WOMEN’S RIGHTS IN AFRICAN CONSTITUTIONS: A DESIDERATUM OR A MERE FEMINIST UTOPIAN AGENDA?
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Background of the Study
It would appear correct to say that the subject of women’s rights is one of the most contentious and seemingly nebulous aspects of human rights jurisprudence.[1]The struggle for the recognition and enforcement of women’s rights spans through centuries and global borders; yet a lot of nations of the world still have reservations about the subject while others have not ratified some of the core Conventions.[2]The issue of women’s rights has grown amidst thistles and thorns and a lot of international, regional, sub-regional and national instruments have been developed through the years. These instruments severally place specific obligations on State parties to take legislative and other measures to ensure that women’s rights are protected and enforced.[3]Africa is one region of the world whose slow development has attracted a lot of concerns from the United Nations and other developed countries due to her peculiar pedigree.[4]Although Africa may be seen as a late comer in the formation of a regional instrument for the protection of human rights,[5] she has a reputation for having a unique Charter which addresses individual rights, people’s rights among other features that are not in other instruments and above all for having a charter that reflects African values.[6]The need to specifically enumerate and ensure the protection of women’s rights led to the adoption of a special Protocol to the African Charter on women’s rights.[7]A notable feature of the Women’s Protocol is that in Article 2(1)(a) parties are mandated inter alia to “include in their national constitutions and other legislative measures if not already done, the principle of equality between women and men and ensure its effective application.” There has been series of agitations from women about the need to catalogue the rights of women in Constitutions of African countries.[8]Some African Countries have actually taken commendable steps in enumerating some women’s rights in their constitutions while others are yet to do so.[9] The failure of some countries to articulate the rights of women in their constitutions and the heavy reservations raised by some African Countries on the rights of women actually call for a rethink on the chances of attaining the philosophy behind the rights of women in Africa.[10]Beyond the idea of integrating the rights of women in constitutions is the question of acceptability of some of the rights to the African people and women themselves. Thus, the question of universalism of human rights and the question that some rights are culturally relative still struggle for ascendancy.[11] Irrespective of the conceptions, theories and idiosyncrasies, one fact remains sacrosanct and widely accepted, which is, that the cries of women in Africa for their rights are quite alarming[12] and several efforts have been made to address these issues[13], even though the efforts may not be commensurate with the cries. The challenges may be daunting but there are still a lot of prospects.[14] While a lot of approaches have been adopted by the stakeholders, there is still a yawning gap between dreams of realization of women’s rights and the fulfillment. It is therefore expedient to balance the cries for women’s rights with the concerns of other stakeholders in order to arrive at a concrete set of rights that will stand the test of time.[15]Other core stake holders, such as the African Union, National governments, religious leaders, traditional rulers and family heads need to be enlightened about agreeable core rights of women in Africa and such rights should form part of the Constitutions of African states.[16]
1.2 Statement of Research Problem
In spite of the general Constitutional provisions on freedom from discrimination on basis of sex and gender equality, among other rights; there is a recurrent clamour, especially from women, for the need to specifically enumerate and provide for the enforcement of the rights of women in African National Constitutions.[17] The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa requires state parties to include in national constitutions, make legislations and take appropriate measures for the full realization of women’s rights stated in the protocol.[18]Regrettably, women’s rights are yet to be enumerated in Constitutions of most African Countries, neither are there specific provisions for the enforcement of these rights in the Constitutions or specific National legislations. Writings on women’s rights have not separated issues of women’s rights from the general feminist agenda; which creates reluctance from other stakeholders, to balance women’s rights with the rights and concerns of other stakeholders and to address peculiar legal and factual circumstances of the African women. The constitution is seen as the grundnorm in most African States and rights that are not enumerated in constitutions are not usually given sufficient respect.[19]
Thus, the central statement in this thesis is that, given the peculiar problems of women in Africa, enumeration and provision for enforcement of their rights in constitutions of African States is a necessity, but it must be balanced with the concerns of other stakeholders.
1.3 Research Questions
i. What is the rationale behind differentiating Women’s Rights from general provisions on human rights available to everyone?
ii. What are the obstacles to the constitutional enumeration and provision for enforcement of women’s rights in Africa?
iii.. How can the African Union, National Governments, Women organizations and other stakeholders solve the legal comatose involving women’s rights without twisting the neck of other beneficiaries of human rights?
iv. Are women the architects or contributories of their own misfortune or complete victims of masculine idiosyncrasies and high handedness?
[1] The Beijing Declaration of 1995 stated inter alia that, “…that the human rights of women and of the girl child are an inalienable, integral and indivisible part of universal human rights.” See UN Women, “The United Nations Fourth World Conference on Women,” available at<http//www.un.org/ womenwatch/daw/Beijing/platform/declar.htm> accessed 3 February 2012. There are clear areas where there is unanimity about rights which are peculiar to women, the violation of which has been held to be contrary to natural justice. For example female genital mutilation has been condemned as violating women’s right to human dignity and such acts are seen as crimes. See P. Chesler, “Female Genital Mutilation in the West: A Creeping Crime against Humanity” available at http://www.breitbart.com/national-security/2014/11/19/female-genital-mutilation-in-the-west/ accessed 11 December 2014. In other instances even women themselves see the clamour for recognition of some women issues as Human rights as being irresponsible or reprehensible. See J. Hurley, Women’s Rights (Greenhaven Press, USA 2002) p.152 where it was stated among others ,that the Women’s Liberation Movement is a major cause of divorce and other societal problems and that some demand by women are incompatible with the demands of marriage and motherhood.
[2] As at date the United States of America has not ratified the Convention on Elimination of all Forms of Discrimination Against Women (CEDAW), which was adopted since 1979 while some countries expressed reservations in respect of several rights in CEDAW. See L. Lowen, “Why won’t the U.S. Ratify CEDAW,” available
athttp://womensissues.about.com/od/feminismequalrights/a/CEDAWUS.htm,accessed February 3, 2013; See also D. Thalif, “Gender: UN. Women’s Treaty weakened by slew of reservations” Available at http://www.ips.org/mdg3/gender-un-womens-treaty-weakened-by-slew-of-reservations/
accessed3 February 2013.
[3] International efforts to guarantee women’s rights began, for most intents and purposes, with the passage of the United Nations Charter in 1945(Hereafter called UN Charter). Article 55(C) of that Charter provides for equal protection of rights. In 1946 the United Nations (UN) recognized the need to specifically examine the status of women since this was gradually becoming a global concern. Thus, the Commission on the Status of Women was established as other Commissions of ECOSOC. The adoption of the Universal Declaration of Human Rights (UDHR) in 1948 was like the big Cap that crowned the global protection of the rights of women. Sequel to the adoption of the Universal Declaration of Human Rights several other specific instruments and actions developed to give the rights of women a more secure footing globally.
[4] It has been stated that Africa is one of the Continents that did not have a good history of recognition of natural rights as part of their legal framework before the advent of modern human rights regime. See J. Donelly, Universal Human rights in theory and practice (Cornel University Press, USA 2003) pp.78-79. Some scholars hold the view that women in Africa suffer more than women in other parts of the world. See for example K. Ebeku, “New Hope for African Women: Overview of Africa’s Protocol on Women’s Right,” available athttp://www.njas.helsinki.fi/pdf-files/vol13num3/ebeku.pdf accessed February 8, 2013.
[5] The European Convention on Human Rights was in 1950, American Convention on Human rights, 1969 while the African Charter on Human and Peoples’ Rights was in 1981.See -- “The Major Regional Human Rights Instruments and the Mechanisms for their Implementation” available athttp://www.ohchr.org/Documents/Publications/training9chapter3en.pdf accessed February 3, 2013.
[6] The Preamble to the African Charter On Human and people’s Rights ,Adopted in Nairobi in June 1981(Hereafter called “African Charter”) states in part as follows: “Taking into consideration the virtues of their historical tradition and the values of African Civilization which should inspire and characterize their reflection on the concept of human and people’s rights.”
[7] See The Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, Adopted in Maputo in July 2003(Hereafter called “Women’s Protocol”). The women’s Protocol expressed a lot of concerns in its preamble about the continuous deprivation of the rights of women in Africa in spite of the existence of many international instruments and the need to ensure the full promotion and realization of the rights of women.
[8] E.g. M. Robinson, “Securing Women’s Rights through the Constitution”, Keynote address at the Zimbabwe High Level Dialogue on Women’s Empowerment in the Political and Economic Arena April 26, 2010. Available at http://www.realizingrights.org/pdf/Securing_Womens_Rights_in_the_Constitution-Zimbabwe.pdf accessed February 8, 2013
[9] The Constitution of Kenya of 2010 consists of a lot of Articles which protect the rights of women. Example, Articles 26 and 27. See also the Constitution of Rwanda adopted in 2003 and the impressive array of rights given to women. See generally, E. Powley, “Rwanda: Women Hold up Half the Parliament” Available at http://www.idea.int/publications/wip2/upload/Rwanda.pdf accessed February 8, 2013 where the writers examine Constitutional provisions in Rwanda that enhance Women’s rights.
[10] Commenting on Article 16 of CEDAW which deals with bundles of rights in respect of marriage, it has been observed that, “Acceptance of the Universality of international norms is a particularly significant issue with respect to Article 16. A large proportion of the reservations to the Convention pertain to this Article, the general rationale being that it conflicts with personal status laws, which states parties will not readily challenge or alter. “See M. A. Freeman, “The Human rights of Women in Family: Issues and Recommendations for implementation of the Women’s Convention” in J. Peters and A. Wolper (eds), Women’s Rights, Human Rights (Routledge, New York 1995) 158.
[11] Some rights that have been canvassed for women are still the subject of debate .For example the Right to decide whether to have children and if so the number and spacing of such children (See Article 14 of Women’s Protocol) is generally not seen as one which should be the exclusive preserve of a woman. The right to Abort a pregnancy is still a thorny issue which is not only seen as sacrilegious in some African communities but as a right which can only be exercised in concert with the woman’s husband. The gay rights, widowhood rights among others. See generally, J. Donelly, Universal Human rights in theory and practice (Cornel University Press, USA 2003), pp.89-103 where the writer makes an extensive discussion of the theory of Universalism and Cultural Relativism.
[12] The ordeal suffered by women in the area of customary and religious practices which inhibit their rights is alarming. Practices such as female genital mutilation, refusal of females to own property or inherit their late father’s property, forced marriages, child marriage among others have formed the basis of criticisms and litigation. See for example the case of Mojekwu v Mojekwu (1997) 7 NWLR (Pt.512) p.283; Suberu v Sumonu (1957) 2 FSC 31; Dow v AG Botswana (1991) LRC (Const.) 574, Ephraim v Patory&Anor(1990) LRC (Const.) 757.
[13] The efforts have been multifaceted ,they range from Judicial decisions from African Courts, Resolutions and efforts of the African Union and her agencies, Campaigns by Non-Governmental Organizations (NGOs) to mention a few. For instance the African Union has established a Court to address cases on Human Rights. See Protocol to the African Charter on the African Human Rights Court (Human Rights Court), adopted in June 1998. A Resolution to integrate the African Human Rights and the African Court of justice was adopted by the African Union (AU) in July 2004. See S. B. Keetharuth, “Major African legal instruments” available at www.kas.de/.../Human_Rights_in_Africa/7_Keetharuth.pdf (Accessed February 12, 2013). The Court apart from making room for enforcement of human rights makes provision for adequate gender representation in the election of Judges. See Article 14 (3) of the Protocol to the African Charter on African Court on Human and Peoples Rights, 2004.
[14] The gradual implementation of some of the resolutions of the African union on Women’s rights as evidenced in the representation of Women as half of the Judges of the African Court; the election of Women into Core positions in National Governments like in Liberia where a Woman was elected as President for the first time, the increasing boldness of National Courts to declare some violations of the rights of women are all indicative of the fact that there are prospects.
[15] S. Rowbotham, A Century of Women, The History of Women in Britain and United States (Penguin Group, New York 1997) at p.575 admitted that there are divergent perspectives on handling Women’s rights but advocated at p.580 a ‘balance between individual and social rights’ as a good guide to resolving the issue.
[16] For women’s rights to have the desired impact all the stakeholders must put their hands on deck towards ensuring that a proper legal framework is not only developed for the women but that it has comprehensive mechanisms for implementation in the Constitutions of African states.
[17] For example, Constitution of the Federal Republic of Nigeria, 1999 (Amended in 2011), Section 42 provides generally for the right to freedom from discrimination on grounds of sex, Section 222 (a) requires Political parties to be open to every citizen irrespective of sex as a condition to functioning in Nigeria. No specific provision is made in the said constitution for women’s rights simplicita. See B. Mabandla, “Women in South Africa and the Constitution Making Process”, in Julie Peters and A. Wolper (eds), Women’s Rights: Human Rights (Routledge, New York 1995) 67-71 where the struggle by the women of South Africa for the recognition of some rights of women in the South African Constitution is discussed.
[18] Women’s Protocol (n7) Articles 2 (1) (a) and 26.
[19] See for example the Nigerian case of Abacha v Fawehinmi(2000) 6NWLR (Pt.660) 228 where there were concerns about the Rights in African Charter on Human and People’s Right (which was domesticated as a Nigerian legislation) and the enforcement of such rights since they are not listed among the fundamental rights in the Constitution of Nigeria.
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