Eureka! Do you think this Solution would work for you?

After many years of agonizing, organizing and cogitating, I think we now have a solution. Not the final solution, but a good enough solution to the problem of criminalization. There is this funny saying that “If you want the bank to give a loan, you got to prove you don’t need the loan in the first place.” Well if we want legal reform, we got to prove we do not care for it anymore.

And how do we do that? We shall do this through the concept of “Risk pooling.” In insurance, the term "risk pooling" refers to the spreading of financial risks evenly among a large number of contributors to the program. Insurance is the transference of risks from individuals or corporations who cannot bear a possible unplanned financial catastrophe to third parties, which can bear them easily -- at least in theory.

I know you are thinking – ah, there you go again – clearly still cogitating, but please read on, because this is the real game changer! Politics teaches us a number of things; one, Rights are claimed not given, and two, for a minority to gain its freedom, it must make it costly for the majority to retain the status quo. 

Now the human rights community and sexual minority groups in particular have done a great job “claiming” rights through numerous ways. These include, writing policy briefs, holding community engagement and education forums, and many other policy advocacy engagements. Others have gone to court seeking legal redress and constitutional interpretations on equality and non-discrimination. These initiatives are great and should continue.

But we may have forgotten the role of private sector in getting legal and social equity. In seeking to address the state, we may have failed to interrogate enough, whether the private sector can provide the ‘goods’ we seek. Can the profit motive ensure that we get to equality and non-discrimination? I really do not know, in fact I am weary of incentivizing criminalization because then there may be little motive to change the law, perhaps even an incentive to retain the law. 

In the short-run however we can explore securitizing  some of the social and legal risks we face as sexual minorities, in a way that makes it possible to ignore the existing constraining legal environment so that so as to live fulfilling productive lives.  The way to do this is by pooling together the social and legal costs and then transferring these costs to a third party – an insurer or contractor, who then guarantees to compensate for any financial and/or other damages that we may incur on account of living open, full productive lives as sexual minorities. 

This concept of risk pooling is based on a statistical concept that suggests that demand variability is reduced if one can aggregate demand between people, or across locations, or even across time. This concept that suggests that aggregation reduces variability and uncertainty. For example, if risk is aggregated across different people in the community, it becomes more likely that high demand from one person will be offset by low demand from another. 

The risks we face as sexual minorities mainly lie in the ever impending threat of jailing upon conviction, but this risk is preceded by other pre-conviction legal processes such as arrests, being held in remand houses, need for cash/free bonds and bails among others. But often successful acquittal is dependent on having superior legal counsel and other related services including top-notch research that moves with speed and surgical efficiency. 

Even other risks like loss of jobs, arbitrary evictions or even assaults, superior legal counsel can ensure that when one is victimised, they are compensated generously. It is likely that the existence of such a ‘risk pooled’ facility would act as a major deterrent to employers, landlords and other third parties tempted to victimise sexual minorities. Indeed Trade Unions should have taught us a lesson already on risk pooling – since their very existence is a demonstration of how employees ‘pooled’ the risk of possible victimisation by their employers and for such trade unions such as the KNUT, we know not even government can knock them over. 

So then how do we implement this idea?

To bring private market players on board, we have to prove that we have an “insurable interest.” A person has an insurable interest when loss-of or damage-to that thing would cause the person to suffer a financial loss or other kind of loss. So do the sexual minorities have an insurable interest?

I realize critics will say that what we are suggesting here is provision of public goods, through private means. People who pay taxes should not be forced to pay for security, protection from bodily harm or protection from liabilities arising from unlawful arrests/prosecution. True, but in situations of government failure, people do it all the time – we pay for private security guards, private medical schemes etc. even though we still pay taxes to finance police department and contribute to national health insurance fund – NHIF. 

Moreover, our insecurity and ‘productive uncertainty’ is occasioned by the government itself – because it creates or implements laws that unfairly target sexual minorities. This, not only makes sexual minorities vulnerable to arrests on assumption, presumption or suspicion of engaging in same-sex sexuality, they also become vulnerable to moral/religious/cultural/criminal vigilantes that visit violence, blackmail and extortion as well as social stigmatization. 

The question then becomes how we effectuate the ‘insurable interest.’ This should be subject to additional research. But I think a good starting point could be by looking at the example of liability insurance (also called Professional Liability Insurance – PLI). Originally, PLI came about as individuals or companies that faced a common peril, formed a group and created a self-help fund out of which to pay compensation should any member incur loss (in other words, a mutual insurance arrangement). 

Today, companies and individuals rely on established insurance companies, to offer protection against specified liabilities exchange of an annual/monthly premium. Liability insurance is designed to offer specific protection against third party insurance claims, i.e., payment is not typically made to the insured, but rather to someone suffering loss who is not a party to the insurance contract. 

In our case the cover would be for legal charges associated with defence in the event of prosecution, firing from the job, or bail/bond when in remanded. It could also have add-ons such unemployment benefits if one is fired etc. 

But execution would require research on:

1. What is the real insurance interest?
2. What are the attendant risks and how can they be quantified?
3. What sort of premiums would we be looking at assuming an insurable population of 1000, 10,000 or 100,000?
4. In the event no insurance company will take this cover, can we think of an alternative arrangement how this risk can be covered?

KFSE would be very happy to work with interested partners in exploring this approach.....drop us a line