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:

• Learning becomes more challenging, flexible and fun
• Improvements to teaching and learning
• Improved behaviour; reducing number of suspensions
• Both teachers and students report improved relationships for all
• Reduced vandalism
• Reducing rate of children refusing school, employment or training
• Improved attainment
• Better school policies which the students have a stake in and respect

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.

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	5	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

St Helena Census 2008 (source 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.

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:

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

b.      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);

c.       You have been held in contempt of court;

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

e.      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.

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, 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], 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 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.

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.

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 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 me – in confidence – with the details.

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 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!

If you have any questions about Human Rights please contact Catherine on 2133 or email humanrightsoffice@cwimail.sh

Next week  What is discrimination?