Women’s Rights In African Constitutions; A Desideratum Or A Mere Feminist Utopian Agenda?
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.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.Although Africa may be seen as a late comer in the formation of a regional instrument for the protection of human rights, 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.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.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.
Some African Countries have actually taken commendable steps in enumerating some women’s rights in their constitutions while others are yet to do so. 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.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.
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 and several efforts have been made to address these issues, even though the efforts may not be commensurate with the cries. The challenges may be daunting but there are still a lot of prospects. 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.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.
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. 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.
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.
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?
- 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.
- 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. 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. 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.
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’.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.’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’.The word woman derives from the Old English Wif-man, Wif meaning “female” and man meaning “human being.”A more accurate meaning attached to the word woman which shows the distinction from the younger females is “[a]n adult female person.”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.”On the other hand, rights connote moral or legal entitlements to have or obtain something or to act in a certain way.The word has been defined inter alia as ‘something that is due to a person by just claim, legal guarantee, or moral principle’ .
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.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.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.
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.
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.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.”
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.”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.”
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.”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:
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The core task of this thesis was to examine the issue of women’s rights in African Constitutions and to answer the big question whether it is a desideratum or a mere feminist utopian agenda. The issue cannot be addressed with a yes or no answer. The tone of the thesis was set by having a working definition of women’s rights. Women’s rights, for the purpose of this thesis, 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. The thesis has shown that the list of claims or entitlements that can be classified as women’s rights are not in a watertight compartment since 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. This thesis has also highlighted core values of feminist movements and allied definitions that are appurtenant to the topic under consideration.
Women’s rights as a global phenomenon have a pedigree. The thesis has been able to trace the history and development of women’s rights. It is apparent from the thesis that women’s rights did not emanate as a global phenomenon but that it had its roots in national struggles before attracting global recognition. In spite of the seeming universal appeal assumed by women’s rights, it still has regional peculiarities. The thesis has shown that while women in some regions of the world may be grappling with the right to be allowed to freely choose a husband, instead of having one imposed on them; other women may be struggling with the right to be allowed to change their gender. Some may be fighting with the right to education while the big issue in some regions of the world may be right to freedom from harmful traditional practices. The respective struggles in the regions also raise a perennial debate called universalism and relativism debate. Thus it has been shown that while there is a general clamour for the universal recognition of the rights of women, especially under international instruments, there is a serious agitation to the effect that the rights must be consistent with the core values of the culture of the people that it is meant to operate in. The thesis has highlighted how these factors have come to play in the development of women’s rights. A corollary to the aforesaid issue is the aspect of the domestication of international obligations. The thesis has shown how the internal dynamics and systems at the national level seem to frustrate rights that are found in international documents.
This thesis has carefully reviewed series of literature that deal with perspectives of women’s rights in Africa. The common denominator among the authors is that women’s rights in Africa is deeply influenced, shaped and affected by African values, religion, traditions and idiosyncrasies most of which are diametrically opposed to western conceptions of human rights. These factors to a large extent appear to create a riotous symphony whenever there is an attempt to superimpose some of the rights that appear to thrive in western climes in orthodox African settings. However, some authors have highlighted the prospects for the realization of some of the widely acclaimed women’s rights in Africa.
The thesis has also dealt extensively with a lot of literature that deal with women’s rights as human rights and some of the innate challenges in that assertion when it comes to Africa. A critical contribution of this work has been in the aspect of examining literature on women’s rights and constitutional developments in non- African Countries. A review of the experiences in non- African countries reveal that some of the challenges faced in integrating women’s rights in Africa are also there in other parts of the world even in countries like United States of America, Israel and India. On the other hand, there may be lessons to learn from successes of women’s rights in liberal countries like Iceland and Denmark. Literatures showing the successes and challenges when it comes to the constitutional development of women’s rights in Africa have been of didactic value. A juxtaposition of the situation in non- African countries with African countries helps one to readily appreciate, from the lenses of other scholars, the core lines of similarities and differences in terms of prospects and problems encountered in the integration of women’s rights in constitutions. The yawning gaps identified in the respective literatures have formed the stepping stone for the advancement of the approaches and recommendations contained in this work.
This thesis has been able to expound core international instruments or documents that make provision for women’s rights. It has shown that in spite of the Universal Declaration of Human Rights, Convention of Elimination of All Forms of Discrimination against Women, Protocol to the African Charter on the Rights of Women in Africa and all the allied documents that apply to Africa at the global, regional and national levels, the quest for documentation of women’s rights have not ceased. The dimensions of violation of women’s rights appear to be dynamic and with the changing phases of human development and modern day insatiability, the clamour for the expansion of the protection of women’s rights keeps resonating. This thesis has particularly gone ahead to show the efforts to integrate women’s rights in national constitutions in Africa. What is manifest from the efforts towards integrating women’s rights in constitutions of African countries is that there is no uniformity. While some constitutions have no provisions at all, some have provisions that are literally unenforceable while others have commendable provisions. It is indeed true that letters kill, but the spirit gives life. Women’s rights may be in letters, but the actual implementation becomes an albatross because women do not just live in the world alone. We still have men’s rights and children’s rights as issues to grapple with. The thesis proceeds to show that there is an immediate need to balance the rights of women as set forth in the myriads of instruments with the rights of men which are seldom set out in instruments and also those of children which are also set out in other instruments. Some aspects of men’s rights and those of children have been identified in the work, not as mere hurdles that must be crossed; but as concerns that must be conscientiously considered side by side with the clamour for the successful integration of women’s rights in constitutions. The thesis contains an extensive exposure of the problems and prospects of advancing women’s rights in Africa. Problems associated with the absence or weakness in laws; the courts; religious and cultural practices; problems traceable to men and even from women themselves among others have been examined. The glimmer of hope in the quest for the realization of women’s rights have been identified from international sources, the African Union, national governments, NGOs , efforts by men and women among others. A careful review of the problems and prospects thus provides this writer with a secure footing for making an appropriate conclusion and recommendations.
Upon a careful examination of the issues addressed in this work it is not only pertinent but safe to draw the following conclusions. First, that the situation of women’s rights in Africa is peculiar, though some of the experiences are also shared in other countries. The dominant forces of African culture, traditions, religion and psyche are so overwhelming to be ignored in any struggle to integrate women’s rights in African constitutions. Western ideologies of women’s rights must of necessity be doled out with care so as not to choke the African system and turn the beneficiaries to victims in the hands of their oppressors. Some of the approaches adopted by advocates of women’s rights have not helped in making people to appreciate the core issues of women’s rights in Africa. Thus, instead of attracting cooperation from the stakeholders they attract resistance.
There are lofty instruments at the global level for enforcing women’s rights in Africa; unfortunately, African women have not been able to enjoy the rights because some of the laws have not been integrated in the national constitutions as enforceable rights. Many other problems in Africa have frustrated the advancement of women’s rights and it is necessary to examine the root causes of these problems before rushing to integrate women’s rights in African constitutions. The multiplication of instruments on women’s rights without appreciating the need for a balance of these rights with those of other stakeholders is not a long walk to, but away from, freedom.
There are series of commendable efforts made towards the advancement of women’s rights in Africa and these efforts give glimmers of hope that it is possible to drastically reduce the perils suffered by women in Africa. Regrettably, there are still yawning gaps in terms of values, approaches and resources. Incorporating women’s rights in African constitutions could be a desideratum on one hand and a mere feminist utopian agenda depending on the paradigm that one looks at it and the approach adopted by the relevant stakeholders. The constitution, in most African countries, is the highest sustainable legal mechanism for integrating human rights. However, rights need not only find their way into the constitution, the rights must be enforceable. The rights must not only be seen as enforceable, while the beneficiary of enforcement lives in sorrow after using all the machinery of law to enforce her rights. The rights must be enjoyable in the sense that the enabling atmosphere must be put in place socially and psychologically. The challenge therefore is how to move women’s rights in Africa from the place of non- recognition in constitutions to the place of proper recognition, enforceability and enjoyment after enforcement. More still has to be done and this work offers tangible solutions in this regard.
Women’s rights in Africa are indeed a very sensitive issue that draws a lot of sentiments and emotions from proponents and opponents. Sometimes due to the approaches adopted it becomes difficult to appreciate the rationale of the arguments proffered by either side. Notwithstanding the seeming technical defects, women in Africa have experienced a lot of bizarre experiences that call for a careful examination of the subject under review. Having examined and appreciated the core issues at stake, the efforts made so far by the relevant stakeholders and the opinion of other scholars; I am fortified to make and endorse the following recommendations:
Need to Overhaul the Universal Declaration of Human Rights (UDHR)
There is need for a comprehensive overhaul of the Universal Declaration of Human Rights (UDHR) to ensure that the rights of men, women and children are clearly spelt out in the single universally acceptable document. Before such an overhaul is made the United Nations should make extensive consultation and obtain memoranda from all relevant stakeholders who must include men, women, children, religious leaders, traditional rulers, military personnel, professionals, NGOs among others from all nations of the world. Sufficient time must be allowed for deliberations and production of an acceptable human rights instrument that will form an enforceable grundnorm for modeling national constitutions. The advantage that this step will have is that it will reduce if not eliminate the arguments that it was dominated by western conception of human rights since most African Nations were not independent as at 1948 when the UDHR was adopted. It will also address the fact that a lot of women were not involved in the process of making the UDHR or that it has masculine undertones. It will further eliminate the argument that the UDHR does not address contemporary issues of human rights such as gay rights, transgender, cyber stereotyping, global warming and modern day reproductive rights challenges. Finally the concerns of the respective stakeholders in the various regions of the world would have been properly addressed. It is the believe of this writer that if the various complaints made by all the relevant stakeholders are addressed in such a single legally enforceable document, it will be unnecessary if not superfluous to now have myriads of human rights documents or instruments for men, women and children. At such a point the Preamble to the UDHR that, “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” would move from rhetoric to reality.
Need to Integrate the Rights of Women, Men and Children in Constitutions
The Constitutions of respective African Countries should as a matter of urgency have provisions that clearly spell out the rights of all persons and peculiar rights of the respective rights bearers. As discussed in this thesis there are peculiar challenges faced by the respective sexes and children. To achieve this aim, the respective stakeholders, in particular women must be equally represented and their views respected in the constitution making process. As Hallward-Driemeier and Hasan put it, “successful reforms indicate that reformers have to understand the constraints in society before embarking on reform initiatives, and they need to engage actors who can potentially ease or obstruct the reform process.” African governments must learn a lesson from the United States where women seriously frowned against the use of the word “free persons” in the making of American Constitution instead of “All free men, women and children.” The psychological composition of the sexes must be taken into account because what men may consider as unimportant may be all important for women. Going by the above, it is necessary to examine the core rights advocated by and for the respective stakeholders to be taken into consideration having regard to the need for international cooperation in respect of internationally acclaimed rights on one hand and the need to respect African values on the other hand. Since the focus of this thesis is on women’s rights, emphasis should be in promoting integration of basic rights such as the equal right to education, work, medicare, housing, property inheritance, protection against forced marriage, protection against harmful practices, protection of vulnerable women like widows, disabled and aged women and allied aspects that are commonly shared by most women in Africa.
Stakeholders need to Address Core Concerns of Women in Africa
Any attempt to address women’s rights in Africa without taking into consideration the peculiarities of the challenges will leave women in Africa, one step forward two steps backward. It is comical at times to see great nations or organizations voting huge sums of money to fight for the rights of women in Africa only to discover that the agenda that they are advocating does not address or carter for the foundational issues suffered by women. For example, a fight for same sex marriage or obesity for women in Africa, though it may have its own utility value in the eyes of the protagonists cannot be compared to life threatening and widespread practices such as female genital mutilation and honour killings discussed in this work. Focus should be made on ensuring that the women are alive first, that they can go to school, have shelter, are not forced into marriages and other pressing problems identified in this work. Thereafter, progress will be made into the aspect of leisure related rights. An Ibibio adage says, Ayen ama adu uwem itong ayakongo nkwa meaning when a child survives, the neck will wear necklace.
Judges need to be Regularly Trained on Gender Issues and Obligations under International Law
It is often said that the judiciary is the last hope of the common man. One core problem identified in this work is that of poor knowledge and application of international law as it relates to gender issues on the part of some judges. There is a dire need for judges to be specially trained on emerging trends on gender issues and how to properly interpret rights in this regard. It may be expedient to designate some trained judges and courts at the lower level for treatment of gender related cases while the appellate court judges must all be trained on how to interpret laws in this regard. An approach like this will not only make for consistency in decisions but it will enhance the quality of decisions made in this regard.
Need for Gender Training Courses in Schools
Given the expansive array of gender related rights and the complex issues raised therein, it appears wise that courses which address gender issues from an African perspective should be offered in secondary and tertiary schools. For example one of the approaches adopted by Iceland towards injecting sheer friendliness includes offering such courses in Icelandic Universities. Article 12(2) (b) of the Women’s Protocol already mandates States to “Integrate gender sensitization and human rights education at all levels of education curricula including teacher training.” There is an urgent need to ensure that this provision is actually implemented because it will reduce a lot of problems caused by ignorance of the law or poor appreciation of the law in this regard.
Need for Governments and Great Corporations to Encourage Research into Women Rights Issues
Research has a way of unfolding the pros and cons of certain practices. Some practices against women that are justified under religion or culture can hardly be appreciated or jettisoned without extensive research that will unearth the deep issues that underlie them. Regrettably most researches cost a lot of money and time such that researchers may easily give up. It is therefore imperative for the relevant stakeholders, in particular governments and large organizations, to set aside adequate funds to encourage research to be undertaken on gender issues like effect of non-involvement of women in traditional institutions, childhood marriage, same sex marriage, transgender issues, female genital mutilation, change of nationality and other thorny issues that require policy decisions or actions.
Religious Laws and Customs should be Clearly Spelt out and Codified
It is advisable to encourage all proponents of traditional and religious practices to try to codify their practices so that women, men, children, the courts and other relevant stakeholders can appreciate what their requirements are in given situations. For example in the case of Mojekwu v Mojekwu it was difficult for both the parties and the court to decipher what the right custom was in the given scenario so as to appreciate whether the custom was discriminatory or justifiable and one can see how this confusion played out even in the appellate courts when the justices of the court of appeal were reprimanded by those of the supreme court for holding that the customs were discriminatory. At times proof of some customs or religious practices can be difficult or become a function of who gives more money or has more influence over a chief or religious head who is invited to give such expert evidence. Thus, we find in some cases that these experts can tell lies about what the true practices are. Once these practices are codified the issue of certainty would be taken care of and the effect of the practice will be easier to decide.
Modification of Existing Legislations and Passage of Beneficial Legislations
Legislatures need to become more sensitive to the plight suffered by women in the society. They need to re-examine the effects and benefits of existing legislations on women. For example discriminatory provisions under the Criminal Code Act, Evidence Act and Matrimonial Causes Act of respective countries that place burdens on women that are not on men as highlighted in this thesis should be modified to meet the core complaints of women. Where there are yawning gaps the legislature should step in to pass relevant legislations like Domestic Violence Act, Widow Protection Act, Disability Act and allied issues that there are justifiable clamour for legislation. Legislatures should engage in drafting laws that are consistent with a country’s socio-cultural context. They need not be like other nations. The laws should be autochthonous in order to ensure social coherence and ultimate compliance.
Need for Greater Education and Integration of Men in the Struggle for Women’s Rights
There is a dire need to integrate more men in the clamour for women’s rights so as to puncture the picture that the issues addressed are part of women’s agenda. When men advocate for women’s rights at all levels they promote some kind of legitimacy and other men and women themselves are naturally drawn to advocacies from men. Men should be trained to see women as partners and not subjects. They should be encouraged to see progress in collaboration rather than ruling in isolation. Men should learn how to cover up with household issues and get more involved in raising the children instead of treating these roles as a woman’s exclusive job. It is the belief of this writer that when the right foundation is put in place, and women are granted constitutional protection in a way that may appear to give them more freedom, the men will not feel threatened or helpless.
Women Should Support Fellow Women
Some women need a lot of attitudinal re-orientation when it comes to supporting fellow women. A lot of women are making giant strides in politics, education, business, sports and other outstanding endeavours. Women can make or mar efforts towards promoting women’s rights in Africa depending on the level of support they give to fellow women. It is natural for men or policy makers to ask women about their views about certain issues. Even when they do not ask, they observe the responses of fellow women to the issues at stake. While one is not advocating that women should blindly support a course because it is brought by a woman, their inputs can help to prevent a wrong agenda from prospering and it could also help a right agenda to have more weight. It is very important that women who may not be regarded as integral part of particular women’s rights issues be enlightened as to the merits or otherwise of the issues that are advocated.
Women should choose Jobs that also take Cognizance of the Development of Children and Family
In striking a balance between women’s advancement and the development of the significant others in the lives of these women it may be expedient, in appropriate cases, depending on peculiar family circumstances for women to consider the prospects and possibilities of choosing jobs and careers that are closer home or that allow some flexibility for development of the men and children in their lives. Admittedly, not all women will be Presidents or Senators; some can develop outstanding home compatible businesses or vocations. One doubts if any sane man or woman will get into marriage, raise children and want the family to grind to a halt in pursuit of self- happiness. There must be willingness to explore options that are expedient and suitable to the peculiar family situation.
Need to Encourage the use of Pre-Nuptial Agreements
One of the sure ways of ensuring that some of the rights of women stated in constitutions are well respected in practice is to encourage the use of pre- nuptial agreements. This is needed especially in communities where upon the death of a husband the widows, who may have come into the marriage with a lot of personal assets, are rendered bankrupt by the husband’s relatives who literally take away everything. Pre- nuptial agreements will help the parties to agree on how such assets are to be managed during the marriage and in event of divorce or death.
Need to Encourage Registration of Marriages
While some constitutions of African countries integrate women’s rights especially in the area of marriage, women may still suffer a lot of indignities for the purpose of proving non- statutory marriages. Thus some women can claim to be married to a man when they were not married and some who were actually married may be deprived their rights because they fail to successfully prove their marriages. Thus, the registration of marriage regimes practiced in some African countries is highly commendable. Legislations should be put in place to ensure that marriages are registered so that the women in such marriages can also have some form of protection. Registration can help the state to monitor or control other issues like minimum age of marriage, consent requirements, polygamy, bigamy, legitimacy of children, property rights among others.
Need for Writing of Wills to be Encouraged
Writing of Wills by both men and women should as much as possible be encouraged. When men write their Wills and make an outright gift of property or funds to their surviving wife or daughter it reduces the chances where the property will be taken over by their surviving brothers, sons or the community. There is a dire need to overhaul those Wills’ laws that are made subject to customary practices to see their practical utility when it comes to protecting women’s rights and as much as possible amendments should be made.
Need for Law Reporting of Women’s Rights Decisions at all Levels
Illustrious decisions on women’s rights are great in the shaping of the legal regime on women’s rights. However these decisions are meaningless if there is no timely, accurate and widespread reporting of these decisions. Decisions of customary courts, religious courts, national superior courts and international courts are all relevant if one is to carefully appreciate how women’s rights are construed from the local perspective to the international. It has been observed that, “lack of access to laws and legal decisions has diminished the development of national and regional jurisprudence.” On the other hand great decisions will help to create persuasive precedents across African nations. As aptly captured by Jackson, “progressives should support looking to practices of other nations for insight.”
Women should be exposed to Technological Advancements and Relevant Skills
Low involvement of women in technological advancements could frustrate the development of women’s rights in the 21st Century. In modern days a lot of decisions are made using online resources. Example: voting, processing of admission, driving tests, job applications and even initiating of court processes. Women need to also acquire or update their skills in a lot of areas in order not to frustrate their right to freedom from discrimination. Acquisition of skills can be a sure way of reducing dependence on men and in some instances it could help reduce incidents of domestic violence that may arise in the course of trying to force men to meet their needs. There is a dire for states and the women themselves to take urgent measures to acquire or update their skills in this regard.
Need for Non-Governmental Organizations to be more Effective
Considering the great role played by Non- Governmental Organizations (NGOs) in promotion and protection of human rights, it is necessary for them to be more effective in the promotion and monitoring of human rights. NGOs have to be focused in carrying out their objectives. They should not be seen to connive with governments to distort data or select issues instances or persons to hold accountable. They should as much as possible be seen as having integrity, showing accountability and earning public trust. They should focus a lot of attention on educating the citizenry and the government on the attitudinal changes towards credible gender issues. They should be sensitive to the needs of particular communities in their advocacies so as not to compound issues. On the part of governments, the process of registering NGOs should be simplified; they should be allowed a more level playing ground to operate. Access to relevant information should be encouraged, adequate security should be guaranteed and the rights of the NGOs should be respected. Governments should learn from the United Nations and her agencies and tap more into the pool of experts from responsible NGOs in the areas of research, drafting of legislations and evaluating of policies as it affects gender.
Need to Translate Gender Laws into Local Languages
There is need to ensure that gender related laws are translated into local languages that will help the less educated population. When the citizenry have laws articulated in their local languages it could better understanding and assimilation. As discussed in this work, illiteracy and ignorance are core challenges that affect the advancement of women’s rights in Africa. Thus, gender laws must not only be circulated to the nooks and crannies of communities, they must be done in the languages that the people can comprehend.
Need for Governments to Appropriate more Funds Towards Socio-Economic Rights
It has been noted that most of the rights generally enforceable in constitutions of African countries are usually the civil and political rights. Most of the socio- economic rights provisions like those of right to education, housing, environment, reproductive rights, and economic rights are mostly unenforceable in constitutions. Apart from the recommendation that the rights should be made enforceable, the government has a duty to provide an enabling environment for the enjoyment of the rights by providing adequate funds that will ensure that the facilities are made available to the citizenry. Thus, there is need for serious budget provision, monitoring and credible implementation.
Need for Provision of Effective Legal Assistance to Victims
In a bid to ensure that victims of gender abuse are not left to suffer injustice due to lack of funds for litigation including solicitors’ fees, adequate provision should be made in constitution’s for the governments of respective states to provide legal assistance to deserving victims. The victims should as much as possible be informed of their rights to legal assistance. Proper monitoring has to be made to ensure that the legal assistance is not only in the books but is actually implemented. One measure to ensure that this is done is that the registrar of each court should give period reports with a certificate showing a provision or non- provision of legal assistance was given to the victim in respect of each case.
Women have to be more Expressive in Pressing for their Rights
There is need for women to be very expressive in challenging the injustices meted out against them by all possible legitimate means. History has shown that most of the core rights of women eventually inserted in legal instruments came from targeted actions that altered the status quo. Recent moves by women to openly challenge some injustices against them are highly commendable.
Adequate Protection should be made for Whistle Blowers
There is need for proper legal mechanisms and administrative measures to be put in place to protect those who raise a hue and a cry about actions of violators of women’s rights. The problem that whistle blowers face is that in most cases there are no protective measures in place for them, thus they keep quiet and refuse to report the violation and violators. As Matal puts it:
Whistle-blowers get fired, blacklisted, and branded as troublemakers, making it harder to find new employment. The cost can be sometimes even higher—women in the armed forces and police corps often dread filing sexual harassment claims in fear of backlash by their male colleagues for turning against one of their own.
Stiff Measures Should be Made Against Countries Who Fail to Address Issues of Human Rights
It should no longer be business as usual with countries that continue to condone the violation of clearly defined and respectable women’s rights, either in their laws or practices. The practice of shaming those countries should be enforced and stiffer measures like discontinuing other reciprocal benefits.
Need for Clear Definition of Roles of the State in the Private lives of the Citizenry
There is a dire need to clearly identify the role of the state in terms of regulating or supporting the private lives of the citizenry in the constitutions. Some of the decisions on rights to reproductive health or marriage have often revolved around whether the state has a role to play in regulating the private lives of the citizenry.
Need for Respect of the Choices of Mature Individuals on Certain Conditions
Most of the challenges levelled against the certain rights advocated by women, such as abortion, same sex marriage, transgender, serving as traditional rulers among others lies more in the areas of religion, traditional or cultural values. Unfortunately or fortunately, in spite of the reservations, practice shows many nations are fast embracing these rights and reversing their positions on the matter both in terms of executive policies, legislations and judicial decisions. The resultant effect is that there is a sharp divide, depending on the paradigm of the observer, between the “righteous and the unrighteous” or the “morally sound and the depraved” or “Just and unjust.” At a certain stage of human development one must realize that there is a limit to which one can humanly seek to change the world. Sometimes people change after they have experienced the consequences or benefits of their actions. The Government must rise to the occasion and protect vulnerable groups in the society like minors and the elderly from any form of exploitation and make a well informed position on what is profitable for human beings within the government on the basis of health, good conscience and orderliness in society. When these standards are put in place and the citizenry are well enlightened, but some persons choose to engage in actions like polygamy, same sex unions, abortion, transgender and other activities; then it may be expedient for them to be allowed to their ways, provided their actions do not alter social equilibrium or affect the vulnerable in society. Those who also believe they should not abort or wed gay couples should have their choices respected. The creator respects choices. The Holy Bible states, “. . . I have set before you life and death, blessing and cursing; therefore choose life, that both thou and thy seed may live.” It is safe to conclude this point by looking at the last words of Jesus, the leader of the Christian religion when, on the issue of choice, he also said in the Holy Bible:
He that is unjust, let him be unjust still: and he which is filthy, let him be filthy still: and he that is righteous, let him be righteous still: and he that is holy let him be holy still. And behold I come quickly; and my reward is with me, to give every man according as his work shall be.