"THE issue of the University of the West Indies' (UWI's) termination of the short-term contract of Professor Brendan Bain is not at all about academic freedom. Those who say that it is are misinformed, with perhaps a few who are simply being opportunistic.
It is not even about whether or not the statement in Bain's court testimony was true or untrue. At the core, it is about a programme leader publicly undermining the very programme and principles he was mandated to support. By his words and action, he voluntarily aligned himself with, and gave endorsement to, a diametrically opposed, unacceptable message on
an issue of grave import for the UWI.
The essence of the harm, therefore, more so than the content of the words that Professor Bain spoke, is the fact that an authoritative leader of the UWI spoke with one voice with a litigant party whose purpose and objectives are in direct conflict with
the policies of Caribbean HIV/AIDS Regional Training (CHART) Network and the UWI.
This litigant clearly advocates the retention of a discriminatory regime that excludes persons from enjoying rights of equality on the basis of their sexual orientation. Consequently, the testimony instantly became associated with the UWI in deeply negative and enduring ways, placing deep question marks on the UWI's integrity and on its public commitment, not only to progressive notions of
public health and HIV programming, but more fundamentally, to non-discrimination, equal opportunity, justice, and human rights.
It is a fact that the elimination of discrimination on the ground of sexual orientation is a key ingredient of the UWI's HIV programming, which Professor Bain had the honour to lead for many years and about which he testified. Anti-discrimination training is a vital part of CHART's own programme, as conceded in the expert testimony.
Significantly, too, the mandate of PEPFAR and the Global Fund for AIDS, which funds CHART, is "to develop programmes aimed at reducing HIV-related stigma". The mission of UWI's HIV programming, HARP, as well as CHART, from the very beginning, has co-existed with a human rights agenda, a central plank of which is the need to abolish discriminatory laws on sexual orientation.
This is incontestable and no one associated with it can ever claim to have been unaware of this. I can speak authoritatively to this as one who has been intimately involved with the work of the programme from its inception. Further, as an HIV and Law consultant who has been actively engaged for over 20 years in policy development across the region for governments, international organisations and NGOs, including on important issues of human rights and justice, I understand why this must be so.
Having participated in several seminars, workshops and sessions on HIV with Professor Bain, I have witnessed first-hand that in each and every one, an important aspect of the discussions and recommendations has been the need to eliminate discrimination and stigma as a result of sexual identity, which co-exist with HIV concerns, making treatment more difficult.
This enlightened position has certainly become part of the UWI's core values. It is demonstrable, therefore, that UWI's HIV programming itself is closely aligned to and even dependent on, an egalitarian world view which rejects discrimination on grounds of sexual difference.
Professor Bain's long-standing and excellent work on HIV and public health is without question. Ironically, it is precisely because of his high profile that his remarks and chosen association are so damaging to UWI's reputation and credibility.
The retention of Professor Bain in such circumstances threatened to destroy much of the hard-fought gains and trust that UWI has won in the fight against the scourge of HIV and discrimination in general and seriously undermined its own institutional interests. In this context, such testimony cannot be viewed as a mere personal viewpoint, isolated and insulated from CHART and the UWI's policy position.
Indeed, typically, the very reason authorities like Professor Bain are called upon to speak is because of their professional capacity, which is inextricably linked with the institution, the UWI. Thus, Professor Bain cannot separate his personal views from these comments that have come to represent the institution that is the UWI, which is why they are viewed as harmful and irresponsible.
There is indeed room within an academic institution for individual intellectuals to pontificate about what they view as acceptable inequalities in our societies based on sexual identity, or even race, or religion, or any such thing and supposed scientific bases that support those views. However, the academic institution must draw the line when that individual opinion, intentionally or not, becomes associated with the view of the institution itself.
While intellectual freedom is to be protected and encouraged, the UWI has a duty to ensure that on issues where it holds itself up as perpetuating a particular policy for the benefit of the community, the persons who are chosen to take the lead on the matter are demonstrably in accord with that policy.
I cannot think, for example, that UWI could ever appoint an academic known to be a racist, or supporting racist ideology, to head departments devoted to race studies or even history departments, or a person demonstrating that he or she believes or asserts that women are unequal and their place is in the home, to head the Gender Department!
There have been several 'scientific' studies that claim that blacks are lazy and intellectually inferior, or that women are the 'weaker sex'. Does this mean that in the name of academic freedom, the UWI should compromise its core principles of equality and allow its very integrity to be hijacked? I think not.
Professor Bain, as head of CHART, was in a fiduciary relationship, where one is placed in a position of great trust, which in turn, induces greater responsibility and duties of care. Professor Bain, and by extension, the UWI, with this testimony, violated these fiduciary duties owed to persons living with HIV, the LGBT community, and to the many who look to it for protection and guiding principle.
The bottom line is this: Having given this testimony, it would be impossible for this community, the very constituency that he is supposed to serve, ever to trust Professor Bain again. Thus, the UWI had no choice, after careful review, but to change the leadership of CHART.
Professor Rose-Marie Belle Antoine is dean of the Faculty of Law at the UWI St Augustine campus in Trinidad.
The Pan Caribbean Partnership against HIV/AIDS (PANCAP) affirms that Professor Brendan Bain's testimony in the Orozco v. A.G. Belize (2012) case is not consistent with the stated goals of PANCAP to reduce stigma and eliminate discrimination and is in dissonance with PANCAP’s ongoing work to remove discriminatory laws and affirm human rights.
PANCAP is of the view that on principle, Prof Bain’s action was not compatible with a leadership position in PANCAP, although the Partnership is inclusive and members are free to have their individual views and beliefs. In adopting an active position of opposing the decriminalization of anal sex between two consenting male adults in private, Prof. Bain has undermined the public health and human rights goals of PANCAP. This view was communicated to Professor Bain during the Fifteenth Meeting of the Priority Areas Coordinating Committee (PACC), a technical committee of the PANCAP Executive Board, which was held via teleconference on 15 January 2014. Professor Bain subsequently resigned as a member of the PACC on 14 March 2014. PANCAP recognizes Prof. Bain’s significant contribution to the HIV response in the Caribbean including treatment and training and to the work of the Partnership and its governance bodies.
Our region is at a critical point where further progress towards an AIDS-free Caribbean is premised on mobilizing a strong and coordinated multi-sectoral effort to remove the legal, social and cultural obstacles that prevent universal access to a wide range of comprehensive and high quality health services. Currently, 11 CARICOM states have laws which criminalize consensual same-sex between adults in private. The Global Commission on HIV and the Law has found that countries that criminalize same-sex sexual activity have higher HIV prevalence rates among men who have sex with men (MSM) than countries that do not; that criminalizing HIV transmission harms HIV prevention and treatment; and that guaranteeing access to reproductive health services can help reduce HIV risk. Specific to the Caribbean, stigma is named as the main reason for the lack of attention to marginalised groups in the prevention efforts, and their general lack of access to HIV-related services, and stigmatising and discriminatory legal and policy measures are common in the regional legal systems. A 2012 Lancet study estimates MSM prevalence in the Caribbean to be the highest in the world at 25.4%. This is in comparison to 1.0% in the general population. The UNAIDS Modes of Transmission (MOT) modeling tool estimates that 32% of new cases in Jamaica and 33% in Dominican Republic occur among MSM.
In response to the compelling epidemiological evidence that key populations continue to be vulnerable to HIV, PANCAP in collaboration with UNAIDS, is mounting a programme of activities under the theme,Justice for All. The aim of the programme is to promote activities consistent with the United Nations Universal Declaration of Human Rights to which all countries are committed. More specifically, it is intended to achieve one of the goals of the United Nations High Level Meeting Political Declaration (2011) to eliminate stigma and discrimination against people living with HIV by 2015 and to uphold the human rights and dignity of all. Phase 1 of the programme involved a series of national consultations in Guyana, Grenada, Jamaica, Suriname and St Kitts & Nevis and a Caribbean Consultation on Justice for All and Human Rights Agenda involving Parliamentarians, Faith, Youth, Private Sector and Civil Society Leaders. Outcomes of the Caribbean consultation are a PANCAP Justice for All Roadmap 2014-2018 and a PANCAP Declaration: Getting to Zero Discrimination through Justice for All. The Declaration will be presented to the Heads of Government for endorsement at their Conference in July 2014. PANCAP will adopt both a bottom up and top down approach to implementing the Roadmap in collaboration with its national, regional and donor partners.
PANCAP is convinced that HIV-related stigma and discrimination which contribute to the persistence of AIDS in our Region can be reduced and eliminated through collaborative programmes, partnerships and policies supported by governments, private sectors, faith-based organisations, non-governmental orgainsations, youth and our other social, regional and international partners. In this regard PANCAP views this current situation as an opportunity for the region to engage in a dispassionate, thoughtful and holistic discussion that accommodates differing views and promotes understanding and inclusion.
PANCAP is a Caribbean regional partnership of governments, regional civil society organizations, regional institutions and organisations, bilateral and multilateral agencies and contributing donor partners which was established on 14 February 2001. PANCAP provides a structured and unified approach to the Caribbean’s response to the HIV epidemic, coordinates the response through the Caribbean Regional Strategic Framework on HIV and AIDS to maximize efficient use of resources and increase impact, mobilises resources and build capacity of partners.
Peace and tolerance