WOMEN’S RIGHTS IN AFRICAN CONSTITUTIONS: A DESIDERATUM OR A MERE FEMINIST UTOPIAN AGENDA?

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WOMEN’S RIGHTS IN AFRICAN CONSTITUTIONS: A DESIDERATUM OR A MERE FEMINIST UTOPIAN AGENDA?

WOMEN’S RIGHTS IN AFRICAN CONSTITUTIONS: A DESIDERATUM OR A MERE FEMINIST UTOPIAN AGENDA?

 

CHAPTER ONE

INTRODUCTION

1.1.      National Human Rights Institutions (NHRIs)

Marginalized and vulnerable groups have always existed in societies. Such groups have always needed protectors of their rights. In democratic countries institutions have had to be established to ensure that the rights of these groups are protected. National Human Rights Institutions (NHRIs) are part of these institutions. NHRIs are important and vital as they ‗serve as independent bodies for the protection and promotion of human rights‘.1

The United Nations (UN) describes NHRIs as ‗a body established by a government through the constitution, or the law or decree, with the specific functions of promotion and protection of human rights‘.2 It is universally accepted that the benchmark of standards which all NHRIs ought to comply with are the Paris Principles3, adopted by the UN General Assembly in 1993.

The Paris Principles are a set of guidelines outlining minimum standards for NHRIs. These standards relate to the competence and responsibilities of the NHRIs; their composition; guarantees of their independence and pluralism; and the methods of their operation. The Paris Principles reinforce the principle that NHRIs play a significant role at national level ‗in promoting and protecting human rights and fundamental freedoms and in developing and enhancing public awareness of those rights and freedoms‘.4 It is universally accepted that unless an NHRI adheres with the Paris Principles it cannot be accredited as an NHRI and its effectiveness is brought into question. Of particular significance for this paper is the minimum standard impacting on the mandate and powers of NHRIs. It is important that NHRIs have a broad mandate and that its powers in relation to the promotion and protection of human rights are not limited. This is relevant when addressing the issue of the protection of women‘s rights.

  • J Matshekga ‘Toothless bulldogs? The human rights commissions of Uganda and South Africa: A comparative study of their independence’ (2002) 2 African Human Right Law Journal
  • R Murray The role of National Human Rights Institutions at the international and regional levels: an Africanexperience (2007) 3.
  • The Principles Relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights (Paris Principles), Resolution 18/134 of 20 December 1993.
  • Paris Principles (n 3 above).

As institutions that have recognition at national, regional and international level, NHRIs are in the best position to protect and promote women‘s rights in accordance with their overall purpose to protect human rights. NHRIs as semi-official institutions have the advantage of being able to have a relationship with government and non-governmental institutions (NGOs). Murray captures this as follows:

NHRIs are different from NGOs because they are presumed to occupy some semi-official position. On the other hand, an NHRI is presumed to be the watchdog of government and in order to do so, must not be in the pocket of government; it must ideally have integrity to step back and make decisions alone which may conflict with the views of the government.5

An NHRI is ‗an official body working on the protection of human rights…and are in a unique position to influence politicians and civil servants‘ and thus ‗guarantee a certain expertise…free from any politically partisan approach‘.6 If this component of an NHRI is handled well there can be optimum results for the protection of women‘s rights throughout Africa. NHRIs can influence greater and speedier implementation of legislation protecting women‘s rights through state agencies and work with non-state actors as well. Although this balancing act is not an easy task, it is one that NHRIs need to undertake with care and diligence. In carrying out this task NHRIs should be aware of ‗succumbing to the pressure‘7 of other actors in order to ensure that it is effective in its promotion and protection of human rights. Though NHRIs cannot attend to all social ills and there must be realistic expectations placed on them viewed in light of the political, economic and social context in which they were created,8 the importance in women‘s rights protection cannot be downplayed.

  • Murray (n 2 above) 6.
  • N 2 above.
  • N 2 above.
  • R Murray ‘National human rights institutions: criteria and factors for assessing their effectiveness’ (2007) 25/2

Netherlands Quarterly of Human Rights 191

1.2       Protection of women’s right

Human rights by their nature include the rights of women. Women have been marginalized for many years throughout the world based on their being women and through discrimination based on culture, patriarchal supremacy and at times religious traditions. Therefore there has been a need to try and eliminate every form of discrimination of women and to protect and promote women‘s rights. The Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) defines discrimination against women as:

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.9

On a regional level in Africa, the Protocol on the Rights of Women10 adopts a similar definition of discrimination against women as does CEDAW, save that the definition includes that discrimination against women includes ‗differential treatment based on sex‘.11

Despite progress and success in the protection women‘s rights, women still face issues which negatively impact on their human rights. Work that has been done by NHRIs and NGOs has led to many states enacting legislation and policies for the protection of women‘s rights. For example both Ghana and the Republic of South Africa (RSA) have legislation that criminalizes domestic violence against women, something that was once unheard of in Africa because domestic matters were considered private and not involving the state.

Due to the issues that still face African women in Ghana and RSA there should be no false sense of complacency in the protection of women‘s rights because of the progress made. Some of the issues facing women are those that have been in existence and have either gotten worse or evolved. As a result of these existing issues the protection of women‘s rights continues to be an area of great importance. The fact that there are still bodies set up at international,

  • Adopted by the UN General Assembly in Resolution 34/180 of December 1979.
  • Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Protocol on the

Rights of Women), adopted 11 July 2003.

  • Art 1(h) Protocol on the Rights of Women.

regional and national levels to try and address issues facing women is testament of the fact that there is still a need to protect women‘s rights. The UN Secretary-General confirms that:

Violence against women and girls continues unabated in every continent, country and culture. It takes a devastating toll on women‘s lives, on their families, and on society as a whole. Most societies prohibit such violence — yet the reality is that too often, it is covered up or tacitly condoned.12

Sadly despite positive achievements for the protection of the rights of African women they still face violations of their civil and political, and socio-economic rights.

Protection of women‘s civil and political rights in Ghana and RSA are still a challenge due to violations of the rights to life,13 human dignity14, equality15 and protection from slavery and forced labour.16 The protection of socio-economic rights is also a concern due to issues relating to land, poverty, lack of access to basic health care and education. Furthermore there is the challenge of HIV/AIDS in Africa17 where women are most vulnerable to infections due to rapes, unfaithfulness of their partners and/or the inability, in certain situations, to negotiate for safe sex.

A recent conference attended by the author in Ghana at the Women‘s Human Rights Policy Advocacy Forum Series (Ghana‘s Women Conference)18 an official from the Ghanaian NHRI – Commission on Human Rights and Administrative Justice (CHRAJ) confirmed that although work had been done, there was still a greater role for each stakeholder to play in the protection of women‘s rights in Ghana. These practices include female genital mutilation (FGM) and trokosi.

  • United Nations Development Fund for Women ‘Violence against women – facts and figures’ www.unifem.org/…/violence_against_women/facts_figures_violence_against_women_2007.pdf (accessed 16 August 2010).

 Sec 11 of the Constitution of the Republic of South Africa Act 108 of 1996 (South African Constitution) and art 13 of the Constitution of the Republic of Ghana (Amendment) Act 1992 (Ghanaian Constitution).

 

  • Sec 11 South African Constitution and art 15 Ghanaian Constitution.

 

  • Sec 9 South African Constitution and art 17 Ghanaian Constitution.

 

  • Art 16 Ghanaian Constitution.

 

  • Houda Mejri ‘Major Gains and Challenges for Women in Africa’, 8 March 2005

 

http://www.uneca.org/eca_resources/news/030805acgd_dna.htm (accessed 16 August 2010).

  • Held by the Ark Foundation of Ghana on 9 September 2010.

 

 

The challenges that continue to face women should not cause discouragement but should lead to a vigorous protection of women‘s rights. It is in this role that NHRIs are of grave importance. As promoters and protectors of human rights, NHRIs play a pivotal role in ensuring that a culture of human rights is practiced in a country.

 

1.3       Problem statement

Harmful cultural practices, GBV, rape, HIV/AIDS, stigmatization/discrimination are just some of the issues that women in Ghana and RSA continue to face. These practices and incidents continue to violate their rights and raise the concern that there should be greater protection of women‘s rights. Unfortunately, women continue to be vulnerable and marginalized and are ‗most often the ones whose human rights are violated‘.19 Women‘s rights require special attention, promotion and protection due to their vulnerability and marginalization. The effect of continued degradation and discrimination of women has an adverse affect on society at large.

Though it would be unrealistic to expect a complete eradication of the violation of women‘s rights, it is important to ascertain the relationship between the protection of these rights and the existence of NHRIs. The problem therefore is the fact that violations of women‘s rights continue in Ghana and RSA and need to be addressed.

1.4       Research questions

The main question that this paper seeks to answer is whether the NHRIs have fulfilled their mandates by the protection of the rights of women in Africa and the impact made. In order to get an answer to this question the following areas will be examined:

 

  • What are NHRIs and what the overall challenges faced by women in Africa and in particular women in Ghana and RSA?

 

  • What are the mandates, powers and functions of CHRAJ and South African Human Rights Commission (SAHRC)? Do the mandates equip them to protect women‘s rights? What is their responsiveness to gender within their own structures? What are the relationships between these NHRIs with a general

 

 

  • Speech by Hillary Clinton ‘Women’s rights are human rights’ on 5 September 1995 http://www.famousquotes.me.uk/speeches/Hillary-Clinton/ (accessed 5 July 2010).

human rights mandate and institutions specifically set up to promote the rights of women in both countries such as the Ministry of Women and Children‘s Affairs (MOWAC) in Ghana and the Commission on Gender Equality (CGE) in RSA?

  • What are the main human rights violations that are faced by women in Ghana and RSA? How have the mandates of these NHRIs enabled them to address these violations?
  • Comparative analysis of CHRAJ and the SAHRC. What are their achievements, differences and/or similarities?
  • What conclusions and recommendations can be drawn to assist in development of these NHRIs regarding the protection of women‘s rights?

These areas will be explored in light of the various instruments and agreements such as, the Paris Principles, constitutional provisions establishing the NHRIs of Ghana and RSA and their enabling legislation; international, regional and national instruments applicable to women‘s rights.

 

1.5       Significance of study

As previously stated above, women are still a marginalized and vulnerable group, and although significant progress has been made in the promotion of women‘s rights, the challenges regarding the promotion and protection of their rights are still a concern. It is the purpose of this work to raise the awareness that women‘s rights still require vigorous protection and that there remains a strong need for the participation of NHRIs in establishing this protection. It is hoped that this study will encourage NHRIs to play a more prominent role in the promotion and protection of women‘s rights and to assist NHRIs in identifying how this can be achieved. There remains the gap of effective implementation of international instruments on women‘s rights in such a manner that it impacts the people who need them most. This study seeks to show that there is still work to be done in this area, a work that NHRIs can impact in a positive way.

1.6       Defining terms

This paper will be limited in its scope of addressing women‘s rights and will include the girl child as she is regarded as a woman according to the Protocol on the Rights of Women.20 ‗Women‘s rights begin with the girl-child, who must be protected against discrimination, ill health, malnutrition, violence, FGM, forced marriage and exploitation‘.21 Due to various limitations the inclusion of the girl child will not be the inclusion of children‘s rights in its broad sense.

1.7       Literature survey

There is a vast amount of literature on NHRIs; their functions; roles that they ought to play in relation to human rights protection; how they can adhere to the Paris Principles and how to assess their effectiveness. However, there is not much mention of their role in the protection of women‘s rights. The relationship between NHRIs and women‘s rights promotion and protection is a vital one, because if used effectively, it can lead to a more expedient elimination of practices, acts and unfounded beliefs which violate women‘s rights. Admittedly, much has been written on women‘s rights and how to ensure their protection and promotion so as to ensure gender equality and respect. However, most literature has focused on these aforementioned areas, NHRIs and women‘s rights protection and promotion, separately.

Murray22 writes about the NHRIs and the roles that they ought to play on the international and the regional level of the African continent. In this work she comprehensively addresses what NHRIs are and the various forms that these institutions take; how the functions vary; the importance of states establishing NHRIs; the role of the Paris Principles in NHRIs; the importance of the characteristics of independence, accountability and legitimacy at the international and regional levels. The focus of the work is purely on NHRIs, the role of international standards and bodies such as the UN and regional body of the AU. In addressing these various issues, Murray‘s work explores the various NHRIs throughout Africa and highlights various characteristics of these institutions in the context of work. There is no particular attention given to the role of NHRIs in the protection of women‘s rights in Africn

  • Art 1(k) Protocol on the Rights of Women.
  • Houda Mejri (n17 above).
  • Murray (n 8 above) 9.

In another work, Murray addresses the importance of criteria and factors to assess the effectiveness of NHRIs. These factors include the capacity of an NHRI (its legal status; how it protects its independence; the type of political support that it received at its creation; the political context at the time of establishment and the effect that this has on NHRIs; the power of its mandate and financial resources); the performance of an NHRI and issues related to legitimacy. In this regard the angle of her work is focused on how NHRIs can use the Paris Principles to assess their effectiveness and whether the Paris Principles are indeed useful in this respect.23 The NHRIs which were considered in this work were more limited, namely being the Northern Ireland Human Rights Commission and the SAHRC. Where necessary to do so consideration was given to other NHRIs, such as CHRAJ. Once again the main focus is purely on NHRIs and issue of the protection of women‘s rights as integral component of NHRIs is overlooked.

Similarly, Peter24 also focuses on NHRIs, with a particular focus on those in Africa. He narrows down his work by exploring a sample of NHRIs, which are the NHRIs of RSA, Uganda and Tanzania. In exploring these NHRIs he draws on the factors of the establishment of the NHRI, its composition, mandate, the kind of work it does and the evaluation of that work. Peter indirectly brushes over women‘s rights protection when addressing, for example, cases that an NHRI has dealt with which involves women‘s rights.25 Important observations are made regarding the lessons and opportunities that can be gleaned from these NHRIs, such as the fact that NHRIs ‗can be very effective instruments‘26 in the protection and promotion of human rights on the African continent.

Writings on NHRIs also sometimes tend to focus on the issue of whether the NHRIs are truly independent. In looking at the African NHRIs of Uganda and RSA, Matshekga27 addresses this issue. The importance of the independence of an NHRI is explored and thereafter he embarks on a comparative analysis of the respective NHRIs in an attempt to measure whether they are truly independent by discussing the various issues that may affect their independence. No particular and significant focus is placed on women‘s rights protection

  • Murray (n 8 above) 189.
  • CM Peter ‘Human rights commissions in Africa – lessons and challenges’ in A Bösl & J Diescho (eds) Humanrights in Africa: Legal perspectives on their protection and promotion (2009) 351.
  • CM Peter ‘Human rights commissions in Africa – lessons and challenges’ in Bösl & Diescho (n 24 above) 356, footnote 42 mentions a case of violence against women linking culture.
  • CM Peter ‘Human rights commissions in Africa – lessons and challenges’ in Bösl & Diescho (n 24 above) 369.
  • Matshekga (n 1 above).

There is arguably a stronger role and stance that can be taken by NHRIs in the protection and promotion of women‘s rights. The mere fact that a violation of women‘s rights still occurs in Africa and even in long standing democracies such as Ghana and RSA, indicates that there is a gap relating to the implementation of the legal instruments that are placed to promote and protect women‘s rights. There is a need for a stronger stance to be taken by national human rights defenders such as NHRIs.

Most literature work that deals with NHRIs sometimes briefly mentions the importance of NHRIs being involved in women‘s rights protection and promotion. For example the International Council on Human Rights Policy, in addressing the importance of the educational and public awareness function of an NHRI acknowledges that ‗women‘s rights should be a special focus.‘28

At times the focus is on the assessment of laws and policies relating to gender equality and an assessment of institutions specifically established for the protection and promotion of gender equality. The work of the Unit for Gender Research in Law Unisa (University of South Africa)29 is an example in this regard. In this work part of the focus is placed on the national machinery for women in RSA and all the institutions that are part of the protection of gender quality. This relates to a relationship between institutions and the protection and promotion of women‘s rights. An acknowledgment is given that although the SAHRC is not necessarily part of the national machinery for women there is a need for it to be involved in the protection and promotion of women‘s rights. What this work does not address is the fact that over and above focusing on issues that indirectly affect women‘s rights, there should also be a proactive move towards ensuring an elimination of issues that continue to violate women‘s rights.

Writings on challenges that women in Ghana and RSA face do in certain instances mention that there needs to be an involvement of NHRIs in protecting women‘s rights. Bilyeu,30 when writing on the harmful cultural practice of trokosi in Ghana, acknowledges the importance of the relationship between NHRIs and the protection of women‘s rights by encouraging

  • International Council on Human Rights Policy Assessing the effectiveness of National Human Rights Institutions (2005) 20 http://books.google.com.gh/books?id=oZIKxtnb_n8C&pg=PA20&dq=NHRIs+%2B+women%27s+rights&hl=en&ei=9 6LBTKu0Kc3JswbC3cTaCA&sa=X&oi=book_result&ct=result&resnum=2&ved=0CCgQ6AEwAQ#v=onepage&q=NHRI s%20%2B%20women%27s%20rights&f=false (accessed 22 October 2010).
  • J Linnegar & K McGillivray (eds) Women and the law in South Africa empowerment through enlightment (1998).
  • AS Bilyeu ‘Trokosi – the practice of sexual slavery in Ghana: Religious and cultural freedom vs human rights’

(1998-1999) Indiana International and Comparative Law Review 458 http://heinonline.org (accessed 20 September 2010).

 

9

 

 

CHRAJ‘s involvement to eliminate the practice. At times the mention of the role of NHRIs in the struggle of challenges facing women is too brief as is found in the writing of Andrews31, which mentions that there is an NHRI in RSA, but does not explore the importance of the role that an NHRI can play in the protection of women‘s rights.

 

It is these gaps relating to the impact and importance of the active role of NHRIs in women‘s rights protection that this work seeks to address and portray.

1.8       Proposed methodology

This paper will rely primarily on desk top research, looking at relevant legal instruments, annual reports of the Commissions and any case law; electronic mail communication and interviews (where possible).

1.9       Proposed structure (overview of chapters)

The paper has five chapters. The first chapter is introductory in nature and addresses the overall challenges that women in Africa face and an introductory background into NHRIs.

The second chapter explores the mandates, powers and functions of CHRAJ and SAHRC; the ability of thesemandates to address the protection of women‘s rights; the responsiveness of these NHRIs to gender issues within its own structures and the relationship between the NHRIs and other state institutions that have the mandate to protect women‘s rights.

 

The third chapter discusses the human rights violations that are faced by women in Ghana and RSA and the protection of women‘s rights by the NHRIs in both countries.

 

The fourth chapter will look at the achievements, differences and/or similarities of CHRAJ and the SAHRC.

 

The final chapter will focus on a conclusion of the findings and recommendations that could assist these NHRIs in enhancing their contribution to the protection of women‘s rights.

  • PE Andrews ‘Violence against women in South Africa: The role of culture and the limitations of the law’ (1998-1999) Temple Political and Civil Rights Law Review 444 http://heinonline.org (accessed 20 September 2010).

 1.10    Delineations and limitation study

This research will not look at the broad aspect of NHRIs in its entirety. It will be limited to the mandate and the power of the NHRIs in relation to their protection of women‘s rights. Secondly, it will limit the investigation discussion of women‘s right to issues of harmful cultural practices, domestic violence and witchcraft in the Ghanaian context, and GBV and HIV/AIDS in the South African context.

1.11     Assumptions underlying study

The assumptions of this study are that:

  • Both the CHRAJ and SAHRC are independent NHRIs
  • Both Commissions still maintain their ―A‖ compliance status with the Paris Principles
  • Both NHRIs can protect women‘s rights

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