The passing on of Justice Scalia of the US Supreme Court who was renowned for his conservatism affords one an opportunity of paying tribute to his life at the bench and also to interrogate the philosophy of law that informed his decisions. On Saturday the 13th of February, 2016, the US judiciary, and the entire, nation lost one of the most highly respected justices of the Supreme Court, regarded by many as a fierce intellectual force of the right wing in the Supreme Court.
His departure and consequent replacement has sparked fierce debate amongst the conservatives and liberals in that country.
The conservatives have called upon President Obama to refrain from nominating a new justice to replace Justice Scalia for fear that he will replace him with a liberal justice who may tilt the balance of the US Supreme Court jurisprudence – on major constitutional issues – to the left. These forces argue that the tradition in the US is that a lame duck President – a president who is on his way out, should not nominate a new justice in the dying days of his tenure. However, President Obama is adamant that he intends to fulfill his constitutional obligations. With the departure of Justice Scalia, the US Supreme Court is evenly balanced in terms of ideological outlook.
Justice Anthony Kennedy is considered a vacillating justice, who often tours the middle path, and therefore unpredictable. His record shows that in a majority of cases, he votes with the right although on occasions he has voted with the left. If history is anything to go by, the Court is set to continue being divided on major constitutional issues touching on the rights of LGTBQ’s, abortion, affirmative action and immigration laws. Justice Antonio Scalia was born in 1936, in Trenton, New Jersey. He was the only child of Mr. and Mrs. Scalia.
His father emigrated from Sicily as a teenager to the United States of America. In 1953, he enrolled at George Town University in Washington DC where he graduated with a bachelor’s degree in History. He is a Harvardian – having graduated at the prestigious Harvard Law School. In 1967, he took up an academic post as Professor of Law at the University of Virginia Law School.
Justice Scalia has also taught law at the University of Chicago Law School. He was appointed to the Supreme Court in 1986 by President Reagan and soon thereafter earned a reputation as a constitutional textualist who believed that the duty of the court in interpreting the Constitution is to give effect to the intention of its framers. This judicial philosophy was called originalism. It is an interpretation method that seeks to hold the Constitution hostage to those departed.
This method has no traction with modern constitutional lawyers. This brought him in confrontation with liberals who believed that the Constitution is a living and breathing organism that allows the courts to interpret it expansively and in a manner that is consistent with the contemporary values of the society. Justice Scalia believed that an expansive and generous interpretation allowed judges the opportunity to legislate and often to be the overlords of the Constitution.
He took the view that to regard the Constitution as a living document allowed courts to facilitate change, which is not their duty. He abhorred judicial activism with a passion believing in the fairy tale that judges do not make law, when in actual fact judges are the best lawmakers. He was a firm believer in the doctrine of stare decisis – which meant that the principles derived from previous decisions formed a body of controlling law for future decisions.
He derided liberals for striving for ‘justice’ in a case, in the light of their own philosophies and socio economic values and in the process according settled legal principles little or no weight. According to Justice Scalia, judicial power should never be exercised for the purposes of giving effect to the will of the judge, but rather that of the legislature, the primary lawmaker.
It is this approach that defined Justice Scalia as a conservative – some would say an ultra-conservative. It seems to me that judges, like other mortals, need to view complex constitutional issues with a broader compass and a more sharper microscopic lens – and of course with some measure of humility – the conviction that one human mind can embrace but a tiny fraction of all judicial wisdom and knowledge. Conservative to the core, he occasionally veered to the left.
He surprised many members of the legal fraternity when he voted to uphold free speech in the Texas flag burning case. He acknowledged the discomfort in seeing the flag burnt, but could not fathom those who wanted to punish the flag burners. He recognized that the ability to speak one’s mind, to challenge authority without fear of recrimination by the State is the essential distinction between life in a free country and in a dictatorship.
He understood that although the flag was a fundamental symbol of American nationhood, a proper constitutional reasoning requires the courts to make decisions they do not necessarily like, but that must be taken because they are right – and that to this extent, it is imperative that the flag protects those who hold it in contempt. Justice Scalia weighed in his conservative views in the case of Bush v Gove and literally helped hand over the 2000 election victory to President George Bush. Many constitutional scholars have criticized the decision as wrongly decided.
In the dissenting judgment of Justice Stevens, with whom Justice Ginsburg and Justice Breyer agreed with, the majority decision, in essence discredited the independence and impartiality of the judiciary. He concluded that: “Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however is certain. Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
In June 2015, when the Supreme Court upheld the Obama care, Scalia, was scathing against the majority decision which allowed the federal government to provide nationwide tax subsidies to help Americans buy health insurance, accusing the majority of twisting the meaning of plain words, saying in the course of his dissent: “the court’s decisions reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct supposed flaw in statutory machinery.
That philosophy ignores the American people’s decision to give Congress all legislative powers enumerated in the Constitution.” Justice Scalia was equally scathing in his dissent in the 2015 landmark case in which the Supreme Court upheld the right to same sex marriage by a majority of one. He came hard on the majority decision, writing that the ruling was “at odds not only with the Constitution, but with the principles upon which our nation was built”.
Over the many years of his extra-ordinary judicial career, Justice Scalia was the very epitome of conservatism. Some traces of this can be discerned from his upbringing, for the truth is that no judge ascends to the bench as an ideological virgin, sometimes personal and professional experiences may influence the colour and texture of one’s jurisprudence.
The tragedy though of conservative/liberal contestation over what the task of judging entails is often characterized by self-serving criticism; the right accusing the left of judicial activism – shaping the law in accordance with the judges socio-economic views or philosophy; whilst history would testify that conservative elements, just like liberals, may occasion violence to plain words to give effect to their world outlook.
The truth of the matter though is that in each of us, judges, there is a stream of tendency; call it philosophy for lack of better word, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other ordinary mortals. All their life experiences which they cannot recognize or name have some influence on how they tackle jurisprudential issues of our time – all these constitutes, as it has often been said, “the total push and pressure of the cosmos,” which, when reasons are nicely balanced, must determine where choice shall fall. It is incontestable that our background constitutes a critical context to our thinking process – for we may try to see things as objectively as we may wish to, but the bottom line is that we can never process a problem, with any mind other than our own.
It can hardly be contested that in the life of the mind, there is a tendency towards the reproduction of the essence of the self. Liberals do not consider legal interpretation to be a mechanical enterprise. They consider that the ultimate objective of law should be the welfare of society. Perhaps the most significant advance in the modern science of law is the change from analytical to the functional attitude.
In the enterprise of judging, justice must be the overarching objective that must direct our reasoning process. In conclusion and in reflecting on the life of Justice Scalia and his philosophy of law and the debates it has generated over the years, it seems to me that logic, history, values, and social welfare are critical considerations in judicial reasoning.
As to which of the above considerations should predominate in any given case, must depend largely upon the judges outlook, knowledge of the law (for the level of jurisprudential output is a product of knowledge borne of intense reading and study) and his/her commitment to justice. In conclusion, whilst Justice Scalia, and many in his ideological camp subscribe to the view that judges do not make law; the truth is that judges make law in the course of interpretation. A provision in a Statute or Constitution may appear clear and straightforward – and until construed, is not really law, it is perhaps “ostensible” law.
There is therefore merit, philosophically, in the view that, real law is not found anywhere except in a judgment of the court. In that view, even past decisions are not law because the courts may overrule them. Men and women go about their business from day to day, and govern their conduct by an ignis fatuus (something deluding or misleading). The rules to which they yield obedience are in many respects “ostensible” law; for law never is, but is always about to be – unless construed is not real law.
This is a question that should seriously exercise the mind of every Botswana citizen and every science researcher, every health worker and every political leader political.
The Covid-19 currently defines our lives and poses a direct threat to every aspect and every part of national safety, security and general well-being. This disease has become a normative part of human life throughout the world.
The first part of the struggle against the murderous depredation of this disease was to protect personal life through restrictive health injunctions and protocols; the worst possibly being human isolation and masks that hid our sorrows and lamentations through thin veils. We suffered that humiliation with grace and I believe as a nation we did a great job.
Now the vaccines are here, ushering us into the second phase of this war against the plague; and we are asking ourselves, is this science-driven fight against Covid-19 spell the end of pandemic anxiety? Is the health nightmare coming to an end? What happy lives lie ahead? Is this the time for celebration or caution? As the Non State Actors, we have being struggling with these questions for months.
We have published our thoughts and feelings, and our research reviews and thorough reading of both the local and international impacts of this rampaging viral invasion in local newspapers and social media platforms.
More significantly, we have successfully organised workshops about the impact of the pandemic on society and the economy and the last workshop invited a panel of health experts, professionals, and public administers to advance this social dialogue as part of our commitment to the tripartite engagement we enjoy working with Government of Botswana, Civil Society and Development partners. These workshops are virtual and open to all Batswana, foreign diplomatic missions based in Gaborone, UN agencies located in Gaborone and international academic researchers and professional health experts and specialists.
The mark of Covid-19 on our nation is a painful one, a tragedy shared by the entire human race, but still a contextually painful experience. Our response is fraught with grave difficulties; limited resources, limited time, and the urgency to not only save lives but also avert economic ruin and a bleak future for all who survive. Several vaccines are already in the market.
Parts of the world are already doing the best they can to trunk the pestilential march of this disease by rolling out mass-vaccinations campaigns that promise to evict this health menace and nightmare from their public lives. Botswana, like much of Africa, is still up in the disreputable, and, unenviable, preventative social melee of masked interactions, metered distances, contactless commerce.
We remain very much at the mercy of a marauding virus that daily runs amuck with earth shattering implications for the economy and human lives. And the battle against both infections and transmissions is proving to be difficult, in terms of finance, institutional capacities and resource mobilization. How are we prepared as government, and as citizens, to embrace the impending mass-vaccinations? What are the chances of us succeeding at this last-ditch effort to defeat the virus? What are the most pressing obstacles?
Does the work of vaccines spell an end to the pandemic anxieties?
Our panellists addressed the current state of mass-vaccination preparedness at the Botswana national level. What resources are available? What are the financial, institutional and administrative operational challenges (costs and supply chains, delivery, distribution, administering the vaccine on time, surveillance and security of vaccines?) What is being done to overcome them, or what can be done to overcome them? What do public assessments of preparedness tell us at the local community levels? How strong is the political will and direction? How long can we expect the whole exercise to last? At what point should we start seeing tangible results of the mass-vaccination campaign?
They also addressed the challenges of the anticipated emerging Vaccinated Society. How to fight the myths of vaccines and the superstitions about histories of human immunizations? What exactly is being done to grow robust local confidence in the science of vaccinations and the vaccines themselves? More significantly, how to square these campaigns vis-vis personal rights, moral/religious obligations?
What messages are being sent out in these regards and how are Batswana responding? What about issues of justice and equality? Will we get the necessary vaccines to everyone who wants them? What is being done to ensure no deserving person is left behind?
They also addressed issues of health data. To accomplish this mass-vaccination campaign and do everything right we need accurate and complete data. Poor data already makes it very hard to just cope with the disease. What is being done to improve data for the mass-vaccination campaign? How is this data being collected, aggregated and prepared for real life situation/applications throughout Botswana in the coming campaign?
We know in America, for example, general reporting and treatment of health data at the beginning of vaccinations was so poor, so chaotic and so scattered mainstream newspapers like The Atlantic, Washington Post and the New York Times had to step in, working very closely with civil society organizations, to rescue the situation. What data-related issues are still problematic in Botswana?
To be specific, what kind of Covid-19 data is being taken now to ready the whole country for an effective and efficient mass-vaccination program?
Batswana must be made aware that the end part of vaccination will just mark the beginning of a long journey to health recovery and national redemption; that in many ways Covid-19 vaccination is just another step toward the many efforts in abeyance to fight this health pandemic, the road ahead is still long and painful.
For this purpose, and to highlight the significance of this observation we tasked our panellists with the arduous imperative of analysing the impact of mass-vaccination on society and the economy alongside the pressing issues of post-Covid-19 national health surveillance and rehabilitation programs.
Research suggests the aftermath of Covid-19 vaccination is going to be just as difficult and uncertain world as the present reality in many ways, and that caution should prevail over celebration, at least for a long time. The disease itself is projected to linger around for some time after all these mass-vaccination campaigns unless an effort is made to vaccinate everyone to the last reported case, every nation succeeds beyond herd immunity, and cure is found for Covid-19 disease. Many people are going to continue in need of medications, psychological and psychiatric services and therapy.
Is Botswana ready for this long holdout? If not, what path should we take going into the future? The Second concern is , are we going to have a single, trusted national agency charged with the mandate to set standards for our national health data system, now that we know how real bad pandemics can be, and the value of data in quickly responding to them and mitigating impact? Finally, what is being done to curate a short history of this pandemic? A national museum of health and medicine or a Public Health Institute in Botswana is overdue.
If we are to create strong sets of data policies and data quality standards for fighting future health pandemics it is critical that they find ideological and moral foundations in the artistic imagery and photography of the present human experience…context is essential to fighting such diseases, and to be prepared we must learn from every tragic health incident.
Our panellists answered most of these questions with distinguished intellectual clarity. We wish Batswana to join us in our second Mass-vaccination workshop.
Today is International Women’s Day – it’s a moment to think about how much better our news diet could be if inequities were eliminated. In 1995, when the curtains fell in one of the largest meetings that have ever brought women together to discuss women in development, it was noted that women and media remain key to development.
Twenty-six years later, the relevant “Article J” of the Beijing Platform for Action, remains unfulfilled. Its two strategic objectives with regard to Women and Media have not been met. They are Increase the participation and access of women to expression and decision-making in and through the media and new technologies of communication
Promote a balanced and non-stereotyped portrayal of women in the media.
Today, as we mark International Women’s Day, it’s an indictment on both media owners and civil society that women remain on the periphery of news-making. They cannot claim equal space in either the structures of newsrooms or in the content produced, be that as sources of news or as the subjects of reports. Indeed, the latest figures from WAN-IFRA’s Women in News Programme show just one in five voices in news belong to women*, be they as sources, as the author or as the main character of the news report.
Some progress was evident several years back, with stand-out women being named as chief executive officers, editors in chief, managing editors and executive editors. But these gains appear short lived in most media organisations. Excitement has turned to frustration as one-step forward has been replaced with three steps backwards. In Africa, the problem is acute. The decision-making tables of media organisations remain deprived of women and where there are women, they are surrounded by men.
Few women have followed in the footsteps of Esther Kamweru, the first woman managing editor in Kenya, and indeed sub-Saharan Africa. Today’s standout women editors include Pamela Makotsi-Sittoni (Nation Media Group, Kenya), Barbara Kaija (New Vision, Uganda), Mary Mbewe (Daily Nation, Zambia), Margaret Vuchiri (The Monitor, Uganda), Joyce Shebe (Clouds, Tanzania), Tryphinah Dongwana (Weekend Post, Botswana), Joyce Mhaville (Independent Television -ITV, Tanzania) and Tuma Abdallah (Standard Newspapers,Tanzania). But they remain an exception.
The lack of balance between women and men at the table of decision making has a rollback effect on the content that is produced. A table dominated by men typically makes decisions that benefit men.
So today, International Women’s Day is a grim reminder that things are not rosy in the news business. Achieving gender balance in news and in the structure of media organisations remains a challenge. Unmet, it sees more than half of the population in our countries suffer the consequences of bias, discrimination and sexism.
The business of ignoring the other half of the population can no longer be treated as normal. It’s time that media leaders grasp the challenge, not only because it is the right thing to do, but because it also makes a whole lot of business sense: start covering women, give them space and a voice in news-making and propel them to all levels of decision making within your organisation.
We can no longer afford to imagine that it’s only men who make and sell the news and bring in the shillings to fund the media business. Women too are worthy newsmakers. In all of our societies, there are women holding decision making positions and who are now experts in once male-only domains such as engineers, doctors, scientists and researchers.
They can be deliberately picked out to share their perspectives and expertise and bring balance to the profile of experts quoted on our news pages. Media is the prism through which society sees itself and women are an untapped audience. So, as we celebrate International Women’s Day, let us embrace diversity, which yields better news content and business products, and in so doing eliminate sexism. We know that actions and attitudes that discriminate against people based on their gender is bad for business.
As media, the challenge is ours. We need to consciously embrace and reach the commitments made 26 years ago when the Beijing Platform for Action was signed globally. As the news consuming public, you have a role to play too. Hold your news organization to account and make sure they deliver balanced news that reflects the voices of all of society.
Jane Godia is a gender development and media expert who serves as the Africa Director of Women in News programme. WOMEN IN NEWS is WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media. www.womeninnews.org
The eve of International Women’s Day presents an opportunity for us to think about gender equality and the long and often frustrating march toward societies that are truly equal.
As media, we are uniquely placed to drive forward this reflection and discussion. But while focusing on the challenges of gender in society, we owe it to our staff and the communities we serve to also take a hard look at the obstacles within our own organisations.
I’m talking specifically about the scourge of sexual harassment. It’s likely to have happened in your newsroom. It has likely happened to a member of your team. It happens to all genders but is disproportionately directed at women. It happens in every industry, regardless of country, culture or context. This is because sexual harassment is driven by power, not sex. Wherever you have imbalances in power, you have individuals who are at risk of sexual harassment, and those who abuse this power.
I’ve been sexually harassed. The many journalists and editors, friends and family members who I have spoken to over the years on this subject have also been harassed. Yet it is still hard for leaders to recognize that this could be happening within their newsrooms and boardrooms. Why does it continue to be such a taboo?
Counting the cost of sexual harassment
Sexual harassment is, simply put, bad for business. It can harm your corporate reputation. It is a drain on the productivity of staff and managers. Maintaining and building trust in your brand is an absolute imperative for media organisations globally. If and when a case gets out of control or is badly handled – this can directly impact your bottom line.
It is for this reason that WAN-IFRA Women in News has put eliminating sexual harassment as a top priority in our work around gender equality in the media sector. This might seem at odds with the current climate where social interactions are fewer and remote work scenarios are in place in many newsrooms and businesses. But one only needs to tune into the news to know that the abuse of power, manifested as verbal, physical or online harassment, is alive and well.
Preliminary results from an ongoing Women in News research study into the issue of sexual harassment polling hundreds of journalists in Sub-Saharan Africa and Southeast Asia indicate that more than 1 in 3 women media professionals have been physically harassed, and just under 50% have been verbally harassed. Just over 15% of men in African newsrooms reported being physically harassed, and slightly less than 1 in 4 reports being verbally harassed. The numbers for male media professionals in Southeast Asia are slightly higher than a quarter on both forms of harassment.
The first step in confronting sexual harassment is to talk about it. We need to strip away the stigma and discomfort around having open conversations about what sexual harassment is and isn’t. Media managers, it is entirely in your power to create dynamics in your own teams that are free from sexual harassment.
Publishers and CEOs, you set the organisational culture in your media company.
By being vocal in recognising that it happens everywhere, and communicating to your employees that you will not tolerate sexual harassment of any kind, you send a powerful message to your teams, and publicly. With these actions, you will help us overcome the legacy of silence around this topic, and in doing so take an important first step to create media environments that truly embrace equality.
Melanie Walker is Executive Director of Media Development of the World Association of News Publishers (WAN-IFRA). She is a creator of Women in News, WAN-IFRA’s ground-breaking programme to increase women’s leadership and voices in the news. It does so by equipping women journalists and editors with the skills, strategies, and support networks to take on greater leadership positions within their media. www.womeninnews.org