A deliberate lurch towards equality and justice

Matondo Mukulu, GUEST COLUMNIST

Undoubtedly I agree that the new government led by Portia Simpson Miller must confront the main issue of the economy with a vigour and vision never before seen in the history of our nation. The people are expecting leadership that has integrity as its main virtue.

However, as a country, we must not be caught in the trap of focusing on economics at the expense of other facets of national life. Once the bills are paid, something tells me that people will still want to know, for example, that our hospitals and schools are serving their true purpose.

In the sphere of law reform and the administration of justice, there is an urgent need for a radical programme that places people at its centre. Justice Minister Mark Golding has a burden that he must carry with distinction, as he build bridges as his immediate predecessor, Delroy Chuck, seems to have been capable of doing.

The Equality Debate

Interestingly, during the leadership debate, the PM, in her capacity as Opposition leader, took the bold but sensible decision to introduce the issue of the review of our buggery laws. Of course, the right-wingers and self-appointed bigots (from church and non-religious groups) have queued up to castigate her for having the courage and the wisdom to appreciate the fact she is a leader of not just the many, but all Jamaica.

This bold step, which was not dealt with in the manifestos of either party, opens the floor for a national conversation. This conversation cannot be, I would contend, a misguided one that is filled with moral indignation and Bible-thumping. In fact, the religious participants in the discussion must first prepare themselves by getting acquainted with Jamaica beyond the Church, while still respecting church tradition.

If religious leaders are hell-bent on entering the discourse, I would implore them to enter this debate armed with the answer to this question: With whom would the Jamaican Jesus stand in this debate?

Virtue of Equality

The debate is not really about homosexuality or what people do behind closed doors, as despite the existence of the buggery law (sections 76, 77 and 70 of the Offences against the Person Act), we struggle to find evidence to support any view that the State is actually peeping into people's bedrooms.

This national conversation, my friends, is about whether our country is truly committed to equality of opportunity for all. Not equality for some, but for all. Persons within the gay community and those of us who are committed to equality are effectively making a justifiable claim not to be treated like second-class citizens in their own country.

They are asking us not to harass them out of their jobs, homes or membership of clubs, purely because of our puritanical views against their chosen lifestyle. There are several anecdotal stories of persons who have been harassed out of their employment and homes based on their sexual orientation.

The interesting point that Mrs Simpson Miller has implicitly raised is that of the broader issue of equality for all and how we can conduct a seismic shift in our country's collective consciousness towards groups of persons who have been historically marginalised.

In this regard, I am calling for the minister of justice, who has made progressive statements, when in Opposition, to start a conversation about how we treat women, persons with disability, and persons who come from certain communities in the society.

Consequently, we must not limit our discussion to that of homosexuals, but we must confront the state of play that allows employers to ask prospective employees, during their interviews, if they plan to get pregnant while being employed. The justice minister should march boldly forward by seeking an amendment to the Charter of Rights, as the last Government failed to include a provision prohibiting discrimination against persons who are disabled.

It is my view that while persons with disability are more vocal than, say, 20 years ago, and while it cannot be denied that in general the society is more aware, there is a legislative role for the State. We are yet to come to that place in our society where we witness more persons with disabilities taking up positions of authority in either government or the private sector.

An amendment to the Charter is urgently required so that employers can have a clear definition that guides them on the question of what constitutes disability and what, if any, adjustments should be made to ensure that persons with disability are permitted the opportunity to effectively participate in the work environment.

It is said that laws cannot change people's thinking, and to an extent this assertion might be correct. However, the potential benefit of having a greater push towards equality, as expressed in our laws, is a fact which litters our history and that of other countries.

Look no further than the effect of the decisions arrived at by the Constitutional Court in South Africa for a clear lesson on the impact of laws on equalising society. In its seminal decision of Minister of Home Affairs v Fourie, the South African Constitutional Court ushered in new thinking on matters relating to equality, amid the opposition by religious groups.

Of course, I am not saying that once the laws have been changed, we will have a society that is genuinely equal, as there will still be a role for progressive representative groups to ensure that, through taking strategically selected test cases to the court, we protect gains made. We must also ensure that our judiciary is at the forefront of what can be the most radical period in our legislative history since the 1970s.

In leading the charge, the minister of justice must not ignore the cultural realities that obtain in Jamaica, as surely laws cannot be made without a consideration of context. However, whilst being mindful of the need to listen to the voices emanating from the various groups, he will need to be very discerning in being quick to distinguish bigotry dressed up as cultural realities.

There was a time in our history when persons who were stained with too much melanin were not allowed to attend certain schools, enter certain professions or hold certain jobs. The measures used back then were subtle, but the arguments were dressed in cultural garb at times, but now the society, depending on where you are looking, has destroyed some of the myths, and access can certainly be had by far more persons.

I have heard pastors weighing in with vigour on the debate on the proposed repeal of the buggery laws with a certain degree of righteous indignation (and, some would say, hypocrisy), but they are failing to explain to the progressives why they are failing to appreciate that the society is very unequally oppressive.

The Church must state clearly why it struggles with the notion that one can support equality for all, while remaining committed to its theological objection to homosexuality. This is the kind of debate that a reform-minded justice minister will need to advance with a certain speed, so that we can be the ones who will the set the agenda and speed at which we attend to the voices of the socially marginalised and legislatively oppressed.

Role of Judges

An important aspect of this progressive lurch towards greater justice in our society is that of the role of the judges. Undoubtedly, the Ministry of Justice will now have to turn its attention to the task of training our judges to be more proactive in the identification of equality issues and to be more sensitive, without relinquishing their objectivity. This is certainly not a call for judges to become lawmakers.

However, I do not shrink when I say that our judges will need to demonstrate a certain courage that reminds us that we can have faith in our judiciary to deliver decisions that are culturally relevant while remaining faithful to the progressive interpretation of legislation. This is against the backdrop that there are several aspects of our national life where inequality and injustice seem to go unchecked. Think of rape in our prisons or unexplained deaths at hospitals.

It is in this context that I get slightly impatient with those who remain committed to the now-defunct idea that we should continue having the Judicial Committee of the Privy Council as our final appellate Court. The London-based court has served us well, but we are at that juncture in our history when, as citizens, we are calling for an interpretation that is from us.

As we lurch towards greater equa-lity and the promotion of a higher quality of experienced justice, we should be bold enough to trust that our own court, staffed with Caribbean and international judges, can take us there with distinction. This is not a swipe at the London-based judges, but rather, I am saying the progressive interpretation of legislation, while needing to have an international flavour, must be brewed and mixed in the Caribbean Sea.

While we pat ourselves on the back as one of the few countries that have a female prime minister or president, we should not gloat too much, as we still have a society in which religious bigotry, gender-based discrimination, and discrimination based on class/colour and disability are prevalent.

The minister of justice has the opportunity to launch a radical drive to reduce the levels of inequality and discrimination by amending existing laws or enacting new ones.

We cannot focus on the economy without remembering that people's experience in the job market, in education, in prisons, at the hospitals or at social gatherings, if continuously negative, or blighted by discrimination, will undermine any attained economic growth.

Matondo K. Mukulu is a practising barrister. Email feedback to columns@gleanerjm.com and m.kmukulu@yahoo.co.uk.