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Go to: CEDAWAre you being abused?Women at riskInternational Day for the Elimination of Violence Against Women.Should children get free hearing aids & glasses?Anti-Discrimination Legislation for St. HelenaInternational Day for the Remembrance of the Slave Trade and its AbolitionWhy Vote?Are Human Rights more trouble than they’re worth?Are the less able in our society treated the way we would want?Are our children and young people’s rights protected?Who is VulnerableWhat are my rights if I am charged with a criminal offence?Personal LibertyIs Freedom of Information a Human Right?Expression!Is it OK to be refused a Job because I am different?The Rights SandwichThe Right to Life

CEDAW 

Last week I wrote about the paper presented to the UK Parliament called “Human Rights and Democracy: The 2011 Foreign & Commonwealth Office Report which stated the UK Government’s objective for the governments of the Overseas Territories to abide by the same basic human rights standards that British people expect of the UK Government. “This week I want to look at whether this is being put into practice by looking at an example.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is an international treaty that is part of the United Nations human rights’ system. It’s a comprehensive international agreement that is intended to improve the status of women.

It promotes women’s equal attainment of economic, social, cultural, civil and political rights. For example equal pay, equal opportunities to employment and promotion etc. It also establishes rights for women in areas that weren’t previously subject to international standards. These include

  1. The application of non-discrimination to private as well as public life, and

  2. Its requirement that countries must eliminate traditional and stereotyped ideas of the roles of the sexes.

This convention has been signed up to by the UK Government and therefore protects the rights of women in the UK from being undermined. It protects any woman or girl from in the UK from being discriminated against because of her gender. Therefore a Saint girl applying for a job in Swindon cannot be asked about her plans for starting a family or who will look after her children when they are sick. She can expect to be paid the same as a male doing the same job and be protected from discriminatory remarks, newspaper articles or adverts. BUT only while she is in the UK once she comes home all that protection is gone. She can be told she will not be offered a job because a man would do it better or paid less than her male counterparts.

The same FCO report, later in the same chapter, says:

“DFID and the FCO jointly funded a project designed to help those territories that have not already done so to have the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) extended to them. This includes reviewing existing legislation, policy and national gender strategies for compliance with CEDAW in each participating territory, and producing a timeline of necessary actions for Overseas Territories’ governments to enable them to request extension.”

True to their word, this work was funded and carried out on St. Helena in 2011. The report has been delivered. So the big question is what is happening to extend CEDAW to St. Helena?

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Are you being abused? 

It can be hard to know that you’re being abused. Abuse can take many forms and the culture in which we have grown up can effect what we think of as normal.

You may think that your husband or partner is allowed to make you have sex. That’s not true. Forced sex is rape, no matter who does it.

You may think that cruel or threatening words are not abuse. They are. and sometimes emotional abuse is a sign that a person will become physically violent at a later stage.

Below is a list of possible signs of abuse. Some of these are illegal. All of them are wrong.

You may be being abused if your partner:

If you think someone is abusing you, get help. Abuse can have serious physical and emotional effects. No one has the right to hurt you. Even if the abuse is currently only minor, get help anyway - if left unaddressed it may escalate and become more violent.

“Violence against women is always a violation of human rights; it is a crime; and it is always unacceptable. Let us take this issue with the deadly seriousness that it deserves.”

Ban Ki-moon, United Nations Secretary General

White Ribbon Day The Equality & Human Rights Commission Archived Articles

The 25th of November is the International Day for the Elimination of Violence Against Women. It will be marked here on St. Helena with a series of events culminating in a candle lit vigil and gathering in Jamestown on the evening of Sunday 25th November Please join the vigil (whether you are male or female) to show you believe all forms of violence against women should stop.

If you cannot join us wear a white ribbon (available free from shops around the Island and the Human Rights Office). Dress your vehicle, window even your dog in a white ribbon or just wear white on Sunday 25th.

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Women at risk 

Stop violence against women The Equality & Human Rights Commission Archived Articles

Let’s start with a question. Worldwide, which of these is a woman aged 15-44 more at risk from:

The smart ones amongst you will probably have guessed that the answer is Rape/domestic violence, which is scary enough. But did you realise that, according to a World Bank study our 15-44 year old woman is more at risk from Rape/domestic violence than all the others put together?

Want some more frightening statistics?

UK studies have shown that

So are things particularly bad in the UK? Not at all. In the USA, teens and young women experience the highest rates of relationship violence in the world.

and globally:

Studies also show that violence happens to people of all races, cultures, incomes, and education levels. That being the case, we must assume that it happens here in St. Helena. and, in fact, the police reports and court records show that it DOES happen here. If the figures above are applied to St. Helena then very approximately:

We have reason to believe the actual figures are higher than this - not all abuse gets reported.

There are no excuses

The message for women and girls is simple. NOBODY has the right to hurt you physically or mentally. It is NEVER okay for someone to hit you or be cruel to you, whatever you might have done. and your partner has NO RIGHT to force you to have sex, even if you are married or living together.

Your abuser may say alcohol or drugs or stress make them abusive; those things may increase the chances of abuse, but they never make it right or acceptable.

They may even blame you. and you also may think it is your fault that your partner has hurt you, but this is a mistake. You don’t control how your partner acts; he does. The decision to hurt you is his alone, and he must take responsibility for it. There are no excuses.

“Violence against women is always a violation of human rights; it is a crime; and it is always unacceptable. Let us take this issue with the deadly seriousness that it deserves.”

Ban Ki-moon, United Nations Secretary General

The 25th of November is the International Day for the Elimination of Violence Against Women. It will be marked here on St. Helena with a series of events culminating in a candle lit vigil and gathering in Jamestown on the evening of Sunday 25th November

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International Day for the Elimination of Violence Against Women. 

On December 17th, 1999, the United Nations General Assembly designated 25th November as the International Day for the Elimination of Violence Against Women. The UN invited governments, international organizations and NGOs to organize activities designated to raise public awareness of the problem on this day as an international observance. Women around the world are subject to rape, domestic violence and other forms of abuse, and the scale and true nature of the issue is often hidden.

The United Nations defines violence against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life

So what has this got to do with St. Helena?

Some would say that, compared to other nations we girls are lucky. We are not legally the property of our fathers or husbands to be beaten at will; our culture does not require female genital mutilation; and our human rights are protected by the constitution. So everything is fine.

Unfortunately that is not the case. For many reasons it is difficult to get an accurate picture of how many women here have suffered violence as defined above, but we all know it happens. It just often isn’t reported.

We are a small community and there is a reasonable fear that any report to the police that leads to an arrest will not remain confidential. Not that the police will spread gossip but someone will see you going into the police station or the police car outside your house and ask questions. The police report on the radio will mention a domestic violence report, or a report of rape and someone will put two & two together.

and it must be really difficult to report a husband, boyfriend or neighbour for assault or rape when you will see them or their family on a daily basis. There is nowhere to hide here. There is no refuge to escape to.

I have actually spoken to women who think that it is normal for partners to beat their women. After all, their dad hit their mum, so it must be normal.

Bearing all of that in mind, the police figures for reports of domestic violence still show they get around 60 reports a year of domestic violence. In almost all incidents the perpetrator is male and the victim female. Last year about half of these complains were repeat offences. In short approximately 20 women are being repeatedly beaten by their partners and reporting it. How many more are keeping quite because of fear, shame or worrying about their children?

and this is only one sort of violence. These figures do not include rape or assaults outside of a relationship, mentally abusive behaviour or coercion.

We are very lucky here. Unlike many parts of the UK and Africa most women feel safe walking alone at night. They do not fear being home alone. We are not routinely issued with safety advice (in the UK, for example, single women who break down are advised to lock themselves in their car and wait for police assistance). St. Helena is a wonderful, safe place to live for most of us, which must make it seem even worse to those who cannot feel safe, especially in their own home.

“Violence against women is always a violation of human rights; it is a crime; and it is always unacceptable. Let us take this issue with the deadly seriousness that it deserves.”

Ban Ki-moon, United Nations Secretary General

The 25th of November is the International Day for the Elimination of Violence Against Women. It will be marked here on St. Helena with a series of events culminating in a candle lit vigil and gathering in Jamestown on the evening of Sunday 25th November

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Should children get free hearing aids & glasses? 

On Monday this week the St. Helena Youth Parliament (SHYP) held their second annual debate in the Court House. The proposal was:

“That optical, dental and aural prescriptions should be free to for all young people in full time education”

But is this a human right? Are our young people’s rights being denied because these things are not currently free?

The answer is yes. I will explain why but first I must thank the members of the SHYP who have done all the work. These are some of their arguments; I can only agree.

Many families live on low incomes, often earning less than £75 per week. By the time they have paid for rent, utilities, food and clothing there is little (if anything) left. So where do they find £50 or more for a pair of glasses or £100s for a hearing aid (and don’t forget the 20% duty)?

The answer is they either do without essentials or the child does without the aids they need.

The United Nations Convention on the Rights of the Child has been extended to St. Helena so its provisions provide a direct instruction to our Government and policy makers. To quote from this:

Article 3 of the convention states that the best interests of the child must be the TOP PRIORITY in all actions concerning children. How can it not be in the best interests of a child to be able to see, hear and live without toothache?

Article 4 says that governments must do all they can to fulfil the rights of EVERY child (not just the ones with 20/20 vision and perfect hearing).

Article 6 says every child has a right to life. Governments must do ALL they can to ensure that children grow up healthily.

Article 17 gives every child the right to information from the mass media. A deaf child needs a hearing aid to hear the TV or radio and how do you read a newspaper if you need glasses and don’t have them?

Article 23 says that a child with a disability has the right to live to live a full and decent life in conditions that promote dignity, independence and an active role in the community and Governments must do ALL THEY CAN to provide free care and assistance to children with disabilities.

Article 27 says every child has the right to a standard of living that is good enough to meet their physical, social and mental needs. It says “Governments MUST help families who cannot afford to provide this”.

and Article 28 states that every child has a right to eduction. We all want our children to grow up and achieve their full potential. How can this happen if they cannot see or hear what the teacher is trying to say?

Listening to the debate I overheard one, relatively new, government official who was amazed that these things were not already provided free for all schoolchildren. If our Government thinks it cannot afford to assist our children to grow into their full potential maybe it needs to look again at what its spending priorities are.

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Anti-Discrimination Legislation for St. Helena 

I have written in the past about the lack of protection for the people of St. Helena from discrimination when dealing with private individuals or businesses.

So that, for example, SHG have to pay male and female staff the same amount for doing the same jobs but private sector employers do not. Government has to choose the best person for a job, regardless of their race, gender, religion, pregnancy, sexual orientation or any disability but the private sector can refuse to employ people on those grounds. Government cannot refuse to rent you a house on any of those grounds either - but the private sector can. Governments of places that have had the relevant Human Rights Conventions extended to them, as St. Helena has, have a duty to protect their people from discrimination, but currently our Government is not.

THIS MAY CHANGE

Following a presentation to LegCo{1} by the Human Rights Facilitator two Councillors decided to do something about the issue. Cllr Cyril Gunnel proposed and Cllr Brian Isaac seconded the following motion during last week’s LegCo{1} meeting

“This Council calls upon the Government, through the appropriate Council Committees, to review the Constitutional provisions forbidding discrimination and consider whether or not they are adequate to control discrimination in the private sector; and to present a report to this Council thereon”

This proposal was accepted and so it is hoped that in the near future suggestions will be put to LegCo{1} on a way forward.

Coincidentally on Monday this week the Human Rights Office received a press release from the Turks & Caicos outlining their governments plans to remedy the same situation there. They have published their Equality Bill for consultation.

“The Equality Bill is intended to clarify the fundamental rights of everyone in the TCI, starting with the areas of services, public functions, and the work-place. After enactment, over time and subject to further consultation, the scope of the Bill will be gradually extended to other areas of daily life.

The Bill explains the characteristics that must be protected from discrimination: age, disability, marriage, political opinion, pregnancy and maternity, race, religion or belief, sex (gender), and sexual orientation.

The Bill supports the requirements of the 2006 and 2011 Constitutions, and the Turks and Caicos Islands commitments under the European Convention on Human Rights, through which all individuals should be entitled to go about their ordinary daily lives without fear of discrimination. Ultimately, it is intended that all non-discrimination provisions in TCI law will be brought together under this Equality legislation.”

The Human Rights Capacity Building Committee would like to thank Councillors Gunnel & Isaac for taking up this issue and looks forward to seeing a similar press release from SHG in the near future.

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International Day for the Remembrance of the Slave Trade and its Abolition 

The International Day for the Remembrance of the Slave Trade and its Abolition falls on August 23rd of each year. This is the day designated by the United Nations Educational, Scientific and Cultural Organization (UNESCO) to remember the transatlantic slave trade in which St. Helena played such a pivotal role. The shipping of slaves from Africa to the New World and St. Helena’s role in its eventual abolition has shaped our island’s history and culture.

The date is significant because, during the night of August 22nd - August 23rd, 1791, an uprising began on the island of Saint Domingue (now known as Haiti). This was the beginning of a chain of events which resulted in the abolition of the transatlantic slave trade and the start of “modern day” thinking on human rights.

So is slavery a thing of the past? No, slavery still exists all over the world. Over 27 million people are estimated to be forced to live a life of servitude TODAY and that is more than the total number of slaves taken from Africa in 300 years of transatlantic slaving.

Modern day slavery exists in many different forms and one of these is the practice of early and/or forced marriage. This affects women and girls who are made to marry by their fathers without choice and then are forced into lives of servitude. They are often beaten by their husbands, by his other wives and by their mother-in-law. Women and girls who fight back or run away are often killed by their fathers or brothers to protect the family honour.

UK police recorded at least 2,823 so-called honour attacks last year. A freedom of information request by the Iranian and Kurdish Women’s Rights Organisation (Ikwro) revealed that nearly 500 of these were in London. Among the 12 forces also able to provide figures from 2009, there was an overall 47% rise in such incidents. Such attacks can include acid attacks, abduction, mutilations, beatings and in some cases, murder.

To commemorate The International Day for the Remembrance of the Slave Trade and its Abolition the Human Rights Office is staging an exhibition from 23rd August to 6th September called Slavery Past & Present. The office (next to Musk’s Bakery{2}) is open from 10am-4pm on Monday, Tuesday, Thursday & Friday and at other times by appointment. Please call in.

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Why Vote? 

In June 1970 there was a General Election in the UK. I remember talk around the dinner table of “them all being as bad as each other” at which point (suffering major boredom) I said “well don’t bother voting then - What’s the point?”

Oops! At the time I wished I had never asked. But what my Grandmother and my Great Grandfather told me made me determined to vote whenever I had the opportunity and is probably the conversation that began what has been a lifelong interest in Human Rights.

Until that day I was unaware that in living memory women had not been allowed to vote and that. I was told about how Emmeline Pankhurst and others started suffragette movement in 1903. How in 1913 Emily Davison had thrown herself in front of the King’s horse at the Epsom Derby and died as a result of her effort to bring the injustice of not allowing women to vote to public attention. Other women who protested were jailed, subjected to inhumane treatment and when they went on hunger strike to protest were force fed.

The National Union of Women’s Suffrage Societies, which had always employed ‘constitutional’ methods, continued to lobby during the years, of World War 1 but stopped all acts of civil disobedience in support of the war effort. On 6th February, the Representation of the People Act 1918 was passed, enfranchising women over the age of 30 who met minimum property qualifications. About 8.4 million women gained the vote.] In November 1918, the Eligibility of Women Act was passed, allowing women to be elected to Parliament. The Representation of the People Act 1928 extended the voting franchise to all women over the age of 21, granting women the vote on the same terms as men for the first time. My Gran who was only 13 at the time remembered going to watch her mother vote for the first time and seeing the look of trepidation on her face and seeing her jumping up and down with excitement when she had placed her ballot paper in the box.

There are still countries in the world where the people eligible to vote are restricted. In Brunei no one votes, the Sultan has ultimate power and he is advised by committees (of men) who he appoints. In Lebanon proof of elementary education is required before a woman is allowed to vote but not for men, while voting is compulsory for men but optional for women. In Saudi-Arabia women cannot vote or stand for election at all, although there are plans to expand the vote to women in 2015

So those of you eligible to vote on Wednesday - get out there and do it especially the ladies people died to give you the right - use it

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Are Human Rights more trouble than they’re worth? 

Last week I was talking to someone who was concerned that human rights might cause more problems than they solve, on St. Helena.

As I have explained before the Constitution protects most of the people on St. Helena from being discriminated against by the Government but it does not protect individuals or groups in their dealings with the private sector or Civil Society. His argument was that this is alright because

  1. Most people here are treated reasonably;

  2. That legislation to protect people from prejudice is complicated to police;

  3. At a time when the Island is supposed to be growing its private sector businesses anti discrimination legislation would be an expensive burden and hinder private sector development;

  4. If an employer does not pay female staff as much as the men and they do not like it, they are free to get another job.

and as a private sector employer I can understand those arguments.

I agree most of us here are reasonable well treated, legislation can be complicated and difficult to police but we are talking about St. Helena not the UK or Europe. We are about to have a Labour Regulating Authority who will set and one assumes “police” a minimum wage, the infrastructure is therefore already legislated for as far as employment goes. This is one of the key areas where discrimination happens.

As far as policing goes I am not sure why this is a problem. There is a law against murder, but the police do not come around every day check that we have not murdered anyone. They attend when a crime is reported or they are called for assistance. Human Rights issues need not be any different. If we feel we are being discriminated against we should be able to report that and seek assistance in getting it dealt with. If there is no legislation then there is nowhere to turn. Again we need something that is right for the scale of things on St. Helena.

As to the costs I agree that 52 weeks maternity leave would be cripplingly expensive for the private sector but the UK started with 12. Other things do not cost money or relatively little a non-discriminatory advert costs the same to publish as discriminatory ones.

Having spoken to Saint women who have returned here from the UK and some still overseas, who have worked all their lives in an environment where everyone is encouraged to take an active part in society they are shocked to discover their island does not consider them important enough to protect. One woman told me, “I cannot believe my own island would allow me be refused a job just because I am a woman or deaf. But if it is not illegal what is to stop it happening?” If employees are not protected in the private sector then will it be possible to attract the staff we need to grow?

As to the last the last point, first and foremost we are not just talking about women’s rights here we are talking about the rights of all potentially vulnerable people; the disabled, elderly, minority religions and faiths, ethnic minorities, lesbian, bi-sexual, gay etc. Despite the full employment we have thanks to the airport development if I cannot get a job in the first place because I am disabled, but capable of doing a job what do I do?

We are all human; we are all equally worthwhile and capable of making a positive contribution to the world in which we live. But how can we believe that when the absence of legislation makes it OK for us to be discriminated against?

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Are the less able in our society treated the way we would want? 

The less able become vulnerable when we do not listen to what they have to say and we do not think about their needs. It is difficult to understand what it feels like to be less agile or have difficulty communicating.

The research for the Human Rights Action Plan identified the barriers that prevent disabled people from fully participating in the life of St. Helena. Disabled people may have physical, sensory, neurological, psychiatric, intellectual or other impairments. Due to the economic migration of able bodied Saints of working age, St. Helena has a disproportionately high number of disabled and elderly compared to other countries. and many of these impairments develop or worsen with age; an aging population means that increasing numbers of people have impairments.

The Constitution provides protection against discrimination for the disabled, but the infrastructure of the island does not always support this aim. There is a conflict of interests which exists, particularly in Jamestown where we have the best preserved Georgian Buildings in the world. These are buildings of global significance and need to be protected. However protecting our heritage is making physical access to the island’s biggest employers, shops and public buildings difficult.

If the disabled of working age cannot work when it is possible for them to do so there is a loss of contribution to the economy and financial support has to be given. Often people deteriorate without the routine provided by work or social contact. Disabled people have, like the wider society, a range of skills, talents and creative abilities which can benefit society as a whole. In addition to these costs a carer may have to stay at home to look after the disabled person. The carer is then lost from the economy and may have to claim benefits as well.

Participation in decision making is not only a right in itself but also leads to better protection and promotion of other rights. Strengthening advocacy by and for disabled people is crucial to increasing participation, monitoring and addressing the full range of human rights. Society as a whole needs to understand more about what it means to be disabled. Just because someone is in a wheelchair or has more difficulty than most communicating it does not mean that that their opinions are less valid. Through the Disabled Aid Society, disabled people are currently consulted on some of the issues that directly affect them but are not systematically consulted on less obvious issues which also impact their lives (design of public buildings, parking etc).

Those of you that have a disability have the right to have your needs considered and your voice heard. Are you registered to vote? and do you actually make the effort to vote? Do you respond to consultations and attend consultation meetings? Do you write to the newspaper to set out your views? If not, why not?

and those of us, who are not disabled, need to seek out and listen to your views and opinions and take these into account when making decisions.

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Are our children and young people’s rights protected? 

Our children become vulnerable when we do not listen to what they have to say. But how should we listen? and should we always give them what they ask for?

Children and young people live, learn and grow as part of families and communities. Children who learn to express themselves in a positive way, and who know their views will be considered, grow into confident adults capable of contributing in a positive way to their community. Giving our children a right to voice their opinions and concerns will assist in building a future in which all of us are more likely to enjoy our right to freedom of expression. Their voice is about action, so we must make sure that success and achievements are visible to our children and young people and the community.

Research carried out by the Children’s Commissioner in the UK has shown that giving children a voice in school has the following positive effects:

Our children and young people are being given a voice through legislation, New Horizons, The Youth Parliament and the School Student Councils.

Protection of the rights of children and young people on St. Helena is specifically provided for under the Constitution and the Welfare of Children’s Ordinance which was written to enshrine the principle of the United Nations Convention on the Rights of the Child and protects our children’s rights very comprehensively indeed. One of the very positive and important things it does is give a legal right for children and young people to be consulted about matters that affect them, “considered in the light of his age and understanding”.

Our children become vulnerable when we do not listen. What we, as adults, must do is listen to what they have to say with an open mind, and respect their points of view. We must let them have an impact in the areas that affect them.

and, without judgement, we must explain why sometimes we cannot do what they want. That is part of understanding each other’s human rights too.

If we give our children the confidence to speak and the confidence they will be listened to we will have effective leaders in the future.

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Who is Vulnerable 

What is a vulnerable group?

Over the next few weeks I will be writing about the issues that may affect some of the vulnerable groups on St. Helena. Vulnerable people are those who are more likely to be discriminated against than others in the society in which they live. On St. Helena these groups include: women; children; persons with disabilities; older persons; those detained in prison; and people who are less well educated than others.

‘Vulnerable’ should be understood as a comparative term, and not as a negative one. For example women in Afghanistan are denied the right to education; in parts of China and India girl babies are aborted or killed at birth; in the UK women regularly apply to the courts on the grounds that they were selected against for jobs and promotion. All face discrimination, and all are vulnerable, to a greater or lesser extent.

Often this discrimination occurs because the people who make up the vulnerable groups are less well represented in Government, on committees or other decision making bodies. This means that the needs of, or the impact of a decision on the vulnerable may not be fully understood.

Who might be vulnerable here?

Here are the statistics for the sizes of the vulnerable groups on St. Helena:

Women 

1959 

49% of the total population 

Under 18 

885 

21% of the total population 

Over 65 

703 

16.5% of the total population 

Disabled 

104 

2.5% of the total population 

Those detained in prison 

This is an average figure over the last 3 years 

Those who are less well educated 

  

5% of the population over 12 years old have difficulty reading and/or writing 

Source: St. Helena Census 2008 (from SHG web-site)

In addition to these, we have a group not represented elsewhere. During the ten years between the 1998 census and the one taken in 2008, the island’s population declined from 5,644 to 4,255. This decline is due to economic migration, with many people of working age leaving to go to The Falkland Islands, Ascension and the UK. Often one or both parents of children will go overseas, leaving their children with relatives or friends. This group contains around 185 children about 20% of the population under 18. It is generally thought on the island that this group of children may be particularly vulnerable but no practical research has been done (to my knowledge) to find out if this is indeed the case.

Over the coming weeks I will be looking at each of these groups, to see where their rights may be being infringed. I’ll start next week with our children and young people.

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What are my rights if I am charged with a criminal offence? 

Last time we looked at your right to be treated fairly if you are detained on suspicion of breaking the law, but what happens if you are arrested and then charged with an offence?

There is a lot of protection given under various ordinances but most importantly, the “top law”, the Constitution also protects you. It says in clause 10 that

If you are charged with a criminal offence then you shall be

What happens between being changed and going to court?

As we have seen above, you should go to court in a reasonable time and in you are innocent until you are found guilty. So for most people, apart from the worry of going to court, life can continue as normal. You will be bailed at the police station and told to come back to court in due course.

However, if you have been charged with an offence which involves violence and/or it is thought that you may pose a threat to other people, you may have to go to the Magistrates court. Here the magistrates will assess the risk you pose and the nature of the crime you have been charged with and they will decide whether you may be bailed or remanded in custody. This means that you will be held in the prison until such time as you go to trial. For very serious cases the trial will be at the Supreme Court in front of the Judge and if this is the case you may be in prison for some time. Even if you are being held on remand you are still considered to be innocent and therefore will have more privileges than the convicted prisoners.

If you are arrested it is important that you ask for a legal representative. They will be to explain all your rights to you as you go through the process.

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Personal Liberty 

What does my right to personal freedom mean?

The Constitution says that we cannot be deprived of our personal liberty but I know I can go to prison if I commit a crime so under what circumstances can I be deprived of my freedom?

The Constitution says that, as an adult (children and young people will be covered in a later article) and a resident of St. Helena, you can only be deprived of you freedom if:

  1. There is a legal reason to hold you:

    1. You have been sentenced by a recognised court having been convicted of an offence;

    2. A court order is issued because you have not done what the court instructed (for example, repaying a debt, paying a fine or because you were summoned to court and did not attend);

    3. You have been held in contempt of court;

    4. The police have reasonable suspicion of your having committed or of being about to commit a criminal offence;

    5. You are unfit to plead to a criminal charge for example you are under the influence of alcohol or drugs.

  2. You are being held for your safety or to ensure the safety of others. This too will be covered in a later article.

So what are my rights if I am detained?

Whether or not you have committed a crime or any of the above you still have rights.

First of all you must be told promptly and in a language that you understand, the reason for your arrest or detention, and this must be confirmed in writing.

You have the right to have a legal representative to help you, and this must be provided as soon as possible after you ask for one. If you can’t afford to pay for one you can have a Lay Advocate or the Public Solicitor. Either way if you have asked for representation you can be held until that representative arrives, but you cannot be questioned, unless you agree to it.

You have the right to remain silent; you do not have to answer any questions or volunteer any information. Your legal representative will advise you whether it is in your best interest to answer a question.

You must be reminded of these rights as soon as you arrive at any ‘place of custody’ (prison, police station, etc.) On St. Helena this is usually done in a room in the prison set aside for this purpose.

The officer explaining your rights must ask you who wish to be informed that you have been arrested and where you are being held, and must ensure that they are informed immediately. The only exception to this is where the police reasonably believe that informing someone of your arrest may obstruct their investigations (e.g. telling someone who may also be involved in the alleged crime).

Note the word “reasonably” above. Throughout this part of the Constitution you will find the term ‘reasonable’ so it’s worth asking: “who decides what is reasonable?” The test that is applied is to ask: “What would most ordinary sensible people on St. Helena consider reasonable?” If you do not believe you have been treated reasonably you have the right to make a complaint and it may even be a basis for your defence in court.

If the police decide to charge you with an offence you may go to trial, so next week I plan to discuss your right to a fair trial.

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Is Freedom of Information a Human Right? 

If I ask the government a question do I have the right to get an answer?

I said this week I’d write about personal liberty, but last week’s article on freedom of expression brought several queries about the right to have access to government information. and with DfID Secretary of State andrew Mitchell’s comments on the subject, when interviewed this week by Simon Pipe{3}, it seems a good topic to cover immediately.

In another break from the usual I haven’t started with a quote from our Constitution. Freedom of Information is not a right protected by the Constitution of St. Helena, or by our law.

So if it is not in the constitution is it a human right?

The answer, according to the United Nations, is yes.

In its very first session in 1946, the United Nations General Assembly adopted Resolution 59(I), stating:

“Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.”

Last year by the United Nations’ Human Rights Committee reconfirmed this, saying:

“The International Covenant on Civil and Political Rights embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production. ... the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to receive media output.”

The International Covenant on Civil and Political Rights has been extended to St. Helena so that means it covers us.

Freedom of information has been a right in the UK since 2000 and has been spread to over 90 countries around the world since Sweden’s Freedom of the Press Act of 1766. Yet it does not exist here, or in any of the UK’s Overseas Territories.

By the way, in case anyone is getting worried, Freedom of Information covers only government information, not personal details. You private life remains that. Only government information is made accessible.

So why do we not have protection here?

According to our Attorney General, when asked by the HRCBC{4}, the UK Freedom of Information Act 2000 has been dis-applied here because it is too complicated and unmanageable for a small island. Instead the St. Helena Government “works within the spirit of the UK legislation”.

He’s right that to implement the full UK legislation would require many committees and levels of bureaucracy, and probably would be unworkable here, but that doesn’t alter our right to the information or our need for that right to be formalised in our law. Some other way must be found. The view of the HRCBC{4} is that this needs to be addressed.

So, to answer the original question, yes, according to the UN you should have a right to access government information, but our law and Constitution do not (yet) actually implement that right.

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Expression! 

Can I say what I like, when I like?

The Constitution says that we have the right to freedom of expression but does that mean I can say what I like without fear of arrest or retribution?

The Constitution says (in Clause 17):

“Except with his or her own free consent, no person shall be hindered in the enjoyment of his or her freedom of expression. Which includes his or her freedom to hold opinions without interference, his or her freedom to receive information and ideas without interference, his or her freedom to disseminate information and ideas without interference (whether the dissemination be to the public generally or to any person or class of persons) and his or her freedom from interference with his or her correspondence or other means of communication.”

So, it seems, if you disagree with something that your government or indeed a business or other institution is doing or proposes to do you have the right to say so. Nobody has the right to stop you from raising objections or concerns about their actions. You have the right to say or write what you believe even if you know it will be unpopular. and if you want access to public information to help you put forward your case, nobody has the right to prevent you from having it. If I think a policy adopted by government is stupid you have every right to express that opinion openly without fear of retribution.

One the face of it, then, you can say what you like when you like. Except you can’t, and for some very good reasons . . . .

It is fundamental to our Constitution and legal system that we cannot infringe the human rights of other individuals. We have a responsibility not to injure others, not to break the law, and not to incite others to do so. Therefore our right to freedom of expression is limited.

We can be prevented from expressing our views if it can be shown to be in the interests of protecting another’s human rights, safeguarding public health and/or safety, maintaining public order or in the interests of national defence. We are all protected from malicious damage to our reputations and from interference in our private lives.

So, for example, you cannot incite a riot. You may hand out leaflets which argue for a change in the law (e.g. the de-criminalisation of Cannabis) but you must not encourage others to break the law while it is still in force. and if you want to publicly claim someone is corrupt or accuse them of a crime, you need proof. Your right to free speech is limited by their rights.

Also you may have actually signed away your right to criticise. (This is the “Except with his or her own free consent” bit.) Your contract of employment, for example, may say you cannot publicly criticise your employer. If you do so they can sack you for breach of contract. So before you go public with your grievance, check your contract.

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Is it OK to be refused a Job because I am different? 

Does the Constitution protect me against discrimination?

Our Constitution is the “top law” on St. Helena. It sets out how our government is made up, how our island must be run and how our government must treat us. All our Ordinances are required to be consistent with it, and any that aren’t are “overruled” by the Constitution.

The Constitution says (in Clause 5)

“... every person in St. Helena is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, without distinction of any kind, such as sex, sexual orientation, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, age, disability, birth or other status, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following...”

Therefore we should all be treated equally regardless of whether we are male or female, “gay” or “straight”, black, white, brown or pink, born here or not. It does not matter what language we speak, which faith we follow (if any) or if we “able bodied” or physically or mentally impaired. Nor does it matter how young or old we are or whether we want an airport or we don’t. WE ARE ALL EQUAL in that the government or the law cannot treat us differently to each other.

For example you cannot be taxed at a higher rate for being against the airport, or given a longer prison sentence for the same crime because you are over 60. In fact these examples sound ridiculous, which is an indication of how well, in some respects, our rights are protected.

So can I be refused a job on the grounds that I am female or disabled?

Despite all of the above, the answer is: Yes.

If you work for government you are protected both by the constitution and the Government’s own employment policies, which expressly forbid discrimination

But it’s different if you work in the private sector.

If you work in the private sector the Constitution does not protect you, because the Constitution only applies to acts of government. Relationships between private citizens, or between companies and others are not protected by the constitution. That is left to local legislation.

So does local legislation protect me from discrimination?

It should, but there are gaps. The new Employment Ordinance (which is so current it’s not yet in force) does not protect private sector employees from discrimination, except possibly when it comes to unfair dismissal. It will still be perfectly legal to pay women less than men, to refuse to employ someone because they follow a different faith or because they are too old, too fat or just were/were not born here. If you work for an enlightened employer they may have employment policies that protect you, once you are employed.

When the HRCBC{4} raised this with government we were told that we do not need such legislation because things like that do not happen here. I’d welcome your views. Have you been discriminated against in employment? If you have, please contact us - in confidence - with the details.

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The Rights Sandwich 

Why do we already have some rights, but not others?

Last week’s article explained that, although we all have various human rights, not all of these rights are absolute. Even our right to life has exceptions. This week we will look at the types of rights we already have, and those we are waiting for.

Our human rights fall into three different categories, and each category builds on the previous one, rather like making a sandwich: first you need the bread; then the butter makes it easier to eat; and the jam makes it more much more enjoyable.

The Bread. Sometimes referred to as our First Generation rights, these are our fundamental civil and political rights, such as the rights to liberty, to freedom of expression and to not suffer discrimination. Our First Generation rights provide us all with protection against government and others interfering in our lives. These are fundamental to our lives, just as the bread is fundamental to our sandwich.

First Generation rights should be the most simple to enforce. Where our civil and political rights are threatened, we should expect to have recourse to a court of law and a legal remedy to stop it.

The Butter. Our Second Generation rights are our economic, social and cultural rights, such as freedom of religion and the right to have work and to have housing. They are sometimes described as “aspirational” rights - things we should expect but are not as vital to our lives. A sandwich with only bread will keep us alive but the butter makes it easier to eat.

For example, we cannot demand that our government provide us all with a job and a home. That would be impractical. Some governments can afford to do that, and when they can they should, but ours currently cannot, though we can expect that our government won’t actively prevent us from having these. Economic, social and cultural rights are more of a statement of intent - our government should help us to achieve these things.

These rights are not enforced by law. They are usually monitored through reports made by countries to the United Nations.

The Jam. Once we have the bread we need, and the butter we want, we can start to consider the jam: our Third Generation rights. These can be thought of as rights to enjoy our lives. They cover subjects such as peace, personal development and a satisfactory environment. Like economic, social and cultural rights, Third Generation rights are difficult to enforce because they, too, relate to human aspirations, rather than fundamental needs. We want jam on our sandwich, but we can’t demand that it’s provided.

So how is St. Helena doing on the Human Rights Sandwich?

In St. Helena most of our fundamental rights are included in our Constitution, but our Constitution only controls how the Government behaves. Our Constitution does not control what happens between, businesses and private individuals, so these issues need to be covered by local legislation. Our government is working on it, but not all of this legislation is in place yet. In St. Helena, therefore, our bread is only partly baked! and we have to finish the bread before we focus on the butter and the jam.

In December 2011 ExCo{5} gave its full backing to the adoption of the Human Rights Action Plan for St. Helena. Over the next three years the Human Rights Capacity Building Committee will be working with St. Helena Government, Civil Society groups and individuals to produce a perfect loaf!

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The Right to Life 

Do we have a right to life?

The short answer is yes… and no.

Human rights are simply the rights we have because we are human. It does not matter who we are or what we are, where we were born, where we live, our colour, race, religion, whether we are rich or poor or any other status. We are all equally entitled to our human rights without discrimination. However despite the fact they have been ours from birth most of us could not list those rights nor are we fully aware of when they are been violated and what we can do it they have been. As a result we are also often unaware that we have violated the rights of others.

That said you would think that our most basic right - the right to life would be protected without question or qualification. Our Constitution (Clause 5) says

“...every person in St. Helena is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, without distinction of any kind, such as sex, sexual orientation, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, age, disability, birth or status, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following-

“(a) life, liberty, security of the person and the protection of the law.”

So yes we clearly have a right to life protected by the law. However there is a qualification to that right and it is explained by the phrase in bold above subject to respect for the rights and freedoms of others and for the public interest.

Therefore we can put our right to life at risk if we commit a violent act which puts others lives at risk, resist lawful arrest, or take part in a riot, insurrection or mutiny. This is because by our actions we are potentially violating the right to life of other people.

We also have the right to chose to put our life on the line if we chose to join the armed forces.

Do we have a right to life - yes but only so long as we respect the rights of our fellow human beings to their life.

This is the first in a series of articles which aim to explain our rights, our responsibilities to protect the rights of others and what we can do if we believe our rights have been violated.

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Newer articles can be read on our Articles page


Footnotes:

{1}Legislative Council’, effectively the island’s parliament.

{2} Now at Equality & Human Rights Office, The former planning office, ex-PW&SD Yard, The Castle, Grand Parade, Jamestown.

{3} sthelenaonline.org or sthelenaonline.wordpress.com.

{4} Human Rights Capacity Building Committee - the body that oversees implementation of The St. Helena Human Rights Action Plan 2012-2015.

{5}Executive Council’, effectively the island’s cabinet (all members are also members of LegCo{1}).



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