Guyana’s engagement with international Human Rights law

the potential of fundamental rights not only to protect the rights of individuals but also to hold governments to account and promote democracy. Constitutions have promoted equality (of children born out of wedlock, women, and various marginalised groups), rights of political participation (especially those of assembly and to free speech), liberty rights, rights of the criminally accused, and even protections of private property rights. Thus, whatever the posture of governments or even private citizens, it is far too late in the day for us, as citizens of the world, not to continue our engagement in this regard. Indeed, as pointed out by Godfrey Smith, former Attorney General of Belize and now High Court judge in the Eastern Caribbean Supreme Court, human rights are now the ‘new theology of the modern world’.

Further, since independence we in Guyana have gone even further by extending the existing regime of rights to include key socio-economic rights, establishing a plethora of rights commissions covering women, Indigenous peoples, children and human rights in general, and uniquely by directly incorporating the most important international human rights treaties into our law (article 154A) and mandating courts to have due regard to them (art 39). Increasingly, local and regional courts have been paying attention to these reforms, and in enforcing fundamental rights against unlawful state action have looked to international human rights law. For example, in 2006 Justices de la Bastide and Saunders, one the former and the other the current President of the Caribbean Court of Justice (CCJ), in a joint judgment adverted to the development of processes under international law by which the small person could hold his government to account by bringing a petition before an international body. They noted that with the proliferation of universal standards of human rights, there is ‘a distinct, irreversible tendency towards confluence of domestic and international jurisprudence.’ Closer home, in 2012 in finding that the constitutional rights of a 14-year-old child were violated by the state when police officers burnt his genitals and otherwise tortured him in the course of an investigation, Justice Roxane George (as she then was) had recourse to international standards in determining both procedural and substantive issues. Commenting on articles 39(2) and 154A, Justice George opined that they have ushered in a ‘new dispensation’ in how human rights claims have to be addressed in Guyana. The reality therefore is that the clock cannot be turned back. Having gone through the elaborate processes of enshrining and extending rights, the state is bound to respect and protect them, and in doing so will be held to evolving international standards in their interpretation. In other words, we are more firmly than ever bound up in this movement and cannot close ourselves off to developments elsewhere.

Still, there are obviously many areas where human rights’ enforcement is sorely lacking. A short list would include protections for women, especially against intimate partner violence; rights of political participation in the broadest sense; and the availability of socio-economic rights such as health, education and income security. Further, there are several institutional and systemic failings that are long overdue for correction. The first relates to our domestic textual framework. All the important rights described in our constitution are foreclosed by a drastic savings clause, which excludes them from applying to existing laws. While the CCJ has begun in earnest to limit its scope, these clauses need to be legislatively repealed, for as long as they exist they completely emasculate the fundamental rights guarantees.

The other major institutional reform required is related to implementation and enforcement at all levels of the bureaucracy. This requires a host of interventions, a brief list of which would include strengthening key institutions like the police force, which would not only protect the rights of the criminally accused but would also ensure that victims’ rights are sufficiently and properly vindicated; the operationalisation of the Human Rights Commission set up as part of the 2001 constitutional reforms; and most importantly the strengthening of the judiciary to ensure that all persons have access to justice. It is the most basic truism that rights are meaningless without a remedy, and in this the role of the courts is pre-eminent. Individuals must be able to access the courts and should not have to wait years for their cases to be resolved.

Hand in hand with the institutional framework is that the State needs to invest in the development of a culture across the bureaucracy and state institutions in which respect for human rights is normalised. One way of achieving this is by moving beyond the reactive (through police & judges) and focusing on education, information, and the strengthening of community structures – in other words, initiatives designed to produce shifts in behaviour. The most potent example of this exists in relation to domestic violence, where despite a plethora of laws women of every race, location and economic group in Guyana are in the most precarious and vulnerable position when it comes to safety and security, liable to the most horrific and brutal violence at the hands of men closest to them. This reinforces the point that what is needed are not more laws but initiatives designed to shift cultural attitudes.

Simeon McIntosh, one of the Caribbean’s foremost constitutional scholars, described the bill of rights as the moral core of our constitutions, whose aim he said was to promote ‘the good life’. In many senses he was right. The theory and practice of justiciable human rights can and have provided the tools for holding governments to account and in this way promote more just and equitable societies. Still, protecting human rights is not the work of governments or lawyers alone, but is an ongoing project that imposes obligations on every person. It entails not just treating each other fairly, but encouraging a culture of rejecting silence and complacency in the face of injustice. Through the totalizing efforts of state and individuals the protection of human rights – and through that promoting respect for human dignity and the good life – can indeed become a reality.