court victory
-
HONDURAS: ‘The ruling of the Inter-American Court marks a before and after for LGBTQI+ people’
CIVICUS speaks with Indyra Mendoza, founder and general coordinator of Red Lésbica Cattrachas (Cattrachas Lesbian Network), a lesbian feminist organisation dedicated to defending the human rights of LGBTQI+ people in Honduras. In March 2021 the Inter-American Court of Human Rights (IACtHR)made a ruling in the case of Vicky Hernández. Vicky, a trans woman, and human rights defender, was murdered between the night of 28 June and the early morning of 29 June 2009, in the city of San Pedro Sula, Honduras, while a curfew was in force following a coup. Her killing came in a context of enormous discrimination and violence, including by the security forces, against LGBTQI+ people.
What was the process that resulted in the IACtHR ruling? What was the role of Cattrachas?
Cattrachas Lesbian Network’s Violence Observatory recorded Vicky’s case and immediately identified it as a potential strategic litigation case, as it was one of the first murders of an LGBTQI+ person following the coup d’état.
Even before the coup, Cattrachas had identified a pattern of non-lethal violence against transgender women by police officers. And while we had already recorded 20 violent deaths of LGBTQI+ people between 1998 and 2008, the killings of transgender women increased after the 2009 coup. The Observatory recorded a total of 15 violent deaths of transgender women, most of which occurred during curfews or states of exception decreed illegally by the government, when state security forces were in absolute control of the streets.
In Vicky’s case, Cattrachas learned that no autopsy had been performed, so we contacted her family and found out that very few investigative steps had been taken. On 23 December 2012, Cattrachas filed the initial petition for Vicky’s murder with the Inter-American Commission on Human Rights. Robert F. Kennedy Human Rights, a USA-based human rights organisation, later joined in. The Commission issued its merits report, which established that human rights violations had taken place, on 7 December 2018 and sent the case to the IACtHR on 30 April 2019. The public hearing was held on 11 and 12 November 2020.
Finally, on 26 March 2021, the IACtHR issued a ruling declaring the State of Honduras responsible for the violation of Vicky’s rights to life, personal integrity, equality and non-discrimination, recognition of legal personality, personal liberty, privacy, freedom of expression and name. It also ruled that the State of Honduras failed to comply with the obligation established in article 7.a of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, also known as the Convention of Belém Do Pará. Additionally, the IACtHR established that Vicky’s death was not investigated with due diligence, and therefore condemned Honduras for the violation of due process, judicial protection and the obligation established in article 7.b of the Convention. Finally, the Court declared that the right to personal integrity of Vicky’s relatives had also been violated. The ruling was notified on 28 June 2021, 12 years after the coup d’état and the transfemicide of Vicky Hernández.
The resolution of this case was exceptional. What was the reason for this exception?
Its resolution was exceptional because of the multiple intersectionalities of violence present in Vicky’s life. Vicky was a young Honduran transgender woman and human rights defender, a sex worker living with HIV, with limited economic resources, and at some point in her life, precarious employment had forced her to emigrate. Vicky’s is the first case of lethal violence against an LGBTQI+ person that occurred at the intersection of two relevant contexts: the 2009 coup d’état and the context of structural violence that LGBTQI+ people, and particularly transgender women, face in Honduras.
The case allowed the Court to reiterate standards on the right to gender identity, equality, and non-discrimination, and to insist that, in contexts of historical violence, subordination, and discrimination, in this case against transgender people, international commitments impose a reinforced responsibility on the state. Furthermore, through an evolutionary interpretation, the Court established that transgender women are women, and are therefore protected by the Convention of Belém Do Pará.
What is the significance of this ruling for LGBTQI+ people in Honduras?
The ruling in Vicky’s case marks a before and after, as it establishes guarantees of non-repetition that must be turned into public policy in favour of LGBTQI+ people.
The measures set by the ruling include the establishment of an educational scholarship for transgender persons, which will bear the name of Vicky Hernández, the implementation of education, awareness-raising and training plan for the Honduran security forces, the adoption of protocols for the diagnosis, data collection, monitoring and investigation of cases of violence against LGBTQI+ people, and the adoption of a procedure to recognise gender identity in identity papers and public records. This procedure should be guided by the standards of Advisory Opinion 24/17, which implies that it should not require any law, should be expeditious, should not require pathologising tests, should not require a historical record of changes, and should be, as far as possible, free of charge.
More than a decade after the murder of Vicky Hernández, what is the situation of LGBTQI+ people in Honduras?
LGBTQI+ people in Honduras face constitutional and legal limitations based on sexual orientation, gender expression and gender identity that prohibit us from accessing equal marriage as well as the recognition of marriage celebrated abroad, de facto union, adoption, intimate visits in prisons, change of name based on gender identity and blood donation. Specifically, in relation to changing names, the IACtHR ruling in Vicky’s case mandates the state to establish an adequate and effective procedure to recognise the identity of transgender people.
Honduras is the country with the highest rate of violent deaths of LGBTQI+ people in Latin America and the Caribbean. Since the transfemicide of Vicky, to date 388 LGBTQI+ people have been murdered in Honduras and one person is missing; 221 of those people are gay, 112 are transgender and 46 are lesbian. Only 83 cases have been prosecuted, resulting in 11 acquittals and 34 convictions, which reflects a 91 percent impunity rate.
In sum, LGBTQI+ people face not only major legal obstacles but also a very high level of lethal violence and lack of access to justice.
Civic space in Honduras is rated ‘repressed’ by theCIVICUS Monitor.
Get in touch with Cattrachas through itswebsite orFacebook page, and follow@CATTRACHAS on Twitter.
-
MALAYSIA: ‘Young voters could be Malaysia’s kingmakers
CIVICUS speaks with Tharma Pillai, co-founder and Advocacy Director of Undi18.
A youth civil society organisation (CSO) born out of the student movement, Undi18 successfully advocated for the amendment of article 119(1) of Malaysia’s Constitution to reduce the minimum voting age, allowing people over 18 to vote in the 19 November 2022 election.
How did Undi18 start and what was your objective?
In 2016, my co-founder and I were both studying in the USA and that year’s election inspired us. I came from a sciences and technology background, where most people don’t really care about these things. But seeing democracy in action and our US classmates engage with the electoral process made us reflect on our inability to vote in our home country, Malaysia. It was quite interesting that because they had the right to vote, they felt the responsibility of helping choose the best possible leader for their country.
We started thinking of ways to replicate these practices and bring this kind of energy into Malaysian university campuses. It was only natural for us to focus on the right to vote because voting age in Malaysia was 21, which meant that a high proportion of college students were ineligible to vote. This did not happen in the USA, where the minimum voting age is 18. By 2016, some of our US classmates were voting for the second time in their lives, while I had never yet had the chance. We thought that would have to change
When we did our research, we realised that our demand was not radical at all, and in fact it was long overdue. We were one of only eight countries in the entire world with a minimum voting age as high as 21. We launched Undi18 – which means ‘Vote18’ – as soon as we came back to Malaysia. Our single focus was on the amendment of article 119(1) of the Federal Constitution to lower the voting age from 21 to 18.
What tactics did you use to campaign for change?
To make sure we had a stronger voice, in the first year we ran a digital advocacy campaign, something unheard of in Malaysia, where most civil society work and campaigning take place very much on the ground. We came into existence as a hashtag movement in February 2017.
At the time we were not registered as a CSO. We didn’t have funding. Our team was very small. The campaign was our passion project. But due to effective digital mobilisation, it looked like we had so many supporters. That prompted the media to pick up on our story. We were always willing to work with people of all political leanings.
Many Malaysian CSOs tend to side squarely with the opposition because for a long time our country had one-party rule. We of course worked with the opposition, but we also engaged with other parties. That also made us open to engaging with whoever criticised our movement and addressing any grievances directly.
In addition to the digital campaign, we started off a petition and a memorandum to the prime minister. Unfortunately, we didn’t get too far with the government. We knocked on many doors and talked to many people, but the government viewed young people as inclined to vote for the opposition, so they disliked the idea of lowering the voting age for reasons of political calculation. But we gained traction with the opposition, which raised the issue in their manifesto. This gave us a lot of leverage when the opposition eventually came to power in 2018. They had promised to deliver change on this issue.
How did you engage with the parliamentary process?
As soon as the new government was inaugurated, we tried to convince them to introduce an amendment bill, but there were challenges. No constitutional amendment had ever been passed in Malaysia by a government without a parliamentary supermajority of two thirds, and this new government only had a simple majority. It took a year for the government to finally greenlight the
initiative.But not having a supermajority, the government needed to negotiate with the opposition. We did our best to engage with political parties across the spectrum, especially those in the opposition, to convince them that this was not a partisan initiative and all could benefit, them included. We pleaded with them to support the bill for the sake of young people, democracy and Malaysia’s future. Luckily, the then-Minister of Youth and Sports was a very strong ally of ours and helped us navigate these obstacles.
Thanks to these efforts, in July 2019 this became the first constitutional amendment in Malaysia’s history to pass with 100 per cent of the votes in the lower and upper houses of parliament.
Were there any implementation challenges?
There were postponements and delays. The agreement with the opposition was that the law would be implemented within two years. The two-year timeline was unusual, but necessary due to the technical difficulties entailed by the new automatic voter registration system.
Repeated promises were made that this would be done by July 2021.But another change of government slowed things down, as the new government thought young voters would vote against it. In March 2021, it announced implementation would be postponed until September 2022 at the earliest, but it didn’t provide a clear date.
We campaigned against this postponement and held protests across Malaysia, which grew to include larger issues fuelling public anger, including the economic situation, the shutdown of parliament and the poor management of the COVID-19 health crisis. We also sued the government. We filed a judicial review against the prime minister, the Election Commission and the government of Malaysia for postponing the implementation of the UNDI18 Bill beyond the due date. The High Court decided in our favour and ordered the federal government to implement the bill by 31 December 2021. Due to public pressure that was sustained thanks to the protests, the government decided against appealing the verdict and complied. As a result, the bill was finally implemented on 15 December 2021, and when the updated voter rolls were published one month later an additional 5.8 million voters had been included in the system and 18-year-olds could officially vote in the next election.
What were the main elements of the amendment?
The amendment had three components. First, it lowered the voting age from 21 to 18. Second, it also lowered the minimum running age to 18, meaning you could become an elected member of parliament at that age. And third, it established automatic voter registration for anyone turning 18.
The 2022 elections were the first in which people between 18 and 21 cast their ballots. An additional 5.8 million new voters were added to the electoral roll issued in January 2022. Malaysia being a country of 33 million, this was quite a number.
In Malaysia, ‘young voters’ are defined as those between 18 to 40 years old. After the changes, they account for 51 per cent of the electoral roll, up from 40 per cent. This means young people could make change happen. Malaysian politics are dominated by old people. At one point we had the oldest prime minister in the world – a 93-year-old man. Now for the first time, young voters could be Malaysia’s kingmakers. This is why youth turnout is a key element to watch when analysing the results of this election.
Change started happening even before the polls opened. In the run-up to the election, many senior leaders were replaced with younger candidates in order to appeal to young voters. Overall, the number of young and new candidates increased. And all parties had more youth-centric manifestos, addressing some of the concerns expressed by young people, such as corruption, climate change, the state of the economy and healthcare.
What more needs to be done to make policymaking more inclusive of younger people?
I think Malaysia needs political rejuvenation, and that can be done through education. Our society gives too much power to older people, who of course don’t want to let go of it, whether it’s in government, civil society, politics, or business. To change things, you must train young leaders – but nobody is doing this kind of work. At Undi18 we are doing our best to fill that gap so that young people can take up the space, gain power and get ready to be the country’s next leaders.
We strongly believe that informed voters are integral to democratic success, so we have been working with the Ministries of Education and Higher Education to advance educational programmes to address this issue systemically. We want educational curricula to emphasise democracy so the democratisation process beginsin schools. Some topics such as constitutional rights, human rights and the functions of the parliament are already in the syllabus, but they’re not emphasised enough.
We also have our own programmes. We run outreach campaigns on social media platforms. We are quite active there as most of our target audience is there. We also run outreach programmes in schools and universities to educate students about their rights. And we have corporate, civil society, government and international partners to ensure we reach as many people as possible.
Civic space in Malaysia is rated ‘obstructed’ by the CIVICUS Monitor. -
SOUTH AFRICA: ‘We were denied the right to give or refuse our consent, so we took Shell to court – and won’
CIVICUS speaks about civil society’s recent court victory against Shell in South Africa with Sinegugu Zukulu, programme manager of Sustaining the Wild Coast (SWC). SWC is a South African civil society organisation that works with coastal communities of Eastern Mpondoland, South Africa, to protect their land, livelihoods and culture. What inspired you to become an environmental activist?
My personal story made me become an environmental activist. I grew up on communal land, where people shared everything and people could depend on each other. People in my community had little education. I was one of the few lucky ones who were able to attend university. However, people were good at sharing. They practised ubuntu, a concept that refers to our shared humanity and the way we see our humanity reflected in each other. Among us everything is shared, from the water we drink to the land where we grow our crops.
The fact that I grew up in a community where we all took care of each other and shared everything made me who I am. As I got an education while most didn’t, I found I could use it to give back to my community. Because people in communities like mine were so poorly educated, governments could do whatever they wanted. So I decided to step up for my people and help them understand their rights and protect themselves.
It was only natural for me to focus on environmental rights, as I got my degree in environmental studies. When the government started a project to build a highway cutting through my community, I brought a case to the High Court. Unfortunately, this was not successful and we are now renegotiating to have the road rerouted.
Why is it important to protect South Africa’s Wild Coast?
All our coastal communities rely on the Wild Coast for their livelihoods. For most coastal communities, the Wild Coast is also their source of income: they sustainably profit from the environment, for instance by catching fish and selling it in villages and to tourists. The tourism industry employs many people, so this is another way in which people depend on the coastline.
Additionally, the Wild Coast holds spiritual meaning. People training to become traditional healers go to the coast to get in contact with their ancestors. We believe the ocean is our final resting place, so our ancestors lay there. Saltwater is used in most healing practices.
Due to the number and diversity of its marine species, the Wild Coast is also a marine protected area. The extraction of fossil fuel has the potential to destroy it, on top of contributing to climate change when it’s burned. So we should also protect the Wild Coast from extraction for the sake of the Earth.
What challenges did you face when campaigning against Shell?
Just like any other government, South Africa’s wants to attract investment, particularly by multinational corporations such as Shell, with which it has a great relationship. That’s why our court case set us not just against Shell but also against our government.
A big challenge was the government’s delegitimising narrative. The Ministry of Mineral Resources and Energy labelled us as ‘anti-development’. The government refused to listen to us and to have an open dialogue about Shell’s potentially negative impact on coastal communities.
We wanted to have Shell’s exploration permit revoked because we saw it as a threat to our livelihood and to a safe environment. You just need to google what happened with Shell in Ogoniland in Nigeria and you will understand our concerns. We don’t want an oil spill on our coasts.
South Africa has good environmental legislation, but much of it is lacking in implementation, so that is what the environmental movement focuses on. The law is very clear; our constitution says we have the right to a safe and healthy environment. If someone wants to do something on our land, we should be consulted, and we weren’t. We were denied the right to give or refuse our consent, so we took Shell to court – and won.
South African civil society enjoys the freedoms needed to challenge the government in court. But financial resources were critical. We had no money to travel to communities and mobilise them, so we did all our mobilisation work through social media, where we provided information, published press releases and shared videos. We had to look for a law firm that was able and willing to take this matter to court, and that would agree to take the risk even if there were not enough financial resources. Fortunately, we were able to find several legal firms that were willing to come to our rescue. These are firms that prioritise human rights issues and support litigation by Indigenous communities, and fortunately the judges required Shell and our government to pay our litigation costs.
What does this victory mean for South Africa and the environmental movement?
This victory means a lot in terms of our right to self-determination as guaranteed by the United Nations, as it made it clear that free, prior and informed consent must always be sought. It also ratified our constitutional right to a safe and healthy environment.
It is a victory not just for us but also for future generations. We are working so that their right to a safe and healthy environment will also be protected.
We are now working on a documentary about our struggle, which we plan to launch at the upcoming conference of the parties to the United Nations Framework Convention on Climate Change (COP27) in Egypt, although we lack the resources to travel there. We would love to inspire Indigenous communities elsewhere to also rise up and defend their territories. By doing so we will be ensuring life on this planet continues to be possible.
What kind of support do South African environmental activists need from the international community?
The most important thing we need right now are financial resources to continue doing our work.
We also need international partners and support. Shell is a British company, but the UK government has no problem with it going around the world searching for more fossil fuels, in the middle of a climate crisis. These first-world multinational companies are going to third-world countries to extract ever more profit at the cost of compromising our livelihoods and worsening climate change. As always, the real victims are the poorest people.
This has got to stop. Organisations from the countries where these companies come from should work with us and pressure them to stop. Corporations should move to safer energy sources; fossil fuels are not the answer anymore.
Civic space in South Africa is rated ‘obstructed’ by the CIVICUS Monitor.
Get in touch with Sustaining the Wild Coast through its website or Facebook page.
