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