Women’s Rights in Africa: An Examination of African Human Rights Systems in the Context of CEDAW and the Universalism Versus Cultural Relativism Debate

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Jurisdiction	South Africa
Date	16 August 2019
Pages	149-176
Citation	(2016) 3(1) Journal of Comparative Law in Africa 149
Published date	16 August 2019
Author	Bukola Faturoti

WOMEN’S RIGHTS IN AFRICA:

AN EXAMINATION OF AFRICAN HUMAN

RIGHTS SYSTEMS IN THE CONTEXT OF

CEDAW AND THE UNIVERSALISM VERSUS

CULTURAL RELATIVISM DEBATE

BUKOLA FATUROTI*

Senior lecturer, Law School, Aberdeen Business School, Robert Gordon University

Many African women suffer discrimination on the basis of their gender and other factors

like religion, customs, age and marital status. They continue to be victims of harmful

practices whose perpetrators are never held to account because the practices have their roots

in cultural values and traditions. Any attempt to initiate a change in human rights — in

particular,women’s rights — is countered with the argument of the imposition of Western

culture on other regions of the world. This argument is based on the premise that human

rights should be fashioned along the lines of the cultural beliefs of the people and should

never be expected to be universal. By comparing certain provisions of the Convention on

the Elimination of All Forms of Discrimination against Womenwith a number of African

human rights instruments, this article investigates the inf‌luence of cultural relativism — if

any — on the formulation of women’srights under African human rights regimes.

Beaucoup de femmes africaines souffrent de discrimination sur la base de leur sexe et

d’autres facteurs comme la religion, l’âge, la coutume et l’état matrimonial. Ils continuent

d’être victimes de pratiques néfastes dont les auteurs ne sont jamais demandés d’en rendre

des comptes parce-que les pratiques sont bien ancrées dans la société. Toute tentative

d’initier un changement dans les droits de l’homme, et en particulier celle des femmes est

contré par l’argument de l’imposition de la culture occidentale sur les autres régions du

monde. L’argument est basé sur les lieux que les droits humains doivent être façonnés

selon les croyances culturelles du peuple et ne devraient jamais être retenus comme

universels. En comparant certaines dispositions de la Convention sur l’élimination de la

discrimination au regard des femmes et des systèmes des droits africains de l’homme, cet

article examine l’inf‌luence du relativisme culturel, le cas échéant, dans la formulation des

droits des femmes sous les régimes africains des droitsde l’homme.

Keywords: women’s rights,African human rights, CEDAW, culture, relativism,

universalism

Introduction

Behind the human rights discourse of various nations is often the accusation

of the imposition of Western values on other parts of the world.

Some

writers have concluded that the concept of human rights is a Western

The author would like to thank Prof Rebecca Wallace and other anonymous

reviewers for their invaluable comments and feedback. All remaining errors are those

of the author. Email:b.faturoti@rgu.ac.uk.

Advisory Council on International Affairs (ACIA) (1998) Universality of Human

Rights and Cultural Diversity 10. Available from: .aiv-advies.nl/

ContentSuite/upload/aiv/doc/AIV_04_Eng_titel.pdf> (accessed on 16 May 2014).

149

(2016) 3(1) Journal of Comparative Law in Africa 149

construct, and therefore does not apply to all nations.

Shivji, for example,

contends that the enforcement of human rights has resulted in the perpetua-

tion of class differences.

Furthermore, the Universal Declaration of Human

Rights (UDHR) is regarded by some as universal only in name and not in

content. This assertion is based on the argument that there was little African

representation during its drafting,

while both the International Covenant on

Civil and Political Rights and the International Covenant on Economic,

Social, and Cultural Rights, which were drawn up in 1966, are a product of

an imbalance of power between the negotiators.

An historical assessment of

human rights conventions shows that these conventions are archetypes of

Western values.

When the latter part of the twentieth century and the early

twenty-f‌irst century witnessed the participation of African countries and

other developing nations in the making of various international conventions,

it was anticipated that those who oppose Western dominance would no

longer be the objects of history, but the actual makers of history and policy.

To assess the response of developing countries to alleged Western

dominance, this article explores the relationship between the Convention on

the Elimination of all Forms of Discriminations against Women (CEDAW)

and selected human rights systems in Africa as they affect women’s rights.

African human rights systems exhibit a complex intersection of laws and

organisations in Africa. Kufuor divides human rights systems into three broad

groups. The f‌irst is a set of human rights which are found in specif‌ic charters,

protocols, and human rights tribunals’ decisions and declarations. The second

set consists of sub-regional, economically focused treaties that do not directly

relate to the protection of human rights and the decisions of tribunals

established under these treaties. Finally, the third set is municipal court

decisions applying the provisions of the treaties.

The essence of international human rights law is to ensure uniformity in

the protection of human rights.

Thus, regional human rights systems are

decried as heresy in the realisation of universal human rights because they

tend to embody the specif‌ic social and cultural characteristics of a particular

See Pollis, Adamantia (1979) ‘Human Rights: AWestern Construct with Lim-

ited Applicability’in Pollis, Adamantia & Schwab, Peter (eds) Human Rights: Cultural

and Ideological Perspectives cited in Kufuor, KO (2010) The African Human Rights

System: Origin and Evolution 1–18.

Shivji, IG (1989) The Concept of Human Rights in Africa 3.

Only Liberia, Egypt and Ethiopia participated in the drafting of the UDHR.

Ogunbanjo, Martin Bimbo ‘Human Rights in Africa in the new Global Order:

A Dilemma?’African Studies Association of Australasia and the Pacif‌ic 2003 Confer-

ence Proceedings — Africa on a Global Stage.Available from:

assets/Ogunbanjo.pdf> (accessed on 16 December 2014).

Ibid.

Kufuor, KO (2010) The African Human Rights System: Origin and Evolution.

Universal Declaration of Human Rights GA Res. 217A 3rd Session U.N. Doc

A/810 (1948).

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016150

region.

By their nature, regional human rights systems have the tendency to

expand the gulf between the rights espoused by one state and those espoused

by others.

Does this regionalisation of human rights systems constitute a

threat to the international protection of human rights? In other words, to

what extent are African human rights systems in consonance with interna-

tional human rights law, in relation to the protection of women’s rights?

Through analysis of the relevant normative aspects of African-authored

human rights instruments, this article investigates whether human rights

systems in Africa are designed to perpetuate the relativism argument, since

African nationalists are part of the global campaign against Western domi-

nance and neo-imperialism. The article reviews the human rights

universalism-relativism debate and the quest for a convergence between the

two sides in the context of human rights policies and instruments. The article

suggests that it would be useful to explore a meeting point between

relativism and universalism in order to eliminate the divergent viewpoints

and suspicions surrounding the notion of human rights as a Western

construct.

The position on the human rights of women has been one of the areas in

which the relativism-universalism debate is prominent. Using Africa as an

example, many women are victims of inequalities which are justif‌ied on the

grounds of cultural values and traditions, which are embodied in uncodif‌ied

customary law. There is no doubt that cultural traditions in some instances

have complemented constitutional rights guarantees; however, they have

also constituted a clog in the full enjoyment of human rights in other areas.

This article therefore examines African regional and sub-regional instru-

ments relating to the protection of women’s human rights by comparing

these instruments to the provisions contained in CEDAW. It concludes that,

irrespective of vociferous arguments for cultural relativism, African human

rights systems have always been designed to be in tandem with other

international conventions protecting women’s rights. This work builds on

the existing literature examining the status of women’s rights in Africa by

extending its coverage to sub-regional instruments.

Cultural relativism versus the universality of human rights: a quest

for consensus

Contentions about the content and applicability of human rights instru-

ments represent another aspect of the universalism versus cultural relativism

debate. These debates have evolved in the context of contrasts between

North and South or liberal and conservative systems.

Relativists were led

Robbins, M (2005) ‘Powerful States, Customary Law and the Erosion of

Human Rights through Regional Enforcement’ 35 California Western Law Journal

275–302.

Ibid.

See, for a detailed philosophical and theoretical discussion, An-Na’im, AA

(1990) ‘Problems of Universal Cultural Legitimacy for Human Rights’ inAn-Na’im,

WOMEN’SRIGHTS IN AFRICA 151

by the American AnthropologistAssociation, which argued in 1947 against

the UDHR’s applicability before its adoption. The Association contended

that the UDHR should have contained a statement acknowledging the rights

of men to live in terms of their own traditions

because failure to do so

amounts to an excessive imposition of Western values on other cultures.

This conclusion was rejected at the World Conference on Human Rights in

1993, as the delegates believed that the universal nature of human rights was

beyond question.

Human rights, delegates concluded, are the birth right of

all human beings. Delegates noted that different cultures of the world share

many similarities and they all uphold fundamental principles and values.

They stated that ‘all human rights are universal, indivisible, interdependent

and interrelated’.

Regardless of their political, economic and cultural

systems, governments have a responsibility to satisfy international obligations

in accordance with international standards, including human rights obliga-

tions.

It is submitted that a denial of the universality of human rights is also a

denial of human rights. Arguments based on cultural relativism should not be

used to avoid or undermine human rights obligations. More importantly,

cultural relativism should not be invoked to justify any act which infringes or

denies others their human rights and fundamental freedoms.

What is cultural relativism? Cultural relativism asserts that human values

vary according to different cultural perspectives.

The presumption here is

that rights and other social practices, values and moral rules are culturally

determined. In other words, relativism rests on the notion of moral

autonomy and communal self-determination. Culture is the principal source

of the validity of a moral rule or right.

A society’s norms and values are

dictated by its culture.

A homogenous society encompasses, by way of its

sub-cultural groups, much heterogeneous behaviour.

For example, the

British culture consists of English, Northern Irish, Scottish and Welsh

AA & Deng, F (eds) Human Rights in Africa: Cross-CulturalPerspectives; Donnelly, Jack

(1984) ‘Cultural Relativism and Universal Human Rights’ 6(4) Human Rights Quar-

terly; Donnelly, Jack (2000) Universal Human Rights in Theory and Practice (2 ed).

Advisory Council on International Affairs (ACIA) (1998) Universality of Human

Rights and Cultural Diversity 10.

Ibid.

World Conference on Human Rights ‘Vienna Declaration and Action

Programme’adopted in Viennaon 25 June 1993 Part I para. 1.

Ibid.

Beyani, Chaloka (1994) ‘Towards a More Effective Guarantee of Women’s

Rights in the African Human Rights System’ in Cook, R (ed) Human Rights of

Women:National and International Perspectives 285.

Donnelly, Jack (1984) ‘Cultural Relativism and Universal Human Rights’6(4)

Human Rights Quarterly 400.

Ibid 401.

Ibid.

Advisory Council on International Affairs (ACIA) (1998) Universality of Human

Rights and Cultural Diversity 9.

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016152

cultures. As these sub-cultural groups interact, the cultural differences

become more pronounced.

Scholars in support of universalism contend that culture is irrelevant in the

determination of human rights.

Louis Henkin argued that ‘to call them

human suggests that they are universal: they are the due of every human

being in every human society. They do not differ with geography or history,

culture or ideology, political or economic system, or stage of develop-

ment.’

In other words, everyone is entitled to human rights simply because

one is human and the concept of human rights loses its value when not all

people can lay equal claim to it. Donnelly concludes that cultural relativism is

the argument of oppressors who want to perpetuate an unjust dynasty.

This

author is of the view that the idea that there should be a contextual cultural

approach is amorphous and prone to abuse. It will not only undermine the

effectiveness of international law and the international system of human

rights, but will also legitimise the violation of human rights; and act as a clog

for constructive and genuine criticism of human right abuses.

The counterclaim of non-Western relativist scholars is that the prevalent

human rights standard does not ref‌lect their particular moral and cultural

values.

Using the UDHR as an example, African relativists claim that the

three independent African countries, namely Liberia, Egypt and Ethiopia,

which participated in the drafting, could not be said to have represented the

interests of the entire African continent.

Zvogbo contends that if the

documents were to be re-drafted today, the content would be substantially

different.

First, the Western conception of human rights views the

fundamental unit of society as that of the individual, in contrast to the

communalism cherished in Africa. This Western notion of individualism

hinders economic development and ongoing nation building in many

African countries. However, Zvogbo’s assertion does not provide guidance

on the extent to which derogation from individual rights should be

permitted to allow community rights. Second, the Western idea that the

primary basis of securing human existence in society is through rights and not

duties is not sustainable in Africa and other similar cultures. For example, in

the African context, one owes one’s community a variety of duties and these

Ibid.

Robbins, M (2005) ‘Powerful States, Customary Law and the Erosion of

Human Rights through Regional Enforcement’ 35 California Western Law Journal

275.

Henkin, Louis (1981) ‘Rights: Here and There’81 Columbia Law Review 1582.

Donnelly, Jack (1984) ‘Cultural Relativism and Universal Human Rights’6(4)

Human Rights Quarterly 400.

Banda, Fareda (2003) ‘Global Standards: Local Values’17 International Journal of

Law,Policy and the Family 1–27.

Ibid.

Zvogbo, E (1990) ‘A Third World View’ in Kommers, DP & Loescher, GD

(eds) Human Rights and American Foreign Policy 90–106.

WOMEN’SRIGHTS IN AFRICA 153

duties take precedence over one’s individual rights.

The importance of

these ideals is to strengthen community ties and social cohesion by ensuring

patriotism on the part of the individual, who sees society as above him or

herself and to strengthen the principle of reciprocity, which compels the

community to safeguard the interests of the individual in return. Third, the

primary method of securing these rights is through a process of legalism,

where rights are claimed and adjudicated upon as against reconciliation,

repentance and education.

An examination of the norms governing legal, political and social

structures in pre-colonial African societies should not be misunderstood. The

examination portrays an African concept of rights which supports group

solidarity, communal well-being and a suff‌icient level of individualism.

The Akan and Akamba societies are an example of this conception of human

rights. The power over life and death is reserved for a few elders, who can

only exercise it after an elaborate judicial procedure with appeals from one

court to another; this power can be only invoked in murder and manslaugh-

ter cases.

The recent trend in the human rights discourse notes that the universalism

versus cultural relativism debate has been exhausted. Asserting one position

over the other is misleading; instead, a common ground should be explored.

According to Sousa Santos:

‘[t]he debate is an inherently false debate . . . All cultures are relative, but

cultural relativism as a philosophical posture is wrong. All cultures aspire to

ultimate concerns and values, but cultural universalism as a philosophical

posture is wrong.’

An objective examination shows that underlying the diversity of cultures are

certain universally accepted values.

It is advantageous to pursue a global

concept of human rights, which is inclusive of all values of other cultures if

human rights are to play an important role in the new world order. Scholars

should neither gloss over the challenges of cultural relativism to the concept

of the universality of human rights, nor accord prominence to it, but instead

adopt a constructive approach that recognises the problems and addresses

M’Baye,Keba (1987) ‘Organisation de L’Unité Africaine’ in Vasal, Karel Les

Dimensions International de Droits de L’Homme651.

Shina, S (1981) ‘Human Rights: ANon-Western View Point’Archiv für Recht

und Sozialphilosophie vol. 67 at 89–90, cited in Ibhawo, B (1999) Between Culture

and Constitution: The Cultural Legitimacy of Human Rights in Nigeria.

Ibhawo, B (1999) Between Culture and Constitution: The Cultural Legitimacy of

Human Rights in Nigeria 20.

WaMutua, Makau (1995) ‘The Banjul Charter and the African Cultural Finger-

print: An Evaluation of the Language of Duties’ 35(2) Virginia Journal of International

Law 339.

Sousa Santos, B (2006) ‘Towardsa Multicultural Conception of Human Rights’

in Isa, GF & De Feyter, Koen International Protectionof Human Rights: Achievements and

Challenges 58.

Ibhawo, B (1999) Between Culture and Constitution: The Cultural Legitimacy of

Human Rights in Nigeria 22.

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016154

them in the context of different cultural traditions and across cultural

boundaries.

Failure to do so will diminish the prospects of developing truly

universal standards of human rights and effective mechanisms for achieving

them.

While relativism is prone to legitimise human rights violations,

universalism can also produce undue formalism or naïve idealism.

The Bangkok Declaration of the Asian countries,

while acknowledging

that human rights are universal in nature, states that universality can only be

valuable where regional peculiarities and various historical, cultural and

religious backgrounds are considered.

The Declaration appears to suggest

that relativism is achievable within universality.A point which is not clear is

how to accept cultural tolerance, without condoning the violation of

women’s rights. Will a normative consensus not negate the universality of

human rights? Possibly the quest for congruence is a lofty aspiration.

Universalists, for example Beyani,

suggest a radical approach in which

cultural norms are sieved through a human rights f‌ilter. Where cultural

norms fail this simple compatibility test, they must be jettisoned. Such a

radical approach revisits the concept of the supremacy of universalism and

this cannot be ignored. The problem with this suggestion is that where it

does not enjoy the support of the people, it might be diff‌icult to effect such

changes. Stewart

prefers an evolutionary approach that allows cultures to

evolve and change with time. In other words, the processes of acculturation

and globalisation will phase out discriminatory cultural trends. People’s views

and beliefs will change as they interact with other cultures and perspectives.

However, although true, an evolutionary approach is an oversimplif‌ication

of the discourse because it does not take into consideration the imbalance of

power within a society. Global events show that cultural institutions are

deeply rooted and determine the time and pace of evolution, unless

forcefully overthrown. In instances where the advocates of change do not

have the necessary power and are unable to muster support both externally

and internally, the evolutionary process becomes stif‌led.

In conclusion, there is a danger in adopting an all-or-nothing approach

regarding the relevance of culture to human rights, be it universalist or

relativist. Rather ‘an intermediating relevance for both international law

(standards, procedures, and implementation) and cultural hermeneutics’

An-Na’im, AA (1992) ‘Introduction’ in An-Na’im AA (ed) Human Rights in

Cross-Cultural Perspectives: AQuest for Consensus 1–15.

Ibid.

Bangkok Declaration, cited by Cerna, C (1994) ‘Universality of Human Rights

and Cultural Diversity: Implementation of Human Rights in Different Socio-

Cultural Contexts’16 Human Rights Quarterly 740, 741.

Ibid.

Beyani, Chaloka (1994) ‘Towards a More Effective Guarantee of Women’s

Rights in the African Human Rights System’ in Cook, R (ed) Human Rights of

Women:National and International Perspectives 285.

Stewart, A (1993) ‘The Dilemmas of Law in Women’s Development’ inAdel-

man, S & Paliwala, A(eds) Law and Crisis in the Third World 266.

WOMEN’SRIGHTS IN AFRICA 155

might be the solution.

Falk highlights the symbiotic relationship between

the two. He explains that:

‘[W]ithout mediating international human rights through the web of cultural

circumstances, it will be impossible for human rights norms and practices to

take deep hold in non western societies except to the partial, often distort-

ing....Atthesame time, without cultural practice and tradition being tested

against the norms of international human rights there will be a regressive

disposition towards the retention of cruel, brutal, and exploitative aspects of

religious and cultural tradition.’

An-Na’im suggests that Falk’s mediation will be realisable through an

internal cultural discourse and a cross-cultural dialogue.

The cross-cultural

approach will demystify the underlying causes of the continuing divergence

between the theory and practice of human rights. Human rights cannot be

seen as truly universal unless they are conceived and articulated within the

widest possible range of cultural traditions. The success of this approach can

only be attained when it is mutual between cultures and sensitive to the needs

of internal authenticity and legitimacy. However, Howard

is doubtful of

the success of a cross-cultural dialogue and argues that human rights are a

modern concept now universally applicable in principle. Human rights is a

fashion borne out of the social evolution of the entire world toward state

societies and to embark on a voyage of all known human cultures for

consensus on rights is to confuse the concepts of rights, dignity and justice.

To round off this section of the article, it is submitted that the debate

between universalism versus cultural relativism of human rights will always

be present. The issue might become even stronger in the context of

continuing globalisation and the growing clamour for self-determination

along cultural lines. World issues such as civil wars, terrorism and religious

intolerance are manifestations of new dimensions to the debate. Each nation

or cultural group must purge itself of rigid formalism and allow the f‌lexibility

needed for reciprocal concessions. While there were arguably ‘good old days’

there is also a better tomorrow. Nevertheless, cultural relativism should never

be a justif‌ication for oppression or arbitrary rule in any form, but rather an

expression of a genuine right to self-determination.

Faulk, Richard (1992) ‘Cultural Foundations for the International Protection of

Human Rights’ 44–64 at 46 in An-Na’im,AA (ed) Human Rights in Cross-Cultural

Perspectives: A Quest for Consensus.

Ibid 45.

An-Na’im, AA (1992) ‘Toward a Cross-Cultural Approach to Def‌ining Inter-

national Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrad-

ing Treatment or Punishment’ in An-Na’im, AA (ed) Human Rights in Cross-Cultural

Perspectives: A Quest for Consensus 19–43.

Howard, RE (1986) ‘Dignity, Community, and Human Rights’in An-Na’im,

AA (ed) Human Rights in Cross-Cultural Perspectives: A Quest for Consensus 81–102.

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016156

Convention on the Elimination of all Forms of Discrimination

against Women (CEDAW)

Prior to the emergence of CEDAW, there were international attempts to

address the inequality and discrimination meted out to women. CEDAWis a

landmark treaty in the struggle for women’s rights

as it represents a

departure from the fragmentary approach of earlier instruments

protecting

women’s rights. CEDAW entered into force on 3 September 1981 upon

ratif‌ication by the required 20 member states.

As of June 2013, CEDAW

has been aff‌irmed by 187 states parties, making it the second most widely

ratif‌ied human rights treaty.

Written in a gender-neutral language, CEDAW has 30 articles contained

in six uneven parts. Part I consists of arts 1–6, which contain the def‌initions

on discrimination and other fundamental edicts, states’ obligations,

provision on temporary special measures and a provision on the eradication

of traff‌icking and exploitation of women. Part II focuses on equal participa-

tion of women in political and public life at both international and national

levels, as well as on equal treatment in nationality law. Protection for the

interests of rural women is contained in Part III in arts 10–14, which

advocate measures that will ensure equality between the sexes in economic,

social and cultural matters. Part IV provides for legal equality and in art 16

addresses issues pertaining to marriage and family relations. Part V, which

outlines the Convention mechanisms, also establishes a twenty-three-

member committee and a reporting system. Finally, Part VI contains

provisions for revisions, entry into force and very importantly, for reserva-

Maboreke, M (1991) ‘Women and Law in Post-Independence Zimbabwe’ in

Bazilli, S (ed) Putting Womenon the Agenda 227.

The Convention on the Political Rights of Women,1952, The Convention on

the Nationality of Married Women, 1957 and The Convention on Consent to

Marriage, Minimum Age for Marriage and Registration of Marriage, 1964 have been

criticised for being too narrow in scope.

For a detailed history, see g/womenwatch/daw/cedaw/

history.htm> (accessed on 10 September 2013).

African countries that have ratif‌ied CEDAW are Algeria, Angola, Benin,

Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, Chad, Côte d’Ivoire,

Democratic Republic of the Congo, Djibouti, Egypt, Equatorial Guinea, Eritrea,

Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia,

Libya, Malawi, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Niger,

Nigeria, Rwanda, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, South

Africa, Swaziland, Togo,Zambia and Zimbabwe.

CEDAWart 2.

WOMEN’SRIGHTS IN AFRICA 157

tions.

Koskinen describes CEDAW as the International Bill of Women’s

Rights.

CEDAW is built on the twin pillars of non-discrimination and equality.

Article 1 of CEDAW provides a very broad def‌inition of discrimination.

This def‌inition covers discrimination in the form of distinctions, exclusions

and restrictions; it prohibits all guises of discrimination in all areas of life,

either as an act of the state or by a private person or private organisation. The

def‌inition outlaws both the de jure and de facto discrimination that may

cause imbalances between the treatment of men and women in society.

Under the Convention, the CEDAW Committee explains that differential

treatments on the basis of gender may constitute direct discrimination if it

results in impairing or nullifying women’s rights.

The Committee adds

further that similar treatments which can impair or nullify women’s rights

may lead to indirect discrimination.

Indirect discrimination could arise

from a neutral law, policy or programme in relation to men and women,

which fails to address pre-existing inequalities.

Discrimination against

women will only be eradicated where both men and women are treated

equally.

However, no def‌inition is given to the term ‘equality’. This

non-inclusion in the def‌inition has led to a myriad of conclusions which are

at cross-purposes with the aim of CEDAW.

It is not clear whether the

focus should actually be on ‘equity’ instead of on ‘equality’. Some scholars

regard the terms as being synonymous, while others contest that equity is

actually a mechanism through which equality can be achieved.

Gómez

Gómez, writing for the Pan American Health Organization, argues that

inequality does not necessarily entail inequity. She concludes that ‘while

equality is an empirical concept, equity represents an ethical imperative

associated with the principles of social justice and human rights’.

Both

I regard the allowance for reservation as part of efforts in mediating between

international standards and local values as suggested by Falk and An-Na’im, though

this may not have been directly envisaged when it was drafted. This reservation is not

a blank cheque because it has to be compatible with the ‘object and purpose’ of

CEDAW. Many states parties who entered reservations to particular provisions

invoked various conf‌licts between their traditions and national laws.

Koskinen, Paivi (2005) ‘To Own or to Be Owned: Women and Land Rights

in Rural Tanzania’ in Scheinin, Martin & Suksi, Markku (eds) Human Rights in

Development Yearbook: Empowerment, Participation, Accountability and Non-Discrimination:

Operationalising a Human Rights-Based Approach to Development.

UN Doc CEDAW/C/GC/28,[16], General Recommendation 28.

Ibid.

UN Doc A/59/38, annex I [4], General Recommendation 25.

Jones, Karen L (2013) ‘Women’s National League: Does CEDAW go far

enough?’13 International Sports Law Journal 35–44.

International Women’s Rights Action Watch Asia Pacif‌ic. CEDAW. Avail-

able from:

(accessed on 23 October 2013).

Gómez Gómez, Elsa (2004) ‘Equity, Gender and Health: Myths and Realities’

2–3 Women’s Health Journal 54.

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016158

Facio and Morgan, on the other hand, disagree with Gómez Gómez’s

conclusions.

They are of the view that while both equity and equality focus

on social justice, equity is never a concept associated with human rights. In

addition, they maintain that equity is an unrealistic social goal, which

governments put forward when they have failed, while equality is a human

rights obligation, to which they must comply.

Simply put, the principle of

equality is pivotal to human rights and human rights without equality would

be meaningless.

A close reading of the CEDAW text reveals three types of equality: formal

equality, substantive equality and transformative equality.

Formal equality

focuses on the content of the laws and practices and their even-handed

application. This is de jure equality, which demands that women and men

should be treated the same. For example, states parties are required under art

7(a) to adopt measures that protect women from being disfranchised, either

as voters or aspirants to political off‌ices, while art 9 requires states parties to

guarantee women the right to, by choice, change, acquire and retain their

nationality without any fear of being rendered stateless by that decision.

facto or substantive equality requires states parties to ensure that women are

given equal opportunities and to create an enabling environment which

allows them to achieve equal results. Substantive equality addresses the effects

of laws, policies and practices and aims to alleviate any inherent disadvantages

a particular group may experience. Biological, social and cultural differences

between men and women must be taken into account. For example, arts 3

and 24 respectively enjoin states parties to explore all possible measures to

ensure the full development and advancement of women and full realisations

of rights provided for in CEDAW.

Under these articles, governments must

design and implement strategies which address the problems of under-

representation of women and redistribution of resources between men and

women. Lastly, the dismantling of systemic inequalities and eradication of

gender-based stereotypes is core to transformative equality.

This form of

equality imposes dual obligations on the states parties. First, there must be a

review of institutions and societal structures which are being used to

perpetuate inequality. Second, there must be modif‌ications and transforma-

tion of norms, prejudices and stereotypes. Accordingly, under article 2(f ),

states parties are required to take appropriate measures to modify or abolish

laws, regulations, customs and practices that discriminate against women.

Facio, Alda & Morgan, Martha (2009) ‘Equity or Equality for Women? Under-

standing CEDAW’s Equality Principles 60 Alabama Law Review 1133.

Ibid.

Cusack, Simone & Lusey, Lisa (2013) ‘CEDAW and the Rights to Non-

discrimination and Equality’14 Melbourne Journal of International Law 1–39.

Byrnes, Andrew (2012) ‘Article 1’in Freeman, Marsha A, Chinkin, Christine &

Rudolf, Beate (eds) The UN Convention on the Elimination of All Forms of Discrimination

against Women:A Commentary 51, 52.

UN Doc A/59/38, annex I [10], General Recommendation 25.

UN Doc CEDAW/C/57/D/34/2011(2014), Communication No. 34/2011.

WOMEN’SRIGHTS IN AFRICA 159

This requires states parties to adopt measures ‘towards a real transformation of

opportunities, institutions and systems so that they are no longer grounded in

historically determined male paradigms of power and life patterns’.

On discriminatory cultural practices, art 2 obligates states parties: ‘to take

all appropriate measures,

including legislation, to modify or abolish existing

laws, regulations, customs and practices that constitute discrimination against

women’.

The Convention acknowledges that in reality outlawing discrim-

inatory cultural or religious practices requires more than law. So the phrase

‘all appropriate measures’ means all reasonable means and efforts. These

efforts may entail ‘invading’ the private sphere of life because this is where

these violations thrive. This will require proactive action from state parties.

For the elimination of all stereotypic attitudes that prejudice women, the

states parties have the onus ‘to modify the social and cultural patterns of

conduct of men and women, with a view to achieving the elimination of

prejudices and customs and all other practices which are based on the idea of

the inferiority or the superiority of either of the sexes or on stereotyped roles

for men and women’.

Articles 2 and 5 are a catalyst of women’s rights’

conceptions as they aim for a holistic transformation of society. A state party

violates its obligations under these articles where it either fails to address

gender inequalities or perpetuates them through legislation, judicial pro-

nouncements or customs.

It is, however, not surprising that the radical approach of CEDAW is also

the obstacle to its implementation

as many states parties have invoked the

art 28(2) provision that allows reservations to express their relativistic views,

provided they are not incompatible with the purpose of the Convention

to express their relativistic views. For example, Egypt entered reservations to

arts 2, 9 and 16, claiming that Islamic law has given women their necessary

rights, even before ratif‌ication of CEDAW.

Lesotho, citing cultural

Ibid.

Emphasis supplied.

CEDAWart 2(f).

Ibid art 5.

Hossain, Sara (1994) ‘Equality in the Home: Women’s Rights and Personal

Laws in South Asia’ in Cook, Rebecca J (ed) Human Rights of Women: National and

International Perspectives 465–94.

The Sub-Commission on the Prevention of Discrimination and Protection of

Minorities expressed its concern that ‘[c]ertain reservations to the Convention, in

particular, those in relation to the adoption of policies and institutional measures to

implement the terms of the convention (art 2), political and public life (art 7),

discrimination in the f‌ield of employment (art 11), equality of men and women

before the law (art 15) and marriage and family relations (art 16), might diminish the

international legal norms and legitimize its violations. ..’. See UN Report of the

Sub-Commission on the Prevention of Discrimination and Protection of Minorities

on its forty-third session, Geneva, 5-30 Aug UN Doc E/CN4 Sub2/1991/65 of 24

Oct 1991 145–46.

Tomasevski, K (1995) Women and Human Rights 124, citing the Report of the

Committee on Elimination of Discrimination against Women,Vol. II Third Session,

UN Doc A/39/45 (1984) paras 215–16.

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016160

reasons, said it would not take any legislative measures under CEDAW

which were incompatible with its Constitution.

A similar issue to that of

reservation is the idea of making a treaty subject to national law. National

laws change, because of positive or negative trends in governance; this

jurisprudential restructuring makes it diff‌icult to ascertain a state’s obliga-

tions.

The 1999 Optional Protocol to CEDAW

permits individuals or organi-

sations acting on their behalf to bring complaints to its Committee.

The

Committee is vested with the power under the Protocol to launch an inquiry

if it has reason(s) to believe that grave systematic violations of women’s rights

exist within a state.

The inquiry processes can only be invoked where the

membership of a state party still subsists.

African human rights systems

Compared to their counterparts in most other parts of the world, African

women suffer discrimination and violation of human rights, which are

justif‌ied by cultural and religious practices.

Many women are victims of

female circumcision, oppressive puberty rites, widowhood rites, forced

marriages and the erosion of basic rights. African women’s access to human

rights was captured in this way: ‘If human rights begin with breakfast, a great

majority of Africa’s residents go very hungry indeed.And within this group

women and children suffer most.’

The cultural relativism versus universalism debate, as pointed out by

Banda, is centred on the cultural justif‌ications found in personal laws for

discriminating against women.

This part of the article explores whether

cultural relativism engineers a departure by African-created human rights

documents from international human rights standards. In other words, does

the argument relating to the imposition of Western values inf‌luence the

African continent in culturally structuring its human rights documents?

Beyani provides a guidance note on the complementary role of regional

instruments. Regional instruments, he posits, are an essential part of the

international system of human rights and the latter should not be seen as

cedaw/opt/0> (accessed on 13 July 2013).

Clark, B (1991) ‘Vienna Convention Reservations Regime and the Conven-

tion on Discrimination AgainstWomen’ 85 American Journal of International Law 281.

Convention on the Eliminations of All Forms of Discrimination against Women,

Optional Protocol. UNGA Res. 54/4, 6 October 1999 (‘Optional Protocol’).

Optional Protocol art 2.

Ibid arts 8, 9 and 10.

Welch, Claude E Jr (1993) ‘Human Rights andAfrican Women: AComparison

of Protection Under TwoMajor Treaties’ 15 Human Rights Quarterly 549–74.

Ibid 551.

Banda, F (2003) ‘Global Standard: Local Values’17 International Journal of Law,

Policy and the Family 3.

Compared with the Universal Islamic Declaration of Human Rights of 1981

(UIDHR), in which all rights are guaranteed as provided under Sharia law.

WOMEN’SRIGHTS IN AFRICA 161

holistic or homogeneous.

Any regional instrument must be read as

furthering the interests of a superior body, such as the United Nations. The

Charter of Organization of African Unity (OAU), now known as the African

Union (AU), clamours for freedom, equality, justice and dignity.

Thus, no

African country, which is a signatory to the African Charter or any similar

instrument, can justify its failure to fulf‌illing its human rights obligations.

The conclusion is that regional instruments and international regimes for

human rights are always expected to work in tandem. A contradictory or

inconsistent regional law would be regarded as void to the extent of its

inconsistency.

The African Charter on Human and People’s Rights (1981)

Disadvantaged by prevalent repugnant traditions and customs, many African

women are treated as of lesser value compared to their male counterparts.

Many African women suffer from discriminatory practices in the areas of

employment, marriage and religion. Article 2 of the African Charter on

Human and People’s Rights (‘African Charter’) therefore prohibits all forms

of discrimination, including those based on sex, whilst art 3 provides for

equal protection before the law. The principle of non-discrimination in the

African Charter is unequivocal in its agreement with art 1 of CEDAW. The

African Charter provides that ‘every individual shall be entitled to the

enjoyment of the rights and freedoms guaranteed in the present Charter

without distinction of any kind such as . . . sex’. The Charter goes further to

re-echo the practice of de facto equality found under CEDAW. Article 18(3)

provides that ‘the states shall ensure the elimination of every

discrimination

against women and also ensure the protection of the rights of the woman

. . .’. The word ‘every’in this provision permeates all aspects of discrimina-

tion and admits no exception. To guarantee a robust protection, this shall be

done with regard to international conventions and declarations.

Article 60

of the African Charter allows the African Commission on Human and

Beyani, Chaloka (1994) ‘Towards a More Effective Guarantee of Women’s

Rights in the African Human Rights System’ in Cook, R (ed) Human Rights of

Women:National and International Perspectives 288.

As a regional organisation, the AU is connected to the UN as shown in the

former’s preamble. It pledges its allegiance to the UN Charter and the UDHR as a

solid foundation for peaceful and positive cooperation among states. This subordi-

nates the AU and any other body or instrument emanating from the region or

elsewhere to the UN Charter and its instruments. See Beyani 287–89.

AU Constitutive Act 2000, preamble, articles 3(g), 3(h), 4(l) and 4(m).

Ssenyonjo, Manisuli (2007) ‘Culture and the Human Rights of Women in

Africa: Between Light and Shadow’51(1) Journal of African Law 39–67.

Emphasis supplied.

This binds the African states to international human rights standards relating to

women’s rights, regardless of whether they are a party or not to those particular

instruments. Kois, L (1997) ‘Article 18 of the African Charter on Human and

Peoples’ Rights: A Progressive Approach to Women’s Human Rights’ 3(1) East

African Journal of Peace and Human Rights 102–03.

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016162

People’s Rights (‘African Commission’) to draw inspiration from interna-

tional law on human and people’s rights; this includes provisions of various

instruments adopted within the specialised agencies of the United Nations, of

which the parties to the present Charter are members. Therefore, the African

Commission in Legal Resources Foundation v Zambia

took into consideration

the comment of the United Nations Human Rights Committee (HRC) on

art 2 of the International Covenant on Civil and Political Rights. TheAfrican

Commission adopted the def‌inition of discrimination proposed by the HRC

which stated that the term ‘discrimination ‘implies:

‘. . . [a]ny distinction, exclusion, restriction or preference which is based on any

ground such as race, colour, sex, language, religion, political or other opinion,

national or social origin, property, birth or other status, and which has the

purpose or effect of nullifying or impairing the recognition, enjoyment or

exercise by all persons, on an equal footing, of all rights and freedoms’.

From the above, the African Commission rightly concluded that equality

entails the expectation that all citizens be treated fairly and justly within the

legal system and be assured of equal treatment before the law and equal

enjoyment of the rights available to all citizens.

Apart from states parties having to put appropriate measures in place, the

contributions of individuals for the protection of human rights are vital. An

individual in the society under article 29(7) has an obligation:

‘. . . [t]o preserve and strengthen positive

African cultural values in his relations

with other members of the society, in the spirit of tolerance, dialogue and

consultation and, in general, to contribute to the promotion of the moral

well-being of society’.

No def‌inition is offered for positive for this purpose; however, it is hoped that

‘positive’ would be given its ordinary meaning in the light of the purpose and

objective of the Charter. Article 29(7) can neither be a tool to bypass the

non-discrimination provisions in the Charter, nor to disregard any of

CEDAW’s provisions. Rather, in the context of the African Charter,art 29(7)

demonstrates the commitment of the drafters to discard cultural or religious

practices that are deemed to be retrogressive.

The scope of the Charter was tested in the Attorney General of Botswana v

Unity Dow case,

where the validity of some provisions of the Botswana

Citizenship Act of 1984 was challenged. TheAct provided that children born

in wedlock acquired only the nationality of their father and not that of their

mother. TheAct also allowed a Tswana man to pass on his nationality to his

alien wife, but denied a Tswana woman the same right to pass on her

Comm No. 211/98, 29th ordinary session (23 April–7 May 2001). Available

from: (accessed

on 10 December 2014).

UN General Comment No. 18(37) UN Doc. CCPR/C/21/Rev.1/Add.1

(1989), reprinted in UN Doc (1994) HRI/GEN/1/ Rev.1 at 26.

Emphasis supplied.

[1992] LRC Const. 623.

WOMEN’SRIGHTS IN AFRICA 163

nationality to her alien husband. Dow, who was married to an American

citizen, challenged these provisions, because her two children and her

husband could not claim Botswana citizenship. Accordingly, she argued that

this was discriminatory on the ground of sex and in contravention of

international human rights standards. The court, invoking the African

Charter, rejected the defence of traditions and customs, and held that the

challenged provisions of the Citizenship Act were discriminatory and

violated the international standards of human rights.

Critiques of the African Charter have centred on the lacklustre perfor-

mance of the African Commission,

claw-back clauses,

the choice of

language

and the provisions of art 18.

The latter has generated debates

arising from the linking of women’s rights with the concepts of family,

tradition and morality and with children and the disabled. The contention is

that the lumping together of women’s rights along with others forms of rights

will not suff‌iciently safeguard women’s rights.

The arguments emphasise

women’s rights in relation to the traditionalAfrican family, in which women

are seen as the ‘beast of family burden’.

This perception is said to be

sustained through the Charter’s stance, which implies that the African

concept of human rights should be inspired by the virtues of African

See also Ephraim v Pastory & Kaizingele 87 I.L.R 106, a Tanzanian decision

outlawing discriminatory cultural practices under the Haya customary law that

forbids a woman from disposing of her interest in land.

Viljoen, F (2004) ‘The African Commission on Human and Peoples’ Rights:

Introduction to the African Commission and the Regional Human Rights Systems’

in Heyns, C (ed) Human Rights Law in Africa vol.1 at 497.

Kufuor, KO (2010) The African Human Rights System: Origin and Evolution.

These are clauses which subject the provisions of the Charter to domestic laws thus

limiting the effect of such provisions. Some examples are arts 6, 8 and 9. See also

Nmehielle, VincentO (2004) ‘Development of the African Human Rights System in

the Last Decade’11(3) Human Rights Brief 6–11.

Heyns, Christof (2001) ‘The African Regional Human Rights System: In Need

of Reform?’1(2) African Human Rights Law Journal 155–74.

For a general discussion on the f‌laws of the African Charter,see Heyns, Christof

(2001) ‘The African Regional Human Rights System: In Need of Reform?’ 1(2)

African Human Rights Law Journal 155–74.

Elmadmad, K (1992) ‘The Rights of Women under the African Charter on

Human and Peoples’ Rights’ in Benedek, W & Heinz, W (eds) Regional Systems of

Human Rights in Africa, America and Europe: Proceedings of the Conference; Oloka-

Onyago, J (1995) ‘Beyond the Rhetoric: Reinvigorating the Struggle for Economic,

Social and Cultural Rights in Africa’26 California Western International Law Journal 1;

Odinkalu, CA (2002) ‘Implementing Economic, Social and Cultural Rights under

the African Charter on Human and Peoples’ Rights in Evans, M & Murray, R (eds)

The African Charter on Human and Peoples’Rights: The System in Practice, 1986–2000.

Butegwa, Florence (1994) ‘Using the African Charter on Human and Peoples’

Rights to Secure Women’s Access to Land in Africa’ in Cook, Rebecca (ed) Human

Rights of Women:National and International Perspectives 495.

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016164

traditions and the values of African civilization.

Mutua argues that these

fears are unfounded and give the Charter a negative image.

In fact, art 18

has comprehensive provisions covering various classes of rights. In agreement

with Mutua, it is submitted that such an interpretation betrays a lack of

awareness of the African family system and the position which women

occupy in African society. Furthermore, women are highly placed within the

family system; they are not just equal, but embody a cardinal personality in

the sustenance of human life.

100

Besides, African culture has never been

stagnant; it has grown and changed in response to contemporary develop-

ments. This would be expected to continue, although a problem could be the

speed at which it responds and adapts; a continuous acculturation process

may guarantee a smoother transformation.

The Protocol to the African Charter on Human and Peoples’ Rights on the

Rights of Women in Africa

To remedy the visible weaknesses of the African Charter, a Protocol (‘the

Protocol’)

101

was adopted on 11 July 2003 at the African Union (AU)

meeting in Maputo, Mozambique and came into force on 25 November

2005.

102

Twenty-eight countries had ratif‌ied the Protocol by 18 February

2013, the latest being Guinea Bissau. Egypt, Tunisia and Botswana are key

countries which have neither signed nor ratif‌ied the Protocol.

103

The

existence of a specif‌ic treaty on women’s rights has the benef‌it of underlining

the issues which negatively impact upon women and forces states parties to

adopt a more gendered interpretation of rights so that human rights can really

begin to be seen as women’s rights. The Protocol represents the greater

Beyani, Chaloka (1994) ‘Towards a More Effective Guarantee of Women’s

Rights in the African Human Rights System’ in Cook, R (ed) Human Rights of

Women:National and International Perspectives 291–92.

Mutua, Makau ‘The African Human Rights System: A Critical Evaluation’.

Available from: g/sites/default/f‌iles/mutua.pdf> (accessed on

23 February 2014).

100

Ibid.

101

African Commission on Human and Peoples’ Rights ‘The African Charter on

Human and Peoples Rights’ and the ‘Protocol to theAfrican Charter on Human and

Peoples Rights on the Rights of Women inAfrica’. Available from:

achpr.org/f‌iles/instruments/women-protocol/achpr_instr_proto_women_eng.pdf>(accessed

on 18 February 2013).

102

See Evans, M & Murray, R (eds) The African Charter on Human and Peoples’

Rights: The System in Practice, 1986–2000 303; Karugonjo-Segawa, Roselyn (2005)

‘The Protocol to the African Charter on Human and Peoples’ Rights on the Rights

of Women’ The Danish Institute for Human Rights Research Partnership 2/2005.

103

For a list of countries which have signed and ratif‌ied the Protocol to the African

Charter on Human and Peoples’ Rights on the Rights of Women in Africa see

g/instruments/women-protocol/ratif‌ication/> (accessed on

10 September 2013).

WOMEN’SRIGHTS IN AFRICA 165

visibility and the newly acquired strength of women’s organisations in

Africa.

104

The preamble launches the Protocol into normative recognition by

building on art 66 of the African Charter. It reaff‌irms the principle of

promoting gender equality as stipulated in the Constitutive Act of theAfrican

Union

105

and laments the continued existence of female gender discrimina-

tion and cultural practices which are harmful to women. The Protocol

contains some unique provisions, such as the right to peace;

106

protection of

women in armed conf‌licts;

107

widows’ rights;

108

the right to inheritance;

special protection of elderly women;

109

special protection of women with

disabilities;

110

and special protection of women in distress.

111

There are also

substantive provisions on reproductive rights and the rights to abortion.

112

Banda describes the Protocol as ‘uncompromisingly pro-woman and anti-

defence of discriminatory cultural practices’.

113

The def‌initional article, art 1, contains vital terms that are meant to address

the shortcomings of the African Charter.Its comprehensiveness goes beyond

the scope of CEDAW. Article 1 def‌ines discrimination against women:

‘as any distinction, exclusion or restriction or any differential treatment based on

sex and whose objectives or effects compromise or destroy the recognition,

enjoyment or the exercise by women, regardless of their marital status, of

human rights and fundamental freedom in all sphere of life’.

This def‌inition of discrimination represents an improvement over CEDAW’s

def‌inition. The phrase ‘any differential treatment’ targets imbalances, such as

those found under Islamic law regarding the status and rights of women in

marriage and in the family.

114

The enjoyment of equal rights ‘regardless of

marital status’ establishes further that the Protocol is not in conf‌lict with

CEDAW, knowing full well that in many African societies unmarried and

104

Viljoen, Frans (2009) ‘An Introduction to the Protocol to the African Charter

on Human and Peoples’ Rights on the Rights of Women in Africa 16(1) Washington

and Lee Journal of Civil Rights and Social Justice 11.

105

African Union Constitutive Act Article 4(l).Available from:

int/en/sites/default/f‌iles/ConstitutiveAct_EN.pdf>

106

The Protocol art 10.

107

Article 11.

108

Article 20.

109

Article 21.

110

Article 22.

111

Article 23.

112

Article 24.

113

Banda, F (2003) ‘Global Standard: Local Values’17 International Journal of Law,

Policy and the Family 18.

114

In keeping with verse 4:34 of the Qur’an, it is un-Islamic for women to hold

general public off‌ice. In addition, while a man is entitled to divorce any of his wives

at will, a wife is not entitled to a divorce, except by judicial order on very specif‌ic and

limited grounds. And under the Islamic law of inheritance, women are only entitled

to half of the share of men. See Alston, Philip & Goodman, Ryan(2012) International

Human Rights in Context: Textand Materials 550.

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016166

divorced women are treated with disdain. This def‌inition uses the phrase ‘in

all spheres of life’ instead of the specif‌ic listings of CEDAW to allow for an

interpretation that encompasses all areas of discrimination. Article 1 also

def‌ines harmful practices as ‘. . . all behaviours, attitudes and/or practices

which negatively affect the fundamental rights of women and girls such as

their right to life, health, dignity, education and physical integrity’. The aim

is to use laws to correct people’s attitudes; this is a task to be done

incrementally. Harmful practices encompass, inter alia, female genital mutila-

tion and widowhood rites. Drafted to ref‌lect recent happenings on the

African continent, the def‌inition of violence against women encapsulates

inchoate acts of violence. It covers:

‘[a]ll acts perpetrated against women, which cause or could cause them

physical, sexual, psychological and economic harm, including the threat to take

such acts: or to undertake the imposition of arbitrary restriction on or

deprivations of fundamental freedoms in private or public life in peace time and

during situation of armed conf‌licts or war’.

115

Obligations of the states parties to eliminate discrimination against women

will be fulf‌illed through the enactment of appropriate legislative, institutional

and other measures.

116

They are to include in their national constitutions and

other legislative instruments the principle of equality between women and

men and ensure its application.

117

States parties must take corrective and

positive action in those areas where discrimination against women in law and

in fact continues to exist.

118

Article 2(2) of the Protocol resonates with

CEDAW’s art 5: the states parties commit to modifying the social and cultural

patterns of conduct of women and men through public education, informa-

tion, education and communication, with the aim of eliminating harmful

cultural and traditional practices.

The Protocol provides that every woman shall have the right to dignity as

a human being and recognises her human and legal rights.

119

It adds that states

parties shall adopt and implement appropriate measures to prohibit any

exploitation or degradation of women.

120

This provision aims to forestall

humiliating practices such as widowhood rites, forced labour and forced

marriage. This is amplif‌ied in the succeeding article, which commits states

parties to guarantee the right to life, and the integrity and security of the

person of women by prohibiting all forms of exploitation, cruel, inhuman or

degrading punishment or treatment.

121

States parties are bound to take

appropriate and effective measures to actively promote peace education

through curricula and social communication in order to eradicate elements

115

Protocol, art 1(j).

116

Article 2.

117

Article 2(i) a.

118

Article 2(1)d.

119

Article 3( 1).

120

Article 3(3).

121

Article 4(1).

WOMEN’SRIGHTS IN AFRICA 167

in traditional and cultural beliefs, practices and stereotypes that legitimise and

exacerbate the persistence of violence against women.

122

The Protocol goes to the root of stereotypes in family law. The onus of

ensuring that women and men enjoy equal rights and are regarded as equal

partners in marriage is placed on the states parties.

123

Forced marriages are

forbidden

124

and a minimum age for marriage is specif‌ied.

125

Article 6(d)

forms an alliance with art 16(2) of CEDAW and makes legal validity of

marriage subject to registration.

126

It approves and adopts the Unity Dow

case

127

and allows a woman not only to retain her nationality, or to acquire

the nationality of her husband, but also to pass the same to her children,

except in cases of a threat to national security interests.

128

The revolutionary

tone of CEDAW became distinct in the drafting of the Protocol which

provided that polygamy shall be prohibited, except when consented to by

both parties; and in any country where polygamy still exists, the law shall

strive to work towards its elimination.

129

Most legal systems in Africa support polygamy, which is entrenched in

many customary and religious systems. The usefulness of cross-cultural

dialogue becomes apparent here. In its f‌inal form, the Protocol reads: ‘. . .

monogamy is encouraged as the preferred form of marriage . . .’.

130

This

cautious approach of the Protocol has been regarded not just as a compro-

mise, but also as an act of legal cowardice.

131

However, the Protocol gives

women locked in such relationships the consolation that ‘. . . the rights of

women in marriage and family, including in polygamous marital relationship

are promoted and protected’.

132

Regarding separation, divorce and annulment of marriage, the Protocol

provides that men and women enjoy the same rights and divorce must be by

a judicial order; a reiteration of CEDAW’s stance.

133

The Protocol adds that

both men and women have the same rights and responsibilities towards their

children when seeking separation, divorce or annulment of marriage.

134

Furthermore, both women and men are given equal rights in sharing any

122

Article 4(2)(d).

123

Article 6(1).

124

Article (6)(a).

125

Article 6(b).

126

Article 6(d).

127

Attorney General of Botswana v Unity Dow [1992] LRC Const. 623.

128

Protocol art 6 (g)–(h); compare to CEDAWart 9.

129

CEDAWDraft Protocol art 6(2)(a).

130

Protocol art 6(c).

131

Karugonjo-Segawa, Roselyn (2005) ‘The Protocol to the African Charter on

Human and Peoples’ Rights on the Rights of Women’ The Danish Institute for

Human Rights Research Partnership 2/2005 at 23.

132

Viljoen, F (2004) ‘The African Commission on Human and Peoples’ Rights:

Introduction to the African Commission and the Regional Human Rights Systems’

in Heyns, C (ed) Human Rights Law in Africa vol.1.

133

Protocol art 7(a) and CEDAWart 16(1)(c).

134

Protocol art 7(b)–(c).

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016168

joint property deriving from the marriage.

135

Finally, on family issues, the

Protocol goes further than CEDAW in that it incorporates the right of

widows to be free from inhumane, humiliating and degrading treatment; the

right to retain the guardianship of their children; to remarry if they wish and

the right to inherit their husband’s property

136

and to continue living in their

matrimonial home.

137

Like the African Charter, the Protocol shies away from the problem of

reservations. This may either mean there is no reservation or that reservation

is possible. The Protocol should have been clearer in forbidding reservations,

in order to avoid the problems created by CEDAW. Similarly, provisions that

allow states to derogate from the rights provided during times of war, public

danger or other emergencies are lacking in the Protocol. This suggests that

there is no instance when a state can derogate from the rights guaranteed in

the instrument.

Sub-regional human rights instruments

The instruments considered in this part of the article fall under Kufuor’s

second categorisation, namely those sub-regional economic instruments that

do not relate directly to human rights. Poverty is a common threat and one of

the sources of human rights violations in Africa. As Viljoen explains, ‘the

heart of sub-regional integration would beat in vain if it did not provide a

lifeline to those living in poverty’.

138

Thus, economic integration only makes

sense when it guarantees the socio-economic rights of citizens.

Both the Union Economique et Monetaire Ouest Africaine (UEMOA)

and the Economic Community of West African States (ECOWAS) address

the socio-economics rights of women and the need to liberate women from

discrimination. UEMOA recognises the particular role of women in the

social and economic development of the region. Apart from identifying the

inferior status of women in African society, UEMOA recommends that states

parties should commit themselves to a timetabled plan of action broadly

covering social health, education and the economic constraints facing

women. It encourages states to take temporary measures to improve the

access of girls to educational establishments, including tertiary and technical

education institutions. Member states are categorically enjoined to ratify

CEDAW and its Protocol where they have not done so.

139

The revised

ECOWASTreaty recognises the promotion and protection of human rights

as stipulated in the African Charter. In ECOWAS’s Protocol on Democracy

and Good Governance, member states are obliged to eliminate all forms of

discrimination and harmful and degrading practices against women. States

135

Article 7(d).

136

Article 20(a)–(c).

137

Article 21.

138

Viljoen, Frans (2012) International Human Rights Law inAfrica (2 ed) 481.

139

Rec_03_99.html> (accessed on 21 May 2014).

WOMEN’SRIGHTS IN AFRICA 169

parties are to put in place the necessary structures to ensure that women’s,

youths’ and children’s education is enabled.

140

Since its priority is to establish a free trade area, the Common Market for

Eastern and Southern Africa

141

(COMESA) does not address human rights in

detail. Article 6(e) of the Treaty recognises the promotion and protection of

human and people’s rights in accordance with the provisions of the African

Charter. Though couched in commercial language, the role of women in

development and business is recognised. Women play a vital role in

economic transformation and sustainable growth. It is imperative to involve

them in the implementation of programmes for rural areas and improve-

ments in the informal sector.

142

Examining the position of women and their

right to own land, Päivi Koskinen argues that economic rights guarantee

political rights and these rights eventually lead to other human rights, such as

the right to health and the right to food.

143

Therefore, member states should

eliminate discriminatory regulatory frameworks and customs which prevent

women from owning land and other assets.

Customary land law systems across Africa do not favour women; many

women own property only at the pleasure of their husbands. Article 154 of

the COMESA Treaty attacks the root of this culture. The integration of

women into economic decision-making requires the acquisition of the

necessary skills, education and capacity development. Necessary changes

must be implemented in educational and training strategies to include the

needs of women.

144

The COMESA Treaty

145

is premised upon ‘adherence

to universally acceptable principles of good governance . . . observance of

human rights and social justice’. Article 121(a)–(b), in agreement with the

previously discussed articles arts 2(f) and 5 of CEDAW, states that member

states should abolish legislation and discourage customs that are discrimina-

tory against women. In addition, member states should take other measures

in order to eliminate prejudices against women and promote the equality of

the female gender in relation to that of men in every aspect of life.

146

The Declaration on Gender and Development (1997)

147

and the Adden-

dum to the SADC Declaration on Gender and Development, namely the

Prevention and Eradication of Violence Against Women and Children

140

ECOWAS Treaty on Democracy and Good Governance, Protocol A/SPI/

12/01 arts 33–35, 40 and 43.

141

The Common Market for Eastern and Southern Africa, established in 1993, is

the largest economic community in Africa. It replaced the PreferentialTrade Area for

Eastern and Southern Africa in 1994.

142

See the Treaty Establishing the Common Market for Eastern and Southern

Africa art 154.

143

Ibid.

144

Ibid art 155.

145

Treaty establishing The East African Community 1999, reproduced in Heyns,

C (ed) Human Rights Law in Africa vol. 1at 634–39.

146

Ibid.

147

Development_1997.pdf>

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016170

(1998)

148

by the Southern African Development Community (SADC)

149

both proscribe discrimination on the basis of sex. The 1997 Declaration, in

agreement with CEDAW, calls for ‘repealing and reforming all laws,

amending constitutions and changing social practices which will subject

women to discrimination, and enacting gender sensitive laws’.

150

It advocates

women’s empowerment through access to and control over resources. The

Addendum complements the 1997 Declaration by focusing on violence

against woman in both the private and public spheres. The types of violence

covered include ‘economic deprivation, marital rape, femicide, female

genital mutilation, traff‌icking in women and children, forced prostitution,

sexual harassment and intimidation’.

151

In North Africa, the document

which established the Arab Maghreb Union does not address women’s

rights.

152

Conclusion

This article has looked at the interplay between African culture and the

formulation of women’s rights in Africa. In the context of the debate

between universalism versus relativism with regard to human rights, the

article has attempted to explore whether African regional human rights can

rightly be circumscribed within wider international human rights legislation

in relation to women’s rights. Undoubtedly, the universalism-relativism

debate will continue to be part of human rights discourses. This debate will

never be static and will continue to evolve in response to various political

developments and undertones, which are dictated by the necessity for people

to interact with and tolerate one another. When the universality of human

rights is conceived without regard to the cultural beliefs and participation of a

particular region or state, such universality will not be acknowledged by

states which feel that their opinions have been disregarded. On the other

hand, an excessive focus on relativism could lead to the denial or violation of

the rights of individuals or minority groups. States must therefore continue to

seek a converging point through cross-cultural dialogue.

This article has also highlighted the capabilities of the normative frame-

works of a number of African regional human rights instruments in the

148

g/instruments/eradication-violence-woman-sadc-

addendium/>

149

A southernAfrican regional body of 14 member nations.

150

Development_1997.pdf> para. H(iv).

151

The Prevention and Eradication of Violence Against Women and Children

(1998). Available from: .achpr.org/instruments/eradication-violence-

woman-sadc-addendium/> (accessed on 15 March 2015).

152

See the Treaty Establishing theArab Maghreb Union. Available from:

www.maghrebarabe.org/en/conventions.cfm?type=1> (accessed on 15 March

2013). The aim of AMU is to ensure regional stability and enhanced political

coordination among member states. Members are Algeria, Libya, Mauritania,

Morocco and Tunisia.

WOMEN’SRIGHTS IN AFRICA 171

protection of women’s rights. The article accentuates the challenge these

instruments face to be accepted on the wider international stage, to ref‌lect

collective regional identities and to protect cultural integrity within a

framework of promoting human rights.

To an appreciable extent, CEDAW has set a standard which surpasses its

predecessors in protecting women’s rights on an international level.

CEDAW adopts a holistic approach by focusing on discrimination against

women, emphasising that women have suffered and continue to suffer from

various forms of discrimination because they are women. CEDAW imposes

a legal obligation on states parties to protect, respect and promote the right to

non-discrimination and to ensure the development and advancement of

women in order to improve their position to one of de jure, as well as de

facto, equality with men. Impressively, all but two African states, namely

Sudan and Somalia, have ratif‌ied CEDAW. In the context of CEDAW,

African regional human rights instruments do not retreat from the concept of

the universality of human rights; instead there is a concomitant rejection of

relativism and this enriches the human right corpus on the continent of

Africa. These instruments decry all forms of discrimination against women

and advocate concrete agendas for women’s emancipation. The inf‌luence of

CEDAW on the adoption of the Protocol to the African Charter on Human

and People’s Rights on the Rights of Women in Africa cannot be overstated.

The Protocol is blunt in its eradication of cultural stereotypes, customs and

traditions, which can only be respected where they do not infringe on the

rights of African women in any guise. Without doubt, there is a clear-cut

convergence between the approach of CEDAW and African human rights

instruments with regard to women’s rights.

It is trite that the normative recognition of women’s rights does not always

mean that the intended benef‌iciaries actually get to enjoy their rights. This

doubt is compounded by the politics of multicultural and multi-ethnic

societies that can act as a ‘yoke’ on African human rights systems. Cultural

practices are deeply entrenched and most states are still reluctant or are

‘dragging their feet’ in adopting the appropriate measures required at both

regional and international levels. It is through genuine commitment, which

can be assessed through law making, judicial decisions and policy executions,

that the required changes can be effected. There is a need to interpret these

instruments as living instruments. Legislative bodies must purposely work

towards aligning their laws with regional and international laws, while

judicial authorities, in good faith, take note of human rights decisions in

other countries in promoting women’s rights in their courts. In addition,

since most women’s rights’ violations happen in the private sphere, the

usefulness of continuous education comes to the fore. Education becomes a

vital tool in changing the orientation of both the ‘prey’ and the ‘predators’.

Some perpetrators do not conceive their acts to be a violation of human

rights, while their ‘victims’ regard the status quo as acceptable. Public

education and public participation in human rights create the space for

intra-community dialogue.

JOURNAL OF COMPARATIVE LAW IN AFRICA VOL. 3, NO. 1, 2016172

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