The need for diversity and transformation of legal systems

‘The Politics of Judicial Diversity & Transformation - Canada; USA; Australia; South Africa; Israel; Colonial and Post-Colonial World and International Tribunals. Munyonzwe Hamalengwa. Africa in Canada Press; Toronto, ON, Canada. 2012. 546 pages.

Munyonzwe Hamalengwa has written a big book, anchored in a powerful theory. The theory is both simple and profound: white supremacy (the Western European mission and project to control the world’s resources through armed force and ideology) is embedded not only in their own institutions and practices but also in those of the countries they invaded and colonised.

Hamalengwa, a lawyer in Canada, has been practising law for over 20 years. It is not surprising that his particular focus is on the impact of white supremacy on the legal system, often called - incorrectly and misleadingly - the justice system. Hamalengwa’s thesis is that the legal system must be transformed to a justice system. The transformation requires that all agents of a justice system - police, Crown attorneys, jurors, tribunal members, judges and legislators - must reflect the people in the communities they serve.

This book is based on Hamalengwa’s own experience, backed up by impressively extensive research.

Two sentences in the book expose the reality that the legal system is not intended to produce justice, except by accident, and then largely to the benefit of the agents of the system and to rich and powerful users of the system. It is an injustice system for the victims of white supremacy (racism). The sentences are: “The powerful speak as often as they want. The powerless listen as best as they can”; [resulting in"> “perversion of democracy; not perfection”.

This is not a book with ideas in the clouds. It is worth reading to learn real-life examples. Hamalengwa describes instances of racial profiling by police. Research demonstrates the clear link between racial profiling - an unlawful practice - and disproportionately high rates of conviction and severity of sentencing of Black, Brown and Aboriginal people. The Commission on Systemic Racism in the Ontario Criminal Justice System reported on that link in its excellent report in1996.

He tells the disgraceful story of the experience of Corinne Sparks, a Black judge in Nova Scotia. Judge Sparks used her experience as a Black person to comment on racial profiling by police. The White agents of the status quo were so incensed by her comments that they said she was biased and appealed her decision all the way to the Supreme Court of Canada. Fortunately, the Supreme Court upheld Judge Sparks’ decision and commented that judges SHOULD use their knowledge of the community to help them arrive at their decisions.

Despite the Supreme Court’s declaration that justice is more likely to result when there is real diversity among judges, Hamalengwa demonstrates through other concrete examples that the Supreme Court, itself is not diverse and efforts must be made to achieve a transformation so that the highest court in the land is much more diverse.

Hamalengwa’s particular interest is in ensuring that judges are truly diverse in their life experiences. On the basis of his experience and research, he asserts that judicial objectivity and impartiality are myths; they do not exist in the real world. Therefore, judges must reflect the communities they serve. In Canada, that means that judges must not only be White Jewish and Christian men and, increasingly, women. They must be Aboriginal, Black and members of other racialised groups and religious groups. And agnostics and atheists.

Hamalengwa has done his part as an individual lawyer to attempt to make change. He has spoken on the issue. He has written letters to Prime Ministers about the need to consider a broader pool of potential appointees to the bench. He, however, asserts that the social transformation he advocates requires a number of differing strategies before the change will occur. I would add that there must not only be a variety of strategies; they must also be simultaneous and sustained. Hamalengwa is aware that making this change is a daunting task. I am encouraged, however, by the optimism that must drive his continuing passion to both be the change he seeks and to encourage others to make the change.

Based on my own research and experience as an anti-racism organizational change agent, people outside the legal system have a role to play in the change. Respected journalists in mainstream media can publish embarrassing stories about the lack of diversity among judges and what that means for the average person, not just criminals. Community activists can use social media to publish stories that demonstrate the huge gap between Canada’s reputation as a truly multicultural society and the real Canadian story. Faith leaders can use their pulpits to talk about the moral imperative for justice in the justice system.

This book is, unfortunately, often not an easy read. It often uses legal jargon, not easy to understand by the ordinary reader. It could have done with better proofreading; names are often incorrectly spelled, for example. I mention these apparently small criticisms because the errors detract from an otherwise impressive piece of work that should be a required text in law schools throughout the world as well as required reading for judges and those responsible for appointing them.

Nonetheless, it is worth making the effort to read this book. If enough people take up the challenge to transform the legal system to a justice system, Canada will be better for it. Canada owes thanks to Mr. Hamalengwa for continuing to try to make us live up to the reputation we have for justice; a reputation we are still a long way from deserving, particularly for Aboriginal people and women and men of colour.

($50.00. Order from [email protected] or A Different Booklist: 746 Bathurst Street, Toronto, Ontario, Canada M5S 2R6; 1-416-538-0889; Fax: 1-416-538-6914; [email protected].)

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* Arnold Minors is an organizational effectiveness consultant living in Toronto. He was a member of the Toronto Police Services Board and has experienced the legal system and its faults, up close and personal. He is completing his own book based on those experiences: ‘Whorehouses and Courthouses’.