WOMEN’S RIGHTS IN AFRICAN CONSTITUTIONS: A DESIDERATUM OR A MERE FEMINIST UTOPIAN AGENDA?
CHAPTER ONE
INTRODUCTION
1.1 Background of the Study
It would appear correct to say that the subject of women’s rights is one of the most contentious and seemingly nebulous aspects of human rights jurisprudence. The struggle for the recognition and enforcement of women’s rights spans through centuries and global borders; yet a lot of nations of the world still have reservations about the subject while others have not ratified some of the core Conventions. The issue of women’s rights has grown amidst thistles and thorns and a lot of international, regional, sub-regional and national instruments have been developed through the years. These instruments severally place specific obligations on State parties to take legislative and other measures to ensure that women’s rights are protected and enforced.[3]Africa is one region of the world whose slow development has attracted a lot of concerns from the United Nations and other developed countries due to her peculiar pedigree.[4]Although Africa may be seen as a late comer in the formation of a regional instrument for the protection of human rights,[5] she has a reputation for having a unique Charter which addresses individual rights, people’s rights among other features that are not in other instruments and above all for having a charter that reflects African values.[6]The need to specifically enumerate and ensure the protection of women’s rights led to the adoption of a special Protocol to the African Charter on women’s rights.[7]A notable feature of the Women’s Protocol is that in Article 2(1)(a) parties are mandated inter alia to “include in their national constitutions and other legislative measures if not already done, the principle of equality between women and men and ensure its effective application.” There has been series of agitations from women about the need to catalogue the rights of women in Constitutions of African countries.[8]Some African Countries have actually taken commendable steps in enumerating some women’s rights in their constitutions while others are yet to do so.[9] The failure of some countries to articulate the rights of women in their constitutions and the heavy reservations raised by some African Countries on the rights of women actually call for a rethink on the chances of attaining the philosophy behind the rights of women in Africa.[10]Beyond the idea of integrating the rights of women in constitutions is the question of acceptability of some of the rights to the African people and women themselves. Thus, the question of universalism of human rights and the question that some rights are culturally relative still struggle for ascendancy.[11] Irrespective of the conceptions, theories and idiosyncrasies, one fact remains sacrosanct and widely accepted, which is, that the cries of women in Africa for their rights are quite alarming[12] and several efforts have been made to address these issues[13], even though the efforts may not be commensurate with the cries. The challenges may be daunting but there are still a lot of prospects.[14] While a lot of approaches have been adopted by the stakeholders, there is still a yawning gap between dreams of realization of women’s rights and the fulfillment. It is therefore expedient to balance the cries for women’s rights with the concerns of other stakeholders in order to arrive at a concrete set of rights that will stand the test of time.[15]Other core stake holders, such as the African Union, National governments, religious leaders, traditional rulers and family heads need to be enlightened about agreeable core rights of women in Africa and such rights should form part of the Constitutions of African states.[16]
1.2 Statement of Research Problem
In spite of the general Constitutional provisions on freedom from discrimination on basis of sex and gender equality, among other rights; there is a recurrent clamour, especially from women, for the need to specifically enumerate and provide for the enforcement of the rights of women in African National Constitutions.[17] The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa requires state parties to include in national constitutions, make legislations and take appropriate measures for the full realization of women’s rights stated in the protocol.[18]Regrettably, women’s rights are yet to be enumerated in Constitutions of most African Countries, neither are there specific provisions for the enforcement of these rights in the Constitutions or specific National legislations. Writings on women’s rights have not separated issues of women’s rights from the general feminist agenda; which creates reluctance from other stakeholders, to balance women’s rights with the rights and concerns of other stakeholders and to address peculiar legal and factual circumstances of the African women. The constitution is seen as the grundnorm in most African States and rights that are not enumerated in constitutions are not usually given sufficient respect.[19]
Thus, the central statement in this thesis is that, given the peculiar problems of women in Africa, enumeration and provision for enforcement of their rights in constitutions of African States is a necessity, but it must be balanced with the concerns of other stakeholders.
1.3 Research Questions
What is the rationale behind differentiating Women’s Rights from general provisions on human rights available to everyone?
What are the obstacles to the constitutional enumeration and provision for enforcement of women’s rights in Africa?
iii.. How can the African Union, National Governments, Women organizations and other stakeholders solve the legal comatose involving women’s rights without twisting the neck of other beneficiaries of human rights?
Are women the architects or contributories of their own misfortune or complete victims of masculine idiosyncrasies and high handedness?
Do precedents of the rights of women in other world regions fit into the African women context and is it a question of wanting “to be like other nations” when they have a peculiar pedigree?
What core rights of women should be integrated in Constitutions of African Countries?
1.4 Objectives of the Study
To show the legal foundation for requiring women’s rights to be enumerated and made enforceable in constitutions of African countries.
To explain the peculiar background and identify human rights issues faced by women in Africa.
iii. To identify the factors militating against the enumeration and provision for enforcement of women rights in Constitutions of African Countries.
To strike a balance between advocating the rights of women and other beneficiaries of rights in evolving a Constitutional framework for human rights.
To recommend informed alternative strategies or approaches that can be adopted by the relevant stakeholders (African Union, legislative houses, and women organizations etc.) to ensure that the rights of women are entrenched in National Constitutions or their equivalent in African States.
1.5. Significance of the Study
The research into women rights in African constitutions serves as a one stop material for the African Union and her agencies, future researchers, law teachers, students and women who wish to find justification for integration of women’s rights in African constitutions. It provides a solid framework for comparing the experiences of women in Africa with other regions of the world. This research is cutting edge in that it seeks to create a balance between raw advocacy for women’s rights and the need to balance it with the concerns and rights of other stakeholders. The approaches to the struggle for women rights suggested in this work will attract greater results and ultimately lead to more respect for women’s rights in Africa.
1.6 Scope of the Study
This work focuses on Women’s rights. Not just rights of women all over the world, it addresses women’s rights from the African context. The study however takes off from the point that women’s rights are of global concern before narrowing down to African States. The study draws lessons from other regions of the world with the aim of either drawing useful inspiration to make changes in Africa or showing that some of those templates do not fit into the African mould. Being mindful of the fact that Africa is a vast continent with huge diversities in terms of religion, culture, colonial history among others; the study randomly selects some countries to address the issues at stake.[20] The study acknowledges that there may be general national statutes or policies on women’s rights but it goes further to show that they are not sufficient. The study emphasizes the issues, challenges and prospects of integrating women’s rights in constitutions of African countries.[21] This study also scrutinizes some of the rights canvassed by women in Africa to find the justification or otherwise of including such rights in the Constitutions of African states. Consequently, the work will advocate that some rights which are merely cosmetic or have damning or negative consequences may not be proper in the Constitution while some core rights that are proven to give true essence to womanhood must be inserted.
1.7. Methodology of the Research
This research is library based. The writer will rely on primary sources by assembling key international, regional and national instruments and judicial decisions dealing with women’s rights and will proceed to randomly explore provisions of constitutions of African states on women’s rights. The research also employs narrative methods especially in tracing the history and development of women’s rights. A comparative study of provisions of selected non-African constitutions will be examined to see how women’s rights are addressed .The work shall make an analysis of reports of international, regional and national bodies in order to explain the problems. A combination of the above methods will bring to fore the real issues involved in this work than relying on a single method, for example a mere narrative method on problems faced by women will not provide indices to sway society from preconceived notions on women’s rights but some empirical and verifiable data works better.
1.8. Chapterization
This thesis is divided into five chapters comprising an Introduction, Literature Review, two chapters on the main body and the final chapter embodies the Conclusion. Under the introduction, the meaning and debate on the issue of ‘women’s rights’ is addressed. The researcher will trace the evolution of women’s rights at the global level and also unveil the regional peculiarities in this regard. An exegesis of the effect of the issues of universalism and cultural relativism as it relates to women’s rights is also examined. The issues of inter–relationship between international obligations and domestic enforcement are also addressed. The chapter also sets the stage for appreciating constitutionally guaranteed rights as opposed to ordinary rights. Chapter two examines existing African and Non-Africa literature on the subject. It brings to fore the fact that most literatures on the subject of women’s rights concentrate on the failure to insert clear provisions, respect and enforce women’s rights. The approaches in existing literatures are largely that of mudslinging and seeming exaggeration of the failure on the part of governments and the men folk. This thesis therefore ,departs from those conceptions and rather seeks to ‘hear the other side,’ by examining why these rights are not incorporated and to discover ways of putting across the necessity for the comprehensive integration and provision for enforcement of these rights in constitutions in a way that balances the competing interests of women and other stakeholders.
Chapter three focuses on the legal instruments that regulate women’s rights in Africa. Global, Regional, Sub-Regional and selected National instruments are carefully examined in order to appreciate the current legal foundation. The Chapter contains much emphasis on the Protocol to the African Charter on the Rights of women which is the core instrument on women’s rights in Africa. The Chapter reviews the core rights provided for in the Protocol and the mechanisms for implementing the rights. Criticisms of the protocol are highlighted and suggestions are made on how to give life to the Protocol. The Chapter goes further to examine the issue of balancing women’s rights with the concerns and rights of other stakeholders like men and children. In examining the rights of other stake holders, the chapter examines the practical challenges of treating women’s rights in isolation.
Chapter four examines the types and sources of the problems affecting the realization of women’s rights in Africa. Beyond the diagnosis of the problems the chapter goes further to articulate the prospects of realizing these rights. To do justice to this chapter some legislations, reports, decisions of courts and other measures that promote or retard the growth of women’s rights are also examined. The chapter further examines peculiar interpretations given to women’s rights in African international and national courts and the roles played by classified institutions and organizations in the development of women’s rights. Chapter five consists of the summary of the thesis, conclusion and core recommendations for ultimate action.
1.9 Definition of Key Terms
The title of this thesis contains core terms that are worthy of definition and the definitions given hereunder will serve as a guide in appreciating the context in which they are used throughout the thesis.
1.9.1 Women’s Rights
More often than not writers on women’s rights just proceed with discussions on the evolution of women’s rights movements or the kind of rights accruable to women without pausing to give a precise meaning of the phrase ‘women’s rights’.[22]Women’s rights have been defined as, ‘The rights claimed for women, equal to those of men, with respect to suffrage, property, the professional fields etc.’[23]This definition appears to beg the question. The Phrase women’s rights is a juxtaposition of two words, to wit- women and rights. For there to be a comprehensive appreciation of women’s rights one must give answers to the following questions: what does the word ‘women’s’ connote and what are ‘rights’?
The word women’s is the possessive form of the plural of ‘woman’.[24]The word woman derives from the Old English Wif-man, Wif meaning “female” and man meaning “human being.”[25]A more accurate meaning attached to the word woman which shows the distinction from the younger females is “[a]n adult female person.”[26]A creative definition of the word women is “The feminine component of human species, who apart from serving as a vehicle for nurturing human life, is also a producer, a consumer and an equally endowed agent for fostering a wholesome political, social and economic development in society.”[27]On the other hand, rights connote moral or legal entitlements to have or obtain something or to act in a certain way.[28]The word has been defined inter alia as ‘something that is due to a person by just claim, legal guarantee, or moral principle’[29] .
With the above background in mind, women’s rights, for the purpose of this work, connotes the sum total of all legal entitlements or justifiable demands and claims made by female human beings as being exclusively due to them, whether such claims have been formally recognized in specific legal codes or not.[30]The list of claims or entitlements that can be classified as women’s rights is not in a watertight compartment. Indeed, issues that were not regarded as women’s rights some decades ago now form part of the core rights of women and have been inserted in major world treaties and some national constitutions.[31]One can therefore safely say that women’s rights have a dynamic meaning in terms of specific subjects or issues it comprises of since the issues keep evolving. Thomas captured this point to the nicety when she said:
What is striking about the growing women’s human rights movement is its resistance to polarization and, therefore, its dynamism. Both within and between the essays collected here, there is constant movement from the particular experiences of women to commonalities and affinities that arise from those experiences. The particular and the general constantly interrogate and inform one another. The goal is a politics of difference that has already begun to give rise to rejuvenated conception of universality as the foundation for human rights at local, national, regional, and international levels, a rejuvenation from which the entire human rights movement stands to benefit.[32]
1.9.2 Constitutions
The term “Constitutions” is the plural form of the word Constitution. The word Constitution conveys several meanings but it is used in this work from the legal perspective. According to Harper:
A constitution, whether for a powerful nation or for a local garden club, is a set of rules, a supreme or paramount law that outlines how the organization will operate .In terms of a nation, the constitution sets forth political principles, establishes power and authority, and defines responsibilities. The Constitution proscribes the general principles for what a government can and cannot do. Specific laws enacted by the government, also called statutory law, spell out the details. For example, the US Constitution gives the government the authority to collect taxes, but leaves it to the government to decide who and what will be taxed and how much.[33]
Flowing from the above, a Constitution apart from setting the Political framework and responsibilities of government; usually integrates the fundamental rights and in some cases the duties of the people.[34]The key factor to note is that a constitution is regarded, especially in democracies, by the people bound thereby as “the foundational, fundamental, basic or underlying rule that is of such importance to the organization or people as the very substance of their existence, the condition for their intra relationship and the compass that must be followed in the daily administration of the organization or government.”[35] This work deals with the Constitution as it affects nations as against clubs or related organizations. Nwabueze posits that “A Constitution is a mode of organizing a state and its government; it is in other words, a body of fundamental principles according to which a state is organized.”[36]Harper goes further to state that, “[t]he United States Constitution is a master document, the paramount or overriding set of laws laying out the foundation of American democracy and the rule of law.”[37] Thus it has been further defined as the “Fundamental and entrenched rules governing the conduct of an organization or nation state, and establishing its concept, character and structure. It is usually a short document, general in nature and embodying the aspirations and values of its writers and subjects.”[38]In the sense presented above, the constitution does not generally provide so much details but it prescribes the fundamental principles while other laws can be used to set out the details of the principles. This point was carefully clarified as follows
WOMEN’S RIGHTS IN AFRICAN CONSTITUTIONS: A DESIDERATUM OR A MERE FEMINIST UTOPIAN AGENDA?
