Strategic litigation: anti-racism in the courtroom?

Rebecca Sparrow, second year LLM student, discusses a recent event about how to challenge structural and state-sanctioned racism in law.

The Centre for the Research of Race and Law’s most recent event, Strategic Litigation: Anti-Racism in the Courtroom?, hosted two panels, each of which broadened understandings of what strategic litigation does and might look like. How, whether, and when to litigate, and how to ethically, and effectively occupy Mari Matsuda’s ‘multiple consciousnesses’ of working within and against the law, is a constant and pressing concern for anyone involved in social justice or political campaigns, critical academia and legal advocacy. This set of workshops provided a stimulating space for discussion and exploration of this fraught battleground of the law, particularly in the context of challenges to structural and state-sanctioned racism, including in its ever-increasing formulation through immigration policy.

In the first session, Ioannis Kalpouzos from the Global Legal Action Network suggested a challenge to Upendra Baxi’s suggestion that all political issues of salience in the second half of the 20th Century must be articulated through human rights. Kalpouzos described the Network’s efforts to use the International Criminal Court to challenge offshore detention in Australia, a country he described as the ‘envy of the Western world’ when it comes to brutal immigration regimes. He explored the potential of using International Criminal Law to name and label western state-sanctioned violence – even when that violence is not spectacular or radical, but bureaucratic and all-pervasive. This raised questions from the audience about whether using criminal law might exceptionalize particular moments of violence, and therefore also serve to normalise violence that we should be pushing to be accepted as human rights violations. The responses to these questions made the particularly strategic nature of such litigation clear.

Lewis Kett from Duncan Lewis Solicitors, one of the main law firms with legal aid contracts to represent those in UK immigration detention, spoke about his recent successful case challenging laws on segregation in immigration detention centres. Although this, and previous wins of Duncan Lewis’, have been important, and provided some of the only real positive changes to detention policy in recent years, Kett also expanded on the extent of the problems within existing policy, and how much further there is to go. In response to queries from workshop participants, he reflected on whether improving structurally violent institutions such as detention can serve to make them more palatable without removing their inherent violence, but concluded that as a solicitor it is ethically impossible not to litigate for reform where possible, not only to change practice but also to provide accountability, and as part of wider campaigns.

The second panel began with Muhammad Rabbani, the director of CAGE recently charged and convicted under terrorism legislation for refusing to hand over the passwords to his mobile phone and laptop in Heathrow airport. He was stopped under Schedule 7, the law introduced in 2000 that sees 50,000 people per year stopped in airports, with no right to remain silent, to seek legal advice, to refuse a strip search or the handing over of data. The 99.8% non-arrest rate, as Rabbani highlighted, signifies a breach of the Magna Carta principles against suspicionless arrest. Rabbani asked brave, poignant questions about how he might have been treated, both during his arrest and during legal proceedings, particularly when unable to find any lawyer willing to submit a judicial review on his behalf because he had a ‘pigmentation problem’, and so wasn’t considered ‘the ideal case’. Thus Rabbani questioned the possibilities for strategic litigation when the law is actively constructed to target Muslims. Where, in this context, is the space for strategic litigation? Rabbani had to take his strategy beyond the courtroom and run his own campaign.

Gracie-Mae Bradley’s presentation followed on perfectly from Rabbani’s warnings. She spoke about her experience both within human rights organisation Liberty, and as an organiser of the Against Borders for Children (ABC) campaign. In particular, she highlighted ways in which litigation, however strategic, is severely compromised if it is not accompanied or preceded by wide-reaching social campaigns. She drew attention to previous strategic wins in the context of UK immigration detention, such as the retracting of the Detained Fast Track programme, and the way in which the Home Office is finding ways to re-introduce slight variations on the same policies only a couple of years later. Litigation, she reminded us, is a way of challenging policy that is fully incorporated within the limits of the system that created it, and controversial policy changes are often actively channeled by Government into legal frameworks, as the delays entailed by public consultations often mean that any successful litigation has to be applied retrospectively, which makes old policies easier to reinstate later. Quoting Gary Bellow, himself quoted by Derrick Bell, in the context of Leroy Clark’s insistence that an over-reliance on the law limited the potential of the black community’s success in pushing for school desegregation in the South, Bradley noted that ‘rule change, without a political base to support it, just doesn’t produce any substantial result because rules are not self-executing: they require an enforcement mechanism.’ Thus she showed that ‘riding on a technicality’, to which much strategic litigation must often be confined, though often crucial, is never enough to establish real change alone. Using the examples of data collection in schools that can be used to inform the Home Office of undocumented children and their parents, she argued that litigation must be accompanied by campaigns that highlight the implications and mechanisms of damaging policies, rather than just channelling the technicalities of their implementation.

Shining a light from a different direction, though with many of the same implications, Chai Patel explored the difficulties litigating strategically in anti-racist campaigns, when many of the effects of harmful and racist policy are not quantifiable in the terms required by the law. Speaking about the Joint Council for the Welfare of Immigrants’ attempts to challenge the Right to Rent legislation of 2016, Patel described the insidious ways in which even though the requirement on landlords to ensure the immigration status of their tenants encouraged, in their own words, discrimination on the basis of perceived race or nationality, it was very difficult to quantify and record such prejudice. In particular, the detail that landlords will be fined for not checking documents if tenants are found to be residing unlawfully, but not for failing to check if they are legally renting, encouraged this discrimination. Thus the detail in the legislation makes it particularly likely to encourage biased assessments of prospective tenants’ immigration status. It also makes it particularly hard to collect data, pushing all conclusions into the realm of the hypothetical. Although litigation might, in this case, be one way to challenge the policy, it has been incredibly hard to show that it was the policy itself that was causing discrimination.

To sit in a room with such a broad mix of academics and practitioners, getting absorbed in the details, methods, implications, ethics, efficacy and revolutionary potential of strategic litigation against racist policy was inspirational. The mood was neither of cynical criticism nor naively hopeful for impossible change. And though the workshop participants, panellists and audience, provided necessary and timely reminders not to put all our faith in litigation, however strategic, the conference itself was inspiring testament to Rabbani’s moving encouragement that if we strive for compassion and courage, much is possible.

 

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Exploring race, racism and international development

This post was contributed by Anna Marry, Communications Manager, London International Development Centre (LIDC) .  

Race, Racism and Development book cover

Race, racism and development book cover

Contesting what is often taken for granted in international development is important, but rare. That’s why I found this book launch for Race, racism and development very refreshing and different.It was also a truly intercollegiate event on a truly interdisciplinary topic.

On 29 January 2013 the London International Development Centre (LIDC), a consortium of the five Bloomsbury Colleges, and Birkbeck’s Department of Geography, Environment and Development Studies organised a book launch  for Race, racism and development: Interrogating history, discourse and practice (Zed Books) by Dr Kalpana Wilson, Visiting Lecturer at Birkbeck and LSE Fellow in Gender Theory, Globalisation and Development. The event was hosted by the Institute of Education (IOE) and chaired by Dr Parvathi Rahman from the Department of Anthropology and Sociology at SOAS, with Firoze Manji, CODESRIA(Council for the Development of Social Science Research in Africa), as discussant.

Kalpana Wilson’s motif for writing the book was a silence she observed about race in international development discourse, what she called ‘the whiteness of development’ – white experts talking about what should be done. Rather than simply advocating measures to change the personnel of development institutions, Kalpana set out to examine questions of structural racism in development. She was interested in how ideas of race legitimise certain power relations, looking both at history (e.g. the anti-colonial movement in India) and the present, for instance the war on terror. Kalpana’s focus in writing the book was on how ideas get incorporated and transformed in public narratives of race. Recently we can observe what she refers to as the ‘racialisation of hunger’ – poverty and hunger are essentially associated with Asia and Africa, both with respect to material relations and representation.

Gender is important too. Not so long ago ‘Third World’ women were pictured as helpless and needing to be saved. Now that image has changed, they are finally seen as agents, but to the other extreme, as  entrepreneurial, hard-working and altruistic to the point of being superhuman. And yet the idea of political agency is still associated with the global North.

Firoze Manji, in his discussant’s comments, described development as a sophisticated euphemism that Kaplana deconstructs and links to other ‘forbidden’ words like racism and liberalism. There is no such thing as poverty, claimed Manji, only impoverishment, and this is what we call ‘development’ . ‘Development’ is in fact about exploiting the South, with NGOs playing the role of new colonisers. Kalpana also takes apart what Manji referred to as ‘the pornography of development’, portraying the developing world in a pessimistic, exaggerated way that is meant to shock. Manji argued that in a post-colonial, globalised world we are now experiencing a shift in defining who we are and who the ‘other’ is, but it is nevertheless useful to keep the colonial past fresh in our minds.

The lively discussion that followed raised issues about Marxism; the idea of the innocent, unspoilt South that needs to be saved; gender; the deserving and undeserving poor; the racialisation of corruption,; and the need to delegitimise the NGOs.

This event was different in a very refreshing way. It provided an open platform for examining and contesting what is often taken for granted in international development. It allowed radical ideas to be expressed and engaged with. I was talking to a SOAS student of Development Studies over a drink after the presentations, who said: “At SOAS we learn how to be critical of governments and international organisations. But this is new – that NGOs can also be a destructive power in international development.”

Whether that statement is true or not depends on one’s perspective, but one thing is certain – the event revealed a new dimension and a new way of thinking about international development. And that’s always a good thing.

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Violence, Memory and Commemoration: Perspectives from Southern, East and Central Africa

This post was contributed by Sarah Emily Duff, who graduated with a PhD in History from Birkbeck, in March 2011. She is currently a Postdoctoral Research Fellow at the University of Stellenbosch, South Africa. She writes about food, history, and culture at Tangerine and Cinnamon.

On Friday 9 December, Birkbeck hosted the latest workshop in the Societies of Southern Africa: History, Culture, and Society seminar series. The series is organised by Wayne Dooling at the School of Oriental and African Studies, Rebekah Lee from Goldsmiths, and Birkbeck’s Hilary Sapire, who chaired Friday’s session.

The seminars focus on new research, and are a space for rethinking familiar themes within the scholarship on southern Africa. I presented a paper at the first workshop held to launch the series at SOAS in December 2009. Titled ‘Identities and Imaginaries in South Africa’, the workshop considered the construction of national, regional, and raced identities in South Africa during the nineteenth and twentieth centuries. Since then, the series has dealt with cities, urbanisation, and the anti-apartheid struggle. Friday’s workshop, ‘Violence, Memory and Commemoration: Perspectives from Southern, East and Central Africa’, was the first to broaden its scope beyond southern Africa. Each of the four papers focused on the politics of commemoration in four African nations, and the similarities between the examples were often more striking than the differences.

The first speaker was Rachel Ibreck from the University of Limerick. Her paper, ‘The Time of Mourning: The Politics of Commemorating the Tutsi Genocide’, looked at the ways in which the official annual mourning period for the 1997 Rwandan genocide, 7 to 13 April, is used and contested by a variety of groups both within and without Rwanda. For the Rwandan state, it is an opportunity to assert his legitimacy as a stable, democratic, and orderly government. State ceremonies emphasise unity and reconciliation, even if they privilege one memory of the genocide over others. But at regional ceremonies, the week is used to instil order and discipline in the provinces. For many Hutus, particularly those who live abroad, this is a week where non-participation is an act of resistance: a refusal to buy in to official narratives of remembrance which elide the ruling party’s involvement in the genocide.

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