Lesson 4

Principle of Equal Treatment and

Non discrimination based on Sex
 Equal Treatment and Non Discrimination
based on Sex
The principle of equal treatment and non
discrimination based on sex, in enjoyment of all
human rights and fundamental freedoms,
commonly known as gender equality, is a dictate
of international law.
• What is equality?
Promotion of Equality and Prevention of Unfair
Discrimination Act (South Africa) defines equality
as the full enjoyment of rights contained in the
Constitution by both men and women.
 Cont
• Under the Act, equality of both men and women, ought
to be dejure, defacto, and in terms of outcomes.
• What is Gender Based Discrimination?
• Promotion Of Equality and Prevention of Unfair
Discrimination Act, defines discrimination as any act or
omission, (where) in policy, law, rule or practice or
condition which directly or indirectly imposes burdens,
obligations or disadvantages on, or withholds benefits,
opportunities or advantages from any person on one or
more of the prohibited grounds.
• The Act specifically prohibits discrimination based on sex.
 Cont
• Equal Status Act of 2000, of United Kingdom does
not define the term equality.
• Defines discrimination as, treatment of a person less
favourably than another in a comparable position
based on sex, interalia.
• Example-The law says that children born out of wedlock shall be
brought up by the mother. Those born within wedlock shall be brought
up by both parents. The 2 categories of children are in a comparable
position to the extent that they are all children and have similar needs
e.g education food, shelter medical care etc. Depriving a child born out
of wedlock parental care from the father amounts to less favourable
treatment and is therefore discrimination.
 Cont
• Sect 3(c)- discrimination also occurs where an apparently
neutral provision puts a person at a disadvantage compared
with others-
• Example. Every Kenyan has the right to vote or be voted for.
• Though neutral this provision is likely to disadvantage
women and favour men.

-Unless the provision is objectively justified by a legitimate

aim, and the means of achieving that aim are appropriate
and necessary. (Note that the information in green in this
slide is one sentence)
 Cont
• Example of objectively justifiable
discrimination-?

This is indirect discrimination.

• In Arcelor Atlantique et Lorraine and Others,
[2008] ECR I-9895, paragraph 23) the
European Court of Justice defined equality in
similar terms as the UK Equality Act of 2000.
Equality and non discrimination based on sex in
international law
Charter of the United Nations
Preamble of the Charter of United Nations sets out
as one of the Organization's goals, the equal rights
of men and women.
All members of the United Nations are legally bound
to strive towards the full realization of all human
rights and fundamental freedoms.
The goal of equality between women and men is
thereby elevated to a contractual obligation of all
Governments and the UN.
 Cont
Universal Declaration of Human Rights
• Elaborates the principle of equality and non discrimination
based on sex. Examples:
• Article 1. All human beings are born free and equal in dignity
and rights.
• Article 2. Everyone is entitled to all the rights and freedoms
set forth in the Universal Declaration without distinction of
any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or
other status.
• Article 7. All are equal before the law and are entitled without
any discrimination to equal protection of the law.
 Cont
• UN Covenant on Civil and Political Rights, of 1966
• Article 2(1) requires state parties to ensure that all individuals,
men and women enjoy the rights in the Convention without
discrimination based on sex.
• State parties are enjoined to pass laws or adopt other measures to
achieve gender equality.
• Where the right to equal treatment between men and women is
violated, redress shall be available through competent judicial,
administrative or legislative authorities. (courts, commissions etc).
• Article 2: All persons are equal before the law and are entitled
without any discrimination to equal protection of the law
irrespective of sex.
 Cont
• Art 2 obligates states to guarantee the rights
in the Convention without discrimination
based on sex.
• Art 3 requires states to ensure the equal
rights of men and women in enjoyment of
the rights in the Convention.
• Students to look at other articles
 Convention on Elimination of all Forms of
Discrimination Against Women. (CEDAW)

• CEDAW does not define the term equality. It

however enjoins state parties to take all
appropriate measures, including enactment
of laws to ensure that women enjoy all rights
on a basis of equality with men.
• Students should read CEDAW on their own.
• Discrimination of women under CEDAW
 Discrimination of women (CEDAW)
CEDAW defines discrimination of women as any distinction,
exclusion or restriction made on the basis of sex, which has
the effect of impairing or nullifying the recognition,
enjoyment or exercise of human rights and fundamental
freedoms by women on a basis of equality with men.
Consequently, any law, policy, or practice arising from a gender
neutral or gender discriminatory law, whose effect is to
impair or nullify benefits by women amounts to
discrimination.
Reference to the effect of a law, policy or practice implies that
the convention outlaws both dejure and defacto
discrimination.
 Cont
• Forms of discrimination
• CEDAW acknowledges that discrimination against
women can exist in different forms.
• Distinction- Differential treatment based on gender.
• Exclusion- Leaving out men or women in enjoyment
of rights. E.g Exclusion of married women from
inheritance.
• Restriction- Certain countries restrict women from
specific jobs such as night work and heavy work.
 Cont
• Gender based discrimination must be made
on the basis of sex.
• Different forms of defacto and dejure
discrimination exist.
• Discrimination can be based on race, class,
ethnic origin, age etc.
• Discrimination under CEDAW must be based
on sex and gender.
Scope of non discrimination under CEDAW

• CEDAW specifies areas in which discrimination is prohibited.

• Political, economic, social, cultural, civil or any other field.
• “Or in whatever other sphere” includes other areas in the
public and private spheres.
• Treaty therefore transcends the public, private distinction,
which has operated historically to women’s detriment.
• CEDAW expressly rejects discrimination of women within
the family.
• It also means that discrimination based on other conditions
such as race, class, disability, sexual identity or orientation is
prohibited.
 Specific points of discrimination

CEDAW recognizes the fact that discrimination can occur at the

point of
1. Recognition of a right,
2. Enjoyment
3. Exercise of a right.
• Recognition refers to creation of laws that establish the right
while
• Enjoyment refers to the necessities for satisfying this right.
• Exercise refers to the active aspect of the right. This implies that
there must be some mechanism through which the rights
holder can denounce the violation of her right and obtain
redress for it.
 Cont
CEDAW obligates the State to,
(1) Recognize women’s rights,
(2) Provide the material and spiritual conditions so that they can enjoy such
rights,
(3) Create the mechanisms for denouncing their violation and obtaining
redress.
The effect of discrimination must be to nullify the enjoyment of rights for
women
• Difference in treatment between men and women which impair or nullify
the enjoyment of rights set out in CEDAW amounts to discrimination.
• Likewise equal treatment that has the effect of nullifying the enjoyment of
rights by either men or women amounts to discrimination. This occurs when
a law, policy, programmes or practice appears to be neutral in so far as it
relates to men and women, but has a discriminatory effect in practice on
either men or women.
 Principle of State Obligation
• All international human rights treaties carry with them
the principle of state obligation which is legally binding.
• States are enjoined to implement the provisions of a
treaty according to its spirit.
• Article 26 of the Vienna Convention on the Law of Treaties
(1969) states that,
“Every treaty in force is binding upon the parties to it and
must be performed by them in good faith.”
• Article 27 states that a party in this case a state may not
invoke the provisions of its internal law as justification for
its failure to perform a treaty.
 Cont
• Therefore under CEDAW, fulfillment of the principle of non
discrimination and equality between men and women
does not depend on the good will or whims of the state.
• State parties have an unequivocal obligation to guarantee
equal enjoyment of rights between men and women.
• The monitoring mechanism contained in the CEDAW
requires all state parties to submit periodic reports to the
Committee on the Elimination of All Forms of
Discrimination against Women on progress in
implementation of the Convention.
 Cont
• CEDAW obligates states to do the following in order to
guarantee the equal rights of men and women.
A. Pass laws which embody the principle of non-discrimination.
Such laws should include national constitutions and other
statutory laws.
Specifically requires states to pass anti discrimination laws
in marriage and the family, electro process, employment,
health and education. It further requires state parties to
ensure women’s participation in social and economic life in
conditions of equality with men.
A special article addresses ending discrimination against
rural women.
 Cont
B. Set up effective mechanisms through which women can
obtain redress if their rights are violated.
Referred to as tribunals in the CRC.-include courts and other
dispute resolution mechanisms in Kenya.
Obligation extends beyond the state to protection of women
from discrimination by any person or enterprise.
CEDAW therefore refers to private or non state actors.
C. Respect rights of women by not doing anything that can
be construed as discrimination against women and to
ensure that no public authority or institution violates the
rights women.
 Cont
• In this regard the state is required to repeal, modify or
abolish all discriminatory laws, customs and practices
which constitute discrimination against women.
• Further all state action should ensure non
discrimination based on sex.
D. The state is required to fulfill the rights of women by
promoting equality through all appropriate means:
This includes pro-active measures and enabling
conditions that are needed to ensure the full
development and advancement of women.
 Cont
• In this respect, the state is also required to
put in place affirmative action to accelerate
de facto equality.
• Protocol to the African Charter on Human
and People’s Rights on the Rights of Women
in Africa (Variation from the CEDAW)
Students to look at Gender Equality and non
discrimination based on sex under Maputo
Protocol.