Adonis Diaries

Archive for February 6th, 2016

How I defend the rule of law

Kimberley Motley. Posted Oct 2014

Let me tell you a story about a little girl named Naghma.

Naghma lived in a refugee camp with her parents and her eight brothers and sisters. Every morning, her father would wake up in the hopes he’d be picked for construction work, and on a good month he would earn 50 dollars.

The winter was very harsh, and unfortunately, Naghma’s brother died and her mother became very ill. In desperation, her father went to a neighbor to borrow 2,500 dollars.

After several months of waiting, the neighbor became very impatient, and he demanded that he be paid back. Unfortunately, Naghma’s father didn’t have the money, and so the two men agreed to a jirga.

So simply put, a jirga is a form of mediation that’s used in Afghanistan’s informal justice system. It’s usually presided over by religious leaders and village elders, and jirgas are often used in rural countries like Afghanistan, where there’s deep-seated resentment against the formal system. At the jirga, the men sat together and they decided that the best way to satisfy the debt would be if Naghma married the neighbor’s 21-year-old son. She was six.

01:23 Now, stories like Naghma’s unfortunately are all too common, and from the comforts of our home, we may look at these stories as another crushing blow to women’s rights. And if you watched Afghanistan on the news, you may have this view that it’s a failed state.

However, Afghanistan does have a legal system, and while jirgas are built on long-standing tribal customs, even in jirgas, laws are supposed to be followed, and it goes without saying that giving a child to satisfy a debt is not only grossly immoral, it’s illegal.

In 2008, I went to Afghanistan for a justice funded program, and I went there originally on this 9-month program to train Afghan lawyers.

In that nine months, I went around the country and I talked to hundreds of people that were locked up, and I talked to many businesses that were also operating in Afghanistan. And within these conversations, I started hearing the connections between the businesses and the people, and how laws that were meant to protect them were being underused, while gross and illegal punitive measures were overused.

And so this put me on a quest for justness, and what justness means to me is using laws for their intended purpose, which is to protect.

The role of laws is to protect. So as a result, I decided to open up a private practice, and I became the first foreigner to litigate in Afghan courts. Throughout this time, I also studied many laws, I talked to many people, I read up on many cases, and I found that the lack of justness is not just a problem in Afghanistan, but it’s a global problem.

And while I originally shied away from representing human rights cases because I was really concerned about how it would affect me both professionally and personally, I decided that the need for justness was so great that I couldn’t continue to ignore it. And so I started representing people like Naghma pro bono also.

Since I’ve been in Afghanistan and since I’ve been an attorney for over 10 years, I’ve represented from CEOs of Fortune 500 companies to ambassadors to little girls like Naghma, and with much success. And the reason for my success is very simple: I work the system from the inside out and use the laws in the ways that they’re intended to be used.

I find that achieving justness in places like Afghanistan is difficult, and there’s three reasons.

The first reason is that simply put, people are very uneducated as to what their legal rights were, and I find that this is a global problem.

The second issue is that even with laws on the books, it’s often superseded or ignored by tribal customs, like in the first jirga that sold Naghma off.

And the third problem with achieving justness is that even with good, existing laws on the books, there aren’t people or lawyers that are willing to fight for those laws.

And that’s what I do: I use existing laws, often unused laws, and I work those to the benefits of my clients. We all need to create a global culture of human rights and be investors in a global human rights economy, and by working in this mindset, we can significantly improve justice globally.

Now let’s get back to Naghma. Several people heard about this story, and so they contacted me because they wanted to pay the $2,500 debt. And it’s not just that simple; you can’t just throw money at this problem and think that it’s going to disappear. That’s not how it works in Afghanistan.

So I told them I’d get involved, but in order to get involved, what needed to happen is a second jirga needed to be called, a jirga of appeals. And so in order for that to happen, we needed to get the village elders together, we needed to get the tribal leaders together, the religious leaders.

Naghma’s father needed to agree, the neighbor needed to agree, and also his son needed to agree. And I thought, if I’m going to get involved in this thing, then they also need to agree that I preside over it.

05:29 So, after hours of talking and tracking them down, and about 30 cups of tea, they finally agreed that we could sit down for a second jirga, and we did. And what was different about the second jirga is: this time, we put the law at the center of it, and it was very important for me that they all understood that Naghma had a right to be protected.

And at the end of this jirga, it was ordered by the judge that the first decision was erased, and that the $2,500 debt was satisfied, and we all signed a written order where all the men acknowledged that what they did was illegal, and if they did it again, that they would go to prison.

And most importantly, the engagement was terminated and Naghma was free. Protecting Naghma and her right to be free protects us.

06:29 Now, with my job, there’s above-average amount of risks that are involved. I’ve been temporarily detained. I’ve been accused of running a brothel, accused of being a spy. I’ve had a grenade thrown at my office. It didn’t go off, though.

But I find that with my job, that the rewards far outweigh the risks, and as many risks as I take, my clients take far greater risks, because they have a lot more to lose if their cases go unheard, or worse, if they’re penalized for having me as their lawyer. With every case that I take, I realize that as much as I’m standing behind my clients, that they’re also standing behind me, and that’s what keeps me going.

07:13 Law as a point of leverage is crucial in protecting all of us. Journalists are very vital in making sure that that information is given to the public. Too often, we receive information from journalists but we forget how that information was given. This picture is a picture of the British press corps in Afghanistan. It was taken a couple of years ago by my friend David Gill.

According to the Committee to Protect Journalists, since 2010, there have been thousands of journalists who have been threatened, injured, killed, detained.

Too often, when we get this information, we forget who it affects or how that information is given to us. What many journalists do, both foreign and domestic, is very remarkable, especially in places like Afghanistan, and it’s important that we never forget that, because what they’re protecting is not only our right to receive that information but also the freedom of the press, which is vital to a democratic society.

08:10 Matt Rosenberg is a journalist in Afghanistan. He works for The New York Times, and unfortunately, a few months ago he wrote an article that displeased people in the government. As a result, he was temporarily detained and he was illegally exiled out of the country.

I represent Matt, and after dealing with the government, I was able to get legal acknowledgment that in fact he was illegally exiled, and that freedom of the press does exist in Afghanistan, and there’s consequences if that’s not followed. And I’m happy to say that as of a few days ago, the Afghan government formally invited him back into the country and they reversed their exile order of him.

08:59 If you censor one journalist, then it intimidates others, and soon nations are silenced. It’s important that we protect our journalists and freedom of the press, because that makes governments more accountable to us and more transparent. Protecting journalists and our right to receive information protects us.

Our world is changing.

We live in a different world now, and what were once individual problems are really now global problems for all of us. Two weeks ago, Afghanistan had its first democratic transfer of power and elected president Ashraf Ghani, which is huge, and I’m very optimistic about him, and I’m hopeful that he’ll give Afghanistan the changes that it needs, especially within the legal sector.

We live in a different world. We live in a world where my eight-year-old daughter only knows a black president. There’s a great possibility that our next president will be a woman, and as she gets older, she may question, can a white guy be president? (Laughter) (Applause)

 Our world is changing, and we need to change with it, and what were once individual problems are problems for all of us. According to UNICEF, there are currently over 280 million boys and girls who are married under the age of 15.

Two hundred and eighty million. Child marriages prolong the vicious cycle of poverty, poor health, lack of education.

10:33 At the age of 12, Sahar was married. She was forced into this marriage and sold by her brother. When she went to her in-laws’ house, they forced her into prostitution. Because she refused, she was tortured. She was severely beaten with metal rods. They burned her body. They tied her up in a basement and starved her. They used pliers to take out her fingernails. At one point, she managed to escape from this torture chamber to a neighbor’s house, and when she went there, instead of protecting her, they dragged her back to her husband’s house, and she was tortured even worse.

11:24 When I met first Sahar, thankfully, Women for Afghan Women gave her a safe haven to go to. As a lawyer, I try to be very strong for all my clients, because that’s very important to me, but seeing her, how broken and very weak as she was, was very difficult. It took weeks for us to really get to what happened to her when she was in that house, but finally she started opening up to me, and when she opened up, what I heard was she didn’t know what her rights were, but she did know she had a certain level of protection by her government that failed her, and so we were able to talk about what her legal options were.

12:18 And so we decided to take this case to the Supreme Court. Now, this is extremely significant, because this is the first time that a victim of domestic violence in Afghanistan was being represented by a lawyer, a law that’s been on the books for years and years, but until Sahar, had never been used. In addition to this, we also decided to sue for civil damages, again using a law that’s never been used, but we used it for her case. So there we were at the Supreme Court arguing in front of 12 Afghan justices, me as an American female lawyer, and Sahar, a young woman who when I met her couldn’t speak above a whisper. She stood up, she found her voice, and my girl told them that she wanted justice, and she got it. At the end of it all, the court unanimously agreed that her in-laws should be arrested for what they did to her, her fucking brother should also be arrested for selling her — (Applause) — and they agreed that she did have a right to civil compensation. What Sahar has shown us is that we can attack existing bad practices by using the laws in the ways that they’re intended to be used, and by protecting Sahar, we are protecting ourselves.

13:48 After having worked in Afghanistan for over six years now, a lot of my family and friends think that what I do looks like this. (Laughter) But in all actuality, what I do looks like this. Now, we can all do something. I’m not saying we should all buy a plane ticket and go to Afghanistan, but we can all be contributors to a global human rights economy. We can create a culture of transparency and accountability to the laws, and make governments more accountable to us, as we are to them.

14:22 A few months ago, a South African lawyer visited me in my office and he said, “I wanted to meet you. I wanted to see what a crazy person looked like.” The laws are ours, and no matter what your ethnicity, nationality, gender, race, they belong to us, and fighting for justice is not an act of insanity. Businesses also need to get with the program. A corporate investment in human rights is a capital gain on your businesses, and whether you’re a business, an NGO, or a private citizen, rule of law benefits all of us. And by working together with a concerted mindset, through the people, public and private sector, we can create a global human rights economy and all become global investors in human rights. And by doing this, we can achieve justness together.

Dare to disagree

Margaret Heffernan. Posted Aug 2012

In Oxford in the 1950s, there was a fantastic doctor, who was very unusual, named Alice Stewart. And Alice was unusual partly because, of course, she was a woman, which was pretty rare in the 1950s.

And she was brilliant, she was one of the, at the time, the youngest Fellow to be elected to the Royal College of Physicians. She was unusual too because she continued to work after she got married, after she had kids, and even after she got divorced and was a single parent, she continued her medical work.

00:43 And she was unusual because she was really interested in a new science, the emerging field of epidemiology, the study of patterns in disease. But like every scientist, she appreciated that to make her mark, what she needed to do was find a hard problem and solve it.

The hard problem that Alice chose was the rising incidence of childhood cancers. Most disease is correlated with poverty, but in the case of childhood cancers, the children who were dying seemed mostly to come from affluent families. So, what, she wanted to know, could explain this anomaly?

01:23 Now, Alice had trouble getting funding for her research. In the end, she got just 1,000 pounds from the Lady Tata Memorial prize. And that meant she knew she only had one shot at collecting her data. Now, she had no idea what to look for.

This really was a needle in a haystack sort of search, so she asked everything she could think of. Had the children eaten boiled sweets? Had they consumed colored drinks? Did they eat fish and chips? Did they have indoor or outdoor plumbing? What time of life had they started school?

01:54 And when her carbon copied questionnaire started to come back, one thing and one thing only jumped out with the statistical clarity of a kind that most scientists can only dream of. By a rate of two to one, the children who had died had had mothers who had been X-rayed when pregnant. Now that finding flew in the face of conventional wisdom.

Conventional wisdom held that everything was safe up to a point, a threshold. It flew in the face of conventional wisdom, which was huge enthusiasm for the cool new technology of that age, which was the X-ray machine. And it flew in the face of doctors’ idea of themselves, which was as people who helped patients, they didn’t harm them.

02:46 Nevertheless, Alice Stewart rushed to publish her preliminary findings in The Lancet in 1956. People got very excited, there was talk of the Nobel Prize, and Alice really was in a big hurry to try to study all the cases of childhood cancer she could find before they disappeared. In fact, she need not have hurried.

It was fully 25 years before the British and medical — British and American medical establishments abandoned the practice of X-raying pregnant women. The data was out there, it was open, it was freely available, but nobody wanted to know. A child a week was dying, but nothing changed. Openness alone can’t drive change.

 So for 25 years Alice Stewart had a very big fight on her hands.

How did she know that she was right? Well, she had a fantastic model for thinking.

She worked with a statistician named George Kneale, and George was pretty much everything that Alice wasn’t. So, Alice was very outgoing and sociable, and George was a recluse. Alice was very warm, very empathetic with her patients. George frankly preferred numbers to people. But he said this fantastic thing about their working relationship. He said, “My job is to prove Dr. Stewart wrong.”

He actively sought disconfirmation. Different ways of looking at her models, at her statistics, different ways of crunching the data in order to disprove her. He saw his job as creating conflict around her theories. Because it was only by not being able to prove that she was wrong, that George could give Alice the confidence she needed to know that she was right.

04:55 It’s a fantastic model of collaboration — thinking partners who aren’t echo chambers. I wonder how many of us have, or dare to have, such collaborators. Alice and George were very good at conflict. They saw it as thinking.

05:21 So what does that kind of constructive conflict require? Well, first of all, it requires that we find people who are very different from ourselves. That means we have to resist the neurobiological drive, which means that we really prefer people mostly like ourselves, and it means we have to seek out people with different backgrounds, different disciplines, different ways of thinking and different experience, and find ways to engage with them. That requires a lot of patience and a lot of energy.

05:57 And the more I’ve thought about this, the more I think, really, that that’s a kind of love. Because you simply won’t commit that kind of energy and time if you don’t really care.

And it also means that we have to be prepared to change our minds. Alice’s daughter told me that every time Alice went head-to-head with a fellow scientist, they made her think and think and think again. “My mother,” she said, “My mother didn’t enjoy a fight, but she was really good at them.”

06:35 So it’s one thing to do that in a one-to-one relationship. But it strikes me that the biggest problems we face, many of the biggest disasters that we’ve experienced, mostly haven’t come from individuals, they’ve come from organizations, some of them bigger than countries, many of them capable of affecting hundreds, thousands, even millions of lives.

So how do organizations think?

Well, for the most part, they don’t. And that isn’t because they don’t want to, it’s really because they can’t.

And they can’t because the people inside of them are too afraid of conflict.

In surveys of European and American executives, fully 85 percent of them acknowledged that they had issues or concerns at work that they were afraid to raise. Afraid of the conflict that that would provoke, afraid to get embroiled in arguments that they did not know how to manage, and felt that they were bound to lose.

Eighty-five percent is a really big number. It means that organizations mostly can’t do what George and Alice so triumphantly did. They can’t think together. And it means that people like many of us, who have run organizations, and gone out of our way to try to find the very best people we can, mostly fail to get the best out of them.

08:14 So how do we develop the skills that we need? Because it does take skill and practice, too.

If we aren’t going to be afraid of conflict, we have to see it as thinking, and then we have to get really good at it. So, recently, I worked with an executive named Joe, and Joe worked for a medical device company.

And Joe was very worried about the device that he was working on. He thought that it was too complicated and he thought that its complexity created margins of error that could really hurt people. He was afraid of doing damage to the patients he was trying to help.

But when he looked around his organization, nobody else seemed to be at all worried. So, he didn’t really want to say anything. After all, maybe they knew something he didn’t. Maybe he’d look stupid. But he kept worrying about it, and he worried about it so much that he got to the point where he thought the only thing he could do was leave a job he loved.

09:21 In the end, Joe and I found a way for him to raise his concerns.

And what happened then is what almost always happens in this situation. It turned out everybody had exactly the same questions and doubts. So now Joe had allies. They could think together. And yes, there was a lot of conflict and debate and argument, but that allowed everyone around the table to be creative, to solve the problem, and to change the device.

Joe was what a lot of people might think of as a whistle-blower, except that like almost all whistle-blowers, he wasn’t a crank at all, he was passionately devoted to the organization and the higher purposes that that organization served. But he had been so afraid of conflict, until finally he became more afraid of the silence.

And when he dared to speak, he discovered much more inside himself and much more give in the system than he had ever imagined. And his colleagues don’t think of him as a crank. They think of him as a leader.

10:42 So, how do we have these conversations more easily and more often? Well, the University of Delft requires that its PhD students have to submit five statements that they’re prepared to defend. It doesn’t really matter what the statements are about, what matters is that the candidates are willing and able to stand up to authority. I think it’s a fantastic system, but I think leaving it to PhD candidates is far too few people, and way too late in life. I think we need to be teaching these skills to kids and adults at every stage of their development, if we want to have thinking organizations and a thinking society.

11:29 The fact is that most of the biggest catastrophes that we’ve witnessed rarely come from information that is secret or hidden. It comes from information that is freely available and out there, but that we are willfully blind to, because we can’t handle, don’t want to handle, the conflict that it provokes. But when we dare to break that silence, or when we dare to see, and we create conflict, we enable ourselves and the people around us to do our very best thinking.

12:10 Open information is fantastic, open networks are essential. But the truth won’t set us free until we develop the skills and the habit and the talent and the moral courage to use it. Openness isn’t the end. It’s the beginning.


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