Dr Gabrielle Jamela Hosein
THE JUDGMENT of High Court judge Robin Mohammed in the application for redress between Tot Lampkin and the Attorney General is significant for activists, the police, the judiciary and state agencies.
It is especially historic for the approximately 11,000 women who face intimate partner physical and/or sexual violence each year, and those at risk of lethal violence.
Male-partner violence against women is the most common crime in the country.
Everyone is familiar with reports to police not being investigated and the challenges victims face in courts. The failures of the magistracy are so widespread that they have resulted in what is called "the vanishing complainant" or a victim who, over multiple disempowering experiences, falls out of the very system that failed to protect her in a timely and effective manner.
Ms Lampkin's daughter, Samantha Stacey, was tragically murdered by Kahriym Garcia in 2017, leaving behind a son who also witnessed and experienced violence. The judgment documented repeated state failures to protect Stacey and Ms Lampkin's family.
There was no further investigation or even statements taken after police themselves had to restrain Garcia, and poor police records of the incident. There was no police car to come when the family called during a later attack.
The magistrate with responsibility for the case also disbelieved Stacey's motive for seeking a protection order, failed to grant one when Garcia was willing to give an undertaking, and dismissed the matter when Stacey did not appear, believing the perpetrator's claim that things had been resolved.
Disciplinary proceedings recommended by the Police Complaints Authority (PCA) were dismissed by the Commissioner of Police.
Addressing this, the judgment imposed a positive obligation on the state to apply the law with due diligence and take effective action to prevent deprivation of the right to life, infringement of the right to equality before the law and protection of the law, and infringement of the right of respect for family life.
What does a positive obligation mean? A negative obligation refers to a state's responsibility to refrain from unreasonably and disproportionally interfering with individual enjoyment of rights. A positive obligation means that, by failing to protect an individual from domestic violence through taking necessary measures, the state can violate that individual's constitutional rights.
There is therefore an obligation to take action to prevent, protect and safeguard, while ensuring due process, in cases where authorities know of real and immediate risk to an individual's life. This requires developing and implementing effective legislation and law-enforcement measures; taking steps to protect an individual facing a clear and pressing risk to life from the criminal acts of another individual; investigating potential violations of human rights; and ensuring punishment of perpetrators and redress to victims.
Instead, the judgment found an 'irrational, unr
