Violence

Fear and Loathing in Ahmedabad

P  A  R  T       T   H  R  E  E

As I write this, I am wondering if I am living out some macabre version of the American drama series – `The House of Cards.’ I’ve spent the last week fighting an order made out by the head of the Sabarmati jail in Gujarat which released a convicted felon Suresh Richard Jadeja from prison for an annual two week leave. I fought hard, saying this man broke his promise to the jail authorities the last two times he was on leave, by raping his wife, then attacking me. That should qualify for the prison authorities thinking very hard before granting him leave again. I wrote to the local police, to the Inspector General of Prisons, but it changed nothing. Then on Friday, after both those options failed, I decided it may be best to take my petition to the Gujarat High court. Only, I needed someone well versed with criminal law who would also agree to draft the petition and argue it in court for free. I have no money.

 

I was recommended the very well known High court lawyer H L Sayeed. He agreed to meet me and I met him in his plush office in the New York Tower in Ahmedabad. He heard me out and agreed to take the case.  “Mr Rahul Sharma will fight your case, brief him, I’ve called him. He works with me,” said Mr Sayeed, smiling from behind his desk.

Rahul Sharma has made a transition from a senior police officer to practicing lawyer but he is better known for his bold, unafraid investigations into two key 2002 Gujarat riot cases. He is meant to have looked into and got the mobile phone records of police officers which seemed to implicate them and several political leaders in playing a role in instigating the lynch mobs in Gujarat.  Would my case, trying to petition for a 2002 riots convict be something that would be in a familiar zone? Would it make the courts automatically make my case seem like it was about 2002 when actually it is more about a dangerous man violating his parole? These were some of the thoughts that ran through my head when a thin, balding man entered Mr Sayeed’s room, and Mr Sayeed introduced us.

“Revati, this is Rahul Sharma.”

I told him what I was there for and we went to Rahul’s cabin. He took detailed notes and asked me if I had a copy of the papers of the criminal charges filed against Suresh by his wife. I did.

We spent hours going over them and the sequence of events. I had made it clear that the case needed to be presented before the High court soonest. That Suresh being out on the loose meant his wife and I were both in danger. Especially since the jail authorities had not sent the order to the local police. So the local police had no orders to keep a vigilant eye on him. I had this from the police in writing. A letter they sent in reply to my questions, signed December 2nd. “We have not received any written order saying that Suresh is out on a furlough.” Signed by the police inspector for the police station from the area Suresh lives.

This was a coup I thought.  How will the court react when they see what the jail authorities have done? Isn’t this a major argument in favour of the list of lapses that make Suresh’s leave dangerous? No accountability by the local police? Yes, Rahul Sharma nodded. It did.

But he also very calmly and rationally explained to me how the system works. “Law is about balancing the interests of the accused or the convict with that of the victim. Both have rights,” he reminded me. “It cannot be argued that for the remaining 26 years of Suresh’s jail sentence, that he won’t get any leave. That would be unconstitutional.”

I agreed. “I am not making out that kind of case, Sir,” I said, very impressed with his quite, reasoned statement. “I would simply like to ask the court to make the conditions under which he is granted leave again very, very tight. For instance, the jail authorities must send prior notice to his wife and me, as people he has attacked while on leave from jail, so we can get protection from the local police. There must be a restraining order so he cannot enter parts of the city we live in or frequent. The conditions under which he is granted leave cannot be routine since he has shown that he doesn’t care about fulfilling the basic promise he signs onto when he gets leave. And the jail authorities must be made to explain in writing how they neglected to inform the local police of Suresh’s release.”

“That’s fair,” Rahul said. He would draft an application by Monday, have Mr Sayeed go over it and we would file the same day.

I left the New York tower building that evening a little lighter, in the knowledge that this battle would now reach a point of culmination. And then on Sunday, Rahul Sharma started to sound a bit distant. “Mr Sayeed is out of town on Monday. He will be back late evening and I want him to go over the papers once, before we take it to court. So we can’t file on Monday.”

“Tuesday then, right?” I said, sounding a little worried.

“Let Mr Sayeed read my draft and then we will take it from there.”

On Tuesday, Rahul didn’t answer my calls. Neither did Mr Sayeed. By the afternoon I was frantic. Days were going by and now just five days of Suresh’s leave were left. Would the court admit a petition to cancel his leave so late in the day? We needed to press on. Not just for now, but so that the rules get much tighter in the future. And lapses in information passing from the jail to the police do not recur.

On Tuesday afternoon I finally got a call from someone who is a common friend to Mr Sayeed and me.

“Hello Revati, Mr Sayeed asked me to tell you that he and Rahul Sharma are already embroiled in cases from 2002 and cannot take yours on.”

I gulped hard. The last few words pierced through me like fresh stab wounds. I went numb. And then i got very, very angry. White hot anger and disappointment that left me with absolutely nothing to say. We had been working on the draft from Friday to Tuesday. Now there were only five days left until Suresh’s leave expired. And I would have to start from scratch. I would have to look for another criminal lawyer who believed in my petition and was willing to argue it for free. That would take a day to find and then another day to make her or him go over all the documents and write a new draft. That would potentially take us to Friday and then by Monday Suresh’s leave ends.

It was late afternoon and the time of year when it gets very pleasant. Winter is just around the corner. But my face was burning hot. I decided I had to drop this fight. Never mind about feeling more secure. For now, this delay by people who paint themselves as the vanguards of the law and of judicial accountability and good governance and the good fight had dropped me. This is what it can feel like to be fighting the system with no money. Some fights you have to just drop. For now.

The war via words carries on. That is a battle I know and it what I do best. The courts and the police, well that is something I have to wait for another day, to fight.

……………..

Revati Laul is an independent journalist and film maker, currently based out of Gujarat; where she is working on a book on the perpetrators of the 2002 riots. She is the creator of this site. She tweets @revatilaul

 

 

 

Mediation – A Discovery

By Charles Marquand

Charles Marquand is a barrister (advocate) in London with an extensive practice in financial regulation and commercial law. He also has the rare and vital quality of empathy, which made him look for ways of resolving disputes outside the sometimes harsh, black and white binaries of winners and losers. There was a third space to be explored – that of mediation, where the two sides can be brought around to a well-structured and reasoned compromise. Can this method be applied to various kinds of conflict, including situations of ethnic violence? As a keen observer of European and Indian politics, Charles attempts an answer here.

I am a barrister and have practised in some way, shape or form for over 25 years. During the course of that time I have seen that litigation – at least in the realm of private law – can be a time-consuming, costly and ultimately destructive process which leaves all parties, at best, profoundly dissatisfied. The “winning” party only gets what he what he thought were his just deserts, no more. But he pays heavy price for this. The likelihood is that he will not recover much more than two-thirds of his financial outlay; but worse than that, he can never recover the emotional energy spent in turmoil and anguish that necessarily accompanies litigation. As for the losing party; he loses. He loses financially, emotionally and socially. He has to digest the bitter truth, made public, that he was wrong.

But there is a deeper loss suffered by both parties. Litigation before a court or arbitral tribunal is an admission that one cannot arrange one’s own affairs as one may wish. In litigation the parties say, “We cannot resolve our conflict; impose an outcome of your choosing on us.” In effect the parties are saying they no longer wish to be in control. In short, in litigation parties lose their autonomy.

Mediation is the exact opposite. Mediation in all its forms (and there are many) rests on the fundamental notion that people are autonomous; and as autonomous beings they can resolve their conflicts themselves. They may not wish to; but that is a different matter. They can do so if they allow themselves to.

So how did I learn this?

Having promised myself for many years that I would do so, about four years ago I fulfilled my promise and took a course to become a mediator in civil and commercial disputes. I was fascinated.

The approach taught was what is called “facilitative”. By that is meant the mediator seeks to facilitate a settlement between the parties. Essentially, through a process of frank discussion with each party in private, and shuttling between the parties, the mediator helps the parties to understand the true strength and weaknesses of their respective cases, the reality of litigation and possible solutions. But the solution is fashioned by the parties themselves and can incorporate anything the parties choose. Litigation, constrained as it is by legal principle, tends to black and white outcomes. In contrast, mediation, unconstrained by legal principle, can lead to any outcome the parties want. A solution might incorporate a compromise or variation of another contract which wasn’t even the subject of litigation. Nothing is necessarily off the table.

To give an example of a contract between a restaurateur and fishmonger: the contract provides that the fishmonger is to supply ten fish each day in the morning to the restaurateur. One morning the fishmonger, delivering ten fish, finds that the restaurant door is closed. He leaves the fish on the doorstep. A few minutes later a passerby seeing the fish unattended, decides to take them. The restaurateur arrives at the restaurant to discover his ten fish haven’t been delivered. He demands delivery from the fishmonger. The fishmonger demands payment. Ill-tempered and unfruitful arguments ensue. The restaurateur issues a claim for damages; he paid for ten fish, which he didn’t receive. The fishmonger counterclaims for damages: he delivered ten fish, for which he hasn’t been paid. Lengthy submissions and reference to arcane precedent by highly paid counsel might persuade the judge that the true meaning of the contract was that the fish were to be delivered into the hands of the restaurateur; or lengthy submissions and reference to arcane precedent by equally highly paid counsel might equally persuade the judge that the true meaning of the contract was that fishmonger was only required to deliver the fish by a given time each morning. But whichever argument wins the day, the judge can really only find for the restaurateur or the fishmonger. Either the contract was performed and the restaurateur must pay the fishmonger, or the contract was not performed and the fishmonger must pay the restaurateur.

A mediator on the other hand can help the parties to arrive at their own solution. Perhaps the solution will be a partial payment; or perhaps the fishmonger also supplies vegetables and a new contract could provide for cut-price vegetable delivery for a period to compensate for the loss of the fish; or perhaps the restaurateur could provide discounted catering at the wedding of the fishmonger’s daughter; or perhaps it could be all of these, or some of these, or none of these.

One particular exercise from the course sticks in my mind. We were fourteen; seven lawyers and seven non-lawyers. We were asked to divide into seven teams comprising one lawyer and one non-lawyer. We were given a very simple set of facts: a claim for a certain amount by the claimant, a counterclaim for a certain amount by the defendant, an amount of costs already incurred for each party and a projected amount of costs to be incurred by each party to the conclusion of the trial. We were given fifteen minutes to predict the best and worst possible outcomes for each party in monetary terms. We produced a total of fourteen predictions. It’s hard to think of a better illustration of the unpredictability of the legal process; and I might add, of how fair-minded and objective individuals can reach wholly different conclusions. Why then would any rational person submit himself to process over which he has no control and whose outcome can be so uncertain?

However, what about the irrational person? Or to put it another way: What about the conflict which resolves around non-material issues? What about the conflict where the solution is not a compromise reached after a rational consideration of material interests? This is perhaps where the model as used in civil and commercial disputes may be deficient. Some conflicts are, at root, not caused by a clash of competing material claims but by differing perceptions the parties of each other. Competing material claims may be no more than the ostensible vehicle for the hostile feelings the parties have for each other. If so, reaching a settlement on the material issues (assuming it’s possible to do so) will be unlikely to resolve the conflict for the long term.

Marital and neighbourhood disputes are classic examples of this kind of conflict. For example, a dispute between a couple about money – the principal wage earner thinks the other is spendthrift, the other thinks the wage earner is mean – could well really be a dispute about the need for autonomy, trust, security and so on. The wage earner is insecure about status; the other needs autonomy or to be trusted. A settlement which set out a weekly budget would be unlikely to resolve the conflict; either it would break down or re-surface in another guise. For these kinds of conflicts a different kind of mediation is required. This kind of mediation is often called transformative mediation since it seeks to transform the parties feelings; towards each other or about themselves or perhaps both.

A little while ago I took a course on this kind of mediation. I learnt about an approach which focuses on uncovering the needs and feelings of parties. In brief, the underlying theory is that much conflict arises when an individual’s needs (e.g. for security, respect, autonomy) are not met; maybe by the other party, maybe by a third party or outside circumstances. When needs are not met, negative feelings result; fear, anger, frustration et cetera. The negative feelings give rise to conflict. A resolution can only come about once the unmet needs and the resultant negative feelings are identified. The task of the mediator is to explore with parties, together, through non-judgmental discussion, what needs are unmet and what feelings that gives rise to. A solution can then be crafted by the parties, with the mediator’s assistance, which addresses those needs and feelings.

This approach – an approach based on what is called non-violent communication – clearly requires a great deal from the mediator. It requires the mediator to understand his or her own emotional triggers (not least to learn how to identify the parties’ needs and feelings), to build trust with the disputants and to explore patiently the inner sensitivities at core of the conflict. These are processes which are never complete. There is always more to learn about oneself and about others. And I have to confess, I am still learning; but I am also continuing to assess the implications and application of an approach so focused on individual emotions.

This is where I’ve got to. The transformative model which I have learnt about is a superb method of resolving a particular kind of conflict; where the dispute concerns individual unmet needs and consequential negative feelings. Where the dispute primarily concerns competing material interests, where the parties are likely to be “lawyered-up” to the eyeballs, it is probably inappropriate. The mediation process in those situations is essentially a constructive bargaining process, informed and structured by the mediator; not an exploration of needs and feelings.

But there is a category of conflict where I think a third approach is required. This category comprises disputes where the principal driver is a clash of identity; where the dispute is essentially social rather than individual. For example, Serbs, Croats and Bosnians in the former Yugoslavia lived for forty years with each other; not in segregated communities but as neighbours in direct and intimate proximity and by and large rubbing along tolerably well with each other. Yet the break-up of Yugoslavia led to a vicious civil war in which the children and grand-children of the Chetniks (Communist, predominantly Serb, partisans) and Ustaše (Croat Fascists), referring to each other in precisely those Second World War terms, slaughtered one another and interned one another in concentration camps simply on the basis of nationality. The conflict was not about clashing material interests or unmet individual emotional needs. It was about identity; or to be more precise, group identity. And group identity is freighted with learned history, learned cultural practices and – crucially – learned characterisations of the “other”. The mediation process therefore needs to focus on these factors, since they are the principal drivers of this third category of conflict.

But whilst it’s easy to recognise the drivers of such conflicts, the process of mediating them is still for me – for the time being – uncharted territory. My next step is therefore to discover mediation models which address conflicts driven by identity. What I will discover, I do not know.

Perpetrators Must Be a Part of Reformed Society

By Mahmood Mamdani

Mahmood Mamdani took what the world knew about genocides and etched it out with such visceral precision that it allowed people to see perhaps more clearly than ever before, that it is not enough to just describe hatred but to find exactly where it stems from. Mamdani points out how colonization created new political categories in colonies, that framed people as `natives and settlors,’  and new kinds of prejudice were formed. His writing changed the way the world looked at hate crimes, particularly in places like Rwanda and India. He is currently the director of the Makerere Institute of Social Research at Makerere University, Kampala, Uganda, and the Herbert Lehman professor of government at Columbia University.

First published in the New York Times, March 8th, 2013, re-printed with permission of the author

Prosecuting government leaders who commit mass violence against their people is not a one-size-fits-all solution, and it is especially misguided when it comes to African countries. More often than not, trials merely put a Band-Aid on the wounds that drive civil conflict within a society, rather than tackling the root causes behind the violence.

Mass violence in Africa is typically intrastate violence, occurring between ethnic groups whose identities were politicized under colonial rule. The international community insists that the only morally appropriate response is to hold leaders legally accountable, a path taken in Rwanda and Sierra Leone by United Nations tribunals and in Sudan and the Democratic Republic of Congo by the International Criminal Court.

But that approach can actually be dangerous and counterproductive. Trials exclude perpetrators from the process of founding new, more inclusive political orders in the aftermath of civil war. Denying these people a say in how to reform countries emerging from civil war will only increase the chance that the cycle of violence will repeat itself.

The contrast between Mozambique and Uganda is illustrative. In Mozambique, a full amnesty in 1992 cleared the way for the rebels who had tried to overthrow the government to participate in elections and emerge as the leading opposition party. In Uganda, the government invited the I.C.C. to mount prosecutions against the Lord’s Resistance Army leadership in 2003. That has made Joseph Kony and other L.R.A. leaders more reluctant to enter into peace talks, prolonging the violence.

The fact is, while morally abhorrent, these atrocities also lay bare the forces that divide societies and trigger communal violence. Understanding these root causes is a vital step toward building more inclusive and peaceful communities.

Take South Africa, where Nelson Mandela decided not to take apartheid leaders to trial. Many celebrate the achievements of South Africa’s Truth and Reconciliation Commission, but key to the peaceful end to apartheid was actually the grant of amnesty from criminal justice. Mandela’s decision made it possible for each side to decriminalize the other and treat it as a political adversary. The result was the Convention for a Democratic South Africa, the constitutional talks that led to the dismantling of juridical and political apartheid, paving the way for the 1994 general elections and majority rule.

Instead of just being morally outraged at mass human rights abuses, why don’t we also study what gives rise to them, and forge more peaceful and democratic societies in the process?