Kiai is a widely respected Kenyan human rights lawyer and is serving his second term as the U.N. special rapporteur on the rights to freedom of peaceful assembly and of association. His trip to the United States was spurred by growing concerns that despite a Constitution that guarantees broad inalienable rights, the world's supposed beacon of freedom is often not living up to international standards of equality under law.
At the end of his trip, Kiai published an eloquent statement summarizing what he learned in his discussions with protesters, police officials and community leaders. It is worth reading in full. Below is a reproduction of some of his most trenchant passages, including a clear explanation of the nation's enduring structural racism toward African Americans.
First, however, comes Kiai's introductory description of the United States. It is broad yet concise and a much-needed reminder of how the nation's present is a product of its past.
The United States "is an economic powerhouse, a military superpower, a global engine of technological development, and one of the oldest democracies in the world. It is also an extremely diverse nation, a nation of indigenous peoples, slaves and immigrants. ... The experiences with various forms of diversity and complexity have not always been smooth. The country was founded on land stolen from its indigenous Native Americans; its early economic strength was built on race-based slavery against people of African descent; and successive waves of immigrants have faced discrimination, harassment or worse."
On the basis of that history, Kiai writes that it is "impossible to discuss" the rights of freedom of assembly and of association "without issues of racism pervading these discussions." And so, before getting to his observations and recommendations, he outlines a long arc of systemic oppression that African Americans have faced in the United States, from the era of slavery to the Black Lives Matter movement he witnessed in his travels.
This issue is particularly grave in the African-American community, and understanding its context means looking back at 400 years of slavery. It also means looking at the emergence of the Jim Crow laws that destroyed the achievements of the Reconstruction Era, which emerged at the end of slavery in 1865, and enforced segregation and marginalized the African-American community to a life of misery, poverty and persecution.
It means looking at what happened after Jim Crow laws were dismantled, when old philosophies of exclusion and discrimination were reborn, cloaked in new and euphemistic terms. These may have not been race-based on their face, but they have, intentionally or not, disproportionately targeted African-Americans and other minorities.
The so-called “War on Drugs” is a perfect example. From it, one out of every 15 black men is in currently jail. One out of every 13 African-Americans, meanwhile, has lost their right to vote due to a felony conviction. An aggressive emphasis on street-level “law and order” (or “broken windows” approach) policing combined with wide police discretion means that African-Americans are subjected to systematic police harassment – and sometimes much worse — often for doing nothing more than walking down the street or gathering in a group. Convictions and incarcerations dramatically increased once the “War on Drugs” was set in motion, without a corresponding increase in drug use.
Similarly the crime laws passed under the Bill Clinton administration (1993-2001), including the federal “three strikes” law, implemented aggressively against people of color have contributed to the huge rises in incarceration and exclusion of the black community further fueling discontent and anger.
The effects can often snowball: A minor criminal offense — or even an arrest without substantiated charges — can show up on a background check, making it difficult to find a job, secure a student loan or find a place to live. This marginalization in turn makes it more likely that a person will turn to crime, for lack of any other option, and the vicious cycle continues.
These discriminatory laws and practices need to be seen in the larger context. Wall Street bankers looted billions of dollars through crooked schemes, devastating the finances of millions of Americans and saddling taxpayers with a massive bailout bill. Yet during my mission I did not hear any suggestions of a “War on Wall Street theft.” Instead, criminal justice resources go towards enforcing a different type of law and order, targeting primarily African-Americans and other minorities.
There is justifiable and palpable anger in the black community over these injustices. It needs to be expressed. This is the context that gave birth to the non-violent Black Lives Matter protest movement and the context in which it must be understood.
In discussions with activists, it is clear that “Black Lives Matter” does not mean that other lives — green, purple, blue, white or other color — do not matter. The Black Lives Matter movement is simply a reaffirmation that black lives do in fact matter, in the face of a structure that systematically devalues and destroys them, stretching back hundreds of years. It is not about granting African-Americans special status or privilege. It is about a historically and continuously targeted community seeking to elevate itself to the same level that everyone else enjoys.
So, then, in the summer of 2016, what are the ways that African Americans and other minorities are being denied or limited the rights he is charged with promoting — assembly and free association?
Unfortunately almost all cities require permits for protests, contrary to international law and standards. In Philadelphia, as in some other locations, the requirement to obtain a permit is not always rigidly enforced, but this opens the process to arbitrariness and uncertainty. ...When a right is subjected to a permit or authorization requirement, it becomes a privilege rather than a right. ...
It was disturbing to learn that assemblies organized by African-Americans are managed differently, with these protests often met with disproportionate force. Indeed, white and Muslim activists that I met acknowledged that black fellow protesters face harsher police encounters in the context of assemblies: police are more likely to be militarized and aggressive; black people are detained longer after arrests; they face more and heavier charges, more intimidation and more disrespect.
Those permits are issued "arbitrarily," he writes. That means that they are susceptible to discrimination against marginalized groups.
He also had advice for how the nation's increasingly militarized police force should respond to peaceful protests, such as the one in Baton Rouge pictured above. He urged police to arrest or punish only those who break laws and further stressed that the presence of law-breakers doesn't take away the rights of those assembled peacefully.
It is manifestly unwise to respond to a largely peaceful, grieving crowd with riot gear, random arrests, flimsy charges, rough physical handling, verbal insults and so forth. This is not only a violation of the right to peaceful assembly, it also dangerous for participants, the general public and police officers.
But it isn't just their handling of the protests, which have largely been spurred by the killings of unarmed black men by police officers, but how they move forward and prevent history from repeating itself that concerns Kiai.
The outcry for accountability for police shootings is deafening. Given the attention to this issue and its importance, it is incomprehensible that a modern society such as the United States lacks official records that accurately document the number of victims of such shootings, the precise circumstances and the follow-up actions taken. Such information would enable a deeper understanding of the situations in which lethal force is used and support adequate adjustments if proven necessary.
The report will be presented to the U.N. Human Rights Council in June 2017 along with findings from other countries facing similar crises.
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