Implementing the Principle of Gender Equality through the Law: Some Lessons from Southern Africa
| Author | Tiyanjana Maluwa |
| Published date | 01 March 1999 |
| Date | 01 March 1999 |
| DOI | http://doi.org/10.1177/135822919900300403 |
International Journal
of
Discrimination and the Law, 1999, Vol.
3,
pp. 249-268
1358-2291/99 $10
© 1999 A B Academic Publishers. Printed
in
Great Britain
IMPLEMENTING THE PRINCIPLE OF GENDER
EQUALITY THROUGH THE LAW: SOME LESSONS FROM
SOUTHERN AFRICA
TIYANJANA
MALUWA*
Legal Counsel
and
Head
of
the
OAU
Legal Division, Addis Ababa,
Ethiopia
ABSTRACT
The adoption, on
18
December, 1979,
of
the Convention on the Elimination
of
All
Forms
of
Discrimination Against Women marked a historic development
in
the
struggle for gender equality. The Convention has subsequently been ratified by a
record number
of
African states, forty-six in all. All these states are also parties to
the African Charter on Human and Peoples' Rights which,
in
Article
18
(3), con-
firms their commitment to women's rights and gender equality. Yet only a few
of
these states have taken the necessary measures to implement this commitment in
their respective municipal legal systems. Arguably, the major obstacle
in
the efforts
to implement the principle
of
gender equality is the institution
of
patriarchy, which
underlies African customary legal systems. However, Southern African countries
have taken the lead
in
addressing the institutionalized inequality to which African
women are still subjected. Thus, the fairly recent constitutions
of
Lesotho, Malawi,
Namibia and South Africa, for example, all contain bills
of
rights entrenching fun-
damental human rights, including the right to gender equality and non-
discrimination. In addition, the courts in some
of
these countries have also made
pointed, though isolated, attempts to actualize the promise
of
gender equality
through judicial interpretation by engaging and incorporating international human
rights law into the interpretative process. In the process, these courts have had to
address and resolve the vexed problem
of
reconciling the claims for gender equal-
ity, on the one hand, and the gender-discriminatory aspects
of
customary law and
practices
in
these societies, on the other hand. This paper presents an account
of
the various efforts being made by some Southern African countries to implement
the principle
of
gender equality.
It
is argued that the protection
of
gender equality
in
the constitutions or legislation
of
these countries will remain largely ineffective
unless the constitutional and legislative intent is matched by real structural changes
in power relations
in
these societies. This requires an interrogation
of
certain
assumptions about power that the interests
of
patriarchy have presented and
defended as time-honoured values. It also requires that where state action and
legislation do not accord with the principle
of
equality, on which the human rights
idea is predicated, such action and legislation must be reviewed
or
struck down.
* LL.B. (Miw.), LL.M. (Sheff.), Ph.D. (Cantab).
250
I.
INTRODUCTION
The
world celebrated the fiftieth anniversary
of
the United Nations
Universal Declaration
of
Human Rights
('the
Universal Declaration')
on 10 December, 1998.
For
advocates
of
women's
rights, the anni-
versary no doubt provided an occasion for renewed assessment
of
the
extent to which the aims and objectives
of
the Universal Declaration
and other instruments concerned with
women's
rights have been ful-
filled. The provisions
of
the Universal Declaration relating to sex
equality were subsequently reinforced by the Convention on the
Elimination
of
All Forms
of
Discrimination Against Women
of
1979
('the
Women's
Convention') and, for African states specifically, by
Article 18(3)
of
the African Charter on Human and Peoples' Rights
of
1981
('the
African Charter'). Most
of
the African states which
subscribe to the Universal Declaration and are also signatories to the
Women's
Convention as well as to the African Charter have, how-
ever, not sufficiently promoted them as instruments to achieve real
equality for women within their societies.
One
of
the major
common
characteristics
of
contemporary
African states is the existence
of
dual
or
multiple legal systems and
traditions in which the system
of
social control that has come to be
called 'customary
law'
operates side by side with the
'common
law',
inherited from the colonial era. It is commonly argued that customary
law, which is applied by the courts and other state agencies to regu-
late the daily lives
of
the overwhelming majority
of
African people,
does not recognize women and men as equals.
It
is further argued
that many aspects
of
customary law are inimical to the struggle for
women's
equality and to their quest for freedom from sex
or
gender
discrimination (Kaganas and Murray, 1994: 411).
Customary law is not,
of
course, the only system
of
law which
is,
or
has been, used to entrench sex and gender-based discrimination.
Historically, all types and systems
of
law have been employed during
various epochs, and to varying degrees, as a tool for men to secure
their dominant position in society and to deny women equal access
to, and participation in, all spheres
of
cultural, economic, political
and social life. Some aspects
of
the common law, for example, con-
tinue to be characterized by sex and gender discrimination, despite
the changes and advances that have been attained in the struggles to
remove such inequalities
over
the past few decades.
But
due to a
complex array
of
social, cultural, economic, historical and other fac-
tors that cannot be adequately addressed here, customary law has
lagged behind in the struggle to free it from sex and gender inequal-
ities.
For
most African communities today, it is thus the system
of
customary law that continues to present the larger obstacle in this
quest for equality,
if
only because it is this system
of
law that regu-
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