lead plaintiff in the Montana case, center seated, confers with the Our Children’s Trust legal team before the start of the trial on June 12, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/lead-claimant-rikki-held-confers-with-members-of-our-news-photo/1258643945">William Campbell/Getty Images</a></span>
</figcaption>
</figure>
<h2>What is a green amendment?</h2>
<p>The U.S. Constitution does not contain a green amendment, but several state constitutions do.</p>
<p>Pennsylvania, Montana, Hawaii, Massachusetts and Illinois all amended their state constitutions during the environmental movement of the 1970s to recognize the people’s right to a clean and healthful environment. Because these green amendments are constitutional provisions, they function as limits on what government can do.</p>
<p>Early cases in <a href="https://casetext.com/case/payne-v-kassab">Pennsylvania</a> and <a href="https://law.justia.com/cases/illinois/supreme-court/1984/56315-7.html">Illinois</a> testing these newly recognized constitutional rights saw little success. By the 1990s, the <a href="https://law.justia.com/cases/illinois/supreme-court/1995/76775-7.html">Illinois Supreme Court had eviscerated</a> Illinois’ green amendment, concluding that the environmental right did not provide a basis upon which a citizen could bring a lawsuit.</p>
<p>In 1999, however, when green amendments were all but forgotten, a single case in Montana <a href="https://casetext.com/case/meic-v-dep-of-env-quality">quietly vindicated</a> Montanans’ constitutional right to a clean and healthful environment. </p>
<p>It was brought by local environmental groups over water quality concerns at a proposed gold mine. At that time, Montana’s environmental laws allowed the state to issue permits for projects that would discharge pollutants into Montana waters without conducting any environmental review. The Montana Supreme Court determined that such a law violated Montanans’ fundamental right to a clean and healthful environment and was unconstitutional.</p>
<figure class="align-center ">
<img alt="A group of people hikes through a forest with dead trees on one side." src="https://images.theconversation.com/files/542690/original/file-20230814-17-1kt1en.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542690/original/file-20230814-17-1kt1en.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542690/original/file-20230814-17-1kt1en.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542690/original/file-20230814-17-1kt1en.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542690/original/file-20230814-17-1kt1en.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542690/original/file-20230814-17-1kt1en.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542690/original/file-20230814-17-1kt1en.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Montana’s forests are facing new threats as temperatures rise. Whitebark pine, a foundational species, are increasingly at risk from diseases and insects that previously couldn’t thrive in the high-mountain habitat.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-and-guests-of-the-whitebark-pine-ecosystem-news-photo/1175043338?adppopup=true">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<p>The next <a href="https://casetext.com/case/robinson-twp-v-pa-pub-util-commn">green amendment success</a> took 14 years and occurred in Pennsylvania. In the early 2010s, Pennsylvania enacted a state law that gave the oil and gas industry the right to commence <a href="https://www.epa.gov/uog/process-unconventional-natural-gas-production">hydraulic fracturing</a>, or fracking, anywhere in the state. This law prevented local governments from making land use decisions to restrict or limit fracking in their jurisdictions. The Pennsylvania Supreme Court <a href="https://casetext.com/case/robinson-twp-v-pa-pub-util-commn">struck down</a> this state law as violating Pennsylvanians’ constitutional right to a clean and healthful environment.</p>
<p>That Pennsylvania decision ignited an explosion of interest in green amendments.</p>
<p>In Hawaii, public interest groups began challenging the state’s approval of carbon-intensive electricity generation on the ground that it violates Hawaiians’ right to a clean and healthful environment. The state now relies on its green amendment to <a href="https://law.justia.com/cases/hawaii/supreme-court/2023/scot-22-0000418.html">reject new carbon-intensive electricity sources</a> for powering Hawaii.</p>
<p>In 2022, <a href="https://nygreen.pace.edu/">New York</a> became the first state since the 1970s to adopt a green amendment. Currently, <a href="https://apps.azleg.gov/BillStatus/BillOverview/79167">Arizona</a>, <a href="https://www.cga.ct.gov/asp/cgabillstatus/cgabillstatus.asp?selBillType=Bill&bill_num=HJ37&which_year=2023">Connecticut</a>, <a href="https://www.legis.iowa.gov/legislation/BillBook?ba=HJR10&ga=90">Iowa</a>, <a href="https://apps.legislature.ky.gov/record/23rs/hb140.html">Kentucky</a>, <a href="https://legislature.maine.gov/LawMakerWeb/summary.asp?ID=280086900">Maine</a>, <a href="https://www.leg.state.nv.us/App/NELIS/REL/82nd2023/Bill/9946/Overview">Nevada</a>, <a href="https://www.njleg.state.nj.us/bill-search/2022/SCR15">New Jersey</a>, <a href="http://www.nmlegis.gov/Legislation/Legislation?chamber=H&legType=JR&legNo=4&year=23">New Mexico</a>, <a href="https://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HJR0050&ga=113">Tennessee</a>, <a href="https://capitol.texas.gov/BillLookup/History.aspx?LegSess=88R&Bill=HJR119">Texas</a>, <a href="https://legislature.vermont.gov/bill/status/2020/PR.9">Vermont</a>, <a href="https://app.leg.wa.gov/billsummary?BillNumber=4205&Year=2021&Initiative=false">Washington</a>, and <a href="http://www.wvlegislature.gov/bill_status/resolution_history.cfm?year=2023&sessiontype=rs&input4=9&billtype=jr&houseorig=h&btype=res">West Virginia</a> are considering adopting green amendments.</p>
<h2>Success in Montana</h2>
<p>Based on the extensive scientific evidence presented at the trial in June, Judge Seeley found that the Montana youth are being harmed by climate change occurring in Montana and that those climate change effects can be attributed to the state law the plaintiffs challenged. </p>
<p>Seeley also determined that declaring the state law forbidding the consideration of climate impacts during environmental review unconstitutional would alleviate further harm to the youth. On these grounds, she struck down the state law as unconstitutional.</p>
<p>This result sets a groundbreaking precedent for climate litigation and demonstrates a new way in which green amendments can be invoked to elicit environmental change. It suggests that in other states with green amendments, state laws cannot forbid the consideration of greenhouse gas emissions and their climate impact during environmental review.</p>
<figure class="align-center ">
<img alt="A silhouetted family watches as smoke rises from the Robert Fire in Glacier National Park, near West Glacier, Montana" src="https://images.theconversation.com/files/542698/original/file-20230814-18-y275j9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542698/original/file-20230814-18-y275j9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=393&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542698/original/file-20230814-18-y275j9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=393&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542698/original/file-20230814-18-y275j9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=393&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542698/original/file-20230814-18-y275j9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=494&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542698/original/file-20230814-18-y275j9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=494&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542698/original/file-20230814-18-y275j9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=494&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Wildfire smoke has become an unwelcome part of life during summer and fall in parts of Montana.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/family-watches-as-smoke-rises-from-the-robert-fire-in-news-photo/2344488?adppopup=true">Robin Loznak/Getty Images</a></span>
</figcaption>
</figure>
<p>However, Seeley made it clear long before trial that she <a href="https://climatecasechart.com/case/11091/">does not have the power</a> to order the state to create a remedial plan to address climate change. </p>
<p>Further, the Montana legislature <a href="https://www.desmog.com/2023/04/03/montana-repeals-state-energy-policy-as-climate-trial-nears/">repealed</a> the state policies promoting fossil fuel extraction just two months before the trial began, and a judge cannot generally rule on the constitutionality of a repealed law. So, whether state policies promoting fossil fuel extraction violate the people’s constitutional right to a clean and healthful environment is a question for another day and another case. </p>
<p>A spokeswoman for Montana’s attorney general said the <a href="https://apnews.com/article/climate-change-youth-montana-trial-c7fdc1d8759f55f60346b31c73397db0">state plans to appeal</a> Seeley’s ruling.</p>
<h2>Impact on federal climate litigation</h2>
<p>It is unclear how the Montana youths’ victory will influence federal climate litigation. The federal youth climate case <a href="https://climatecasechart.com/case/juliana-v-united-states/">Juliana v. United States</a>, which was recently revived, relies on the Fifth and Ninth amendments to the U.S. Constitution, as well as the common law <a href="https://ir.law.fsu.edu/articles/719/">public trust doctrine</a>. Neither the Fifth Amendment nor the Ninth Amendment is considered environmental rights akin to a green amendment. However, the public trust doctrine has been relevant in <a href="https://casetext.com/case/foundation-v-commonwealth-6?q=161%20A.3d%20911&sort=relevance&p=1&type=case">some states’ green amendment jurisprudence</a>.</p>
<p>In the states that have green amendments, climate advocates will certainly rely on the Montana youth case as they challenge state laws that promote climate change.</p>
<p>In recent years, we have witnessed an erosion of our environmental laws through <a href="https://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html">politics</a> and the <a href="https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf">courts</a>. That has fueled <a href="https://news.climate.columbia.edu/2021/04/22/rights-of-nature-lawsuits/">new legal claims of environmental rights</a> in the U.S., <a href="https://theconversation.com/court-decision-in-youth-climate-lawsuit-against-ontario-government-ignites-hope-206275">Canada</a> and other countries. </p>
<p>This phenomenon is the <a href="https://law.fiu.edu/directory/amber-polk/">focus of my research</a>, of which green amendments are just a part. I believe we will continue to see cases, like Held v. State of Montana, invoke rights-based approaches to tackle environmental problems in the future.</p><img src="https://counter.theconversation.com/content/207907/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amber Polk does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The case hinged on Montana’s ‘green amendment,’ which guarantees a constitutional right to ‘a clean and healthful environment.’ Other states have similar amendments, and more are considering them.Amber Polk, Assistant Professor of Law, Florida International UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2097402023-07-17T14:08:21Z2023-07-17T14:08:21ZIt’s time for Ghana to enshrine its respect for the right to life – by abolishing the death penalty<figure><img src="https://images.theconversation.com/files/537450/original/file-20230714-17-ymm8xc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The death penalty has not been enforced in Ghana for over three decades</span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p>Thirty years have now gone by since Ghana used its gallows, a fact that indicates the country’s respect for human life. It also means that Ghana is one of <a href="https://deathpenaltyinfo.org/policy-issues/international/abolitionist-and-retentionist-countries">about 42 nations</a> – many of which are in Africa – that the United Nations calls <a href="https://www.law.ox.ac.uk/sites/default/files/migrated/field/field_document/56_hood_roger_libro_homenaje.pdf">abolitionist de facto</a> because they have not executed anyone for at least a decade. </p>
<p>However, there is a paradox. Not only does Ghana retain the death penalty as a sentence for three crimes (murder, treason and genocide), death is the mandatory punishment for them. The law gives the judges no choice in sentencing for these crimes. Last year, the courts sentenced seven people to death. At the end of 2022, there were <a href="https://ghanaprisons.gov.gh/about-us/statistics.cits">176 inmates</a> on death row, and the list grows every year. </p>
<p>It could be argued that by continuing to hand down mandatory death sentences, Ghana’s courts are unusually harsh, for, <a href="https://www.amnesty.org/en/documents/act50/6548/2023/en/#page=4">according</a> to Amnesty International, only ten countries did so last year. </p>
<p>But Ghanaian policymakers and civil society are making a renewed effort to resolve the contradictions on the death penalty. These efforts have led to <a href="http://ir.parliament.gh/bitstream/handle/123456789/2385/Criminal%20Offence%20%28Amendment%29Bill%2c2022.pdf?sequence=1&isAllowed=y">two new bills</a> due to be debated by parliament. They would enable Ghana to abolish capital punishment in law, as well as in practice. </p>
<p>As academic and legal experts on capital punishment for more than 30 years, we have been assisting Ghanaian policymakers and civil society groups. The latest initiative to end the use of the death penalty is firmly rooted in human rights principles and evidence based research. </p>
<p>A broad engagement in Ghana over a sustained period with a diverse range of stakeholders has enabled members of parliament to consider key aspects of capital punishment objectively. Previous attempts to abolish the death penalty in Ghana have involved complex constitutional amendments. The current moves require only amendments to criminal statutes: a majority of MPs need to vote for abolition. </p>
<h2>A chance for change</h2>
<p>The two new bills before parliament create a golden opportunity to bring the contradictions to an end. One covers the military, the other the civilian courts. </p>
<p>This opportunity follows a recent wave of abolition across sub-Saharan Africa. In the last ten years, Benin, Burkina Faso, Central African Republic, Chad, Equatorial Guinea, Guinea, Madagascar, Republic of Congo, Sierra Leone and Zambia have all abolished the death penalty. Despite their vastly different histories and legal contexts, through political will and leadership these countries all reached a recognition of the cruelty, inhumanity and injustice inherent in capital punishment. In doing so, they joined over 100 other countries worldwide which have now fully abolished. </p>
<p>Ghana’s <a href="https://www.parliament.gh/committees?com=15">Committee on Constitutional, Legal and Parliamentary Affairs</a>, assisted by senior justice officials, has been scrutinising the new bills carefully. We also had the privilege of being able to offer the committee advice. Its reports are now in, recommending that the House should pass the bills and replace the sentence of death with life imprisonment.</p>
<p>The committee’s reports note a further contradiction in Ghana’s current stance: it has ratified international human rights treaties and conventions, including the <a href="https://au.int/sites/default/files/treaties/36390-treaty-0011_-_african_charter_on_human_and_peoples_rights_e.pdf">African Charter on Human Rights</a> and the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights">International Covenant on Civil and Political Rights</a>. These, the committee says, “oblige the country to guarantee its citizens the right to life, and to live free from torture or cruelty.” </p>
<p>The reports deploy further, persuasive arguments. </p>
<p>One is that no criminal process can ever achieve certainty or perfection, so that retaining the death penalty will always carry the risk that an innocent person could be executed. </p>
<p>Another examines the claim that capital punishment is a deterrent to offending. The committee says there is no empirical evidence for this. In the United States, the murder rate is <a href="https://deathpenaltyinfo.org/stories/states-with-no-death-penalty-share-lower-homicide-rates">consistently higher</a> in states that use capital punishment than in those that don’t. The seven <a href="https://www.visionofhumanity.org/maps/#/">least violent</a> countries in the world have all abolished it. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-has-kenya-not-abolished-the-death-penalty-habit-and-inertia-189955">Why has Kenya not abolished the death penalty? Habit and inertia</a>
</strong>
</em>
</p>
<hr>
<p>It is now up to parliament. Abolishing the death penalty in law would place Ghana squarely within a worldwide trend, which is especially noticeable in Africa at the moment. <a href="https://www.amnesty.org/en/wp-content/uploads/2021/05/ACT5011622019ENGLISH.pdf#page=9">Movements</a> to do the same are gathering pace in other jurisdictions on the continent. </p>
<h2>A willing public</h2>
<p>The latest effort at abolishing the death penalty is not the first. In 2012, Ghana came close to abolishing the death penalty altogether, following a <a href="https://rodra.co.za/images/countries/ghana/research/WHITE%20PAPER%20%20ON%20THE%20REPORT%20OF%20THE%20CONSTITUTION%20REVIEW%20COMMISSION%20PRESENTED%20TO%20THE%20PRESIDENT%20.pdf#page=42">recommendation</a> by the Constitution Review Commission that was accepted by the then-government. Unfortunately, the path it tried to adopt, amending the constitution, is complex and challenging and in the end it failed.</p>
<p>Although its courts are still sentencing people to death, Ghana supported a UN General Assembly <a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/764/50/PDF/N2276450.pdf?OpenElement">resolution</a> last December calling for an indefinite, worldwide moratorium on the death penalty “with a view to abolition”. Similar resolutions have been carried repeatedly with steadily increasing majorities since 2007. In 2022, almost two-thirds of the world’s nations voted in favour. For the first time, Ghana was among them, having abstained previously.</p>
<p>Meanwhile, although politicians sometimes <a href="https://www.graphic.com.gh/news/politics/death-penalty-appeals-more-to-victims-families-than-life-imprisonment-cletus-avoka.html#:%7E:text=In%20a%20radio%20interview%20monitored,family%20than%20the%20life%20imprisonment.%22">express</a> the fear that abolishing the death penalty would be unpopular, there is good evidence that in Ghana the opposite is true. </p>
<p>According to a <a href="https://arro.anglia.ac.uk/id/eprint/702009/1/Public-Opinion-on-the-Death-Penalty-in-Ghana-Final.pdf">study</a> published in 2015, there are clear majorities against the death penalty for all three of the crimes to which it is applicable. Just 8.6% of those surveyed said they were “strongly in favour” of it. In all, 71% were against. Based on interviews with more than 2,000 people who reflected Ghana’s socio-economic and ethnic composition, this survey was described by the late Professor Roger Hood of the University of Oxford in his <a href="https://arro.anglia.ac.uk/id/eprint/702009/1/Public-Opinion-on-the-Death-Penalty-in-Ghana-Final.pdf">foreword</a> to the report as</p>
<blockquote>
<p>the first methodologically sound study of public opinion on the death penalty in an African state.</p>
</blockquote>
<p>Some might argue that since Ghana is an abolitionist de facto nation, there is no pressing need for legal abolition. In practice, what difference would it make? To this argument, we would say: look at Myanmar, which having been abolitionist de facto since the 1980s, resumed executions last year. No state can ever be entirely immune from the political upheaval that caused this shift. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/kenyan-prisoners-on-death-row-werent-deterred-by-the-threat-of-the-death-penalty-new-research-findings-197701">Kenyan prisoners on death row weren’t deterred by the threat of the death penalty: new research findings</a>
</strong>
</em>
</p>
<hr>
<p>Back in 1992, Ghana’s <a href="https://constitutionnet.org/vl/item/political-developmental-constitution-report-constitutional-review-commission-ghana-2011">Constitutional Review Commission</a> observed that </p>
<blockquote>
<p>the sanctity of life is a value so much engrained in the Ghanaian social psyche that it cannot be gambled away with judicial uncertainties. </p>
</blockquote>
<p>The best way to protect that value now is for parliament to accept the committee’s reports, and vote for abolition.</p><img src="https://counter.theconversation.com/content/209740/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Ghana is a signatory to several international conventions that oblige it to guarantee the right to life.Saul Lehrfreund, Visiting Professor, School of Law, University of ReadingCarolyn Hoyle, Director of the University of Oxford Death Penalty Research Unit, Centre for Criminology, Faculty of Law, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2082422023-07-09T11:35:15Z2023-07-09T11:35:15ZKenya at 60: six key moments that shaped post-colonial politics<figure><img src="https://images.theconversation.com/files/533521/original/file-20230622-8708-1flywg.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Kenya's first president Jomo Kenyatta waves at a crowd. </span> <span class="attribution"><span class="source">Harry Benson/Getty Images</span></span></figcaption></figure><p><em>Kenya celebrates 60 years of independence this year. As a political scientist who has <a href="https://warwick.ac.uk/fac/soc/pais/people/lynch/">studied</a> Kenya for the past 20 years, I consider a turning point from each decade that helped to shape the east African country’s post-colonial politics. I haven’t selected elections, assassinations or other moments that have enjoyed much coverage over the years. Instead, I turn to often-forgotten moments that shed light on the country’s key steps forward – and backwards – and the role of agency and institutions.</em></p>
<h2>1964: The Lanet mutiny</h2>
<p>In the 1960s and 1970s, governments across <a href="https://web.archive.org/web/20170808104534id_/http://www.jonathanmpowell.com/uploads/2/9/9/2/2992308/mcgowan_2003jmas_-_african_military_coups_1956-2001-_frequency_trends_and_distribution.pdf">Africa fell</a> to military coups and countercoups. These nations suffered the arbitrary and authoritarian rule of <a href="https://www.cambridge.org/core/journals/journal-of-modern-african-studies/article/ethnic-inequalities-in-kenya/EAFC4455E840815B624147EE930C1C34">military leaders</a>. </p>
<p>Kenya managed to avoid this fate. A regiment based at Lanet in Nakuru did stage an unsuccessful mutiny in 1964. In response, Kenya’s first president, Jomo Kenyatta – as Kenyan political scholar <a href="https://global.oup.com/academic/product/the-oxford-handbook-of-kenyan-politics-9780192887429?cc=us&lang=en&#">Musambayi Katumanga</a> has detailed – opted to keep the military small. He relied instead on various police units. </p>
<p>Kenyatta also “gradually altered the military’s ethnic composition”, which, at that time, was disproportionately composed of officers from Kalenjin, Kamba, Samburu and Somali communities. He increased the number of co-ethnic Kikuyu, Kenya’s largest and most economically dominant ethnic group. </p>
<p>These measures helped to ensure the military’s loyalty to the regime. But at a cost. The multiplication of security units undermined control and <a href="https://global.oup.com/academic/product/the-oxford-handbook-of-kenyan-politics-9780192887429?cc=us&lang=en&#">accountabiliy</a>. </p>
<p>The strategy of ethnic recruitment and promotion reinforced a sense of an ethnically biased state. It was a <a href="https://global.oup.com/academic/product/the-oxford-handbook-of-kenyan-politics-9780192887429?cc=us&lang=en&#">strategy copied</a> by Kenyatta’s successor, Daniel arap Moi, after a <a href="https://nation.africa/kenya/nation-prime/how-ochuka-coup-attempt-changed-kenya-1910656">coup attempt in 1982</a>. Kenya’s third president, Mwai Kibaki, also adopted it after the country’s <a href="https://www.aljazeera.com/features/2013/3/3/kenya-what-went-wrong-in-2007">2007/8 post-election crisis</a>.</p>
<h2>1976: The Change the Constitution Movement</h2>
<p>By the mid-1970s, Kenyatta was unwell. To prevent the automatic succession of his vice-president, Moi, a group of prominent Kikuyu politicians attempted to <a href="https://publishing.cdlib.org/ucpressebooks/view?docId=ft9h4nb6fv&chunk.id=d0e2582&toc.depth=1&brand=ucpress">change the constitution</a>. Their efforts were unsuccessful. Power transferred peacefully to Moi upon Kenyatta’s death in 1978. </p>
<p>Nevertheless, the attempt had three important legacies:</p>
<ul>
<li><p>the military had once again been kept out of national politics </p></li>
<li><p>the new president was made acutely aware of the insecurity of his position</p></li>
<li><p>a popular sense grew of how a Kikuyu elite felt entitled to rule.</p></li>
</ul>
<h2>1980: The crackdown begins</h2>
<p>For the first year or so, Moi largely followed in Kenyatta’s footsteps, or “nyayo” in Kiswahili. He blocked any real opposition but left space for broader political debate. </p>
<p>However, in 1980, Moi’s more authoritarian streak began to show. He banned the Nairobi University Students’ Organisation and deregistered the University Academic Staff Union and Kenya Civil Servants Union. He also ordered ethnicity-based associations to wind up their affairs in the interest of “national unity”. </p>
<p>Authoritarianism came to characterise the 1980s as people were required to follow in Moi’s footsteps. </p>
<h2>1990: Timothy Njoya’s new year speech</h2>
<p>In November 1991, the <a href="https://clubdeparis.org/">Paris Club of donors</a>, an informal group of western creditors, suspended US$350 million in aid to Kenya until political reforms were initiated. The following month, a constitutional amendment was rushed through parliament, paving the way for a return to multi-party elections. </p>
<p>This timeline could mistakenly be taken to suggest that it was donor pressure that forced constitutional reform. But there was already substantive pressure for multi-party politics from within Kenya. </p>
<p>A tidal change occurred at the dawn of 1990 when, in a new year speech, theologian Timothy Njoya <a href="https://books.google.co.uk/books?hl=en&lr=&id=tmmTQgt0iXQC&oi=fnd&pg=PR5&dq=i+say+to+you+ethnic+politics+kenya+lynch+&ots=u7HbNNpU6Q&sig=Fc0hDJagdL31LFjKxkRkf8E4qkc&redir_esc=y#v=onepage&q=i%20say%20to%20you%20ethnic%20politics%20kenya%20lynch&f=false">speculated</a> on how much longer Kenya would be a one-party state. Opposition elements –- most notably, religious and civil society leaders, and politicians marginalised from the political centre –- became increasingly vocal in their demands for multi-party politics.</p>
<p>It was these domestic demands – together with the threat of suspended aid – that forced Moi’s hand and prompted a return to multi-party politics in the early 1990s. Still, Moi <a href="https://global.oup.com/academic/product/the-oxford-handbook-of-kenyan-politics-9780192887429?cc=us&lang=en&#">sought to control</a> the transition. </p>
<h2>2005: The constitutional referendum</h2>
<p>In 2002, Kibaki and the National Rainbow Coalition ousted independence party Kanu in a landslide victory. This prompted a moment of <a href="https://www.jstor.org/stable/3518447">great optimism</a> in Kenya. </p>
<p>However, divisions soon wracked the coalition as <a href="https://www.tandfonline.com/doi/abs/10.1080/10246029.2005.9627591">reports emerged</a> of corruption scandals and ethnic bias. Promises of constitutional reform were watered down. Popular frustration showed when Kenyans rejected the draft constitution in the 2005 <a href="https://www.tandfonline.com/doi/abs/10.1080/00020180601035674">referendum</a>.</p>
<p>The referendum and general elections that followed meant that Kenya was in intense campaign period for over two years. This elongated campaign drew attention to frustrated hopes. It also presented the government as <a href="https://www.tandfonline.com/doi/full/10.1080/00020180601035674">from and for the Kikuyu</a>. </p>
<p>The referendum also increased confidence in the electoral commission. This meant that people paid relatively little attention to developments like Kibaki’s unilateral <a href="https://www.tandfonline.com/doi/abs/10.1080/17531055.2019.1592326">judicial appointments</a>. </p>
<p>Finally, the referendum fostered a sense that the opposition would win the 2007 election unless it was rigged. Together with a <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/67654/elections-ke-2007.pdf">problematic election</a> and history of unpunished election-related violence, these factors fuelled Kenya’s greatest post-colonial crisis. More than 1,000 people were killed and almost <a href="https://www.tandfonline.com/doi/full/10.1080/03056240903346194">700,000 displaced</a> in violence after the 2007 election.</p>
<h2>2011: A new chief justice</h2>
<p>The 2007/8 crisis paved the way for a new <a href="http://www.parliament.go.ke/sites/default/files/2023-03/The_Constitution_of_Kenya_2010.pdf">constitution</a> in 2010. Among other things, it devolved power to 47 new county governments. It also established a new bill of rights and created the supreme court. The latter has exclusive jurisdiction to hear and determine presidential election petitions, and determine appeals from the court of appeal. It also determines cases that involve interpretation or application of the constitution. </p>
<p>As the highest court in the land, the leadership of the supreme court is critical. It marked a turning point when Willy Mutunga –- a highly respected human rights advocate –- was appointed as the court’s first chief justice. Some criticise Mutunga for having <a href="https://www.tandfonline.com/doi/abs/10.1080/17531055.2015.1029296">validated</a> Uhuru Kenyatta and William Ruto’s election in 2013. However, he also presided over <a href="http://www.saflii.org/za/journals/SPECJU/2015/6.html">decisions</a> that protected the devolution of power and the bill of rights. And he oversaw <a href="https://freedomhouse.org/article/kenyas-democracy-hinges-strong-chief-justice">reforms and judicial learnings</a> that helped to establish a more independent court. Reforms that – together with his successor’s brave leadership – made the supreme court’s <a href="https://www.reuters.com/article/us-kenya-election-court/kenyan-court-scraps-presidential-vote-kenyatta-calls-for-calm-idUSKCN1BC4A5">annulment of the August 2017 election</a> possible.</p>
<p>The lesson from these moments: individuals can make a difference for good or bad, particularly when they help to reshape the institutions that will outlive them.</p><img src="https://counter.theconversation.com/content/208242/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>In recent years Gabrielle Lynch has received funding from the Economic and Social Research Council, Foreign, Commonwealth and Development Office, and University of Warwick. </span></em></p>Jomo Kenyatta and his successor Daniel arap Moi set the tone for ethnic and authoritarian politics which Kenya has wrestled to free itself from in recent decades.Gabrielle Lynch, Professor of Comparative Politics, University of WarwickLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2070732023-07-01T00:03:38Z2023-07-01T00:03:38ZA business can decline service based on its beliefs, Supreme Court rules – but what will this look like in practice?<figure><img src="https://images.theconversation.com/files/535089/original/file-20230630-15-48437j.jpg?ixlib=rb-1.1.0&rect=9%2C15%2C2108%2C1393&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Designing for all couples -- or declining?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/cyber-love-royalty-free-image/522854467?phrase=wedding+rings+computer&adppopup=true">DawidMarkiewicz/iStock via Getty Images Plus</a></span></figcaption></figure><p>At issue in one of this year’s most highly anticipated Supreme Court cases, <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">303 Creative v. Elenis</a>, was what happens when someone’s free speech or beliefs conflict with others’ rights. Specifically, 303 Creative addressed whether a Colorado anti-discrimination law can require a designer who believes marriage is only between a man and a woman to create a wedding website for a same-sex couple.</p>
<p>Two years ago, the 10th Circuit Court of Appeals <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">affirmed that the answer was “yes</a>.”</p>
<p>But on June 30, 2023, a bitterly divided Supreme Court <a href="https://www.oyez.org/cases/2022/21-476">reversed that judgment</a>, holding 6-3 that <a href="https://constitution.congress.gov/constitution/amendment-1/">the free speech clause of the First Amendment</a> prohibited state officials from requiring the designer to create a website that communicates a message with which she disagrees.</p>
<p>As <a href="https://udayton.edu/directory/education/eda/russo_charles.php">a professor of law</a> who pays particular attention to First Amendment issues involving freedom of religion and speech, I see the case highlighting tension between two competing fundamental interests – ones that clash routinely in 21st century America.</p>
<h2>Compelled speech?</h2>
<p>The underlying dispute involves graphic artist Lorie Smith, the founder and owner of a studio called <a href="https://303creative.com/about/">303 Creative</a>. According to court documents, Smith will work with clients of any sexual orientation. However, she will not create content that goes against her religious beliefs, such as “that marriage is a union between one man and one woman.”</p>
<p>Conflict arose when Smith challenged <a href="https://ccrd.colorado.gov/ccrd-home/regulatory-information">Colorado’s Anti-Discrimination Act</a>, under which it is discriminatory and illegal to refuse services to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry.” </p>
<p>In 2016, Smith unsuccessfully sued the members of <a href="https://www.denverpost.com/2016/09/21/colorado-lawsuit-says-law-promotes-same-sex-marriage/">the state’s Civil Rights Commission and Colorado’s attorney general</a>. She and her attorneys argued that creating a website counts as an act of speech, and so being required to prepare a same-sex wedding website would violate her First Amendment rights: The law would force her to speak, legally referred to as “compelled speech.”</p>
<p>Smith and her attorneys also claimed that requiring her to create a website would violate her First Amendment right to <a href="https://constitution.congress.gov/constitution/amendment-1/">the free exercise of religion</a>.</p>
<p>The <a href="https://casetext.com/case/303-creative-llc-v-elenis-1">federal trial court</a> in Colorado rejected Smith’s attempt to block enforcement of the anti-discrimination law in 2019. When she appealed, a split <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">10th Circuit affirmed</a> that Smith could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs. Protecting diverse viewpoints, <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">in the court’s opinion</a>, was a “good in and of itself,” but combating discrimination “is, like individual autonomy, ‘essential’ to our democratic ideals.” </p>
<p>In <a href="https://cases.justia.com/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.pdf?ts=1627336853">a lengthy dissent</a>, the chief judge of the 10th Circuit focused on compelled speech. He criticized the panel for taking “the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience.”</p>
<h2>SCOTUS speaks</h2>
<p>The Supreme Court agreed to hear Smith’s case but limited the issue to free speech, sidestepping the dispute over the free exercise of religion. The <a href="https://www.supremecourt.gov/docket/docketfiles/html/qp/21-00476qp.pdf">question before the court</a> was “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A small crowd of people in coats walk cheerfully down the steps of a building with large pillars." src="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Lorie Smith, center in pink, walks out of the Supreme Court on Dec. 5, 2022, after the high court heard oral arguments in her case.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/lorie-smith-a-christian-graphic-artist-and-website-designer-news-photo/1245399590?adppopup=true">Kent Nishimura/Los Angeles Times via Getty Images</a></span>
</figcaption>
</figure>
<p>Writing for the majority, Justice Neil Gorsuch noted that “First Amendment protections belong to all, not just to speakers whose motives the government finds worthy.” </p>
<p>Gorsuch reviewed the Supreme Court’s cases protecting the rights of individuals not to express themselves. In 1943’s <a href="https://www.law.cornell.edu/supremecourt/text/319/624">West Virginia Board of Education v. Barnette</a>, for example, the court declared that public officials could not compel students who were Jehovah’s Witnesses to salute the flag, because doing so violated their religious beliefs.</p>
<p>While noting the “vital role public accommodations laws play in realizing the civil rights of all Americans,” <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">Gorsuch reasoned</a> that Colorado could not “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” </p>
<p>Further, Gorsuch harshly criticized the dissenting justices’ argument that Colorado’s law focused on business owners’ conduct, not speech, contending that the dissent sidesteps a key question: whether a state can “force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”</p>
<p>Justice Sonia Sotomayor, <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">whose dissent was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson</a>, lamented the majority’s decision as a time when there is “backlash to the movement for liberty and equality for gender and sexual minorities.” </p>
<p>Sotomayor then argued that under Colorado’s anti-discrimination law, Smith’s “freedom of speech <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">is not abridged</a> in any meaningful sense, factual or legal.” If Smith wants to “advocate the idea that same-sex marriage betrays God’s laws,” Sotomayor made it clear that she can. </p>
<p>Sotomayor went on to decry the ruling for symbolically “mark(ing) gays and lesbians for second-class status.” Denying services to same-sex couples “reminds LGBT people of a painful feeling that they know all too well,” she wrote. “There are some public places where they can be themselves, and some where they cannot.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Half a dozen somber-looking people stand at the front of a room during a press conference." src="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Religious leaders and Colorado Attorney General Phil Weiser hold a press conference in Denver following the Supreme Court’s decision in 303 Creative LLC v. Elenis.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/kurt-kaufman-ministerial-associate-at-first-baptist-church-news-photo/1373397545?adppopup=true">Hyoung Chang/The Denver Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Questions ahead</h2>
<p>To see how 303 Creative’s impact plays out, it is worth closely watching the parts of the U.S. with anti-discrimination statutes in place. As Justice Gorsuch noted, about half of all states have laws like Colorado’s that “<a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">expressly prohibit discrimination</a> based on sexual orientation.” More specifically, <a href="https://www.lgbtmap.org/equality-maps/non_discrimination_laws/public-accommodations">22 states, plus the Virgin Islands and Washington, D.C.</a>, offer various forms of protections for LGBTQ+ individuals – including retail stories, restaurants, parks, hotels, doctors’ offices and banks.</p>
<p>I believe 303 Creative presents a challenge for society to come to grips with the tension between two fundamental interests.</p>
<p>One is the Supreme Court’s affirmation of Smith’s key argument: that requiring her to prepare websites that go against her religious beliefs would violate her First Amendment right to freedom of speech.</p>
<p>The other is the interest of same-sex couples in hiring the services they wish – and simply to be treated equally in the eyes of the law, on par with any other potential customers.</p>
<p>Ensuring both freedom of speech and civil rights requires good-faith efforts at respect – and respect is a two-way street. However, exactly what this looks like will likely be the cause of more litigation to come.</p><img src="https://counter.theconversation.com/content/207073/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A designer opposed to same-sex marriage argued that a Colorado anti-discrimination law would effectively force her to speak against her beliefs.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2078922023-06-21T12:29:06Z2023-06-21T12:29:06ZTrump’s trial will soon be underway in Florida – here’s why prosecutors had little choice in selecting any other courthouse location<figure><img src="https://images.theconversation.com/files/532970/original/file-20230620-15-scpnfz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Police walk around the Wilkie D. Ferguson Jr. federal courthouse in Miami before Donald Trump's arraignment on June 12, 2023.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1497975541/photo/miami-readies-for-former-president-trumps-arraignment-in-federal-court.jpg?s=1024x1024&w=gi&k=20&c=z25KKlBei902cacVnqqAL953bYjin6uv7iOk9gdm_9U=">Joe Raedle/Getty Images</a></span></figcaption></figure><p>Special Counsel Jack Smith may have wished he could indict and try former president Donald Trump in Washington, D.C., <a href="https://stacker.com/politics/states-highest-and-lowest-trump-approval-ratings">where Trump is disliked,</a> rather than in southern Florida, where <a href="https://worldpopulationreview.com/state-rankings/trump-approval-rating-by-state">Trump is popular.</a> </p>
<p>But based on my experience as <a href="https://scholar.google.com/citations?user=DMWfDCgAAAAJ&hl=en">a scholar of criminal law and procedure,</a> as well as my time practicing criminal law, I believe that under the Constitution – and under the circumstances – Smith had little choice but to prosecute Trump in Florida. </p>
<p>The federal prosecution of Trump for retaining and concealing government documents is specifically pending in the Southern District of Florida, where Mar-a-Lago, Trump’s estate and golf club, is located.</p>
<p>Aileen M. Cannon, the federal judge presiding over the case, announced on June 20, 2023, that the <a href="https://www.nytimes.com/2023/06/20/us/politics/trump-classified-documents-trial-date.html">trial could begin</a> as soon as Aug. 14. </p>
<p>The Constitution requires <a href="https://constitution.congress.gov/browse/article-3/section-2/">that a trial must be “held</a> in the State where the said Crimes shall have been committed” and that a defendant is entitled to an “impartial jury of the State and district wherein the crime shall have been committed.” </p>
<p>This means that the so-called “venue” for a federal prosecution is <a href="https://www.uscourts.gov/about-federal-courts/federal-courts-public/court-website-links#districtbankruptcy">the district</a> where the alleged crime was committed. </p>
<p>Congress is responsible for drawing district lines in states. In some states, like Massachusetts and North Dakota, the borders of the district are identical to the borders of the state. Other states have more than one federal judicial district; Florida has three. Accordingly, U.S. district judges in Florida hear cases only from part of the state. </p>
<p>It is important for the prosecution to choose the proper venue. When a defendant objects to the venue, a judge may dismiss the case. And if the jury finds that a crime was not actually committed in the district, they are instructed to render a “not guilty” verdict, ending the case permanently.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/532968/original/file-20230620-19-d3forp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Former President Donald Trump is seen behind a glass window with two thumbs up. The photo is dark, showing the interior of a car." src="https://images.theconversation.com/files/532968/original/file-20230620-19-d3forp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/532968/original/file-20230620-19-d3forp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/532968/original/file-20230620-19-d3forp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/532968/original/file-20230620-19-d3forp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/532968/original/file-20230620-19-d3forp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/532968/original/file-20230620-19-d3forp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/532968/original/file-20230620-19-d3forp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump gives a thumbs-up as he leaves the federal courthouse in Miami following his June 2023 arraignment.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1498241989/photo/former-president-trump-is-arraigned-on-federal-espionage-charges.jpg?s=1024x1024&w=gi&k=20&c=XeVC3r9cLzvvFVX0w1oGaWMkdlvL5psMNbWGvsZJhAU=">Scott Olson/Getty Images</a></span>
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<h2>Across state lines</h2>
<p>There are a few issues that complicate the constitutional mandate that a crime should be prosecuted where it was allegedly committed. </p>
<p>One is that a crime may be committed in more than one district.</p>
<p>Methamphetamine may be made in Arizona and sold in New Mexico, for example. A fraud victim may be deceived in Alabama, but yet wire their money to Mississippi. The law does not insist that there is one and only one permissible venue for a federal prosecution.</p>
<p>Instead, the U.S. Code <a href="https://www.law.cornell.edu/uscode/text/18/3237">says that a federal offense</a> “may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.” </p>
<p>Prosecutors are alleging that <a href="https://www.nbcnews.com/politics/donald-trump/trump-classified-documents-investigation-timeline-rcna88620">Trump’s criminal activity took place</a> in both Florida and Washington. </p>
<p>The <a href="https://www.washingtonpost.com/national-security/2023/06/09/indictment-document-trump-classified-documents-pdf/">federal indictment charges Trump</a> with unlawful retention of national defense information, beginning on Jan. 20, 2021. This date was Trump’s last day in office as president, and at which time he was in Washington. </p>
<p>Although Trump, his staff and his boxes of documents later relocated to the Southern District of Florida, this is a classic allegation of a crime which was “begun” in one district even if it “continued” in another. </p>
<p>So, the U.S. District Court for the District of Columbia could have been the place to charge Trump with most of these felony charges. </p>
<h2>Other charges</h2>
<p>However, Trump and his aide Waltine Nauta are <a href="https://www.nytimes.com/2023/06/11/us/politics/walt-nauta-trump-documents.html">also charged with conspiracy</a>, false statements and other offenses related to hiding their allegedly unlawful retention of government documents. </p>
<p>The government alleges that these offenses began “on or about May 11, 2022.” </p>
<p>From the indictment, <a href="https://www.washingtonpost.com/national-security/2023/06/09/indictment-document-trump-classified-documents-pdf/">it appears that Trump, Nauta and the documents</a> were at Mar-a-Lago around this time. </p>
<p>Trump, through his lawyers, also <a href="https://www.pbs.org/newshour/politics/read-the-full-trump-indictment-on-mishandling-of-classified-documents">allegedly gave false statements</a> to government investigators in Florida. </p>
<p>So, for the felony counts that address these particular crimes – as specified in Counts 32 through 38 – the Southern District of Florida appears to be the only proper venue. </p>
<p>Perhaps prosecutors could have made the argument that there was some connection to the District of Columbia and that they should place Trump on trial there.</p>
<p>It may well be, for example, that some of Trump’s lawyers – several are mentioned, but not named, in the indictment – were located, made calls or sent emails to government officials in the District of Columbia as part of the alleged criminal activity.</p>
<p>But if the Justice Department brought Counts 32 through 38 in the District of Columbia, the trial judge might have granted a defense motion to dismiss based on lack of venue, among other potential challenges.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/532975/original/file-20230620-19-ej2z7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people crowd together outside of a building with palm trees and one holds a black t shirt with a picture of a man in a suit that says 'not guilty.'" src="https://images.theconversation.com/files/532975/original/file-20230620-19-ej2z7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/532975/original/file-20230620-19-ej2z7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/532975/original/file-20230620-19-ej2z7i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/532975/original/file-20230620-19-ej2z7i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/532975/original/file-20230620-19-ej2z7i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/532975/original/file-20230620-19-ej2z7i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/532975/original/file-20230620-19-ej2z7i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Donald Trump supporters gather outside the federal courthouse in Miami where he was arraigned.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1258664368/photo/topshot-us-justice-politics-trump.jpg?s=1024x1024&w=gi&k=20&c=wdQsgJOyxKO0MyCml03uVf6iEysYwHniOwGrjx68brs=">Giorgio Viera/AFP via Getty Images</a></span>
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<h2>Forum shopping</h2>
<p>The Department of Justice could have alternatively brought Counts 1 through 31 in the District of Columbia and then pursued the other felonies in Florida.</p>
<p>However, I believe that would have looked like brazen <a href="https://www.law.cornell.edu/wex/forum_shopping#:%7E:text=Forum%20shopping%20refers%20to%20the,between%20courts%20in%20separate%20countries">forum shopping</a>, meaning trying to secure a court that would likely be friendly to the prosecution. It is unusual for the Department of Justice to divide criminal charges that way, and forum shopping is generally discouraged. </p>
<p>Someone retaining national defense-related documents has committed no crime if it was accidental or mistaken. It violates the law only if it was “willful.” </p>
<p>So, all of the felony charges in Trump’s case are connected. </p>
<p>In order to show that Trump wrongfully retained the documents, the government will want to show the jury that Trump and his allies lied and intentionally concealed the items. Accordingly, it makes sense for all of the counts to be tried together.</p>
<p>Trump has pleaded not guilty to the alleged crimes, and the judge probably would agree with prosecutors that the trial should be taking place in Florida. Bringing the charges in any other district might well have delayed or even destroyed the case. And I believe that a potential conviction in the Southern District of Florida would have more public credibility because of Trump’s popularity there.</p><img src="https://counter.theconversation.com/content/207892/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabriel J. Chin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Constitution says that a trial must be held where an alleged crime happened – while Trump’s indictment mentions Washington, D.C. and Florida, there are a few reasons why Florida was the pick.Gabriel J. Chin, Edward L. Barrett Jr. Chair & Martin Luther King Jr. Professor of Law, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2072992023-06-12T12:26:11Z2023-06-12T12:26:11ZIn the year since the Supreme Court overturned Roe v. Wade and ruled states should decide the legality of abortion, voters at the state level have been doing just that: 4 essential reads<figure><img src="https://images.theconversation.com/files/530911/original/file-20230608-18-hwoxua.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5904%2C3954&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Abortion-rights demonstrators protest in front of the Supreme Court building on June 25, 2022, a day after the announcement of the Dobbs v. Jackson Women's Health Organization ruling.
</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/abortion-rights-demonstrators-protest-in-front-of-the-news-photo/1405134629?adppopup=true">Brandon Bell/Getty Images News via Getty Images</a></span></figcaption></figure><p>When the Supreme Court ruled on June 24, 2022, in <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a> that states – some of which have been chipping away at women’s access to abortion for years – should decide the legality of abortion, Justice Samuel Alito wrote in the court’s majority opinion that “women are not without electoral or political power.”</p>
<p>In one fell swoop, the court’s 6-3 ruling that abortion is not a federal constitutional right overturned <a href="https://www.oyez.org/cases/1971/70-18">Roe v. Wade</a>, decided in 1973, and 1992’s <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v. Casey</a> – two decisions that provided federal protections for abortion. </p>
<p>Since the Dobbs decision, women and men alike have exercised the political power Alito referenced at the ballot box and, in the states that allow it, through legislation citizens initiate themselves. State legislatures, too, have been passing abortion laws.</p>
<p>The Conversation has covered the fight over abortion rights in the U.S. for years. Here are four essential reads to help you understand some of the state-level decisions legislators and citizens have made since the Dobbs ruling.</p>
<h2>1. Kansans safeguard constitutional access to abortion</h2>
<p>On Aug. 2, 2022, in the first state referendum on abortion since the Dobbs ruling, voters in Kansas rejected a proposed constitutional amendment to deny the right to abortion in that state. The 59% to 41% vote was decisive. </p>
<p>Scholars <a href="https://scholar.google.com/citations?user=vUKLlG4AAAAJ&hl=en">Matthew A. Baum</a>, <a href="https://scholar.google.com/citations?hl=en&user=Fj-XMtIAAAAJ">Alauna Safarpour</a> and <a href="https://scholar.google.com/citations?hl=en&user=0JH3YoUAAAAJ">Kristin Lunz Trujillo</a>, of the John F. Kennedy School of Government at Harvard University, who poll Americans on social and political issues, wrote that most residents of Kansas favor neither unrestricted access to abortion nor a total ban on the procedure.</p>
<p>Sentiment appears to be the same in various states across the country.</p>
<p>In one survey that they conducted between June 8 and July 6, 2022, these scholars asked Americans about the importance of abortion to them and if they support the procedure under nine specific scenarios, ranging from saving the life of the woman to avoiding financial hardship. </p>
<p>Their findings were eye-opening.</p>
<p>“Since the Dobbs decision was announced, Americans also increasingly appear to <a href="https://theconversation.com/kansas-vote-for-abortion-rights-highlights-disconnect-between-majority-opinion-on-abortion-laws-and-restrictive-state-laws-being-passed-after-supreme-court-decision-187138">prefer fewer restrictions on abortion</a>, even as many states are moving to enact more restrictions,” they wrote. </p>
<p>“Across the U.S., more Americans support than oppose the right to an abortion in most scenarios – including cases in which the life or health of the mother is at stake, the fetus could be born with severe health problems, the pregnancy resulted from rape or the woman does not want to be pregnant. Support for abortion in all nine scenarios increased following the Dobbs ruling.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/kansas-vote-for-abortion-rights-highlights-disconnect-between-majority-opinion-on-abortion-laws-and-restrictive-state-laws-being-passed-after-supreme-court-decision-187138">Kansas vote for abortion rights highlights disconnect between majority opinion on abortion laws and restrictive state laws being passed after Supreme Court decision</a>
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<h2>2. Kansas was no fluke</h2>
<p>Whether they were voting in favor of a state constitutional amendment that protected abortion rights or voting against one that would have banned abortion, voters in a record number of states – from California to Vermont – made clear on Election Day, Nov. 8, 2022, that they want abortion to be an option for women.</p>
<p>In Kentucky as in Kansas, for example, <a href="https://theconversation.com/in-first-nationwide-election-since-roe-was-overturned-voters-opt-to-protect-abortion-access-194140">voters rejected a proposed</a> constitutional amendment that would have stripped residents of the right to seek an abortion. And in California, Michigan and Vermont, voters approved constitutional amendments to protect the right to an abortion.</p>
<p><a href="https://scholar.google.com/citations?hl=en&user=4bgaJCQAAAAJ">Linda C. McClain</a>, a law professor, and <a href="https://scholar.google.com/citations?hl=en&user=CcAfO1UAAAAJ">Nicole Huberfeld</a>, a professor of law and health law, of Boston University, have studied the issue. They wrote: “Exit polls indicate <a href="https://abcnews.go.com/Politics/live-updates/midterm-elections-exit-polls-live-updates/?id=92683687">60% of voters nationwide</a> – up 9% since 2020 – believe that abortion should be legal in all or most cases. A majority – 60% – of voters <a href="https://abcnews.go.com/Politics/live-updates/midterm-elections-exit-polls-live-updates/?id=92683687">expressed anger</a> at the Supreme Court over the Dobbs ruling and indicated that they trusted the Democratic Party more than the Republican Party on the issue by a margin of 52% to 42%.”</p>
<p>The pair pointed out that abortion was also indirectly on the ballot in federal races and in states like Pennsylvania and New York, where it was a campaign issue.</p>
<p>In Pennsylvania, abortion figured prominently in the gubernatorial race between Democrat Josh Shapiro and Republican Doug Mastriano.</p>
<p>“Access to abortion care and protecting abortion rights were key themes in Shapiro’s campaign, while Mastriano stressed culture war issues,” they wrote. “Commentary and exit polling suggest that abortion was a motivating issue among Pennsylvania voters – especially younger voters.”</p>
<p>Shapiro won the contest. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/in-first-nationwide-election-since-roe-was-overturned-voters-opt-to-protect-abortion-access-194140">In first nationwide election since Roe was overturned, voters opt to protect abortion access</a>
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<a href="https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People in Overland Park, Kansas gathered in a meeting room cheer, clap and some cry happily after learning an anti-abortion amendment failed." src="https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=430&fit=crop&dpr=1 600w, https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=430&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=430&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=541&fit=crop&dpr=1 754w, https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=541&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=541&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Supporters of abortion rights react happily to news that an amendment which would have denied the right to abortion failed.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/abortion-supporters-alie-utley-and-joe-moyer-react-to-the-news-photo/1242276288?adppopup=true">Dave Kaup/AFP via Getty Images</a></span>
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<h2>3. Some abortion fights are through constitutional amendments</h2>
<p><a href="https://politics.wfu.edu/faculty-and-staff/john-dinan/">John Dinan</a>, a scholar of state constitutions at Wake Forest University, wrote that even before the Dobbs ruling, state constitutional amendments had shaped abortion policy as much as state court rulings had.</p>
<p>But, he noted, how these amendments are used – and who proposes them – is different now.</p>
<p>“Before the Dobbs ruling, abortion-related amendments invariably sought to limit protection for abortion rights by clarifying that there is no state constitutional right to abortion,” he wrote, noting that, as in the cases of Kansas and Kentucky, <a href="https://theconversation.com/state-battles-over-abortion-are-leading-to-state-constitutional-amendments-an-option-in-all-states-and-available-directly-to-citizens-in-18-states-203394">voters don’t always approve these amendments</a>.</p>
<p>“After the Dobbs decision, most proposed abortion-related amendments have aimed to expand protection of abortion rights. In November 2022, voters in <a href="https://thehill.com/policy/healthcare/3608609-state-ballot-measures-are-new-abortion-battleground/">Vermont, California and Michigan approved amendments</a> that explicitly protect reproductive rights.”</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/state-battles-over-abortion-are-leading-to-state-constitutional-amendments-an-option-in-all-states-and-available-directly-to-citizens-in-18-states-203394">State battles over abortion are leading to state constitutional amendments – an option in all states and available directly to citizens in 18 states</a>
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<h2>4. A patchwork legal landscape</h2>
<p>Since the Dobbs decision, women’s access to abortion has increasingly been determined by geographic boundaries.</p>
<p>As Temple University’s <a href="https://scholar.google.com/citations?user=Q974nRQAAAAJ&hl=en">Rachel Rebouche</a>, a scholar of reproductive health and justice, wrote for us, women who live along the East and West coasts can get abortions, but women in parts of the South and Midwest can’t. </p>
<p>And since the Dobbs decision, which prompted state-level referendums, some of those <a href="https://theconversation.com/abortion-rights-referendums-are-winning-with-state-by-state-battles-over-rights-replacing-national-debate-193490">boundaries have hardened</a>. But voters in some states with tight abortion restrictions opted to loosen them.</p>
<p>For example, in California, Michigan and Vermont, voters added abortion protections to their state constitutions. And in Kentucky, where abortion was severely restricted, voters rejected a referendum that would have denied constitutional protections for abortion.</p>
<p>“The legislation that states pass post-Dobbs of course reflects differences in opinion about abortion itself. But in some places where abortion has been banned, or restricted, anti-abortion legislators may not reflect their constituents’ beliefs. The recent ballot measures reveal that,” Rebouche wrote.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/abortion-rights-referendums-are-winning-with-state-by-state-battles-over-rights-replacing-national-debate-193490">Abortion rights referendums are winning – with state-by-state battles over rights replacing national debate</a>
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<p><em>Editor’s note: This story is a roundup of articles from The Conversation’s archives.</em></p><img src="https://counter.theconversation.com/content/207299/count.gif" alt="The Conversation" width="1" height="1" />
In the year since the Supreme Court overturned Roe v. Wade, giving decisions about the legality of abortion back to states, voters and state legislatures have made their preferences on abortion clear.Lorna Grisby, Politics & Society EditorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2031342023-04-05T12:36:09Z2023-04-05T12:36:09ZTrump’s indictment is unprecedented, but it would not have surprised the Founding Fathers<figure><img src="https://images.theconversation.com/files/519432/original/file-20230404-28-pony0a.jpg?ixlib=rb-1.1.0&rect=11%2C34%2C7634%2C5307&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former U.S. President Donald Trump sits with his attorneys for his arraignment at the Manhattan criminal court on April 4, 2023, in New York City.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-u-s-president-donald-trump-sits-with-his-attorneys-news-photo/1479825853?adppopup=true"> Pool/ Getty Images News via Getty Images North America</a></span></figcaption></figure><p>Much has been made of the unprecedented nature of <a href="https://www.washingtonpost.com/politics/2023/04/04/trump-arraignment-ny-indictment-live-updates/">the April 4, 2023 arraignment</a> on criminal charges of former President Donald Trump following an indictment brought by <a href="https://www.manhattanda.org/meet-alvin-bragg/">Manhattan District Attorney Alvin Bragg</a>. But a closer look at American history shows that the indictment of a former president was not unforeseen.</p>
<h2>What the Constitution says about prosecuting a president</h2>
<p>The Constitution’s authors <a href="https://texaslawreview.org/prosecuting-and-punishing-our-presidents/">contemplated the arrest of a current or former president</a>. At several points since the nation’s founding, our leaders have been called before the bar of justice. </p>
<p><a href="https://constitution.congress.gov/browse/article-1/section-3/">Article 1, Section 3,</a> of the Constitution says that when a federal government official is impeached and removed from office, they “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” </p>
<p>In his defense of this constitutional provision, <a href="https://avalon.law.yale.edu/18th_century/fed69.asp">Founding Father Alexander Hamilton noted</a> that, unlike the British king, for whom “there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected,” a president once removed from office would “be liable to prosecution and punishment in the ordinary course of law.” Trump has been impeached twice, but not removed from office. </p>
<p>As a scholar with <a href="https://www.press.umich.edu/16032/history_memory_and_the_law">expertise in legal history</a> and <a href="https://www.sup.org/books/title/?id=20093">criminal law</a>, I believe the punishment our Founding Fathers envisioned for high officeholders removed from office would also apply to those who left office in other ways. </p>
<p>Tench Coxe, a delegate from Pennsylvania to the Continental Congress from 1788–89, <a href="https://archive.csac.history.wisc.edu/pa_1.pdf">echoed Hamilton</a>. He explained that while the <a href="https://constitution.congress.gov/browse/essay/artI-S6-C1-3-1/ALDE_00013300/#:%7E:text=They%20shall%20in%20all%20Cases,questioned%20in%20any%20other%20Place.">Constitution’s speech and debate clause</a> permanently immunized members of Congress from liability for anything they might do or say as part of their official duties, the president “is not so much protected as that of a member of the House of Representatives; for he may be proceeded against like any other man in the ordinary course of law.”</p>
<p>In Coxe’s view, even a sitting president could be arrested, tried and punished for violating the law. And, though Coxe didn’t say it explicitly, I’d argue that it follows that if a president can be charged with a crime while in office, once out of office, he could be held responsible like anyone else. </p>
<h2>The indictment of Aaron Burr</h2>
<p>Hamilton’s and Coxe’s positions were put to an early test soon after the Constitution was ratified. The test came <a href="https://founders.archives.gov/documents/Hamilton/01-26-02-0001-0281">when jurors in New Jersey indicted</a> Vice President Aaron Burr for killing Hamilton in a duel in that state.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Black-and-white illustration showing Aaron Burr, in black top hat and coat, shooting Alexander Hamilton in a wooded area. Two eyewitnesses stand in the background." src="https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=449&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=449&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=449&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=564&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=564&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519384/original/file-20230404-24-lfq6bf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=564&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An artist’s depiction of the Burr–Hamilton duel on July 11, 1804. Hamilton was mortally wounded, and Burr was indicted for his death.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/duel-between-burr-and-hamilton-royalty-free-illustration/489170896?adppopup=true">Ivan-96/DigitalVision Vectors via Getty Images</a></span>
</figcaption>
</figure>
<p>The indictment charged that “Aaron Burr late of the Township of Bergen in the County of Bergen esquire not having the fear of God before his eyes but being moved and seduced by the instigation of the Devil … feloniously willfully and of his malice aforethought did make an assault upon Alexander Hamilton … [who] of the said Mortal wounds died.” </p>
<p>While Burr’s powerful friends subsequently <a href="https://www.mentalfloss.com/article/57580/what-did-aaron-burr-do-after-shooting-alexander-hamilton">interceded and persuaded state officials to drop the charges</a>, their success had nothing to do with any immunity that Burr enjoyed as an executive officer of the United States.</p>
<p>Indeed, Burr’s legal troubles were not over. In February 1807, after his term as vice president ended, <a href="https://www.history.com/this-day-in-history/aaron-burr-arrested-for-treason">he was arrested</a> and charged with treason for plotting to create a new and independent nation separate from the U.S. This time, he stood trial and was acquitted. </p>
<h2>The Strange case of Ulysses S. Grant</h2>
<p>Fast forward to 1872, when the incumbent president, Ulysses S. Grant, <a href="https://www.theguardian.com/us-news/2023/mar/22/ulysses-s-grant-arrest-speeding-horse-drawn-carriage">was arrested in Washington, D.C.,</a> for speeding in his horse-drawn carriage.</p>
<p>The arresting officer <a href="https://www.newspapers.com/image/330876502/?clipping_id=121285615&fcfToken=eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJmcmVlLXZpZXctaWQiOjMzMDg3NjUwMiwiaWF0IjoxNjgwMzc2MzkzLCJleHAiOjE2ODA0NjI3OTN9.v6vBKQxZHqtZ9LJ6QFO290LwcrzOnYYMgg7bSCMZSKM">told Grant</a>, “I am very sorry, Mr. President, to have to do it, for you are the chief of the nation, and I am nothing but a policeman, but duty is duty, sir, and I will have to place you under arrest.” </p>
<p>As The New York Post recently <a href="https://nypost.com/2023/03/31/trump-will-be-first-president-arrested-since-ulysses-s-grant-who-was-busted-for-speeding-in-1872/">recounted the story</a>, Grant “was ordered to put up 20 bucks as collateral.” But he never stood trial.</p>
<h2>20th and 21st century precedents</h2>
<p>A little over a century later, Republican Vice President Spiro Agnew <a href="https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/big/1010.html">had a more serious brush with the law</a> when he was accused by the Department of Justice of a pattern of political corruption starting when he was a county executive in Maryland and continuing through his tenure as vice president.</p>
<p>On Oct. 10, 1973, Agnew agreed to a plea bargain. He <a href="https://www.nytimes.com/1973/10/11/archives/judge-orders-fine-3-years-probation-tells-court-income-was-taxable.html">resigned his office</a> and <a href="https://www.history.com/this-day-in-history/vice-president-agnew-resigns">pleaded no contest</a> to a charge of federal income tax evasion in exchange for the federal government dropping charges of political corruption. He was fined US$10,000 and sentenced to three years’ probation. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Surrounded by Secret Service agents, Spiro Agnew speaks to reporters outside a federal courthouse." src="https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=402&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=402&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=402&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=505&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=505&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519392/original/file-20230404-903-w07obb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=505&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Spiro Agnew leaves a Baltimore federal courthouse on Oct. 10, 1973, after pleading no contest to tax evasion charges and resigning as vice president.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/spiro-agnew-flanked-by-secret-service-agents-leaves-federal-news-photo/515575060?adppopup=true">Bettmann via Getty Images</a></span>
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<p>Richard Nixon, the president with whom Agnew served, <a href="https://theconversation.com/watergate-at-50-the-burglary-that-launched-a-thousand-scandals-185030">narrowly escaped being indicted</a> for his role in the Watergate burglary and its cover-up. In 2018, the <a href="https://www.archives.gov/research/investigations/watergate/roadmap">National Archives released</a> documents, labeled the Watergate Road Map, that showed just how close Nixon had come to being charged.</p>
<p>The documents <a href="https://www.cnn.com/2018/10/31/politics/richard-nixon-watergate-national-archives-mueller/index.html">reveal</a> that “a grand jury <a href="https://www.law.cornell.edu/wex/bribery">planned to charge Nixon with bribery</a>, <a href="https://www.law.cornell.edu/uscode/text/18/371">conspiracy</a>, <a href="https://www.law.cornell.edu/wex/obstruction_of_justice">obstruction of justice</a> and <a href="https://www.law.cornell.edu/uscode/text/18/1510">obstruction of a criminal investigation</a>.” But an indictment was never handed down because, by that time, Hamilton’s and Coxe’s views had been displaced by a belief that a sitting president should not be indicted.</p>
<p>Nixon was later saved from criminal charges after he left office when his successor, President Gerald Ford, <a href="https://www.fordlibrarymuseum.gov/library/speeches/740061.asp">granted him a full and complete pardon</a>.</p>
<p>Another occasion on which a president came close to being charged with a crime
occurred in January 2001, when, as an article in The Atlantic notes, <a href="https://www.theatlantic.com/ideas/archive/2023/03/trump-indicment-president-prosecution-nixon-clinton/673503/">independent prosecutor Robert Ray considered</a> indicting former President Bill Clinton for lying under oath about his affair with <a href="http://www.cnn.com/SPECIALS/multimedia/timeline/9809/starr.report/narrative/n2.htm">former White House intern</a> Monica Lewinsky.</p>
<p>Ultimately, Ray decided that if Clinton publicly admitted to “having been misleading and evasive under oath … he didn’t need to see him indicted.” </p>
<p>And in February 2021, after President Trump had left office, Republican Senate Minority Leader <a href="https://www.marketwatch.com/story/mcconnell-trump-is-still-liable-for-everything-he-did-read-full-speech-11613254884">Mitch McConnell acknowledged</a> that the former president, who had escaped being removed from office twice after being impeached, would still be legally “liable for everything he did while he was in office … We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”</p>
<h2>What history teaches about Trump’s indictment</h2>
<p>This brings us to the present moment.</p>
<p>For any prosecutor, including Alvin Bragg, the indictment and arrest of a former president is a genuinely momentous act. As Henry Ruth, one of the prosecutors who was involved in the Nixon case, <a href="https://www.theatlantic.com/ideas/archive/2023/03/trump-indicment-president-prosecution-nixon-clinton/673503/">explained in 1974</a>, “Signing one’s name to the indictment of an ex-president is an act that one wishes devolved upon another but one’s self. This is true even where such an act, in institutional and justice terms, appears absolutely necessary.” </p>
<p>For the rest of us, this nation’s history is a reminder that ours is not the first generation of Americans who have been called to deal with alleged wrongdoing by our leaders and former leaders.</p><img src="https://counter.theconversation.com/content/203134/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Austin Sarat does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The arrest of a former American president is unprecedented, but the nation’s founders anticipated the day would come.Austin Sarat, William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2024352023-03-23T04:00:11Z2023-03-23T04:00:11Z‘We’re all in’, declares an emotional Albanese as he launches the wording for the Voice referendum<p>An emotional Anthony Albanese, flanked by members of the referendum working group, has released the final proposed wording of the question to be put to Australians to incorporate an Indigenous Voice to Parliament in the Constitution. </p>
<p>Despite pressure from conservative lawyers to build in stronger protections against legal challenges under a future Voice, in particular in relation to its interaction with the public service, only tweaking has been undertaken to the original wording released by the prime minister at the Garma festival last year. </p>
<p>The question of potential legal challenge is contested by constitutional experts, with some strongly arguing there is no problem. </p>
<p>In a simply worded question, Australians will be asked to approve altering the Constitution “to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice”.</p>
<p>The change would be inserted into the Constitution as Chapter IX, reading:</p>
<blockquote>
<p>In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia</p>
<p>There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice</p>
<p>The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples</p>
<p>The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures</p>
</blockquote>
<p>Albanese’s original wording was: </p>
<blockquote>
<p>There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice</p>
<p>The Aboriginal and Torres Strait Islander Voice may make representations to Parliament and the Executive government on matters relating to Aboriginal and Torres Strait Islander Peoples</p>
<p>The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice</p>
</blockquote>
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<strong>
Read more:
<a href="https://theconversation.com/we-now-know-exactly-what-question-the-voice-referendum-will-ask-australians-a-constitutional-law-expert-explains-202143">We now know exactly what question the Voice referendum will ask Australians. A constitutional law expert explains</a>
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<p>The new version has made it clear, as was always intended, that the Voice would advise only the Commonwealth, not the states.</p>
<p>More significantly, the government has reworded the section about parliament’s power, although it has not taken up a proposal from Attorney-General Mark Dreyfus, after advice from the Solicitor-General, to add specific wording that parliament could legislate on “the legal effect of its representations”. </p>
<p>This ran into resistance among the referendum working group, which feared the potential to water down the Voice’s power. </p>
<p>Appearing at the Albanese news conference, Dreyfus said: “The process has worked exactly as it should be. I’m proud to be part of it. We have words here that put beyond doubt the power of the Australian parliament to legislate on the broad scope of the functions, powers, of the Voice to parliament.”</p>
<p>Opposition leader Peter Dutton called for the government to release the Solicitor-General’s advice. “In the absence of that advice, and in the absence of detail from the prime minister, how can the Australian public make an informed judgement about a very, very important issue?” </p>
<p>The Liberals have not stated a final position on the Voice. They supported the legislation, passed on Wednesday, for updating the referendum machinery arrangements. The Nationals oppose the Voice.</p>
<p>Conservative constitutional lawyer Greg Craven, a supporter of a Voice, criticised the failure to take up Dreyfus’s suggested change. “That in a sense is a defeat of hopes for some sort of compromise,” he said on Melbourne radio. </p>
<p>“The problem is executive government covers the whole of the decision-making of the Commonwealth government… Now, if you get into a situation where, for example, the Voice hasn’t yet made a representation on some important view and the Commonwealth has not told the Voice and given it that chance, then legally it is entirely practicable for someone to take a challenge to a court to stop that action until the Voice has made representation,” Craven said.</p>
<p>Among those on the platform with Albanese was Ken Wyatt, former minister for Indigenous Australians in the Morrison government. </p>
<p>Like the prime minister, several of the Indigenous leaders present were also emotional during the news conference. </p>
<p>Albanese will introduce legislation for the referendum question next week. It will then go to a parliamentary committee, with the government aiming to have it passed in June. </p>
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<strong>
Read more:
<a href="https://theconversation.com/your-questions-answered-on-the-voice-to-parliament-200818">Your questions answered on the Voice to Parliament</a>
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<p>The prime minister indicated he was unlikely to be open to changes to the wording, although the Senate could force alterations. </p>
<p>Thursday’s announcement followed a meeting between Albanese and the working group on Wednesday night and federal cabinet’s tick-off of the wording on Thursday morning. </p>
<p>Albanese insisted at the news conference the form of words was “legally sound”. A legal group advised the referendum working group.</p>
<p>The PM stressed the practical value of a Voice in closing the gap of indigenous disadvantage. While this was about recognition, he said, more importantly it was about “making a practical difference, which we have a responsibility to do”. </p>
<p>He urged Australians not to miss the “opportunity to take up the generous
invitation of the Uluru Statement from the Heart”.</p>
<p>Albanese said there were no circumstances in which he would not put the referendum to a vote, because “to not put this to a vote is to concede defeat. You only win when you run on the field and engage. And let me tell you, my government is engaged. We’re all in.”</p><img src="https://counter.theconversation.com/content/202435/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In a simply worded question, Australians will be asked to approve altering the Constitution “to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice”.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2021432023-03-23T01:35:07Z2023-03-23T01:35:07ZWe now know exactly what question the Voice referendum will ask Australians. A constitutional law expert explains<p>The Albanese government has now released the formal wording of the proposed referendum it will introduce into parliament next week. </p>
<p>It had earlier released a draft proposed amendment at the Garma Festival last year, which was intended to start a debate on the wording. Since then, this wording has been the subject of intense discussion and debate in the Referendum Working Group, comprised of Indigenous representatives, which has been advising the government.</p>
<p>It has also been scrutinised by the Constitutional Expert Group, which has provided legal advice in response to questions raised by the Referendum Working Group. </p>
<p>Many other Australians have raised ideas and concerns in the media and in communications with the government, which have been the subject of analysis and deliberation.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-referendum-rules-have-been-decided-what-does-this-mean-for-the-voice-201372">The referendum rules have been decided. What does this mean for the Voice?</a>
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<h2>What do the words say?</h2>
<p>The wording of the proposed amendment will be as follows:</p>
<blockquote>
<p><strong>Chapter IX – Recognition of Aboriginal and Torres Strait Islander Peoples</strong></p>
<p><strong>129 Aboriginal and Torres Strait Islander Voice</strong></p>
<p>In recognition of Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia:</p>
<p>(1) There shall be a body to be called the Aboriginal and Torres Strait Islander Voice;</p>
<p>(2) The Aboriginal and Torres Strait Islander Voice may make representations to the Parliament and the Executive Government of the Commonwealth on matters relating to Aboriginal and Torres Strait Islander peoples;</p>
<p>(3) The Parliament shall, subject to this Constitution, have power to make laws with respect to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.</p>
</blockquote>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1638699476826353664"}"></div></p>
<h2>What is new?</h2>
<p>First, it is now clear this amendment will be placed in its own separate chapter at the end of the Constitution in a new section 129. </p>
<p>The title of the chapter makes clear it is directed at the “recognition” of Aboriginal and Torres Strait Islander peoples in the Constitution. </p>
<p>This recognition then flows through to some introductory words which form a preamble at the beginning of the section. These words provide “recognition” of Aboriginal and Torres Strait Islander peoples as the “First Peoples of Australia”.</p>
<p>The terminology used is careful. It avoids the use of “First Nations”, which is politically more contentious and might have given rise to implications drawn from the term “Nation”. </p>
<p>The description “Aboriginal and Torres Strait Islander peoples” is long-standing and well-accepted, and the statement that they were the First Peoples of Australia is one of fact and recognition.</p>
<p>The rest of the proposed amendment remains the same except for a minor alteration of words at the end of sub-section (3). </p>
<p>Importantly, the guaranteed ability of the Voice to make representations to the executive government remains. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1638691913166651392"}"></div></p>
<p>However, concerns about this have been addressed by the alteration to sub-section (3). </p>
<p>The concern that had been raised was the High Court might draw an implication from sub-section (2) the representations by the Voice must be considered by government decision-makers before they can validly make a decision, potentially resulting in litigation and the delay of decision-making. </p>
<p>While this concern had little to no substance, there was a suggestion some words should be added to the end of sub-section (3) to make it abundantly clear it was a matter for parliament to decide what the legal effects of the Voice’s representations would be. </p>
<p>Parliament could make the decision that in some cases decision-makers would be obliged to consider representations first, but there would be no such obligation in relation to other types of decisions.</p>
<p>This has now been accommodated by a compromise set of words added to the end of sub-section (3). </p>
<p>These words say parliament can make laws with respect to “to matters relating to the Aboriginal and Torres Strait Islander Voice, including its composition, functions, powers and procedures.”</p>
<p>The words “relating to” and “including” broaden the scope of this power. </p>
<p>They are intended to permit parliament to legislate about the effect of the Voice’s representations, so it is a matter for parliament to decide whether the representations of the Voice must be considered by decision-makers when making administrative decisions. </p>
<p>They are also intended to permit parliament to extend the powers and functions of the Voice as and when needed in the future.</p>
<h2>The question on the ballot</h2>
<p>The ballot paper never sets out the whole constitutional amendment, as in many cases, it would go for pages. </p>
<p>Instead, voters are asked to approve the proposed law, as it is described in its long title. </p>
<p>So the question put on the ballot will be set out as follows:</p>
<blockquote>
<p>A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice.</p>
<p>Do you approve of this alteration?</p>
</blockquote>
<p>Voters then write Yes or No.</p>
<h2>What now?</h2>
<p>The amendment bill is intended to be introduced next week. When it is introduced, a parliamentary committee will be set up to allow the public to make their own submissions about the amendment. </p>
<p>Anyone who has concerns can have their voice heard by the committee and it remains possible that the committee might recommend alterations to the wording. </p>
<p>After the committee reports, the amendment bill will be debated in June and if passed, it will go to a referendum between two and six months after its passage. It will then be a matter for the people to decide.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-happens-if-the-government-goes-against-the-advice-of-the-voice-to-parliament-200517">What happens if the government goes against the advice of the Voice to Parliament?</a>
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<img src="https://counter.theconversation.com/content/202143/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the ARC and occasionally does consultancy work for governments and parliaments. She is a member of the Constitution Expert Group that advised the Referendum Working Group upon the proposed amendment.</span></em></p>Here’s what the question says, what’s new and what happens next.Anne Twomey, Professor emerita, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2014992023-03-10T12:41:33Z2023-03-10T12:41:33ZPeter Hain: Neil Aggett died fighting apartheid – South Africa’s rulers have betrayed the struggle<figure><img src="https://images.theconversation.com/files/514634/original/file-20230310-17-6nwu0v.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Anti-apartheid activist Neil Aggett (29) died in apartheid police detention in 1982.</span> <span class="attribution"><span class="source">Charcoal on paper by Dr Amitabh Mitra/Wiki Commons</span></span></figcaption></figure><p><a href="https://www.sahistory.org.za/people/dr-neil-hudson-aggett">Neil Aggett</a>, the trade unionist and anti-apartheid activist who died in detention at the hands of police 41 years ago, was one of very few white South Africans who actively fought apartheid. He was only 29 when he died. </p>
<p>He came from a community enjoying one of the most privileged existences on earth, with a black servant class attending to their every need. Yet he gave that all up because he believed every person – regardless of their “race”, religion, gender or sexuality – had the right to justice, the right to liberty, the right to equality of opportunity. </p>
<p>He was selfless, fighting for others. He lived according to <a href="https://www.nelsonmandela.org/content/page/selected-quotes">Nelson Mandela’s guidance</a>:</p>
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<p>What counts in life is not the mere fact that we have lived. It is what difference we have made to the lives of others.</p>
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<p>Neil was a role model, winning numerous awards and certificates at <a href="https://kingswoodcollege.com/">Kingswood College</a> in Makhanda, Eastern Cape, before studying at the University of Cape Town and completing his medical degree in 1976. </p>
<p>He became a doctor working mainly in overcrowded and desperately under-resourced hospitals reserved for black people across the country. At the same time, he was a champion of workers’ rights and workers’ health and safety. He became a volunteer organiser with the <a href="https://open.uct.ac.za/handle/11427/15859">African Food and Canning Workers’ Union</a>, working without pay, taking additional weekend hospital night shifts to support himself. </p>
<p>But his passionate trade unionism proved fateful. It made him a target of a brutally repressive apartheid police state. He was arrested in late 1981, ending up in Johannesburg’s notorious police headquarters, <a href="https://www.sahistory.org.za/place/john-vorster-square-police-station-or-johannesburg-central-police-station">John Vorster Square</a>. He emerged from there in a coffin. </p>
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Read more:
<a href="https://theconversation.com/ahmed-timol-inquest-why-uncovering-apartheid-crimes-remains-so-important-85761">Ahmed Timol inquest: why uncovering apartheid crimes remains so important</a>
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<p>The apartheid security police who had brutally interrogated Neil maintained he had “hung himself with a scarf” – just as they claimed others who died in prison had “slipped in the shower” or <a href="https://theconversation.com/ahmed-timol-the-quest-for-justice-for-people-murdered-in-apartheids-jails-116843">“fallen out of a window”</a>. He was the 51st person to die in detention under apartheid. The total later escalated to over 70. </p>
<p>He was the first and only white person to die in detention from torture. No one has ever been convicted for any of <a href="https://newafricabooks.com/products/no-one-to-blame-george-bizos?variant=32109551419428">those 70-plus murders</a>.</p>
<h2>Sacrifice and betrayal</h2>
<p>Today it is taken for granted that Nelson Mandela walked to freedom <a href="https://history.blog.gov.uk/2020/02/11/whats-the-context-the-release-of-nelson-mandela-11-february-1990/">in February 1990</a> after 27 years’ imprisonment, and four years later was elected president. Today it is taken for granted that, however serious South Africa’s problems of <a href="https://theconversation.com/what-can-be-done-to-tackle-the-systemic-causes-of-poverty-in-south-africa-169866">poverty</a>, <a href="https://www.statssa.gov.za/?p=15407">unemployment</a>, <a href="https://www.un.org/development/desa/dspd/wp-content/uploads/sites/22/2019/06/Prof-Emeka-E-Obioha-Emeka-Obioha-ADDRESSING-HOMELESSNESS-THROUGH-PUBLIC-WORKS-PROGRAMMES-IN-SOUTH-AFRICA.pdf">homelessness</a>, <a href="https://www.statecapture.org.za/">corruption</a>, <a href="https://theconversation.com/power-cuts-in-south-africa-are-playing-havoc-with-the-countrys-water-system-197952">power and water cuts</a> and <a href="https://theconversation.com/link-between-crime-and-politics-in-south-africa-raises-concerns-about-criminal-gangs-taking-over-198160">mafia-like crime</a>, each South African citizen has human rights protected by their <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a>.</p>
<p>But none of that was achieved without a bitter fight against merciless opponents. My family’s story was a small part of that. The apartheid security forces dispatched my parents, me, my brother and two small sisters <a href="https://www.thepresidency.gov.za/national-orders/recipient/peter-gerald-hain">unwillingly into exile</a>.</p>
<p>Not because my mom and dad had committed the sort of “normal” crimes in democratic societies policed by the rule of law – such as theft, fraud, violence, rape or murder – but because they stood up and fought <a href="https://www.britannica.com/topic/apartheid">apartheid</a>: the most institutionalised system of racism the world has ever seen. </p>
<p>In exile, the apartheid security service tried to kill me in June 1972 with one of their specialities, a lethal letter bomb, sent to our family’s London address. It would have blown up our family and our home except for a <a href="https://www.thepresidency.gov.za/national-orders/recipient/peter-gerald-hain">fault in the trigger mechanism</a>. </p>
<p>Other anti-apartheid campaigners weren’t as fortunate as I was. A letter bomb killed <a href="https://www.sahistory.org.za/people/ruth-first">Ruth First</a> in Maputo in 1982 and <a href="https://www.sahistory.org.za/people/abram-ramothibi-onkgopotse-tiro">Abram Tiro</a> in Botswana in 1974. Neil Aggett also paid that ultimate price. In any civilised society he would have lived a full life, protecting people’s health as a doctor or protecting food workers’ rights as a trade unionist.</p>
<p>But today, tragically, the many thousands of freedom struggle activists like Neil have been betrayed by the governing African National Congress (ANC) <a href="https://twitter.com/CyrilRamaphosa/status/1297459045041868801/photo/1">politicians who have looted</a> and brought the country nearly to its knees. Similarly betrayed have been the heroes of the liberation struggle, the leaders such as <a href="https://www.nelsonmandela.org/content/page/biography">Mandela</a>, <a href="https://theconversation.com/south-africas-anc-is-celebrating-the-year-of-or-tambo-who-was-he-85838">Oliver Tambo</a>, <a href="https://www.sahistory.org.za/people/walter-ulyate-sisulu">Walter Sisulu</a>, <a href="https://www.wits.ac.za/media/wits-university/news-and-events/images/documents/Citation_Ahmed%20Kathrada.pdf">Ahmed Kathrada</a>, <a href="https://theconversation.com/sobukwes-pan-africanist-dream-an-elusive-idea-that-refuses-to-die-52601">Robert Sobukwe</a>, <a href="https://theconversation.com/why-bikos-black-consciousness-philosophy-resonates-with-youth-today-46909">Steve Biko</a> and <a href="https://www.sahistory.org.za/people/lilian-masediba-ngoyi">Lilian Ngoyi</a> who gave up the prime of their lives to serve harsh jail sentences.</p>
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Read more:
<a href="https://theconversation.com/multiparty-democracy-is-in-trouble-in-south-africa-collapsing-coalitions-are-a-sure-sign-192966">Multiparty democracy is in trouble in South Africa – collapsing coalitions are a sure sign</a>
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<p>South Africans from every walk of life, black and white, young and old, tell me they feel helpless, feel they cannot do anything about power cuts, water cuts, or about dysfunctional or non-existent <a href="https://www.businesslive.co.za/fm/opinion/editorial/2022-12-07-editorial-the-post-office-doesnt-even-know-its-dead/">postal</a> or <a href="https://theconversation.com/south-africans-are-revolting-against-inept-local-government-why-it-matters-155483">local municipal services</a>, feel politics doesn’t serve them anymore, feel their vote is worthless – even though it took a momentous fight to get it for everyone. </p>
<p>My message to them, my message to you all, is: learn from South Africa’s struggle history.</p>
<h2>Need for active citizenship</h2>
<p>The struggle giants, the Nelson Mandelas and Oliver Tambos, the Neil Aggetts and <a href="https://www.sahistory.org.za/people/joe-slovo">Joe Slovos</a>, didn’t defeat apartheid on their own. They were leaders of a mass movement of many tens of thousands of ordinary people who, in the most oppressive of conditions, threw themselves into activism.</p>
<p>Many made sacrifices, some small, some big. Some did a little, others did a lot – but they all did something. And they each contributed in whatever way they could to one of the most successful movements for change ever in modern history. </p>
<p>They defeated a powerful police state. They refused to be subjugated by an economic system feeding profitably in a trough of racism. And they beat apartheid.</p>
<p>Back in the 1950s, the 1960s, the 1970s, people said, people feared, that could never happen, might be impossible.</p>
<p>But it was made possible because enough ordinary citizens rose up together and campaigned, and struggled and fought for change. </p>
<p>Courageous school students in Soweto lit a fuse <a href="https://theconversation.com/south-africas-epochal-1976-uprisings-shouldnt-be-reduced-to-a-symbolic-ritual-185073">in June 1976</a>. They were gunned down by police for protesting peacefully, but refused to be cowed, and their defiance triggered a fresh wave of resistance. </p>
<p>Today South Africa must be changed again – radically, and soon. But history teaches us that big change doesn’t normally come from the top. </p>
<h2>Looking forward</h2>
<p>I don’t know if the ANC can be saved from itself. I don’t know if the good people still in the ANC can fully reclaim it from the corrupt ones who riddle the party from top to bottom. </p>
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Read more:
<a href="https://theconversation.com/anc-in-crisis-south-africas-governing-party-is-fighting-to-stay-relevant-5-essential-reads-196580">ANC in crisis: South Africa's governing party is fighting to stay relevant - 5 essential reads</a>
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<p>But meanwhile, every South African can do their bit. First by doing your very best, driven by the vision of an inclusive and united South Africa propagated by democracy’s founding mothers and fathers. </p>
<p>And also saying “No!” to paying a bribe or a backhander for a contract, for a job, for a permit, for a licence, for starting a business, for building a home.
Often it’s very difficult to say “No!”. But until everyone unites to say “No!”, nothing will change. Until a mass uprising said “No!” to apartheid, it didn’t change, and never would have.</p>
<p>South Africans can join a popular uprising to say “No!” and demand change, and stop their beautiful, special country from becoming a failed state. </p>
<p><em>This is an edited version of the <a href="https://www.youtube.com/watch?v=ghUeVs1YzWI">Neil Aggett lecture</a> delivered at Kingswood College, Makhanda, on 7 March 2023.</em></p>
<p><em>Peter Hain’s <a href="https://www.jonathanball.co.za/component/virtuemart/a-pretoria-boy">memoir</a> A Pretoria Boy: South Africa’s ‘Public Enemy Number One’ is published by Jonathan Ball, as are his thrillers <a href="https://www.amazon.com/Rhino-Conspiracy-Peter-Hain/dp/1916207715">The Rhino Conspiracy</a> and <a href="https://www.goodreads.com/en/book/show/63219017">The Elephant Conspiracy</a>.</em></p><img src="https://counter.theconversation.com/content/201499/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Hain is President of Britain's Action for Southern Africa and Chair of the Donald Woods Foundation, a charity based at Hobeni in the Transkei. A Labour member of the House of Lords since 2015, he was an MP for 24 years and government minister for 12 years.</span></em></p>Neil Agget’s passionate trade unionism proved fateful. It made him a target of a brutally repressive apartheid police state.Peter Hain, Visiting Adjunct Professor at Wits Business School, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2011102023-03-08T08:19:44Z2023-03-08T08:19:44ZPower cuts: South Africa’s state of disaster is being contested in court - COVID rulings give clues as to the outcome<figure><img src="https://images.theconversation.com/files/513911/original/file-20230307-26-zxg9ew.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Demonstrations against South African power supplier ESKOM in 2015.</span> <span class="attribution"><span class="source">Ihsaan Haffejee/Anadolu Agency/Getty Images</span></span></figcaption></figure><p>South Africa has declared <a href="https://www.gov.za/sites/default/files/gcis_document/202302/48152rg11550gon3095.pdf">a second national state of disaster</a> in less than three years. </p>
<p><a href="https://www.gov.za/sites/default/files/gcis_document/202003/43096gon313.pdf">The first</a> was the COVID-19 disaster declaration in March 2020. This allowed the government to pass sweeping lockdown regulations that encroached on human rights – directly and indirectly - including the rights to dignity, privacy, freedom and security of the person and the right to choose and practise a trade or occupation freely. </p>
<p>More recently it issued another disaster declaration in response to the country’s severe electricity supply constraints. The country is experiencing the <a href="https://businesstech.co.za/news/energy/630667/south-africas-horror-year-of-load-shedding-heres-how-it-compares/">worst power cuts on record</a> as the national utility, Eskom, implements longer and more frequent scheduled blackouts, referred to as loadshedding. The outages are having severe social, economic and ecological effects. The declaration aims to address the effects of the power outages and to avert the possible progression to a “total blackout”.</p>
<p>These loadshedding regulations are not likely to encroach on human rights to the same extent as the COVID measures did as they do not restrict movement or trade. </p>
<p>But they come at a time when memory of the overreach of the lockdown regulations is still fresh. Citizens are also enraged at the government’s failure to deal with a 15-year-old electricity crisis and worsening corruption which contributed to it. </p>
<p>The regulations in response to the pandemic were challenged in a number of court cases. Two (involving three decisions) challenged the prohibition of the sale of tobacco products. <a href="http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAGPPHC/2020/246.html&query=disaster%20management%20act%20AND%20cigarette%26%2365533%3B">One case was brought by the Fair-Trade Independent Tobacco Association</a>. It was heard in the Pretoria High Court. Another was brought by <a href="http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAWCHC/2020/180.html&query=disaster%20management%20act%20AND%20cigarette%26%2365533%3B">British American Tobacco (BAT)</a>. This case was heard first in the Western Cape High Court and <a href="http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZASCA/2022/89.html&query=disaster%20management%20act%20AND%20tobacco">subsequently in the Supreme Court of Appeal</a>.</p>
<p>The Minister of Cooperative Governance and Traditional Affairs was a respondent in both cases.</p>
<p>All the cases engaged with arguments relating to the principle of legality, which underlies South Africa’s constitutional democracy. (The <a href="https://theconversation.com/rule-of-law-has-moved-centre-stage-in-lockdown-what-it-is-and-why-it-matters-139045**%20is%20a%20foundational%20constitutional%20value.">rule of law</a> guards against the arbitrary exercise of state power, because it requires a rational relationship between the exercise of government power and the purpose for which such power is exercised (the “rational connection” test).</p>
<p>The way in which the courts dealt with legality in the COVID-19 tobacco cases will bind other courts in their deliberations on the same or similar issues. This is in line with the principle of judicial precedent.</p>
<p>At <a href="https://www.businesslive.co.za/bd/national/2023-02-14-da-goes-to-court-to-stop-declaration-of-state-of-disaster-on-eskom/">least</a> <a href="https://www.news24.com/news24/southafrica/news/electricity-crisis-solidarity-heads-to-court-to-have-state-of-disaster-declared-unlawful-20230214">three</a> <a href="https://www.outa.co.za/blog/newsroom-1/post/outa-goes-to-court-to-overturn-the-electricity-state-of-disaster-1234">organisations</a> have announced that they will challenge the latest disaster declaration in court. </p>
<p>Based on the COVID-19 tobacco cases, the courts considering challenges to the load-shedding disaster will need to decide whether there is a “necessary and objective connection” between the steps government has taken and what it aims to achieve. This sets a high standard of proof for the government. </p>
<h2>The arguments</h2>
<p>But a legal challenge to the load-shedding declaration or regulations is not restricted to an argument based on legality. The organisations challenging them could argue, for example, that the definition of “disaster” in the <a href="https://www.gov.za/documents/disaster-management-act">Disaster Management Act</a> does not extend to a government-caused load-shedding crisis. They could argue that other legislation should be used to deal with the electricity crisis.</p>
<p>However, as argued elsewhere, these arguments <a href="https://www.linkedin.com/pulse/unpacking-disaster-declaration-part-ii-does-serve-legitimate-field/?trackingId=37igS%2BgLsYc%2F2YVWp2V2Ow%3D%3D">may not succeed</a>.</p>
<p>Organisations may also rely on infringement of human rights as a cause of action. But this is unlikely to hold water as the measures proposed in the load-shedding declarations are not restrictive in the sense that the lockdown regulations were.</p>
<p>Notwithstanding these other possible approaches, a cause of action based on legality is likely to feature strongly in the forthcoming cases. Courts will be asked to determine the rational connection between the declaration and its regulations and the overarching legitimate government purpose (alleviating, for example, the effects of the power cuts).</p>
<p>There could, however, be different interpretations of the quality of rationality required, particularly if the minister relies heavily on section 27(2)(n) of the <a href="https://www.gov.za/documents/disaster-management-act">disaster management law</a>. This section allows her to make regulations or issue directions concerning “other steps that may be necessary to prevent an escalation of the disaster”. </p>
<p>Because load-shedding is not a disaster in the ordinary sense, this particular power arguably underlies many of the measures in the new regulations.</p>
<p>In the COVID tobacco cases, the courts considered the quality of rationality required for the exercise of powers in section 27.</p>
<p>The Fair Trade court was sympathetic towards the executive. Its judgement set a low bar for the Minister of Cooperative Governance and Traditional Affairs to prove that her decision to ban the sale of tobacco products was rational. It held that to prove the rational relationship between tobacco prohibition and the government purpose (to protect human life and health and reduce potential strain on the healthcare system), the minister needed only to show a “sufficient rational basis” for her action. </p>
<p>The evidence on which she relied did not have to cogently and conclusively
establish a direct link between tobacco prohibition and the stated government purpose. </p>
<p>In taking this stance, the court in the Fair Trade case opted for a broad interpretation of the word “necessary” in section 27(2)(n).</p>
<p>The courts in the BAT cases took a different view and set the bar much higher. The Western Cape High Court disagreed with the Fair Trade court, and held that the Constitutional Court’s approach in <a href="http://www.saflii.org/za/cases/ZACC/2015/10.html">Pheko & Others v Ekurhuleni Metropolitan Municipality</a> applied. In the Pheko case (which dealt with the declaration of a local, and not a national, disaster), the Constitutional Court held that the use of “necessary” in the similarly worded section 55 of the Disaster Management Act had to be given a narrow construction.</p>
<p>In the BAT case, the High Court <a href="http://www.saflii.org/cgi-bin/disp.pl?file=za/cases/ZAWCHC/2020/180.html&query=disaster%20management%20act%20AND%20cigarette%26%2365533%3B">held that</a> the minister had to show that the regulation was necessary, and not merely sufficiently rational. Courts also needed to assess this evidence objectively, not on the basis of whether the minister subjectively believed a measure was necessary. </p>
<p>Using this test, the court declared the tobacco prohibition invalid.</p>
<p>The Supreme Court of Appeal confirmed the stance of the Western Cape High Court, and thus over-ruled the approach in Fair Trade. </p>
<p>As court challenges to the load-shedding disaster declaration and its regulations mount, parties should take note that the higher bar of a necessary and objective connection set out in Pheko and the BAT cases applies. Challengers will have to prove that there is no necessary and objective connection between government’s action and its purpose, even if the minister thinks there is. The legality of the load-shedding declaration and its implementing regulations will stand or fall on the basis of this test.</p><img src="https://counter.theconversation.com/content/201110/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tracy-Lynn Field receives funding from the National Research Foundation. She is affiliated with the Centre for Environmental Rights (CER) as board chair and non-executive director. The CER champions the constitutional environmental right and is currently involved in litigation against Mineral Commodities Ltd in relation to its heavy mineral sands operations on South Africa's west coast.</span></em></p>South Africa’s courts are likely to set a high bar in cases brought against the government’s most recent state of disaster declaration.Tracy-Lynn Field, Professor of Environmental and Sustainability Law, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1998322023-02-16T13:12:04Z2023-02-16T13:12:04ZTanzania is ruled with impunity – four key issues behind calls for constitutional reform<figure><img src="https://images.theconversation.com/files/510162/original/file-20230214-20-egw7ke.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Tanzanian opposition politician Freeman Mbowe (left) flashes a victory sign at a public rally in January 2023.
</span> <span class="attribution"><span class="source">Michael Jamson/AFP via Getty Images</span></span></figcaption></figure><p>Tanzania’s president issued a <a href="https://www.amnesty.org/en/latest/news/2023/01/tanzania-president-hassan-lifts-the-blanket-ban-on-political-assemblies/">statement</a> in June 2016 announcing a ban on political rallies outside campaign periods. The ban was unconstitutional. </p>
<p><a href="https://rsf.org/sites/default/files/constitution.pdf#page=17">Article 20 (1)</a> of the constitution of Tanzania allows for public assembly. Other laws, such as the <a href="https://media.tanzlii.org/files/legislation/akn-tz-act-1992-5-eng-2019-11-30.pdf">Political Parties Act</a> and the <a href="https://www.tanzanialaws.com/principal-legislation/parliamentary-immunities-powers-and-privileges-act">Parliamentary Immunities, Powers and Privilege Act</a>, give political parties and politicians the right to conduct rallies. </p>
<p>Despite these laws, it took another <a href="https://www.hrw.org/news/2023/01/09/tanzania-ends-ban-political-rallies">presidential statement</a> in January 2023 to unban rallies. This illustrates the power of the president – even over the constitution. </p>
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<a href="https://theconversation.com/tanzania-opposition-rallies-are-finally-unbanned-but-this-doesnt-mean-democratic-reform-is-coming-198436">Tanzania: opposition rallies are finally unbanned – but this doesn't mean democratic reform is coming</a>
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<p>Opposition parties and activists have noted that this great presidential power is a constitutional loophole. The Tanzanian constitution has proved to be weak in protecting itself. </p>
<p>A constitution can protect itself if it has clear checks and balances. With <a href="https://www.cfr.org/blog/interview-tundu-lissu-discusses-need-constitutional-reform-tanzania">imperial presidential powers</a>, the constitution gives the executive branch of government the upper hand over the two other branches of government: the judiciary and legislature. </p>
<p>Such powers – and their abuse – have led opposition parties and activists to <a href="https://theconversation.com/tanzania-must-face-up-to-calls-for-reform-if-it-wants-to-keep-the-peace-172967">call</a> for constitutional reviews. </p>
<p>There are four reasons driving the agitation for constitutional change in Tanzania: unfree and unfair elections; unchecked presidential powers; political impunity; and the skewed political arrangement between Tanzania and Zanzibar.</p>
<h2>Entrenching dominance</h2>
<p>Recent calls for constitutional change in Tanzania <a href="https://www.theafricareport.com/109246/tanzania-whats-really-behind-ccms-refusal-to-change-the-constitution/">began in 2010</a>. A constitutional review commission was set up in 2012, headed by former prime minister <a href="https://www.taas-online.or.tz/members/view/hon-joseph-sinde-warioba">Joseph Warioba</a>. The commission drafted a report, and a constitutional review assembly was set up to debate it. </p>
<p>The review assembly was dominated by members of the ruling party, Chama cha Mapinduzi. They altered the Warioba report and proposed a draft constitution similar to the existing one. A coalition of opposition parties boycotted the process and it stalled. </p>
<p>Maintaining the same constitution has been the ruling party’s strategy. The current constitution facilitates <a href="https://www.wits.ac.za/news/latest-news/opinion/2022/2022-07/tanzanias-undemocratic-constitution-is-a-template-for-disaster.html">one-party dominance</a> by entrenching the party’s and president’s power. </p>
<p>Further review was stopped by president <a href="https://theconversation.com/tanzanias-john-magufuli-a-brilliant-start-but-an-ignominious-end-157092">John Pombe Magufuli</a>, who came into power in 2015. Magufuli rejected any calls for constitutional reforms – and acted in a way that disregarded the existing law.</p>
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Read more:
<a href="https://theconversation.com/tanzanias-john-magufuli-a-brilliant-start-but-an-ignominious-end-157092">Tanzania’s John Magufuli: a brilliant start but an ignominious end</a>
</strong>
</em>
</p>
<hr>
<h2>Chasing change</h2>
<p>The four triggers for constitutional reform in Tanzania are related.</p>
<p><strong>1. Repeated unfree and unfair elections</strong> </p>
<p>In Tanzania, unfree and unfair elections began after the constitution was amended <a href="https://www.eisa.org/wep/tan5.htm">in 1992</a> to allow for multi-party elections. Since then, there have been six general elections. Each has been marred by accusations of an <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/jpola5&div=36&id=&page=">unlevel playing field</a>, <a href="https://www.theguardian.com/global-development/2015/oct/29/tanzania-announces-election-winner-amid-claims-of-vote-rigging">rigging</a> and violence. The <a href="https://news.un.org/en/story/2020/11/1077292">2020 general election</a> was especially violent. </p>
<p>Constitutional reform is crucial to realise free and fair elections. This is because the composition of the electoral commission as provided for by the constitution is bound to be biased. The president, who is often the incumbent candidate and the chairperson of the ruling party, is responsible for appointing the executive director and commissioners of the commission. All election returning officers at the constituency level are also presidential appointees. </p>
<p>The consequence is that electoral officials are likely to be loyal to their appointing authority rather than to the ideals of free and fair elections. </p>
<p>Additionally, once the presidential vote has been announced, the constitution <a href="https://www.thecitizen.co.tz/news/1840340-5593992-b0yrsv/index.html">doesn’t allow for it to be challenged in court</a>. </p>
<p><strong>2. Unchecked presidential powers</strong> </p>
<p>Under the current constitution, the president of Tanzania has enormous power. He or she appoints senior officials in other branches of government and all heads of public institutions. This includes the chief justice, all other judges and the inspector general of police. The president also appoints the controller audit general, who audits government accounts. </p>
<p>Through loyalty, these appointees are likely to enforce the president’s statements even if they are unconstitutional. </p>
<p>Further, the president cannot be prosecuted as per <a href="https://rsf.org/sites/default/files/constitution.pdf#page=29">Article 46</a> of the constitution. The president is protected during and after their tenure in office. Such provisions promote impunity. </p>
<p><strong>3. Impunity</strong> </p>
<p>Impunity in Tanzania plays out where one group of people can do what they like politically, while another group – in particular opposition politicians – faces excessive exposure to an unjust system. </p>
<p>Trumped up charges against opposition leaders, activists and business people deemed critical of the president are popular tools for keeping critics silent. Such charges, facilitated by undemocratic laws, were used during Magufuli’s regime. Magufuli <a href="https://www.aljazeera.com/news/2021/3/17/tanzanian-president-john-magufuli-is-dead-vp">died in March 2021</a> and was succeeded by Samia Suluhu Hassan.</p>
<p>In the early days of Hassan’s administration, in July 2021, Freeman Mbowe, the leader of the opposition party Chadema, was <a href="https://www.aljazeera.com/news/2021/8/31/tanzania-opposition-leader-freeman-mbowe-appears-in-court-to-face-charges">arrested and charged</a> with terrorism offences. Due to political pressure – and a failure to find evidence – the <a href="https://www.bbc.com/news/world-africa-60616800">charges were dropped</a>. Mbowe spent eight months in jail.</p>
<p>After his release in March 2022, Hassan <a href="https://www.reuters.com/world/africa/tanzania-frees-detained-opposition-leader-mbowe-drops-charges-citizen-newspaper-2022-03-04/">expressed her determination</a> to boost the country’s democracy. She has also expressed her resentment of the unjust political system and <a href="https://www.thecitizen.co.tz/tanzania/news/national/massive-fraud-at-the-dpp-s-office-as-plea-bargain-money-stashed-away-in-china-4106530">called out corruption</a> at the office of public prosecutions. </p>
<p>But presidential sentiments like these are not adequate as they don’t lead to institutional changes in political structures or norms. </p>
<p><strong>4. The Tanzania-Zanzibar agreement</strong> </p>
<p>This is arguably the most contentious trigger for calls for constitutional reform. </p>
<p>The political relationship between the island of Zanzibar and the mainland, Tanzania, has raised calls for Zanzibari autonomy. The government of the United Republic of Tanzania deals with union matters, as well as all mainland issues. The Revolutionary Government of Zanzibar deals with the matters of Zanzibar only. </p>
<p>Opposition leaders have argued that the constitution and this current structure increase the ruling party’s influence in Zanzibari politics. Constitutional debate on this issue is often around <a href="https://www.jstor.org/stable/45342101">four proposed structures</a>: one joint government, two governments, three governments (with the union being the <a href="https://www.theeastafrican.co.ke/tea/news/east-africa/zanzibar-mourns-the-advocate-of-three-tier-system-of-government--1354218">third tier</a>), or a confederation with a central authority. </p>
<h2>What next?</h2>
<p>The underlying call for constitutional reform seeks to uproot the one-party state system to allow for accountability and democratic progress in Tanzania. Under the current constitution, any pronouncements of change are cosmetic, with no sustainable effects. </p>
<p>For Tanzania to realise real and sustainable democracy, a new constitution is necessary.</p><img src="https://counter.theconversation.com/content/199832/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Aikande Clement Kwayu has previous received funding from various academic and research institutions. She has volunteered at CHADEMA. </span></em></p>Tanzania’s six-year ban on political rallies shows how the president’s power can override the constitution.Aikande Clement Kwayu, Independent researcher & Lecturer, Tumaini University MakumiraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1981812023-01-25T16:48:19Z2023-01-25T16:48:19ZHow the UK government’s veto of Scotland’s gender recognition bill brought tensions in the union to the surface<p>From calls for a second <a href="https://www.bbc.com/news/uk-scotland-scotland-politics-50813510">Scottish independence referendum</a> and speculation about <a href="https://www.bbc.co.uk/news/uk-wales-politics-49018127">“indy-curiousity”</a> in Wales, to the collapse of the power-sharing agreement in <a href="https://www.theguardian.com/politics/2019/apr/26/northern-ireland-power-sharing-stormont-crisis-timeline">Northern Ireland</a>, the state of the UK union has been the subject of much political discussion over the past decade.</p>
<p>Traditionally, devolution has followed a so-called <a href="https://ukandeu.ac.uk/long-read/the-possible-break-up-of-the-united-kingdom/">devolve and forget</a> model. The UK parliament transfers law making power to the devolved legislatures to exercise as they see fit, as long as they do so within the <a href="https://centreonconstitutionalchange.ac.uk/the-basics/what-meant-devolved-and-reserved-powers">defined limits</a>.</p>
<p>However, the UK government’s recent blocking of Scotland’s <a href="https://theconversation.com/qanda-why-are-the-scottish-and-uk-governments-going-to-court-over-gender-recognition-laws-197981">gender recognition bill</a> suggests political and legal relationships are <a href="https://ukandeu.ac.uk/reshaping-devolution-the-united-kingdom-internal-market-act-2020/#:%7E:text=Historically%2C%20devolution%20has%20followed%20a%20%E2%80%98devolve%20and%20forget%E2%80%99,Rights%20under%20s29%20%282%29%20%28d%29%2C%20Scotland%20Act%201998%29">being tested</a>, and maybe even reshaped. </p>
<p>The fallout over Scotland’s gender recognition bill has not happened in isolation. It is important to understand the events which have led to recent <a href="https://www.express.co.uk/news/politics/1722040/scottish-gender-bill-blocked-conservative-snp-nicola-sturgeon-constitution">headlines</a> declaring the UK is heading for a “<a href="https://www.parliament.uk/about/living-heritage/evolutionofparliament/houseoflords/house-of-lords-reform/overview/constitutionalcrisis/">constitutional crisis</a>”.</p>
<h2>Brexit</h2>
<p>Since 2016 the UK has seen heightened pressure on relationships within the union. </p>
<p>The Brexit referendum highlighted <a href="https://www.bbc.co.uk/news/uk-politics-36616028">differences</a> among the UK’s nations and regions, for example Scotland’s 62% and Northern Ireland’s 55.8% vote to remain within the EU. These differences weren’t recognised by the ultimate decision to pull the UK completely out of the EU (with some <a href="https://www.nidirect.gov.uk/articles/eu-exit-and-northern-ireland-protocol#toc-1">exceptions for Northern Ireland</a>).</p>
<p>Similarly, the pandemic led to a period of more prominent <a href="https://www.bbc.co.uk/news/uk-wales-54328474">policy differences between the four nations</a>, highlighting how the devolved governments diverged from Westminster.</p>
<p>Then came the <a href="https://www.legislation.gov.uk/ukpga/2020/27/contents/enacted">UK Internal Market Act</a> in late 2020. With the UK no longer bound by EU law, there was a post-Brexit risk that nations could make different rules for devolved areas, such as agriculture. This could have created new trade barriers between different parts of the UK, as well as making pursuing new international trade agreements more difficult. </p>
<p>The Scottish and Welsh governments <a href="https://www.instituteforgovernment.org.uk/article/explainer/uk-internal-market-act#:%7E:text=The%20UK%20Internal%20Market%20%28UKIM%29%20Act%20puts%20the,new%20barriers%20for%20businesses%20trading%20across%20the%20UK.">opposed the act’s approach</a>. Nonetheless, in implementing a common standard for the whole of the UK, ministers in Westminster now have control over traditionally devolved areas under the new law.</p>
<p>Last year, the Scottish government’s push for a second independence referendum ended up at the <a href="https://www.supremecourt.uk/cases/docs/uksc-2022-0098-judgment.pdf">supreme court</a>, which ruled Holyrood didn’t have the power to hold such a vote. This reasserted the legal dominance of Westminster in deciding if, and when, such a question may be put to the people of Scotland once more.</p>
<p>Meanwhile in Wales, there have been <a href="https://www.bbc.co.uk/news/uk-wales-politics-63303690">heated exchanges in the Senedd</a> between First Minister Mark Drakeford and Conservative members regarding the leadership of the UK and devolved funding models, particularly in relation to the financing of the NHS.</p>
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<figcaption><span class="caption">An angry exchange in the Senedd between First Minister Mark Drakeford and Andrew Davies, leader of the Welsh Conservatives, over the NHS in Wales.</span></figcaption>
</figure>
<p>In Northern Ireland, the <a href="https://www.bbc.co.uk/news/uk-northern-ireland-57583168">power-sharing government</a> collapsed again in October. This time due to disagreements over the <a href="https://www.gov.uk/government/publications/northern-ireland-protocol-the-uks-solution">UK’s new relationship with the EU</a>. The situation shows little sign of being resolved. Specifically, the Democratic Unionist Party continues to block power-sharing in protest at <a href="https://www.theguardian.com/politics/2023/jan/18/ministers-set-six-week-window-to-decide-on-northern-ireland-elections">post-Brexit trading arrangements</a>, which treat Northern Ireland differently to the rest of the UK.</p>
<p>These various events show the working relationships between the UK’s different governments are under renewed pressure. In turn, instead of reaching political compromise through <a href="https://www.gov.uk/government/collections/intergovernmental-relations">intergovernmental working</a>, the UK government has responded by relying on its law-making dominance. </p>
<h2>Law v politics</h2>
<p>Last week, and for the first time, the UK government decided to invoke <a href="https://commonslibrary.parliament.uk/section-35-of-the-scotland-act-and-vetoing-devolved-legislation/#:%7E:text=Section%2035%20of%20the%20Scotland%20Act%201998%20has,as%20%E2%80%9C%20a%20matter%20of%20last%20resort%20%E2%80%9D.">section 35 of the Scotland Act</a> to block Scotland’s <a href="https://www.parliament.scot/bills-and-laws/bills/gender-recognition-reform-scotland-bill">gender recognition bill</a>. These proposals were designed to make it easier for people in Scotland to change their legal gender. However, they have been halted by the UK government on the grounds they would affect equality law for the whole of the UK, and are therefore a <a href="https://www.parliament.uk/site-information/glossary/devolved-and-reserved-matters/">reserved matter</a> for Westminster. </p>
<p>The UK government insists it has not used its powers lightly, and does all it can to <a href="https://www.msn.com/en-gb/news/uknews/government-insists-it-respects-devolution-as-it-blocks-scottish-gender-reform-bill/ar-AA16rrhZ">“respect the devolution settlement”.</a> Yet <a href="https://www.heraldscotland.com/politics/23267981.fm-no-compelling-persuasive-legal-argument-gender-bill/">Nicola Sturgeon has alleged</a> the UK government is denying Scotland its democracy.</p>
<p>Drakeford told the Senedd the block is a <a href="https://www.bbc.co.uk/news/uk-wales-politics-64304540">“dangerous precedent”</a> and that he planned to emulate the Scottish gender recognition legislation. However, it is likely that the UK government would similarly veto any Senedd laws in this area. Drakeford also suggested the Welsh government may be party to <a href="https://www.bbc.co.uk/news/uk-scotland-scotland-politics-64264063">any supreme court action</a> by the Scottish government.</p>
<p>If the supreme court finds gender recognition is within the scope of equality law, and necessitates a UK-wide approach, the legal reality of any court action by the Scottish government is likely to follow a similar approach to previous <a href="https://commonslibrary.parliament.uk/supreme-court-judgment-on-scottish-independence-referendum/">cases</a>. In other words, the law-making dominance of Westminster will prevail.</p>
<p>While <a href="https://commonslibrary.parliament.uk/section-35-of-the-scotland-act-and-vetoing-devolved-legislation/#:%7E:text=Section%2035%20of%20the%20Scotland%20Act%201998%20has,as%20%E2%80%9C%20a%20matter%20of%20last%20resort%20%E2%80%9D.">section 35</a> has never been invoked before, it is part of the foundation for the Scottish parliament’s legal framework. If Wales tried to adopt a similar law to Scotland’s gender recognition bill, it is likely that similar action would be taken by the UK government, given the provisions within the <a href="https://www.legislation.gov.uk/ukpga/2006/32/section/114">Government of Wales Act</a>.</p>
<figure class="align-center ">
<img alt="The Senedd building lit up in the evening" src="https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505886/original/file-20230123-16-4uj6o4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Senedd in Cardiff.</span>
<span class="attribution"><span class="source">Billy Stock/Shutterstock</span></span>
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</figure>
<p>This does not mean the UK government’s decision on the Scottish bill is without constitutional ramifications. Drakeford has <a href="http://www.senedd.tv/Meeting/Clip/5faf08e7-e61e-4cb6-ad8f-9ab68c35fe45?inPoint=00:31:46&outPoint=00:34:34">described</a> the use of legal power against the Scottish government as a “slippery slope”, in which the UK government is increasingly reliant on legal dominance, rather than respect and dialogue.</p>
<p>For nearly 20 years, governments of every political persuasion respected the <a href="https://researchbriefings.files.parliament.uk/documents/SN02084/SN02084.pdf#:%7E:text=The%20%E2%80%9CSewel%20Convention%E2%80%9D%20is%20a%20colloquial%20term%20for,the%20Scotland%20Bill%201997-98%20on%2021%20July%201998%3A1">Sewel convention</a>. This is a principle stating the UK parliament will not normally legislate in respect of a devolved matter without the devolved government’s consent. While it has been <a href="https://www.supremecourt.uk/cases/uksc-2016-0196.html">ruled</a> the convention is not legally enforceable, it exists to ensure the decisions of devolved governments are respected by the UK government.</p>
<p>However the 2016 Brexit referendum set a new precedent for these working relationships. The Scottish parliament withheld consent for the <a href="https://www.legislation.gov.uk/ukpga/2018/16/contents/enacted">EU (Withdrawal) Act</a>, which removed the influence of the EU institutions in the UK and paved the way for cutting off sources of EU law via the <a href="https://commonslibrary.parliament.uk/research-briefings/cbp-7793/">‘great repeal’</a>. </p>
<p>All three devolved nations also withheld consent for the <a href="https://www.legislation.gov.uk/ukpga/2020/1/contents/enacted">EU (Withdrawal Agreement) Act</a>, the law that was needed to ratify the Brexit withdrawal agreement negotiated between the UK and EU. Nonetheless, both were still passed by the UK parliament.</p>
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<p>The UK government’s veto of Scotland’s gender recognition bill is arguably a further shift away from conventions and reliance upon legal force.</p><img src="https://counter.theconversation.com/content/198181/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen Clear does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The fallout over the Scottish government’s gender recognition legislation has not happened in isolation.Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, Bangor UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1956792022-12-15T09:38:03Z2022-12-15T09:38:03ZCameroon’s Anglophone crisis: how the common law court offers a ray of hope<figure><img src="https://images.theconversation.com/files/500980/original/file-20221214-11-4jpt5x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A lawyer in front of a Yaounde court</span> <span class="attribution"><span class="source">Reinnier Kaze/AFP via Getty Images</span></span></figcaption></figure><p>Six years on, the crisis in the Anglophone (English-speaking) regions of Cameroon continues. <a href="https://www.hrw.org/news/2022/08/11/cameroon-army-killings-disappearances-north-west-region#:%7E:text=The%20violence%20has%20caused%20about,to%20become%20refugees%20in%20Nigeria.">Recent reports</a> indicate that over 6,000 people have been killed. </p>
<p>A further 600,000 have been internally displaced, while over 7,700 people have become refugees in neighbouring Nigeria. </p>
<p>The conflict’s <a href="https://jhumanitarianaction.springeropen.com/articles/10.1186/s41018-022-00114-1">origins</a> lie partly in the fact that Cameroon applies two different systems of law. Anglophone lawyers say the system marginalises the common law.</p>
<p><a href="https://theconversation.com/why-international-players-have-a-duty-to-help-the-search-for-peace-in-cameroon-142012">Cameroon was colonised</a> by Great Britain and France, which occupied 20% and 80% of the territory respectively. They <a href="https://theconversation.com/cameroon-how-language-plunged-a-country-into-deadly-conflict-with-no-end-in-sight-179027">introduced both their language</a> and their legal traditions in their respective spheres of influence. </p>
<p>So, the Anglophone regions apply the common law. The Francophone regions apply the civil law. </p>
<p>In Cameroon, the common law and the English language have been <a href="https://theconversation.com/what-it-would-take-to-break-the-impasse-in-cameroons-deadly-crisis-122134">systemically undermined</a> by the <a href="https://theconversation.com/history-explains-why-cameroon-is-at-war-with-itself-over-language-and-culture-85401">predominantly Francophone government</a>. At the level of the Supreme Court, the predominant application of the civil law often left common law litigants without justice. </p>
<p>In October 2016, <a href="https://theconversation.com/cameroon-how-language-plunged-a-country-into-deadly-conflict-with-no-end-in-sight-179027">a peaceful protest over this by Anglophone lawyers</a> was met with <a href="https://saisreview.sais.jhu.edu/cameroon-anglophone-crisis-global-response/">disproportionate force</a> from the government. </p>
<p>By early 2017 the protests had become a violent separatist conflict. The government tried to address some of the concerns by creating the <a href="https://cameroon-tribune.cm/article.html/9799/en.html/supreme-court-common-law-division-soon.">Common Law Division</a> within the <a href="http://www.minjustice.gov.cm/index.php/fr/2-non-categorise/3-cour-supreme">Supreme Court</a>. The division is meant to hear final appeals from courts in the Anglophone regions in matters relating to the common law. </p>
<p>The <a href="https://www.prc.cm/en/news/the-acts/laws/2360-law-no-2017-014-of-12-july-2017-to-amend-and-supplement-some-provisions-of-law-no-2006-16-of-29-december-to-lay-down-the-organization-and-functioning-of-the-supreme-court">law states</a> that judges in the Common Law Division should have an “Anglo-Saxon” legal background. By implication, they should understand the common law principles and should speak English. </p>
<p>As part of an ongoing <a href="https://www.dmu.ac.uk/research/centres-institutes/iljs/projects.aspx">project</a> on judicial institutions and conflict resolution, we carried out <a href="https://www.thebritishacademy.ac.uk/projects/humanities-social-sciences-tackling-global-challenges-reconstructing-judicial-institutions-for-conflict-transformation/">a study</a> of the Common Law Division between July 2021 and February 2022. </p>
<p>We examined records from the registry of the Courts of Appeal in the Anglophone regions and the Common Law Division. We also interviewed 32 Anglophone lawyers and Supreme Court judges. </p>
<p>The purpose was to assess how the Common Law Division was addressing the concerns raised about the limited influence of the common law in the Supreme Court. </p>
<p>Below are some of the <a href="https://dora.dmu.ac.uk/bitstream/handle/2086/22333/PoliCy%20Brief%20-%20The%20Common%20Law%20Division%20of%20the%20Supreme%20Court%20of%20Cameroon.docx?sequence=1&isAllowed=y">key findings</a> which we discuss further in our <a href="https://dora.dmu.ac.uk/handle/2086/22333">report</a>.</p>
<h2>Performance of the Common Law Division</h2>
<p>The Common Law Division began functioning fully in 2018. As of <a href="https://dora.dmu.ac.uk/handle/2086/22333">September 2022</a>, it had received 450 cases, 200 of which were appeals made directly from the Anglophone regions. </p>
<p>The other 250 were appeals that were pending in other divisions of the Supreme Court before the Common Law Division was established. The cases were predominantly civil and criminal matters. </p>
<p>The Common Law Division has made final decisions in 125 cases. In a further 178 cases, it has decided on admissibility – whether claims can be heard. </p>
<p>That is due partly to concerted efforts by the judges to deal with cases in a timely manner.</p>
<p>In the past, as we uncovered in our <a href="https://dora.dmu.ac.uk/handle/2086/22333">study</a>, appeals from the Anglophone regions could remain in the Supreme Court without a decision for up to 34 years. One reason was that French-speaking civil law judges could not hear the appeals. Submissions were written in English and based on common law principles which they did not understand. </p>
<p>The common law and civil law systems are quite distinct in legal practices, principles and procedures. For instance, the common law is developed by judicial precedent. This is a legal principle which requires lower courts to follow the decision made by a higher court, when hearing a later case with similar facts. The civil law depends on codified law (legal texts). </p>
<p>Another difference is that, in the common law, submission of arguments in court is generally oral. This gives the court the opportunity to seek clarification, before it considers the matter and makes a decision. In the civil law system, submissions are written in full and provide limited room for oral debate.</p>
<h2>Cautiously optimistic</h2>
<p>The lawyers are cautiously optimistic about the Common Law Division. The majority have more confidence in making appeals to it because their submissions are written in English and are based on common law principles applied in the Anglophone regions. They know their cases are heard by judges who understand the law and the language. </p>
<p>The judgements are also written in English, mostly in the common law style of setting out the facts, the applicable law and the reasoning of the court. </p>
<p>This is important because judicial precedent cannot be influential if the court does not provide reasons for its decisions. </p>
<h2>Challenges</h2>
<p>Despite the successes registered so far, the Common Law Division still faces a number of challenges. </p>
<p>Foremost is the issue of procedure. The division applies civil law procedures especially in the key area of admissibility. This is because the <a href="http://www.minjustice.gov.cm/index.php?option=com_content&view=article&id=177%3A2018-06-18-11-25-32&catid=1&Itemid=46&lang=en">2006 Supreme Court Law</a> lays out the procedure to be applied throughout the Supreme Court. </p>
<p>According to the lawyers, submitting an appeal following civil law procedures is legalistic and technical. Moreover, civil law procedures are not particularly consistent with common law procedures. So, appeals tend to be dismissed at the admissibility stage for technical reasons. Lawyers say this undermines justice for their clients. In the common law, they say, such technicalities would not prevent a court from hearing a case.</p>
<p>Another important concern raised is that the Common Law Division is still under the Judicial Bench of the Supreme Court. This has a number of unfavourable consequences. </p>
<p>First, the division cannot develop the common law sufficiently if it continues to rely on the Judicial Bench, which is civil law oriented. </p>
<p>Second, the division’s broad jurisdiction means it needs a lot of financial and other resources – almost as much as a bench itself.</p>
<p>Third, as a result of the limited resources, Francophone judges may be appointed to the division to alleviate the pressure on the Anglophone judges. That would defeat the purpose of creating the Common Law Division. </p>
<h2>What should the government do?</h2>
<p>From our research and considering the views expressed by Anglophone lawyers and judges in the study, three recommendations stand out.</p>
<ol>
<li><p>Elevating the Common Law Division to a Common Law Bench. That would require a constitutional amendment.</p></li>
<li><p>Amending the Supreme Court Law of 2006 so that common law procedures can be applied in the Common Law Division. </p></li>
<li><p>Appointing more common law trained judges to the Common Law Division to alleviate the pressure on existing judges. </p></li>
</ol>
<p>The government should consider the above recommendations as part of the approach to resolving the conflict. </p>
<p><em>Ashu Eware, State Prosecutor of the High Court of Manyu Division, Cameroon contributed to this article.</em></p><img src="https://counter.theconversation.com/content/195679/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laura-Stella Enonchong and Ashu Eware receive funding from The British Academy. </span></em></p>The common law and civil law systems are quite distinct in legal practices, principles and procedures. How government manages the difference has implications for the Cameroon Anglophone crisis.Laura-Stella Enonchong, Senior Lecturer in Law, De Montfort UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1952732022-12-05T13:26:14Z2022-12-05T13:26:14ZA judge in Texas is using a recent Supreme Court ruling to allow domestic abusers to keep their guns<figure><img src="https://images.theconversation.com/files/498785/original/file-20221204-16605-8lpn7f.jpg?ixlib=rb-1.1.0&rect=0%2C9%2C3008%2C1985&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Taking guns from abusers saves lives.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/gun-royalty-free-image/1007622020?phrase=gun%20law&adppopup=true">Kameleon007 via Getty Images</a></span></figcaption></figure><p>For a large part of the history of the United States, <a href="https://www.indiebound.org/book/9781635570977">domestic abuse was tolerated</a> under the nation’s legal system. There were few laws <a href="https://doi.org//10.1353/eam.2007.0008">criminalizing</a> <a href="https://doi.org//10.1086/449151">domestic violence</a>, and enforcement of the existing laws was rare. </p>
<p>It was only in the <a href="https://jaapl.org/content/38/3/376">past few decades</a> that laws criminalizing domestic violence came to be widespread and enforced. But now, the U.S. is in danger of backtracking on that legal framework precisely because of the <a href="https://doi.org//10.1086/449151">nation’s historical legacy</a> of turning a blind eye to domestic violence.</p>
<p>On Nov. 10, 2022, a <a href="https://storage.courtlistener.com/recap/gov.uscourts.txwd.1177458/gov.uscourts.txwd.1177458.55.0.pdf">judge in the Western District of Texas</a> struck down the federal law that prohibits access to guns for people subject to domestic violence protection orders. He did this based on a 2022 U.S. Supreme Court ruling, <a href="https://www.oyez.org/cases/2021/20-843">NYSRPA v. Bruen</a>, which held that, to be constitutional, a firearm restriction must be analogous to laws that were in existence when the country was founded. In other words, disarming domestic abusers violates the Second Amendment because those types of laws didn’t exist at the founding of the country.</p>
<p>In a separate, but related, case, the 5th U.S. Circuit of Court of Appeals on Feb 1. sided with the Texas judge, ruling that the <a href="https://www.cnn.com/2023/02/02/politics/domestic-violence-guns-fifth-circuit/index.html">federal ban was unconstitutional</a>. The Justice Department has indicated that it will appeal.</p>
<p>We <a href="https://sph.umich.edu/faculty-profiles/zeoli-april.html">study the link between gun laws</a> <a href="https://publichealth.jhu.edu/faculty/240/shannon-frattaroli">and domestic violence in the U.S.</a> and know that backtracking on laws that prevent the perpetrators of domestic violence from getting their hands on guns will put lives at risk – the <a href="https://pubmed.ncbi.nlm.nih.gov/20363814/">research </a>has proved this time and time again. </p>
<h2>Putting lives in danger</h2>
<p>At present, <a href="http://disarmdv.org/">federal law</a> prohibits persons subject to final – rather than temporary – domestic violence protection orders from purchasing or possessing firearms. In addition, 39 states and the District of Columbia have similar prohibitions on their statutes, with many expanding the restrictions to include individuals under temporary, or ex parte, orders prior to a full hearing.</p>
<p>Ruling that these laws are unconstitutional will put mainly women and children in danger. <a href="https://pubmed.ncbi.nlm.nih.gov/31245255/">More than 50%</a> of women who are murdered are killed by intimate partners, and <a href="https://psycnet.apa.org/record/2019-14080-005">most of those homicides</a> are committed with guns. A 2003 study found that when an abusive man has access to a gun, it <a href="https://doi.org//10.2105/ajph.93.7.1089">increases the risk</a> of intimate partner homicide by 400%.</p>
<p>Women constitute the <a href="https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/tables/expanded-homicide-data-table-10.xls">majority of victims</a> of intimate partner homicide, and almost <a href="https://pubmed.ncbi.nlm.nih.gov/28630118/">one-third of children under the age of 13</a> who are murdered with a gun are killed in the context of domestic violence. </p>
<p>Moreover, <a href="https://injepijournal.biomedcentral.com/articles/10.1186/s40621-021-00330-0">68% of mass shooters</a> have a history of domestic violence or killed an intimate partner in the mass shooting.</p>
<p>Enforcement of <a href="https://pubmed.ncbi.nlm.nih.gov/20088664/">gun restrictions is spotty</a>, with further research needed as to how systematically they are ordered and whether restricted individuals relinquish firearms they already possess. Nonetheless, research shows that firearm restrictions on domestic violence protection orders save lives. <a href="https://doi.org//10.1093/aje/kwy174">Multiple studies</a> conclude that these laws are associated with an <a href="https://doi.org/10.1177/0193841X06287307">8%-10% reduction</a> in intimate partner homicide.</p>
<p>Specifically, there are <a href="https://pubmed.ncbi.nlm.nih.gov/30383263/">statistically significant reductions</a> in intimate partner homicide when the firearm restriction covers both dating partners and those subjected to temporary orders. This decrease is seen in total intimate partner homicide, not just intimate partner homicide committed with guns, nullifying the argument that abusers will use other weapons to kill.</p>
<p>Moreover, these laws have broad support across the country – <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7859883/">more than 80%</a> of respondents to two national polls in 2017 and 2019 said they favor them.</p>
<p>Americans – whether male or female, gun owner or non-gun owner – tend to agree that domestic abusers should not be able to purchase or possess firearms while they are subject to a domestic violence protection order. Most seem to realize that such reasonable restrictions serve the greater good of keeping families and communities safe. </p>
<h2>A disregard for data</h2>
<p>The ruling in Texas was based on an originalist legal argument rather than the data. Under the judge’s interpretation of the Bruen decision, because colonial law – written before a time when women could vote, let alone be protected in law from violent spouses – didn’t restrict domestic abusers’ gun rights, then it simply isn’t constitutional to do so now. In effect, the ruling, should it stand, would mean the U.S. is unable to escape the nation’s <a href="https://doi.org//10.1086/449151">historic legal disregard for domestic violence</a>.</p>
<p>It also disregards the harm that allowing domestic abusers to keep hold of guns does. Multiple studies demonstrate that domestic violence firearm restriction laws are <a href="https://doi.org//10.1136/ip.2009.024620">effective </a>and <a href="http://doi.org//10.1093/aje/kwy174">save</a> <a href="https://doi.org/10.1177/0193841X06287307">lives</a>.</p>
<p>That research shows that, should the Texas ruling stand, people who suffer abuse at the hands of an intimate partner are at greater risk of that abuse being deadly. </p>
<p><em><a href="https://www.linkedin.com/in/lisa-geller">Lisa Geller</a>, director of state affairs at the Johns Hopkins Center for Gun Violence Solutions at the Johns Hopkins Bloomberg School of Public Health, contributed to this article.</em></p>
<p><em>Editor’s note: This story was updated on Feb. 3, 2022 to include the ruling from the 5th Circuit Court of Appeals.</em></p><img src="https://counter.theconversation.com/content/195273/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Research shows that removing guns from violent abusers saves lives. But laws doing just that are at risk of being ruled unconstitutional, following a landmark Supreme Court guns case.April M. Zeoli, Associate Professor of Public Health, University of MichiganShannon Frattaroli, Professor of Health Policy and Management, Johns Hopkins UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1955122022-12-01T21:39:12Z2022-12-01T21:39:12ZThere’s no official French version of the 1867 Constitution Act. So is taking the oath to the King in French valid?<figure><img src="https://images.theconversation.com/files/497740/original/file-20221128-20-fhf4vv.JPG?ixlib=rb-1.1.0&rect=10%2C0%2C7308%2C5179&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Parti Québécois leader Paul St-Pierre Plamondon at a press conference on Oct. 17, 2022, at the Québec City National Assembly. He repeated that he did not want to swear an oath to King Charles.</span> <span class="attribution"><span class="source">The Canadian Press/Karoline Boucher</span></span></figcaption></figure><p>Since the election of the first Parti Québécois legislators in 1970, controversy over Québec MNAs swearing an oath to the sovereign before taking their seats in the National Assembly has stirred emotion and sparked heated debate.</p>
<p>PQ leader Paul St-Pierre Plamondon <a href="https://montreal.ctvnews.ca/embarrassing-and-humiliating-pq-leader-seeks-support-against-swearing-oath-to-king-1.6112759">recently fuelled the controversy</a> by stating loudly and clearly that he will not swear allegiance to King Charles. His PQ colleagues followed suit as did Québec solidaire MNAs, who have since <a href="https://montrealgazette.com/news/local-news/quebec-solidaire-mnas-swear-oath-to-king-charles-iii-pq-still-holding-out">changed their minds</a>.</p>
<p>On Nov. 2, the president of the National Assembly, François Paradis, <a href="https://www.cbc.ca/news/canada/montreal/oath-to-king-mandatory-national-assembly-ruling-1.6636947">issued a ruling</a> that unequivocally stated MNAs cannot take their seat in the National Assembly without first swearing an oath to the King. He further ordered the sergeant-at-arms to expel any member who refused to comply.</p>
<p>On Dec. 1, the PQ MNAs were consequently <a href="https://www.cbc.ca/news/canada/montreal/pq-denied-entry-1.6670622">denied entry</a> to the National Assembly’s Blue Room, the chamber where the debates and the votes take place.</p>
<p>Meanwhile, the CAQ government of François Legault has <a href="https://montreal.ctvnews.ca/quebec-eyes-new-bill-to-make-oath-to-king-optional-but-will-it-be-enough-to-change-the-rules-1.6136233">pledged to table a bill</a> in the National Assembly that would allow Québec MNAs to opt out of the obligation to swear an oath to the King. </p>
<p>However, it’s unclear whether Québec’s legislature has the ability to unilaterally amend the relevant provision of the Constitution.</p>
<hr>
<p>
<em>
<strong>
À lire aussi :
<a href="https://theconversation.com/why-quebec-politicians-must-swear-an-oath-to-the-king-even-if-they-dont-want-to-192807">Why Québec politicians must swear an oath to the King — even if they don't want to</a>
</strong>
</em>
</p>
<hr>
<p>As constitutional scholars and language rights experts, we have been motivated by heightened interest in this issue to explore another question that is often ignored: is the parliamentary practice of Québec MNAs and federal MPs swearing an oath to the King in French constitutional?</p>
<h2>Only the English version is official</h2>
<p>The question arises because the obligation to swear an oath to the sovereign originates in Sec. 128 of the <a href="https://laws-lois.justice.gc.ca/eng/const/page-1.html">1867 Constitution Act</a>, passed by the Parliament of the United Kingdom in English only. The official English version states that every member of a legislative assembly must take the oath by repeating the following:</p>
<blockquote>
<p>“I (Member’s name) do swear that I will be faithful and bear true allegiance to (His) Majesty (King Charles).”</p>
</blockquote>
<p>There are unofficial French versions of the 1867 Constitution Act, published on the websites of the <a href="https://laws-lois.justice.gc.ca/eng/const/page-1.html">Department of Justice Canada</a> and <a href="https://www.sqrc.gouv.qc.ca/relations-canadiennes/institutions-constitution/codifications/loi-constitutionnelle-1867.asp">Québec’s Secretariat for Canadian Relations</a>, where the oath has been translated. But these translations lack the force of law.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/497660/original/file-20221128-25-u3xehn.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/497660/original/file-20221128-25-u3xehn.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/497660/original/file-20221128-25-u3xehn.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/497660/original/file-20221128-25-u3xehn.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/497660/original/file-20221128-25-u3xehn.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/497660/original/file-20221128-25-u3xehn.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/497660/original/file-20221128-25-u3xehn.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">King Charles and Princess Anne follow the coffin of Queen Elizabeth during her state funeral at Westminster Abbey on Sept. 19, 2022. Swearing an oath to the new king has become controversial in Québec and Canada.</span>
<span class="attribution"><span class="source">The Canadian Press/AP-Andreea Alexandru</span></span>
</figcaption>
</figure>
<p>The fact that no official French version of the 1867 Constitution Act exists in 2022 is nothing short of an aberration. This situation is all the more troubling given that Sec. 55 of the <a href="https://laws-lois.justice.gc.ca/eng/const/page-12.html">1982 Constitution Act</a> requires the federal justice minister to draft a French version of the parts of Canada’s Constitution that, like the 1867 act, were enacted in English only for strictly historical reasons.</p>
<p>Once the French version has been drafted, which was done by 1990, it must be put forward for immediate enactment. However, the French version must be passed according to the constitutional amendment procedure. In the case of the 1867 Constitution Act, enacting the full French version requires the consent of all members of the federation. </p>
<p>Forty years after the patriation of the Constitution, this level of consent has still not been achieved due to a lack of political will.</p>
<h2>The option of taking the oath in French</h2>
<p>Despite the problems described above, both the House of Commons and the National Assembly allow their members to take the oath in French. In Québec, this practice dates back to the <a href="https://www.uottawa.ca/clmc/constitutional-act-1791">1791 Constitutional Act</a>, which specified in its original English version that new members of the legislative assembly of Lower Canada were to take an oath to the sovereign “in the English or French Language” (Sec. 29). </p>
<p>The <em>Journal of the House of Assembly</em> of Dec. 17, 1792, confirms that French-speaking members were allowed to take the oath in French.</p>
<p>Although the option of taking the oath “in the… French Language” is not explicitly enshrined in the <a href="https://www.uottawa.ca/clmc/union-act-1840">1840 Union Act</a> or the 1867 Constitution Act, the practice of allowing members of legislative assemblies to take the oath in French has been maintained publicly on a peaceful and continuous basis without protest.</p>
<p>Is this practice constitutionally justifiable, or should one conclude that the oath taken in French by members of legislative assemblies since the advent of the Canadian federation is invalid because of a technical defect? </p>
<p>Such a conclusion would have dramatic consequences, to say the least, as it would call into question the validity of the votes in which these members participated, and the validity of the laws passed under their leadership.</p>
<figure class="align-center ">
<img alt="A man speaks at a microphone, with flags in the background" src="https://images.theconversation.com/files/497659/original/file-20221128-22-up9tm8.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/497659/original/file-20221128-22-up9tm8.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=392&fit=crop&dpr=1 600w, https://images.theconversation.com/files/497659/original/file-20221128-22-up9tm8.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=392&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/497659/original/file-20221128-22-up9tm8.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=392&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/497659/original/file-20221128-22-up9tm8.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/497659/original/file-20221128-22-up9tm8.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/497659/original/file-20221128-22-up9tm8.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Bloc Québécois leader Yves-François Blanchet talks about taking advantage of an opposition day to ask whether public servants should be obliged to swear allegiance to the king at a news conference in October 2022 in Ottawa.</span>
<span class="attribution"><span class="source">The Canadian Press/Adrian Wyld</span></span>
</figcaption>
</figure>
<h2>Taking the oath in French is constitutional</h2>
<p>In our view, the practice of allowing Québec MNAs and federal MPs to take their oaths in French is constitutional. The 1867 Constitution Act must be interpreted in light of Canada’s linguistic duality. </p>
<p>One of the objectives of the union of the British colonies into a federation was to grant the French-speaking minority a legislature in which its members would be in the majority and could legislate, in French, on important matters such as education, culture and private law.</p>
<p>Several provisions of the Constitution aim to protect minority rights. For example, Sec. 133 of the 1867 Constitution Act gives Québec MNAs and federal MPs the right to use either French or English in parliamentary debate. It would make little sense for this same law to require Québec MNAs and federal MPs to swear an oath in English as a prerequisite to using the official language of their choice in legislative proceedings.</p>
<p>It should also be noted that Sec. 128 of the 1867 Constitution Act does not state that the oath must be taken in English. To the extent that any ambiguity exists regarding the language of the oath, it must be resolved in a manner consistent with the constitutional principle of respect for minorities (recognized by the Supreme Court of Canada in its <em><a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do">Reference re Secession of Quebec</a></em> judgment) while taking into account the primary purpose of this provision. </p>
<p>What really matters under Sec. 128 is the member’s affirmation of loyalty to the sovereign — who <a href="https://publications.gc.ca/site/eng/9.565206/publication.html">personifies the Canadian state</a> — and not the official language in which the oath is taken.</p>
<p>Since 1982, Sec. 16(1) of the <a href="https://laws-lois.justice.gc.ca/eng/const/page-12.html">Canadian Charter of Rights and Freedoms</a> has eliminated any ambiguity at the federal level by providing that:</p>
<blockquote>
<p>“English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.”</p>
</blockquote>
<p>Given that English and French have equal legal status in the House of Commons, it follows that federal MPs are able to swear the oath to the King in either language.</p>
<p>For these reasons, we believe that Québec MNAs and federal MPs can validly take their oaths in French, even though only the English version of the 1867 Constitution Act has official status. </p>
<p>Yet the fact remains that the patriation of the Constitution will remain an <a href="https://journals.library.ualberta.ca/constitutional_forum/index.php/constitutional_forum/article/view/29447/21439">unfinished task</a> as long as the members of the federation fail to fulfil their duty to pass French versions of English-only constitutional legislation.</p><img src="https://counter.theconversation.com/content/195512/count.gif" alt="La Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Les auteurs ne travaillent pas, ne conseillent pas, ne possèdent pas de parts, ne reçoivent pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'ont déclaré aucune autre affiliation que leur organisme de recherche.</span></em></p>No official French version of the Constitution Act of 1867 exists in 2022. This aberration calls into question the validity of taking an oath to the King in French.Yan Campagnolo, Professor of Constitutional Law, L’Université d’Ottawa/University of OttawaFrançois Larocque, Professor, Research Chair in Language Rights, Faculty of Law | Professeur, Chaire de recherche Droits et enjeux linguistiques, Faculté de droit. 2021 Fellow, Fondation Pierre Elliott Trudeau Foundation, L’Université d’Ottawa/University of OttawaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1932372022-11-15T13:30:16Z2022-11-15T13:30:16ZNigeria has too many prison inmates awaiting trial. Technology could achieve swifter justice<figure><img src="https://images.theconversation.com/files/493842/original/file-20221107-15-in36l8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An activist protests against the incarceration of hundreds of inmates imprisoned without trial in Nigeria. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-of-the-organisation-for-civil-rights-and-equal-news-photo/1228319258?phrase=prisons%20inmates%20nigeria&adppopup=true">Pius Utomi Ekpei/AFP via Getty Images </a></span></figcaption></figure><p>Nigeria’s prison population is more than <a href="https://www.corrections.gov.ng/statistics_summary">76,000</a>, housed in <a href="https://www.prisonstudies.org/country/nigeria">240</a> correctional centres. About <a href="https://www.corrections.gov.ng/statistics_summary">70%</a> of these inmates are still awaiting trial. They have been arrested and charged, but not yet convicted or cleared.</p>
<p>This is the highest percentage of awaiting-trial prisoners in Africa. World Prison Brief’s latest report puts the figure at <a href="https://www.prisonstudies.org/country/ghana">12.4% for Ghana</a> and <a href="https://www.prisonstudies.org/country/south-africa">32.9% for South Africa</a>.</p>
<p>The presumption of innocence is enshrined in Nigeria’s constitution, in <a href="https://streetlawyernaija.com/section-36-of-the-constitution-fair-hearing/#:%7E:text=of%20the%20matter">section 36(5)</a>. It says:</p>
<blockquote>
<p>Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. </p>
</blockquote>
<p>But the reality in Nigeria, as a number of <a href="https://www.prisonstudies.org/sites/default/files/resources/downloads/pre-trial_detention_briefing_final.pdf">researchers have shown</a>, is that many people accused of crimes are presumed to be guilty. They are arrested and imprisoned before their cases are investigated. </p>
<p>Add to this a <a href="https://omaplex.com.ng/adjudication-timeframe-in-nigerias-criminal-jurisprudence-the-bill-that-should-have-passed/">court system beset by delays and backlogs</a> – it’s no wonder that Nigeria has so many inmates awaiting trial.</p>
<p>There are reports of accused people <a href="https://www.nytimes.com/2017/09/19/us/alabama-kharon-davis-speedy.html">spending 10 years awaiting trial in the US</a>, and between <a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">12 and 15 years in Nigeria</a>. This long wait in Nigeria is against <a href="https://www.lawglobalhub.com/section-293-299-administration-of-criminal-justice-act-2015/#:%7E:text=Section%20296%20Administration%20of%20Criminal%20Justice%20Act%202015,-Time%20and%20protocol&text=(1)%20Where%20an%20order%20of,returnable%20within%20the%20same%20period">section 296 of the 2015 Administration of Criminal Justice Act</a>. The law provides that the period of remand should not exceed 28 days. </p>
<p>There have been some efforts to address the situation. The government offers some free legal services through <a href="https://legalaidcouncil.gov.ng/">the Legal Aid Council</a>. It provides free legal assistance and representation, legal advice and alternative dispute resolution to indigent Nigerians to enhance access to justice. But the problem seems intractable.</p>
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Read more:
<a href="https://theconversation.com/waiting-for-trial-can-be-worse-than-facing-the-sentence-a-study-in-nigerian-prisons-145480">Waiting for trial can be worse than facing the sentence: a study in Nigerian prisons</a>
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<p>We wondered whether a technological solution might be a step towards addressing trial backlogs.</p>
<p>So we set out <a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">to study</a> the situation at two correctional centres in Abakaliki and Afikpo, towns in Ebonyi State in south-east Nigeria. We investigated the underlying causes of long awaiting-trial periods and ways of addressing them.</p>
<p>The main causes of delay include the slow pace of investigation by the police and the loss of case files. Others are an inadequate court system and poor access to lawyers. </p>
<p>Our findings suggest that a repository portal system could help address most of the issues delaying trials. The portal would be a database where information about accused persons and their current trial status would be stored. It would be easily accessible, too. Material relating to investigations and police findings could be uploaded to the portal, which would then automatically allocate cases, depending on the nature of the alleged offences, to the relevant court. </p>
<p>This would address the challenge of loss or manipulation of data by criminal justice agents, like the police and correctional centre officials. It also tackles the challenge posed by manually sorting through large files. </p>
<p>A system like this has not been proposed or applied in any African country yet.</p>
<h2>What we did</h2>
<p><a href="https://journals.sagepub.com/doi/full/10.1177/21582440221079822">Our study</a> focused on 1,343 inmates at Abakaliki and Afikpo correctional centres. Of that figure, 845 (63%) were awaiting trial.</p>
<p>We used structured questionnaires and unstructured in-depth interviews with a sample of 1,498 respondents drawn from the Nigerian criminal justice agencies and “awaiting-trials”. We asked the participants about their experiences in the criminal justice system, whether the processes were automated or manual, and how the process affected their experience. This was with a view to identifying the gaps caused by manual methods in the system, and determining how information and communication technology could fill that gap. </p>
<p>Nigeria’s criminal justice bureaucracy uses manual processes to record and preserve information about suspects and evidence, transfer case files, prepare for suspects’ court appearances and allocate cells to inmates. </p>
<p>Some of the problems identified are losses of case files, degradation of evidence and delays in preparing inmates for court appearances. Other problems are delays in concluding cases and improper allocation of cells. </p>
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Read more:
<a href="https://theconversation.com/nigerias-jailbreaks-point-to-a-prison-system-out-of-step-with-reality-186935">Nigeria's jailbreaks point to a prison system out of step with reality</a>
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<p>The results showed that 39.1% of the police officers (241 of 617), 69% of the prison officials (100 of 145) and 53.1% of the court officials (60 of 113) were of the view that automation of the criminal justice processes using a repository system could address the delays. </p>
<p>These findings are in line with our qualitative data. The criminal justice agents we interviewed affirmed the importance of linking and automating all the criminal justice agencies with a repository system. </p>
<h2>Developing the portal</h2>
<p>The information on the portal should categorise offences as simple, misdemeanour or felony. There should be detailed information about the suspects, offences they are accused of and legal provisions guiding such offences. </p>
<p>Here’s the process we propose for using the repository system:</p>
<ul>
<li><p>police upload cases onto a database</p></li>
<li><p>the system can transfer cases to the nearest courts of competent jurisdiction</p></li>
<li><p>the trial can commence</p></li>
<li><p>after judgement, those found guilty will be sent to correctional centres to serve their sentences</p></li>
<li><p>those acquitted will be released and their cases will be marked closed.</p></li>
</ul>
<p>To ensure seamless functioning of the system, a monitoring body should be created, independent from the Nigerian Correctional Service. It would monitor the activities of the criminal justice agents.</p><img src="https://counter.theconversation.com/content/193237/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Benjamin Okorie Ajah does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A central repository system offers practical solutions to reducing the large number of awaiting-trial inmates in Nigeria.Benjamin Okorie Ajah, Lecturer, University of NigeriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1930172022-10-26T22:46:05Z2022-10-26T22:46:05ZA constitutional Voice to Parliament: ensuring parliament is in charge, not the courts<p>Australians will soon vote in a referendum on a First Nations Voice – a constitutionally guaranteed body empowering Indigenous communities to advise parliament and government on Indigenous affairs, as advocated by <a href="https://www.referendumcouncil.org.au/final-report.html#toc-anchor-ulurustatement-from-the-heart">the Uluru Statement</a>. </p>
<p>Prime Minister Anthony Albanese has released a <a href="https://theconversation.com/creating-a-constitutional-voice-the-words-that-could-change-australia-187972#:%7E:text=Prime%20Minister%20Anthony%20Albanese%20has,and%20Torres%20Strait%20Islander%20Voice.">draft constitutional amendment</a> requiring parliament to establish the Voice. </p>
<p>However, <a href="https://www.theaustralian.com.au/inquirer/business-on-board-with-voice-as-corporate-branding-exercise/news-story/17352fe2075139315aeb8345f2fbb2b2">some critics</a> have raised concerns about “judicial activism”. They worry the High Court might interpret the provisions in unpredictable ways, creating legal uncertainty. </p>
<p>Careful constitutional drafting can address such concerns by making the amendment “non-justiciable”. </p>
<p>Non-justiciable constitutional clauses respect parliamentary supremacy. It means courts don’t get involved.</p>
<p>A constitutionally guaranteed First Nations Voice is intended to be non-justiciable. </p>
<p>The amendment can now be perfected to remove any doubt that parliament will be charge of its operation, not judges. </p>
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Read more:
<a href="https://theconversation.com/putting-words-to-the-tune-of-indigenous-constitutional-recognition-42038">Putting words to the tune of Indigenous constitutional recognition</a>
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<h2>What’s been proposed</h2>
<p>The government’s draft constitutional amendment reads: </p>
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<ol>
<li>There shall be a body, to be called the Aboriginal and Torres Strait Islander Voice.</li>
<li>The Aboriginal and Torres Strait Islander Voice may make representations to parliament and the executive government on matters relating to Aboriginal and Torres Strait Islander Peoples.</li>
<li>The parliament shall, subject to this Constitution, have power to make laws with respect to the composition, functions, powers and procedures of the Aboriginal and Torres Strait Islander Voice.</li>
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<p>This is modest and reasonable, but can be refined.</p>
<p>Clause two could be revised to read (bolding is author’s addition): </p>
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<p>The Aboriginal and Torres Strait Islander Voice may make representations to parliament and the executive government <strong>on proposed laws and</strong> matters relating to Aboriginal and Torres Strait Islander peoples. </p>
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<p>Adding “proposed laws” will <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4233732">confirm and signpost</a> non-justiciability. It will fortify the amendment against criticism. It will help answer concerns about uncertain judicial interpretation. </p>
<p>Constitutional clauses referring to “proposed laws” are considered unenforceable by the courts. This is because the High Court deals with laws, while “proposed laws” are parliament’s business. </p>
<p>Australia’s first chief justice and founding father of the Constitution, Samuel Griffith, explained <a href="http://classic.austlii.edu.au/au/cases/cth/ArgusLawRp/1911/37.html">in 1911</a> that parliament’s internal affairs are “not subject to […] review by a court of law”.</p>
<p>As former High Court judge Edward McTiernan once said, “Parliament is master in its own household.” </p>
<h2>Why ‘proposed laws’ is a key phrase</h2>
<p>The “proposed laws” suggestion is not new. </p>
<p>Back in 2014, Indigenous leaders and constitutional conservatives – experts anxious to protect the Constitution from judicial activism – <a href="https://www.mup.com.au/books/radical-heart-paperback-softback">collaborated</a> on how to achieve the empowering constitutional recognition Indigenous peoples sought, without creating High Court uncertainty. </p>
<p>The solution was a constitutionally guaranteed Indigenous advisory body, which would work through political dialogue, rather than through the courts. </p>
<p>Constitutional law expert Professor Anne Twomey suggested <a href="https://theconversation.com/putting-words-to-the-tune-of-indigenous-constitutional-recognition-42038">an amendment</a> in 2015. It used the phrase “proposed laws”, which she noted was:</p>
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<p>deliberately employed to indicate that this is an internal parliamentary process that cannot be interfered with or enforced by the courts.</p>
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<p>Legal scholars Professors Megan Davis and Gabrielle Appleby <a href="https://www.theaustralian.com.au/inquirer/our-brightest-legal-minds-are-working-for-a-sound-voice/news-story/d1e542bb0781bb5732fa8093302144eb">recently recalled</a> how Twomey’s 2015 suggestion informed the First Nations dialogues that culminated in the Uluru Statement’s 2017 call for a constitutionally guaranteed First Nations Voice.</p>
<p>In its 2017 <a href="https://www.referendumcouncil.org.au/final-report.html">final report</a>, the government-appointed Referendum Council affirmed the Voice amendment must be non-justiciable, noting:</p>
<blockquote>
<p>The proposed Voice would not interfere with parliamentary supremacy, it would not be justiciable, and the details of its structure and functions would be established by parliament through legislation that could be altered by parliament.</p>
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<p>However, the “proposed laws” approach only works with standalone provisions that do not limit parliament’s law-making power. </p>
<p><a href="https://www.theaustralian.com.au/commentary/a-more-modest-option-could-lift-prospects-for-voice/news-story/9e11f2465879ae4b90cb1d848cdb192f">Those suggesting</a> a “duty to consult” within an Indigenous head of power as <a href="https://www.theaustralian.com.au/commentary/letters/most-australians-are-tolerant-and-inclusive-so-stop-the-hectoring-on-our-national-day/news-story/5df6d8d9cce30994761c822899f19281">a more modest</a> constitutional change should be commended for engaging productively, but are on the wrong track. These formulations limit parliament’s power, creating uncertainty for courts to resolve.</p>
<p>The government’s approach is more modest and workable, and should be refined.</p>
<h2>Better than other proposals</h2>
<p>The intent to keep the Voice amendment away from the courts and under the purview of parliament sets it apart from all other options for Indigenous recognition.</p>
<p>An earlier <a href="https://www.indigenousjustice.gov.au/resources/recognising-aboriginal-and-torres-strait-islander-peoples-in-the-constitution-report-of-the-expert-panel/">proposal</a> for a constitutional ban on racially discriminatory laws would <a href="https://researchers.mq.edu.au/en/publications/undemocratic-uncertain-and-politically-unviable-an-analysis-of-an">enable</a> courts to strike down parliament’s laws. </p>
<p>Proposals for a new preamble acknowledging Indigenous peoples could yield unpredictable judicial interpretations of the whole Constitution. Constitutional conservatives oppose a symbolic insertion for this reason. </p>
<p>By contrast, a constitutionally guaranteed Voice intends to keep policy matters out of the courts for resolution through political processes. It is the most legally sound and <a href="https://www.bloomsbury.com/au/first-nations-voice-in-the-australian-constitution-9781509944521/#:%7E:text=A%20First%20Nations%20Voice%20in,%3A%20%3A%20Shireen%20Morris%3A%20Hart%20Publishing">constitutionally compatible</a> solution.</p>
<h2>On the question of scope</h2>
<p>Non-justiciability also means those trying to <a href="https://www.theaustralian.com.au/commentary/coalitions-dilemma-oppose-voice-or-define-its-own-model/news-story/f48435ac2ac7927888216f0678ed90d4">excessively limit</a> the issues on which the Voice can provide advice are missing the point. If properly drafted, scope issues would be resolved by parliament through legislation. </p>
<p>And why would politicians want to unnaturally limit the Voice’s ability to give non-binding advice on matters that are important to Indigenous communities? Environmental laws, for example, might not directly target Indigenous people but may yield negative consequences for economic development on Indigenous land. Indigenous communities may wish to alert government to the impacts of such policies. </p>
<p>To prohibit such advice would undercut a key practical benefit of the Voice. Flexibility and common sense are needed here. </p>
<p>Equally, those seeking to constitutionalise a broad scope should remember the Referendum Council’s directive: as the final report made clear, scope issues should be resolved by parliament, not judges. </p>
<h2>Let’s work together</h2>
<p>Experts should keep non-justiciability firmly in mind when suggesting improvements to the government’s draft constitutional amendment.</p>
<p>We need an efficient bipartisan process to refine and agree on the Voice amendment.</p>
<p>The phrase “proposed laws” should be included to confirm parliament will be in charge, not the courts.</p>
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Read more:
<a href="https://theconversation.com/creating-a-constitutional-voice-the-words-that-could-change-australia-187972">Creating a constitutional Voice – the words that could change Australia</a>
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<img src="https://counter.theconversation.com/content/193017/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shireen Morris is Director of the Radical Centre Reform Lab at Macquarie University Law School, which was established with generous support from Foundation Donors, Henry and Marcia Pinskier. Dr Morris advises Cape York Institute on constitutional reform. She is a member of the Australian Labor Party. </span></em></p>The intent to keep the Voice to Parliament amendment away from the courts and under the purview of parliament sets it apart from all other options for Indigenous recognition.Shireen Morris, Senior Lecturer and Director of the Radical Centre Reform Lab, Macquarie University Law School, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.