Augmenting the Struggle for Gender Equality in Uganda: A Case for the Domestication of International Human Rights Standards
| Published date | 01 September 2001 |
| Author | George William Mugwanya |
| DOI | 10.1177/092405190101900302 |
| Date | 01 September 2001 |
| Subject Matter | Part A: Articles |
235
Part A: Articles
Augmenting the Struggle for Gender Equality in Uganda: A Case
for the Domestication
of
International Human Rights Standards
George William Mugwanya'
Abstract
This article critically examines theextent to which States have respectedthe right to gender
equality both in theory and practice, using Uganda as a case study. This is accomplished
through a critical examination
of
the Convention on the Elimination
of
All
Forms
Discrimination Against Women (CEDA W)
of
1980
and
the degree to which its obligations
have been met in Uganda. Thearticle also draws on the equalityjurisprudence engendered
by the UN Human Rights Committee established under the International Covenant on Civil
and Political Rights
of
1966. The article argues that while there is a general acceptance
of
the universality
of
human rights among States, and the primacy
of
the notion
of
non-
discrimination on any ground, including sex, women continue to suffer discrimination in
almost all spheres
ofhuman
existence. The article therefore centers on how best to address
theplight
of
women who continue to sufferoppression both in private
and
publicspheres. The
article suggests ways to address the plight
of
women, particularly through the domestication
of
international human rights standards. The article argues that the international community
must make a concerted effort to ensure that States do not merely ratify treaties in theory
alone, but must translate them into practice within their domestic systems where they have
meaning in people's lives. Uganda's Constitution
of
1995 generally ushers in a progressive
gender equality jurisprudence. However, the rest
of
Uganda's legal system is still littered
With
draconian
and
repugnant legislation and customary
and
religious laws and practices
antithetical to gender equality. So
far
no one has relied on the Constitution's general
guarantee
of
equality to impugn antithetical legislation and practices, and the Constitution
generally remains without interpretation or construction. Uganda urgently needs to
domesticate international human rights standards on gender equality particularly those
enshrined in CEDA W. The Constitution's general guarantee
of
gender equality can be
enriched by the domestication
of
the comprehensive provisions
of
CEDA W. Uganda also
urgently needs to bring reforms in all areas
of
law and practices that oppress women. The
primary objective ofCEDAW is an obligation
of
means and results: States must reform their
laws,
and
implement programmes to eliminate all forms discrimination against women by
both State
and
non-State actors. Under CEDA
W.
law reforms
and
other programmes must
include affirmative action to ensure substantive equality
of
women.
Advocate
of
the Uganda Court
of
Judicature; Lecturer, Faculty
of
Law, Makerere University (Kampala);
Doctor
of
Juridical Sciences (Summa Cum Laude), Notre Dame Law School, (USA)., LL. M (First Class
Hans) (PRET)., LL. B (Hans) (MUK). DIP. L.P. (LDC)., Cert. (Hum. Field. Oper.) (Geneva)., Cert, (IntI.
Hum. Rts) (Strasbourg)., Cert. (Ciedhu) (Strasbourg)., Cert. (Dev. &Pub. ReI.) (Notre Dame)., Cert. (Int.
Buss. Trans.) (ILl).
Netherlands Quarterly
of
Human Rights, Vol. 19/3, 235-268, 2001.
~
Netherlands Institute
of
Human Rights (SIM). Printed in the Netherlands.
NQHR
3/2001
I Introduction
The protection
of
human rights and freedoms is one
of
the fundamental pillars
of
democracy.
Despite the controversies in which the concept
of
human rights becomes enmeshed, it is
widely accepted that human rights are universal. 1
Of
paramount importance to the human
rights discourse is the universal consensus that human rights on the basis
of
inalienable
human dignity and equality, are natural or birth rights that inure to every human being
regardless
of
sex, race, colour, religion, geographical boundary or circumstances in life. The
universality
of
these notions fuels each individual's struggle to realise his or her self-worth.'
The
advocacy
of
gender equality in all spheres
of
human existence must be given serious
attention for without it, neither women nor families' will be able to realise their self-worth
and dignity." Without the attainment
of
gender equality it cannot be asserted that the human
family has attained the universal respect for human rights and dignity that the International
Bill
of
Rights' proclaims.
Issues and Aims of
the
Article
Many countries
ofthe
world including Uganda, have ratified amultiplicity
of
human rights
instruments entrenchingthe right to equalityand freedom from discrimination on any ground,
including that
of
gender (particularly the Convention on the Elimination
of
All
DiscriminationAgainst Women). 6Notwithstandingthe general acceptance
ofthe
universality
of
human
rights and the primacy
of
notions
of
equality, non-discrimination and human
dignity in human rights discourse, women throughout the world have suffered and continue
to suffer discrimination in almost every sphere
of
human existence." This has been and
4
5
236
See Vienna Declaration and Programme
of
Action [hereinafter Vienna Declaration], UN GAOR, World
Conference on Human Rights, UN Doc. A/CONF. 157/24, Part I, para. 15, reprinted in 32,1LM, 1661,
1667, Kofi, A.A, 'Strengthening United Nations Action in Human Rights: Prospects and Priorities',
Harvard Human Rights Joumal, Vol. 10, 1997, p. 1; Buergenthal, T.,1nternational Human Rights In A
Nutshell, West Pub. Co., St. Paul, Minn., 1995, p. 19.
See Wilson, T.W. Jr., 'Bedrock Consensus
of
Human Rights', in: Henkin. L. (ed.), Human Dignity: The
Internationalization
of
Human Rights, Aspen Institute
of
Humanistic Idea, New York, 1979, p. 6; Henkin
L., 'Rights: Here and There, Colum', Law Review, Vol. 81, 1981, p. 1528; United Nations, Human Rights:
Questions and Answers, New York, 1989.
A family is the basic unit
of
society. See Bromley P.M. and Lowe N.V., Bromley's Family Law,
Butterworths, London/Dublin/Edinburgh, 8th ed., 1992, p. I, [hereinafter Family Law]. Oppression
of
women within the family circle is very dangerous.
See Vienna Declaration, supra note I, Art. 1(18).
This refers to the Universal Declaration
of
Human Rights (UDHR) adopted 10 December 1948, G.A. Res.
217A(III), UN Doc. A/81O(1948) p. 71, the International Covenant on Civil and Political Rights (ICCPR),
16 December 1966, G.A. Res. 2200, UN GAOR, 21" Sess., Supp. No. 16, p. 52 and the International
Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966, G.A. Res. 2200, UN
GAOR, 21st Sess., Supp. No. 16, p. 49, UN Doc. A/6316, 1967.
Convention on the Elimination
of
All Forms
of
Discrimination Against Women, G.A. Res. 34/180, UN
GAOR, 34th Sess., Supp. No. 46, UN Doc. A/RES/34/180 (entered into force 3 September 1981)
[hereinafter CEDAW]. As shown below, (sec. III.B, infra), this Convention sets out internationally
accepted and legally binding principles on the rights
of
women, and is applicable to all women in all fields
of
human existence. The cardinallegal norm enshrined in the Convention is the prohibition
of
all forms
of
discrimination against women.
For a summary
of
some alarming statistics on the discrimination and oppression
of
women, see United
Nations, Centre for Human Rights (Geneva), Discrimination Against Women: The Convention and the
Committee, Facts Sheet No. 22, (1994), p. 1, citing The World's Women 1970-1990: Trends and Statistics
(UN publication, Sales No. E.90.xVII.3) [hereinafter, UN: Discrimination].
Mugwanya /Augmenting the Struggle for Gender Equality in Uganda
continues to be an aggravated problem in developing countries such as Uganda. The main
issue centers on how best to address the plight
of
the women
who
continue to suffer
oppression at the hands
of
States that are parties to various human rights instruments
proscribing gender or sex-based discrimination.
The practice
of
States ratifying human rights treaties merely for the purposes
of
good
public relations
must
be condemned. This paper argues that it is
of
utmost necessity and
urgency that serious efforts be undertaken to ensure that States domesticate international
human rights standards. States must devote their efforts to good faith realisation
of
all the
obligations they assume under conventions they ratify, as well as from other sources
of
internationallaw.8The international community, through the UN and regional human rights
organisations, needs to make a concerted effort to prevent States from ratifying treaties in
theory alone, but failing to translate them into reality at the grassroots level where they have
meaning in people's lives." This article advocates law reforms in countries' legal systems
aimed at translating international human rights norms into practice at the domestic level.
However, since the enactment and application
of
apparently neutral laws and law reforms per
se Cannot act as a panacea for all
women's
problems in attaining substantive equality, it is
argued that States are to enact and implement laws and legal reforms that include affirmative
action policies intended to ensure substantive equality
of
women.
This article is a case study
of
genderequality in Uganda, and critically examines the extent
to which Uganda has respected the right to gender equality and the degree to which it has
given effect to international human rights standards both in theory and practice. This is
accomplished through an examination
of
CEDAW and the degree to which its obligations
have been met in Uganda. It also draws on the equality jurisprudence engendered by the UN
Human Rights Committee established under the ICCPR
of
1966 to which Uganda is also a
Party. The paper argues that like many other countries, Uganda urgently needs to reform its
legal system, and those practices and customs both in the public and private sphere that are
antithetical to the rights and dignity
of
women; furthermore, Uganda should domesticate
international human rights standards to assure freedom from discrimination. Apart from
engaging in a critical survey
of
the gender discourse in the international arena against which
current Ugandan jurisprudence must be tested, this analysis also offers a
brief
commentary
on Uganda'spast humanrights jurisprudence as embodied in past constitutionsin general and
These include customary international law and general principles
oflaw.
See Art. 38
of
the Statute
of
the
International Court
of
Justice [hereinafter ICJ Statute1asannexed to the Charter
of
the UN, 59 Sta. 1055,
T.S. No. 993, 3 Bevans 1153 (signed at San Francisco, 26 June 1945; entered into force 24 October, 1945).
See Janis, M.W., An Introduction To International Law, Little, Brown &Co., Boston/New
YorkfTorontolLondon, 1998, Chapter 3.
In general, the implementation
of
many human rights treaties is through periodical State reporting,
individual and inter-State communications to treaty bodies. Inter-State procedureshave generally not been
used, while the State reporting and individual communication proceduresalso face several challenges. For
instance, many States have failed to discharge their reporting obligations, and many fail to remedy
violations
of
human rights to comply with the findings
of
human rights bodies. In addition, many States
have made reservations to treaties or they have not accepted the right
of
individual petition. The UN and
regional human rights bodies need to engage in a consistent effort
of
ensuring that their decisions and
recommendations are implementedby States, including through enhancing follow-ups
of
their decisions,
urgent action procedures, on-site visits to States, and enhancing publicity
of
non-complying States to
pressure them into compliance. With respect to the CEDAW, this article recommends, inter alia,
empowering the Committee on the Elimination
of
All Forms
of
Discrimination to receive complaints for
violations
of
the Convention.
237
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