UGANDA MARTYRS UNIVERSITY

SCHOOL OF ARTS AND SOCIAL SCIENCES

COURSE: MHR 5105: UN AND REGIONAL PROTECTION MECHAMISMS (TAKE

HOME EXAM)
Qn 2

In Africa and the Middle East, cultural forces structure the traditional family as a marriage
between a man and a woman who will then produce children. It is not uncommon for multiple
generations of the same family to live together in the same household. When a son marries, he
often brings his bride to live with him and his parents. The traditional family structure is
reinforced through religious teachings and political forces. Within this structure, it is accepted
that the man has outside sexual relationships. The wife is restricted to the home, and must
remain faithful to the husband and act as a caregiver to the children

Arguably the question of Morality in the context of Africa becomes a stronghold for the Anti
Gay speaker however the law provides a reasonable exception to this but it is important to note
that Promotion of morals is widely recognized as a legitimate aspect of public interest which
can justify restrictions for example the International Human Rights Instruments reflect this
aspect. For example Article 27 of the African Charter of Human and Peoples’ Rights (ACHPR)
states that:-

“The rights and freedoms of each individual shall be exercised with due regard to the rights
of others, collective security, morality and common interest.”

ACHPR also recognizes that:-

“17(3). The promotion and protection of morals and traditional values recognized by the
community shall be the duty of the state.

29(7) ………. every individual has a duty to preserve and strengthen positive African cultural
values and to contribute to the moral well being of society”.

Under our domestic law, the heading to Chapter XIV of the Penal Code Act is “Offences
Against Morality.” Under this chapter, several acts including homosexual acts are prohibited
because they are contrary to Ugandan moral values.

 it is a principle of criminal law that in addition to the substantive offence, it is also prohibited to
directly or indirectly encourage or assist the commission of the offence or to conspire with
others to commit it regardless of whether the offence is actually committed or not. In the laws of
Uganda, S. 145 of the Penal Code Act prohibits homosexual acts. It provides that:-

“145.  Un natural offences

Any person who-

a) has carnal knowledge of any person against the order of nature;

 b) has carnal knowledge of an animal; or

c) permits a male person to have carnal knowledge of him or her against the order of
nature commits an offence and is liable to imprisonment for life.”

 Further to this, S.21 prohibits incitement where a person incites another person to commit an
offence whether or not the offence is committed. It provides that such an offence is punishable
by imprisonment for ten years. In the same vein, S. 390 and 391 of the Penal Code Act Laws of
Uganda prohibit conspiracy where a person conspires with another to commit an offence. S. 392
(f) prohibits conspiracy to effect any unlawful purpose e.g promotion of an illegality. With the
above provisions of the law which are still in force,

The court in Kasha Jacqueline Vs Rolling Stone Limited & another, Misc. Cause 163 of
2010 to argue that:-

“the scope of S. 145 of the Penal Code Act is narrower than gaysim generally. That one has to
commit an act under S. 145 to be regarded as a criminal”.

The disseminate position in favour of the Anti Gay Mindsets is further ramified by Article 43 of
the Constitution states that:

“1. In the enjoyment of the rights and freedoms prescribed in this chapter, no person shall
prejudice the…….. rights and freedom of others or public interest.
It is trite law that any rights must be exercised within or according to the existing law. The
exercise of rights may be restricted by law itself. Therefore any expression is restricted in as far
as it must be exercised according to the law.

However this doesn’t eliminate the fact that LGBT Rights are Human Rights as illustrated in
these Provisions of the Law.

Article 9 (2) of the African Charter on Human and Peoples rights (ACHPR) which states that:

individuals have the right to express and disseminate opinion within the law

the holding in Charles Onyango Obbo and anor Vs Attorney General SC Constitutional
Appeal No.2 of 2002 that a person’s expression is not excluded from Constitutional protection
simply because it is thought by others to be erroneous, controversial or unpleasant.

Article 7 of the UN Declaration on Protect of Human Rights which guarantees everyone the

right individually and in association with others to develop and discuss new human rights ideas
and to advocate their acceptance. The same declaration however recognizes that people can be
restricted in these activities in accordance with the law. Article 3 thereof brings this exception
clearly out. It states that:-

“domestic law is the framework within which human rights are enjoyed and in which human
rights promotion activities should be conducted.”

Article 1 of the UN General Assembly declaration on promotion of Human Rights which

states that persons shall have the right individually or in association with others to discuss and
advocate for new human rights ideas and principles. But as I have already noted, Article 3 of the
same declaration provides that domestic law is the framework within which human rights are
enjoyed and all activities shall be conducted.

Article 21 (1) of the Constitution which provides that:-

“all persons are equal before and under the law in all spheres of political, economic, social
and cultural life and in every other respect and shall enjoy equal protection of the law.”
the case of Thomas Kwoyelo Vs Attorney General Constitutional Reference No. 36 of
2011 where the applicant had been denied amnesty yet the same had been granted to 24,066
other people. Court held that the DPP had not given any objective and reasonable explanation
why he did not sanction the amnesty application of the applicant which was inconsistent with
Article 21 (1) of the Constitution.

Since the adoption of the United Nations Charter, the principles of equality and
nondiscrimination have proved to be the linchpins of the human rights regime. As noted earlier,
the references contained within the Charter concentrate on equality and non-discrimination –
references which have been provided meaning through the Universal Declaration of Human
Rights, Equality and non-discrimination are prominent features of both the ICCPR (1966) and
the ICESCR (1966).

The rights of Minority groups have also been recognized because In 1966 Special Rapporteur
Francesco Capotorti was assigned to the task of preparing a study pursuant to Article 27 of the
ICCPR. In producing a detailed examination of the Rights of the Persons Belonging to Ethnic,
Religious and Linguistic Minorities, Capotorti also formulated a definition, which is generally
regarded as authoritative. According to his definition a

‘minority’ is a: group numerically inferior to the rest of the population of a State, in a non-
dominant position, whose members–being nationals of the State–possess ethnic, religious or
linguistic characteristics differing from those of the rest of the population and show, if only
implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or
language

It is well established that the rights of minorities are inter-related and are dependant upon the
rights of the individual. Minority rights are built upon the existing framework of rights of the
individual human being. The right to existence, the right to equality, nondiscrimination, freedom
of religion or belief, expression and culture, therefore, are integral parts of individual and
minority rights. The rights of minorities, however, have a collective dimension

The right to life and physical existence represents the most fundamental rights of all individuals.
The right is protected in all human rights instruments. It is an unfortunate historical and
contemporary feature of human existence, that individuals have in many cases been deprived of
their right to life because of their religion, culture, race or colour

After the establishment of the United Nations, international law confirmed genocide as a crime
through the Convention on the Prevention and Punishment of the Crime of Genocide (hereafter
the Convention).

According to Article I of the Convention:

The Contracting Parties confirm that genocide, whether committed in time of peace or in time
of war, is a crime under international law which they undertake to prevent and to punish.

According to Article II,

genocide consists of: any of the following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group

The right to religious, cultural and linguistic autonomy 1Religious, linguistic and cultural
autonomy is not a novel concept for minorities. Its history stretches to the time when minorities
as distinct groups came to be recognized. Article 27 of the ICCPR is of special importance for
minorities as it is the main provision in current international law which attempts to provide direct
protection to ethnic, linguistic and religious minorities. Article 27 provides as follows: In those
1
Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights (University
of Pennsylvania Press, 1990); Lapidoth, ‘Some Reflections on Autonomy’, Mélanges Offerts à Paul Reuter (1981)
379; Lapidoth, Autonomy-Flexible Solutions to Ethnic Conflicts (United States Institute of Peace Press, 1997);
Kardos, ‘Human Rights: A Matter of Individual or Collective Concern?’ in Pogany (ed.), Human Rights in Eastern
Europe (Edward Elgar, 1995) pp. 169–183; see also the proceedings of the colloquium, Autonomy and Self-
Determination: Theories and Application, at the Institute of International and European Law, University of
Liverpool, England, (27 May 1997).
States in which ethnic, religious or linguistic minorities exist, persons belonging to such
minorities shall not be denied the right, in community with other members of their group, to
enjoy their own culture, to profess and practice their own religion, or to use their own
language

Within the UDHR, there is mention of a number of rights, which can be treated as forming the
basis of minority protection. The Declaration specifically provides in Articles 1 and 2, the right
of equality and non-discrimination. 2The right to freedom of thought, conscience and religion is
stated in Article 18, the right to freedom of opinion and expression is provided in Article 19, the
right to peaceful assembly and association in Article 20, the right to education in Article 26 and
the right to freely participate in the cultural life of the community in Article 27. 3All these rights
provide the necessary foundation for providing individual members a claim for autonomy.
Although the Universal Declaration has no explicit references to minorities, subsequent
international instruments have provided greater attention to minority or group rights

United Nations General Assembly’s Resolution 47/135 of 18 December 1992. The Declaration
represents a concerted effort on the part of the international community to overcome some of the
limitations in Article 27 of the ICCPR

According to Article 1(1), States: shall protect the existence and the national or ethnic,
cultural, religious or linguistic identity of minorities within their respective territories and
shall encourage conditions for the promotion of that identity.

Article 2(1) confirms and elaborates upon the position of Article 27 of ICCPR. The provisions of
this article present a more positive attitude compared with the tentative position adopted by
Article 27. It provides: Persons belonging to national or ethnic, religious and linguistic minorities
(hereinafter referred to as persons belonging to minorities) have the right to enjoy their own
culture, to profess and practice their own religion, and to use their own language, in private and
in public, freely and without interference or any form of discrimination.

Article 2(2) provides for wide-ranging participatory rights to persons belonging to minorities in
‘cultural, religious, social, economic and public life’. The provision is significant as the

2
Henrard, ‘Education and Multiculturalism: the contribution of Minority Rights?’ 7 IJMGR (2000) 393.
3
Henrard, ‘Education and Multiculturalism: the contribution of Minority Rights?’ 7 IJMGR (2000) 393.
recognition and authorisation of such rights form an essential element of the concept of
autonomy.

Similarly, Article 2(3) provides for effective participation at national and regional levels and on
matters which necessarily affect the position of minorities. Article 2(4) authorises persons
belonging to minorities to establish and maintain their own institutions, a matter indispensable to
the autonomous existence of minorities.

Hence, Article 2 as a whole, could be taken to bear significant value in recognising autonomy for
minorities, even though the right to autonomy itself failed to be incorporated in the Declaration.
Article 3 of the Declaration also carries a similar message. It reinforces the collective dimension
with encouragement of the communal enjoyment of rights without discrimination of any sort.

Question 2b
Activism for change of Religious beliefs because there are four major religious influences on
Africa and the Middle East. These include indigenous religions, Christianity, Islam, and Judaism.
Indigenous religions have absorbed many of the beliefs of Islam, Christianity, and Judaism, but
still reflect a purer form of original local religions. Currently, a great chasm has formed in the
Anglican Church over the issue of homosexuality. Bishops from the Anglican Church in Nigeria
and Kenya have spearheaded an attempt to split the more conservative African churches from the
main church. They complain that homosexuality is un-African and that the Bible does not
condone the ordination of gay priests. This came to a head when the American branch of the
Anglican Church ordained openly gay bishop, Gene Robinson, in 2003. Splitting the African
churches away from the main body of the Anglican Church is problematic since the African
churches receive almost three-quarters of their funding from the United States and Europe.

Legal protection of Transgender Being transgendered is dangerous in Islamic Africa and the
Middle East. For women who live as or become men, being discovered almost always leads to
violence and perhaps death. Women are relegated to second-class status under the dominion of
men. In many Islamic countries, women are not allowed outside the household without being
accompanied by a male relative; they are also not allowed to work or drive cars. For a woman to
dress and act as a man is considered a violation of religious codes and an act of usurping male
power. A transgendered woman trying to pass as a man is inconceivable in the minds of most
Africans and may result in violent subjugation. For men who live as or become women, they too
face violence and perhaps death if they are discovered. A man dressed as a woman would be
considered to have defiled his manhood and violated religious codes. In any Islamic country, a
man discovered in this condition would face immediate imprisonment and perhaps death.

Improving LGBT accesss to medication because most of the LGBT Couples fear going for
medication due to stigma and discrimination for example AIDS, AIDS has ravaged much of
Africa. Tens of millions have died and tens of millions are currently infected. Entire towns and
villages have been decimated and there is a crisis in the swelling number of orphans of parents
who have died from AIDS. Considering that many of the countries in Africa are classified as
third-world economies, there is a lack of health resources to combat the epidemic. AIDS
medications are out of reach for many Africans due to cost factors. Likewise, condoms are too
expensive for people who live on less than $100 a year.
Incorporation of New marital and adoption legal regimes to incorporate the new developments in
Marriage and Child Adoption There are no countries in Africa or the Middle East that sanction
same-sex marriages. South Africa has a civil union statute, but that is being challenged by LGBT
organizations. They claim that a civil union is not the same as marriage and the constitution
requires equality based on sexual orientation. Although Israel does not conduct same-sex
marriages, it does recognize same-sex marriages performed in other countries. The city of Tel
Aviv recognizes unmarried couples, including same-sex couples for purposes of family law.
Similarly, only South Africa and Israel allow homosexuals or same-sex couples to adopt
children.

Provision of Education to various LGBT groups because With the exception of South Africa, no
country in Africa or the Middle East provides education on LGBT issues . Not only are most of
the countries in Africa and the Middle East antigay, but they are classified as third-world
economies. The lack of money directly affects the educational opportunities available to children
and young adults. Most school systems are struggling and there is no thought of allocating
precious resources to sexual issues; particularly to ones that are considered immoral and illegal.
South African LGBT organizations have been successful at implementing educational programs
on LGBT issues. Although the constitution includes sexual orientation as a protected class,
centuries of antigay religious teachings must be overcome. The Bill of Rights requires South
African schools to not discriminate against LGBT students and staff. For larger school systems,
this policy has been well implemented. For poorer school systems, this has not been the case and
there continues to be reports of harassment and violence toward LGBT students. Colleges and
universities have been, and continue to be, at the forefront of liberalism and advocates for full
equality for LGBT students, faculty, and staff

According to a recent report on Health and Gay/Lesbian affairs in Uganda, “the national
HIV/AIDS program [made] no provisions for sexual minorities, despite scientifi c evidence that
gay men are more susceptible to HIV transmission than any other group.”

Promulgation of Antidiscrimination Statutes and Violence No countries in Africa or the Middle

East have enacted antidiscrimination statutes based on sexual orientation, with the exception of
South Africa. This is understandable since the fi rst step in organizing for equal rights in regard
to the LGBT community is to overturn sodomy statutes—which most countries have not
achieved. South Africa is the exception. It was controlled by a white minority descended from
European colonists until 1994. A system of apartheid was used to segregate blacks from whites,
giving whites control over the economy, law, and politics. It was a brutal system that segregated
and killed untold numbers of black citizens in defense of white privilege. After decades of
international sanctions and internal civil disobedience, apartheid and the controlling white
government were overthrown

Promulgation of sodomy statutes; Sodomy statutes are important to LGBT rights because they
deem homosexual behavior illegal and, by extension, homosexuality illegal. As seen in many of
the African and Middle East countries, sodomy statutes make it virtually impossible for LGBT
persons to organize, educate, or promote civil rights. Organizing is an important fi rst step
toward obtaining safety. Further, because of sodomy statutes, countries such as Iran, Botswana,
Cameroon, Ghana, Ethiopia, Namibia, Nigeria, and Zimbabwe are extremely dangerous for
LGBT people. In these countries, the simple act of asking for equal rights is forbidden. Many
LGBT people are arrested each year and some are executed.

Protection of LGBT from Violence, The political history of postcolonial Uganda involves
multiple cycles of violence related to presidential election campaigns, the civil war conflicts in
northern Uganda between citizens of southern Sudan, the Ugandan government, and the Lord’s
Resistance Army (LRA) over land and settlement. In addition, there have been repeated reports
of violence against refugees in Uganda, violen ce against women, and the physical harassment
and ostracism of LGBT people in Uganda. 4Amnesty International’s 2007 Human Rights Report
on Uganda concluded that “attacks on freedom of expression and press freedom continue to be a
problem, as well as the torture of detainees and the harassment of people on account of their
sexual orientation.”5

4
Amnesty International, “Report 2007, Uganda: The State of the World’s Human Rights,”
http://thereport.amnesty.org/eng/Regions/Africa/Uganda
5
Amnesty International, “Report 2007, Uganda: The State of the World’s Human Rights,”
http://thereport.amnesty.org/eng/Regions/Africa/Uganda
Question 3

In the preamble of the UN Charter faith in the fundamental human rights, in the dignity and
worth of the human person and in the equal rights of men and women is emphasized and
principles of equality and non-discrimination represent the twin pillars upon which the whole
edifice of the modern international law of human rights is established. The claim to equality ‘is
in a substantial sense the most fundamental of the rights of man. It occupies the first place in
most written constitutions. It is the starting point of all liberties6

6
Lauterpacht, An International Bill of the Rights of Man (Columbia University Press, 1945) at p. 115
However, it is important to realize that international law has not progressed dramatically enough
to eradicate all forms of discriminations. Various facets of discrimination, in particular
discrimination on the basis of religion or belief and gender, remain neglected. The position in
relation to gender-based discrimination remains a considerable part of the discriminatory status.
As regards the situation concerning discrimination on grounds of religion or belief, the picture is
most depressing. Although there are references to religious nondiscrimination in the United
Nations Charter and the international bill of rights furthermore it has not been possible to draft a
specific treaty condemning discrimination based on religion or belief.

Without prejudice to the aforementioned Equality and non-discrimination are prominent features
of both the ICCPR (1966) and the ICESCR (1966). 7In addition to the general pronouncement
condemning discrimination and upholding the norm of equality, the United Nations has also
dealt with specific forms of discrimination through various treaties and instruments. The norms
of racial equality and non-discrimination have been further strengthened by the International
Convention on the Elimination of All Forms of Racial Discrimination (1966). 8As we shall see in
due course, discrimination against women and against children has been condemned and
outlawed by the Convention on Elimination of All Forms of Discrimination against Women 9and
the Convention on the Rights of the Child (1989) 10 respectively. Inequality and Discrimination in
Education has been addressed by the UNESCO Convention against Discrimination in Education
Similarly discrimination against disabled people has been addressed by the Convention on the
Rights of Persons with Disabilities.11

The United Nations Charter contains a number of references providing for gender equality and
non-discrimination. According to Article 1(3) of the Charter one of the purposes of the United
Nations is: [T]o achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and encouraging respect
for human rights and for fundamental freedoms for all without distinction as to . . . sex.

7
New York, 7 March 1966 United Nations, Treaty Series, vol. 660, p. 195.
8
New York, 18 December 1979 United Nations, Treaty Series, vol. 1249, p. 13
9
New York, 20 November 1989 United Nations, Treaty Series, vol. 1577, p. 3
10
14 December 1960, 429 U.N.T.S. 93, entered into force 22 May 1962.
11
Convention on the Rights of Persons with Disabilities, New York, 13 December 2006 UN Doc. A/61/611. See
below chapter 17.
United Nations’ Economic and Social Council, in accordance with Article 68 of the Charter, set
up a Commission on the Status of Women (CSW). As we have noted, CSW is one of the nine
ECOSOC Functional Commissions. 12The CSW was established as a functional commission of
the ECOSOC to prepare recommendations and reports for the Council on promoting women’s
rights in political, economic, civil, social and educational fields. 13The Commission also makes
recommendations to the Council on urgent problems requiring immediate attention in the field of
women’s rights. The object of the Commission is to promote the implementation of the principle
that men and women shall have equal rights. Its mandate was expanded in 1987 by the Council
in its resolution 1987/22. Following the 1995 Fourth World Conference on Women, the General
Assembly mandated the Commission to integrate into its work programme a follow-up process
to the Conference, in which the Commission should play a significant role, regularly reviewing
the critical areas of concern in the Platform for Action. ECOSOC Resolution 1996/6 additionally
altered the terms of reference of CSW by broadening its mandate to include ‘emerging issues,
trends and new approaches to issues affecting equality between women and men’

A number of international conventions have been formulated under the sponsorship of CSW
including the 1952 Convention on the Political Rights of Women, 14the 1957 Convention on the
Nationality of Married Women 15and the 1962 Convention on Consent to Marriage, Minimum
Age for Marriage and Registration of Marriages. 16
The most significant achievement of the
Commission remains its role in the drafting of the Convention on the Elimination of All Forms
of Discrimination Against Women (1979).17

The Convention on the Elimination of All Forms of Discrimination Against Women (hereafter
the Women’s Convention) was adopted by the General Assembly of the United Nations on 18
December 1979 and came into force on 3 September 1981. Like the Race Convention and the
Convention against Torture, the Women’s Convention was also preceded by a United Nations
General Assembly Declaration. 18
The Declaration on the Elimination of All Forms of

12
www.un.org/womenwatch/daw/csw/index.html
13
By its Resolution 11(II) of 21 June 1946
14
193 U.N.T.S. 135, entered into force 7 July 1954.
15
309 U.N.T.S. 65, entered into force 11 August 1958
16
521 U.N.T.S. 231, entered into force 9 December 1964
17
New York, 18 December 1979 United Nations, Treaty Series, vol. 1249, p. 13.
18
Declaration on the Elimination of All Forms of Racial Discrimination – GA Res. 1904(XVIII) 20 November 1963,
Declaration Against Torture – GA Res. 3452(XXX) 9 December 1975
Discrimination against Women was adopted in 1967. 19
The outcome of years of discussion,
debates and ultimate compromises, the Convention asserts many of the fundamental rights of
women. It constitutes a comprehensive attempt at establishing universal standards on the rights
of women. The Convention is one of the widely ratified human rights treaties, and can be
regarded as a milestone towards reaching the goal of standard-setting for gender-based equality

Article 2 of the Women’s Convention represents what has been aptly described as the ‘core of
the Convention’. 20
According to this article, States parties condemn discrimination against
women in all its forms and agree to eliminate discrimination. The agreement is to eliminate
discrimination ‘by all appropriate means and without delay’. The sub-sections of Article 2 spell
out details of this undertaking. According to Article 2(a), States parties undertake to: embody the
principle of the equality of men and women in their national constitutions or other appropriate
legislation if not yet incorporated therein and to ensure, through law and other appropriate
means, the practical realization of this principle. In accordance with Article 2(b), States parties
are under an obligation to ‘adopt appropriate legislative and other measures, including sanctions
where appropriate, prohibiting all discrimination against women’ and Article 2(c) obliges States
to ‘establish legal protection of the rights of women on an equal basis with men and to ensure
through competent national tribunals and other public institutions the effective protection of
women against any act of discrimination’. The underlying commitment of Article 2(d)–(g) is to
prevent discrimination against women, to ensure the abolition of all discriminatory law,
regulations, customs and practices21

In Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius 22,

AumeerddyCziffra and 19 women brought forward a claim against Mauritius under the first
optional protocol to ICCPR. These women complained that two pieces of legislation on
immigration and deportation resulted in gender discrimination which violated the right to found a
family and home and removed protection of courts of law breaching Article 2(1), 3, 17, 23, 25
and 26 of ICCPR. To further their complaints as violating norms of gender equality on non-
19
General Assembly Resolution 2263(XXII) of 7 November 1967. However, in the case of the Race Convention the
time-span between the adoption of GA Resolution and a binding treaty was shorter as compared to the Women’s
convention.
20
UN Doc. CEDAW/C/SR.35; UN Doc. A/39/45 Sec. 190
21
UN Doc. CEDAW/C/SR.35; UN Doc. A/39/45 Sec. 190
22
Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius, Communication No. 35/1978 (9 April
1981), UN Doc. CCPR/C/OP/1 at 67 (1984
discrimination, the authors argued that, under the new laws: alien husbands of Mauritian women
lost their residence status in Mauritius and must now apply for a ‘resident permit’ which may be
refused or removed at any time by the Minister of Interior. These new laws, however, do not
affect the status of alien women married to Mauritian husbands who retain their legal right to
residence in the country. The authors further contend that under the new laws alien husband of
Mauritian woman may be deported under a ministerial order which is not subject to Judicial
Review

The issue of gender discrimination was similarly raised in Lovelace v. Canada23. After finding
violations of Article 27, the Committee did not feel the need to examine the subject of sex
discrimination, although in his individual opinion Mr. Bouziri took the view that Canadian
legislation discriminated against Indian women

The theme of equality and non-discrimination has been most elaboratively asserted by the United
Nations in its more comprehensive 1992 Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities 24 and the United Nations World
Conference on Human Rights, Vienna Declaration and Programme of Action of the World
Conference25

However women have continued to face discrimination, intimidation, harassment, torture and
physical abuse not simply by State organs but also by their own family and other non-State
organs. A major problem which has led to a negative impact on the position of women is the
reluctance of international human rights law to intervene in what is perceived as private (as
opposed to the public) matters. The United Nations Convention on the Elimination of All Forms
of Discrimination against Women, 26prohibits discrimination in ‘any other field’. 27At the same
time it is important to note that difficulties have arisen in enforcing the norm of non-

23
Sandra Lovelace v. Canada, Communication No. 24/1977 (30 July 1981), UN Doc. CCPR/C/OP/1 at 83 (1984)
24
UN Doc. A/Res/47/135 Adopted by the General Assembly, 18 December 1992. See the Preamble, Articles 1, 2,
3(1), 4(1) of the Declaration. See below chapter 13.
25
Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, UN Doc.
A/CONF.157/23 12, July 1993 para 5 (pt 1)
26
International Convention on the Elimination of All Forms of Discrimination against Women, New York, 18
December 1979 United Nations, Treaty Series, vol. 1249, p. 13
27
Article 1, Convention on the Elimination of All forms of Discrimination against Women (1979). As has been
discussed in earlier chapters, the scope of international human rights law has expanded to include violations of rights
conducted by individuals in the private ‘realm’
discrimination in the domestic or private sphere. Such difficulties are apparent through a large
number of reservations to significant provisions contained in the Convention, e.g. Article 16

Violence against women – an activity frequently conducted within the confines of family and
home – has been dealt with specifically by the United Nations. In December 1993, the United
Nations General Assembly adopted a Declaration on the Elimination of Violence against
Women. 28
The United Nations has also appointed a Special Rapporteur on violence against
women. An optional protocol to the Convention was adopted by the United Nations General
Assembly in 1999. 29The protocol allows individuals and groups to complain to the Committee
on the Elimination of Discrimination Against Women (CEDAW) for violations of the rights
contained in the Convention.

Those attempts highlighted above represent the endeavours of United Nations to Achieve the
objective of its preamble, however irrespective of those attempts Gender Based violence and
inequity has manifested in various ways included below;

The rape of women during armed conflict is an unfortunate though regular occurrence; recent
conflicts such as those in the former Yugoslavia and Rwanda graphically reflect the targeted rape
of women from the opposing religious or ethnic grouping as a war tactic. As the Trial Chamber
of the ICTR in the Trial of Jean-Paul Akayesu in Prosecutor v. Jean-Paul Akayesu found, there
was sufficient credible evidence to establish beyond a reasonable doubt that during the events of
1994, Tutsi girls and women were subjected to sexual violence, beaten and killed on or near the
bureau communal premises, as well as elsewhere in the commune of Taba. Witness H, Witness
JJ, Witness OO, and Witness NN all testified that they themselves were raped, and all, with the
exception of Witness OO, testified that they witnessed other girls and women being raped30.

Article 7 of the Convention deals with the elimination of discrimination against women in the
political and public life of the country. It attempts to ensure that women have a right to vote, and
have a right to be elected to office with participatory rights in policy formulation, at all the
governmental levels. It also attempts to ensure that women are able to participate in the activities

28
General Assembly Resolution 48/104 of 20 December 1993.
29
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, New
York, 6 October 1999 UN Doc. A/RES/54/4
30
Prosecutor v. Jean-Paul Akayesu, Judgment Decision of 2 September 1998, Trial Chamber, Case No. (ICTR96-4-
T), para 449. http://69.94.11.53/default.htm
of non-governmental organisations. Whilst a majority of States accord equality to women in
public life, there remain unfortunate remnants of legislative enactments and administrative
policies barring women from political participation at the governmental level. Examples of such
discriminatory practices could be found in State laws excluding women from public offices an
example is Kuwait’s reservation to Article 25(b) of the ICCPR, which seeks to restrict the
Covenant’s right of citizens to vote and to be elected, making it subject to provisions in Kuwaiti
law that bar women from voting and standing for office and severely limit the rights of
naturalised citizens. The reservation asserts: ‘the Government of Kuwait wishes to formulate a
reservation with regard to article 25(b). The provisions of this paragraph conflict with the
Kuwaiti electoral law, which restricts the right to stand and vote in elections to males. It further
declares that the provisions of the article shall not apply to members of the armed forces or the
police’

Irrelevant of the concern showed by CEDAW there are many occasions of the low levels of
women in public offices and women in ministerial posts. 31It has elaborated on the provisions of
the Convention through its General Recommendation No. 23 (1997) on women in political and
public life32. In this Recommendation, the Committee took the view that the obligations
contained in Article 7 are not specific to those contained expressly in subparagraphs a, b and c,
and extend to all aspects of public and political life. Therefore, according to the Committee a
broad construction needs to be given to the meaning of ‘public and private life’. The Committee
also endorsed special provisions as contained in Article 4 of the Convention. In its consideration
of Kazakhstan’s initial report, the Committee expressed its concern at the very low
representation of women in decision-making bodies including an 11 per cent representation in
the National Parliament. Such views on gender equality unfortunately continue to invoke the
displeasure of States, leading some of them to place reservations to the Article, particularly in
relation to the representation of women in armed forces and national security systems.33

31
Concluding Observations (Comments) of the Committee on the Elimination of All Forms of Discrimination
Against Women: Cameroon 26/06/2000; A/55/38; paras 56–57
32
3 CEDAW General Recommendation No. 23 Women in Public and Political Life (16th session, 1997)
www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom23
33
e Initial Report of Kazakhstan CEDAW/C/KAZ/I, 490th, 491st and 497th meetings (18 and 23 January 2001),
para 54.
Women frequently suffer from inequality of opportunities in education and vocational and
professional training although Article 10 of the Convention attempts to eradicate such
discrimination and inequality. Article 11 deals with elimination of discrimination at the
workplace and in the field of employment. The Article recognises the right to work as an
inalienable right of all human beings.34

Women of child bearing ages are particularly at a disadvantage as employers are reluctant to
offer employment opportunities or have been known to terminate employment when these
women become pregnant. Discriminatory actions are witnessed in the developing, as well as the
developed, world. It is equally unfortunate to note that financially stable States such as Singapore
and notably, Australia, have maintained reservations to Article 11. 35
CEDAW, in its General
Recommendation 19 has pointed to the fact that gender-specific violence, including sexual
harassment at the workplace can have a substantial impairing effect on equality in employment.
In its General Recommendations 5 and 25, CEDAW recommends the usage of temporary
mechanisms, inter alia, preferential treatment or quota system to enhance women’s integration
into such fields as employment36

In its General Recommendation No. 21 on Equality in Marriage and Family Relations, CEDAW
notes that laws which grant men a larger share upon divorce are discriminatory 37. These
practices, according to the Committee, seriously affect a woman’s ability to divorce her husband,
support her family and live as a dignified human being 38. In its General Recommendation No. 21,
the Committee urges that account be taken of the non-financial contribution made by women.39

CEDAW has highlighted several particularly pertinent obligations in General Recommendation

No. 19. Regarding Article 15 the Committee noted that a woman is denied legal autonomy if she
is unable to enter into a contract, access financial credit or needs a male relative’s permission to
do so. Secondly, if a woman’s legal capacity is diminished either by the State, or when

34
Article 11(1)(a).
35
This reservation was raised as a subject of concern. See CEDAW, 522nd meeting, 13 July 2001
36
CEDAW General Recommendation No. 5 Temporary Special Measures (Seventh Session) 1988 www.un.org/
womenwatch/daw/cedaw/recommendations/recomm.htm#recom5
37
CEDAW General Recommendation No. 21. Equality in Marriage and Family Relations, www.un.org/
womenwatch/daw/cedaw/recommendations/recomm.htm#recom21
38
CEDAW General Recommendation No. 21. Equality in Marriage and Family Relations, www.un.org/
womenwatch/daw/cedaw/recommendations/recomm.htm#recom21
39
Lovelace v. Canada Communication No. R.6/24, UN Doc. Supp. No. 40 (A/36/40) at 166 (1981)
individuals or institutions can do so lawfully, this amounts to a denial of equality and constitutes
a restriction on the ability of women to provide for themselves and their families or dependants.
Thirdly, the Committee noted, from State reports, that women can not always change their
nationality if they so wish, which again constitutes a violation of Convention rights. Finally,
migrant workers who are female should be allowed the same rights as men regarding the right to
be joined by their spouses, partners and children as well as family re-unification during their
period of work in another State. 40

It is also important to note that such a significant article has attracted reservations from many
States. These reserving States continue to feel reluctant to allow women the legal and contractual
capacity equal to men. Women have often been excluded from inheritance and property
ownership through legal disabilities. Women are, thus, in some parts of world legally dependent
on matters of contract and litigation. Amongst States entering reservations are Thailand and
Brazil. The primary objection that has emanated from Islamic States, such as Morocco, Jordan
and Oman, and relates to the application of Article 15(4). The apparent reasoning behind the
reservations to Article 15(4) is the conflict with their personal laws.

In Conclusion therefore although the UN has made substantial moves in enforcing g the spirit of
the preamble,a lot remains to be done as illustrated above

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40
Concluding Observations of the Human Rights Committee: Gabon. 10/11/2000. CCPR/CO/70/GAB. (Concluding
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