Op-ed: Access to Justice in Jamaica Is Sparse for LGBT Citizens

Javed Jaghai's recent case in the Supreme Court of Jamaica fundamentally challenged the nation's antisodomy law. It asked the court to determine whether the 1864 law breached his rights to respect for and protection of his private home and family life, as guaranteed under the 2011 Charter of Fundamental Rights and Freedoms. Sadly, Javed had to withdraw from the case as a result of threats of harm to himself and his family.

"I am no longer willing to gamble with my life or the lives of my parents or siblings," he said.

This decision is understandable. As activists we know that there are dangers and risks involved in our work, yet sometimes discretion is the better part of valor. Javed, age 25, received death threats.

Despite this turn of events, we must nevertheless recognize that the mere act of deciding to challenge the law was courageous. That the challenge was brought by an individual as young as Javed gives cause to hope for a better future in Jamaica.

This case would have been instrumental in making progress toward equality for LGBT Jamaicans regardless of its outcome. A positive ruling would have been a direct win, while a negative ruling would likely have included a statement that the Jamaican Charter is meant to give all citizens equal rights, as was expressed in a related case decided earlier this year, Tomlinson v. TVJ et. al.

In striving toward equality for LGBT citizens, constitutional and legal challenges will help to transform the legal structure of Jamaican society. However, laws will not change hearts and minds overnight.

Many parties opposed to Javed's challenge have opted to view this withdrawal as a win. While there are some LGBT people who may be disheartened, it should instead serve as a reminder to us that we should continue to identify methods through which we can move toward achieving full quality of citizenship for LGBT Jamaicans.

Access to justice is a challenge for all Jamaicans, as Delroy Chuck noted in his 2006 article for the Jamaica Gleaner. He wrote that "accessing the machinery of justice to preserve and enforce one's rights is a maze and mystery of Jamaican governance. ... In today's Jamaica, the access to justice is a complex, inconvenient, costly and challenging task. No wonder the cries for justice reverberate loudly."

This cry is amplified in the LGBT community.

Attacks against LGBT persons are often not reported to police due to fear of being outed and fear of further violence. Seldom does an attack against an LGBT individual result in a criminal prosecution. There are numerous media reports and anecdotal recollections of LGBT persons being attacked or harassed including the following:

* An allegedly gay man was shot to death after being chased into a church in Kingston (2000).

* Four male students at Northern Caribbean University were reportedly beaten with wooden planks by other students who believed the victims were gay (2001).

* Police hurled insults at Victor Jarrett, who was sitting on a beach in Montego Bay, accusing him of being gay and watching men on the beach. A mob chased him into a nearby house there he was stoned, stabbed, and chopped to death (2004).

* Nokia Cowan jumped to his death off a pier in Kingston after reportedly being chased through the streets by a mob yelling homophobic slurs (2005).

* A male student was rescued by riot police from an antigay attack by fellow students at the University of West Indies campus (2006).

In many instances over the years, the police expressed the opinion that most violence against gay men was perpetrated by their jealous male lovers.

Consider for a moment the following cases. In June 2004, an arrest warrant was issued for Mark Myrie, popularly known as Buju Banton, an international reggae artist. He and a group of men were accused of forcing their way into a house and beating six men they accused of being gay. Buju was arrested and charged nearly 15 months later, in September 2005. He was released on $50,000 JMD bail and his travel documents were not confiscated. The case was later dismissed for lack of evidence.

In 2011, Maurice Tomlinson received three death threats because of his work as an LGBT rights activist. The police officer who recorded the first threat told Maurice that he hated gays. Despite a precautionary measure granted to Maurice by the Inter-American Commission on Human Rights, the Jamaican police took no active steps to protect his life. Now in 2014, Javed withdraws his constitutional challenge for safety concerns.

In light of the above instances, we must compare the realities of LGBT Jamaicans to the utopic view expressed in Tomlinson v. TVJ et. al that the Jamaican Charter of Fundamental Freedoms is meant to bestow equal rights upon all Jamaicans.

Though the institutions of justice are physically accessible, few LGBT Jamaicans have meaningful access to justice. By continuing to work together with the international community and organizations like Human Rights First we can begin to shape the national dialogue to promote the idea that equal protection of human rights should be afforded to all Jamaicans.

ANGELINE JACKSON is the executive director and cofounder of Quality of Citizenship Jamaica.