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1 GENERAL INTRODUCTION
All human beings are born free and equal in dignity… and rights…. Everyone is entitled to … rights … without distinction in any kind, such as … sex…. All are equal before the law and are entitled without any discrimination to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination…. Everyone, without any discrimination, has the right to equal pay for equal work….1
Everyone has the human right to freedom from discrimination on the ground of gender, race, ethnicity, etc. These human rights are expressly set out in the Universal Declaration of Human Rights, the International Covenants, the Convention on the Rights of the Child (CRC)2 and other widely adhered to international human rights treaties and Declarations. The human right to freedom from discrimination entitles every woman, man, youth and child to fundamental human rights including the human rights to freedom from distinction, exclusion, restriction or preference based on gender, etc., which has the purpose or effect of impairing the enjoyment of human rights and fundamental freedoms; the human right to equality between men and women; the human right to equality between boys and girls in all areas including education, health, nutrition and employment; etc. Furthermore, all human beings have the human right to livelihood and work, and human rights norms and standards guarantee women full equality in all aspects of economic life. Women have the human right on equal terms with men to dignified, creative and productive labour, free from discrimination and exploitation enabling them to live in peace, security, justice and dignity. Girls also have a bundle of rights, which are fundamental to them without
Articles 1, 2, 7 and 23, Universal Declaration of Human Rights, 1948 A/Res/217 of 10 th December, 1948. http://www.hrweb.org/legal/udhr.html (accessed on August 1st, 2007) 2 The Convention was adopted by the United Nations General Assembly Resolution 44/25 of 20th November, 1989. It entered into force 2nd, September 1990, in accordance with Article 49. http://www.unhchr.ch/html/menu3/b/treaty15_asp.htm (accessed on July 29th, 2007)
discrimination as to their gender. The human right to equality between boys and girls in all areas is paramount. Therefore, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)3 aims at securing the rights of women against discrimination which manifest in the forms of unequal treatment, domestic violence, female genital cutting, rape, etc. These unequal treatment and violence violates the fundamental human rights of women and is an affront to their inherent dignity. Physical, psychological and sexual violence against women and girls plague all societies and classes and poses great obstacles to the achievement of equality, development and peace. An exhaustive work will therefore be carried out to critically examine the attributes of some cultural, religious, political and legal practices to show the various forms of discrimination against the female gender.
CONCEPT OF GENDER
Gender does not refer to women or men; the concept is generally used to refer to the socially constructed roles ascribed to women and men in society. It is a relational concept which refers to the relationship between women and men and the cultural symbolic differences between them.4 Thus, the concept of gender has been defined as;
… an all inclusive concept which not only entails what women and men do and how they relate in society, but also embraces cultural ideas about ‘maleness’ and ‘femaleness’ and the structural inequalities which emanates from those differences.5
The Convention was adopted by the United Nations General Assembly Resolution 34/180 of 18th December, 1979. It entered into force on 3rd September, 1981. http://www.hrweb.org/legal/cdw.html (accessed on August 1st, 2007) 4 Ruth N. Kibiti Culture, Ethics and Ideology: The Gender Implications, plenary paper presented at the CRCK seminar on: Culture, Ethics and Ideology. http://www.kenyaconstitution.org/docs/09cd001.htm (accessed on January 12th, 2005) 5 Stolen Women, gender and Social Change 1991, 4; quoted by Ruth N. Kibiti Culture, Ethics and Ideology: The Gender Implications, plenary paper presented at the CRCK seminar on: Culture, Ethics and Ideology. http://www.kenyaconstitution.org/docs/09cd001.htm (accessed on January 12th, 2005)
A person's sex as female or male has legal significance - sex is indicated on government documents, and laws provide differently for women and men. For example many pension systems have different retirement ages for men or women. In many countries it is by no means clear that men and women are treated equally and that they enjoy the same rights and freedoms. Human rights should apply equally to women and men. However, women and girls are often denied the basic rights that form part of every day life such as freedom of movement, access to education and participation in decision-making processes. There are many barriers to equality between the sexes. Important factors include gender stereotyping, violence against women, social and cultural attitudes and discriminatory laws and practices.
THE CONCEPT OF RIGHTS
A right is "a just, proper or legal claim; a thing one is entitled to do or have by law, a legal authority or claim to something."6 It is said to be an entitlement or justified claim to a certain kind of treatment from others, to assistance from others or non-interference from others.7 A legal right will therefore arise whenever the operation of a pre-existing legal rule gives an individual an entitlement enforceable at law. It is usually accompanied by a legal duty on another party to fulfill that entitlement or refrain from denying it. Rights are socially established ways of acting or ways of being treated. A right is therefore regarded as a beneficial way of acting or of being treated both for the right holder and, more generally, for society. Thus, it is or should be something socially accepted, recognized and protected in given societies, and such acceptance would be deemed reasonable, even by outsiders.
A. S. Hornby Oxford Advanced Learner’s Dictionary of Current English, Oxford University Press, 1995, 1012 7 Jan Garrett The Concept of Rights, http://www.wku.edu/~wjan.garrett/ethics/needs.htm (accessed on July 29th, 2007)
The concept of rights is older than the United Nations but relatively new in human history. Throughout history, governments formed to protect people from domestic criminals and foreign invaders, but people also needed protection from their own government. Governments against their own people, specifically governments that were above the law, committed the greatest crimes in history. In the 20th century alone, scores of millions were slaughtered by communist and fascist governments, which regarded their citizens as means to their ends. The 18th century concept of individual rights is founded on the opposite a nd revolutionary idea, that each individual is an end in him/her, with his/her life and happiness as the moral purpose. That's what the United States' founding fathers meant by the individual's right to "life, liberty, property and the pursuit of happiness.” These rights, being ‘inalienable’, cannot be abrogated by government decree or majority vote. Because these rights apply to each individual, nobody's rights can negate anyone else's. Individual rights are freedoms of action that a rational being requires to choose and achieve the values that his life and happiness require; actions such as creative thought, productive work, voluntary association and free trade. Only such freedoms can yield peaceful coexistence and prosperity.
EVOLUTION OF HUMAN RIGHTS
Human rights have been defined as:
…basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. Calling these guarantees "rights" suggests that they attach to particular individuals who can invoke them, that they are of high priority, and that compliance with them is mandatory rather than discretionary. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country.'8
Nickel James Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights, Berkeley; University of California Press, 1987, 561-2.
Human rights aim to identify both the necessary negative and positive prerequisites for leading a minimally good life, such as rights against torture and rights to health care. This aspiration has been enshrined in various declarations and legal conventions issued during the past sixty years, initiated by the Universal Declaration of Human Rights and perpetuated by, most importantly, the International Covenant on Economic, Social and Cultural Rights9, the International Covenant on Civil and Political Rights10 and the African Charter on Human and Peoples’ Rights.11 Together these four documents form the centerpiece of a moral doctrine that many consider to be capable of providing the contemporary geo-political order with what amounts to an international bill of rights. Public authorities, both national and international, are identified as typically best placed to secure these conditions and so, the doctrine of human rights has become, for many, a first port of moral call for determining the basic moral guarantees all of us have a right to expect, both of one another but also, primarily, of those national and international institutions capable of directly affecting our most important interests. The concept of human rights has existed under several names in European thought for many centuries, at least since the time of King John of England. After the king violated a number of ancient laws and customs by which England had been governed, his subjects forced him to sign the Magna Carta, or Great Charter, which enumerates a number of what later, came to be thought of as human rights. Among them was the right of the church to be free from governmental interference, the rights of all free citizens to own and inherit property and be free from excessive taxes. It established the right of widows who owned property to choose not to remarry, and established principles of due
http.//www.ep.utm.edu/ (accessed on August 1st, 2007) 9 The Covenant was adopted by the United Nations General Assembly Resolution 2200A (XXI) of 16th December, 1966. It entered into force on January 3rd, 1976, in accordance with Article 27 http://www.unhchr.ch/html/menu3/b/treaty_asp.htm (accessed on August 1st, 2007) 10 The Covenant was adopted by the United Nations General Assembly Resolution 2200A (XXI) of 16th December, 1966. It entered into force on March 23rd, 1976, in accordance with Article 49 http://www.ohchr.org/english/copyright.htm (accessed on August 1st, 2007) 11 African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21st, 1986 http://www.hrw.org/doc/?t=africa (accessed on July 29th, 2007)
process and equality before the law. It also contained provisions forbidding bribery and official misconduct. The political and religious traditions in other parts of the world also proclaimed what have come to be called human rights; calling on rulers to rule justly and compassionately, and delineating limits on their power over the lives, property, and activities of their citizens.12 In the eighteenth and nineteenth centuries in Europe several philosophers proposed the concept of "natural rights;”13 rights belonging to a person by nature and because he was a human being, not by virtue of his citizenship in a particular country or membership in a particular religious or ethnic group. This concept was vigorously debated and rejected by some philosophers as baseless. Others saw it as a formulation of the underlying principle on which all ideas of citizens' rights and political and religious liberties were based. In the late 1700s two revolutions occurred which drew heavily on this concept. In 1776 most of the British colonies in North America proclaimed their independence from the British Empire in a document, which still stirs feelings, and debate, the U.S. Declaration of Independence.
We hold these truths to be self-evident; that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.14
In 1789 the people of France overthrew their monarchy and established the first French Republic. Out of the revolution came the Declaration of the Rights of Man.
“Historical origins and development of the theory and practice of human rights” http.//www.ep.utm.edu/ (accessed on August 1st, 2007) 13 The basis of the doctrine of natural law is the belief in the existence of a natural moral code based upon the identification of certain fundamental and objectively verifiable human goods. Our enjoyment of these basic goods is to be secured by our possession of equally fundamental and objectively verifiable natural rights. Natural law was deemed to pre-exist actual social and political systems. Natural rights were thereby similarly presented as rights individuals possessed independently of society or polity. Natural rights were thereby presented as ultimately valid irrespective of whether they had achieved the recognition of any given political ruler or assembly. The quintessential exponent of this position was the 17th. Century philosopher John Locke and, in particular, the argument he outlined in his Two Treatises of Government (1688) 14 Preamble to the US Declaration of Independence http://members.tripod.com/~candst/doisussc.htm (accessed on September 8th, 2007)
The term, ‘natural rights’ eventually fell into disfavour, but the concept of universal rights took root. Philosophers such as Thomas Paine, John Stuart Mill, and Henry David Thoreau expanded the concept. Thoreau is the first philosopher known to have used the term, "human rights", and this was in his treatise, Civil Disobedience.15 Other early proponents of human rights were English philosopher John Stuart Mill, in his Essay on Liberty, and American political theorist Thomas Paine in his essay, The Rights of Man. In the middle and late 19th century a number of human rights issues took the center stage. They included issues like slavery, brutal working conditions, starvation wages and child labour. In the United States, a bloody war over slavery came close to destroying a country founded only eighty years earlier on the premise that, "all men are created equal." Russia freed its serfs the year that war began. However, neither the emancipated American slaves nor the freed Russian serfs saw any real degree of freedom or basic rights for many more decades.16 For the last part of the nineteenth and first half of the twentieth century human rights activism remained largely tied to political and religious groups and beliefs. Revolutionaries pointed at the atrocities of governments as proof that their ideology was necessary to bring about change and end the government's abuses. Many people, disgusted with the actions of governments in power, first got involved with revolutionary groups because of this. The governments then pointed at bombings, strike - related violence, and growth in violent crime and social disorder as reasons why a stern approach toward dissent was necessary. Neither group had any credibility with the other and most had little or no credibility with uninvolved citizens, because their concerns were generally political, not humanitarian. Politically partisan protests often just encouraged more oppression, and uninvolved citizens who got caught in the crossfire
This work extremely influenced individuals like Leo Tolstoy, Mahatma Gandhi, and Martin Luther King. Gandhi and King, in particular, developed their ideas on non-violent resistance to unethical government actions from this work. 16 “Historical origins and development of the theory and practice of human rights” op. cit. note 12
usually cursed both sides and made no effort to listen to the reasons given by either.17 Nonetheless many specific civil rights and human rights movements managed to affect profound social changes during this time. Labour unions brought about laws granting workers the right to strike, establishing minimum work conditions, forbidding or regulating child labour, establishing a forty hour work week in the United States and many European countries, etc. The women's rights movement succeeded in gaining for many women the right to vote. National liberation movements in many countries succeeded in driving out colonial powers. One of the most influential was Mahatma Ghandi's movement to free his native India from British rule. Movements by long-oppressed racial and religious minorities succeeded in many parts of the world, among them the U.S. Civil Rights movement. The modern human rights movement didn't invent any new principles. It was different from what preceded it primarily in its explicit rejection of political ideology and partisanship, and its demand that governments everywhere, regardless of ideology, adhere to certain basic principles of human rights in their treatment of their citizens. This appealed to a large group of people, many of whom were politically inactive, not interested in joining a political movement, not ideologically motivated, and didn't care about creating "the perfect society" or perfect government. They were simply outraged that any government dared abuse, imprison, torture, and often kill human beings whose only crime was in believing differently from their government and saying so in public. They took to writing letters to governments and publicizing the plights of these people in the hope of persuading or embarrassing abusive governments into better behaviour.18 Similarly, the concept of individual rights continued to resound throughout the 19th Century exemplified by Mary Wollstonecraft’s Vindication of the Rights of
Women and other political movements to extend political suffrage to sections of society who had been denied the possession of political and civil rights. The concept of rights had become a vehicle for effecting political change. Though one could argue that the conceptual prerequisites for the defence of human rights had long been in place, a full Declaration of the doctrine of human rights only finally occurred during the 20th Century and only in response to the most atrocious violations of human rights, exemplified by the Holocaust. The Universal Declaration of Human Rights (UDHR)19 was explicitly motivated to prevent the future occurrence of any similar atrocities. The Declaration itself goes far beyond any mere attempt to reassert all individuals' possession of the right to life as a fundamental and inalienable human right. The UDHR consists of a Preamble and 30 articles which separately identify such things as the right not to be tortured (Article 5), a right to asylum (Article 14), a right to own property (Article 17), and a right to an adequate standard of living (Article 25) as being fundamental human rights. As noted earlier the UDHR has been further supplemented by such documents as the International Covenant on Economic, Social and Cultural Rights (1966) and the International Covenant on Civil and Political Rights (1966). The specific aspirations contained within these three documents have themselves been reinforced by innumerable other Declarations and Conventions. Taken together these various Declarations, Conventions and Covenants comprise the contemporary human rights doctrine and embody both the belief in the existence of a universally valid moral order and a belief in all human beings' possession of fundamental and equal moral status, enshrined within the concept of human rights.
In 1945 in San Francisco, 50 nations adopted the United Nations Charter, a document setting forth the United Nations’ goals, functions, and responsibilities. Article 1 of the Charter states that one of the aims of the UN is to achieve international cooperation in "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion." The goals of Article 1 of the Charter are of a general nature. For those goals to be achieved, specific "human rights and freedoms" needed to be defined first. Then laws and procedures had to be drawn up that would promote and protect those rights and freedoms. For these purposes, the Commission on Human Rights was established and charged with creating an International Bill of Human Rights. The International Bill of Human Rights consists of the Universal Declaration of Human Rights (UDHR), The International Covenant on Civil and Political Rights and its optional Protocol, and The International Covenant on Economic, Social, and Cultural Rights.
Like the early years of many movements, the early years of the modern human rights movement were rocky. "Appeal for Amnesty, 1961" had only the most rudimentary organization. The modern organization named Amnesty International gained the structure it has mostly by learning from mistakes. Over the years combinations of these concerns and others led to formation of other human rights groups. Among them were groups that later merged to form Human Rights Watch, the first of them being Helsinki Watch in 1978. Regional human rights watchdog groups often operated under extremely difficult conditions, especially those in the Soviet Block. Helsinki Watch, which later merged with other groups to form Human Rights Watch, started as a few Russian activists who formed to monitor the Soviet Union's compliance with the human rights provisions in the Helsinki accords. Many of its members were arrested shortly after it was formed and had little chance to be active. Other regional groups formed after military takeovers in Chile in 1973, in East Timor in 1975, in Argentina in 1976, and after the Chinese Democracy Wall Movement in 1979.20 While the full significance of human rights may only be finally dawning on some people, the concept itself has a history spanning over two thousand years. The development of the concept of human rights is punctuated by the emergence and assimilation of various philosophical and moral ideals and appears to culminate, at least to our eyes, in the establishment of a highly complex set of legal and political documents and institutions, whose express purpose is the protection and promotion of the fundamental rights of all human beings everywhere.21
WOMEN’S HUMAN RIGHTS
“Historical origins and development of the theory and practice of human rights” op. cit. note 12 Rorty Richard. "Human rights, Rationality and Sentimentality" in S. Shute & S. Hurley (eds.), On Human Rights: the Oxford Amnesty Lectures 1993 http://www.iep.utm.edu (accessed on July 29th, 2007)
Everywhere in the world, women are second-class citizens. The United Nations’ Member States have been pledging to correct that injustice and achieve equality between men and women since 1948, when they first adopted the Universal Declaration of Human Rights. Today, 182 countries are party to the Convention on the Elimination of All Forms of Discrimination Against Women, declaring that human rights and fundamental freedoms belong equally to women and men in the political, economic, social, cultural, civil and every other field. And yet, wherever one turns including within the United Nations itself - men hold power and advantage over women. Although that reality is now viewed as wrong and counter-productive, most modern-day institutions, governments, cultures and traditions are locked in a rut, and continue to reinforce male centrality and superiority. Women's marginal, lower status and unrealized potential punishes half the world's population, but weakens us all.22
The principle of the equal rights of women and men was recognized in the Charter of the United Nations, and is contained in the Universal Declaration of Human Rights and all subsequent major international human rights instruments. Confirmation of the principle of equality in these instruments was an important step in the recognition of the rights of women. Yet traditional exclusion of women from the public domain has persisted in many countries relegating women to the private domain. The need for women’s participation in all spheres of society - in both the public and the private domains - and the recognition of inequality and discrimination in the private domain, led to the creation of specific standards for the protection of women’s rights. In 1979, the United Nations General Assembly adopted the Convention on the Elimination on All Forms of Discrimination Against Women (CEDAW).23 CEDAW establishes women’s right to non-discrimination on the basis of sex, and affirms equality in international law. It provides that women and men are entitled to the equal enjoyment and exercise of human rights and fundamental freedoms in civil, cultural, economic, political and social fields.
Excerpt from Stephen Lewis (UN Special Envoy for HIV/AIDS in Africa) A Reformed UN Needs a Full-Fledged Women’s Agency, February 25, 2006. http.//www.choike.org_eng/informes/5439.html (accessed on July 20th, 2007) 23 CEDAW op. cit. note 3
The 1993 Vienna Conference on Human Rights24 and the 1995 Beijing Women’s World Conference25 recognized the need to build on these principles to assert women’s rights. These global conferences promoted the review of policies and programmes from the perspective of their impact on women and men - in other words, a re-evaluation of policies and programmes from a gender perspective. The incorporation of a gender perspective in the work of the United Nations is fundamental to the process of mainstreaming gender. Mainstreaming gender is an acknowledgement of the different ways in which gender roles and gender relations shape women’s and men’s access to rights, resources and opportunities, within and between cultures and at different stages in their life cycles. Its aim is to achieve the advancement of women through correcting disparities in different policy sectors and ensuring their enjoyment of civil, cultural, economic, political and social rights. Millions of women throughout the world live in conditions of abject deprivation of, and attacks against, their fundamental human rights for no other reason than that they are women. Combatants and their sympathizers in conflicts, such as those in Sierra Leone, Kosovo, the Democratic Republic of Congo, Afghanistan, and Rwanda, have raped women as a weapon of war with near complete impunity. Men in Pakistan, South Africa, Peru, Russia, and Uzbekistan beat women in the home at astounding rates, while these governments alternatively refuse to intervene to protect women and punish their batterers or do so haphazardly and in ways that make women feel culpable for the violence. As a direct result of inequalities found in their countries of origin, women from Ukraine, Moldova, Nigeria, the Dominican Republic,
The Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights (A/CONF.157/23) in June 1993 http://odsddsny.un.org/doc/UNDOC/GEN/N96/273/01/PDF/N9627301.pdf? (accessed on August 12th, 2007) 25 The Beijing Declaration and Platform for Action adopted by the Fourth World Conference on Women (A/CONF.177/20/Rev.1. annexes I and II, endorsed by G.A. res. 50/42, 50 U.N. GAOR Supp. (No. 49) at 33, U.N. Doc A/RES/50/49 on September 1995. http://odsddsny.un.org/doc/UNDOC/GEN/N96/273/01/PDF/N9627301.pdf? (accessed on August 12th, 2007)
Burma, and Thailand are bought and sold, trafficked to work in forced prostitution, with insufficient government attention to protect their rights and punish the traffickers. In Guatemala, South Africa, and Mexico, women's ability to enter and remain in the work force is obstructed by private employers who use women's reproductive status to exclude them from work and by discriminatory employment laws or discriminatory enforcement of the law. In the United States, students discriminate against and attack girls in school who do not conform to male standards of female behaviour. Women in Morocco, Jordan, Kuwait, and Saudi Arabia face government-sponsored discrimination that renders them unequal before the law, including discriminatory family codes that take away women's legal authority and place it in the hands of male family members and restricts women's participation in public life. Abuses against women are relentless, systematic, and widely tolerated, if not explicitly condoned. Violence and discrimination against women are global social epidemics, notwithstanding the very real progress of the international women's human rights movement in identifying, raising awareness about, and challenging impunity for women's human rights violations. We live in a world in which women do not have basic control over what happens to their bodies. Millions of women and girls are forced to marry and have sex with men they do not desire. Women are unable to depend on the government to protect them from physical violence in the home, with sometimes fatal consequences, including increased risk of HIV/AIDS infection. Women in state custody face sexual assault by their jailers. For over 80 years, the relationship between women and international organizations has barely existed in historical records and has been scarcely promoted by the media. Well before the Charter of the United Nations was approved in 1945, and already at the League of Nations, women fought and participated to include demands against discrimination, promoting the legal and social progress of women around the world. Previously, in 1933, the first international treaty on equality for women was discussed at the Seventh
International Conference of American States, which was only signed by Cuba, Ecuador, Paraguay and Uruguay. This treaty26 gave women in all participating countries the right to maintain their own nationality upon marriage to a foreigner. It was the first international instrument adopted in the world with regard to women’s rights. This Convention was decisive and acted as catalyst to make the League of Nations acknowledge the existence and legitimacy of women’s rights movements in the region. The United Nations Universal Declaration of Human Rights, the principal standard by which human rights are identified today, states that "everyone has a right to a standard of living adequate for the health and well - being of himself and of his family, including food, clothing, housing and medical care and necessary social services.”27 Article12 of the International Covenant on Economic, Social and Cultural Rights (Economic Covenant), intended to make more specific and binding the obligations of governments to protect the economic, social, and cultural rights enumerated in the Universal Declaration, "recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health," and to that end States Parties. The countries which have ratified or acceded to the Covenant are mandated to undertake the following steps to achieve its full realization: (a) The provision for the reduction of the stillbirth - rate and of infant mortality and for the healthy development of the child; (b) (c) The improvement of all aspects of environmental and industrial hygiene; The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d)
The creation of conditions that would assure to all medical service and medical attention in the event of sickness.
Convention on the Nationality of Women adopted and signed in 1933 at the 7th International Conference of American States. http://www.unhchr.ch/html/menu2/womenpub2000.htm#intro (accessed on August 12th, 2007) 27 Universal Declaration of Human Rights, Article 25(1).
While the International Covenant on Economic, Social and Cultural Rights has the most comprehensive definition of the right to health, other international human rights instruments also recognize this right. The International Convention on the Elimination of All Forms of Racial Discrimination,28 the Convention on the Elimination of All Forms of Discrimination Against Women29 and the Convention on the Rights of the Child30 also have provisions related to the right to health. The past two decades have seen women's organizations spring up around the world. Most of the advances which women have made towards claiming their rights have been the result of grass roots campaigning, usually by independent women's rights organizations. Some work for their "disappeared" relative or are community activists, fighting for basic economic and social rights such as freedom from want. Many are lawyers seeking justice for the underrepresented. They campaign against torture, domestic violence, equal treatment at work or for land rights and access to credit. This wave of courage, creativity and commitment has all too often met a wall of government indifference and sometimes government repression of the cruelest kind. Few governments recognize the work of women's human rights organizations as a legitimate exercise of fundamental civil and political rights. Women’s human rights activists have forced governments to acknowledge the pervasive nature of violations of women’s rights and their own duty to stop them. Despite the unprecedented visibility of the women’s rights movement and governments’ articulation of policies supporting women’s rights, many governments failed to reform laws that overtly discriminated against women
For instance Article 5(e) (iv) provides: “…States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of … economic, social and cultural rights, in particular… the right to public health, medical care, social security and social services….” The Convention was adopted by the United Nations General Assembly Resolution 2106 (XX) of 21st December, 1965. It entered into force on 14th January, 1969 in accordance with Article 19. http://www.hrweb.org/legal/cerd.html (accessed on August 1st, 2007) 29 Especially Article 12 30 CRC op. cit. note 2. Especially Articles 24 and 25 of the Convention.
and practices that denied women’s rights. Women’s rights advocates countered these failings with activism. There were some milestones in 1998 that reflected women’s struggle to bring human rights protections to bear in their own lives. In 1998 the International Criminal Tribunal for Rwanda convicted Jean-Paul Akayesu of sexual violence in Rwanda’s 1994 genocide, showing that there can be justice for women raped in conflict. In three African countries, Nigeria, Uganda, and Malawi, women’s rights activists pushed their governments to prove their commitment to women’s rights by granting women property and inheritance rights. In Mexico, women workers successfully petitioned a body established by the North American Free Trade Agreement (NAFTA) to recognize and remedy workplace sex discrimination. In these and other cases, change occurred as a direct consequence of women’s activism: its development locally and strength internationally. Despite this change in the rhetorical climate, in 1998 women were frustrated in their efforts to make the structures of government live up to the Universal Declaration. Implementation of women’s rights remained slow and inconsistent, reflecting the unwillingness of international actors to change the structures that accommodate and encourage daily abuses of women’s rights. Women still saw their ability to enjoy basic human rights challenged at every turn. Governments both proclaimed their commitment to women’s rights and pursued policies that undermined them. At least fourteen countries31 that have sworn to combat sex discrimination by ratifying the Convention on the Elimination of All Forms of Discrimination Against Women continued to deny women full citizenship and reserved the right to do so when they ratified CEDAW. Other governments openly challenged the notion that universal human rights extend to women. Taliban authorities in Afghanistan, for example, confined women to their homes, cut off their access to education and health care, and beat them on the streets.
Algeria, the Bahamas, Cyprus, Egypt, Fiji, Iraq, Jordan, Kuwait, Lebanon, Malaysia, Maldives, Morocco, Republic of Korea, Turkey, and Tunisia
Governments in countries such as Pakistan, Russia, and Peru did little to counter high levels of violence against women and failed to remove the barriers that block women victims’ access to justice and needed services. The fact of impunity for violence against women in peacetime only reinforced the longstanding problem of impunity for such acts in times of conflict or civil unrest. Ethnic Chinese women in Indonesia saw their reports of rape during and after May 1998 riots denied by government officials. In Algeria, authorities used reports of violence against women by armed extremists to discredit these groups but did little for women survivors of kidnapping and rape. Many governments refused to recognize, let alone remedy, discriminatory laws and practices that have cemented women’s inequality. Morocco and Guatemala, among others, did not repeal legislation that robs women of their right to make basic decisions about their lives - whom to marry, whether to have children, when to work outside the home, and whether to seek divorce. Signs of progress recorded in 1998 thus remained isolated incidents rather than indices of meaningful change. For example, the single conviction for sexual violence in Rwanda set a precedent but changed little for thousands of women awaiting justice from ad hoc U.N. tribunals in Rwanda and Bosnia. The slow progress of governments in responding to violence against women was tragically evident in Indonesia. Rather than setting up a credible investigation to determine what happened and guaranteeing the security of rape victims who came forward, the government denied not only its own involvement but also that rapes had occurred.32 Thus, the claim on human rights protections that women did assert remained tenuous. Universality was under siege when it came to extending human rights protections to women. Governments did little to remedy violence and discrimination against women, two significant indicators of women’s secondary status in societies around the world. Gains for women’s rights
“Women’s Right” http://www.hrw.org/worldreport99/women/women1.html (accessed on July 7th, 2007)
occurred in an isolated fashion in part because they came primarily where the cost was least; that is, women’s rights were respected only when no competing interests dictated otherwise. Governments and other international actors showed their willingness to abandon women’s rights when other pressures came to bear. This was particularly evident in 1998 with the economic downturn in parts of Asia and Eastern Europe. In countries facing economic crises, women workers were forced out of the workforce or, in some instances, tracked into low-skill, low-paying jobs. Adverse socioeconomic conditions in many regions also increased the likelihood that women and girls would be lured into forced prostitution, involuntary marriage, or other forms of forced labor. In Russia and other countries of the former Soviet Union, for example, women were barred from job opportunities simply because of their sex. Governments also acted inconsistently to ensure accountability for violence against women in conflict or refugee situations. For example, governments turned in a mixed record in the Rome negotiations to establish an International Criminal Court, on the one hand specifying that crimes against women be handled by the court and, on the other, limiting the power of the prosecutor to hold perpetrators accountable. Moreover, the precedents of the former Yugoslavia and Rwanda did not translate into international condemnation of sexual violence against women in other conflicts such as in Sierra Leone, where women reported being raped and sexually assaulted as civil war raged, or in Tanzania, where refugee women seeking shelter instead experienced high rates of assault.33 At present, the UN has committees and agencies that deal exclusively with women’s issues and are under-funded to perform their work.34
Ibid. These are UNIFEM (the United Nations Development Fund for Women), DAW (Division for the Advancement of Women), OSAGI (the Office of the Special Adviser to the Secretary-General on Gender Issues and Advancement of Women) and INSTRAW (United Nations International Research and Training Institute for the Advancement of Women)
THE RIGHTS OF THE GIRL CHILD
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.35
Human rights should apply equally to all people - men and women, girls and boys. However, girls’ access to these rights is not always easy or guaranteed, full or free. All children and young people in the world have the same rights, and these rights are listed in the UN Convention on the Rights of the Child. In 1959 a working group drafted the Declaration on the Rights of the Child, which consisted of ten principles setting forth basic rights to which all children should be entitled. These principles then needed to be codified in a convention. The formal drafting process lasted nine years, during which representatives of governments, intergovernmental agencies (for example UNICEF and UNESCO) and nongovernmental organizations (NGOs), like Save the Children and the International Red Cross, worked together to create consensus on the language of the Convention. The resulting Convention on the Rights of the Child (Children’s Convention) contains 54 articles that can be divided into three general categories: i protection, covering specific issues such as abuse, neglect, and exploitation; ii provision, addressing a child’s particular needs such as education and health care; iii participation, acknowledging a child’s growing capacity to make decisions and play a part in society.
Article 7 UDHR
The total number of member states that have ratified the Children’s Convention has surpassed that of all other conventions. The Convention on the Rights of the Child (CRC) sets out the fundamental rights and freedoms of all people under the age of 18. The CRC does not give enforceable rights directly to individual children, but imposes obligations on states to bring their rights into national law. In the 18 years of its existence the CRC has become the most widely adopted human rights instrument with 192 states parties.36 In Nigeria, only ten states out of the 36 states have domesticated the Convention so far.37 The CRC builds on the Universal Declaration of Human Rights, which proclaims that children are entitled to special care and assistance as they often lack the physical and political means to defend their own rights. It recognizes ways in which children are particularly vulnerable, as victims of conflict, abuse, exploitation or neglect. It identifies their needs, confirming the rights to primary and secondary education, adequate health care and social security, among others. There are also two Optional Protocols38 to the CRC which establish stronger standards than those contained in the Convention on:
the involvement of children in armed conflict the sale of children, child prostitution and child pornography
The rights of girls are thus, enshrined in one of the most widely ratified of the United Nations core human rights treaties - the Convention on the Rights of the Child. The Convention provides a framework for guaranteeing that all children
Nigeria ratified the CRC in 1991 without any reservations. http://www.unhchr.ch/huricane/huricane.nsf/0/B39C5D8F929E7C98C1256F96002C537A?opendocum ent (accessed on October 18th, 2007) 37 Tayo Agunbiade “UN Seat and the Nigerian Child” Thisday Newspaper, Vol. 12, No. 4339, Friday, March 9, 2007 at p. 18 38 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000. It entered into force on January 18th, 2002 & Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of May 25th, 2000. It entered into force on 12 February 2002 http://www.unhchr.ch/html/menu3/b/treaty17.htm (accessed on August 1st, 2007)
everywhere, without discrimination, have the right to survival, to develop to the fullest, to protection from harmful influences, abuse and exploitation, and to participate fully in family, cultural and social life. Every single person regardless of their age has human rights. Children and young people have special rights because being young sometimes makes them more vulnerable. Some examples of the kind of rights that girls have are the right to be listened to, the right to an education and the right to be looked after if they get sick.
CONCEPT OF DISCRIMINATION
The girl-child is discriminated against from the earliest stages of life, through her childhood and into adulthood. In some areas of the world, men outnumber women by 5 in every 100. The reasons for this discrepancy include harmful attitudes and practices, such as female genital mutilation, son preference . . . early marriage ...violence against women, sexual exploitation, sexual abuse, discrimination against girls in food allocation and other practices related to health and well-being. As a result, fewer girls than boys survive into adulthood.39
The word 'discriminate' simply means to make a distinction or to differentiate between people or things. A person 'discriminates' when they treat another person either more or less favourably on the basis of whatever consideration matters to them.40 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination. The Convention in Article 1 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,
Beijing Platform for Action, paragraph 259 http://www.UNFPA_Working to Empower Women-The Girl-child.htm (accessed on August 1st, 2007) 40 A. S. Hornby op. cit. note 6, 330
of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
The Convention provides the basis for realizing equality between women and men through ensuring women's equal access to, and equal opportunities in, political and public life - including the right to vote and to stand for election as well as education, health and employment. States parties agree to take all appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms. The Convention is the only human rights treaty, which affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations. It affirms women's rights to acquire, change or retain their nationality and the nationality of their children. States parties also agree to take appropriate measures against all forms of traffic in women and exploitation of women. Girls often face discrimination from the earliest stages of life, through childhood and into adulthood. Her low status is reflected in the denial of fundamental needs and rights and in such harmful attitudes and practices as a preference for sons, early marriage, female genital mutilation, domestic abuse, incest and sexual exploitation, discrimination, less food and less access to education.41 Overall, girls' school attendance still lags severely behind that of boys. One of the major reasons why so many girls do not attend school is because of their workload, both within and outside the household. Daughters are often kept at home to help the family because the social and economic value of educating girls is not recognized. It is a little known fact that among the world's exploited child workers, girls outnumber boys.42
"Review and Appraisal of the Implementation of the Beijing Platform for Action: Report of the Secretary-General” (E/CN.6/2000/PC/2). Published by the United Nations Department of Public Information DPI/2035/L - May 2000. Fact Sheet No. 12 http://www.un.org/copyright.htm (accessed on July 29th, 2007) 42 Ibid.
Without access to education, girls are denied the knowledge and skills needed to advance their status. By educating girls, societies stand to gain economically. In addition, educated mothers usually have smaller families, with healthier and better-educated children. In times of diminished food resources, girls and their mothers are often last to be fed, resulting in a diet low in calories and protein. An estimated 450 million adult women in developing countries are stunted as a result of childhood protein-energy malnutrition. Iodine and iron deficiencies also have significant consequences for pregnant women and their offspring. There has been an alarming increase in the number of girls infected with the HIV virus. Adolescent girls are at high risk of contracting HIV because their low social status often pressures them into situations where they are forced to have unprotected sexual intercourse with men. There is an increased awareness of the need to provide information, guidance and services to adolescent girls with regard to sexually transmitted diseases, as well as reproductive and sexual health. Violence against girls as well as women remains a persistent problem that takes many forms, including sexual exploitation and abuse, rape, incest, prostitution, child pornography, trafficking, and harmful traditional practices such as female genital mutilation. According to the United Nations Population Fund,43 it is estimated that between 85 and 114 million women and girls, most of who live in Africa, the Middle East, and Asia, have undergone female genital mutilation. Trafficking in women and children, most often for commercial sexual exploitation, is estimated to generate up to $8 billion each year according to the International Organization for Migration (IOM). Girls are often treated as inferior to boys, both within the home and by societyat-large. They are socialized to put themselves last, which in turn undermines their self-esteem and their ability to reach their full potential as human beings. When a girl is prevented from going to school or is too exhausted to pay
attention in class because of her workload at home, she is being denied her right to education. When a girl carries the bulk of responsibility for the housework while her brother studies, plays or attends to his interests and hobbies, she is being discriminated against. Girls continue to be married at a very young age in many countries and have to cut short their education and face the dangers of repeated pregnancies and childbirth, which jeopardize their health and well-being. Millions of school age girls worldwide are working in domestic service, which can expose them to significant levels of discrimination and violence and constrain their access to education and other opportunities. The Millennium Development Goal target to eliminate gender disparity in primary and secondary education by 2005 has already been missed. Even where increased enrolment of girls has been achieved, positive outcomes are not guaranteed, as girls are more likely than boys to repeat classes or to drop out of school. Evidence also shows that girls are less motivated to pursue studies in science and technology and have lower achievement levels in these areas than boys, owing to low expectations and stereotypical attitudes.44
2.1 CULTURE AND TRADITION IN DISCRIMINATON AGAINST
WOMEN AND GIRLS
Culture may be defined as the totality of a peoples’ ways of life. This includes its beliefs, attitudes, values, norms, customs, behaviour patterns, symbols, myths, language, food, artifact, and other skills which members of society or community share as a framework for interpreting the social world, including patterns of gender roles and relationships.45
Culture has also been defined as that
Complex whole which includes knowledge, beliefs, arts, law, morals, customs and all other capabilities and habits acquired by man as member of society.46
Agunbiade op. cit. note 37 Kibiti, op. cit, note 4 46 Ibid.
Therefore, culture determines or conditions gender roles and relations of a given society. Over the years, it has become an ideology which provides justification for the oppression of women, creates justification for their exploitation, and create adequate space for male domination and control over women. In other words, culture as an ideology devalues women and works in favour of men as reflected in various cultural rituals and celebrations such as childbirth and rites of passage. Cultural discrimination against women goes beyond violence in terms of beating. It includes forced marriage, dowry-related violence, marital rape, sexual harassment, intimidation at work and in educational institutions, forced pregnancy, forced abortion, forced sterilization, trafficking and forced prostitution. Violence against women is a human rights abuse. The 1993 UN Declaration on the Elimination of Violence against Women47 defines it as any act of gender-based violence - that is, violence directed against a woman because she is a woman or that affects women disproportionately - that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. On a daily basis women are beaten and punished for supposed transgressions, raped and even murdered by members of their family. In some cases, vicious acid attacks leave them with horrific disfigurements. Girls and young women are forced into early marriage by parents and relatives. In many communities, the traditional practice of female genital mutilation continues to traumatize young girls and leave women with lifelong pain and damage to their health. The African Charter on Human and Peoples’ Rights is unequivocal that states parties incur the duty to "recognize the rights, duties and freedoms enshrined in the Charter and…to adopt legislative or other measures to give effect to
UN Declaration on the Elimination of Violence against Women, para. 1; CEDAW Committee, General Recommendation 19, Violence against women (11th session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 at 84 (1994), para 6. http://www.unhchr.ch (accessed on July 29th, 2007)
them".48 The enjoyment of rights under the Charter is the entitlement of every individual "without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status".49 States parties’ duties to ensure the elimination of discrimination against women is specifically codified in Article 18(3) in which reference is also made to "international declarations and conventions" of relevance to the protection of women’s and children’s rights. The African Charter is unique in stipulating a duty on individuals to "preserve the harmonious development of the family and to work for the cohesion and respect of the family".50 This duty clearly has relevance in the context of violence in the family. The definition of torture under the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment,51 is not limited to acts by state officials, but also includes acts performed "with the consent or acquiescence of a public official or other person acting in an official capacity".52 All the elements of torture, as defined by that article, can be present in domestic violence: it may cause "severe pain or suffering, whether physical or mental", and may be "intentionally inflicted" for a purpose such as "punishment" or "for any reason based on discrimination of any kind". An example of a situation where a state may be in violation of the prohibition on torture that is inflicted by individuals is marital rape, where it is not criminalized by law.53 The UN Convention on the Elimination of All Forms of Discrimination Against Women, (CEDAW) sets out in detail the obligations of states parties to secure equality between women and men and to prohibit discrimination against
Article 1 Article 2 50 Article 29(1) 51 The Convention was adopted by the United Nations General Assembly Resolution 39/46 of 10th December, 1984. It entered into force 26th June, 1987 in accordance with Article 27(1). Nigeria became a state party in 2001. http://www.hrweb.org/legal/ctcp.html (accessed on August 1st, 2007) 52 Article 1(1) 53 An example is Article 16, CEDAW.
women. It expressly requires states parties to "take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise"54. If the state fails to offer protection against discriminatory practices and abuses, or to bring to justice those who commit such abuses and to ensure reparation for the victims, it is in breach of its legal obligations. Many of the states that have ratified CEDAW have entered reservations to some of its provisions. Nigeria, however, has ratified without any reservations. Violence against women and girls are all too frequently excused and tolerated in communities where women are assigned an inferior role, subordinate to the male head of the family and effectively the property of their husbands. Husbands, partners and fathers are responsible for most of the violence against women. The violence persists because discriminatory laws condone and even legalize certain forms of violence against women. Dismissive attitudes within the police and an inaccessible justice system compound the failures of the state to protect women’s rights. Violence against women and in the home is generally regarded as belonging in the private sphere and is shielded from outside scrutiny. A culture of silence reinforces the stigma that attaches to the victim rather than the perpetrator of such crimes. Such practices cause trauma, injuries and death. Female genital cutting, for example, is a common cultural practice in parts of Africa. Yet it can cause “bleeding and infection, urinary incontinence, difficulties with childbirth and even death,” reports the World Health Organization (WHO). The organization estimates that 130 million girls have undergone the procedure globally and 2 million are at risk each year, despite international agreements banning the practice.55 Sexual violence is another problem. A local organization in Zaria, Nigeria, found that 16 per cent of patients with sexually transmitted diseases (STDs) were girls under the age of five, a sign of sexual assault. In the single year
Article 2(e) “Female Genital Cutting” http://www.endvaw.org/resources/fgm.php (accessed on July 25th, 2007)
1990, the Genito-Urinary Centre in Harare, Zimbabwe, treated more than 900 girls under 12 for STDs. Such assaults, observed a WHO publication, put “African women and girls at higher risk of sexually transmitted diseases (including HIV/AIDS) than men and boys.”56 The expression Female Genital Mutilation gained growing support in the late 1970s. The word mutilation not only established clear linguistic distinction from male circumcision, but it also emphasized the gravity of the act. In 1990, this term was adopted at the third conference of the Inter African Committee on Traditional Practices Affecting the Health of Women and Children (IAC) in Addis Ababa. In 1991, the World Health Organization recommended that the United Nations adopt this terminology and subsequently, it has been widely used in United Nations documents.57 Amnesty International and the World Health Organization most often refer to the practice as 'Female Genital Mutilation'. The use of the word mutilation reinforces the idea that this practice is a violation of the human rights of girls and women, and thereby helps promote national and international advocacy towards its abandonment. At the community level, however, the term can be problematic. Local languages generally use the less judgmental “cutting” to describe the practice; parents understandably resent the suggestion that they are “mutilating” their daughters. In this spirit, in 1999, the UN called for tact and patience regarding activities in this area and drew attention to the risk of “demonizing” certain cultures, religions and communities. As a result, the term “cutting” has increasingly come to be used to avoid alienating communities. In 1996 the UNFPA-sponsored Reproductive, Educative, And Community Health program coined the term 'Female Genital Cutting', observing that 'Female Genital Mutilation' may "imply excessive judgment by outsiders as well as
Ibid. “Female Genital Mutlation” http://www.worldywca.info/index.php/ywca/world_council_07/iws_women_s_summit (accessed on July 25th, 2007)
insensitivity toward individuals who have undergone some form of genital excision. There are several distinct practices of Female Genital Cutting that range in severity, depending on how much genital tissue is cut away. Four major types have been categorized, although there is some debate as to whether all common forms of FGC fit into these four categories, as well as issues with the reliability of reported data.58 The four major types are: 1 Clitoridectomy Clitoridectomy involves the removal or splitting of the clitoral hood, termed "hoodectomy" (or "clitorodotomy"), with or without excision of the clitoris. The clitoral hood is the female prepuce, homologous to the foreskin of the male. This term was devised in Sudan by the Anglo-Sudanese administration in 1946 in an attempt to promote this "milder" form of Female Genital Cutting instead of the more severe infibulation or pharaonic circumcision that was widely practiced.59 Removal of the clitoral hood may be performed in order to increase sexual response.60 2 Excision
Excision refers to clitoridectomy (removal of the prepuce and the clitoris) plus the partial or total removal of the labia minora, the inner lips of the vulva, Excision is a more extensive form of Female Genital Cutting compared to clitoridectomy and due to the sewing together of the leftover labia minora epidermis, which contains sweat glands, a buildup of sweat and urine in the
S Elmusharaf; N Elhadi, L Almroth (2006-07-15). "Reliability of self reported form of female genital mutilation and WHO classification: cross sectional study". BMJ 333 (7559): pp. 124. DOI:10.1136/bmj.38873.649074.55.PMID16803943 http://en.wikipedia.org/wiki/female_genital_cutting#_note-Elmusharaf_2006 (accessed on August 1st, 2007) 59 Margaret E. Davidson. “Female circumcision: What medical students should know”, Oxford Medical School Gazette http://en.wikipedia.org/wiki/female_genital_cutting#_note-2 (accessed on August 1st, 2007) 60 Carol Ezzell. "Anatomy and Sexual Dysfunction", Scientific America, October 31st, 2000 http://en.wikipedia.org/wiki/female_genital_cutting#_note-3 (accessed on August 12th, 2007)
closed off space beneath this closure can lead to local or urinary infection, septicemia, hemorrhaging and cyst formation.61 This type of FGC is also called khafd, meaning reduction in Arabic. 3 Infibulation
Infibulation is the most severe form of Female Genital Cutting and is called infibulation or pharaonic circumcision (referring to the Pharaohs who were thought to practice this form). Infibulation involves extensive tissue removal of the external genitalia, including all of the labia minora and the inside of the labia majora, leaving a raw open wound. The labia majora are then held together using thorns or stitching and the girl's legs are tied together for two to six weeks, to prevent her from moving and allow the healing of the two sides of the vulva. Nothing remains of the normal anatomy of the genitalia, except for a wall of flesh from the pubis down to the anus, with the exception of a pencilsize opening at the inferior portion of the vulva to allow urine and menstrual blood to pass through. This type of Female Genital Cutting is often carried out by an elderly matron or midwife of the village on girls between the ages of two and six, without anaesthetic and under unhygienic conditions. 4 Other types
There are other forms which usually do not involve any tissue removal at all, but rather the "cutting" is simulated with a knife as part of a ceremony. This includes a diverse range of practices, including pricking the clitoris with needles, burning or scarring the genitals as well as ripping or tearing of the vagina or introducing herbs into the vagina to cause bleeding and a narrowed vaginal opening. This is found primarily among isolated ethnic groups as well as in combination with other types. Female genital cutting is today mainly practiced in African countries. It is common in a band that stretches from Senegal in West Africa to Somalia on the
East coast, as well as from Egypt (that has just banned FGC62) in the north to Tanzania in the south. In these regions, it is estimated that more than 95% of all women have undergone this procedure. It is also practiced by some groups in the Arabian Peninsula, especially among a minority in Yemen.63 The countries that practice FGC the most are Somalia, followed by Egypt, Sudan, Ethiopia, and Mali. Among ethnic Somali women, infibulation is traditional and nearly universal. In the Arab peninsula, Sunna circumcision is usually performed, especially among Arabs.64
2.1.1 STATUS OF WOMEN AND GIRLS UNDER NIGERIAN CULTURES The discussion begins by examining the image of womanhood in Nigeria. Important stages that mark the passage to womanhood are girlhood or maidenhood, wifehood and motherhood. These stages also reflect the images through which women are perceived. Such images influence and determine the responsibilities and roles that are ascribed to females and what they participate in. Right from birth, girls are perceived in the light of their future roles as prospective wives and mothers. Among the Igbo, at birth a baby girl is referred to as "Akpa - ego" (bag of money), or 'unoaku' (house of money), or 'obute aku' (source of wealth). These names are allusions to bride wealth, which would accrue when the girl gets married and other benefits that would be derived through interaction with prospective in-laws. Hence from infancy, the
BBC World News: Special Report on FGC. http://news.bbc.co.uk/1/hi/world/middle_east/6251426.stm (accessed on August 12th, 2007) 63 Ibid. 64 Ethnic groups of African descent are more likely to prefer infibulation
socialization of girls is tailored towards equipping them with qualities that will enable them fulfill their expected future roles as wives and mothers. As young girls they are not encouraged to engage in much leisure activities as boys. The virtues of self-control and industry are inculcated in them. Girls are often overworked looking after younger siblings, receive early orientation for domestic responsibility such as fetching of water and firewood, and running other errands in the domestic sphere. On becoming an adult, it is perceived that the most important status a woman attains is derived through marriage. Among the Igbo, it is expected that women must marry and this is the reason why marriage has precedence over descent. Thus some Igbo maternity songs that emphasize the importance of marriage for girls have been sung as follows:
"Be you as beautiful as a mermaid, the beauty of a woman is to have a husband. Be you one who has been to the land of white people the beauty of a woman is to have a husband. If a woman does not marry, her beauty declines…"
Nigeria is a male dominated society and women and girls are subordinate, whether they are rich or poor, urban or rural, educated or uneducated. Women and girls face discrimination and oppression from males. Domestic violence has been reported as a matter of significant concern.65 Despite being almost half of the population, this numerical strength of the Nigerian women and girls has not affected the age-long inferior status the society bestows on them. Several factors have been adduced for the degrading position of women in the Nigerian society most of which can be traced to the patrichial system being operated and the gender insensitivity of not only the male folk but the entire society including the women who have been socialized to accept the inferior status. It is intriguing to note that the subordination of women and girls know no boundaries or barriers and does not depend on the social, educational or
Priya Verma, “Nigeria: Half of women experience domestic violence”, Off Our Backs, Vol. 35, No. 5-6, 2005 http://www.newfirstsearch.oclc.org.ezproxy.flinders.edu.au/WebZ/FFETCH?fetchtype=full (accessed on July 29th, 2007)
economic status of the Nigerian women. Consequently one finds that an uneducated and poor woman in the rural community suffers as much subordination as an educated and rich woman in the urban center. Gender inequality is experienced by the woman and is manifested in almost all aspects of human endeavour in Nigeria. Cultural beliefs tend to contribute largely to Nigerian women and girl’s gender discrimination and low status. Some of these beliefs have been practiced for so long that they are embedded in the societal perception almost as legal norms such that the laws of the land and international instruments, which protect the rights of women, are flagrantly infringed under the guise of these age-long cultural beliefs. Furthermore, the effects of the many years of military misrule have negatively affected the human rights treatment of the citizens of which women and girls are worst sufferers. In addition the economic downturn as a result of the mismanagement and corruption of the military governments has impoverished Nigeria, placing it as one of the poorest countries despite her enormous natural and human resources. Nigerian women and girls bear the brunt of poverty and constitute the poorest of the poor in the society consequent upon which the Nigerian woman and girl suffers violations of her rights from conception till she dies66 without redress by the society. At birth the male child is preferred to the female, as she grows the female child suffers various forms of violence such as genital mutilation or female circumcision. In the home she is denied education in preference to her male counterpart and subjected to heavy burden of household chores. As a child the female may be given out to marriage in some cultures and or become victim of trafficking.
In Nigeria women suffer inequality and various forms of violence from the cradle until death. At birth a male child is preferred and pampered, the girl child is not so welcomed. She undergoes female genital mutilation at tender age, she is subjected to overburdening household chores to prepare her for the societal role of home keeping, she is also given out in marriage at early ages to ensure that she does not become promiscuous and is married out as a virgin. During and after marriage she is inferior to the man. She is also not allowed to inherit, and subjected to physical, psychological and mental abuse and violence.
During marriage the woman suffers inferior status in the home; she is not part of decision-making, denied inheritance rights as a child or wife and is a victim of domestic violence and marital rape. In the society the woman is a victim of various forms of sexual assaults without redress, denied access to credit and suffers poverty more than her male counterpart despite her enormous contribution to the Nigerian economy especially in the informal sector. The Nigerian women are underrepresented in the political arena in the public or private sectors, which further lowers their status in the society. Soldiers and security agents, deployed in repression of protests, have been implicated in rape and violence against women, for example in Choba in October 1999. Women and girls were killed in the Odi massacre of November 20, 1999.67 There have been violent military options68 employed by the former Obasanjo government, to secure the oilfields and pipelines. As it is well known, health is high on the agenda of women’s issues. The HIV/AIDS epidemic has had a significant impact on women.69 Many girls enter marriage at a young age and their husbands are older and often have had multiple partners. Such girls are at risk of contracting HIV/AIDS from their husbands. Women do not have the power to resist sex with their husbands. Harmful marriage practices violate women's human rights and contribute to increasing HIV rates in women and girls. In Nigeria, there is no legal minimum age for marriage and early marriage is still the norm in some areas. Parents see it as a way of protecting young girls from the outside world and maintaining their chastity. Many girls get married between the ages of 12 and 13 and there is usually a large age gap between husband and wife. Young married girls are at risk of contracting HIV from their husbands as it is acceptable for men to have sexual partners outside marriage and some men have more than one wife.
Zalik Anna, “The Niger Delta: ‘Petro Violence’ and ‘Partnership Development’ ”, Review of African Political Economy, No. 101:401-424, 2004, p.406 http://www.ssn.flinders.edu.au/global/africa/billtucker/index.htm#_ftn43 (accessed on August 1st, 2007) 68 The Military in Nigeria just finished their bombardment of Port Harcourt in Rivers State, Nigeria. 69 60% of HIV sufferers are women: “HIV/AIDS in Nigeria” http://avert.org/aids-nigeria.htm (accessed on August 1st, 2007)
Because of their age, lack of education and low status, young married girls are not able to negotiate condom use to protect themselves against HIV and STIs. 70 There have been attempts to address the problem of educating young women on their social and sexual rights. One important indicator of women’s health problems is the maternal mortality rate. This rate is 1549 per 100,000 live births in the northeast. The lowest rate is in the southwest at 165 per 100,000 live births. The figures, in the northeast, are among the worst in the world. Lack of access to adequate health facilities is a major contributing factor.71 Safe termination of pregnancy is also an issue as women are exposed to unsafe abortions.72 The impact of the structural adjustment policies of the World Bank and IMF has fallen heavily on Nigerian women. The deregulation of prices, devaluation of the currency and cuts to welfare services have resulted in deepening poverty for most social groups.73 Women are the most affected by poverty in Nigeria. There are some sensitive cultural issues surrounding Nigerian women. Women are further exposed to the risk of AIDS by particular rites and customs. The most shocking is the practice of female genital mutilation (FGM).74 Enforced as a check on women’s promiscuity, and often justified as part of religious tradition, these horrific operations are often carried out by local ‘physicians’ using unsterilized instruments. Such operations carry considerable danger to the young girls’ health in themselves. The implications for the spread of AIDS
Child Marriage Briefing Nigeria, Population Council. September 2004 http://www.phishare.org/documents/PopCouncil/2478? (accessed on August 1st, 2007) 71 “Women’s Reproductive Rights in Nigeria: A Shadow Report”, p.3. http://www.reprodutiverights.org/ (accessed on August 12th, 2007) 72 Qualls Alyssa, “Women in Nigeria Today” http://www.postcolonialweb.org/Nigeria/contwomen.html (accessed on August 1st, 2007) 73 Pereira Charmaine, “Configuring ‘global,’ ‘national,’ and ‘local’ in governance agendas and women’s struggles in Nigeria”, Social Research, New York: Fall 2002, Vol.69, Iss3; pg. 781 (Abstract) http://proquest.umi.com.ezproxy.flinders.edu.au/pdqweb?index=7&did=233862391&…(accessed on August 1st, 2007) 74 A Law passed by the Federal Government in 2002 prohibits Female Genital Circumcision. FGM has been outlawed in some states including Cross Rivers, Delta, Edo, Osun and Ogun, and moves are been made in Akwa Ibom and Bayelsa for the passage of laws banning FGM.
need not be spelt out. Female genital mutilation75 includes a number of different procedures. There is no earthly reason why the girl-child should be circumcised anywhere. The practice is carried on only for the reason of the self-aggrandizement of men; for the sadistic reasons of curbing the sexual appetites of women; and from keeping them from imagined promiscuousness. One wonders how the excessive sexual appetites of some men and their promiscuousness are curbed. Do women become promiscuous or prostitute by themselves or with themselves? The United Nations Convention on the Rights of the Child states that “States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children”.76 It has been said that FGM is a breach of Section 34 (1)(a)77 of the 1999 Constitution of the Federal Republic of Nigeria. Despite more than 25 years of efforts to curtail its practice, female genital mutilation (FGM) is still a deeply rooted tradition in more than 28 countries in Africa and in some countries in Asia and the Middle East. In the world today there are an estimated 100 million to 140 million girls and women who have been subjected to the operation. Currently, about 3 million girls, the majority under 15 years of age, undergo the procedure every year. Inheritance rights also disadvantage women and girls in Nigeria. If the husband leaves or dies, women usually receive nothing. They are left to bear the financial burden of the family. Due to customary laws, thousands of AIDS widows throughout Africa are denied inheritance. African women do not own or inherit the land they cultivate or the houses in which they raise their families. The laws give ownership of marital housing to husbands and male
WHO, the United Nations Children's Fund (UNICEF) and the United Nations Population Fund (UNFPA) have defined FGM as “the partial or total removal of the female external genitalia or other injury to the female genital organs for cultural or other nontherapeutic reasons” 76 Article 24 77 The section provides: “Every individual is entitled to respect for the dignity of his person, and accordingly no person shall be subjected to torture or to inhuman or degrading treatment.”
relatives. Some women become so destitute that they resort to prostitution to support their families. Yet despite the codes of conduct indoctrinated into women, there are many who live the precarious and dangerous life of the sex worker. The prime reason is a pressure even greater than culture and religion: economic pressure. The economic situation plays an important role in the spread of AIDS. Currently, Nigeria produces around 100,000 graduates every year. Of these, 90% join the teeming mass of unemployed youths. Nigeria is richly endowed with human and natural resources, but mismanagement, misappropriation and embezzlement in government circles have led to the masses being reduced to abject poverty. The proportion of the population living on less than $1 a day has reached 70% and is increasing, exacerbated by religious and ethnic upheavals that result in death and the destruction of property. In all this, women are worst affected. Girls are forced into prostitution to escape poverty. Their choice is a stark one: die of starvation now or run a high risk of contracting AIDS and dying a few years on. While the threat of hunger remains, no amount of preaching against prostitution will change the situation. In a country with an AIDS pandemic like Nigeria, their route for survival becomes an instrument of death. Prostitution is illegal in Nigeria, but there are more than a million female sex workers and HIV infection is estimated to be as high as 30%. They are forced into sex work, domestic servitude and various forms of modern day slavery.78 As many as 20,000 Nigerian women are estimated to be engaged in sex work in Italy alone. Trafficking is a product of the globalization of criminal networks. Women tend to be caught up in prostitution and trafficking because of the desperate state of poverty in which they live.
Charmaine, op. cit. note 73
Although, Nigeria is a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the concern of the human rights community is the reluctance of the immediate past National Assembly, under former President Obasanjo’s government, to domesticate the treaty amidst cultural and religious misgivings about the prohibition of early marriages for girls, as well as fears that it seeks to legalise abortion. There has been series of reactions to the set back suffered by the Bill on CEDAW at the National Assembly recently. Many commentators described the non passage of the bill by the National Assembly as 'throwing away the baby with the bath water' while a few applauded the act and appealed to the National Assembly to ensure that the bill does not see the light of the day. However, the Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW, is one of the most ratified human rights treaties. As at November 2 2006, 185 countries - over ninety percent of the members of the United Nations - had become parties to the Convention. The Convention is a comprehensive bill of rights for women and is based on the principles of equality between men and women on the notion that women experience particular forms of discrimination because of their gender. Nigerian women’s low status in marriage also makes them vulnerable to violence from their husbands. When men beat up their wives, there are no reprisals. Marital rape must be suffered in silence. Fear of beating and rape keeps many women from questioning their husbands’ sexual escapades. And submission frequently reaps a death sentence as many women contract AIDS as a result of coerced sex. For unmarried girls, the situation is even worse. If a rape is reported, it is the girl who suffers the shame, and all chance of future marriage. It was "Folake" who was jailed after she accused a man of rape. A domestic worker, she said her employer’s husband had forced her into his bedroom and made her watch a violent videotape before forcing her to have sex. A medical examination supported her allegation. Yet she was the one brought to court, charged with slander for making the accusation, and
remanded in prison until her family could raise the bail money to have her released. The material evidence of the crime, handed over to the police, was later said to have disappeared. No charges were brought against the man she accused.79 AIDS has added a further, nasty dimension to this situation. Odion tested positive to HIV/AIDS in the city of Lagos. He went to his hometown of Igueben in Edo State from Lagos and raped eight girls there within a month, after which he prepared a notice entitled ‘HIV Carriers in Igueben’, typed out their names, and pasted copies on signposts all over the town. Odion and the eight girls were arrested immediately. On interrogation, Odion explained that he didn’t want to die alone and that he wanted to enjoy himself before he died. The girls tested positive to HIV. In tears, they described how fear of shame and rejection had prevented them reporting the rape.80 While rape continues to thrive, checking the spread of HIV/AIDS becomes a Herculean task. Countless women and girls in Nigeria are subjected to violence by some members of their families and within their communities, as in many countries throughout the world. Women of all ages and from all socio-economic groups, living in rural and urban communities, are affected. The lack of official statistics makes assessing the extent of the violence an almost impossible task, but studies suggest levels of violence are shockingly high. More than a third and in some groups nearly two-thirds of women in Nigeria are believed to have experienced physical, sexual or psychological violence in the family. "Fatima", a domestic worker aged 12 years old, was reported to have been doused with kerosene and set on fire after she was accused of stealing meat from her employer. The alleged perpetrator was charged in connection with her death, but the outcome of the case is not known.”81 Under these circumstances, women’s ability to protect themselves is minimal.
Amnesty International interview with "Folake", Lagos State, November 2004. http://web.amnesty.org/library/index/ENGAFR440202006 (accessed on August 12th, 2007) 80 “Nigeria: Unheard Voices” http://news.amnesty.org/actforwomen (accessed on August 12th, 2007) 81 Guardian Newspaper Online, July 22nd, 2002 http://web.amnesty.org/library/print/ENGAFR440042005 (accessed on August 12th, 2007)
Inequality in the enjoyment of human rights by women throughout the world is often deeply embedded in tradition, history and culture, including religious attitudes. While respect for diversity and for diverse forms of social and cultural expression and identity must guide all human rights principles, equally important is the recognition of the dignity and worth of women as full human beings. International human rights law has repeatedly stressed that women's human rights cannot be violated on the grounds of cultural norms. The Convention on the Elimination of All Forms of Discrimination Against Women requests states to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary 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. Nigerian women are also exposed to health hazards, including the risk of HIV infection, by the rites they must perform at the death of their husbands. The plight of a widow is made worse by humiliating widowhood rites, which include requesting that a woman drink from the water used in bathing the corpse of her husband and in many cases, widows are also expected to go into confinement for weeks to prove their innocence from any possibility of complicity in their husband’s death. Some widows are beaten for not wailing enough for the death of their husband. The above examples are common in the eastern part of Nigeria. A study on widow confinement shows that 45% of widows were confined for varying lengths of time, 62% in South-South, 60% in North West, 51% in South West, 48% in North East and 27% in South East.82 These religious rites are considered to be important in easing the journey of the soul of the departed to the next world. The widow’s head is shaved with an unsterilized razor. She may be forced to marry a relation of her late husband, who may not have undergone an AIDS test. She is also at greater risk of being raped. Otibhor Edogar, from Ekpoma in Edo State, is HIV positive. She could
Brief overview of the legal status of women in Nigeria by Abiola Akiyode Afolabi http://web.amnesty.org/library/print/ENGAFR440082002 (accessed on August 12th, 2007)
not pinpoint the actual source of her contracting the infection, but she knows that, apart from the widowhood rites she was forced to perform, she was raped by her late husband’s younger brother, Ebakole. She had refused the village elder’s suggestion that she marry Ebakole. Otibhor ended her account weeping: “I am dying and abandoning my only two daughters in this cruel world.” 83 Some of such acts of punishments and atrocities committed on widows can be summarized as follows:84 making the woman drink some of the water used in bathing the body of her dead husband; sit on the bare floor or, at best, on a straw-mat or mattress; sit in a position where she would be looking at the body of her husband laid in state, overnight, until it is taken away for burial; not to sleep on a bed throughout the mourning period of six months to one year; shave off her hair, wear rags, eat, drink and bathe in secrecy; eat and drink and bathe only from old and broken vessels; not to eat from food items provided for her husband’s funeral ceremonies; to accept a substitute husband, if still of child-bearing age, and not to become pregnant during the period of mourning; not to look out to see what is going on for the funeral ceremonies of her husband; not to talk aloud or travel beyond a certain distance during the mourning period; to know that her own monies and properties belong to her husband; to hands-off all monies, moveable and immovable properties of hers and her husband’s.
Ibid. This is well portrayed in the Nollywood Home Video, “WIDOW”
The woman, if she unfortunately does not have a child, is sent away as soon as her husband breathes last. Some of such women are not even allowed to participate in the funeral of their husbands. If the woman has only girl-children, she could be allowed to stay in the worst type of shelter, and at the pain of losing all the family possessions; she would also be starving with her daughters; there is also the danger of having her daughters married away very young, with or without her or their consent. 85 The catchphrase of the war against HIV/AIDS has been ‘Say No to Unsafe Sex’. How realistic is this for women in Nigeria? It should be apparent from the discussion above that their power to say ‘No’ is limited indeed. Decisions on safe sex are left with men. Women are rarely in a position to insist on the use of a condom if their partners do not want it. Nor can they protect themselves by using contraceptives without their husbands’ permission or they may be accused of infidelity. Campaigns for safe sex do not take into account the conditions in which the majority of Nigerian women live. The secrecy attached to women’s sexual experiences through cultural norms also contributes in no small measure to women’s vulnerability to HIV/AIDS. Secrecy and stigmatization also explain to a large extent why potential victims of HIV/AIDS often refuse to be tested. Most women are therefore not aware that they are infected. Women and girls in Nigeria suffer violence within the home. The battery of both wives and girls are sanctioned culturally. It is seen in most cases as a form of discipline with a restraint not to inflict grievous harm. "Seyi" said she was regularly subjected to violence by her husband. After one assault, she was left permanently blind in her left eye. Her husband had reportedly suspected her of having a sexual relationship outside their marriage. She obtained dissolution
In the case of Augustine Nwofor Mojekwu V Caroline Mojekwu  7 N.W.L.R. 283, the Court of Appeal decided that the “OLI-EKPE” customs of Nnewi in Anambra State where males and not females inherit the property of their father is unconstitutional. This custom was held as repugnant to natural justice, equity and good conscience. The judgment is welcomed and hopefully represents a shift in judicial attitudes to women’s rights issues.
of the marriage in the Lagos High Court, and later sought damages for grievous bodily harm.86 There is no specific law to protect women against domestic violence or wife battery in Nigeria unless a woman brings an action under the general provisions against assault where domestic violence against the woman is downplayed. In a report by a Non Governmental Organization in Nigeria 87 conducted on social welfare officers to find out the prevalence of domestic violence, it showed that 55% of the cases received in the last one year, was on women battering/maltreatment. Another nation wide research has also shown that the police are reluctant to take action where cases of domestic violence are reported to them. It is believed that it is a private affair and should be settled by the parties or their extended family. Additionally, cultural, financial consideration and the high cost of justice often prevent women from pressing charges against their husbands or partners in cases of domestic violence against the women. The failure of the law to provide adequate respite has further compounded the issue. In the last decade trafficking in women and girls is assuming an alarming rate in Nigeria. Nigeria has become a source, transit and destination country for both internal and external trafficking. Until recently when a new comprehensive law88 was passed by the Nigerian National Assembly and assented to by the then President Obasanjo, the provisions of the Criminal and Penal Codes89 did not provide adequately for the crime of trafficking in women and children. Section 34 of the Constitution of Nigeria 1999, prohibits slavery and torture while Sections 223-225 of the Criminal Code provides for sanctions against whosoever trades in prostitution, facilitate the transport of human being
Suit no. ID/1202/2001, High Court, Ikeja, Lagos State, reported in Project Alert on Violence Against Women, Annual Report and Accounts 2001-2003, p. 13. 87 Project Alert on Violence Against Women (Project Alert), Beyond Boundaries: Violence against Women in Nigeria, Lagos, 2001, p. 71. http://web.amnesty.org/library/print/ENGAFR440082002 (accessed on August 12th, 2007) 88 Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003 89 Criminal Code Cap. C38, Laws of the Federation of Nigeria 2004 & Penal Code Cap. P3, Laws of the Federation of Nigeria 2004.
within or outside Nigeria for the purpose of commercial sexual exploitation and make profits for it. The Penal Code also sanctioned this act in Section 278-280; it provides for imprisonment for anyone who buys and sells minors for immoral purposes. Research has shown that trafficking in women and girls are mainly for the purposes of domestic services and/or prostitution. In places like Abakaliki, in Ebonyi State, and Edo State, young girls are forced into the sex industry partly because most people believe that they are unlikely to carry the HIV virus. Information provided by immigration authorities90 in Nigeria has also shown that girls between the ages of 7-16 are transported to Gabon and Cameroon from various points in the East of Nigeria. There are also reports of trafficking of women and girls to Europe and particularly Italy. The report also shows that over 20,000 Nigeria girls engage in prostitution in Italy. An unusual dimension introduced to the crime of trafficking which makes the campaign against trafficking difficult is the introduction of the oaths of secrecy which victims and their parents/guardians have to undergo in traditional shrines. These oaths are administered by traditional priests who use the body parts of the victim such as hairs, nails, pubic hair and blood with a sanction not to divulge the secret of the identity of the traffickers, to hold allegiance to the traffickers and promptly pay the traffickers the debt bondage. Failure to abide by the oath is deemed to have serious repercussion sometimes death or insanity on the victims and their relatives.91
The Guardian Online, August 8th, 1998 http://web.amnesty.org/library/print/ENGAFR440042005 (accessed on August 12th, 2007) 91 Most of the women and girls trafficked to Italy and other parts of Europe are from Edo State of Nigeria. This fact prompted the Edo State Government to pass a law with stiffer penalties against traffickers and their accessories including the traditional priests who administer the Secret Oaths. The federal government also passed a national legislation outlawing trafficking in Nigeria which law is more elaborate than the previous provisions of the Criminal and Penal Codes. The new legislation did not however take sufficient consideration for the protection of the victims and witnesses to trafficking. Nigeria has also signed the Protocol to Prevent, Suppress and Punish Trafficking in Persons especially women and girls but is yet to ratify it. - Law And Practice Relating to Women’s Inheritance Rights In Nigeria: An Overview by Joy Ezeilo, University of Nigeria Nsukka, Enugu Campus http://writerblock.biafranigeriaworld.com/oyibo-e-ezeilo/ (accessed on August 1st, 2007)
The disinheritance of the girls and women in Nigeria, especially in Igbo culture is, in effect, the disinheritance of daughters and wives, who are the very people that should be considered first. The case of disinheriting daughters and wives, more so widows in Igbo culture, cannot be more succinctly put than by Justice Nike Tobi, in his lead judgment in the Anambra State Appellate Court, on 10 th April 1997. This was when he showed a change of heart and leadership, by taking the bull by the horns. He came up with a pioneer and landmark decision in the Mojekwu vs. Mojekwu case92. In the judgment, which was clearly in favour of girls and women, he wrote:
“All human beings - male and female - are born freely, without any inhibition on grounds of sex; and that is constitutional. Any form of societal discrimination on ground of sex, apart from being unconstitutional, is antithetic to a civil society built on the tenets of democracy, which we have freely chosen as a people. We need not travel all the way to Beijing to know that some of our customs, including the Nnewi “Oli-Ekpe” custom, relied upon by the appellant, are not consistent with our civilized world in which we all live today, including the appellant. In my humble view, it is the monopoly of God to determine the sex of a baby and not the parents. Although the scientific world disagrees with the divine truth, I believe that God, the Creator of human beings, is also the final authority of who should be male or female. Accordingly, for a customary law to discriminate against a particular sex is to say the least an affront to the Almighty God Himself. Let nobody do such a thing. On my part, I have no difficulty in holding that “Oli-Ekpe” custom of Nnewi is repugnant to natural justice, equity and good conscience.”
The judgment has been acclaimed everywhere as a landmark decision.
STATUS OF WOMEN IN AFRICAN CULTURES
As stated earlier,93 violation of women's rights escalates the rate of HIV infections throughout the continent. Sexual oppression combined with a high biological receptiveness of viral transmission, put women at risk. According to Linda Osermen, of the Inter-African Committee (IAC), violence against women are a reflection of a value system which upholds and maintains the patriarchal power structure within which women are subjugated and abused at a monumental scale as corroborated by the reports of Special Reporters on
 7 NWLR p. 283 At pages 35 - 40
violence against women and on traditional practices. The IAC supports the adoption of the optional protocol by the Commission on the Status of Women and has been dealing with the problem of harmful traditional practices for the past 15 years. The Interfaith International, represented by Geneva Arif, states that violence against women are rarely mentioned in the Commission on the Status of Women unless it is to condemn someone else for doing the violation. Women are vulnerable to rape and violence during times of war, by enemy soldiers or during peace time at home. There seems to be an appalling silence from some representatives, when these same acts against women are committed within their home communities by male members of the communities. In some parts of Africa, women who are perceived to have brought dishonour to their family could be murdered by any man of the family.94 This man will only receive a sentence lasting from 3 months to 2 years. Female genital mutilation is practiced within a large area from the Red Sea to the Atlantic coast. The effects are irreversible and cause a lifetime of physical and mental suffering. A member95 of the Research, Action and Information Network for the Bodily Integrity of Women, said there is tremendous denial in Africa about the issue of violence against women and girls. The abuses suffered by the continent itself, ranged from slavery to colonialism to the new economic order which has placed Africa on the lowest rung. As a result, Africans have created a defensiveness about any criticism of their society. They are very proud and they do not want to change their cultures or social systems. That philosophy is "a recipe for suicide", she stated. Women have paid a great cost. Whenever they speak out about violations of their rights, they are told that they are becoming "western" or that they are
Honour killings: This is the practice of killing girls and women who are perceived to have defiled a family's honour by allegedly engaging in sexual activity or other improprieties before marriage or outside of marriage. 95 Ms Toubia, “Violence Against Women and Girls” http://web.amnesty.org/library/index/engafr440042005 (accessed August 1st, 2007)
adhering to the views of international agencies. It is disturbing that the issue of violence against women is escalating in Africa, largely due to the increasing conflict on the continent. There are the old forms of culturally-based violence, as well as those emerging from socio-economic disparities. Female genital mutilation and discriminatory inheritance laws, for example, deprive women of certain basic rights, and expose them to human rights violations. According to the World Health Organization (WHO),96 violence affects millions of women in Africa. In a 2005 study on women’s health and domestic violence, the World Health Organization found that 50 per cent of women in Tanzania and 71 per cent of women in Ethiopia’s rural areas reported beatings or other forms of violence by husbands or other intimate partners. In South Africa, reports Amnesty International, about one woman is killed by her husband or boyfriend every six hours. In Zimbabwe, six out of 10 murder cases tried in the Harare High Court in 1998 were related to domestic violence. In Kenya, the attorney general’s office reported in 2003 that domestic violence accounted for 47 per cent of all homicides. According to David Littman,97 of the Association for World Education, the term "traditional or customary practices" is a shameful euphemism for crime against women. Female genital mutilation is performed every year on more than 1 million - perhaps up to 2 million - female babies, young girls, and women in 30 countries in Africa. This ancient ritual should long ago have been termed "female torture". Another source of concern is the exposure of African women to life-threatening illnesses like HIV/AIDS. The women in the villages are often sitting ducks waiting to be shot. Their husbands will return to their homes for the weekend and often refuse to use condoms. It is particularly concerning that the rate of
“Make Violence Against Women History” http://www.who.int/violence_inquiry_prevention/violence/world_report/wrvh1/en (accessed on August 12th, 2007) 97 “Abuse of women escalates HIV infections in Africa” http://www.afrol.com/printable_feature/10274 (accessed on August 1st, 2007)
infection is higher among girls and women than it is among men. Lack of education about the virus is a growing liability. Studies have confirmed that better-educated young girls tend to start having sexual relationships later. It is sad to note that in many parts of the world, cultural and social conditions prevent young girls from receiving education. The implication is that many girls are denied the right to inform themselves about their sexual and reproductive rights and options. Studies have shown that women (for biological reasons) are more vulnerable than men to sexually transmitted diseases and other opportunistic infections like HIV. This is especially marked in girls whose genital tracts are still not fully mature. The genital lining of the youth and girls in particular is still not well developed to protect the viral transmission into the body. Older women have harder vaginal mucosal lining which does not easily break during the act of sex, that of the young girls is still very tender and breaks easily thus increasing chances of infection. Compounding biological vulnerability is the fact that women are far more likely to be coerced into sex, or raped - often by someone older, who has had greater exposure to the virus. Lack of empowerment also causes the spread of AIDS. The youth are under the control of adults. Girls in particular have sex with people older than they are. These people have more power over them such that the youth are not assertive enough to negotiate for safer sex. Violence against women can also take less overt forms. Young girls often have sexual relationships with 'sugar daddies" that coerce them to have sex in exchange for gifts and favours. Such unequal relationships also have consequences for women, in terms of their risk of infection. Worldwide, women between the ages of 15 and 24 also account for half of new HIV infections. Botswana is one of the countries most affected by the HIV/AIDS pandemic. The impact of this pandemic is placing a heavy burden on the individual and the entire economy. It is also observed that, while women and girls are especially vulnerable to the HIV infection, there is also a
disproportionate burden placed on them as care-givers. In Africa, the rate of infection in teenage girls is six times higher than in women over 35 years. About one in four teenage girls lives with HIV, compared to one in 25 teenage boys.98 The challenge is to find creative ways to change the social conditions that deny young women the ability to control practices that increase their vulnerability for contracting HIV. In many instances, women are still seen as sexual objects. Women bear the greatest burden of HIV/AIDS. The majority of young women cannot protect themselves against AIDS because they have to rely on their male partners who may decide whether or not to use a condom. Women are recognized as a fundamental force in the quest to eradicate poverty and maintain the stability of families and societies. Without improving the status of women, we cannot expect any real progress in society, and especially in the battle against AIDS. According to a 1999 study on violence against women by the Johns Hopkins Bloomberg School of Public Health near Baltimore, United States of America,99 abusers of women tend to view violence as the only way to solve family conflicts. Perpetrators typically have a history of violent behaviour, grew up in violent homes and often abuse alcohol and drugs. The story of Janet Akinyi in Kenya is a case in point. In 2006 she filed for divorce and custody of her children after her husband attempted to kill her with a knife. She had endured violent beatings throughout her 10 years of marriage. “We used to be okay until he started drinking,” Ms. Akinyi told Africa Renewal. “Then he would get furious at anything and start beating me. He would say it is the only way to teach me to respect him.”
Ibid. “Women: War, Peace and Violence against Women” http://www.womenwarpeace.org/issues/violence/spraptorture_2004.pdf (accessed on August 1st, 2007?)
Rosa’s story buttresses the spate of violence against women in Africa. Rosa’s husband was murdered in 1989 during an uprising in Eastern Uganda. An illiterate housewife with no independent source of livelihood, she was left with four small children to look after. Soon after the funeral, rumours started circulating around the village that she had connived with the killers in order to take over her husband’s property. She was in shock, heartbroken at losing her husband and fearful of the future. The rumour spread like wild fire, and soon, Rosa found herself not only having to cope with widowhood but also having to deal with the stigma and isolation that was caused by this malicious rumour. Even the people she had considered her close friends begun to shun her and distance themselves from her. She was branded a “witch and harlot.” While still contemplating her next move, the parochial chauvinistic tendencies of the culture were set in motion. Her husband’s relatives informed her that although she had killed their son, they would not let her go away with his property. She had to choose one of the relatives to “inherit her.” She said that “my husband had only one brother and his wife warned me that if I chose him to be the heir, that would mark the end of my life. I therefore picked on one of my late husband’s cousins – not that I loved him but because I wanted to stay and look after my children. If I had any choice in the matter, I would have preferred to bring up my children as a single mother since my husband had left a big portion of land that could ensure our survival.” So in the quest to ensure the safe upbringing of her children, Rosa chose to be inherited by a relative so that she could stay a member of the family. However, that was not the end of the story, as she explains “this man also had his own wife. She called me names and threatened to kill me. I had no alternative but to bear all these problems for the sake of my children.” Worse still, upon inheriting her, her “successor husband” took over her late husband’s estate and she had to share the land with the other wife. This only
increased the tension and conflict in the home. Rosa soon became pregnant. Despite the added responsibilities of another child she was not receiving any financial assistance from this “new husband” except for the land that she was allocated to cultivate. Then after about three years of toiling in this new situation, the past came back to haunt her. One day, her late husband’s brother came back from the city, where he was employed as a teacher, and ordered Rosa to pack all her belongings and vacate their home. He claimed that he had confirmed that she was the perpetrator of her husband’s death. It was already night, so he threatened to kill her if he found her still present in the morning. She said: “I ran to the Clan head, who came and calmed him down and said we would settle the matter in the morning. The next morning, I was shocked to have all my property thrown out of the house and I was told to go back to my parents. The only reason I was given was that they had confirmed that I was a witch. I was only saved by my father-in-law who said that he still needed me around so that I look after him because he was ill.”100 Rosa’s father in law remained bed-ridden for a year. When he died, her brother in law renewed her eviction immediately after his funeral. She laments that: “He sent me away saying I was no longer needed in their home. I was in a dilemma and in the midst of all this my “new husband” was unable to defend me. I had to leave the home and live as a beggar. For over six years, I lived as a pauper and survived on hand outs from sympathizers. Then I was told by one of the women in the village that an organization called Woman of Purpose could help me solve my long lasting problems with my in-laws. I went to the Woman of Purpose office in Agule and they were able to organize a dialogue with my in-laws.” It was not easy to settle the long standing conflicts and accusations. But by and by, Rosa was able to recover part of what she had lost. Although the clan did not restore to her all that belonged to her, at least she was able to get some land to support her and her family. It may not have been total
“Women and African Culture” http://www.rhrc.org/resources/gbv/gbv_tooks/manual_toc.htm (accessed on August 1st, 2007)
justice, but at least the voice of justice was heard and that in future, justice will triumph.101 However, violence against women, the Johns Hopkins study points out, goes beyond the brutalization of women by individuals. The prevalence of the phenomenon, “cuts across social and economic situations, and is deeply embedded in cultures around the world - so much so that millions of women consider it a way of life.” In a report by the United Nations Population Fund (UNFPA) in 2000,102 the agency noted that in interviews in Africa and Asia, “the right of a husband to beat or physically intimidate his wife” came out as “a deeply held conviction.” Even societies where women appear to enjoy better status “condone or at least tolerate a certain amount of violence against women.” Such cultural norms put women in subservient positions in relation to their husbands and other males. That inferior status makes women “undervalued, disrespected and prone to violence by their male counterparts,” observed a 2003 report by the UN Development Fund for Women (UNIFEM).103 Ms. Radhika Coomaraswamy, the former UN special rapporteur on violence against women, agreed, noting that discriminatory norms, combined with economic and social inequalities, “serve to keep women subservient and perpetuate violence by men against them.” Focusing specifically on Africa, Ms. Heidi Hudson found in a 2006 study by the South African Institute of Security Studies104 that “the subservient status of women, particularly rural women, in many African countries is deeply rooted in tradition.” This is true to such an extent, Ms. Hudson added, that women can be perceived as objects or property, a view reflected especially clearly in practices such as
This tale of the treatment of a widow in Uganda was submitted by WOMEN OF PURPOSE (WOP) From WRI Newsletter 9 http://www.rhrc.org/resources/gbv/gbv_tooks/manual_toc.htm (accessed on August 1st, 2007) 102 “Overall Status of Women in Africa” http://www.unfpa.org/women/bucharest/index.htm (accessed on August 12th, 2007) 103 “Women and Violence” http://www.unifem.org/files/confirmed/149/213_chapter01.pdf (accessed on August 1st, 2007) 104 “Focus on Africa” http://www.worldreport06/women/women2.html (accessed on August 12th, 2007)
wife inheritance and dowry payments. The impact of both practices was illustrated by a 2003 study on domestic violence in Uganda by the US-based Human Rights Watch (HRW). The study found that families justified forcing widows to be inherited by other males in the family with arguments that the family had “all contributed to the bride price” and that therefore the woman was “family property.” Once inherited, a widow lost her husband’s property, which went to the new husband. And if a woman sought separation or divorce, the dowry had to be reimbursed. Often, the study found, “a woman’s family is unable or unwilling” to refund the dowry, and her brothers may beat her to force her back to her husband or in-laws “because they don’t want to give back cows.” Former Tanzania’s President, Julius Nyerere, was an early critic of such cultural practices. He noted in 1984 that denying women the right to inherit and own property leaves them economically vulnerable and dependent. That creates a situation in which “women in Africa toil all their lives on land that they do not own, to produce what they do not control, and at the end of the marriage through divorce or death, they can be sent away empty-handed.” Since Mr. Nyerere’s time, Africa’s economic decline has left many women in even worse conditions. Their plight is so severe, noted a study by the WHO and the Joint UN Programme on HIV/AIDS (UNAIDS),105 that many women see no option but to remain with husbands who routinely batter them. The women stay because men “serve as vital opportunities for financial and social security, or for satisfying material aspirations.” Moreover, as such women are often both poor and uneducated, “the combination of dependence and subordination can make it very difficult . . . to demand safer sex or to end relationships that carry the threat of HIV/AIDS infection.” The WHO found that women with at least a secondary education were more able to negotiate greater autonomy and control of resources within marriage, have a wider range of choices in partners and are more able to choose whether
“Gender Violence” http://www.who.int/genderviolence/posters/en/ (accessed on July 29th, 2007)
and when to marry. Such capacities have often been associated with lower levels of violence in the home. Most African women, in common with women all over the world, face a variety of legal, economic and social constraints. Indeed some laws still treat them as minors. In Zaire, for instance, a woman must have her husband's consent to open a bank account. Women are known to grow 80 per cent of food produced in Africa, and yet few are allowed to own the land they work. It is often more difficult for women to gain access to information and technology, resources and credit. Agricultural extension and formal financial institutions are biased towards a male clientele' despite women's importance as producers. Women end up working twice as long as men, 15 to 18 hours a day, but often earn only one tenth as much. With such workloads, women often age prematurely.106 Female education affects family health and nutrition, agricultural productivity, and fertility, yet there is a wide gender gap in education. Lack of resources and pressures on time and energies put enormous constraints on the ability of women to maintain their own health and nutrition as well as that of their children. As a result, women are less well equipped than men to take advantage of the better income-earning opportunities that have emerged in Africa. Although food and nutrition are women's prime concerns in Africa, and they are the principal participants in agriculture, independent farming by women has been relatively neglected. Women's family labour contribution has increased, but goes unpaid. In industry and trade, women have been confined to small-scale operations in the informal sector; however vibrant these operations are and despite the trading empires built up by the most successful female entrepreneurs, women's average incomes are relatively low. Women are also handicapped in access to formal sector jobs by their lower educational attainments, and those who
“Women in Africa” http://www.unu.edu.unupress/unupbooks/uu37we/uu37we00.htm#contacts (accessed on August 1st, 2007)
succeed are placed in lower grade, lower paid jobs. Elite women who wish to improve their legal and economic status must expect to lose honour and respect. There is often sexism in job promotions and unpleasant consequences if women stand up to men. There is often more respect for male professionals than there is for female. Women often suffer employment discrimination because they need to take time off for maternity leave or when a child is sick. Career women often have to work harder at their jobs to keep even with their male counterparts. Social attitudes to women are responsible for the gender differences in both the education system and the labour force, as we will see below. Differential access to educational and training opportunities has led to low proportions of women in the formal sector and their subsequent concentration in low paid production jobs with limited career prospects. So, although women play an important role in African society, they suffer legal, economic and social constraints.
2.1.3 STATUS OF WOMEN AND GIRLS IN CULTURES OUTSIDE AFRICA
Domestic violence is a global problem. In Europe violence in the home is the primary cause of injury and death for women aged 16 - 44, more lethal than road accidents or cancer. Indeed, “violence against women,” said the then UN Secretary-General Kofi Annan in 1999, “knows no boundaries of geography, culture or wealth. It is perhaps the most shameful human rights violation.” And, he added, it is “perhaps the most pervasive.” In Pakistan for instance, Mukhtaran Bibi, a woman sentenced to gang rape by the Islamic & tribal leaders of a village council in southern Pakistan, has testified at a court in Punjab's Dera Ghazi Khan town about her ordeal. She described how the four men on trial dragged her into a hut and raped her. Faceto-face with the men, who are on trial for raping her, Mukhtaran Bibi described
how she was asked to appear before the informal village council to apologise for the alleged misdemeanour of her 12-year old brother. He had been accused of having an affair with an older woman. He says the story was concocted to cover up the fact that he had been sodomised by three men earlier in the day and threatened to report the incident. She testified that when she apologised to the council, made up of village elders in Punjab's Muzaffargarh area, one man said she should be pardoned. But another man suddenly said she should be raped. She described begging the council to save her, but they took no notice and four men raped her while hundreds of villagers did nothing to stop the assault. Afterwards, Mukhtaran Bibi said she was forced to walk home halfnaked in full public view, covered only with a piece of cloth.107 The impact of HIV/AIDS on women is particularly acute. Women are often economically, culturally and socially disadvantaged and lack equal access to treatment, financial support and education. In a number of societies, women are mistakenly perceived as the main transmitters of sexually transmitted diseases (STDs). Together with traditional beliefs about sex, blood and the transmission of other diseases, these beliefs provide a basis for the further stigmatization of women within the context of HIV and AIDS. HIV-positive women are treated very differently from men in many countries. Men are likely to be excused for their behaviour that resulted in their infection, whereas women are not. “My mother-in-law tells everybody, 'because of her, my son got this disease. My son is a simple as good as gold-but she brought him this disease.”108 In India for example, the husbands who infected them may abandon women living with HIV or AIDS. Rejection by wider family members is also common. In some African countries, women, whose husbands have died from AIDS-related infections, have been blamed for their deaths. Amnesty International’s research has shown that:
Mukhtaran Bibi http://www.middleastwomen.org (accessed on September 18th, 2007) HIV-positive woman, aged 26 http://www.middleastwomen.org (accessed on September 18th, 2007)
The Russian government estimates that 14,000 women were killed by their partners or relatives in 1999, yet the country still has no law specifically addressing domestic violence.109
The World Health Organization has reported that up to 70 per cent of female murder victims are killed by their male partners.110
On average, two women per week are killed by a male partner or former partner in the UK. Nearly half of all female murder victims are killed by a partner or ex-partner.111
In 2004, in Spain 72 women died at the hands of their partners or expartner, 7 of them despite having been granted protection measures.112
There is an increasing problem in Iraq of violence against women. According to the "honour" system, a woman who has been raped or abducted is considered to have brought shame upon her family. Under Saddam's regime, a rape victim would frequently be killed by a brother or father to restore family honour unless she agreed to marry her abductor. Many women are victims of this inhumane custom and practice.113 In Afghanistan, the Afghan Supreme Court dismissed a female judge for not wearing an Islamic veil during a meeting with US President George W Bush and his wife last month. Marzeya Basil was among a group of 14 female government officials who attended computer and management course in Washington at the invitation of the US government. Basil was sacked days after her return to Kabul for not wearing her scarf during the meeting. It has been said that the decision for her removal was made by top authorities of the
Stop Violence against Women: "It’s in our hands", AI Index: ACT 77/001/2004. Page 4 htttp://web.amnesty.org/library/print/ENGAFR446102006 (accessed on July 29th, 2007) 110 Ibid 111 Ibid. 112 Ibid. 113 Azam Kamguian “International Humanist and Ethical Union Internationale Humaniste et Laique” Tuesday, 6 April 2004 http://www.iheu.org/glossary/#term407 (accessed on September 25th, 2007)
Supreme Court. Deputy Chief Justice and vice-president urged Afghan women to observe the dress code at home and abroad. Whilst FGC is widely practiced out in the open by African Muslims and Ethiopians and Eritreans of all faiths, it is practiced in secrecy in some parts of the Middle East. The practice occurs particularly in northern Saudi Arabia, southern Jordan, and Iraq, and there is also circumstantial evidence to suggest it is present in Syria, western Iran and southern Turkey.114 The practice can also be found among a few ethnic groups in South America and very rarely in India (Dawoodi Bohra community, a sect of the Shia Muslims of India115). In Indonesia116 the practice is fairly common among the country's Muslim women; however, in contrast to Africa, almost all are Type 1 or Type 4,117 the latter usually involving the symbolic pricking of blood release. Amnesty International estimates that over 130 million women worldwide have been affected by some form of FGC with over 2 million procedures being performed every year. Due to immigration, the practice has also spread to Europe, Australia and the United States. Some tradition-minded families have their daughters undergo FGC whilst on vacation in their home countries. As Western governments become more aware of FGC, legislation has come into effect in many countries to make the practice of FGC a criminal offense. In 2006, Khalid Adem118 became the first man in the United States to be prosecuted for mutilating his daughter.
Birch, Nicholas. "Female circumcision surfaces in Iraq" http://en/wikipedia.org/wiki/Iraq (accessed on August 12th, 2007) 115 “Stop FGC” http://www.stopfgmc.org/client/sheet.aspx?root=168&sheet=1951&lang=en-US (accessed on August 12th, 2007) 116 US Department of State (June 1, 2001). “Indonesia: Report on Female Genital Mutilation (FGM) or Female Genital Cutting (FGC)” http://en/wikipedia.org/wiki/female.genital_cutting#_note-8 (accessed on August 12th, 2007) 117 See pages 29 - 31 118 “Female Genital Mutilation” http://en/wikipedia.org/wiki/Khalid_Adem (accessed on August 12th, 2007)
CHAPTER 3 3.1 LEGAL SYSTEMS AND DISCRIMINATION AGAINST WOMEN AND GIRLS
Violence against women and girls is closely bound up and interacts with unequal power relations between men and women, and gender-based discrimination. The right not to be discriminated against on the grounds of race,
sex, sexual orientation, gender expression and identity, age, birth, or religion, is the basis of human rights - the inherent and equal dignity of every woman, man and child. The International Covenant on Civil and Political Rights (ICCPR) provides that "All persons shall be equal before the courts and tribunals".119 Under the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), state parties are obliged to "take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women".120 Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights Conventions, is discrimination within the meaning of Article 1 of CEDAW. These rights and freedoms, according to the CEDAW Committee’s General Recommendation 19121 include: “(a) The right to life; (b) The right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment; (d) The right to liberty and security of person; (e) The right to equal protection under the law; (f) The right to equality in the family; (g) The right to the highest standard attainable of physical and mental health; (h) The right to just and favourable conditions of work."
Article 14(1) Article 2(f) 121 CEDAW Committee, General Recommendation 19, Violence against women (11th session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 at 84 (1994), para. 7. http://www.unhchr.ch (accessed on July 29th, 2007)
In the African context, the African Charter on Human and Peoples’ Rights122 provides that states parties must "ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions".123 It also states that "Every individual shall be equal before the law and entitled to equal protection of the law."124 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa125 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, or human rights and fundamental freedoms in all spheres of life.126
States parties are obliged to take a number of appropriate legislative, institutional and other measures to combat all forms of discrimination against women:
…through public education, information, education and communication strategies, with a view to achieving the elimination of harmful cultural and traditional practices 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 women and men.127
Violence against women in its many manifestations constitutes a violation of women’s rights and fundamental freedoms. The 1993 UN Declaration on the Elimination of Violence Against Women128 defines it as any act of gender-based violence - that is, violence directed against a woman because she is a woman or that affects women disproportionately - that results in, or is likely to result in,
African Charter op. cit. note 11. Article 18(3) 124 Article 3 125 Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa was endorsed by Resolution AHG/Res.240 (XXXI) on June 1995 and adopted by the Conference of Heads of State and Government in July, 2003 in accordance with Article 66 of the African Charter on Human and Peoples' Rights It entered into force on November 25th, 2005. http://www.hrw.org/doc/?t=africa (accessed on July 29th, 2007) 126 Article 1(f) 127 Article 2 128 Declaration on the Elimination of Violence against Women adopted by the General Assembly by Resolution 48/104 of 20 December 1993, http://www.unhchr.ch/html/intlinst.htm (accessed on August 12th, 2007)
physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. In its preamble, the Declaration describes violence against women as “a manifestation of historically unequal power relationships between men and women" and as one of the "crucial social mechanisms by which women are forced into a subordinate position compared with men." Violence against women as a fundamental violation of human rights was highlighted first in the African context with the African Platform for Action and the Dakar Declaration of 1994,129 which acknowledged that in most African countries violence against women in domestic, private and public places, had reached alarming levels. The Dakar Declaration acknowledges that "women are subjected to violence and to the threat of violence in their daily relationships", violence which "deprives women of their ability to achieve full equality" and "threatens their safety, their freedom and their autonomy". It also acknowledges that violence is often unreported as "the majority of women do not speak out or report to the court on violence but keep silent as victims because of fear, shame or a misplaced feeling that they are somehow responsible".130 International recognition of violence against women is reflected in the Beijing Declaration and Platform for Action131, adopted in 1995 at the Fourth World Conference on Women in Beijing. At its 10 year review in March 2005, the Nigerian Minister of Women Affairs reaffirmed Nigeria’s commitment to the full and effective implementation of the Platform for Action and acknowledged “persistent violence against women”.132
African Platform for Action, adopted by the Fifth Regional Conference on Women, Dakar, UN Doc. E/CN.6/1995/5/Add.2, para 67, http://www.un.org/documents/ecosoc/cn6/1995/ecn61995-5add2.htm (accessed on August 12th, 2007) 130 Dakar Declaration, para 66 http://www.hrw.org/doc/?d=africa (accessed on August 12th, 2007) 131 Report of the Fourth World Conference on Women, Beijing, 4-15 September 1995, A/CONF.177/20/Rev.1. annexes I and II, endorsed by G.A. res. 50/42, 50 U.N. GAOR Supp. (No. 49) at 33, U.N. Doc A/RES/50/49 (1995) op. cit. note 25 132 Statement by Obong Rita Akpan, Former Minister of Women Affairs, Federal Republic of Nigeria http://www.un.org/webcast/csw2005/050301statements.html (accessed on August 12th, 2007)
The Rome Statute of the International Criminal Court133 recognizes a broad spectrum of sexual and gender-based violence as crimes against humanity and war crimes. These include rape, forced prostitution, pregnancy and sterilization; and gender-based persecution. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa obliges states to take a variety of measures to address violence against women in all its manifestations. The Protocol defines violence against women as: all 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 restrictions on or deprivation of fundamental freedoms in private or public life in peace time and during situations of armed conflict or of war.134 It states that "Every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited", and requires states to prohibit, prevent and punish "all forms of violence against women including unwanted or forced sex whether the violence takes place in private or public".135 It also obliges states to "prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognized international standards."136 International human rights treaties and standards define the obligations of states to secure human rights for individuals subject to their jurisdiction. They provide guarantees of freedoms and entitlements that individuals may claim at national, regional and international levels. Under international human rights
Rome Statute of the International Criminal Court, adopted on 17 July 1998 (A/CONF.183/9). It entered into force on July 1st, 2002 http://www.icc-cpi.int/index.php (accessed on August 12th, 2007) 134 Article 1 135 Article 4 136 Article 5
law, states incur obligations to respect, protect, and fulfil human rights. Government officials, or those acting with the authorization of the state, must respect women and girls’ human rights by ensuring that no state agents commit acts of violence against women. The state has a duty to respect the human rights of women, for example the State, via its state agents, has to refrain from directly or indirectly interfering with the rights of women. Thus, where police or armed forces commit acts of violence against women, the duty to respect is breached. The duty to protect requires that the state and its agents must take effective measures against other individuals or groups (including private enterprises and corporations) who violate the integrity, freedom of action or other human rights of the individual. This duty is upheld when the state institutes laws, policies and practices that protect victims of violence, provide them with appropriate remedies and bring the perpetrators to justice. The CEDAW Committee stresses that:
"States parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act and to ensure that laws against family violence and abuse, rape, sexual assault and other gender-based violence give adequate protection to all women, and respect their integrity and dignity."137
The criminal justice system provides scant protection, the police and judiciary often dismissing domestic violence as a family matter and failing to investigate or press charges. The few rape victims who take their cases to court face humiliating rules of evidence,138 discriminatory attitudes from court officials,
CEDAW Committee, General Recommendation 19, Violence against women (11th session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 at 84 (1994), para. 24 (a) and (b). . http://www.unhchr.ch (accessed on July 29th, 2007) 138 For instance, an offence of rape exists only where the victim can prove that there was no consent on her part and this must be corroborated by independent evidence. This puts a heavy burden on the prosecution such that evidence of witnesses who saw the accused mounted the complainant in the act and motion of sexual intercourse and medical evidence are required to prove rape. “Rape means a forcible sexual intercourse with a girl or woman without her giving consent” - Iko v. The State  14 N.W.L.R. pt 732, p. 221, per Atu Kalgo JSC; A.O.A Yussuff “Consent and The Nigerian Law of Rape” in A.L Akintola & O.A. Orifowomo (eds.”), Ife Juris Review, Vol. 1 IFJR Part 2, Ile Ife, 2004, 341. Section 211 of the Evidence Act, Cap. E14, LFN 2004 states that: “When a man is prosecuted for
and little chance of justice. The prohibitive cost of legal action encourages families to seek financial compensation out of court. In such cases the state is failing in its duties to provide effective and accessible justice for women and girls and also depriving them of the right to redress as wall as allowing the perpetrators to operate with impunity.
3.1.1 THE STATUS OF WOMEN AND GIRLS UNDER NIGERIAN LEGAL SYSTEMS
The UN Convention on the Rights of the Child defines all those under the age of 18 as children.139 It requires states to take all effective and appropriate measures to "protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse" while in the care of parent(s), legal guardian(s) or any other person who has the care of the child"140 and to abolish traditional practices prejudicial to the health of children.141 It further obliges states parties to protect children from all acts of sexual exploitation and abuse142 and from torture and other ill-treatment.143 The Committee on the Rights of the Child has determined that child and forced marriage is both a harmful traditional practice and a form of gender discrimination which must be prohibited by state parties through their legal systems. The African Charter on the Rights and Welfare of the Child144 states that "Any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall to the
rape or for attempt to commit rape or indecent assault, it may be shown that the woman against whom the offence is alleged to have been committed was of a generally immoral character….” 139 Article 1. See pages 78 to 79 below for discussions on who a child is in Nigeria 140 Article 19(1) 141 Article 24 142 Article 34 143 Article 37(1) 144 African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990). It entered into force on November 29th, 1999. It was ratified by Nigeria on June 23rd, 2001, http://www.hrw.org/doc/?t=africa (accessed on July 29th, 2007)
extent of such inconsistency be discouraged.145 It requires states to prohibit child marriage and the betrothal of girls and to "take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child", including, in particular, customs and practices prejudicial to children’s health or lives and discriminatory on the grounds of sex or other status.146 States have a duty to take protective measures against child abuse, including "effective procedures for the establishment of special monitoring units to provide necessary support for the child and for those who have the care of the child, as well as other forms of prevention and for identification, reporting referral investigation, treatment, and follow-up of instances of child abuse and neglect"147 and to protect children from all forms of sexual exploitation and sexual abuse.148 The Nigerian legal system recognizes Nigeria’s human rights obligations. The Constitution of the Federal Republic of Nigeria, 1999 states that:
No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.149
Thus, in the case of Fawehinmi v. Abacha150, the court stated that once a treaty was domesticated and enacted into Nigerian law, this constituted a commitment on the part of the state to be bound by its provisions.151 Law enforcement officials in a recent case were suspected of being paid or otherwise improperly induced not to press charges against an alleged rapist but instead to have his accuser detained on charges of slander. The woman in the case was thus doubly victimized:
Article 1(3) Article 21 147 Article 16 148 Article 27 149 Section 12(1) of the Constitution of the Federal Republic of Nigeria, 1999. 150 (1990) 9 NWLR (Part 475), p. 710. 151 For instance the Convention on the Rights of the Child has been domesticated as The Child Rights Act 2003 while Convention against Trafficking in Persons has been domesticated as Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003
On 21 June 2004, "Folake", a domestic worker, was allegedly forced into the bedroom of her employer’s husband, made to watch a violent film on videotape, and raped. Her father took items of material evidence, including her underwear, to the local police station. He was told that the alleged perpetrator had already lodged a complaint of slander against Folake for accusing him of rape. A medical examination four days after the event found evidence of penetration and bruising on her vagina, and concluded that she had been sexually assaulted. However, it was Folake who was subsequently brought before the magistrate’s court in Ikeja, Lagos, where she was charged with slander. She was remanded in custody at Kirikiri medium security prison for seven days until her family could pay the bail. During her imprisonment, she had no access to medical care. Her father said the family had heard that the evidence he handed to the police has since disappeared. It is suspected that the alleged perpetrator had used his social and political influence in his community to exert pressure on investigating officials.152 Thus, it appears wealthy and powerful perpetrators of violence, or those with personal connections with police officers, are widely believed to be able to buy themselves immunity from prosecution by paying officers not to record a complaint or not to pursue an investigation. This was the suspicion of some observers in the case of one woman in Lagos. Maryam died on 14 December 2000 from injuries sustained after she was allegedly beaten and thrown from the first floor of her home by her husband. Before her death, she had paid a condolence visit to a relative, despite reportedly being banned by her husband from visiting or receiving visits from members of her family or attending any social functions. After her family reported her death, her husband was detained; he was later released without charge.153
Interview with lawyers at Women Advocates Research and Documentation Centre (WARDC), Lagos, November 2004 and March 2005. http://web.amnesty.org/library/print/ENGAFR440042005 (accessed on August 12th, 2007) 153 Legal Defence and Assistance Project (LEDAP), Domestic Violence: Zero Tolerance, Lagos, 2003, p. 7 http://web.amnesty.org/library/index/engafr440042005 (accessed on August 12th, 2007)
Medical doctors in hospitals are required to report gunshot wounds to the police, but not other injuries even if they may have resulted from criminal activity. While this may encourage women to seek medical care without having to report their abuser to the police, it also has the effect of allowing impunity to perpetrators. Individual women and medical professionals reported that prosecutions in rape cases were sometimes unsuccessful because of a lack of access to medical services or because medical evidence was not collected or preserved. Sometimes the victim is reluctant to come forward immediately after the event, and the medical examination may therefore be unable to establish penetration or physical injury. A practical constraint is the lack of appropriate storage systems for medical evidence in state hospitals, as a result of the general lack of resources within the health care system. The prejudice and ignorance of police officers can also lead to serious miscarriages of justice. In one case, police officers appeared to believe that a man was justified in throwing acid at his wife. In another case, "Justina" died in Lagos in 1998, three weeks after acid was thrown over her, reportedly by her husband. It was several weeks before the police detained her husband for questioning, and women’s and human rights organizations protested at delays in investigating and prosecuting the case outside the offices of the police Criminal Investigation Department. Police officers excused the actions of the husband to the demonstrators, saying that he had poured acid over his wife after she tried to run away with his money.154 The attitude of blaming violence in the home on the victim rather than the perpetrator is found not only among police officers and law enforcement officials but also among some prosecutors and judges. "The dismissive attitude of some judges in relation to violence against women including violence in the
Project Alert, Beyond Boundaries: violence against women in Nigeria, Lagos, 2001, pp. 123 and 124. http://web.amnesty.org/library/print/ENGAFR440042005 (accessed on August 12th, 2007)
family was highlighted in one rape case in which the female judge openly blamed the female victim for being raped."155 Intimidating and patronizing questions asked by prosecutors and judges during investigation and trial deter women from reporting rape and other crimes of sexual or family violence. Women fear the public and intrusive questioning about their private lives that may be used to undermine their case. Thus, neither the federal government nor state administrations have taken action to reform discriminatory laws or laws that condone violence against women. Some discriminatory legislations that directly condone certain forms of violence against women have been introduced at state level in the last few years.156 In other cases, discriminatory laws and practices are derived from customary laws157 that conflict with human rights guarantees of equality and non-discrimination in the Constitution. The different provisions on violence against women and women’s human rights in the different legal systems perpetuate a situation where there is no equality before the law. The law is inadequate in offering protection for the victims of crime, fails to protect women from violence in the family, and contributes to discouraging women from reporting it.158 Currently, at federal and state level, there are no laws that specifically criminalize acts of gender-based violence or offer civil remedies in the form of protection orders against perpetrators. Nigerian Legal Systems fail to ensure redress and adequate penal and civil remedies. This failure perpetuates a climate of impunity for perpetrators. Women who have experienced violence in the family have few opportunities to obtain justice. By allowing the continued existence of provisions and rules that legalize discrimination, violence and rape, in contravention of the Nigerian
A Lawyer told Amnesty International http://web.amnesty.org/library/print/ENGAFR440042005 (accessed on August 12th, 2007) 156 For instance the various forms of Sharia Law adopted by some states in Northern Nigeria; the punishment for adultery under the Sharia Law can be said to be inhuman. 157 Domestic violence, rites performed by widows, ownership of property, inheritance, etc. 158 Nigerian NGO Coalition for a Shadow Report to CEDAW, NGOs CEDAW Report for Nigeria, 1999, p. 6. http://web.amnesty.org/library/print/ENGAFR440042005 (accessed on August 12th, 2007)
Constitution and Nigeria’s obligations under international human rights law, the federal government and state administrations are failing to exercise due diligence to protect women from violence in the home. The Federal government has given little attention to strengthening legal protections and redress in law for victims of violence in the family. It has therefore not fulfilled its legal obligations under international law to act with due diligence to protect the rights of potential and actual victims of violence in the family. The Nigerian Constitution of 1999 provides for equality in law: "Every citizen shall have equality of rights, obligations and opportunities before the law".159 It also guarantees the right to be free from discrimination "either expressly by, or in the practical application of, any law" on grounds of "community, ethnic group, place of origin, sex, religion or political opinion".160 Despite these constitutional guarantees, some federal laws explicitly condone certain forms of violence against women in the family. The Penal Code,161 applicable in northern states, explicitly condones certain forms of violence in the family. Men have the right to "correct" their wives, children or domestic workers as long as such "correction" does not reach a threshold of severity amounting to "grievous hurt".162 Severe injuries exceeding this threshold include "emasculation, permanent loss of sight, ability to hear or speak, facial disfigurement, deprivation of any member or joint, bone fracture, tooth dislocation or any which endangers the life or which causes the sufferer to be in severe bodily pains or unable to follow her ordinary pursuits for more than 20 days".163 Any injuries below this threshold of severity, and the acts of violence that are their cause, are therefore permitted in law. The Criminal Code,164 applicable in the southern states, discriminates against women as
Section 17(2)(a) Section 42(1) 161 Penal Code Cap. P3, Laws of the Federation of Nigeria 2004. 162 Section 55 (1) (d) of the Penal Code stipulates, “Nothing is an offence, which does not amount to the infliction of grievous harm upon any person and which is done by a husband for the purpose of correcting his wife. Such husband and wife being subject to any natural law or custom in which such correction is recognized as lawful” 163 Section 241 164 Criminal Code Cap. C38, Laws of the Federation of Nigeria 2004
regards the provisions on indecent assault. Where the victim of indecent assault is a woman the perpetrator upon conviction receives a lower sentence compared to where the victim had been male.165 Nigerian women face various forms of sexual assault such as rape, indecent assault, incest, and defilement. Although there are provisions in the Criminal Code and the Penal Code166 against various forms of sexual assault against women some of which have stiff penalties, however these provisions are not effectively implemented due to the technical court procedure and evidential rules, coupled with women’s apathy to report such cases for fear of social stigma. No laws specifically criminalize violence in the family, and prosecutions for violence in the family have to rely on the law on common assault and other criminal provisions. Cases of physical and sexual abuse, including wifebattering, are subsumed under the offence of assault. The law fails to address the specific circumstances of gender-based violence in the family. Rape for instance, under the Nigerian Laws attract the punishment of life imprisonment and is defined in a gender specific manner as “Having carnal knowledge of or sexual intercourse with a woman or a girl without her consent or under duress.”167 The manner in which rape trials are conducted and the nature of evidence168 required exposes the woman victim to indignity, making it a man’s trial, but a woman’s tribulation. In our criminal justice system, the burden of proof rests with the prosecution and guilt must be established beyond reasonable doubt. However in practice the victim is required to prove that she did not consent to rape. Quite often, medical evidence will show that the victim was raped but failure to provide ‘corroboration” will jeopardize the
Criminal Code Sections 353: "Any person who unlawfully assaults another and thereby does him harm is guilty of a felony, and is liable to imprisonment for three years.", and 360: "Any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour, and is liable to imprisonment for two years." 166 For example, sections 353, 357, 360 (Criminal Code) and section 282 (Penal Code) 167 Section 357 Criminal Code. 168 Section 211, of the Evidence Act, Cap E14 LFN 2004.
prosecution’s case. The requirement of penetration to prove rape cases which though is not part of the definition of rape but has been used over the years in decided cases has also denied women victims of rape the deserved justice from the law courts. It has been suggested that the law needs to be redefined and the Evidence Act amended as regards this issue. In effect many rape cases go unreported. According to the Tell Magazine 169 published in Nigeria, crime statistics issued by the Nigeria Police Force on the prevalence of rape in Nigeria showed that about 136,285 cases of rape were recorded between 1980 and 1992. Notwithstanding this startling figure, it is believed that only one in every 50 rape cases gets reported with a high rate of them happening in higher institutions of learning. Between June and December 1999, over 30 child rape cases were reported in newspapers and magazines in different parts of Nigeria. There are also no legal provisions that prohibit marital rape. Thus, a husband cannot be charged with forcing his wife to have sex without her consent. If he uses force or coercion, his crime is not rape but only assault or grievous bodily harm. The absence of a law criminalizing marital rape in effect institutionalizes discrimination against women on the basis of marital status. Having consented to marriage, a wife’s subsequent consent, or lack of it to sex with her husband, is deemed immaterial in law. In this way the legal system makes the wife a commodity of the husband. Moreover, the Penal Code condones marital rape. It states: “Sexual intercourse by a man with his wife, is not rape if she has attained puberty.”170 This provision does not only condone marital rape it also condones defilement of young girls under the age of 16. This is because the age of puberty is not fixed and any girl who for instance has commenced her menstrual period is deemed
December 1996 (vol. and no. not provided within the internet source) “Domestic Violence in Nigeria” http://news.amnesty.org/mavp/news.nsf/print/ENGAFR440222006 (accessed on August 12th, 2007) 170 Article 282
to have attained puberty. Consequently girl children given out in marriages are sexually assaulted without their consent and without redress from the society. The law also does not recognize other forms of rape. According to the definitions of rape in both the Criminal Code171 and Penal Code,172 forcible penetration with the use of hands, bottles or other instruments is not considered rape.173 Such crimes incur the lesser charges of indecent assault or indecent treatment, which carry lower penalties. The provisions on indecent assault in the Criminal Code discriminate against women on the basis of sex. For example, if the victim of indecent assault is a woman the perpetrator upon conviction receives a lower sentence compared to if the victim had been a male.174 This is a clear case of discrimination in law, which contradicts the principle of equality before the law provided in Nigeria’s Constitution and international treaties to which it is a state party. At state level, legal systems operate concurrently that reflect the multicultural composition of the state. The statutory legal system is applied in parallel with customary law and to a certain extent also religious customary law, 175 mainly Sharia law. Many of these legal systems fail to address violence against women in the family. In Lagos State, for example, there is no federal, state or customary law applicable that explicitly makes violence in the family a criminal offence. The legal system of the state, based on common law, is likewise inadequate in ensuring justice for women who have experienced such violence.
Section 357 Section 282(1) 173 M. O. A. Ashiru “Preserving the human dignity in Women” in A. L. Akintola & O. A. Orifowomo (eds.), Ife Juris Review, Vol. 1 IFJR Part 2, Ile Ife, Nigeria, 2004, 252. 174 Criminal Code, Sections 353: "Any person who unlawfully assaults another and thereby does him harm is guilty of a felony, and is liable to imprisonment for three years.", and section 360: "Any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour, and is liable to imprisonment for two years." 175 Customary law has been defined as a system of law that is not common law and has not been enacted by any Nigerian legislature. It is a personal system of law, applying to members of communities who want their affairs to be regulated by this particular system. It is evolutionary and develops over time, its original sources of law unwritten. There are several different systems of customary laws in Nigeria operating in parallel to each other, and in parallel to the common law system.
Statutory and Islamic law176 provides for women’s capacity to inherit assets following the husband’s death. In practice this is oftentimes overridden by local customary laws177 on succession. Widows are most times subjected to severe social, cultural and economic sanctions. These may involve both physical and psychological violence. Under customary law, a woman and her children are the chattels of a man who is the head of the family saddled with the responsibilities to provide for them. This parallel system of customary laws was historically founded on Supreme Court Ordinance178, adopted by the British colonial administration, which allowed customary laws to operate, as long as they were not "repugnant to natural justice, equity and good conscience" and were compatible with the law in force at the time. Customary law is still subject to this compatibility test, referred to as the "repugnancy test". Under the Law of Torts, for the tort of enticement and habouring, a man can sue another man for habouring his wife but a woman cannot bring a suit for enticement and habouring. This is discriminatory because it is well known that in Nigeria, many men have been found to desert their homes for the houses of other women. If this happens, the woman has no remedy under the law except to sue for a divorce. Another point of reference is the Police Act.179 This Act contains provisions which are discriminatory to female police officers. Section 72(a), which deals with the enlistment of male candidates into the Police Force, states that:
Under statutory law, widows are entitled to one third of the property left by the deceased husband and children to two thirds. Under Islamic Law, the provisions on inheritance give a measure of protection to women’s inheritance rights; a widow is entitled to one quarter of her deceased husband’s property (or one eight if the deceased had children). This is however discriminatory. S. O. Akintola “A focus on female discrimination and seclusion in Nigeria” in A. L. Akintola & O. A. Orifowomo (eds.), Ife Juris Review Vol. 1 IFJR Part 2, Ile Ife, Nigeria, 2004, 315. 177 Under Yoruba customary law, for instance, the wife is often regarded as property and she is generally not expected to entertain any expectations vis a vis her late husband’s property. Hence in Ogunkoya v. Ogunkoya Suit No. CA/L/46/88 p. 56 (unreported) the Court of Appeal held that wives are regarded as chattels that are inheritable by other members of the family of the deceased under certain conditions. S. O. Akintola “A focus on female discrimination and seclusion in Nigeria”, ibid. 178 No. 6 of 1914 179 Police Act Cap. P19, Laws of the Federation of Nigeria 2004.
“The qualification for a male candidate seeking enlistment in the Police Force as a recruit constable shall be as follows: (a) age – not less than seventeen nor more than 25 years of age” But Section 118(a) and (b) of the same Act on the enlistment of women shows a form of discrimination in the age of a woman who can apply for recruitment. The section provides: “The prescribed qualification for a woman seeking enlistment in the Police Force shall be as follows: (a) age – not less than nineteen years and not more than 25 years of age (b) marital status – must be unmarried.” Compared to Section 72(a), Section 118(a) and (b) shows discrimination in the aspect of age of enlistment and marital status of who can apply. A woman must be unmarried before she can be enlisted but no such provisions were made concerning a male applicant. The woman must wait till she is nineteen before she can apply while the man can apply at age seventeen. Furthermore, Section 124 of the Police Act states that: “A woman police officer who is desirous of marrying must first apply in writing to the Commissioner of Police for the State Police Command in which she is serving, requesting permission to marry and giving the names, address, and occupation of the person she intends to marry. Permission will be granted for the marriage if the intended husband is of good character and the woman police officer has served in the Force for a period of not less than three years.” This is discriminatory considering the fact that the Police Commissioner will have to give permission to a female police officer to get married. Such provisions do not apply to male police officers. Moreover, a male police officer can get married anytime and have as many wives as possible; that is neither the business of the Act nor that of the Commissioner.
Again, Section 126 of the Police Act provides: “A married woman police officer who is pregnant may be granted maternity leave in accordance with the provisions of general orders.” Section 127 goes further to state that: “An unmarried woman police officer who becomes pregnant shall be discharged from the Force,….” The above provisions are also discriminatory. Section 127 does not consider the fact that a woman may get pregnant as a result of rape; if this happens, the woman will still be discharged from the force. Section 128 even prohibits a woman police officer from dressing is specific ways and from using certain jewelries. One wonders why the Police Act is so hostile to women. Another serious problem in Nigeria is child marriage.180 In this instance, their consent is hardly sought. In most part of the country, there is no legally defined minimum age of marriage. Section 18 of the Marriage Act defines a person under the age of 21 years as a minor but allows a minor to marry with parental consent. In the Eastern part of Nigeria, the marriageable age is 16181. Child marriages are justified by parents on the ground that it prevents promiscuity, which a girl child is prone to at puberty. At times, the reasons are religious, economic and often times the low appreciation of the need for the girl child to go to school. The 1991 Census182 shows that 2% of Nigeria married women entered into marriage by the age of 10, 8% at 12, 25% married at 1315, and 40% at the age of 15, while 64% by the age of 18. The average age of marriage for females was found to be 16.5 years.
“Real men don’t beat women” by Temitope Naphew in The Punch of December 12, 2006 Vol. 17 No 19,754 at p. 47. 181 Marriage Act of Eastern Nigeria. The Convention on the Right of the Child provides that a child is a person below the age of 18. In other words, any marriage of a person below age 18 is a child marriage. 182 No official data on this issue from the 2006 Census was found.
Under customary law, children can marry when they have attained puberty, an age which differs from one customary legal system to another although it is generally assumed to be 12 years of age for girls. As a result, underage marriages are common throughout Nigeria. Young girls are involved in premature sexual relations with men much older than them in the absence of criminal sanctions against child marriage or marital rape. The 1999 Constitution of the Federal Republic of Nigeria has complicated the matter. The Constitution183 deems a child as an adult in so far that child is married. This limb of the provision further strengthens the violence against girl children contrary to Article 16 of the Convention on the Elimination of All Discrimination Against Women (CEDAW), which prohibits the betrothal, and marriage of a girl child. The Criminal Code prescribes 16 as the minimum age for marriage but exempts from any criminal offence a man who marries an underage girl under customary law, thus leaving the victim of child marriage and rape without any redress. In a situation where girls are married without full consent or at an age where they are too young to give meaningful consent to sex, the risk of sexual assault and rape is clear. Punishment for sexual abuse is usually limited to a fine of 200 naira or six months’ imprisonment. The effect of child marriage is gruesome and includes higher maternal mortality and greater prevalence of conditions such as Vestico Virginal Fistula (VVF). There are recent positive developments in Nigeria on the issue, for instance, Bauchi State an area where child marriage is prevalent has enacted a law banning child marriages. It is hoped that some other States would follow suit. Under Sharia law (to be distinguished from new state-level Sharia penal legislation), which is applicable to all Muslims, a husband has the right to beat his wife, but may use only a small implement and should not make a physical
Section 29(4) of the 1999 Constitution of the Federal Republic of Nigeria
mark on her body.184 Sharia law lays down rules regarding Muslims’ personal lives concerning worship, rituals and moral conduct, as well as matters that are more legal in nature such as contracts, marriage, inheritance and divorce. New Sharia Penal Codes introduced since 1999 in 12 northern states185 have specified new criminal offences and prescribed more severe punishments including amputation and stoning to death. They contain provisions on rape that legalize and legitimize marital rape by explicitly excluding it from the definition of the criminal offence of rape.186 One problem with evidence in relation to women under the Sharia Penal Codes is the issue of confession as evidence. According to the Evidence Act used in conjunction with the Penal Code, a confession is not deemed to provide sufficient evidence to secure a conviction. However, under the Zamfara Sharia criminal procedure code for example, a confession in the absence of any corroborative evidence can be used to secure a conviction.187 36 year old Safiya Yakubu Hussaini was sentenced to death by stoning for zina188 on 9th October, 2001. She allegedly confessed having been made pregnant by Yakubu Abubakar, who was subsequently set free for ‘lack of evidence’. The Court reportedly did not pursue the allegations of coercion. The implication of the decision in the case of Safiya Yakubu Hussaini is that men who rape girls and women can go unpunished as long as they make sure that there are no witnesses to their crime. But women and girls who are victims
Baobab for Women’s Human Rights, Women’s Access to Justice and Personal Security in Nigeria: a synthesis report, 2002, p. 13. http://web.amnesty.org/library/print/ENGAFR440012004 (accessed on August 12th, 2007) 185 Bauchi, Borno, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger, Sokoto, Yobe, and Zamfara. 186 For example the Sharia Penal Code Law 2001 of Bauchi State: "Sexual intercourse by a man with his own wife is not rape" (Section 131(2)). 187 This applies generally to both sexes. 188 The new Sharia Penal Codes define someone who has committed zina as "whoever, being a man or a woman fully responsible, has sexual intercourse through the genital [sic] of a person over whom he has no sexual rights and in circumstances in which no doubt exists as to the illegality of the act" (each state shares a similar definition of zina, see for example Section 121 of The Sharia Penal and Criminal Procedure Codes 2002 of Kaduna State). Zina was previously punishable by flogging for Muslims under the Penal Code. However, in the States that have introduced Sharia penal laws, zina carries a mandatory death sentence if the accused is married, while 100 lashes is the mandatory sentence if the accused is not married. The charge of zina and the punishment for it prescribed in the law applies to Muslims only.
of rape or coercion have their situation further compounded. The women will instead be subjected to potentially false accusation of zina. This clearly violates the rights of women while protecting those who rape them. The Sharia Criminal Procedure Codes in Nigeria vary in their requirements regarding the number of judges which make up properly constituted courts and which can conduct the hearings and pass sentences in criminal, including capital, cases in the lower Sharia courts. On appeal the requirement is generally for three judges to hear a case. When a case is heard by one sole judge in the lower Sharia courts this raises the concern of lack of guarantee for adequate safeguards of fair trial standards. Thus, there are fears that this could also distort the impartiality of the courts. Furthermore, judges ruling in capital cases are often the same judges who adjudicate in civil matters and have rarely received adequate training to judge criminal matters under the new criminal procedures.189 This can also have serious implications on the competence of the court. 30 year old Amina Lawal was sentenced to death for zina by the lower Sharia court of Bakori in Katsina State. The court was composed of a sole judge 190 and Amina Lawal was sentenced to death by a lower Sharia court which was not properly constituted. The requirement according to the Katsina State Law Providing for the Establishment of Sharia Courts and Related Matters Law No. 5 of 2000 is that a lower Sharia court in Katsina State is properly constituted when one Alkhali191 sits with two members. Therefore, it is appears that Amina Lawal’s right to a fair trial by a competent court as stated in the International Covenant on Civil and Political Rights (ICCPR)192 was violated.
Amnesty International, “Nigeria: Security forces: Serving to protect and respect human right.” AI Index AFR 44/023/2002, pp. 185-186. http://web.amnesty.org/library/print/ENGAFR440012004 (accessed on August 12th, 2007) 190 Amnesty International WARAN action (08/01). http://web.amnesty.org/library/print/ENGAFR440012004 (accessed on August 12th, 2007) 191 A judge who is knowledgeable in Sharia law 192 Article 14(1) provides 1. “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law….”
The State is responsible for gaps in the laws so that certain types of violence are not prohibited, or certain categories of victims are not afforded proper protection. The State must ensure protection against the full range of violence. Violence within the family is not a recognized criminal offence. Acts of physical abuse or violence are prosecuted as common assault (Criminal Code, Section 355) or as indecent assault (Sections 353 and 360, for males and females respectively). Unlawful assault is punishable by up to three years’ imprisonment. If it is committed "with intent to maim, disfigure or disable" or "to do some grievous harm", or using a weapon, corrosive fluid or explosive, life imprisonment may be imposed.193 The penalty for indecent assault against a man is higher than for a woman, however. Thus, if the victim is a man: "Any person who unlawfully and indecently assaults any male person is guilty of a felony, and is liable to imprisonment for three years." 194 Furthermore, since the legal system does not provide additional protection to the victim by complementing a criminal offence with the civil remedy of a protection order, victims of violence in the home are even more vulnerable. Women are deterred from seeking justice if they have to live in the same house as the partner or husband charged with assault. The laws currently in force discourage women from seeking the support of the law except in extreme cases. Lastly, the language of the law itself in Nigeria is discriminatory. Our laws are littered with pronouns like ‘he’, him’ and ‘his’ when referring to both males and females. Our Interpretative Act states that this pronoun when used in statutes means both males and females. One wonders what harm will be done to our laws if collective pronouns like ‘they’ and ‘their’ are used instead.
Section 332. Grievous harm is defined as: "any harm which…seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, member, or sense".(Criminal Code, Section 1(1)(f)) 194 Section 353
3.1.2 THE STATUS OF WOMEN AND GIRLS UNDER OTHER AFRICAN LEGAL SYSTEMS Women's land use rights have most often come through their social ties to kin and husbands. These rights are contingent on status; a senior wife may have stronger rights than a junior wife. A woman's rights may increase with the length of marriage or with more children. Among the Beti of Cameroon widows come in three types: old women, young women without children, or only with daughters, and young widows with sons. The value to her kin, and to herself, of various options depends greatly on her type. An old woman remains with her sons. The younger woman without children will be evicted. The woman with young sons will remain with her husband's kin - tenuously surviving and protecting the interests of her sons (which may be her own interest) against in-laws who would rather exercise closer control over her deceased husband's farms.195 A woman's rights depend on her social position and role in both customary and statutory law. Customary and statutory laws encompass rights of divorce, widowhood and inheritance. Customary law also frequently enjoins a husband to provide his wife with land, a requirement absent from most statutes. More common is to find systems where women have only limited rights. In Sudan-Sahelian West Africa, where women usually have very limited rights to cultivate on their own-account, growing land scarcity and concentration are shrinking their allotments. In East Africa, where the house-property complex gave women certain kinds of well-defined rights, in terms of their role in transmitting property from fathers to sons, land registration and titling have gone exclusively to men. A woman's marital status is very important in determining how she will be affected by land registration in East Africa. Widows are particularly vulnerable
“Women in Africa” op. cit. note 106
because land is generally registered in the husband's name and upon the death of their husband they are not considered heirs. Taita women in southwestern Kenya do not own land, but had well developed use rights after marriage. Widows had particularly strong rights, as they could "sell, pawn, or lend parcels on behalf of minor heirs". After registration, however, their rights to act on behalf of their guardians were limited, because the land is registered in only the husband's name. In Central Kenya, widows continue to farm land that was registered in their husband's name after his death. In most cases they are secure; their male children will eventually inherit the land and continue to let their mothers farm the land. With recent increases in land sales, however, women are questioning their security as it is not uncommon for sons to sell their land without their mothers' permission. Widows without male children are especially vulnerable as the land customarily goes to her husband's relatives.196
3.1.3 THE STATUS OF WOMEN AND GIRLS UNDER FOREIGN LEGAL SYSTEMS Like all other forms of gender-based violence, violence against women in the family constitutes a violation of women’s rights and fundamental freedoms. It violates the rights of women and girls to mental and physical integrity, to liberty and security of the person, and in some cases to life. Such violence also prevents the full enjoyment of rights and fundamental freedoms such as the right to health, employment and freedom of expression. States that fail to exercise due diligence to prevent, stop, investigate, punish and ensure redress for violence against women wherever it occurs, may be held accountable for violating their rights under international human rights laws not to suffer torture and inhuman treatment or punishment. For instance, in Jamaica, violence against women persists because the state is failing to tackle
discrimination against women, allowing social and cultural attitudes which encourage discrimination and violence. This violates the government’s most basic treaty obligations under the UN Convention for the Elimination of Violence Against Women (CEDAW), among others. Shortcomings in national legislation do not deal adequately with marital rape, incest or sexual harassment, thereby encouraging impunity and leaving women without the protection of the law.197 Discrimination is entrenched and often exacerbated in the police and criminal justice system. Women and adolescent girls are rarely believed by the police, so have little confidence in reporting crimes against them. Evidence is often not sought effectively or professionally, and witnesses are rarely protected. In court, women’s testimony is explicitly given less weight than men’s, thereby depriving women of the right to equality before the law. Marital rape is not a statutory crime in Jamaica, although there are conditions under common law for which it is recognized as an offence, and hence its prevalence is difficult to establish. However, women who spoke with Amnesty International discussed openly situations in which they had agreed to sexual activity in order to avoid violence, or to ensure that their boyfriends or partners provided economic support to the household. One woman who continues to experience marital rape stated:
"If you’re in your home and your husband come and he touch, and some type of husband use her, and she not in the mood, him start tell you from a to z and when him angry for it you must respond. And when you respond everything good and nice. But at the same time you may be responding to him and in the end it is killing you."198
“I believe victims don't report it a lot of times because it's too hard to prove,” according to one rape survivor. “The justice system in Jamaica makes it too hard on the victims to prove that they were an outstanding citizen. The victim is
“Violence against Women in Jamaica” http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007) 198 Amnesty International interview, 11 November 2005 http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007)
put on trial. There is not enough sensitivity and responsibility as a society, we should be more supportive."199 The court experiences for women who make allegations of sexual assault are reported to be overwhelmingly negative. For example, the experience of court for a woman who was taken from her workplace and gang-raped by a large group of men at gunpoint further added to her ordeal. "The lawyer made me feel like a slut in court. He tried to convince the court that I was guilty for them doing such a terrible thing to me,"200 she said. A member of the police sexual assault team told an investigator that as strategies of defence, lawyers for the accused could be "callous" and that crossexamination of victims could be "brutal".201 In practice, it appears that women who have the means, information and support to pursue an allegation of sexual assault will do so, but the vast majority of women, usually from poorest sectors, are unable to take on these challenges. One of the most serious problems in the criminal justice system, is the "warning" judges are required to issue in cases of uncorroborated sexual assault, a compulsory practice derived from common or case-law. This warning states:
"Madam foreman and members of the jury as this is a case of rape (sexual violence) the law requires me to give you a warning in such cases. The law says that in these types of cases it is desirable that there should be corroboration... This warning is necessary because experience has shown that women and young girls often tell lies and for that reason the law requires this independent evidence. However, if there is no corroboration and you believe that the complainant is telling the truth and bearing the warning in mind you can proceed to act on her evidence even if there is no corroboration."202
Rape survivor, quoted in the Jamaica Gleaner, 23 January 2006. http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007) 200 6 June 2004, Jamaica Observer http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007) 201 Royes, H.(2005) http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007) 202 In interviews with Amnesty International, member of the judiciary and legal counsel explained that the warning is part of common or case law. There is a second warning in the case of young children, wherein it is required to warn juries that children have "fanciful imaginations": the case must also be stopped if there is no corroboration of the evidence of an unsworn child victim. http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007)
Killings, threatening and extortion of witnesses by gang members are common. This, combined with low levels of awareness of the workings of the criminal justice system, means that witnesses are often reluctant to testify in criminal cases. One NGO worker told Amnesty International that the justice system even has difficulties getting character witnesses to testify as to the good character of the accused, because witnesses were so terrified that “words would get out”, that that person had been a witness in court. Even being seen at a police station may give rise to fears that someone is an ‘informer’. Most sexual violence in communities in Jamaica goes unreported because women are fearful of the retaliation of gang members.203 Lengthy case proceedings and failure to protect witnesses are significant failings in the criminal justice system. Evidence of the victim’s sexual history and the character of the accused and his standing in the community can be admitted to give ‘context’ to a sexual assault trial. One judge expressed concern that the interests of the victim were not of sufficient importance; "In the criminal justice system no one consults the victim. The prosecutor can get up in court and unilaterally dispose of the case; he can make decisions about what to do with the case without the witness’s knowledge and consent".204 One women’s rights activist noted with concern the lack of sentencing guidelines for sexual assault crimes. The Department of Corrections reports that in 2004, sentences for sexual offences range between less than three months and 25 years’ imprisonment.205 In practice, this means a wide margin of discretion for individual judges. Concerns were also expressed by some members of the judiciary that when cases were returned on appeal, judges were more likely to reduce the sentence in rape cases than in murder cases.
Moser & Holland, “Urban violence and poverty in Jamaica” http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007) 204 Amnesty International Interview, 15 November 2005 http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007) 205 Department of Corrections, reported in Economic and Social Survey Jamaica 2004. http://web.amnesty.org/library/print/ENGAMR380022006 (accessed on August 12th, 2007)
In most Islamic states a system of gender apartheid rules, and in several, women are still being stoned to death for being involved in sexual relations outside marriage. In Iran, the Sudan, Iraq, Pakistan and Afghanistan, Islamic regimes are inexorably transforming women's homes into prison houses. In many states, the confinement of women, their exclusion from many fields of work and education, and their brutal treatment have become the law of the land. In these countries, Sharia law is used as a weapon in the hands of Islamic regimes to create a major barrier to the integration of the human rights of women into the mainstream.206 Despite efforts being made by some members of the Iraqi administration for instance, there is strong opposition from many religious leaders to the creation of a society in which women can play their full part. The contribution of every Iraqi woman will be vital in the massive task of reconstruction following the years of bloody dictatorship and war, exacerbated by economic sanctions. But the interim constitution, the Temporary Administrative Law, fails to give adequate protection to women’s human rights in at least three critical areas where women in the Middle East have historically suffered discrimination: It offers no explicit guarantee that women will have equal rights to marry, within marriage, and at its dissolution. It does not explicitly guarantee women the right to inherit on an equal basis with men.
It fails to guarantee Iraqi women married to non-Iraqis the right to
confer citizenship to their children.207 In Jordan, a 34-year-old man walked free from the Irbid Criminal Court after receiving a one-month prison term for inflicting harm on his older divorced sister that resulted in her death in August 2001. Mohammad A. was standing
Azam Kamguian “International Humanist and Ethical Union Internationale Humaniste et Laique” Tuesday, 6 April 2004 http://www.iheu.org/glossary/#term407 (accessed on September 25th, 2007) 207 Ibid.
trial on charges of beating his 35-year-old sister Huda with a wooden stick on her head and other parts of her body on 30 July 2001 which caused her death a week later. The defendant's father dropped charges against his son. The victim's family testified in court that the woman had medical problems with her head prior to the incident. Official sources reported that the woman, divorced for over 10 years, was beaten up by the defendant for matters relating to "family honour" after one of her family members accused her of developing a relationship with a man. An official autopsy performed then on the victim indicated the woman died because of a brain contusion as a result of physical trauma to the head.208 In another ruling also in Jordan, a 20-year-old man standing trial for attempting to kill his 12 year-old sister with poison after suspecting she engaged in sexual activities with their brother, was freed after receiving a two-month prison term. The tribunal ruled in its written verdict that the defendant committed his act in a fit of fury and therefore his charge.209 In Iran, Nosrat Abouii, a woman who was stoned in Yazd prison managed to escape while she was being stoned but was arrested immediately by the government and put in jail. Also, on September 25, 2002 Goli Nik-Khou was stoned to death after serving her 15 -year sentence in the town of Naqadeh, western Iran. 210 In Uzbekistan, despite the constitutional guarantee of full legal equality between men and women, in practice, women continued to face discrimination in their access to divorce and to marital property. Privileging protection of the family over women's equality and autonomy, the Uzbek government erected legal and administrative barriers to divorce. Courts refused to grant women divorce without permission from local authorities. Also, a husband's refusal to
“Women in the Far East” http://www.eclipse.co.uk/women (accessed on September 18th, 2007) Ibid. 210 “Women under Iranian Law” http://www.azadizan.com (accessed on September 18th, 2007). According to Islamic Sharia Law, women are buried up to their armpits for stoning.
divorce barred his wife's legal claim to marital property, although he, relying on the lax enforcement of laws against bigamy, could re-marry at will.211 In Afghanistan, women have suffered different forms of discrimination especially when the Talibans were in charge. Below is a summary of the sufferings of women under the Talibans as stated by the Fact sheet released by
the U. S Senior Coordinator for International Women's Issues.212
Since the Taliban became a military and political force in late 1994, women and girls in Afghanistan have become virtually invisible in Taliban controlled portions of the country. The impacts of Taliban imposed restrictions are most acutely felt in the cities where women had enjoyed relatively greater freedoms. In 1996, the University of Kabul reportedly had several thousand women students while thousands of professional women worked in different capacities in the city. When the Taliban takeover, women were not allowed to attend school and others have been forced to leave their jobs.
The Taliban have issued edicts forbidding women from working outside the home, except in limited circumstances in the medical field. Hardest hit have been over 30,000 widows in Kabul and others elsewhere in the country, who are the sole providers for their families.
The Taliban prohibit girls from attending school. There are a few home based schools and some schools in rural areas which quietly operate to educate girls. They fear closure.
Women and girls are not allowed to appear outside the home unless wearing a head to toe covering called the burqa. A three
“Legal Status of Women in Uzbekistan” http://www.hrw.org/wr2k2/index.html (accessed on September 18th, 2007) 212 “Afghanistan Report, 2002” http://www.state.gov (accessed on September 25th, 2007)
inch square opening covered with mesh provides the only means for vision. Although the burqa was worn in Kabul before the Taliban took control, it was not an enforced dress code and many women wore only scarves that cover the head. Women are also forbidden from appearing in public with a male who is not their relative.
Women’s and girls’ access to medical services has been drastically cut down. Women are treated primarily by female doctors and the number of female doctors has been greatly reduced. It is also dangerous for women to leave their homes. For example, one mother in the city of Farah reportedly was shot by the Taliban militia for appearing in public to take her toddler to a doctor. The child was acutely ill and needed immediate medical attention.
Taliban militias mete out punishment for violations of these rules on the spot. For example, women have been beaten on the street if an inch of ankle shows under their burqa. They have been beaten if they are found to move about without an explanation acceptable to the Taliban. They have been beaten if they make noise when they walk. According to one report, a women struggling with two small children and groceries in her arms was reportedly beaten by the Taliban with a car antenna because she had let her face covering slip a fraction.
Taliban edicts require that windows in houses that have female occupants be painted over.213
CONCLUSION Appropriate measures should be taken to prevent harm to individuals known to be at specific and immediate risk as well as preventing harm in a more general way at an earlier stage for all victims. For instance, a comprehensive set of services should be provided to women to guarantee their safety before serious violence occurs, and a general judicial and administrative framework should be established, including effective human rights education for state officials. States must also fulfil women’s human rights by ensuring the appropriate infrastructure to support these laws, policies and practices, and to render them effective. The duty to fulfil and promote human rights has reactive and preventive aspects. It requires the state, for example, to: change the criminal and civil laws to ensure protection against all forms of gender-based violence in a gender-sensitive manner; not allow illegal defences such as ‘correction’ under Section 55 of the Penal Code, to promote a culture of impunity; ensure women access to justice by implementing laws and encouraging women to turn to the justice system and supporting those who do; provide adequate protection for victims and witnesses taking part in investigations; ensure effective and impartial police investigations and prosecution practices which are responsive to victims concerns and needs; complement criminal sentences with civil remedies; provide training and educational programs in schools and for state agents, including judicial and law enforcement personnel and those working in the health sector; provide support services for victim.
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa also requires state parties to "combat all forms of discrimination against women through appropriate legislative, institutional and other measures" by taking measures such as: including in their national constitutions and other legislative instruments the principle of equality between women and men and ensure its effective application; enacting and effectively implementing appropriate legislative or regulatory measures to prohibit and curb all forms of discrimination particularly those harmful practices which endanger the health and general well-being of women; integrating a gender perspective in their policy decisions, legislation, development plans, programmes and activities and in all other spheres of life; taking corrective and positive action in those areas where discrimination against women in law and in fact continues to exist; and supporting local, national, regional and continental initiatives directed at eradicating all forms of discrimination against women. Additionally, this protocol places an obligation on states parties,
"…to modify the social and cultural patterns of conduct of women and men through public education, information, education and communication strategies, with a view to achieving the elimination of harmful cultural and traditional practices 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 women and men.”214
States must give access to
"…appropriate remedies to any woman whose rights or freedoms… have been violated and to ensure that such remedies are determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by law.”215
Article 1(2) Article 25.
RELIGION AND DISCRIMINATION AGAINST WOMEN AND GIRLS
And the Lord God said, It is not good that the man should be alone; I will make him an help meet for him.216 Therefore shall a man leave his father and his mother, and shall cling unto his wife: and they shall be one flesh.217
It seems from the above passage of the Holy Bible that God’s plan was for a unity between the sexes and not superiority or inferiority devolving from the differing roles of men and women. To be sure, there are passages in the epistle of St. Paul indicating this unity. For instance the Bible states: “Husbands, love your wives, even as Christ loved the church, and gave himself for it.”218 The question one should now ask is why are women and girls discriminated against under the guise of religion. Another look at some parts of the bible will show justification for this discrimination. In 1st Corinthians 14:34-35, the Bible states:
Let the women keep silence in the churches: for it is not permitted unto them to speak; but let them be in subjection, as also saith the law. And if they would learn anything, let them ask their own husbands at home for it is shameful for a woman to speak in the church.219
The above passage is clearly a contradiction of the passage of the same Bible earlier cited. Can we now say that the passages of the Bible are contradictory? The Qur’an, the Holy Book of the Muslims, states in Qur’an 11:228 that, “The women ought to behave towards their husbands in like manner as their husbands should behave towards them, according to what is just.” In other words, equality between the married parties is thus held to be the regulating
Genesis 2:18, King James Version Ibid at 2:24, 218 Ephesians 5:25, American Standard Version 219 American Standard Version
principles for all domestic relationship. Fidelity to the marriage oath is required to both sides, and unfaithfulness leads to the same consequences whether the delinquent be the husband or the wife. Chastity is required equally from both the man and the woman. The Qur’an went further to state that: “And He giveth life and death and life. And he created pairs. The male and female from small life germ when it is adopted.”220 This suggests equality in both sexes but is this true in practice? Does the Qur’an not have contradictory provisions like the Bible? This discussion will look into various world religions and show the forms of discrimination against girls and women that can be found in them.
4.1.1 THE STATUS OF WOMEN AND GIRLS IN CHRISTIANITY
How could it have come about that a religion rooted in equality and mutuality should have been transformed into a man-centered cult with the basic tenet of excluding half of the human race from full personhood? When women are perceived as less than human, the consequence is violent abuse, such as woman battering, a crime that was not even acknowledged in our legal codes as recently as two decades ago, let alone addressed as a significant social problem or as one that must be addressed from the pulpit. I am convinced that the misshapen society resulting today from this Christian mindset is adversely affecting the lives of both women and men who refuse to challenge injustice to all women inherent in Christianity. This injustice stems from the misogynistic assumptions of the Christian teachings derived from Augustine, Aquinas, Gratian, and other founders of Christian precepts grounded in the Aristotelian conviction that females are defective males. This paper will make connection between these Christian teachings and the acceptance of wife abuse as a private matter, and not open to public debate, and certainly not to acknowledgement from the pulpit. The crime of battering came to my attention nearly twenty years ago. I was confronted with the problem when Cathy, a ‘good Christian woman’, knocked on my door and asked me to help her. Thinking that her husband was drinking too much she went to a tavern to ask him to come home; his response was to beat her in the parking lot so severely that she was taken to the emergency ward, where the doctor, whom she had never met, asked ‘What did you do to provoke him this time?’. This case and many similar episodes led to my legislative work in Wisconsin as a member of the Battered Woman Task Force. It was in this capacity that I began to suspect a strong connection between Christian upbringing and the acceptance of battering by women and men. In particular, a strongly worded letter from a rural Wisconsin woman accused me of sinful ways in trying to urge women to leave a battering situation; as she put it, it was woman’s God-given duty to submit to her husband and
to suffer in silence as a good Christian woman. I was motivated to discover how this woman had received such a message from her Christian education: that is, that for the sake of keeping the family together, a woman had to sacrifice her own safety and that of her children. Furthermore, the wife who is battered is made to feel the cause of this abuse, and - like the guilty Eve - shares the guilt that accrues to all women from the verses of Genesis.221
In ancient Rome,222 a woman’s legal position was one of complete subordination, first to the power of her father or brother and later to that of her husband who had paternal power over his wife. In the eyes of the Roman Law, women were imbeciles. It also rendered them unfit to sign a contract or a will or act as a witness. They can not also hold public office. A girl had no other career than marriage. She could be married as early as twelve. Daughters were in fact not wanted. The worries that a father always had with his daughter has been summarized thus:
It is written, a daughter is vain treasure, to her father from anxiety about her he might die during her early years, lest she is seduced; in her adolescence, lest she go astray; in her marriageable years, lest she is childless; and when she is old, lest she be witchcraft.223
The male morning prayer was: “… blessed art thou who has not made me a Gentile, a slave or a woman.” In other words, women were placed on the same level with Gentiles and slaves. Social intercourse with a woman was seen as a moral danger, an incitement to depravity and lust, a special invitation to the evil nature to lead it to severe impurity.224 Still on ancient Rome, legally, a woman was a minor. Socially, she was not a responsible person. She was no better than a chattel. Women did not eat with men; they stood and served. In the churches, they were separated from men. They could not inherit from their fathers or from their husbands. Although marriage was regarded as a woman’s longest ambition and the essence of her
Dr. Mary Ann Rossi, “The Legitimation of the Abuse of Women in Christianity” in Feminist Theology 4, Sheffield Academic Press, 1993, pp. 57-63 http://www.womenpriests.org/theology/rossibio.asp (accessed on September 8th, 2007) 222 Rome is the seat of the Catholic, an arm of Christianity. Roman Laws are mainly based on the laws in the Bible. 223 Ademola O. Popoola, “Gender Equality, Political Participation and Leadership: The Past, Present and Future” in Jurisprudence Class on Feminism Handout, (unpublished) 2007, 20 224 Ibid.
existence, she had no power to choose whom to marry. For the most part, marriages were arranged either by parents or by professional match makers. A girl may be engaged when she was a baby.225 Today, anyone who has attended a Christian wedding ceremony recently can testify to the strangle-hold of the perception in requiring a woman to ‘obey’ her husband, “and in acknowledging and affirming the reading of the passage from Genesis relating to the fashioning of the guilty Eve from Adam’s rib, which has been said to be the most pernicious myth perpetrated against women.”226 On the attitude of the church towards sexuality, Christians raised in the Roman Catholic faith cannot discuss the defilement of the body by sexual intercourse without tracing the root of this ‘mindset’ in the teachings of the Fathers of the church, of whom the most notable is Augustine. The early Christians, as they chose their canonical texts, excluded all writings that conceived of God as both male and female. The orthodox (‘straight-thinking’) God is exclusively male. Eve is created from Adam’s side for his fulfillment. This is translated in society into the domination of men over women as the proper God-given order for the human race and for the Christian church. As Augustine maleness is assimilated into monism; femaleness becomes the image of the lower corporeal nature, or carnality and sexuality. Woman is seen ethically as dangerous to the male. To illustrate the persistence of this male suspicion of all women, in 1962, at the first ecumenical council convened by Pope John XXIII in Rome, an Anglican journalist, Ann Cheetham, having been invited to attend, was confronted by a cardinal who screamed: “Leave this place immediately! Do not sully this conference with the presence of a woman.” Deeply humiliated, Ann Cheetham, a lifelong worker for the cause of women’s equality in the church, left Rome in tears, women’s only resort in the face of a hierarchy deaf to the voices of women.227
Popoola op. cit. note 223 Rossi op. cit. note 221 227 Ibid.
Augustine locates the source of original sin in the male erection and women are the cause of it. The depersonalization of women into whore, wife or mother may be traced to his writings. Most damaging is his reiteration of the precept that the wife must submit completely to her husband, even to the point of physical abuse and death. Augustine formulated the idea that women were good only for reproduction and unqualified for anything connected with mind or intelligence. Thus, Augustine was the inventor of what the Germans call the three K’s, Kinder, Küche, Kirche: that is children, kitchen and church, an idea that still has life in it. In fact, as the German theologian Ute Ranke-Heinemann notes, it continues to be the Christian hierarchy’s primary theological position on women.228 Augustine describes the Catholic Church as the ‘true Mother of all Christians’, as if it might be the mother of all humanity and the guarantor of all existing social bonds: “It is you who make wives subject to their husbands...by chaste and faithful obedience; you set husbands over their wives.”229 As a result, Peter Brown sums up Augustine’s influence thus: “Augustine created a darkened humanism that linked the pre-Christian past to the Christian present in a common distrust of sexual pleasure.”230 One cannot discover anything either unnatural or immodest in a Christian woman, becomingly attired, appearing on a platform or on a pulpit. By nature she seems fitted to grace either. God has given to woman a graceful form and attitude, winning manners, persuasive speech, and, above all, a finely-toned emotional nature, all of which appear to us eminent natural qualifications for public speaking. We admit that want of mental culture, the trammels of custom, the force of prejudice, and one-sided interpretations of Scripture, have hitherto
U. Ranke-Heinemann. Eunuchs for the Kingdom of Heaven, New York, 1990 http://www.womenpriests.org/theology/rossibio.asp (accessed on September 8th, 2007) 229 P. Brown, The Body and Society London: André Deutsch, 1988, 426. http://www.womenpriests.org/theology/rossibio.asp (accessed on September 8th, 2007) 230 Ibid.
almost excluded her from this sphere. Today, some men cannot sit under the ministration of a female pastor.231
THE STATUS OF WOMEN AND GIRLS IN ISLAM232
In Islam, relations between the sexes are governed by the principle of “complementarity” rather than the principle of equality.233 In many Islamic societies, there is a division of roles creating a woman’s space in the private sphere of the home and a man’s in the public sphere.234 Because of this economic reliance of woman on men, the Qur'an justifies that men should always be in charge over woman. A woman's primary responsibility is usually interpreted as fulfilling her role as a wife and mother, whereas a man’s role is to work and be able to financially support his wife and family.235 In some Islamic countries, such as Saudi Arabia, sex segregation has been or is strictly enforced. The Taliban treatment of women in Afghanistan was an extreme example of this. Even in countries where the sexes mingle socially, they generally remain segregated within the mosque to prevent close body contact in order to avoid distraction during the Islamic form of prayer.236 According to Prophet Mohammed, "A slave is a shepherd of his master’s property and a wife is a shepherd of her husband’s house and children."237
In our immediate environment here in Obafemi Awolowo University, Ile Ife, Nigeria, no fellowship has a female head. 232 This has been partly discussed in Chapter 3, especially in pages 74 & 78 – 80. 233 Carla Makhlouf Obermeyer. "Islam, Women, and Politics: The demography of Arab countries", Population and Development Review, Vol. 18, No. 1. March., 1992, 33-60 http://www.amazon.com/Systematic-Theology-Wayne-Grudem/dp/0310286700 (accessed on September 18th, 2007) 234 “Status of Women in Islam” http://www.vatican.va/archive/ENG0015/__P17.HTM (accessed on September 18th, 2007) 235 “Gender Roles in Islam” http://en.wikipedia.org/wiki/Gender_roles_in_Islam (accessed on September 18th, 2007) 236 “Sex Segregation” http://en.wikipedia.org/wiki/Sex_segregation (accessed on September 18th, 2007) 237 Hadith of Prophet Mohammed quoted by Abu Dawud vol.2 no.2922 p.827 http://www.MuslimHope.com (accessed on September 8th, 2007)
He went further: “’O women! Give alms, as I have seen that the majority of the dwellers of hell-fire were you (women).’ They asked, ‘Why is it so, O Allah’s Apostle?’ He replied, ‘You curse frequently and are ungrateful to your husbands. I have not seen anyone more deficient in intelligence and religion than you….’ The women asked, ‘O Allah’s Apostle? What is deficient in our intelligence and religion?’ He said, ‘Is not the evidence of two women equal to the witness of one man?’ They replied in the affirmative. He said, ‘This is the deficiency in your intelligence. Isn’t it true that a woman can neither pray nor fast during her menses?’ The women replied in the affirmative. He said, ‘This is the deficiency in your religion.’"238 According to a Muslim scholar239 women are inferior to men in Islam in many ways. These include lesser inheritance, liability to divorce and inability to divorce. Men can have multiple wives, but a woman can have only one husband. The wife must stay secluded at home and must keep her head covered even when she is inside the house. A woman’s court testimony is only counted as half of a man. A woman cannot leave the house except accompanied by a near relative. Only men can take part in Friday and feast day prayers and funerals. A woman cannot be ruler or judge.240 Some of these will be briefly explained. In Islam, daughters only get half the inheritance of their brothers. The Qur’an says, "Allah (thus) directs you as regards your children’s (inheritance): to the male, a portion equal to that of two females”241 This provision of the Qur’an seems discriminatory but in Pakistan, Syria, and Egypt, it is worse because women cannot inherit anything242.
Awde Nicholas, Women in Islam : An Anthology from the Qur’an and Hadiths. St. Martin’s Press 2000. http://www.MuslimHope.com (accessed on September 8th, 2007) 239 al-Ghazali (1058-1111 A.D.) http://www.Answering-Islam.org (accessed on September 8th, 2007) 240 Why I Am Not a Muslim p.300 http://www.Answering-Islam.org (accessed on September 8th, 2007) 241 Sura 4:11 242 Caner, Ergun Mehmet. Voices Behind the Veil. Kregel Publications. 2003 http://www.AnsweringIslam.org (accessed on September 8th, 2007)
Women are to "abandon prayer" during their time of month.243 A menstruating woman is not allowed to recite the Qur’an.244 According to the Muslim Sharia Law, the witness of a woman is equal half that of a man, because of the deficiency of the woman’s mind.245 Mohammed said that a nation will never succeed that makes a woman its ruler.246 Eve was said to have been originally intelligent but Allah made her stupid after the fall.247 The Prophet said, “‘Isn’t the witness of a woman equal half of that of a man?’ The women said, ‘Yes.’ He said, ‘This is because of the deficiency of the woman’s mind.’”248 The Qur’an says, "...and get two witnesses, out of your own men. And if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her…. "249 This means that if a Muslim man rapes a Muslim woman, the man’s word would count twice as much as the woman’s. The word of a non-Muslim does not count at all in a court of law against a Muslim. Thus if a Muslim man rapes a non-Muslim woman, even if a second non-Muslim woman is present, his word (that he did not do it) would count superior to the word of both of them. Muslim women cannot be prophets. "The demands and physical suffering associated with the role of messengers and prophets"250 is the reason there are no women prophets. Islam is against women leaders. "He [Mohammed] said, ‘Never will succeed such a nation as makes a woman their ruler.’”251 The Qur’an says "Men are the
Imam Muslim, Sahih Muslim Vol.1 book 3 no.652 p.188-189 http://www.Answering-Islam.org (accessed on September 8th, 2007) 244 Hasan, Prof. Ahmad. Abu Dawud Vol. 1, 56 http://www.Answering-Islam.org (accessed on September 8th, 2007) 245 Nicholas, op. cit. note 238 246 Ibid. 247 Ihsan Abbas et al. The History of al-Tabari vol.1, 280,281 http://www.MuslimHope.com (accessed on September 8th, 2007) 248 Nicholas, op. cit. note 238 249 Sura 2:282 250 Nicholas, op. cit. note 238 251 Ibid.
protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means."252 In Islam, stripping female captives of war of their clothes is acceptable. 253 After the battle of Karbala, the Muslim soldiers supporting Yazid forcibly disrobed the Muslim women supporting Husayn.254 Also, Muslims can forcefully have sex with female captives. Even many Muslims who are not very familiar with their own Hadiths might not know that Mohammed and Muslims historically did this. It is perfectly reasonable that a Muslim would be expected not to believe this unless there was thorough evidence, so here is the thorough evidence.
We went out with Allah’s Messenger (may peace be upon him) on the expedition to the Bi’l-Mustaliq and took captives some excellent Arab women; and we desired them, for we were suffering from the absence of our wives (but at the same time) we also desired ransom for them. So we decided to have [sex] with them but by observing …. But we said: We are doing an act whereas Allah’s Messenger is amongst us; why not ask him? So we asked Allah’s Messenger (may peace be upon him), and he said: ‘It does not matter if you do not do it, for every soul that is to be born up to the Day of Resurrection will be born.’255
Islam permits wife beating. Mohammed asked: "‘How does anyone of you beat his wife as he beats the stallion camel and then he may embrace (sleep with) her?’ And Hisham said, ‘As he beats his slave.’"256 The Qur’an says in Sura 4:34 "beat" or "scourge" your wife, if she is disobedient? In Sura 4:34 the Arabic word idreb is a conjugate of daraba which means "to beat, strike, or hit".257 Mohammed himself once deliberately struck Aisha "on the chest which caused me pain".258 If a husband is remiss, the Qur’an never says the wife is to have her husband beaten. Even if the husband is a known beater, nothing is done to him. The Guardian Weekly reported that
Sura 4:34 Muslim, op. cit., note 243, 953 254 Abbas, op. cit., note 247, 161 255 Ibid. pp.732-733. 256 Nicholas, op. cit. 238 257 Hans Wehr Dictionary of Modern Written Arabic, 538. http://www.MuslimHope.com (accessed on September 8th, 2007) 258 Muslim, op cit. note 243, 462.
in 1987 an Egyptian court ruled that a husband had the duty to educate his wife, and therefore he could punish her as he wished. In a January 2004 Associated Press article by Mar Roman, a Muslim imam in Fuengirola, Spain, Mohammed Kamal Mustafa, was fined $2,735 and given a 15-month suspended prison sentence for writing and distributing the book Women in Islam, which urged husbands to hit their wives “… on the hands and feet using a rod that is thin and light so that it does not leave scars or bruises on the body.'' 259 According to a Muslim scholar, "Allah does not accept the prayer of a woman who has reached puberty unless she wears a veil." 260 In Afghanistan, even after the Taliban were driven out, Afghan women are still being abused, harassed and threatened, according to the Human Rights Watch report: "We Want to Live as Humans".261 This would happen when they are caught without wearing their burqa (veils). In Nigeria, a non-Muslim woman was walking where there was a mosque on the other side of the street. The mosque service had just ended, and when the people came out, they attacked her.
4.1.3 THE STATUS OF WOMEN AND GIRLS IN OTHER WORLD
In Judaism, One can find the discrimination against women and girls in the wordings of the Holy Book of Judaism. The first words of the Hebrew Bible262 are B'reshit bara Elohim, that is, “In the beginning God created.”263 The verb bara (he created) implies a masculine subject. The most common phrases in the
Mehmet. op cit. note 242, 152 Ahmad, op cit. note 244, 168 261 The Dallas Morning News 12/17/2002 http://www.Answering-Islam.org (accessed on September 8th, 2007) 262 Tanakh 263 Stuttgart Biblia Hebraica Stuttgartensia, Deutsche Bibelgesellschaft, 1990, 1 http://en.wikipedia.org/wiki/Exodus (accessed on September 8th, 2007)
Tanakh are vayomer Elohim and vayomer YHWH – “and God said” (hundreds of occurrences). Again, the verb vayomer (he said) is masculine; it is never vatomer, the feminine of the same verb form. In Genesis 1:26, God creates the gender distinction in mankind: “Let us make man in our image, after our likeness. So God created man in His image, in the image of God He created him; male and female He created them.” More detail regarding the creation of man and woman is given in Genesis 2, where God says that it is not good for the man to be alone, and makes a woman to help him, creating her from his rib. In Isaiah 62:5, God is compared to the bridegroom, and his people to the bride: “For as a young man marrieth a virgin, so shall thy sons marry thee: and as the bridegroom rejoiceth over the bride, so shall thy God rejoice over thee.” Under African traditional society, African Traditional Religion (ATR) is what is practiced. The society is predominantly patriarchal in nature. Women can never claim any equality with men and thus, face different forms of discrimination. This can be seen in the culture of the people. For instance, wives are seen as the property of their husbands; a male child is given better treatment compared to a girl. In traditional society, there is no separation between the laws governing secular and spiritual spheres. What the gods say is sanctioned by society and forms the norms of the community. They cannot be challenged, especially by women. This divinely ordained male dominance forms the ultimate basis of patriarchal entrenchment in Nigerian culture. In Hinduism, the cardinal principle on women is subjection. According to Hinduism, a woman’s mind, speech and body is perpetually kept under subjection.264
Jotings on the subject of Feminism during a Jurisprudence lecture with Dr. Ademola Popoola at Law 209 on September 17th, 2007
In Buddhism, the general belief is that salvation cannot be attained in the company of a woman.265 All these religious beliefs are discriminatory to women and girls and adherents of the different religions have hidden under these beliefs to inflict discriminatory treatments on daughters, sisters, wives, mothers and women in general.
CHAPTER 5 5.1 OTHER AREAS OF DISCRIMINATION
Every woman and girl is entitled to the realization of all human rights - civil, political, economic, social and cultural - on equal terms with men, free from discrimination. Women and girls also enjoy certain human rights specifically linked to their status as women.
Abuses against women are relentless, systematic, and widely tolerated, if not explicitly condoned. Violence and discrimination against women are global social epidemics, notwithstanding the very real progress of the international women's human rights movement in identifying, raising awareness about, and challenging impunity for women's human rights violations. Violence against women and girls is increasingly recognized as one of the most serious and urgent challenges of our times. In all parts of the world, its very real and harmful effects on women and girls have been seen to impede the pursuit of development, peace and gender equality. The international community and civil society together have concluded that there are no circumstances that can excuse violence that targets women and girls - it is always a violation of their human rights, it is always a crime, and it is always unacceptable. So far, this essay has discussed some major aspects of discrimination faced by women in the areas of our cultures and traditions, religions and our legal systems. These are just but a few of the innumerable areas of discrimination. This essay will go further to discuss a few of other areas for a better appreciation of the menace of discrimination against women and girls.
DISCRIMINATION IN EDUCATION
Article 13 of the International Covenant on Economic, Social and Cultural Rights provides: 1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that
education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. 2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
For the purpose of this Convention, the term "discrimination" includes any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education and in particular: (a) Of depriving any person or group of persons of access to education of any type or at any level; (b) Of limiting any person or group of persons to education of an inferior standard; (c) Subject to the provisions of article 2 of this Convention, of establishing or maintaining separate educational systems or institutions for persons or groups of persons; or (d) Of
inflicting on any person or group of persons conditions which are incompatible with the dignity of man.266
Cultural values of the society are known to influence the sex disparity in educational enrollment. Due to patriarchal attitudes there has been a general preference for male education in most parts of the world. Investment in boys’ education was preferred because they remain in the families while girls are expected to marry out. Women's participation in national educational systems is again biased due to the economic environments. There is also a lack of genuine political will to ensure that girls are given equal access to education. More than two-thirds of Africa's illiterates are women. Women are regarded as inferior to men and are not expected to aspire as high as men, especially in what are considered as ‘male’ fields (engineering, computing, architecture, medicine, etc.). It is largely assumed that educating women would make them too independent; in other words, they would not do what they are expected to do - look after the house, bring up children, and cater to their husband's needs.267 In poor countries, extending access to education and training is often difficult when the cultural and monetary costs are high or the benefits are limited. When families face economic problems they prefer to invest their limited resources in the education of boys rather than provide what is considered as ‘prestigious’ education for girls who would eventually marry and abandon their professions anyway. Thus, in poor families, boys are often given first claim on whatever limited educational opportunities are available.268 The male preference in education also tends to result in higher dropout rates for girls either for early marriage or for participation in trading or other activities in the informal sector. Even where girls continued in education there had been
Article 1, Convention against Discrimination in Education. It was adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization on 14th December, 1960 http://www.ohchr.org/english/copyright.htm (accessed on September 8th, 2007) 267 “Women in Africa” op. cit. note 106 268 Ibid.
the tendency for them to be oriented by their parents or relations to pursue careers that are perceived to be compatible with domestic responsibilities. Hence girls are often discouraged from going into scientific and technological fields. This is because such fields are perceived to be male professions that are time demanding and stressful and are encouraged to pursue perceived soft courses in Humanities and Social Sciences.269 Often girls are cautioned about their career choices for fear of not getting married because "men are scared of smart women”. One of the consequences of pursuing the so called soft courses is that many girls end up getting employed in the female dominated profession such as nursing, teaching and secretarial jobs which attract fewer wages in comparison with employment in scientific and technological areas. For instance, by 1960, when Nigeria became independent only 4.7% of those employed in Civil Service were women, majority of whom were serving in the lower cadre. By 1970 about 60.8% of Nigeria women were still illiterate. The tendency for sex typing in occupations tended to continue until the early 1980s. Part of the reason for the persistence of the sex typing in occupations was due to women's lack of expertise in scientific and technological skills. Changes in educational policies since the mid 1980s as well as in attitudes of parents, relations and teachers towards female education are leading to improved opportunities for skill training and professional development for women but we are still far from the goal.270 Even when parents can be persuaded of the value of sending their girls to school, there remains the problem of helping the girls to complete their studies. Drop out rates in the primary grades are higher for girls than for boys in many African countries. In Tanzania, for instance, half of the school dropouts each year are girls of 12 to 14 years who have to leave school because of pregnancies. Such early pregnancies are often blamed on the absence of family
life education and the imitation of foreign life styles.271 Very few schools allow pregnant girls or young mothers to complete their education. The other half of the Tanzanian pupils who drop out do so for a variety of reasons, including poverty, traditional norms, increases in school fees and deterioration in the quality of learning. Child marriages are also very common in Africa: although the law in many countries does not allow girls under 16 to be married, parents marry their daughters at an early age so they have one less mouth to feed.272 The under-representation of women in technical education, training and employment is not unique to Africa. The situation in Africa must be seen in the context of the serious economic and developmental problems facing many African countries. This, together with the societal attitude to women in general, is responsible for the gender differences both in education establishments and in the workforce. Differential access to educational and training opportunities have led to low proportions of women in the formal sector and their concentration in low paid production jobs with limited career prospects.273 However, as elsewhere in the developed world, things are slowly changing for women in Africa. More women are joining the formal sector of the economy (especially the public sector), more girls are continuing to higher education and joining technical courses, more women can be found in the management hierarchy, more women are moving into professions so far dominated by men, and more women are becoming self employed. In the years to come, we will see many changes, although the poor economic situation in Africa will not provide many job opportunities. There will be more competition for jobs and women may lose out, especially where there are domestic and family demands placed on them.
“Female Education in Africa” http://www.amnestyusa.org/page.do?=762 (accessed on September 8th, 2007) 272 Ibid. 273 Ibid.
DISCRIMINATION IN EMPLOYMENT
The International Covenant on Economic, Social and Cultural Rights provides: Article 6 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual. Article 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays Women have had to contend with discriminatory laws and practices in the labour force and this has obstructed and conditioned their participation and denied them their human rights. For instance, even though across the globe women are entering the formal workforce in record numbers, in some countries women's very right to work is under fierce attack. For instance, on September 3, 2000, the Governor of the State of Khartoum in Sudan, citing Islamic law, imposed a ban on women working in public places.274 Also, in Ukraine, women are faced with many obstacles to their full and equal participation in the labour force due to the economic stagnation and failed reforms of the post-Soviet transition period. Widespread employer discrimination against women in the recruitment process limits women’s access to jobs, including many high-paying and prestigious jobs. Employers in both the public and private sectors regularly specify gender when advertising vacancies and use information they require in interviews regarding family circumstances to deny women employment. Age and appearance requirements also arbitrarily exclude women from jobs for which they are professionally qualified. Employers justify their preferences for male employees on stereotypical assumptions about women’s physical and intellectual capacities and their family responsibilities. As a result, women are increasingly pushed into low-wage service sector or public sector jobs or seek employment, including secondary employment, in the unregulated informal sector. Many women choose to go abroad to seek better economic opportunities, a choice
“Work-Place Discrimination” http://www.hrw.org/campaign/wrp-mexico/alert2a.html (accessed on September 24th, 2007)
that may leave them vulnerable to being trafficked into the commercial sex industry or other forms of forced labour.275 Still on Ukraine, the government there has routinely denied that discrimination against women in the labour force is a problem. However, many officials acknowledged that employers frequently prefer to hire men and defended employers’ discriminatory practices over the right of women to equal opportunity in the work force. Although the lack of financial resources was often cited as the primary excuse for the non-enforcement of laws, the Ministry of Labour inspectorates demonstrates a lack of will and insufficient training to investigate discriminatory recruitment practices. In its statistical records, the Ministry of Labour does not include a category for recording complaints, inspections, or violations related specifically to discrimination of any kind.276 In addition to statutory discrimination in employment, women face practical discrimination. Even as the International Labour Organization adopted a new international Convention on Maternity Protection in May 2000 and estimated that 50 percent of the labour force was female, in some countries women's participation in the workforce is determined by their reproductive status. Not only are women's reproductive functions perceived to be in the way at work, but their bodies are also at risk at work. Women workers face sexual harassment and violence on the job, with little hope of redress. Employers often considered women's reproductive and productive roles to be incompatible, and governments did little to challenge them. In Mexico, Guatemala, and South Africa, for example, governments have failed to enforce international and national laws to protect women from discrimination and violence during the hiring process and on the job.
State Statistics Committee of Ukraine, “Economic Activity of the Population, 2000-2002” http://www.ukrstat.gov.ua/ (accessed on September 18th, 2007). 276 U.N. Report on Human Development in Transition: Europe and CIS, 1997, as quoted in International Center for Policy Studies, “Economic Statistics in Ukraine,” Policy Study #13, November 2000 http://www.icps.com.ua/docs/ps/es/eng/ps_es_eng_200011_13.pdf (accessed on September 18th, 2007)
Women's right to exercise reproductive autonomy in the workforce has continued to be under attack. Many transnational corporations regularly required women to undergo pre-employment pregnancy test, with the aim of denying pregnant women work.277 In the agricultural sector, women are likely to fare equally poorly. For instance, women farm-workers in South Africa are discriminated against and sexually and otherwise physically abused by their co-workers and employers. Some discrimination are also based on marital status. Married women farm-workers, for example, are denied employment contracts in their own names, such that their jobs are dependent on those of their husbands. Often, women farmworkers’ access to housing was also determined by their relationship to a man. Because the majority of farm-owners offered housing only to permanent male employees, single women farm-workers are generally not able to live on the farm. In addition, women are also paid less than their male counterparts for the same type of work or work of equal value. By reinforcing their economic dependency on men, these discriminatory practices make women more vulnerable to violence in their homes and the workplace on farms.278 In Nigeria, women also get discriminated against in their bid to get employed. An example of this discrimination can be found in the provisions of the Police Act as regards the enlistment of women into the Police Force. For instance, under section 118(a) of the Act, only unmarried women can be enlisted into the Police Force while under section 127, an unmarried police officer who gets pregnant will be discharged from the Police Force.279 This is worse because no exception was given to this provision; what about a situation where the police woman was raped by a criminal? Will it not be worse if she losses her job after going through the trauma of rape?
“Work-Place Discrimination” op. cit, note 274 Ibid. 279 See generally Chapter 3 at pages 76 - 78
DISCRIMINATION IN POLITICS
The Convention on the Elimination All Forms of Discrimination Against Women (CEDAW) is an important international treaty that upholds the importance of women's involvement in the political machinery of State Parties. Articles 2 to 4 of the CEDAW call on State Parties to actively pursue the elimination of discrimination in women's political participation through legal and temporary special measures and affirmative action. Article 7 of the CEDAW instructs State Parties to "take all appropriate measures to eliminate discrimination against women in the political and public life of the country….” It ensures women, "on equal terms with men, the right: (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; (b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government; and, (c) To participate in non-governmental organizations and associations concerned with the public and political life of the country." Article 8 brings women's political rights to the international arena. It instructs State Parties to "take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations." The Universal Declaration of Human Rights (UDHR),280 International Covenant on Civil and Political Rights (ICCPR)281 and the International
Article 21 (1) Article 3
Covenant on Economic, Social and Cultural Rights (ICESCR)282 all work together to provide the foundations for women's right to political participation. Women's political participation encompasses a wide range of actions and strategies. It includes voting and voter education, candidacy in national and local elections, lending support to candidates who carry gender-sensitive agenda, campaigning against those who have policies that are ‘anti-women's rights’, and advocating for the integration of a women's rights agenda in the platforms of candidates and parties.283 To participate in the political processes, women need to enjoy the full exercise of their civil and political rights. Democratic freedoms such as expression, media, opinion, peaceful assembly, association, and others are necessary vehicles for women's full political participation. In countries where the freedom of association is limited, women find themselves under constant surveillance and sometimes under threat by their own governments. In countries where religion and culture impose numerous social restrictions and impinge on state laws, women experience more difficulties in engaging in the public political space. The fulfillment of basic survival and social needs, economic independence, and freedom from family and community violence are equally crucial requirements in women's realization of their political potentials. In Tanzania for instance, according to the Electoral Law, a person nominated to run for the Presidency or Vice Presidency, Parliamentary and Councilors seats must deposit a certain amount, which is only refundable upon the death of candidate before the elections. According to Tumaini Silaa of the Tanzania Women Lawyers Association (TWLA), “Such fees do not only discourage women but also low income earners, from participating in elections.” Under such circumstances, women have to consider between depositing the amount required and engaging in election campaign, or providing food and other
Article 5 (2) Women Learning Partnership (WLP) http://www.learningpartnership.org (accessed on September 24th, 2007)
necessities for their families. The Election Act provides for offences such as bribery, impersonating, treating, undue influence but it is silent on character assassination, and issues such as sexual harassment of women candidates.284 While women's global activism, especially at the level of the United Nations, has instituted mechanisms for increased representation of women in politics, the assessment made by the United Nations verifies that women are still greatly under-represented in political and bureaucratic posts around the world. The UNDP reported that women "are nowhere near half of the decision-making structures. The threshold of 30 percent advocated by the UNDP Human Development Report, as a prelude to the 50 percent is still a dream for most women". The Inter-Parliamentary Union's monitor pegs at 15.2 percent the total number of women in parliaments. Thus, campaigns for balanced gender representation in government such as the 50/50 Campaign of the Women's Environmental and Development Organization remain one of the most strategic moves to increase women's political participation.285 Facts and Figures of Women in Politics
In 2002, women still accounted for only about 14 percent of members of parliament worldwide. Out of over 180 countries, 14 are headed by women, six women are vice presidents. With 48.8 percent of seats won by women in the recent parliamentary elections, Rwanda became the country that has the most number of women parliamentarians in the world.
Currently, women in Sweden hold 45.3 percent of seats in parliament, Denmark with 38 percent, Finland with 37.5 percent, and The Netherlands with 36.7 percent.
“Tanzania: Poverty and discrimination discourages women from politics” http://www.Somalinet.com/news/work/EastAfrica (accessed on September 24th, 2007) 285 International Women's Democracy Center (IWDC) http://www.iwdc.org/ (accessed on September 24th, 2007)
Sweden, Denmark, Finland, Norway, Iceland, Netherlands and Germany had all reached the 30% goal of parliamentary seats taken by women by the end of 2002 along with Argentina, Costa Rica, South Africa and Mozambique.
In May 2003, Qatar appointed Sheikha bint Ahmed Al-Mahmud as the state's first woman cabinet minister. The appointment followed an April 29 referendum in which Qataris overwhelmingly approved a written constitution recognizing a woman's right to vote and run for office.
The proportion of women parliamentarians in the United States is 14 percent, France 11.8 percent and Japan 10 percent. In Rwanda, women compose 48.8 percent, and in Uganda 24.7 percent.
Kuwait and the United Arab Emirates do not give women the right to vote or stand for election. 7 percent of the world's total cabinet ministers are women. Women ministers remain concentrated in social areas (14 percent) compared to legal (9.4 percent), economic (4.1 percent), political affairs (3.4 percent), and the executive (3.9 percent).
There are 9 women ambassadors to the United Nations. They are from Finland, Guinea, Jamaica, Kazakhstan, Kyrgyzstan, Liberia, Liechtenstein, Somalia, and Turkmenistan.
In the United Nations system, women hold 9 percent of the top management jobs and 21 percent of senior management positions, but 48 percent of the junior professional civil service slots.
In 1893, New Zealand became the first nation to grant women full voting rights. Among the countries in the developing world that were the earliest to grant women the right to vote were: Albania (1920), Mongolia (1924), Ecuador (1929), Turkey (1930) and Sri Lanka (1931).
Some of the latest countries to grant women suffrage are: Switzerland (1971), Iraq (1980), Namibia (1989), South Africa - black population (1994).
Some countries still do not have universal suffrage. Among them are Brunei Darussalam, Kuwait, Sultanate of Oman, Saudi Arabia, and United Arab Emirates.
Among the developing nations which have not ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) are: Bahrain, Palestine, Qatar, Saudi Arabia, Sultanate of Oman, Syrian Arab Republic, United Arab Emirates.
The United States is the only industrialized nation that has not ratified CEDAW.286
WOMEN AND GIRLS IN CONFLICT SITUATIONS
“The differential impact of armed conflict and specific vulnerabilities of women can be seen in all phases of displacement.”287
There is a growing understanding among practitioners and policy makers that the experiences of women and girls vary significantly from that of men during flight, in exile and once peace has been brokered or populations return home. Less, however, is understood about the many forms of violence and risks to women and girls’ safety and wellbeing during various phases of displacement, and how to address them. While all conflict-affected populations are at risk in terms of their physical and social protection, women and girls are often at greater levels of risk and are more often victims of sexual and gender based violence. Further, they may not have the same traditional protection mechanisms available to them as do men. Men and boys are more likely to carry weapons and be party to the conflict. Women and girls are more likely to be civilian casualties, innocent victims of
Source: Online Women: Statistics, Online Women in Politics http://www.onlinewomeninpolitics.org/statistics.htm (accessed on September 24th, 2007) 287 Former UN Secretary General, Kofi Anan. UN Security Council, Report of the Secretary-General on Women, Peace and Security, October 2002. http://www.womenscommission.org (accessed on September 24th, 2007)
warring factions and the recipients of male violence and aggression. In a given refugee context, women refugees may be more vulnerable than other refugees, finding themselves separated from their family members or traditional support mechanisms, or isolated from their communities. They may have to assume new roles and status as a result. War and civil unrest are increasingly wreaking havoc on the lives of women and girls, causing them to flee violence, abuse, intimidation and insecurity and resulting in their internal or external displacement. Health and education services and facilities are disrupted and local economies shattered. War often disrupts girls’ school attendance as it is unsafe for them to leave home due to an increased presence of armed elements and general lawlessness, or because they have greater workloads as males are involved in the conflict.288 Soldiers, militia, and their sympathizers continued to sexually assault women with impunity in armed conflicts around the globe, including in Sierra Leone, Chechnya, East Timor, the Democratic Republic of Congo, Afghanistan, Indonesia, Kosovo, Bosnia, and Angola. Despite international recognition of rape and other sexual assault in armed conflict as crimes, governments and the international community rarely responded vigorously to investigate and punish such violence. In fact, they typically went no further than rhetorical condemnation. In addition, women faced rampant violence and discrimination in their post-conflict lives. Women refugees, in their countries of refuge, continued to be sexually and otherwise physically attacked by armed groups and civilians. Women returning to their communities, post-conflict, found negligible protection from domestic violence or state-tolerated sex discrimination.289 Wartime rape and other forms of gender-based violence remain constant threats in politically unstable regions and countries. Forced migration caused by
Ibid. “Women in Conflict” http://www.hrw.org/reports/2000/fry/index.htm#TopOfPage (accessed on September 18th, 2007)
conflict increases the vulnerability of women and girls in every regard but especially with respect to gender based violence. Displaced women and girls are often resilient survivors, courageous protectors and untiring caregivers. They hold their families together under the most difficult and inhumane of circumstances and do so while at increased risk to their safety and well-being risks that include rape, beatings, torture, hunger and abandonment. For instance in Sudan in September 2003,290 Fatima left her village of Houta, with her neighbour and her 9-month-old baby on her back in search of firewood in the bush. Later that day, the Janjaweed invaded their village and the two women were taken by force from the bush to Kadja, a village further east. After walking for five days, they arrived in Kadja and Fatima was separated from her neighbour. She was then compelled to work as a shepherdess for the flocks, always closely watched by her captors. On her fourth day in Kadja, one of the Janjaweed told her that her husband had been killed during the attack on her village. During her time in Kadja, Fatima was raped during the night by different men and by two men in particular who raped her the most frequently. Approximately five months later, part of the flock under her care was stolen. As retribution for this loss, the Janjaweed who owned the flock grabbed her baby son, 13 months old, and beat him on the ground in front of her and killed him with crushing blows to the head. The Janjaweed tried to justify their actions stating that Fatima would work more effectively without the child. Three months after this incident, Fatima escaped from Kadja to Chad with the help of one of the wives of the Janjaweed. She passed through Houta during her journey, where she confirmed that her husband was dead. She traveled alone during the night, hiding herself and fearing for her life throughout the entire journey. Fatima finally arrived at a clinic in Birak where it was confirmed that she was seven months pregnant.291
Lifesaving Reproductive Health Care: Ignored and Neglected, Assessment of the Minimum Initial Service Package (MISP) of Reproductive Health for Sudanese Refugees in Chad, Women’s Commission for Refugee Women and Children and the United Nations Population Fund (UNFPA), August 2004. http://www.womenwarpeace.org/issues/displacement/displacement.htm (accessed on September 24th, 2007) 291 Ibid.
Thus, in addition to coping with the impelling reasons for their flight, they may be confronted with new challenges, such as providing for themselves and their children in situations of particular hardship, as well as new forms of violence and risks, in the country of refuge.292 Displaced girls, because of their age, developmental stage and maturity, are at increased risk of abuse, exploitation, coercion and manipulation. Girls are more vulnerable than boys to mistreatment and to recruitment by traffickers and armed factions. They may lack the assertiveness required to stand up for themselves and say “no” to risky situations. They may see older men as protectors, providers and “sugar daddies,” without understanding the risks involved and may, hence, be particularly susceptible to transactional sexual relationships (that is, exchange sex for food or other assistance or services). They may lack understanding and education on sexually transmitted infections, including HIV/AIDS. Further, they may be burdened with overwhelming responsibilities: caring for siblings, at times as head of a child-headed family; performing multiple domestic tasks, such as cooking, cleaning, fetching water; and collecting firewood for either their own family or other families. Consequently, they may be unable to attend school or participate in normal developmental activities that help mitigate vulnerability to risk.293 Displaced elderly women may also be at increased risk for violence and exploitation, especially if they are physically fragile, suffering from chronic health problems, abandoned or without able-bodied caretakers. The international community has not done particularly well in engaging elderly displaced women in services and programmes. They have often been treated more as persons with multiple needs rather than as resources with a lifetime of experience and wisdom. As a result, elderly displaced women are often marginalized within the displaced population, excluded from decision-making
UNHCR, “Women at Risk” Resettlement Handbook 2004, 14. http://www.unicef.org/graca/women.htm (accessed on September 8th, 2007) 293 Benjamin, Judy, “Women, War and HIV/AIDS”, in Women’s Commission for Refugee Women and Children http://www.prb.org/Content?ContentGroups/Articles/011/Women,_War,_and_HIV_AIDS (accessed on September 18th, 2007)
bodies and, hence, more vulnerable to abuse. Their marginalization may be compounded by mobility problems and health concerns that can make access to services and programs difficult, if not impossible, rendering them isolated and potentially forgotten.294 While protection risks are prevalent in virtually all camp settings, the risks are multiplied several times over for displaced persons in urban contexts where they often receive little or no assistance. In urban settings it is much more difficult for assistance providers and human rights activists to identify, monitor and support displaced persons. They may be hidden among already underserved, poor local populations in shanty-towns or scattered over broad, densely populated urban areas with limited infrastructure such as reliable, affordable transportation to access assistance agencies.295 Cultural norms may further restrict women’s ability to move freely. It is difficult to implement programmes in such contexts or to even adequately assess needs. It is also difficult to engage the displaced community in a concerted and sustained manner. As such, the urban displaced may be marginalized, vulnerable to exploitation by landlords, employers and host community members who may prey on their lack of legal status and lack of support systems.296 Displaced women and girls with physical and mental disabilities, such as mobility impairments and mental retardation, are often more vulnerable to abuse and sexual exploitation, as they may lack the mental or physical capacity to resist physical violence and sexual advances. They may be targeted by displaced or host community men and youth because they are deemed less able to protect themselves. Due to the social stigma that surrounds their disability, they may also be less likely to be protected by community members. Further,
Ibid. Marie Stopes “Displaced and Desperate: Assessment of Reproductive Health for Colombia’s Internally Displaced Persons”, in International and the Women’s Commission for Refugee Women and Children, 2003, 20. http://www.womenwarpeace.org/issues/displacement/displacement.htm (accessed on September 24th, 2007) 296 Ibid.
they may, at times, be the last to receive food and other humanitarian assistance from family or other caretakers.297 In addition to food and shelter, women affected by war also need means of generating incomes. Widows are often unable to provide for themselves and their families in traditional societies. Due to cultural and religious restraints, lack of education or child-care responsibilities, women are not always able to obtain meaningful employment and are therefore unable to provide for their families. Given their isolation and seclusion, it is difficult for NGOs to assist them, and governments may be either unwilling or unable to provide the necessary social services. While it is vital to present economic opportunities to women, it is imperative to undertake this with sensitivity to the current social climate in order to avoid exacerbating the problem.298 The far-reaching consequences of rape linger not only with the victims, but also with their families and society long after the conflict ends. Consequently, both the rape survivor and relatives feel shamed and humiliated. During the Rwanda genocide of Hutus against Tutsis for instance, an estimated 50% of women were raped. Babies born as a result of the rapes were unwanted reminders of a period of horror. The rapes of more than 20,000 women during conflicts in the countries of former-Yugoslavia brought rape to the fore as a war crime.299 Although most international attention is focused on rape, women and young girls in conflict areas - like Darfur, in western Sudan - risk daily physical attacks of all kinds when they leave refugee camps to collect essential supplies like firewood and water. Post-conflict Afghanistan and Iraq also experienced a significant increase in violence against women because of breakdowns in security.
Ibid. Kevin M. Cahill, M.D “Issues of Power and Gender in Complex Emergencies” in Emergency Relief Operations; Fordham University Press, NY, 2003 http://www.un.org/womenwatch/daw/public/w2apr98.htm (accessed on September 24th, 2007) 299 “Impact of War on Women” http://www.un.org/womenwatch/daw/index.htm (accessed on September 24th, 2007)
Whenever social protection systems for communities break down, genderbased violence intensifies, leading to further deterioration of women’s status. Cambodian women assert that the brutal Pol Pot regime and conflict significantly influenced men in their society, causing them to become more violent and to lose respect for women and family life. 300 Even after hostilities cease, a variety of conflict-related health issues persist, such as post-traumatic stress, malnutrition, war-related injuries, and the scars of sexual abuse. The lack of reproductive health services in particular has harmful long-term ramifications for women and their children. Maternal and child mortality rates soar when services are absent. Women are often forced to give birth away from their traditional medical practitioners. The risk for contracting communicable diseases also rises during conflict, as heightened population mobility, increased presence of soldiers, relaxed social behaviour controls, and widespread poverty are common in conflict situations, leading to high-risk behavior and increased exposure to HIV and other diseases. Another lasting consequence of conflict for women is the impact on children. In cases where rape has been a weapon, unwanted pregnancies often lead to the abandonment of the resulting children.301 While conflict inflicts suffering on everyone, women are particularly affected by its short and long term effects. Sexual assault and exploitation are frequently employed as tools of war; victimization leads to isolation, alienation, prolonged emotional trauma, and unwanted pregnancies that often result in abandoned children. As culturally-designated caregivers, women must struggle to support their families and keep their households together while the traditional breadwinners - husbands and sons - are caught up in the fighting and are unable to provide for their families. The new role as primary provider exposes many women to further abuse. Conflict shatters the comfort of predictable daily routines and expectations. Women and girls are equally affected in a fragile
Ibid. “War Consequences on Women” http://www.un.org/womenwatch/daw/beijing/index.html (accessed on September 24th, 2007)
environment where social services they once depended on degrade or disappear. The effects of conflict on women and girls are devastating.
TRAFFICKING IN WOMEN AND GIRLS
Around the world, governments have continued to allow trafficking of women and girls for forced labour and servitude to flourish with near impunity. Lured with fraudulent promises of lucrative opportunities, women migrate within and across borders for work.302 Trafficking is;
“…the recruitment, harbouring, provision, receipt, transportation and/or obtaining of individuals; using force or threats of it, coercion, fraud and/or using systems of indebtedness or debt bondage; for purposes of sexual or other forms of economic exploitation.”303
In other words trafficking in persons is the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation includes, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.304 Trafficking does not occur in a vacuum. Violations of women's human rights in countries of origin, including state-tolerated sex discrimination, domestic violence, and rampant sexual violence, contribute to women's vulnerability to
“Trafficking in Persons” http://www.hrw.org/about/projects/traffcamp/intro.html (accessed on September 8th, 2007) 303 Firoza Chic Dabby Trafficking Consideration and Recommendations for Domestic Violence Advocates http://www.ojp.usdoj.gov/ovc/help/tip.htm (accessed on September 8th, 2007) 304 Ibid.
abuse. Whether women travel voluntarily, find themselves tricked into migrating, or are sold into the sex industry or sweatshops, trafficking victims suffer horribly similar human rights violations. Stripped of their passports, often unable to speak the local language, sold as chattel, and terrified of local law enforcement authorities and their traffickers, many women and girls struggle to pay off the enormously inflated debts owed to traffickers; others attempt to escape. For example, Nigerian women's rights organizations reported that hundreds of Nigerian women and girls hoping to escape poverty and discrimination at home voluntarily migrate to Europe in response to job offers as domestic workers or waitresses. Upon arrival, many find themselves trapped in forced prostitution, saddled with exorbitant debts, and forced to work under brutal conditions. Like other trafficked women around the world, Nigerian women struggled to pay off their ‘debt’.305 Forbidden to refuse any customer, women who dare to resist encounter harsh punishment from their employers, including physical assault. Some clients also sexually and physically attack the women; other clients rob them. Their status as “illegal migrants” make the women particularly vulnerable to attacks by customers and traffickers alike.306 Human trafficking is a global problem. The traffickers' web spans the whole planet; people are moved from poor communities in the southern hemisphere to richer countries in the North. There is also a lot of South-South trafficking and a sprinkling of South-bound trade. According to a UN report, "Trafficking in Women: The Czech Republic Perspective",307 offenders often target and exploit underage victims because of their mental and social immaturity, and, above all, their difficult life situations.
“Nigeria: Trafficking in Women and Girls” http://www.hrw.org/about/projects/traffcamp/intro.html (accessed on September 8th, 2007) 306 Ibid. 307 UNODC and UNICRI (2004), “Trafficking in Women: the Czech Republic Perspective”, Prague: Institute of Criminology and Social Prevention. http://www.unicri.it/wwd/trafficking/czech/docs/obchod_eng.pdf (accessed on September 8th, 2007)
Even though all human trafficking cases have their individual characteristics, most follow the same pattern; people are abducted or recruited in the country of origin, transferred through transit regions and then exploited in the destination country. If, at some stage, the exploitation of the victim is interrupted or ended, they can be rescued as victims of trafficking in persons and it is possible they might receive support in the country of destination. Either immediately or at some later point, victims might be repatriated to their origin country; in some cases, relocated in a third country; or, as unfortunately too often still happens, are deported from destination or transit countries as illegal migrants.308 Africa is predominantly an origin region for victims of trafficking. Western Europe and Western Africa are reported to be the main destination sub-regions for African victims. This points to intra-regional human trafficking in Africa in general and Western Africa in particular as an identified trend. According to the United States Department of State’s "Trafficking in Persons" (TIP) report for the year 2005, the number of people globally trafficked across international borders is between 600,000 and 800,000 per year.309 Due to its clandestine nature, accurate statistics on the magnitude of the human trafficking problem at any level are elusive and unreliable. Figures that are available range from the actual number of victims rescued or repatriated to estimates of the total number of trafficked victims in existence. The lack of reliable statistics can be attributed to a number of factors. Many countries lack anti trafficking in persons legislation. Even when legislation is in place, laws may only define human trafficking as applying to certain exploitative practices, such as sexual exploitation, and not other forms of exploitative behaviour like child labour.310 The United Nations Convention against Transnational Organized Crime (the Convention)311 and two of its supplementing protocols, the Protocol to Prevent,
Ibid. U.S. Department of State (2005), “Trafficking in Persons Report”. http://www.state.gov/g/tip/rls/tiprpt/2005/ (accessed on September 8th, 2007) 310 Ibid. 311 . The United Nations Convention against Transnational Organized Crime, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, the Protocol against the
Suppress and Punish Trafficking in Persons, especially Women and Children (the Trafficking Protocol) and the Protocol against the Smuggling of Migrants by Land, Sea and Air, were adopted at the same time by the General Assembly at its Millennium Meeting in November 2000. The Convention and the two supplementing Protocols were then opened for signature at a high-level conference in Palermo, Italy in December 2000 and constitute the first serious attempt by the international community to answer the global challenge of transnational organized crime with a global response in the form of international law.312 Previous instruments to fight trafficking in persons and forced prostitution, such as the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), failed to provide a definition of trafficking in persons and focused mainly on the punishment of traffickers. The Trafficking Protocol, however, provides a working definition of trafficking in persons, requires ratifying States to criminalize such practices and also addresses the issue of victims' rights through, again, requiring ratifying States to provide assistance to, and protection for victims of trafficking. The Convention and its three supplementing Protocols have all entered into force.313 These laws have not stopped trafficking as we shall see below through examples of few countries. Israel is a destination country for trafficked persons. Women are trafficked primarily for prostitution, but also for domestic labour. The main countries of origin are Russia, Ukraine, Moldova, Azerbaijan, Kazakhstan, Turkey and
Smuggling of Migrants by Land, Sea and Air, and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, http://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf (accessed on September 8th, 2007) 312 Ibid. 313 The United Nations Convention against Transnational Organized Crime entered into force on 29 September 2003. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children entered into force on 25 December 2003. The Protocol against the Smuggling of Migrants by Land, Sea and Air entered into force on 28 January 2004. http://www.unodc.org/pdf/
Dominican Republic.314 According to a 2000 Amnesty International report,315 hundreds of women are trafficked to work in Israel’s sex industry each year. They are held in debt bondage, subject to violence and imprisoned by their ‘owners’. Other sources suggest the figure is significantly higher. Deception through promises of work in waitressing, catering, modelling and medical massage appears to account for approximately 30% of women trafficked. The remaining understand that they will work in prostitution, but are unaware of the conditions that will confront them on arrival.316 Ireland is a receiving country for the trafficking of persons for the purposes of sexual exploitation. The sex industry in Ireland centres on the main cities, especially Dublin and Cork. The women and girls appear to be sent from Romania, Kosovo, Moldova and Albania. Organised criminal gangs from Albania and Kosovo have been implicated in the trafficking of women and girls to Ireland. There is little information on trafficked women. However media attention has started to focus on the issue. A recent newspaper report from Ireland317 highlighted the plight of women and girls being brought to Ireland with permits, to work in lap dancing clubs. The report identified that women and girls were having their earnings removed by criminal gangs both within Ireland and on return to their home country. On arrival at Dublin, some women have their passports confiscated by the clubs and are held in prison like conditions. On return to their home countries, the gangs who sent the women to Ireland in the first place would sometimes take up to 90% of their earnings. Indonesia is a country of origin, transit and destination for trafficking in persons, particularly women and girls for sexual exploitation and forced labour. According to the Indonesian Women’s Coalition for Justice and Democracy, as
Gold, L, Ben Ami, N, Korzen,S, Levenkron, N, ‘National NGO’s report to the annual UN Commission on Human Rights:’ Evaluation of National Authorities activities and actual facts on the Trafficking in persons for the purpose of prostitution in Israel, March 2002.http://www.protectionproject.org (accessed on September 1st, 2007) 315 Ibid. 316 Ibid. 317 Guerin, J, Lap-dancing clubs hit by permit ban, Sunday Independent, September 1st, 2002, p.8. http://www.med.ic.ac.uk/divisions/60/europapnew/activities/ireland_activities.htm (accessed on September 8th, 2007)
many as 400,000 Indonesian women and girls are trafficked each year. As a source country, women and girls are taken to Malaysia, Singapore, Japan, Taiwan and Australia.318 One report suggests that 4268 of the 6809 women in prostitution in Malaysia are from Indonesia.319 In some of the poorer regions of the country, including West Kalimantan and Sumatra, there have been reports of people selling their daughters, some as young as 14 years, into ‘contract marriages’ with Taiwanese men.320 Estimates of women and girls working in Indonesia’s sex trade are staggering and concern about HIV/AIDS is leading to a growing demand for younger girls. The International Labour Organization estimate that 21,000 children are working in prostitution in Indonesia, and believe that many girls end up there after failed marriages entered into at very young ages. Other sources place the figure higher, suggesting that 30% of Indonesia’s 1.3 million prostitutes may be less than 16 years of age.321 In some cases, it is believed that housemaid recruitment agencies are being used as a cover up for trafficking of young women and girls into prostitution. On their arrival at railway or bus stations, from the villages, the women are lured by brokers with false promises of wellpaid employment as waitresses, domestic helpers or factory workers.322 India is a source, transit and destination country for trafficked persons, mainly women and girls. The country is also a transit route for Bangladeshi girls and women recruited for sexual exploitation in Pakistan.323 As an origin country, women and girls are trafficked to other countries in Asia, the Middle East, and the West for sexual exploitation and domestic work.
“Bureau of Democracy, Human Rights and Labour”, in Country Reports on Human Rights Practices: Indonesia, March 2002. http://www.protectionproject.org (accessed on September 1st, 2007) 319 A Gunawan, Few women trafficking cases go to court, The Jakarta Post, 8 November 2001 http://www.protectionproject.org (accessed on September 1st, 2007) 320 “Bureau of Democracy, Human Rights and Labour,” op. cit, note 318 321 Ibid. 322 Ibid. 323 “US State Department, Bureau of Democracy, Human Rights and Labour,” in Country Reports on Human Rights Practice: India. http://www.csm.com (accessed on September 8th, 2007)
India is the main receiving country in the region for women and girls trafficked from Bangladesh and Nepal for forced labour and prostitution. NGO’s estimate that between 12,000 and 50,000 persons are brought into India annually from neighbouring countries,324 many from Nepal. Furthermore internal trafficking is widespread with movement from poor rural areas to the cities. It is estimated that over 40,000 tribal women, primarily from the deprived states of Bihar and Orissa have been trafficked.325 An NGO report suggests that the 17 red light areas in the region of Bihar employ 2,250 prostitutes and that these women play a major role in enticing parents and teenage girls into the net. In addition, these brothels act as transit points for exchanging and procuring girls from Bangladesh, West Bengal and Nepal.326 Over 2.3 million girls and women are believed to be working in the sex industry against their will within the country at any given time and the UN report states that approximately 40% are under 18 years of age.327 Women are recruited through false promises of work and marriage, as well as some abductions. Family involvement in selling young girls into the sex trade is common. There have been reports, in north Bihar, of young girls being purchased from their parents and sold into the sex trade in Mumbai or sent to the Gulf states. Boys are trafficked to the Middle East primarily with the consent of parents and fraudulently as ‘sons’ of Bangladeshi or Indian woman who already have a visa for the Gulf.328 Italy is a receiving country for trafficking and a transit country to other EU destinations. Women trafficked for sexual exploitation in Italy come mostly from the Balkans (Albania, Romania, the Former Yugoslavia, Bulgaria), Eastern Europe (Moldova, Russia, Belarus and the Ukraine) West Africa
Radhika Coomaraswamy, Report of the Special Rapporteur on violence against women, its causes and consequences, Mission to Bangladesh, Nepal and India on the issue of trafficking of women and girls, UN Commission on Human Rights, 2001. http://www.casa-alianza.org/EN/lastminute (accessed o September 8th, 2007) 325 Ibid. 326 Arun Srivastava, In north Bihar, girls come a dime a dozen: NGO study, Indian Express, 13 November 2001. http://www.casa-alianza.org/EN/lastminute (accessed on September 8th, 2007) 327 US State Department, Bureau of Democracy, Human Rights and Labour, op. cit. note 323 328 Ibid.
(Nigeria) as well as Latin America (Colombia and Ecuador). Women are trafficked to Italy on tourist visas, with false documents, or illegally by boat from Albania. Albanian crime networks are involved in the trafficking of Albanian and other Eastern European women to Italy and are notorious for their violence. Often Albanian women are trafficked by their fiancées and/or boyfriends. According to NGOs working on trafficking in Italy, Albanian traffickers are turning more and more to other Eastern European countries as it is becoming more difficult for them to recruit girls from their own country.329 Nigerian women and girls also make up a significant proportion of trafficked women in Italy. They are most frequently brought to Italy by relatives or false relatives or recruited by other women who had previously been victims of trafficking. Nigerian girls are forced to undergo specific ‘juju’ rites in order to ensure submission to their pimps and madams and to continue paying off their debts. NGOs report that Nigerian girls are exposed to less physical control from their exploiters in comparison to Eastern European girls because the control imposed on them by the traditional rites is enormous and has great psychological impact on them.330 The current trend in the Nigerian group is that more and more of those trafficked are minors from small villages with very little or no education.331 Nigeria is a sending, receiving and transit country mainly for women and girls. The main countries of origin are Benin, Togo, Ghana and Niger. Italy appears to be the primary country of destination for trafficked women and girls. However other countries of destination and transit include European countries such as Spain, Belgium, Germany, the United Kingdom, France, the Netherlands and the Czech Republic, Gulf and Middle Eastern States such as Saudi Arabia and Lebanon, as well as other African countries including Gabon,
Information provided by Association IROKO, based in Turin, Italy http://www.med.ic.ac.uk/divisions/60/europapnew/activities/ireland_activities.htm (accessed on September 18th, 2007) 330 Ibid. 331 Ibid.
Cameroon, Benin and the Ivory Coast. There is also evidence of internal trafficking of women and children within Nigeria.332 It is estimated that up to 50,000 Nigerian women are trafficked to Europe each year. Nigerian women alone are thought to constitute over 57% of African women and girls presently in Europe, and according to Italian authorities, there are 10,000 Nigerian prostitutes in Italy, many of whom are believed to be victims of trafficking. Because authorities have become alert to direct flights from Nigeria to Italy, traffickers have begun to use other European countries like Great Britain and France as transit points.333 As in many other countries, trafficking is not only limited to women, but includes children as well, many of whom are exploited as workers on plantations, as domestic workers, and in the sex industry. Women and girls are also trafficked for marriage and begging.334 Trafficked children can work up to 20 hours a day, and Nigeria reports that one out of five children die of illness or mishaps.335 It is estimated that 3,000 - 4,000 child victims of trafficking are repatriated to Nigeria annually.336 The above examples have shown that the main methods of trafficking are through promises of work, fraud, and deception in addition to other common methods. Common means include false passports and visas, tourist visas and false job and marriage contracts. The primary factors contributing towards trafficking appear to be poverty, unemployment, a failing education system, and organised criminal groups.
U.S. Department of State: Trafficking in Persons Report (2001), http://www.oneworld.org/ips2/nov/childlab.html. (accessed on September 8th, 2007) 333 BBC News: “Trafficking Nightmare for Nigerian Children,” Wednesday 10 January 2001. http://news.bbc.co.uk/hi/english/world/africa/newsid_841000/841928.stm (accessed on September 8th, 2007) 334 International Organization for Migration: “New IOM Figures on the Global Scale of Trafficking,” in: Trafficking in Migrants Quarterly Bulletin, No. 23 (April 2001). http://www.ilo.org/public/english/bureau/inf/pr/2001/21.htm (accessed on September 18th, 2007) 335 ILO Press Release: “Day of the African Child: 16 June 2001. ILO Reports on Child Trafficking in West and Central Africa.” http://www.ilo.org/public/english/bureau/inf/pr/2001/21.htm (accessed on September 18th, 2007) 336 Ibid.
WOMEN LIBERATION MOVEMENTS
The Women’s Liberation Movement is the social struggle which aims to eliminate forms of oppression based on gender and to gain for women equal economic and social status and rights to determine their own lives as are enjoyed by men.337 The phrase women's liberation was first published in Simone de Beauvoir's influential 1949 essay, The Second Sex, but the roots of the women's liberation movement reach back much further. Ever since men have claimed dominance over women in patriarchal societies, there have been strong women who have fought for dignity and human rights. At various times in history, these women have banded together to form feminist social movements, such as those that arose at the end of the eighteenth and nineteenth centuries and during the 1920s and 1940s. 338 These movements were often followed by backlash periods of increased suppression of women. Such a period of suppression occurred during the 1950s, which in turn inspired a new period of female rebellion that began in the 1960s. This latter rebellion constitutes the largest and most widely publicized social movement of women in history. It affected women of all races and classes around the world.339 The repression of the 1950s acted like a pressure cooker on rage and frustration. Unwilling to return submissively to second-class status, African Americans began to demand equal rights. The civil rights movement they started became an inspiration for other movements. The pressure cooker of the 1950s was especially stifling for women. During the world wars, with many men in military service, women had been actively
Vintee Sawhney, The Women's Liberation Movement of the 1960s http://www.cwluherstory.com/phpweb/index.php (accessed on September 18th, 2007) 338 Tina Gianoulis Women's Liberation Movement http://www.glbtq.com/contributors/bio_184.html (accessed on September 25th, 2007) 339 Ibid.
sought for employment at more interesting jobs for higher wages than they had ever known before. Once the war ended, they were unceremoniously fired and their jobs given to men returning from the war. Societal pressure urged women to become dependent and “feminine”, and to stay home to take care of husband and family. Many women worked for the same reasons they had always worked, to support themselves and their families. But society's image of the 1950s’ woman was the ‘aproned’ housewife. Women who did have jobs outside the home were usually relegated to dead-end "pink collar" jobs and paid far less than men. In addition, the 1950s brought the creation of the housing development and the nuclear family. Millions of houses were built in suburbs, and middle class families moved in. Rather than the sprawling extended families that had been common on farms and in urban tenements, the typical suburban family included husband, wife, and a couple of children. Within suburban developments, families were often isolated, each in its own house surrounded by its own yard. Most isolated of all were the women. While husbands left for work and children for school, wives stayed home, planning and preparing meals and doing housework. Doctors prescribed tranquilizers, barbiturates, and even lobotomies to help women accept their stifling roles serenely. In the early 1960s however, the invention and distribution of the first reliable oral contraceptive, the birth control pill, opened a door in many women's trapped lives by giving them the power to plan or avoid pregnancies. In addition, the civil rights movement forced the passage of new laws. In particular, Title VII of the Civil Rights Act of 1964 forbade job discrimination on the basis of race, color, religion, sex, or national origin. The addition of sex to the Civil Rights Act was almost an afterthought, but it proved to have significant consequences. The Equal Employment Opportunity Commission
did little at first to enforce the part of Title VII that applied to women, however. But in 1966, at the Third Annual Conference on the Status of Women in Washington, D. C., a group of 28 women formed an organization to fight for women's rights. They called it the National Organization for Women (NOW). By the end of the year, NOW had 300 members; by the end of the century it would have half a million. Through mainstream organizations such as NOW, women began to demand changes in discriminatory laws, but women's liberation encompassed far more than the quest for legal rights. Women began to seek freedom, respect, and the right to an individual identity and a fulfilled life. No longer satisfied to define themselves in terms of husbands and families, these women performed the most radical act of all: they began to talk to each other. Using a technique called “consciousness raising”, women began to meet and talk about their lives. In these “consciousness raising” groups, women found that problems they had thought were individual were, in fact, shared by many other women. They also began to think that these personal problems could be solved only by changing society. This idea gave rise to one of the most important slogans of the 1960s women's liberation movement, “The personal is political”. 340 While men, from government officials to radical leftists, had trivialized women's issues, by talking together women began to construct a political analysis of a sexist society that encompassed the government, the educational system, the media, religion, the family, and even the language. Rape, abortion rights, and day care became issues just as important as equal pay for equal work. The new feminists rejected the traditional role that had been imposed upon women of the 1950s. In one of the most famous actions of the women's liberation movement, in 1968, a hundred women gathered to protest the shallow values of the Miss America pageant. Into a trashcan, they threw symbols of the sexual objectification of women such as bras, girdles, and
“Women Liberation Movement 2” http://www.glbtq.com/socialsciences/womens_liberation_movement,2.html (accessed on September 25th, 2007)
make-up. Though nothing was burned, the media seized on the event, and feminists were “bra-burners” ever after.341 By the late 1960s, the women's liberation movement had expanded with energy and excitement. Women started women's centers, women's health clinics, rape crisis centers, and bookstores. They formed political groups that published feminist political writings, such as Redstockings' “Bitch Manifesto”. Bread and Roses in Boston took over a building on the Harvard campus where they set up a day care center and taught classes for ten days before being forced out. They used money that they collected from supporters to open one of the longest running women's centers in the United States. In 1969, Cornell University in Ithaca, New York became the first college to offer accredited Women's Studies courses. Although many defined the movement as white and middle class, working class women and women of colour were some of the most important founders of women's liberation. Strong Black feminists such as Cellestine Ware, Florynce Kennedy, and Barbara Omolada were pivotal in the formation of feminist theory. African American women's groups such as Mothers Alone Working, formed in 1965, and the Mount Vernon/New Rochelle Group, formed by Pat Robinson in 1960, may not have called themselves feminist, but they were models of women's liberation. Most radical feminist groups came to place on their agendas the struggle against racism and classism alongside the struggle against sexism, seeing them inextricably related.342 The women's liberation movement flourished into the late 1970s, gaining energy as it spread. Women published newspapers such as Washington D. C.'s Off our backs and Denver's Big Mama Rag. Lesbian feminists published literary journals, such as Moonstorm in St. Louis and Amazon Quarterly in Berkeley. Because male-dominated publishing houses could not be counted on
to publish women's work, feminists started their own publishing houses, including Spinsters, Ink, Kitchen Table Press, and the Feminist Press. Women gathered in women's restaurants, coffeehouses, and bars. They listened to women's music, like that of Alix Dobkin and Meg Christian, and watched women's theater groups, such as At the Foot of the Mountain in Minneapolis. Feminists created a women's culture, which was closely intermingled with lesbian culture. As frequently happens, however, there was a conservative backlash to the explosion of activity and energy of the women's movement. Anti-feminists had always trivialized the movement, calling feminists humourless and strident, but by the 1980s, conservatives began to treat women's liberation as a fait accompli. Women had once been discriminated against, laws had been changed, and now all was well, they said. Young women became reluctant to call themselves feminists and some began to call themselves “post feminist.”343 However, the women's liberation movement lives on, both in the work of older feminists who never stopped working to address the issues of sexism, and in the younger women who continue to be inspired by the courage and dedication of generations of women who fought for liberation, lesbians prominent among them.344
Ibid. “Women Liberation Movement 2”, op. cit, note 340
CHAPTER 6 6.1 SUMMARY
Development entails role performance and collective participation. A meaningful development aims at increasing the productivity of the populace as well as effective utilization of the human resource potentials. In the process all sources of inequality in resource distribution and allocation should be eliminated so that both genders derive benefit from their endeavours. This essay has tried to show that ideologies influencing the perception of womanhood and girlhood are linked with some of the factors that have constrained and undermined girls and women's efforts to attain selfactualization and effective participation in the development process. The essay has also highlighted some of the discriminations women live with in different parts of the world. These discriminations arise in the practise of our cultures and traditions, religions, legal systems, etc. These discriminations also come in the form of female genital mutilation, violence, rape, honour killing, disinheritance, employment discrimination, discrimination in politics,
displacement during conflict and associated problems, etc. A short discussion was also made on Women Liberation Movement.
To handle the contradictions, which peoples' perception of womanhood pose for women in the development process, the following suggestions are recommended. Countries that are parties to International Conventions and treaties like the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights (ICESR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the African Charter for Human and People’s Rights that are yet to incorporate them into the domestic laws should do so. An overview of the current socio-political and legal situations globally shows that some governments have not performed its obligation by the domestication of these treaties. Hence, one of the major steps that should be taken is the incorporation of the CRC and CEDAW in domestic laws. The reluctance of the government in this regard has to a large extent hampered the full enjoyment of women and girls of their internationally recognized rights. In the event of any conflicts in countries that practice multiple systems of law like Nigeria, the Constitution should be supreme; for instance, where the customary and Sharia laws are discriminatory and unjust, the Constitution should apply in favour of the protection of women and girls. In the sphere of paid employment it is important to deemphasize gender socialization which hinders goal aspirations of girls and women toward scientific and technological skills. Education is the key to effective
emancipation and empowerment of women. Efforts must be made to ensure that girls have qualitative education in all fields not only in the Arts, Education and Social Sciences but also in Science, Mathematics and Technology. Progress is already being made in this direction and must be sustained. The leadership potentials of women can only be enhanced through sound education. There is also the need to address the issue of gender discrimination in employment based on employers' perceptions about appropriate roles for women. In particular, the tendency to discriminate against single females in key positions is contrary to the principles of justice and human rights. Similarly, the reluctance in employing married women on grounds of costs related to maternity leave and absenteeism due to domestic responsibilities, creates a dilemma for women in fulfilling their obligations as mothers and wives. Public enlightenment efforts are needed to sensitize the populace that child minding and domestic responsibilities are not women's problems but should be undertaken through concerted efforts of both genders. The provision of adequate day care facilities will go a long way in alleviating some of the conflicts women experience in coping with their career and domestic obligations. There is the need for the promotion of positive aspects of the perception of womanhood such as self-control, industry and resourcefulness. Such attributes would promote women's chances of attaining selfactualization in the development process while the harmful ones should be eliminated.
It is imperative to educate and sensitize more stakeholders in the society
for the protection of women’s rights and overall development of women and the society. There is need for NGOs to strengthen their efforts to increase awareness in local communities, working with traditional authorities and community leaders to educate and reach the mass of the people for the eradication of gender discrimination.
To prevent the transmission of HIV, the secrecy surrounding sexual issues must be replaced with information and education. Sex education should form part of the school curriculum. Stigmatization and discrimination against AIDS sufferers should be resisted, and their rights advocated. Women must be empowered to make decisions about their own bodies. They must be encouraged to resist religious, cultural, and economic pressures to engage in unwanted sexual relationships. They must be in a position to avoid unprotected sex. An enabling atmosphere should be promoted by governments, including sponsored seminars and conferences. Girls should be empowered. The empowerment will be a key to breaking the cycle of discrimination and violence and protecting and promoting their human rights. Empowerment entails a process whereby girls gain more control over their lives, become active members of their communities and are able to make informed choices about issues that directly affect them. Supporting the empowerment of girls entails the elimination of all barriers that prevent them from developing their full potential, including through the provision of equal access to, and full participation in, education and training, health services, community activities, and girl-friendly spaces for interaction with their peers. Information and Communication Technology (ICT) can be effectively used as an instrument for empowerment, by providing unique opportunities for improving girls’ access to information on health, nutrition, education, and other human development opportunities, and by creating new opportunities for social interaction. Appropriate measures should be taken to prevent harm to individuals known to be at specific and immediate risk as well as preventing harm in a more general way at an earlier stage for all victims. For instance, a comprehensive set of services should be provided to women to guarantee their safety before serious violence occurs, and a general
judicial and administrative framework should be established, including effective human rights education for state officials. Various world religions have different cultural practices which cannot be justified; such harmful practices should be eradicated. States must also fulfil women’s human rights by ensuring the appropriate infrastructure to support these laws, policies and practices, and to render them effective.
Every woman and girl is entitled to the realization of all human rights - civil, political, economic, social and cultural - on equal terms with men, free from discrimination. Women and girls also enjoy certain human rights specifically linked to their status as women. In almost all countries, women continue to be underrepresented in decisionmaking positions. Women’s work continues to be undervalued, underpaid or not paid at all. Out of more than 100 million children who are not in school, the majority are girls. Out of more than 800 million adults who cannot read, the majority are women. Abuses against women are relentless, systematic, and widely tolerated, if not explicitly condoned. Violence and discrimination against women are global social epidemics, notwithstanding the very real progress of the international women's human rights movement in identifying, raising awareness about, and challenging impunity for women's human rights violations. Worst of all, violence against women and girls continue unabated in all continents, most countries and cultures. 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.
Thus, perpetrators of violence against women and girls go unpunished. Such impunity - viewed by many as equally widespread, and equally unacceptable, as the violence - is a key element in perpetuating that violence and discrimination. As long as impunity for violence against women and girls is accepted and tolerated by society, so too will society continue to accept and tolerate acts of violence. But despite growing awareness of the magnitude of the problem, its dimensions, forms, consequences and costs - to both the individual and society at large - the political will to end the culture of impunity, and to effectively prevent and address violence against women and girls, has not yet materialized. Discrimination against women and girls is increasingly recognized as one of the most serious and urgent challenges of our times. In all parts of the world, its very real and harmful effects on women and girls have been seen to impede the pursuit of development, peace and gender equality. The international community and civil society together have concluded that there are no circumstances that can excuse violence that targets women and girls - it is always a violation of their human rights, it is always a crime, and it is always unacceptable. Changing this requires all of us - women and men - to work for enduring change in values and attitudes. That means transforming relations between women and men, at all levels of society. It means working in partnership governments, international organizations, civil society and the private sector. It means men assuming their responsibility. It means ensuring that women and girls enjoy their full rights and take up their rightful place in society. Increasingly however, women and men in the world are drawing attention to injustice and discrimination against women, and asserting the rights of the women and girls who suffer violence in the home. Amnesty International and other NGOs are supporting their campaign, and highlighting the abuse of human rights that family violence represents. Governments must meet
obligations under international human rights law to prevent violence against women, and where it occurs, assist women in escaping violence and securing a full remedy. In other words, authorities should monitor violence against women in the home, to ban it in law and repeal laws that allow it to flourish, to end discrimination against women in the criminal justice system, and to take positive measures to challenge social prejudices against women.
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