9/20/16

Good Leadership and the Rule of Law

The following blog post is written by Professor Jeffrey A. Brauch, Executive Director for the Center for Global Justice, Human Rights & the Rule of Law.


The conduct of leaders has a huge impact on whether a nation experiences the rule of law.  Essential to the rule of law is that leaders–like ordinary citizens–submit themselves to law and are held accountable under it.

One of the nations in the most desperate need of the rule of law today is South Sudan.  South Sudan is the youngest nation in the world. It took its place as a sovereign state in 2011 after its people experienced decades of war, abuse, and lawless treatment by the leaders of Sudan. South Sudan began with great hope and promise, but sadly that promise has gone unfulfilled as the nation quickly fell into corruption, violence, and civil war. 

Last week, a watchdog group called the Sentry made public the results of an investigation it has conducted into what has taken place in South Sudan during the civil war. It found that leaders on both sides of the conflict used the civil war for their personal benefit to gain control of key national assets, like oil. It concluded that "top officials ultimately responsible for mass atrocities in South Sudan have at the same time managed to accumulate fortunes, despite modest government salaries.”
http://www.latimes.com/world/africa/la-fg-south-sudan-corruption-20160912-snap-story.html.

As South Sudan's leaders got rich, a million ordinary citizens were displaced and 40% of the population needed emergency food aid. Today, the nation and its governance system are in disarray.

The behavior of South Sudan's leaders is in stark contrast with that of one of my favorite leaders of all time, John Winthrop.  Winthrop was the first governor of the Massachusetts Bay Colony, who in 1630 led 3,000 Puritans from England to the new world with the hope of establishing a “City on a Hill,” a commonwealth where justice and Christian love would be modeled.  The first months in Massachusetts were brutal for Winthrop's band. They arrived too late to plant a crop and many failed to bring the amount of food needed for survival. The settlers experienced sickness and starvation; 200 died in the first winter. Despite suffering personal tragedy with the death of his own son, Winthrop shared what he had and almost single-handedly kept the group together.

Indeed, Winthrop gave generously to those around him all of his life. An audit conducted in 1634 after he first stepped down as governor showed that, rather than financially benefiting from his time in leadership, he had subsidized the colony with his own personal resources. He refused to take a salary for many of his 19 years as governor. He was described as “almost recklessly charitable.”

 I love this description of Winthrop by the first historian of Massachusetts, William Hubbard: “A worthy gentleman, who had done good in Israel, having spent not only his whole estate…but his bodily strength and life, in the service of the country; not sparing, but always as the burning torch, spending….” http://www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/v11n2/11RegentULRev343.pdf

Winthrop's model of servant leadership helped Massachusetts grow and prosper. It ultimately had a defining influence on the development of good governance and the rule of law not just in Massachusetts but the United States of America that would arise many years in the future.

My prayer is that a Winthrop - that many Winthrops - would arise in South Sudan today, leaders who will lead for the good of the nation and its people. I pray for leaders who will be servants and not takers. Leaders like this would be invaluable in establishing the rule of law in a land that desperately needs it.

For more on the inspiring life and career of John Winthrop, check out my short essay: “John Winthrop: Lawyer as Model of Christian Charity,” 11 Regent Univ. L. Rev. 343 (1998).



9/19/16

Working with the African Commission on Human and Peoples’ Rights (ACHPR)

The following blog post is written by student staff member and former Center intern Courtney Marasigan.


A few peers and I have the privilege of conducting research and writing a memo on the African Commission on Human and Peoples’ Rights (ACHPR) this fall semester. The Center of Global Justice is currently praying about whether to become a certified non-profit organization (NGO) before the ACHPR, which hosts two sessions every year in order to address the status of human rights in the continent. Our Executive Director, Professor Jeffrey Brauch, will be attending the next session, which is to be held in The Gambia in October. My team’s legal memorandum will aid in making these critical decisions.

The scope of our research encompasses the ACHPR’s role in African human rights. Tangentially, this includes research on the African Centre for Democracy and Human Rights Studies (ACDHRS), which is an independent, non-profit NGO that organizes a bi-annual forum colloquially known as the “NGO Forum.” Hundreds of African NGOs convene at this forum to discuss human rights issues as well as possible strategies and resolutions that are ultimately given to the ACHPR prior to each Ordinary Session. The forum is a great method of fostering hands-on participation in the African human rights movement.

My peers and I are very fortunate to be working on this particular project. All three of us have previously spent 7+ weeks in Uganda for legal summer internships. We each have a passion for international law, but serving the African continent is near and dear to our hearts. It is an amazing opportunity to have been exposed to African statutes, case law, and NGOs during our internships and to now utilize that familiarization in conducting research for this project.



This post was written by a Center for Global Justice student staff member.  The views expressed in this post do not necessarily reflect those of Regent University, Regent Law School, or the Center for Global Justice. 

9/17/16

Constitution Day 2016


This post was written by CGJ Academic & Administrative Director S. Ernie Walton.  Click here to read Ernie's post on Citizenship Day >

Today is Constitution day. It was on this day that the delegates to the Constitutional Convention signed our great Charter. While perhaps not apparent at first glance, the United States Constitution embodies the very principles that the Center for Global Justice exists to advance: human rights and the rule of law.

As the several States decided to form a Union, they needed to figure out how to create a government that could fulfill its functions without infringing on the rights of the states and the rights of individuals. Contrary to popular belief, however, the primary way in which our Founders sought to protect the states and the rights of individuals was not through the Bill of Rights. The Bill of Rights was an afterthought, added after the adoption of the Constitution by the First Congress. How, then, did the initial Constitution protect individual liberty without a Bill of Rights? The answer is through constitutional structure—separation of powers and checks and balances.

By separating power and allowing the separate powers (the three branches of government) to check each other through overlapping functions, tyranny would be eliminated. The esteemed Montesquieu stated it best: “Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.” Montesquieu, The Spirit of the Laws, vol. 1 (1748). In that same vein, the Supreme Court stated:

“Liberty is always at stake when one or more of the branches seek to transgress the separation of powers. Separation of powers was designed to implement a fundamental insight: Concentration of power in the hands of a single branch is a threat to liberty. . . . So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. It was at Madison’s insistence that the First Congress enacted the Bill of Rights. It would be a grave mistake, however, to think a Bill of Rights in Madison’s scheme then or in sound constitutional theory now renders separation of powers of lesser importance.” Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring) (internal citations omitted).

To human rights advocates today, governmental structure as a means to advance liberty is often an afterthought. Today, human rights advocates around the globe advance the idea that the best way to protect human rights is through a bill of rights in a national Constitution, new legislation, or ratification of another human rights treaty, guaranteeing individual “right” after individual “right.” These “paper” rights, say the advocates, are what will really protect individuals.

While paper (constitutional) rights are certainly needed, they are meaningless if they cannot be secured. (And if they cannot be secured, they are not only meaningless, but actually harmful to human rights themselves. See Craig A. Stern, Human Rights or the Rule of Law --The Choice for East Africa?, _ Mich. St. Int'l L. Rev. _ (forthcoming 2015).)  

To secure individual rights, a nation must have a strong rule of law. The government itself must be made to follow the laws and uphold the rights of the people. But humans in power don’t just willingly follow the law. No, as sinful beings, humans in power often exploit that power at the expense of individual rights. Our founders understood this well, and for that reason they created check upon check in every power in the Constitution. As James Madison stated in Federalist 51:

“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The Federalist no. 51 (James Madison).

What, then, leads to the difference in strategies of advancing human rights through structure/separation of powers vs. human rights legislation? A person’s belief about human nature. If humans are sinful, the only way to effectively guarantee human rights is to “obligate the government to control itself.” But if government is filled with good-natured humans who really want to protect people, we simply need to legislate more human rights guarantees so the government can secure those rights and protect individuals. Obviously the latter is a flawed approach. Our Constitution is based on the belief that humans are sinful, and human rights advocates today would do well to remember this basic fact. Join with us in celebrating our Constitution and the worldview it embodies. 

by Ernie Walton

9/16/16

Where Is Your Citizenship?

This post was written by CGJ Academic & Administrative Director S. Ernie Walton

Today we celebrate Constitution Day and Citizenship Day.  While the nature of this day has changed over the years, it is fundamentally a time to remember and give thanks for our great and enduring Charter as well as celebrate the fact of our citizenship in this great nation.  For more on the U.S. Constitution, see my post tomorrow.  This post is about citizenship, and specifically how the idea of “citizenship” relates to Christians. 

Today, the concept of “citizenship” means very little.  In our globalized and politically correct world, citizenship has been reduced to little more than a piece of paper that identifies where a person lives.  Indeed, citizenship today is not about becoming bonded to a state—its traditions, culture, ideology, etc.—but about what benefits a person can obtain, whether it be government services or better tax treatment for one’s assets.  But at its core, citizenship is much more.  Historically, citizenship was not just a piece of paper that provided benefits; it was an identity.  Citizenship defined, at least in part, who you were, how you thought, how you lived, and where your allegiance lied.  

To illustrate this point, consider one of the most famous cases in International Law: The Nottebohm case.  In that case, Lichtenstein brought a claim of diplomatic protection on behalf of one of its nationals, Mr. Nottebohm, for harm allegedly caused by Guatemala to Mr. Nottebohm.  Guatamela argued that the Court should dismiss the case for lack of jurisdiction because, despite Mr. Nottebohm’s status as a national of Lichtenstein, Guatemala could not be forced to recognize it under the facts of the case.  The Court first noted that the “bond of nationality alone” permits a state to bring a claim of diplomatic protection on behalf of an individual.  Thus, if Mr. Nottebohm was not a national of Lichtenstein under International Law, the Court would have to dismiss the case.

According to the Court, foreign states do not have to recognize a claim of citizenship or nationality unless that citizenship is “real and effective.” To determine whether citizenship is real and effective, the court listed a number of relevant factors to consider.  Among these factors were the place of the person’s habitual residence, the center of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, and where he intended to spend his future. Thus, under international law, “nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.”[1] 

Applying the law to the facts, the Court found that Nottebohm had lived in Guatemala for 34 years, did almost all of his business there, attempted to return there immediately after acquiring Lichtenstein citizenship, and had stated his intentions to retire there as well.  With Lichtenstein, however, Mr. Nottebohm had “extremely tenuous” connections.  He had “no settled abode,” no “prolonged residence,” and he did no business in Lichtenstein, nor did he state any intention to do any business there in the future.  In other words, Lichtenstein granted Mr. Nottebohm naturalization “without regard to the concept of nationality.”

For purposes of International law, then, citizenship must be “genuine” or “real and effective.”  Having a piece of paper declaring one to be a citizen of a certain state is simply not enough. 
   
How does this relate to Christians? Directly.  In Matthew 13, Jesus tells the parable of the weeds.  According to Jesus, the world is full of wheat and weeds.  The wheat has been planted by the Son of Man, and the weeds by the Devil.  Both live side by side in the world, where the Devil is the “god of this age.” 2 Cor. 4:4.  Despite the Devil's ruling title in this world, the Kingdom of God has come and is coming.  When Jesus became a baby more than 2,000 years ago, the invasion began.  And when Jesus died on the cross and rose again, conquering sin and death, the victory was secured.  According to Colossians, Jesus “disarmed the rulers and authorities,” making “a public spectacle of them.” Col. 2:15 (not the past tense).  Despite this defeat, the Devil doesn’t yet know that he has been defeated.  The Kingdom of the Devil and the Kingdom of the Son of Man are thus in conflict, waging war against each other until the end when Jesus brings everything under his feet.  

Thus, in this world there are two kingdoms in conflict. A kingdom of course implies “subjects.”  Just as one of the elements of a State under international law is a permanent population, so too does a kingdom require subjects, subjects that are citizens of that Kingdom and loyal to its causes.  Paul tells Christians in Philippians 3:20 that Christians are “citizens of Heaven.” He contrasts that with those who belong to this world, whose “mind[s] are set on earthly things.”  Because of the work of Jesus, anyone in Christ is a citizen of Heaven.  That is the Gospel, the good news about what God has done for us in Christ to “rescue” us from the dominion of darkness and [bring] us into the kingdom of the Son he loves.” Col. 1:13.

In light of our incredible status as citizens of Heaven through Christ’s redeeming work, I ask you, Christian, if the Kingdom of Heaven sought to bring a claim of diplomatic protection on your behalf because of an injury the Kingdom of the Devil committed against you, could the International Court of Justice (ICJ) hear the case?[2] Would there be jurisdiction? Or would the ICJ throw the case out, refusing to hear the merits because it could not find any “genuine link” between you and the Kingdom of Heaven?

Do the legal analysis. What do you think about? How do you spend your time? Where you do you spend your money?  What are your motivations? What do you read? What do you watch? Who are you friends and advisors? In the totality of circumstances, would these factors combine together to reveal a “genuine connection” to the Kingdom of God or the Kingdom of this world?  On Citizenship day, Christians would do well to ask themselves these questions.




[1] While the most important part of the Court’s holding was the fact that Mr. Nottebohm was seeking to evade the laws of war by gaining citizenship of a neutral country (he was a citizen of Germany) during World War II, the citizenship analysis was heavily featured and certainly was important to the court’s holding.

[2] Of course, Jesus’s work on our behalf does not depend on our own works but our status in Christ. Thus, this post should not be taken to be construed that if a Christian appeals to Christ for aid in resisting the enemy, the Lord will only offer help if on that day you are acting in a certain manner.  This position is contrary to very nature of the Gospel.  Nonetheless, the point of the blog post is for Christians to humbly ask the Lord to convict them where perhaps they are living not as citizens of Heaven but as citizens of this world.

9/13/16

Update from Former CGJ Intern Kirk Schweitzer

Kirk Schweitzer is a Regent Law grad ('13) and former CGJ Intern.

Kirk works for Tiny Hands International (THI), a Christian non-profit organization dedicated to empowering the church in the developing world and helping the poor overcome poverty. THI is particularly called to advocate for orphans, street children, and victims of sex trafficking.

Members of our Student Staff have supported Tiny Hands with legal research projects.

Below is an update from Kirk about what THI is doing.

Image from thi.org

We are eager to try our strategy in India to fight against human trafficking. I will be traveling with my colleague, Brad, to Siliguri, India next week for one week. We will be meeting with our recently hired staff to make a detailed plan for the next few months.

Our legal case work has been improving. We currently have 31 active cases (human trafficking and/or rape). Our work has been so effective at some locations, that the police are now referring cases to us for us to assist the victim.
We recently opened up border monitoring stations at 5 new locations along the border: Dhangadi, Rajbiraj, Inaruwa, Pashupatinagar, and Gauriganj. We have been communicating with our local staff to guide them and help them become effective.
Please pray for their vital work in India.

9/9/16

CGJ Intern Update from Julianna Battenfield

Julianna interned at South Carolina Legal Services ("SCLS") in Greenville, South Carolina. SCLS represents any individual below 150% of the federal poverty level in legal matters within their priorities, including domestic violence, adoptions, immigration petitions, and other areas where an injustice must be remedied. 

Adoption, Immigration, Worker Fraud, OH MY!

I started my position as a law clerk at South Carolina Legal Services (SCLS or Legal Services), a legal aid clinic that assists the poor with legal services, on July 5, 2016. Within a week, I had written the pleadings for an adoption case, an immigration petition, a contracts case, an employment fraud case, and more!



I took this position this summer because (A) I wanted to learn everything I could about civil law; and (B) I love the mission of SCLS. SCLS represents anyone below 150% of the federal poverty level (as long as their case fits within their guidelines) with whatever type of legal help they need. For example, one of my mentor attorneys specialized in obtaining birth certificates and IDs for people who either had never received one or who had lost it and no longer had any proof of ID.

The lack of ID leads to many troubles for the individuals, including the inability to obtain employment, housing, access their bank accounts, and more. It's actually a bigger problem than one might expect. Thankfully SCLS exists to help those individuals access the system, fill out the documents, and sometimes negotiate with the Office of Vital Records at DHEC.

I was pleasantly surprised to find out where the office was! Before law school, I worked at another firm on Main Street in Greenville, SC and would always drive past the SCLS building on my way to my job. I always thought the building was beautiful but I never knew what it was. Then, after I felt led to pursue an internship at SCLS, and indeed after I had already obtained it, I found out the location of the building and concluded that my admiration for the building was not a coincidence.

Legal Services has multiple offices around the state of South Carolina; our office represented Greenville County, Oconee County, Anderson County, Pickens County, and Abbeville and Laurens—effectively, the Tenth, Thirteenth, and Eighth circuits. Subsequently, we spent quite a lot of time in the car driving to court in various locations! I witnessed multiple family court cases, attended a divorce clinic put on by one of the attorneys for victims of Domestic Violence (the only type of divorce SCLS helps out with), attended multiple mediations, and even went to Bankruptcy Court in Columbia.

My favorite case thus far was one of the adoption cases. A pair of grandparents decided to adopt their granddaughter because neither the mother nor the father were in the picture. I had the incredible privilege to write the pleadings, meet with the clients (the grandparents), and attend the Final Hearing where the little girl officially became their daughter. It was extremely moving. And SCLS funded the adoption free of charge for the couple.


Excuse me, Jail Guard, Open my Door, Please.

The second half of my internship was more research and writing oriented—although I did continue to attend hearings and mediation sessions.

The most interesting case that I worked on involved a man who attempted to renege on a contract he had made for a vehicle. The plaintiff was in his 20's and the defendant was pushing 100.

The vehicle was used, and a police officers said that the man purchased a car because in South Carolina, buyers do not have the right to renege on a contract for a used car like they do for other items.

In an unexpected twist, shortly after the man filed his complaint, he got himself thrown into jail in another state for life without parole.

Hence, my legal question became, "Does a prisoner have the right to an Order of Transport if he is the plaintiff in a civil case and the lawsuit is not in the state he is in?"

The research process took me all over the place because although I initially concluded, "NO," it was almost impossible to find a legal document saying so. I did find an answer eventually (which may turn into a law review article later!). Who knew it would be so difficult to find out what rights prisoners have in state prisons . . . .

I then did a research project on intrastate child abduction by a parental unit and read almost every case in the state of South Carolina involving alimony.

Overall, my experience at SCLS was phenomenal, eye-opening, and educational.  My mentor attorneys, Charlotte and Tamika, specialized in family law (representing victims of crime), adoption, housing, employment, and other areas.  I could not have asked for better mentors. They let me draft pleadings, meet with clients, send out and subpoena documents, attend hearings, and more—and I learned more than I could have possibly imagined from them.

This post was written by a Center for Global Justice student intern.  The views expressed in this post do not necessarily reflect those of Regent University, Regent Law School, or the Center for Global Justice. 

9/8/16

Working with LEMU in Uganda


Blog Post from Linda Waits-Kamau, interning with Land & Equity Movement of Uganda (LEMU)



My first blog was about a 66-year-old widow in Lira, Uganda, where Land & Equity Movement of Uganda has a field office.  While I was still serving my internship, I saw a media report and photo of this widow, whose hands and forearms had been cut off allegedly by her brother-in-law because the widow stayed on the land she was living on following her husband’s death.  The brother-in-law took this heinous action in spite of the fact that a Local Chief had agreed (via a Customary Law that is practiced in this area) to allow the woman stay on her late husband’s land.  The Customary Family Land Law in this region allows a widow to remain in her marital residence along with her children.  The brother-in-law was charged with assault and other charges but even a ‘live’ court session posted on Facebook didn’t see justice served for Pasculina Oming, the widow who had been assaulted and maimed. 

Another local Ugandan newspaper (Rupiny) carried front page photos of Pasculina holding up her arms (see Cover of Uganda’s Rupiny newspaper, which has a photo of Pasculina holding up her handless arms).  Pasculina and witnesses testified against Mr. Okech in the Lira Magistrate’s Court, but the case was postponed and the accused was released on bail because the responding police officers who took the report were at a conference in Gulu, which is not far from Lira, on the day of the court hearing. 

A group of advocate lawyers, called Barefoot Lawyers—Uganda, started a campaign for Pasculina on Twitter (#JusticeforPasculina) prior to showing the live Facebook video of the criminal hearing of her attacker in the Lira Magistrates Court of Mr. Okech, which can be found at https://www.facebook.com/Barefootlaw/videos/1032891103456126/ .  The Barefoot Lawyers commentator noted on the day of the live broadcast of the hearing:
“This is a test Facebook Live broadcast for a case we are following… Today we are at the Lira Chief Magistrate’s court to follow up on Pasculina Oming’s case.  
“In 2014, Pasculina Oming, a 66 year old widow was attacked by her brother in law… and her arms were cut off.  All this was over a piece of land that he claimed belonged to him. Today the Lira Chief Magistrates court will continue hearing this case.
“We decided to take interest in this case after it was brought to our attention during our field visits for a project we are carrying out called the Women Property Rights Initiative.” (From ‘Barefoot Lawyers-Uganda’ Facebook post on June 16, 2016 at https://www.facebook.com/Barefootlaw/videos/1032892610122642/?comment_id=1032901380121765&comment_tracking=%7B%22tn%22%3A%22R0%22%7)
Unfortunately, justice has not yet been served for Pasculina because the case was postponed since the local police officers who took the report of the case were not present (they were evidently attending a professional conference in Gulu, which is not far from Lira in Northern Uganda).  So, the respondent was released on bail and most likely will never be tried if he hides or temporarily leaves the area. 

Under customary law, a widow who was legally married (and sometimes is a wife of a traditional marriage) and her children are supposed to be able to stay at their marital residence following a husband’s death.  This differs from Title Deeds, since land under customary law is inherited by families, including wives and their children.  Despite this protection, many widows are threatened or provoked into leaving the marital residence by land grabbers.  Pasculina had received permission by agreement of the Local Chief in 2014 to stay in her marital residence and her brother-in-law allegedly tried to force her to leave through extreme violence.  This is not uncommon in such cases.   

LEMU has documented the Customary Law, which according to LEMU is practiced by up to 80% of Ugandan land owners.  Land ownership is basically by inheritance from a patriarch to the sons and their wives and children, and single daughters if they have not married (and widows and their children are not to be disinherited, especially from the marital residence).  The problem of land grabbing in Uganda has become a major issue since many widows cannot afford to go to court to maintain their rights.  The Customary Law and local leaders can sometimes assist but in criminal cases at the local level, many land grabbers (as in the case resulting in Pasculina’s assault and maiming) may run away and never receive justice if they are released on bail, as was the case with Pasculina’s brother-in-law.  Now Pasculina must live in fear that her brother-in-law may return and do worse.  In many cases, widows leave the marital residence or land to avoid retribution.  I hope Pasculina will one day not have to live in fear of a land grabber who also took her hands and attempted to take her life from her (as she was also attacked with a machete blow to her head) in addition to having her hands and forearms hacked off.  If such attackers are allowed to take such criminal actions with impunity, then widows and their children will continue living as victims without security or justice.

This post was written by a Center for Global Justice student intern.  The views expressed in this post do not necessarily reflect those of Regent University, Regent Law School, or the Center for Global Justice.