University of Windsor Alumni Magazine
Friday, October 19, 2018 - 16:00

Power outages. Floods. And a career she adores.

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Virginia Nelder, second from left, at a training workshop on child-friendly legislative drafting with her colleagues at the Kenya Law Reform Commission.
Alumni Profile

Virginia Nelder LLB '06

The smiling face of Virginia Nelder LLB '06 freezes in the Skype window for the second time. 

Our interview has been interrupted once again by a power outage in her Nairobi, Kenya, apartment.

"Sorry about that," she apologizes when we make the connection once more. Fluctuations in electricity are another price she pays to live and work in the African metropolis of 6.5 million.

Nelder wouldn't have it any other way. The UWindsor law grad has served as a self-employed legal consultant for the Kenyan government since 2017. She spends her days labouring over policies and laws that protect the rights of the country's children and human rights, in general.

The seeds of Nelder's interest in law were actually sown during her youth. Originally from Manitoulin Island, she witnessed systemic discrimination against the indigenous population of Manitoulin Island. "I saw that early on. Women and girls, were impacted by it, in particular." 

Nelder earned her bachelor of art in psychology from the University of Guelph. During her undergrad, she volunteered with a lawyer, she says. "That experience helped me decide that I'm not a counselor. I'm an advocate."

She worked as a legal assistant in a law firm for five years, then applied to the University of Windsor law program as a mature student. "I appreciated the school's way of considering applicants," she says. "They appreciate and value experience beyond LSAT scores. It made the student population more rounded, which I found unique." 

The law school did something else that was unexpected: it allowed her to spend her final semester of third year abroad at the University of Amsterdam. "It's rare, but Francine Herlehy (assistant dean of student services) made it happen," says the alumna. "I really appreciated how supportive she was."

Studying abroad gave Nelder the opportunity to study international human rights. "The program was the university's master's program. I learned great things and made amazing contacts. I stayed and hung out in the Netherlands as long as I could."
 
After a "much-needed" year off, she articled with the same boutique, union-side labour law firm in Toronto where she'd worked as a legal assistant.

She then practised labour law with another firm where she was allowed "to do anything with a human rights element. That's where I really learned about litigating."

From there, Nelder went to work with the African Canadian Legal Clinic, which is part of the Ontario Legal Aid system "I wanted to pursue human rights law exclusively."

She spent three years litigating public interest issues surrounding anti-Black racism. "It was incredible. There were only three lawyers and my role was all of the litigation. So, if someone went to court-it was me."

The office was given test cases to work on. Many that came Nelder's way focused on racism in the criminal justice system. She acted as counsel in the recial profiling case of Ottawa teenager Chad Aiken who had claimed police harassment when he was pulled over while driving his mother's black Mercedez-Benz in 2005.

His girlfriend's audio recording of the event helped bring the case to the Ontario Human Rights Commission. The settlement reached, which saw the police force provide Aiken with a letter of apology, included an agreement with the Ottawa police to undertake a two-year study collecting statistics on the races of people they pull over. Nelder had issue with the fact that only young men in cars were being counted, noting that profiling can happen anywhere.

In 2011, 18-year-old Hussein Nur faced a three-year mandatory minimum sentence for possession of a firearm, the argument he had no previous record, was a student, worked part-time, and had a supportive family could have no impact on reducing the sentence.

Nur's lawyers filed  a Charter motion attacking the law’s constitutionality on various grounds. When the African Canadian Legal Clinic joined the case as an intervenor, Nelder represented the group. As co-counsel with external counsel Faisal Mirza, she wrote the argument that went to both the Ontario Court of Appeal and then the Supreme Court of Canada that the mandatory, minimum three-year sentence introduced in 2008, disproportionately affected young African Canadian males.

"Facts support the argument that young black men are racially profiled, bringing them into more frequent contact with the police," explains Nelder. "This starts the snowball effect of more young black men being found in the prison system."

Despite this, she says that "judges had no discretion to give a proportionate sentence below the minimum, to take into account the circumstances of the offender."

The ACLC's argument, along with Nur's argument and interventions by other public interest organizations, resulted in the Supreme Court of Canada 6-3 decision to strike down the law as unconstitutional in April 2015 because the mandatory nature of the sentence had the potential to be cruel and unusual punishment in violation of section 12 of the Charter.
 
Chief Justice Beverley McLachlin (who received an honorary doctor of civil laws from the University of Windsor in 2010) wrote for the majority: "Given the minimal blameworthiness of this offender and the absence of any harm or real risk of harm flowing from the conduct, a three-year sentence would be disproportionate." 

After three years with the clinic, Nelder earned her master's degree from Osgoode Law School. "I wanted to be able to practise internationally, and most European and African countries require lawyers to have a master's."

During the accelerated, one-year program, she learned about a project being conducted by the Canadian Bar Association in East Africa that focused on access to justice for children. 

She applied for the internship and arrived in Kenya in October 2015. After seven months, she returned to Canada to write her master's thesis and then returned to the continent and human rights work she'd grown to love.

Through the Canadian Bar Association and the Kenya Law Reform Commission, Nelder served on a National Task Force on Children's Matters to review the 17-year-old Children Act through the lens of new constitution Kenya promulgated in 2010. 

"The constitution has a robust Bill of Rights," she explains. "It's even better than the Canadian Charter." Old laws, including the Children Act, now needed to be reviewed through its lens.

For example, the old policy dealt with parental responsibility. Under it, only the mother was viewed as being responsible for a child. This meant not only did a father have no rights, he also could not be made to provide for his children. That is the sort of policy reform that the committee addressed.

Nelder's role in the Canadian Bar Association project ended in December 2016. She decided to stay on as an independent legal consultant. "The funny thing is that I never wanted to be my own boss or a business person. I've had to become my own manager."

Since then, the alumna has worked with the International Centre for Transitional Justice, an organization whose mandate is to pursue justice for victims of human rights violations in countries like Kenya that are shaped by widespread violence, polarized politics and fragile institutions.

"A Truth, Justice and Reconciliation Commission was established to look into past conflicts and human rights abuses committed by past governments." 

As a result of the TJRC recommendations, a fund was set up by the President to give compensation to victims and Nelder, as part of a committee set up by the Attorney General, wrote the law and policy framework to execute the reparations program. The law is in the hands of Kenya's attorney general awaiting parliamentary process.

Nelder is particularly passionate about her involvement with the National Task Force on Intersex Persons. "Intersex" is a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn't fit the typical definitions of female or male.

Two cases in the recent past have brought intersex issues to light in Kenya.

"First, an intersex person committed a crime, was subject to a body search, ridiculed and perhaps tortured," she says. "When he (the individual identifies as a male) brought his case forward claiming discrimination, the court said they'd never heard of such a thing and rejected his claim."

In another case, the parents of an intersex child did not register the birth because hospitals there do not have a mechanism to register a child who is not exclusively male or female. Frequently, the child is subjected to surgery that is not medically necessary so that a sex can be assigned to them.

Because the child's birth could not be registered, the child could not get a birth certificate or a national identity card, which is required for access to education, a passport and all other public services. Nelder explains that it is a crime not to register a birth but the parents went to court and argued that the lack of a birth certificate offends the child's right to legal recognition as a person.

She is serving as a legal researcher to the National Task Force on Intersex Persons, conducting a comparative review of similar cases across the world. "We're reviewing what other jurisdictions have done and what they say about intersex persons' rights. We've identified where Kenya's laws are discriminatory and need to be addressed."

The committee traveled throughout the country, interviewing intersex persons, their supporters, educators, health professionals, and the general public. The committee collected the information about the challenges intersex persons face and ways to sensitize the public in a final report that will be submitted to the Attorney General in November. From there, laws will need to be reformed.

Perhaps Nelder is most passionate about the Task Force on Review of the Mandatory Death Sentence of which she's a member appointed by the Attorney General.

In December 2017, the Kenyan mandatory death penalty was pronounced unconstitutional. "In Kenya, five crimes are punishable by the death penalty," she says. "The problem is, they were poorly defined."

For example, someone who robs an elderly woman by waving a stick in her face faced the same death sentence as someone who used a gun.

The Task Force was established to get rid of the mandatory death sentence, set up a system of parole, and set up a procedural framework for the 7,000 prisoners who will be entitled to a new sentencing hearing in light of the changes.

The mandatory death penalty has not been carried out since 1987. Instead, prisoners languished for years on death row, sometimes having their sentences commuted to "life in prison". 

"In Kenya, that literally means that you are going to be in jail for the rest of your life," says Nelder. "But judges have to be able to give a sentence that fits the crime."

That Task Force has until December 2018 to do its field work of conducting public consultations on the issue, including the revised laws drafted by Nelder, and file a final report with recommendations. 

"Under the new Constitution, the public has the right to participate in all decisions that affect the country. Every law and policy has to be subject to public consultation. It makes the process of creating laws longer and more complicated but more fair, accountable and transparent.

"The death penalty is a very emotive issue. People have strong opinions about it."

Nelder is now employed with the Kenya Law Reform Commission, working on the same sorts of projects.

As a human rights lawyer, involvement at such high levels in the process "can be very rewarding but very frustrating because it moves slowly," she says. 

"Before-my job was to take my government to court and hold it accountable for bad laws. Now, I hold the law itself accountable as it is written."

Nelder hopes to become a dual Kenyan citizen, which will take seven years. She currently has three years under her belt. 

"I like living here," she says "There are challenges. The power goes off. There are dangerous floods."

She smiles, "But I hate the cold in Canada. And the coldest it gets here is about 15C. Suffice to say, my relatives on Manitoulin Island do not let me complain about the weather."

Nelder admits she's fairly well off compared to many citizens of the African country, which she says would fit inside Canada about 17 times. "I have Wi-Fi and an amazing group of friends and colleagues. They are progressive and funny."

If only they'd stop trying to marry her off. "They tell me, 'We need to get you a Kenyan husband!"